Effective September 1, 2025
Overview
Texas Senate Bill 140 (SB 140) represents a seismic shift in how text message marketing is regulated in the Lone Star State. Signed into law on June 20, 2025, this legislation fundamentally expands the legal definition of “telephone solicitation” to explicitly include SMS and MMS messages, creating significant new compliance requirements and legal risks for businesses.
What Changed: The Core Amendment
The legislation closes a critical loophole that previously allowed companies to send unsolicited text messages to recipients in the state of Texas without falling under Texas telemarketing laws. This gap was exposed in the 2022 court case “Powers v. One Technologies”, where a company successfully argued that text messages weren’t covered under Chapter 302’s definition of “telephone solicitation.”
SB 140 fixes this by cross-referencing Section 304.002’s broader definition of “telephone call,” which already included text and multimedia messages. This seemingly simple change has far-reaching implications.
New Legal Landscape: From State Enforcement to Consumer Litigation
Enhanced Private Right of Action
Perhaps the most significant change is the creation of a direct pathway for consumer lawsuits through the Texas Deceptive Trade Practices Act (DTPA). Previously, consumers faced procedural hurdles including:
- Required notification to the telemarketer
- Mandatory complaint filing with state regulators
- Prohibition from suing if state enforcement was already underway
Now, any violation of the telemarketing law automatically constitutes a DTPA violation, allowing consumers to proceed directly to court.
Escalating Financial Penalties
The financial exposure for non-compliant businesses has increased dramatically:
- Civil penalties: Up to $5,000 per violation
- Fines: $500 to $5,000 per violation
- Treble damages: Available for knowing or willful violations
- Attorney fees and emotional distress damages: Recoverable by plaintiffs
Successive Recovery Provision
A game-changing element allows for “successive recoveries,” meaning a consumer can sue, settle, and then sue again for future violations. This eliminates the traditional business strategy of settling once and continuing problematic practices.
Compliance Requirements
Mandatory Registration
Unless specifically exempt, businesses sending SMS and MMS messages to recipients in the state of Texas must register with the Texas Secretary of State, involving:
- Filing Form 3401
- $200 annual fee
- $10,000 security deposit (surety bond, letter of credit, or certificate of deposit)
- Detailed business information including scripts and marketing materials
Consent and Opt-Out Standards
- Prior Express Written Consent (PEWC) required for automated messages
- Consent checkboxes must be unselected by default
- Consent cannot be a condition of purchase
- Clear opt-out mechanisms (e.g., “STOP” replies) must be honored immediately
Stricter Quiet Hours
Texas imposes more restrictive quiet hours than federal law:
- Weekdays and Saturdays: No solicitations before 9:00 AM or after 9:00 PM
- Sundays: No solicitations before 12:00 PM or after 9:00 PM
- Must comply with the recipient’s time zone, not the time zone of the recipient’s number’s area code
Do-Not-Call List Compliance
Businesses must scrub against both:
- Texas No-Call List
- Electric No-Call List
- Required scrubbing every 60 days
Key Exemptions
While exemptions exist, they’re narrowly defined and the burden of proof lies with the business claiming exemption:
Business Relationship Exemptions
- Current or former customers (if operating under same name for 2+ years)
- Existing debt or contract communications
- Customer-requested communications
Retail Exemption
- Brick-and-mortar retailers operating under same name for 2+ years
- Majority of sales must occur at physical location
Regulated Entity Exemptions
- Publicly traded companies
- Financial institutions
- Educational institutions and 501(c)(3) nonprofits
- Businesses regulated by other state/federal laws
Specific products or services
The law does not apply to certain types of solicitations, including:
- Businesses marketing the sale of food.
- The sale of a subscription to a daily or weekly newspaper, magazine, or a cable television service.
- Selling merchandise under an arrangement where the seller periodically ships the merchandise to a consumer who has consented to receive it in advance.
- Periodically issuing catalogs that meet specific criteria, such as including a written description and price for each item, having at least 24 pages, and being distributed in more than one state.
Comparison with Federal TCPA
Feature | Federal TCPA | Texas Law (Post-SB 140) |
|---|
Scope | Voice, fax, SMS | Voice, SMS, MMS with graphics |
Quiet Hours | 8 AM - 9 PM | Weekdays/Saturday: 9 AM - 9 PM
Sunday: 12 PM - 9 PM |
Registration | Not required | Required (with exemptions) |
Private Action | Yes, with procedural limits | Direct DTPA access |
Damages | Up to $1,500 per violation | $500-$5,000 per violation, treble damages possible |
Successive Recovery | Not explicitly addressed | Explicitly permitted |
Strategic Recommendations
Immediate Actions Required
- Conduct Comprehensive Audit: Review all text marketing programs before September 1, 2025.
- Assess Registration Status: Determine if exemptions apply or if registration is required.
- Update Consent Mechanisms: Ensure all consent forms meet PEWC standards.
- Implement Time Controls: Add Texas-specific quiet hours to messaging systems.
- Establish Record-Keeping: Document all consent, opt-outs, and message content.
- Staff Training: Educate teams on new requirements and penalties.
Long-Term Compliance Strategy
The law’s structure incentivizes continuous compliance rather than reactive settlement strategies. Businesses should:
- Implement robust consent tracking systems
- Regular legal review of messaging practices
- Proactive monitoring of Texas No-Call Lists
- Maintain detailed audit trails for all communications
Conclusion
Texas SB 140 transforms text message marketing from a lightly regulated activity to a heavily scrutinized business practice with severe consequences for non-compliance. The legislation’s consumer-friendly design, combined with significant financial penalties and the potential for repeated lawsuits, creates a high-risk environment for businesses that fail to adapt.
Organizations engaged in text marketing to Texas residents must prioritize immediate compliance efforts, as the September 1, 2025 effective date rapidly approaches. The cost of compliance, while significant, pales in comparison to the potential exposure from violation of these new requirements.