Texas recently passed significant new amendments to its Mini-TCPA. Anyone calling from or into Texas should read on. The new amendments go into effect on September 1, 2025.
Texas' Mini-TCPA
Texas' Mini-TCPA is one of the more complicated state mini-TCPAs because it is comprised of multiple statutes. Those statutes are within Chapters 301-305 of the Texas Business & Commerce Code.
- Chapter 301
Chapter 301 prohibits telephone solicitors from making consumer telephone calls (sales calls to residential telephone numbers) unless the following conditions are met:
- The telephone solicitor immediately provides the called party with his or her name, the name of the business on whose behalf he or she is calling, and an explanation of the call's purpose. See Bus. & Com. Code § 301.051(b)(1).
- The call is made between 9AM and 9PM on a weekday or a Saturday, or between Noon and 9PM on a Sunday. See Bus. & Com. Code § 301.051(b)(2)
- If an automated dial announcing device ("ADAD") is used to make the call, the ADAD must disconnect the consumer's telephone line within 5 seconds after either the telephone solicitor or consumer ends the call. See Bus. & Com. Code § 301.051(b)(3).
But those requirements do not apply to consumer telephone calls made (1) in response to the called party's express request, (2) in connection with an existing debt or contract where payment or performance is incomplete, or (3) to a consumer with whom the telephone solicitor has a prior or existing business relationship.
Under Chapter 301, ADAD, consumer telephone call, and telephone solicitor are defined terms. See Tex. Bus. & Com. Code § 301.001. Their definitions are as follows:
- ADAD: Automated equipment used for telephone solicitation or collection that can: store telephone numbers to be called or produce numbers to be called through use of a random or sequential number generator; and convey, alone or in conjunction with other equipment, a prerecorded or synthesized voice message to the number called without the use of a live operator.
- A "consumer telephone call" is an unsolicited call made to a residential telephone number by a telephone solicitor to: (A) solicit a sale of a consumer good or service; (B) solicit an extension of credit for a consumer good or service; or (C) obtain information that will or may be used to directly solicit a sale of a consumer good or service or to extend credit for the sale.
- A "telephone solicitor" is a person who makes, or causes to be made, a consumer telephone call, including a call made by an ADAD.
There is a private right of action for violations of Chapter 301. But, unlike the TCPA, a consumer's damages are limited to actual damages and a prevailing consumer can recover reasonable attorney's fees and costs. See Tex. Bus. & Com. Code § 301.104.
- Chapter 302
Chapter 302 regulates the making of "telephone solicitations" from and to Texas. A "telephone solicitation" is "a telephone call a seller or salesperson initiates to induce a person to purchase, rent, claim, or receive an item." Tex. Bus. & Com. Code § 302.001(7). The applicable definition of "seller" is "a person who makes a telephone solicitation on [their own] behalf." Tex. Bus. & Com. Code § 302.001(5). The applicable definition of "salesperson" is "a person who is employed or authorized by a seller to make a telephone solicitation." Tex. Bus. & Com. Code § 302.001(4).
Under Chapter 302, if a seller makes telephone solicitations from or to Texas, it must have a registration certificate for each business location it makes telephone solicitations from. But there are numerous exemptions to this registration certificate requirement, such as where an entity is soliciting former or current customers. Those exemptions can be found at Tex. Bus. & Com. Code §§ 302.051-302.061.
There is a private right of action for Chapter 302 violations. A prevailing consumer can be awarded up to $5,000/violation and reasonable attorney's fees and costs. See Tex. Bus. & Com. Code § 302.302. There is an ongoing argument as to whether an entity's failure to register constitutes a single violation or if each call an entity makes without the necessary registration certificate constitutes its own violation.
- Chapter 304
Chapter 304 prohibits telemarketers from making telemarketing calls to numbers on Texas' no-call list. See Tex. Bus. & Com. Code § 304.152. The applicable definition of "telemarketing call" is an unsolicited telephone call (live-agent call, SMS, MMS, or an autodialer call) made to: (A) solicit a sale of a consumer good or service; (B) solicit an extension of credit for a consumer good or service; or (C) obtain information that may be used to solicit a sale of a consumer good or service or to extend credit for the sale. Tex. Bus. & Com. Code § 304.002(9). A "telemarketer" is defined as a "person who makes or causes to be made a telemarketing call." Tex. Bus. & Com. Code § 304.002.
