Texas Broadens State’s TCPA Rules and Increases Litigation Risks for Marketers

Texas has enacted amendments to its state version of the federal Telephone Consumer Protection Act (Tex. Bus. & Comm. Code §§ 301-305) (the Texas Mini-TCPA), adding three key pressure points that will increase both compliance obligations and litigation risk for companies that transmit marketing messages to Texas residents: (1) an expanded registration requirement that covers text message solicitations, (2) new private rights of action under the Texas Deceptive Trade Practices Act (DTPA), and (3) the potential for claims stacking. The amendments, enacted under Senate Bill 140 (SB 140), are scheduled to take effect on September 1, 2025.

High-Level Takeaways

• SB 140 expands the existing registration requirement (Section 302) of the Texas Mini-TCPA—previously limited to voice calls—to cover other transmissions, including transmission of a text, graphic message, or image. SB 140 does not alter the types of communications subject to Sections 301 or 305; the recent amendments suggest that those sections are likely to remain applicable to only voice calls, not text messages.
• SB 140 grafts new “tie-in” provisions onto Sections 304 and 305 of the Mini-TCPA that import additional remedies available under the DTPA, including treble damages, mental-anguish damages, and mandatory attorneys’ fees. Section 302 already included a DTPA tie-in.
• SB 140 adds language that earlier recoveries will not limit future recoveries, opening the potential for serial or stacking claims and damages.

Registration Now Required for Text-Message Solicitors

SB 140’s headline change is simple but sweeping: Any entity that initiates marketing texts to or from Texas must hold an active registration certificate from the Texas secretary of state (unless an exemption applies). Under the prior iteration of the statute, the registration obligation applied only to “telephone calls,” which Texas federal district courts interpreted narrowly, excluding text messages. See, e.g., Powers v. One Technologies, LLC, No. 3:21-CV-2091, 2022 WL 2992881 (N.D. Tex. July 28, 2022). The Texas legislature responded by amending Section 302.001(2) so that “telephone call” now expressly includes “other transmissions,” including texts and graphics.

Application Process

1. Application. The applicant must file a registration statement on Form 3401, listing (1) each business name under which solicitations will occur, (2) the type of business entity, (3) principal and branch addresses, (4) ownership information, and (5) any affiliates that will assist with solicitations, among other disclosures. The registration statement must be accompanied by other forms, available here.
2. Fee and bond. The filing must be accompanied by a $200 fee per business location and a bond (or other approved security) in the amount of $10,000 to secure payment of any fines or judgments.
3. Renewal. Certificates expire annually and must be renewed on or before the anniversary date. Existing registrants that were compliant for voice calls need not submit an interim filing, but they must include text-messaging activity when they renew.
4. Recordkeeping and disclosures. At each business location from which solicitations are sent, the business must make available the applicant’s registration certificate, the name of the person in charge of the business location, and a copy of the entire registration statement.

Exemptions

Exemptions are fact-intensive and should be evaluated on a case-by-case basis. Among others, the statute exempts: (1) publicly traded companies and their wholly owned subsidiaries, (2) entities subject to FCC licensing or control, (3) financial institutions subject to federal oversight and their affiliates, (4) 501(c)(3) nonprofits and educational institutions, (5) entities with retail establishments, if sales from the retail establishments account for a majority of their business, and (6) entities only soliciting current and former customers.

Businesses sending texts to consumers within Texas should consult counsel with questions concerning the potential application of any exemptions.

DTPA Tie-In: A Lower Litigation Bar and Enhanced Damages

SB 140 both expands the universe of potential violations and also increases the economic stakes by opening new avenues to recovery under the Texas DTPA. Prior to the amendments, only violations of Section 302 of Texas’ Mini-TCPA could trigger a private claim under the DTPA. Tex. Bus. & Comm. Code § 302.303. But the latest amendments expand that DTPA “tie-in” to Sections 304 and 305. Prior to the amendments (and continuing thereafter), Sections 304 and 305 possessed self-contained private rights of action, and plaintiffs suing under Section 304 had to satisfy a cumbersome administrative prerequisite.

SB 140 therefore changes the litigation risk profile for Texas’ Mini-TCPA in a number of ways:

1. Express tie-in provisions. Sections 304 and 305 now state that a violation “is a deceptive trade practice actionable” under the DTPA.
2. No administrative pre-filing. The new DTPA route bypasses the administrative prerequisite for DNC claims. Plaintiffs can file suit immediately and pursue DTPA remedies, which include:
   • Economic damages
   • Mental-anguish damages when the conduct is committed “knowingly”
   • Up to three times economic and mental-anguish damages when the conduct is intentional
   • Mandatory recovery of reasonable attorneys’ fees and court costs
3. Stacking claims. The amendments have added provisions to Sections 302, 304, and 305 providing that a claimant’s prior recovery under a private right of action arising from a violation of those sections “more than once may not limit recovery in a future legal proceeding in any manner.” It is unclear how this provision will be claimed to apply in litigation.

Recommended Action Steps To Consider Before September 1, 2025

In light of the imminent effective date, parties may wish to consider the following:

1. Determine registration status. Identify every entity—parent, subsidiary, or affiliate—that initiates or materially assists with marketing texts to Texas recipients or from locations in Texas. For each entity, work with counsel to determine whether a registration exemption applies. If not, prepare and submit the registration package, bond, and fee.
2. Update agreements and policies. Consider relevant risk allocation and compliance with law provisions in contracts where text marketing is involved.
3. Re-examine consent and disclosure practices. Confirm that you obtain and store consent from all message recipients.
4. Consider designating a “texting compliance officer.” Empower a single point of contact to coordinate registration renewals, vendor oversight, and complaint response. Provide that officer with escalation authority to halt campaigns that present heightened risk in Texas.

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