Texas SB 140: Does Consumer Consent Exempt You from Telemarketer Registration?

Much has been made of Texas SB 140—its implications, whether it signals the sky is falling, and what it means for businesses engaging in telephone solicitation, including calls and text messages made with consumer consent. A central question has emerged: Are businesses that only text or call with consumer consent exempt from Texas’s telemarketer registration requirements, including a $200 filing fee and a $10,000 surety bond?

This question is critical because SB 140 includes a private right of action, meaning consumers can sue businesses directly for violations. And to be clear, even before SB 140 took effect, we saw cases brought by serial litigants targeting businesses for failing to register in Texas.

Recently, commentary on LinkedIn and elsewhere has suggested that the Texas Attorney General (AG) and Secretary of State’s response to a legal challenge filed by the Ecommerce Innovation Alliance (EIA) implies that businesses contacting consumers with consent are exempt from registration. While that interpretation may be appealing, businesses should be cautious relying on that view.

How Did We Get Here?

SB 140 went into effect on September 1, 2025. It amended already existing requirements by:

• Expanding the definition of “telephone call” and “telephone solicitation” to include:
  • Text messages
  • Image or graphic messages
  • Other electronic transmissions intended to induce a purchase, rental, or receipt of goods or services
• Applying the law to inbound calls made in response to outbound marketing efforts (e.g., mailers, texts, online ads);
• Broadening the private right of action by classifying any violation of Texas telemarketing laws as a deceptive trade practice under the Texas Deceptive Trade Practices Act (DTPA), allowing consumers to sue for:
  • Statutory damages of $500 per violation (up to $1,500 for willful violations)
  • Actual damages
  • Injunctive relief
  • Attorneys’ fees and court costs;
• Clarifying that multiple recoveries for the same violation do not bar future claims, enabling repeat litigation;
• Increasing the maximum penalty for certain violations from $5,000 to $10,000 per violation.

EIA’s Complaint

On the same day the law took effect, the EIA, along with Flux Footwear and Postscript, filed a Complaint for Declaratory and Injunctive Relief in federal court against the State of Texas, naming both the AG and Secretary of State (“State”) as defendants. The petition argued that SB 140:

• Violates the First Amendment by restricting consensual commercial speech, including opt-in text and SMS marketing;
• Is unconstitutionally vague, particularly in how it determines a “purchaser’s location” and how exemptions for “customers” and “retail establishments” apply:

In sum, the plaintiffs asked the court to temporarily block enforcement of the law, citing its chilling effect on legitimate marketing and the compliance burden it imposes on small businesses.

The Texas Response

On September 26, the State filed its response and a separate Motion to Dismiss, arguing the plaintiffs lacked standing. They also noted:

• No enforcement action has been taken against the plaintiffs.
• The state does not interpret SB 140 to apply to businesses sending SMS messages with consumer consent.
• The Secretary of State, not the AG, handles registration.
• The plaintiffs lack standing, and state sovereign immunity bars the claims.

Interpreting the State’s Response

Some have interpreted the response as confirmation that businesses contacting consumers with consent do not need to register. While that interpretation may be favorable, it is premature and risky to rely on. Here’s why:

1: It’s Just a Response—Not a Ruling

The State’s response is a litigation pleading and part of a legal defense, not a court decision. There has been no resolution to the case thus far. In fact, the most recent development is an extension of time granted for the plaintiffs to respond to the state’s motion to dismiss. A judge may interpret the law differently than the AG or Secretary of State’s Office.

2: Interpretations Can Change

Even if the current AG and Secretary of State are signaling a hands-off approach, future officials may interpret SB 140 differently. Political turnover or shifts in enforcement priorities could lead to new interpretations and renewed enforcement.

3: The Private Right of Action Is Still in Play

Moreover, even if the AG and Secretary of State decline to enforce the law, private individuals can still sue. The private right of action means that consumers can bring claims against businesses they believe are violating the statute. In other words, even if regulators stay quiet, private plaintiffs will not. Again, this was already happening prior to SB 140’s enactment.

What Does the Statute Actually Say About Exemptions?

Chapter 302 of the Texas Business & Commerce Code requires registration before engaging in telephone solicitation and provides certain exemptions. We recommend that businesses carefully evaluate the statutory exemptions to Texas’ registration requirement. These include:

• § 302.053 Regulated Entities: Exempts financial institutions, insurance companies, and other entities regulated by state or federal law.
• § 302.054 Media and Catalog Sales: Exempts sellers of newspapers, periodicals, cable subscriptions, and merchandise sold via qualifying catalogs.
• § 302.055 Educational & Nonprofits: Exempts accredited educational institutions and IRS-recognized 501(c)(3) nonprofits.
• § 302.056 Commercial Sales Setup: Exempts solicitations that don’t involve a major sales presentation and are intended to arrange a face-to-face meeting.
• § 302.057 Food Sales: Exempts sellers soliciting the sale of food or food-related products.
• § 302.058 Existing Customers: Exempts sellers soliciting current or former customers if they’ve operated under the same name for at least two years.
• § 302.059 Retail Locations: Exempts sellers operating a retail location where goods are continuously displayed and sold, and where most sales occur.
• § 302.060 Service Providers: Exempts entities providing telephone solicitation services primarily for exempt sellers.
• § 302.061 Isolated Solicitations: Exempts sellers making isolated solicitations not part of a recurring pattern.

Notably, “consent” is absent from the list of exemptions, unlike in some other states, where consent-based outreach can excuse registration.

Final Takeaway

Until a court issues a binding ruling, businesses should not assume that consumer consent exempts them from Texas’ telemarketer registration requirements. The law remains active, and the risk of private litigation is real. The State’s response may be encouraging, but it is not a green light to disregard the statute, given Texas’ private right of action.

Businesses should continue to monitor the ongoing litigation, consult legal counsel, and weigh the risks carefully before deciding to forego registration requirements.

Reach out to us at connect@compliancepoint.com if you have any questions about telemarketing laws or how CompliancePoint can assist your organization with managing your marketing compliance.