Texas Telemarketing & Texting Law (SB 140)

As of September 1, 2025, Texas law (SB 140) officially expands the definition of "telephone solicitation" to include text messages (SMS), image messages (MMS), and other graphic messages. This means if your business sends marketing texts to Texas residents or from a Texas location, you are now legally considered a telemarketer. You must register with the state and post a $10,000 security bond unless you qualify for a specific exemption.

The law provides several specific exemptions. Key exemptions include certain regulated entities (banks, insurance companies), publicly traded corporations, nonprofits, businesses with physical locations, and those contacting existing customers.

Yes, this is likely exempt. You can solicit your own former or current customers without registering, but only if your business has operated under the same name for at least two years. This "database reactivation" is allowed to let businesses maintain relationships with their existing customer base.

This is an important distinction. The exemption for retailers (in business for 2+ years under the same name with a majority of sales in-store) frees you from the state registration and bond requirement. However, this exemption does not change the rules about who you are legally allowed to contact.

You must still follow federal and state consent laws (like the TCPA). This means:

• You CANNOT text "cold" numbers. These are consumers with whom you have no prior relationship or consent.
• You CAN text consumers (including potential customers) who have given you "prior express written consent" to receive your marketing messages, for example, through a web form or text-in campaign.
• You CAN also text your own "current or former customers" under the specific exemption for that group (see Q3).

In short, the retail exemption removes the registration hurdle, but the fundamental requirement to get a consumer's permission before texting them remains.

You may not send telemarketing texts before 9 a.m. or after 9 p.m. Monday through Saturday, and not before 12 p.m. (noon) or after 9 p.m. on Sunday, based on the recipient's local time.

Yes, these hours apply to all businesses making solicitations. An exemption from the registration and bond requirement (under Chapter 302) does not exempt a business from the time-of-day restrictions for marketing calls (under Chapter 301). The rules are in separate parts of the law.

However, these time restrictions only apply to solicitations. Purely informational messages, such as appointment reminders or delivery updates, are not subject to these quiet hours.

Under both federal (TCPA) and Texas law, you must obtain "prior express written consent" before sending marketing texts using an autodialer. This consent must be clear, unambiguous, and cannot be a condition of purchase. Your opt-in disclosure must inform the consumer they are agreeing to receive marketing messages. You must also provide a clear and easy way for them to opt-out (e.g., by replying "STOP").

Yes. After you submit your registration statement (Form 3401), filing fee, and security bond, the Texas Secretary of State will review the application. The registration becomes effective on the 10th business day after it is filed, unless the Secretary of State denies it for being incomplete or inaccurate. Registration is valid for one year and must be renewed annually.

No. If your business clearly qualifies for an exemption, you are not required to file any forms or documents with the Texas Secretary of State to claim your exempt status. The exemption is automatic if you meet the criteria.

Yes. The law places the burden of proof on the business. If you are ever sued or investigated, you must be able to prove that you qualify for an exemption. You should maintain internal records (e.g., dated customer lists, sales records, articles of incorporation) that clearly demonstrate your exempt status.

Some businesses are exploring this strategy, but it is extremely high-risk. The idea is to have consumers waive their rights or confirm they are not Texas residents.

The core legal problem is the concept of unwaivable statutory rights. Consumer protection laws like the TCPA and this Texas statute are created to protect the public. Courts have consistently ruled that a company cannot use a contract or a disclaimer in its terms of service to strip consumers of these fundamental protections. An individual cannot legally "agree" to let a company violate a law that was designed to protect them.

In any TCPA-related lawsuit, the burden of proof is on the business to prove that it obtained proper consent. Courts have consistently sided with consumers when businesses cannot provide clear, auditable evidence of an opt-in. Simply having a phone number in a database is not enough.

Best practices for documenting "prior express written consent" require capturing and storing the following information for every opt-in:

• Timestamp: The exact date and time the consumer provided consent.
• Phone Number: The number for which consent was granted.
• Consent Language: The specific disclosure the consumer saw (e.g., "By checking this box, you agree to receive marketing texts...").
• Source of Consent: A screenshot or copy of the web page, form, or text-in keyword campaign where the consumer opted in.
• IP Address: The IP address from which the consent was submitted online.

This level of detail creates a durable, verifiable record that can be presented as evidence. Many companies use third-party consent verification services to handle this documentation automatically.

Yes, restaurants are exempt from the registration and bond requirement because of the "food sales" exemption. This allows them to text customers about daily specials, new menu items, or other food promotions without registering.

However, this does not exempt them from other parts of the law. A restaurant sending a marketing text is still a "telephone solicitor" and must:

• Obtain prior express written consent (see Q6).
• Adhere to the legal calling hours (see Q5).
• Provide an opt-out mechanism.

Purely informational, non-marketing messages like appointment reminders are generally not considered "telephone solicitations" under this law. The law's definition focuses on messages that "induce a person to purchase, rent, claim, or receive an item." An appointment reminder does not try to make a new sale.

Because these are not solicitations, they do not trigger the registration requirement. This applies even if your business is brand new (less than two years old). The two-year rule is part of an exemption for marketing to former customers, which is different from sending informational messages.

Important Note: Consent is still required. When a customer provides their phone number to book an appointment, they are giving implied consent to receive transactional messages about that specific appointment.