On September 1, 2025, Texas Senate Bill 140 (SB 140) will go into effect, significantly expanding the scope of telemarketing regulations in Texas. SB 140 impacts multiple subsections of Texas Business and Commerce Code Sections 301-305 (Texas Mini-TCPA) that are applicable to businesses that call or text Texas residents as well as businesses that call or text from Texas. SB 140 is just the latest amendment to a state-level equivalent of the Telephone Consumer Protection Act (TCPA). As with other “mini-TCPAs,” the revised Texas Mini-TCPA compounds the litigation risk for companies that communicate with their customers and consumers at large via phone and text.
The Rise of Mini-TCPAs
As covered in prior alerts, over the past several years a growing number of states have enacted or amended their telemarketing laws that regulate marketing calls and texts. Most of these laws, sometimes referred to as “mini-TCPAs,” mirror or largely track the federal TCPA. In some cases, however, these laws are more restrictive than the TCPA itself, resulting in a patchwork of regulations and compliance challenges for callers that operate nationwide. This landscape is ever- changing, as covered in prior legal alerts such as Georgia joins growing list of states with “mini-TCPAs,” Newly enacted state mini-TCPAs expand the definition of auto-dialer, and As Florida reins in its mini-TCPA, Washington state expands its own.
Four Key Aspects of SB 140 and the Texas Mini-TCPA
Quiet Hours and Revised Definitions
As revised, Section 301 imposes a number of requirements on telemarketers relating to “quiet hours,” during which calling and texting are generally prohibited, the content of telemarketing calls, and the definition of an “automated dial announcing device” (ADAD). A private right of action is available to consumers for violations of Section 301, but claims are limited to actual damages, which can be trebled under certain circumstances.
Explicit Inclusion of Text Messages and Registration Requirements
SB 140 also amends the Texas Business and Commerce Code to broaden the definition of “telephone solicitation.” Previously, a telephone solicitation meant a telephone call. No longer. SB 140 now includes not only voice calls, but also text messages, image messages, and “other transmissions” if they are initiated “to induce a person to purchase, rent, claim, or receive an item.” Popular marketing strategies like Short Message Service (SMS) and Multimedia Messaging Service (MMS) must now comply with Texas’s telemarketing restrictions. And the catch-all “other transmissions” closes the potential loophole for other emerging technologies.
Separately, companies making calls and texts to Texas residents or from Texas must satisfy certain registration requirements. Crucially, violating Section 302 can give rise to statutory damages of $5,000 per violation plus recovery of fees and costs.
Do Not Call Requirements and Exceptions
Under Section 304, the Do Not Call (DNC) aspects of the Texas Mini-TCPA largely track the TCPA’s rules, with some crucial distinctions.
A telemarketer may not make a telemarketing call to a telephone number published on Texas’s DNC list more than 60 days after the date the telephone number appears on the current list. Texas regulates “telemarketing calls,” which are defined as “unsolicited telephone call[s] made to: solicit a sale of a consumer good or service; solicit an extension of credit for a consumer good or service; or obtain information that may be used to solicit a sale of a consumer good or service or to extend credit for the sale.” V.T.C.A., Bus. & C. § 304.002(9).
As with the TCPA, two such calls or texts amount to a violation, with a private right of action and $500 in statutory damages available for “knowing” violations. There is a complicated pre-litigation dispute process that involves providing notice of a complaint to a state agency before pursuing statutory damages. Under the revised Texas Mini-TCPA, individuals may bypass the pre-litigation process and bring claims under the Texas Deceptive Trade Practices Act (DTPA) if they wish to seek actual damages.
The DNC rules have several exceptions equivalent to exceptions in the TCPA, including where an established business relationship exists, where a telemarketer is returning calls from a consumer, and debt collection calls. Another key exception is for a violative call or text that is “an isolated occurrence” and “made by a person who has in place adequate procedures to comply with this subchapter.” V.T.C.A., Bus. & C. § 304.058. This is similar to the TCPA’s “safe harbor” defense, discussed in our prior legal alert.
Requirements for Dialing Systems and DTPA Violations
The Texas Mini-TCPA, like most state telemarketing laws, also has a provision with requirements similar to the TCPA’s rules around using an autodialer. Under Section 305, a company may not use an ADAD (defined in Section 301, discussed above) to make a telemarketing call without first obtaining the consent of the called party. Failing to comply with Section 305 can give rise to statutory damages of $500 per violation.
Take-aways
In addition to those requirements set out above, businesses that call and text Texas residents should be aware of the risk of repeat litigants, as the revised law explicitly permits claimants to bring multiple claims for multiple overlapping violations of the different requirements under the Texas Mini-TCPA. Moreover, Texas law already allows for recovery under both the federal TCPA and the Texas Business and Commerce Code for the same violation. Businesses that market to consumers in Texas can bring their policies and procedures into compliance with SB 140 before it goes live on September 1, 2025.
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