Texas Uniform Trade Secrets Act (TUTSA) Attorneys

Stopping Trade Secret Theft and Pursuing Legal Remedies for Houston Businesses

When a former employee walks out the door with your proprietary client list, a competitor obtains your confidential pricing strategy through a vendor relationship, or a business partner uses your proprietary process without authorization, you need to act quickly. The Texas Uniform Trade Secrets Act – known as TUTSA – is the primary legal framework for stopping trade secret theft, holding the responsible party accountable, and recovering what the theft cost you.

Hendershot Cowart P.C. has more than 150 years of collective experience in business litigation and trade secret law. Our attorneys have represented Texas businesses on both sides of TUTSA claims – pursuing emergency relief and damages for companies whose confidential information has been stolen and defending businesses against claims that don't hold up under scrutiny. 

Call (713) 783-3110 or contact us online to schedule a consultation.

On this page:

• What Is TUTSA?
• Who Can Bring a Claim Under TUTSA?
• What Constitutes Misappropriation Under TUTSA?
• What Are the Elements of a TUTSA Claim?
• How Long Do You Have to File a Claim? 
• How to Stop Misappropriation – Injunctive Relief Under TUTSA
• What Damages Can You Recover?
• TUTSA vs. the Federal Defend Trade Secrets Act (DTSA)
• Defenses to Trade Secret Misappropriation Claims
• How Hendershot Cowart P.C. Can Help
• Frequently Asked Questions

What Is TUTSA?

The Texas Uniform Trade Secrets Act (TUTSA) was added to the Texas Civil Practice and Remedies Code in 2013 and provides Texas businesses with a clear, comprehensive framework for protecting confidential information and pursuing civil remedies when that information is stolen or misused. 

TUTSA provides two primary categories of relief: 

1. Injunctive relief to stop the misappropriation; and 
2. Monetary damages to compensate for the harm caused.

TUTSA defines a trade secret broadly as all forms and types of information – including formulas, designs, prototypes, patterns, plans, programs, code, methods, techniques, processes, procedures, financial data, and lists of actual or potential customers or suppliers – provided that two conditions are met:

• The information derives independent economic value – actual or potential – from not being generally known to or readily ascertainable by others who could benefit from its disclosure or use.
• The owner has taken reasonable measures to keep the information secret.

Texas courts have clarified that absolute secrecy is not required. What matters is that you took specific, documented steps to protect the information.

For proactive protection strategies – agreements, access controls, and policies that safeguard your trade secrets before a dispute arises – see our related page on intellectual property and trade secret protection.

Who Can Bring a Claim Under TUTSA?

Any "owner" of a misappropriated trade secret may bring a TUTSA claim. The statute defines "owner" as any person or entity holding rightful, legal, or equitable title to the trade secret – or the right to enforce rights in it. That includes individuals, corporations, partnerships, and limited liability companies.

TUTSA also defines "claimant" broadly to include plaintiffs, counterclaimants, cross-claimants, and third-party plaintiffs – meaning trade secret claims can arise in the context of a broader business dispute, not only as a standalone lawsuit.

What Constitutes Misappropriation Under TUTSA?

Misappropriation takes two primary forms under Texas law.

1. Acquisition-based misappropriation: obtaining a trade secret while knowing – or having reason to know – that it was acquired through improper means. Improper means include theft, bribery, misrepresentation, breach of a confidentiality obligation, and electronic espionage.
2. Disclosure- or use-based misappropriation: sharing or using a trade secret without the owner's consent, where the person knew or should have known the information was improperly obtained or acquired in breach of a duty of secrecy.

The most common scenarios our clients encounter include a departing employee who takes proprietary client data or a process manual; a vendor or business partner who uses confidential information shared during negotiations to compete; and a former employee hired by a competitor in an identical role where use of your trade secrets is practically unavoidable.

TUTSA expressly defines "proper means" – conduct that does not constitute misappropriation – to include independent development and reverse engineering of a product that was lawfully acquired. A defendant who can demonstrate either of those has not misappropriated your trade secret.

What Are the Elements of a TUTSA Claim?

Texas courts consistently apply a three-element test to TUTSA misappropriation claims. To prevail, you must establish:

• Ownership of a trade secret. You must identify with particularity what information constitutes the trade secret. Sweeping or vague claims to general categories of proprietary information are not sufficient – courts require you to be specific about what was taken and why it qualifies for protection.
• Misappropriation of the trade secret. You must show one of the specific forms of misappropriation defined by TUTSA – improper acquisition, or unauthorized disclosure or use by someone who knew or should have known the information was obtained improperly or in breach of a confidentiality obligation.
• Resulting injury. Where you are seeking damages, you must demonstrate actual injury caused by the misappropriation. For claims seeking injunctive relief only, proof of injury may be less specific – courts may enjoin threatened misappropriation before harm fully materializes.

A critical lesson from Texas case law: Claims frequently fail at the first element when plaintiffs cannot define their trade secret with enough specificity, or when the information turns out to be readily ascertainable from public sources. Before filing, it is essential to audit exactly what information you are claiming, confirm it qualifies, and document the protective measures you took.

