Don't Mess With TEXts: Federal Court Protects Consent-Driven Messaging

On November 17, 2025, the United States District Court for the Western District of Texas entered an order in Ecommerce Marketers Alliance, Inc. et al. v. State of Texas et al. explaining that businesses that operate consent-based text message marketing campaigns are exempt from the Texas Business & Commerce Code's regulations of "telephone solicitations" (Texas's version of the federal Telephone Consumer Protection Act, hereinafter the Texas Mini-TCPA). This order is significant because it clarifies whether specific businesses must take additional steps toward compliance under the Texas Mini-TCPA.

Background

Signed into law by Governor Greg Abbott on June 20, 2025, and effective September 1, 2025, Texas Senate Bill 140 (SB 140) significantly expands the Texas Mini-TCPA.

Generally, businesses that make "telephone solicitations" from a location in Texas or to a purchaser located in Texas must file a comprehensive registration statement with the state, pay a $200 fee initially and annually, post a $10,000 bond, appoint the Texas Secretary of State as an agent for service of process, and submit quarterly reports. Texas also maintains its own Do-Not-Call registry and prohibits businesses from making unsolicited telemarketing calls or text messages to numbers that appear on the list. Each of these provisions is subject to exemptions.

SB 140 broadens the definition of "telephone solicitation" so that the Texas Mini-TCPA's registration requirement applies expressly to text messages and similar electronic communications. "Telephone solicitation" now means "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."

SB 140 also classifies violations of the Texas Mini-TCPA as "false, misleading, or deceptive" practices subject to public and private rights of action under the Texas Deceptive Trade Practices Act. Claimants may initiate multiple actions for separate violations. This may expose businesses to substantial penalties, including treble damages and attorneys' fees.

Ecommerce Marketers Alliance, Inc. et al. v. State of Texas et al.

Shortly after SB 140 took effect, a group of plaintiffs who engage in consent-based text message marketing programs filed a complaint against the State of Texas, the Texas Attorney General, and the Texas Secretary of State in the United States District Court for the Western District of Texas.

Seeking preliminary injunctive relief, Ecommerce Marketers Alliance, Flux Footwear, and Stodge alleged that SB 140 is an unconstitutional restriction on protected commercial speech and asked the court to clarify whether the registration requirement applies to businesses that send messages only to consumers who have affirmatively opted in.

Separate sections of the Texas Mini-TCPA seem to treat consent-based text message marketing programs differently. The provisions governing the registration requirement under Chapter 302 use the undefined word "call." Additionally, Chapter 302 does not provide a clear consent defense or expressly exempt consent-based text message marketing programs.

In contrast, the provisions governing the Do-Not-Call registry under Chapter 304 use the phrase "telephone call"—defined as "a call or other transmission made to or received at a telephone number, including . . . a call or other transmission, including a transmission of a text or graphic message or of an image, to a mobile telephone number." Additionally, Chapter 304 specifically exempts "a transmission made to a mobile telephone number as part of an ad-based telephone service, in connection with which the telephone service customer has agreed with the service provider to receive the transmission."

In opposing the plaintiffs' motion for preliminary injunction, the State clarified that it interprets a "call" under Chapter 302 to mean a "telephone call" as such term is defined under Chapter 304. Therefore, consent-based marketing text messages do not qualify as "calls" or "telephone solicitations" within the meaning of the statute.

Accordingly, businesses that operate consent-based marketing programs are exempt from both the Texas Mini-TCPA's registration and disclosure requirements and Do-Not-Call provisions. Since the purpose of the registration requirement is to protect people from false, misleading, or deceptive telephone solicitations and not to regulate businesses that message consenting consumers, the State explicitly assured that it will not enforce the Texas Mini-TCPA against such businesses.

With the State's interpretation benefiting the plaintiffs, the parties jointly moved to dismiss the proceeding without prejudice, and the court granted the motion.

As part of the settlement, the Texas Secretary of State agreed to request that the Texas Attorney General issue a formal letter opinion clarifying the Texas Mini-TCPA's applicability. The Secretary of State also issued its own guidance, stating explicitly on its website that "any business that sends text messages with prior consent of the consumer is not required to complete the Telephone Solicitation Registration Statement under Business and Commerce Code Chapter 302." Further, exempt companies that have already filed registration applications with the Secretary of State may withdraw their applications and avoid the arduous registration process if the Secretary of State has not yet acted on their applications.

Next Steps for Companies

The expansive scope of covered communications and enhanced remedies under SB 140 increases businesses' exposure to liability. This order and settlement provide much-needed clarification about the reach of Texas's registration and disclosure requirements. Still, it is important for businesses engaged in consent-based marketing programs to obtain and retain adequate documentation of customers' express consent.

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