Effective date: Sept 1, 2025.
Scope expansion: “Telephone solicitation” now explicitly includes texts, MMS (graphics/images), and calls. It also ties violations to Texas Deceptive Trade Practices remedies and clarifies that repeat recoveries don’t cap future recovery.
Disclaimer: This article discusses Texas SB 140 and related regulations for general information only. It is not legal advice and may not reflect the most current legal developments. For guidance on how these rules apply to your company, consult a licensed attorney.
TL;DR for ecommerce teams
- If you text, MMS, or call Texas residents for marketing, SB 140 applies. It amends the state’s mini-TCPA to cover SMS/MMS and strengthens private lawsuits under DTPA.
Texas Legislature Online - Registration may be required under Chapter 302 unless you fit an exception (e.g., “customer” or “retail establishment”). Registration involves a $200 filing, a $10,000 security (bond/CD/LOC), quarterly salesperson updates, annual renewal, appointing the Texas Secretary of State (SOS) as agent, and specific disclosures.
- Risk goes up: consumers can sue, and DTPA remedies are in play. Expect more plaintiff activity; your defenses will hinge on consent quality and whether you qualify for an exception.
Texas Legislature Online
What actually changed under SB 140
- Definition expanded: “Telephone solicitation” now means a call or other transmission, expressly including a text, graphic, or image—not just voice.
Texas Legislature Online - Private actions & DTPA hook: The law adds language that prior recoveries don’t limit future recoveries, and makes violations of Chapters 304 and 305 DTPA violations—opening the door to additional remedies.
Texas Legislature Online - Effective Sept 1, 2025; changes apply prospectively.
Texas Legislature Online
Do you have to register in Texas? (Chapter 302)
If you’re a “seller” making solicitations from Texas or to a purchaser in Texas, you generally must hold a registration certificate—unless an exemption applies. Key mechanics:
- File Form 3401 and pay $200.
Texas Secretary of State - Post $10,000 security via bond (Form 3403), certificate of deposit (Form 3404), or irrevocable letter of credit (Form 3405).
Texas Secretary of State - Appoint the Texas SOS as agent for service (Form 3406).
Texas Secretary of State - Quarterly addenda naming salespersons; annual renewal.
Texas Statutes
The registration duty and filings live in Chapter 302 Subchapter C.
Texas Statutes
The two big exceptions ecommerce cares about
These are statutory exemptions from Chapter 302’s registration and disclosure regime.
- “Customer” exception – Sec. 302.058(2) – No registration if you’re soliciting business from a former or current customer and you’ve operated under the same business name for ≥2 years. Note: the statute does not define “customer.” The term “purchaser,” however, is defined broadly as someone solicited to become obligated, i.e., it doesn’t require a completed purchase—a point courts could read as supporting a broader, ordinary-meaning “customer.”
Texas Statutes - “Retail establishment” exception – Sec. 302.059 – Exempts persons who make certain sales presentations or sales at established retail locations (conditions apply).
Justia
Agency 75% exception – Sec. 302.060. If you’re a service provider/agency and ≥75% of your solicitation work is for exempt clients, you may also be exempt.
Texas Statutes
Brands using clean, provable double opt-in and operating >2 years have an argument they fit the “customer” exception—but this is untested, so risk tolerance matters. (The statute puts the burden of proving an exemption on the party claiming it.)
Texas Statutes
Mandatory disclosures (if Chapter 302 applies)
Before a purchase is consummated, detailed disclosures are required in Texas for solicitation—including complete street address of the seller/principal location and additional details if gifts are offered or if a price is advertised below usual charges (see Subchapter E).
Texas Statutes
Penalties & exposure
- Civil penalty up to $5,000 per violation under Ch. 302, plus costs and attorneys’ fees for the state.
Texas Statutes - DTPA overlay via SB 140 can add statutory remedies to private suits.
Texas Legislature Online - Repeat recoveries aren’t capped by prior suits.
Texas Legislature Online
What to do now (ecommerce checklist)
- Map Texas recipients – Use residential address, not just area code, to flag likely Texas residents; area code alone misses movers and VOIP numbers. (Discussed widely in industry guidance.)
- Tighten consent – Maintain prior express written consent (un-prechecked box, clear automated-tech disclosure, no purchase required) and double opt-in. Keep timestamped records. (TCPA baseline; SB 140 doesn’t replace federal rules.)
- Honor “STOP/UNSUBSCRIBE” instantly – Your system must process opt-outs in real time and suppress future sends.
- Respect quiet hours – Use local-time throttling to avoid sends during restricted hours (align with TCPA and counsel’s Texas guidance).
- Decide: register or rely on an exception
- Register if your use case clearly doesn’t fit an exception, or your risk tolerance is low.
- If you believe you qualify (e.g., “customer” with double opt-in; retail establishment; or agency 75% rule), document the rationale and keep proof handy. Remember you bear the burden in disputes.
Texas Statutes
- Register if your use case clearly doesn’t fit an exception, or your risk tolerance is low.
- If registering: File Form 3401 + $200; post $10,000 security (3403/3404/3405); file 3406; set a quarterly update calendar; review your pre-purchase disclosures for Chapter 302. Texas Secretary of State
- Harden your T&Cs: Use clear, conspicuous assent at every opt-in point; link the exact terms users are accepting. Strong arbitration/class-action waivers (where appropriate) can reduce exposure, but get counsel to vet. (Common defense posture highlighted in practitioner notes.)
Decision guide (fast)
- You send promos to Texans and can’t prove they’re “customers” (ordinary-meaning) for ≥2 years → Register.
- You have robust double opt-in, operate ≥2 years under same name, and messaging is to your subscribers/customers → Discuss relying on Sec. 302.058 with counsel; document proof.
- Agency with ≥75% exempt client work → evaluate Sec. 302.060.
FAQs (short)
Is TCPA compliance enough?
No. SB 140 adds Texas-specific exposure and definitions you must also meet.
Texas Legislature Online
Does this cover MMS with images?
Yes—texts and graphic/image transmissions are explicitly included.
Texas Legislature Online
How fast must opt-outs be processed?
Immediate suppression is the safe posture under Texas guidance and standard best practice.
Bloomreach
Does consent exempt me from SB 140?
Consent allows messaging; it doesn’t exempt you from Chapter 302 or DTPA exposure. You may still need to register unless an exception applies.
Texas Statutes
Texas Legislature Online
Area-code filtering enough to “turn off Texas”?
No. Residency can differ from area code; you’ll miss/over-block.
Blank Rome
Takeaways you can act on (aligned with the statute)
- “Customer” is undefined; “purchaser” is defined broadly (solicited to become obligated). A court could reasonably treat “customer” at least as broad as “purchaser,” supporting an exception when you have solid, provable consent—but this is untested. Keep clean opt-in records.
- Two-year requirement appears in both customer and retail establishment exceptions. Plan around it.
- Agencies: the 75% exempt-client rule exists in the statute (Sec. 302.060). Validate your client mix before claiming it.
References & primary sources
- SB 140 (enrolled text) – definitions expanded to texts/MMS, DTPA linkage, recovery language; effective Sept 1, 2025.
Texas Legislature Online - Texas Business & Commerce Code, Ch. 302 – exemptions (Sec. 302.058, .059, .060); registration (Subch. C); penalties.
Texas Statutes - SOS forms – 3401 registration; 3403 bond; 3404 CD; 3405 LOC; 3406 SOS appointment.
Texas Secretary of State - Law firm summaries: Blank Rome, Kelley Drye & Warren LLP, BCLP, Eversheds Sutherland
- Vendor explainer for marketers: Bloomreach