How Long Do You Have to File a Claim? 

TUTSA claims are subject to a three-year statute of limitations. The clock starts running on the date the misappropriation was discovered – or the date it should have been discovered through reasonable diligence. This is known as the discovery rule, and it is codified directly in the statute.

Two things are important to understand about how this works in practice. 

1. First, mere suspicion is not enough to start the clock. The Texas Supreme Court has held that the limitations period does not begin until there is objective evidence of misappropriation – not just a feeling that something may be wrong. 
2. Second, continuing misappropriation does not restart the clock. If misappropriation continues over time, Texas law treats it as a single cause of action, with the limitations period beginning at the initial misappropriation regardless of how long the conduct continues.

The practical consequence: if you delay investigating or taking action because you hope the situation will resolve itself, you may lose the right to bring a claim altogether. If you suspect your trade secrets have been taken, the time to consult an attorney and begin documenting evidence is as early as possible.

How to Stop Misappropriation – Injunctive Relief Under TUTSA

Speed is often the most critical factor in a trade secret dispute. TUTSA authorizes courts to enjoin both actual and threatened misappropriation – which means you do not have to wait until your trade secret has been used against you to seek relief. Merely possessing your trade secret while in a position to use it may be sufficient to justify a court order.

Texas courts presume irreparable harm when one party possesses another's trade secrets and is in a position to use them. That presumption significantly lowers the burden of obtaining emergency relief at the outset of a case.

Courts can order a range of relief under TUTSA, including:

• A temporary restraining order (TRO) – obtained on an emergency basis, often before the other party is notified
• A temporary injunction (or a preliminary injunction under the federal Defend Trade Secrets Act) – entered after a hearing, to maintain the status quo during litigation
• An order halting use or disclosure of the trade secret
• An order preventing a former employee from working for a competitor in a role that would require use of your trade secrets
• A permanent injunction following resolution of the case on the merits

Protecting Your Trade Secrets During Litigation

TUTSA requires courts to take reasonable steps to preserve the secrecy of alleged trade secrets throughout litigation. Courts can limit access to the trade secret to attorneys and their experts only, hold hearings in camera, seal court records, and order all parties not to disclose alleged trade secrets without prior court approval. This protection matters: the goal is to recover what was taken without inadvertently destroying the asset you are trying to protect.

What Damages Can You Recover?

In addition to injunctive relief, TUTSA allows you to pursue monetary damages. Courts may award:

• Actual damages – the losses your business suffered as a direct result of the misappropriation
• Unjust enrichment – the profits or savings the defendant gained from using your trade secret, to the extent not already captured in your actual damages
• Reasonable royalty – in lieu of other damages, an amount representing what the parties would have negotiated for a license at the time of the misappropriation
• Exemplary damages – up to twice the compensatory award, where willful and malicious misappropriation is proven by clear and convincing evidence
• Attorney's fees – available to the prevailing party where the misappropriation was willful and malicious, or where a claim was brought or defended in bad faith

For a detailed breakdown of how courts calculate each category of damages – including how lost profits are estimated, how unjust enrichment is measured, and what "willful and malicious" means in practice – see our related article on trade secret damages under TUTSA.

TUTSA vs. the Federal Defend Trade Secrets Act (DTSA)

In 2016, Congress enacted the Defend Trade Secrets Act (DTSA), creating a federal cause of action to sue for trade secret misappropriation. The DTSA does not replace TUTSA – it exists alongside it, and Texas businesses with qualifying claims can pursue both simultaneously.

The two statutes share the same three-year statute of limitations, the same damages structure, and the same exemplary damages cap. The key differences are:

• Interstate commerce requirement. The DTSA requires the trade secret to relate to a product or service used in interstate or foreign commerce. TUTSA imposes no such limitation.
• Federal court access. The DTSA provides access to federal district court, which may offer strategic advantages in certain cases.
• Ex parte civil seizure. In extraordinary circumstances, a federal court can seize property before the defendant has any notice – a powerful remedy with no equivalent under TUTSA.

When the interstate commerce requirement is met, most practitioners plead both statutes to maximize available remedies and venue options.

Defenses to Trade Secret Misappropriation Claims

If your business has received a demand letter or been named in a trade secret lawsuit, understanding the available defenses is the first step toward building your response. 

Texas courts recognize a range of defenses under TUTSA:

The Information Is Not a Trade Secret

The defendant may challenge whether the claimed information actually qualifies – arguing it was already publicly known, readily ascertainable from public sources, or lacks genuine economic value from secrecy. Courts have rejected misappropriation claims where the alleged trade secret turned out to be available in trade journals or other public materials.

Failure To Take Reasonable Measures to Maintain Secrecy

Even if information meets the other criteria, it is not a trade secret if the owner failed to protect it. Texas courts will favor defendants in trade secret claims if the company cannot articulate specific measures it took to keep the information secret.