Chapter 304 does not apply to certain types of calls, including the following:
- Calls made in connection with an establish business relationship. That includes calls made within a year after the relationship is terminated. See Bus. & Com. Code § 304.004(2).
- B2B calls, unless the called business has made a do-not-call request to the calling business. Tex See. Bus. & Com. Code § 304.004(3).
- Calls made to collect a debt. See Bus. & Com. Code § 304.004(4).
Chapter 304 provides consumers with a private right of action if they receive two or more telephone solicitations that violate Chapter 304. A court can award up to $500/violation if it finds the defendant willfully or knowingly violated Chapter 304 (under the DNC portion of the TCPA, a consumer can recover up to $500/violation, which the court can increase up to $1,500/violation if it finds the defendant willfully or knowingly violated the relevant regulation). But before bringing suit for a Chapter 304 violation, a consumer must first (1) notify the telemarketer of the alleged violation, and (2) within 30 days after the call, file a complaint regarding the alleged violation with the commission, attorney, general, or relevant state agency. Then the consumer can only file suit if the commission, attorney general, or relevant state agency does not initiate an administrative or civil enforcement action within 121 days after the complaint is filed. See Tex. Bus. & Com. Code § 304.257.
- Chapter 305
Chapter 305 prohibits making sales calls, including making sales calls using an ADAD, when (1) the called party did not consent to receive the call, or to the use of an ADAD and (2) the caller knows or should have known that the called party's number is a cellphone number for which he or she will be charged for the call. See Tex. Bus. & Com. Code § 305.001.
Chapter 305 provides consumers with a private right of action if they receive a call that violates Chapter 305 or the TCPA. A prevailing consumer is entitled to $500/violation. The court can increase that amount up to $1,500/violation, if it finds the defendant knowingly or intentionally committed the violation. See Tex. Bus. & Com. Code § 305.053.
The New Amendments
The amendments that go into effect on September 1, 2025 apply to Chapters 302, 304 and 305. The following are the more important amendments.
- Amendment Applicable Only to Chapter 302
Under Chapter 302, the applicable definition of "telephone solicitation" is amended to include text messages (SMS) and image and graphic messages (MMS). As of September 1, 2025, the definition of "telephone solicitation" will read as follows: "a call or other transmission, including a transmission of a text or graphic message or of an image, initiated by a seller or salesperson to induce a person to purchase, rent, claim, or receive an item."
Due to this amendment, if you are a seller that sends sales text messages to or from Texas, and are not subject to one of the applicable exemptions or do not already have a registration certificate, by September 1, 2025, you must obtain a registration certificate for each business location from which you send sales text messages to or from Texas.
- Amendments Applicable to Chapters 302, 304 and 305
Chapters 302, 304 and 305 are all amended to clarify that consumers are allowed to bring multiple actions for violations of any of those chapters. Unfortunately, this change appears to be encouraging consumers to be repeat litigants.
- Amendments Applicable to Chapters 304 and 305
Both Chapters 304 and 305 are amended to classify a violation of either chapter as a false, misleading, or deceptive act or practice, and to provide a private right of action for a violation of either chapter under Texas' Deceptive Trade Practices-Consumer Protection Act ("DTPCPA").
This is an incredibly important change for Chapter 304. Currently, a private right of action for a violation of Chapter 304 can only be brought under Tex. Bus. & Com. Code § 304.257, which, as discussed above, requires a consumer to take certain actions before filing suit under that statute. But now, it appears that, as of September 1, 2025, a consumer can bypass taking those actions by instead bringing a claim under the DTPCPA for a violation of Chapter 304. In an action brought under the DTPCPA, a consumer is entitled to economic damages. If the defendant's conduct was committed knowingly or intentionally, the court may award the consumer up to three times his or her economic damages and damages for mental anguish. A prevailing consumer is entitled to reasonable attorney's fees and costs.
Texas' Mini-TCPA was already one of the more dangerous state mini-TCPAs. These new amendments only increase the danger. Thus, it is important for sellers and callers with ties to Texas to ensure they are aware of these new amendments and implement any necessary changes to their policies and procedures by September 1, 2025.
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.
