Navigating Changes to Texas’ Telemarketing Law

Changes in state telemarketing laws are reshaping how businesses communicate with consumers. Most recently, with the passage of Senate Bill 140 (SB 140), Texas amended its telemarketing law to broaden its scope in a number of critical ways. These updates raise new compliance requirements and litigation risks that businesses should carefully consider when preparing for SB 140’s effective date of Sept. 1, 2025.

What Are “Mini-TCPA” Laws?

The Telephone Consumer Protection Act (TCPA) is a federal law that generally requires prior express written consent for marketing calls and texts (i) containing an artificial or prerecorded voice, or (ii) sent using an “automatic telephone dialing system.” In recent years, most states have enacted their own versions of the TCPA, commonly referred to as “Mini-TCPA” laws. These state laws often mirror the federal TCPA and, in some cases, expand upon it and impose heightened obligations and liabilities for businesses that market by phone or text.

Texas’ Mini-TCPA law is codified at Section 301 to 305 of the Texas Business and Commerce Code. Prior to SB 140:

• Section 302 required any seller making a solicitation telephone call to or from Texas to obtain a registration certificate from the Secretary of State, and defined a violation as “a false, misleading, or deceptive act or practice” under Texas’ Deceptive Trade Practices Act (DTPA).
• Section 304 required compliance with state and federal Do Not Call (DNC) lists and prohibited interference with Caller ID systems for solicitation telephone calls.
• Section 305 prohibited the use of an “automatic dial announcing device” to make solicitation telephone calls without appropriate consent.

Heightened Prominence of Mini-TCPA Laws Post-Duguid Decision

In 2021, the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid significantly narrowed the federal TCPA’s definition of an “automatic telephone dialing system” (ATDS). The Court ruled that an ATDS must have the capacity to store or produce phone numbers using a random or sequential number generator; simply storing lists of predetermined telephone numbers does not suffice. This holding excluded from the TCPA’s scope many modern dialing systems that call from pre-existing lists.

In the ruling’s wake, several states established, through clarification or amendment, that their Mini-TCPA laws sweep more broadly and also cover automatic dialing technology that stores predetermined lists of numbers.

• Texas’ Mini-TCPA is one example: When Section 305 refers to an “automatic dial announcing device,” it means one that can “store telephone numbers to be called or produce numbers to be called through use of a random or sequential number generator.”

How Does SB 140 Impact the Texas Mini-TCPA?

SB 140 broadens the Texas Mini-TCPA’s scope and penalties by amending Sections 302, 304 and 305. Here are the key changes:

• Section 302’s registration requirement now applies to solicitation text messages as well as telephone calls. SB 140 expands the definitions of “telephone call” and “telephone solicitation,” which trigger the statutory registration requirement, to include text messages (SMS), image messages (MMS), and other electronic transmissions intended to induce a purchase or transaction.
• Section 304, including DNC and Caller ID requirements, now applies to solicitation text messages as well as telephone calls, and violations are subject to expanded penalties. It also now provides that a violation constitutes “a false, misleading, or deceptive act or practice” under the DTPA, which means plaintiffs may now seek attorney’s fees, damages for “mental anguish” if the violation is knowing, and treble damages for intentional violations. The amendments also remove certain administrative procedural barriers to suing under Section 304, such as pre-filing requirements with state regulators for DNC violations.
• Section 305 makes violations subject to expanded penalties. SB 140 did not amend Section 305 to apply to solicitation text messages, so it appears to remain limited to telephone calls. But like Section 304, it now defines a violation as “a false, misleading, or deceptive act or practice” under the DTPA, opening the same range of expanded penalties.
• Serial litigation risk. SB 140 adds an express statement that “[t]he fact that a claimant has recovered under a private action arising from a violation of this chapter more than once may not limit recovery in a future legal proceeding in any manner.” The meaning of that language is not clear, but it may open the door to serial litigation for similar violations under Texas law, or for the same conduct under federal and state laws.

What Should Businesses Consider?

Texas SB 140 marks a critical shift in state telemarketing legislation. We anticipate the new amendments’ broad scope, lower bar for recovery and expanded damages will create a perfect storm to embolden plaintiffs.

To prepare for the effective date, businesses engaged in phone and text marketing should consider the following:

• Assess Registration Obligations. If you send marketing texts subject to Texas’ Mini-TCPA, the new statutory registration requirements apply as of September 1. The application process includes paying a fee (per business location) and bond. Note that the law carves out several narrow exceptions (including solicitations to former or current customers) to consider.
• Adjust Existing Practices. Consider updates to existing terms, agreements (with SMS providers, for example) and telemarketing compliance practices (including consent practices and DNC scrubbing) to account for any gaps in SB 140’s heightened obligations and mitigate increased litigation risk.

The TCPA and state Mini-TCPAs are complex and heavily litigated statutes. We strongly recommend confirming compliance efforts with legal counsel.