On September 1, 2025, Texas Senate Bill 140 officially amended the state's well-known "mini-TCPA" so that certain Chapters now apply to sellers and salespersons who send marketing texts to consumers. This is a big change, particularly in two ways:
- Texting included. Previously the law only applied to traditional phone calls, and thus text marketers could arguably avoid the law's painstaking registration and disclosure requirements.
- Private right of action. The amendments also include a private right of action through the state's Deceptive Trade Practices Act, which subjects violators to steep penalties and gives Chapters 302, 304, and 305 of Texas' Business and Commerce Code some additional teeth.
Keep in mind, though, that it's not all gloom and doom. The law contains several exemptions and does not apply to all businesses. Businesses assessing their compliance risk should also consult counsel and consider the following:
- Publicly-traded companies, persons licensed under the Texas Insurance Code, financial institutions, and other organizations regulated by other laws are exempt and need not register.
- Nonprofits and educational organizations are exempt.
- Catalog sales and media subscription calls are exempt.
- Solicitations for the sale of food are exempt, as are solicitations that do not involve a major sales presentation or direct sale but are designed to set up a face-to-face meeting for the sales pitch.
- Also exempt, through Section 302.058(2), are sellers that have operated under the same name for at least two years and that are trying to solicit business from former or current "customers." The issue, here, is that this exemption does not define the term, "customer." Even still, one of the Chapters contains a definition for the term "established business relationship," or EBR, which, if read in context, is rather helpful. An EBR means a relationship formed by a voluntary two-way communication between a person and a consumer, with or without consideration, which has not been terminated. This EBR definition, if used to interpret the term "customer," as it should, would cover many occasions in which consumers are engaging with and providing phone numbers to sellers.
- Section 302.059(2) exempts callers who operate a retail establishment where consumer goods are displayed and offered for sale continuously, if a majority of the caller's sales come from that retail establishment. Like the term "customer," the term "retail establishment" is not defined, although arguably the term would extend to retail websites and thus would encompass both websites and brick and mortar retail locations.
More exemptions exist and may apply. While Texas now has one of the most strict telemarketing laws in the country, consult with legal counsel and consider the exemptions before rushing to register. Taft's Privacy and Data Security attorneys can assist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
