Does your business send marketing text messages to Texas residents or from Texas? If so, you may need to register each business location from which you send texts with the Texas Secretary of State. Amendments to the Texas telemarketing statute (in Chapters 301-305 of the Texas Business and Commerce Code) go into effect on September 1, 2025 and expand the definition of “telephone solicitation” to also include text messages, graphic messages, image messages, and most types of marketing messages. Additionally, one new amendment introduces a dramatic departure from the federal Telephone Consumer Privacy Act (“TCPA”) by expanding the definition of what constitutes an automatic telephone dialing system (“ATDS”).
It also adds serious penalties if you do not comply with the new rules, including the ability for a consumer to sue you directly, without the involvement of a state agency, and provides for treble damages. A prevailing consumer can be awarded from $500 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. This means that as of September 1, you will need to obtain the express consent of a consumer before sending any marketing messages to that consumer and determine if your business needs to register with the Texas Secretary of State. If you utilize services of a third party to conduct marketing campaigns, then you should verify the text campaigns they conduct on your behalf comply with these new Texas laws. If your business sends messages to consumers directly, then you should also be aware that these messages must not be sent during “quiet hours,” which previously only applied to voice calls, and the other new rules about conducting your text marketing campaigns. There are a few exceptions for existing or previous customers, but, in general, a business should confirm it has express consent to send a message before hitting “SEND.”
Texas joins a growing list of states that have adopted new rules to regulate marketing messages. If your business conducts text messaging campaigns from outside of Texas or from Texas to residents of other states, and you have questions about the new rules, including whether you should register your text marketing program with the Texas Secretary of State, then please call your attorney.