Independent Development

TUTSA expressly defines independent development as a "proper means" of discovering information – and a defense to a misappropriation claim. To establish it, the defendant must demonstrate that they developed the disputed information through their own research, skill, and effort, without any reference to or use of the plaintiff's trade secret. Arriving at the same result through legitimate work is not misappropriation, even if the outcome closely resembles the protected information.

Reverse Engineering

Reverse engineering is also defined as a "proper means" under TUTSA, provided the product or device was obtained lawfully, such as through purchase. A defendant who worked backward to develop or manufacture a known product – by studying, analyzing, or disassembling a product – has not misappropriated a trade secret.

Public Domain or Readily Ascertainable Information

Information that is already publicly known or can be readily ascertained through proper means by others cannot qualify for trade secret protection, regardless of how the defendant obtained it. For example, if the information can be found online or in marketing materials, it is not a protected trade secret. 

Consent

Disclosure or use with the owner's express or implied consent does not constitute misappropriation under TUTSA.

Statute of Limitations

A claim brought more than three years after the misappropriation was discovered – or should have been discovered with reasonable diligence – is time-barred.

How Hendershot Cowart P.C. Can Help

Trade secret disputes move quickly. Whether you are the one whose proprietary information has been taken or the business facing accusations of misappropriation, the decisions made in the first days and weeks of a dispute significantly affect the outcome.

Our attorneys have more than 150 years of collective experience in business litigation and trade secret law. We represent businesses on both sides of TUTSA claims – pursuing injunctive relief and damages for companies whose trade secrets have been stolen, and defending businesses against claims that do not hold up under scrutiny.

Our representation includes:

• Evaluating the strength of a trade secret claim or defense before litigation begins
• Pursuing emergency injunctive relief, including temporary restraining orders, when time is critical
• Aggressive trade secret litigation in Texas state court, federal court, or arbitration
• Defending businesses against misappropriation claims – including challenging whether the claimed information qualifies as a trade secret
• Coordinating parallel claims under TUTSA and the DTSA in multi-jurisdiction disputes

Call (713) 783-3110 or contact us online to discuss your situation with a TUTSA attorney today.

Frequently Asked Questions

What is the difference between TUTSA and the Defend Trade Secrets Act?

TUTSA is Texas's state trade secret law; the DTSA is the federal equivalent. The DTSA requires the trade secret to relate to interstate or foreign commerce, provides access to federal court, and includes a unique ex parte seizure remedy not available under TUTSA. Both have the same three-year statute of limitations and similar damages structures. For qualifying disputes, businesses often pursue claims under both simultaneously.

How long do I have to file a trade secret misappropriation claim in Texas?

Three years from the date you discovered – or reasonably should have discovered – the misappropriation. Continuing misappropriation is treated as a single cause of action, with the limitations period running from the initial act. 

Can I get an emergency order to stop a former employee from using my trade secrets?

Yes. TUTSA authorizes courts to order a stop to both actual and threatened misappropriation. If a former employee possesses your trade secrets and is in a position to use them, Texas courts presume irreparable harm – which significantly lowers the threshold for obtaining a temporary restraining order. Acting quickly is essential, as courts move fast on emergency relief.

What if I don't have a non-compete or NDA in place – can I still bring a TUTSA claim?

Yes. TUTSA protects trade secrets regardless of whether a written agreement is in place. An employee who takes confidential information may be liable for misappropriation even without signing a non-compete or NDA, if the information meets the statutory definition of a trade secret and the employee had reason to know it was confidential. However, having strong agreements in place significantly strengthens your position.

What does "willful and malicious" misappropriation mean, and why does it matter?

TUTSA defines willful and malicious misappropriation as intentional misappropriation resulting from deliberate disregard of the owner's rights. Proving this by clear and convincing evidence opens the door to exemplary damages of up to twice the compensatory award and allows the court to award attorney's fees to the prevailing party.

Can my trade secrets be protected during litigation?

Yes. TUTSA requires courts to take reasonable steps to preserve the secrecy of alleged trade secrets throughout the proceedings. Courts can restrict access to attorneys and experts only, seal court records, and order all parties not to disclose the information without prior court approval.

What if someone accuses my business of trade secret misappropriation?

Do not ignore a demand letter or assume the claim will go away. TUTSA claims are serious, and the first response matters. Common defenses – including that the information was publicly known, that your company developed it independently, or that the plaintiff failed to take reasonable protective measures – require prompt investigation and a well-constructed legal response. Contact our attorneys as soon as possible after receiving a demand letter or learning of a potential claim.

Discuss Your Trade Secret Dispute with Our Team

Trade secret cases are time-sensitive – both legally and practically. The longer confidential information is in the wrong hands, the harder it becomes to limit the damage. If your trade secrets have been taken or misused, or if your business is facing a misappropriation claim, contact Hendershot Cowart P.C. today.

Call (713) 783-3110 or contact us online to schedule a consultation with our team. We will assess your situation, explain your options, and help you determine the most decisive path forward.