The recent amendments to the Texas mini-TCPA have created considerable ambiguity for marketers. At Attentive, we're committed to providing clarity.

This guide cuts through the noise, directly addressing the most common questions and debunking prevalent myths about the new law. Our goal is to give you the information you need to navigate this evolving landscape with confidence.

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The Texas Mini-TCPA: A High-Level Overview

Before we dive in, let's start with the basics. The Texas mini-TCPA, formally part of the Texas Business and Commerce Code, is a state law that regulates telemarketing. Originally focused on phone calls, its recent amendments have expanded its reach significantly to also include certain commercial text messages.

What the Law Says

At its core, the law establishes rules for businesses that contact Texas residents for commercial purposes. This includes requirements for two key tenets:

• Some businesses may need to register with the Texas Secretary of State, though a recent court order has clarified this requirement does not apply to consent-based text message marketing campaigns.
• Businesses should not make telephone solicitations during certain hours (9 p.m.–9 a.m. Mon–Sat; before noon or after 9 p.m. on Sundays).

Individual consumers have the ability to sue businesses directly for violations. These changes, especially the private right of action, are why there is so much discussion around this law.

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Attentive's recommendations

Attentive's legal team has developed what we consider the most responsible interpretation of this law, one that prioritizes both consumer protection and brand reputation.

Here's what we recommend:

• Follow best practices regarding consent. Attentive’s template opt-in process—through its patented two-tap technology and other sign-up flows—is designed for consumers to provide prior express written consent to receive marketing SMS messages from your business.
  
  
• Follow best practices regarding Texas-specific quiet hours. We have recently rolled out enhancements to time zone determination and state-specific quiet hours to help clients message while keeping this and other regulations in mind.
  
  
• Consult your legal counsel to assess whether any aspect of the law applies to you. The recent assurances clarify that businesses operating consent-based text message marketing campaigns are exempt from Chapter 302 registration, as amended by SB 140. However, there are other exemptions, and their application to your company will depend on company-specific factors that you and your counsel are in the best position to know.
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• ‍Keep running business as usual. Continue engaging your Texas subscribers. By updating Quiet Hours and understanding the implications of the State's assurances regarding registration under SB 140, you can minimize disruption while protecting revenue.

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What makes it hard for people to know definitively what to do?

Since Texas’s changes to its telemarketing registration statute and mini-TCPA went into effect in September, Attentive has been working hard with its outside counsel and the State of Texas to gain a better understanding of the law and its impact on Attentive customers.

Direct engagement and state assurances

Attentive has been directly engaging with the Texas Attorney General’s Office. We are pleased to share that the State has provided assurances that Attentive clients relying on consent-based messaging do not need to register in Texas.

In confirming this position, the Texas Attorney General’s Office indicated that entities that have applied for a registration, where such application has not yet been acted upon by the Secretary of State, can withdraw their registration.

The Texas Secretary of State’s Office publicly adopted this view on its website and will formally request that the AG issue an opinion consistent with this stance. The Secretary of State’s Office must request the formal AG opinion by December 16, 2025. We will provide updated information regarding the AG’s formal opinion as it becomes available.

Understanding remaining risks: Private right of action

While the assurances from the Texas Attorney General’s Office significantly clarify that entities that run consent-based text message marketing campaigns do not need to register, and this guidance is persuasive against private litigation solely based on registration, it's crucial to understand that the Texas law still includes a private right of action.

Plaintiffs are increasingly unlikely to pursue claims based solely on registration, given the State's clear position. However, they may still pursue claims related to this or other aspects of the law, such as violations of Quiet Hours or, most critically, a lack of proper consent. Registering (or not registering, if exempt) does not eliminate the risk of private litigation on these other bases. And companies relying on consent have a number of persuasive defenses at their disposal, including for claims based on registration.

To mitigate the risk of private litigation, it is paramount to:

• Maintain robust, TCPA-level prior express written consent for all marketing messages.
• Strictly adhere to Texas Quiet Hours.
• Consult your legal counsel for specific advice tailored to your business practices.

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Myths vs. Reality

Myth #1: If I have consent, I don't need to worry about the new law.

The Truth

This is now largely TRUE for the registration requirement, thanks to the direct assurances from the Texas Attorney General’s Office. They have confirmed that businesses operating consent-based text message marketing campaigns do not need to register. This provides strong official backing and significantly reduces the risk of state enforcement actions related to registration for compliant marketers.

However, it's crucial to understand that the Texas law includes a private right of action, meaning the risk of private litigation remains. While companies relying on consent have a number of persuasive defenses, and Attentive will provide an audit letter reflecting available evidence of consent, it's still essential to maintain robust, TCPA-level consent practices. Always ensure your consent practices meet industry best practices.

Myth #2: I have to pay a $10,000 security deposit to register.

The Truth

For businesses that do determine they need to register (i.e., those not relying on consent-based messaging or with other specific circumstances), the law requires posting a $10,000 security. Most businesses satisfy this by obtaining a surety bond, paying a small fee (typically a few hundred dollars) to a surety company.

Myth #3: I can just avoid sending messages to Texas area codes.

The Truth

This is not a reliable compliance strategy. We strongly advise against suppressing or blocking all Texas subscribers, as this approach can lead to significant revenue loss. The law does not prohibit sending messages to those who have provided consent; its focus is on timing and registration (which is now clarified for consent-based messaging), not a complete messaging ban.

Myth #4: Quiet Hours apply to all messages, including transactional ones.

The Truth

Not always. Quiet Hours in Texas don’t apply if the message is solicited, sent in response to a consumer's request, or if there’s an established business relationship. They also only apply to messages intended to encourage a sale, which likely excludes transactional messages. This means that welcome flows and other triggered messages based on direct consumer interaction are generally not subject to the same time-of-day restrictions as broadcast campaigns.

We recommend thoughtful use of Quiet Hour settings to provide the best customer experience. Your privacy policy should also be updated to reflect your messaging practices.

Myth #5: If I register, it implies that I am sending messages without consent.

The Truth

For businesses that do register, the Texas mini-TCPA does not include a statutory presumption that companies who register with the state are engaging in any particular conduct. Any claim that registration “implies” that a company is sending SMS messages without consent can easily be disproven by providing evidence of consent.

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Mini-TCPA Frequently Asked Questions

1. How is location determined for the purposes of the law?

Unfortunately, the law does not define how location is determined. The law applies to companies sending text messages “from a location in this state” or “to a purchaser located in this state.” Attentive has recently rolled out enhancements to time zone determination and state-specific quiet hours to help clients message while keeping this and other regulations in mind.

2. Can you register and not pay the bond?

For businesses that choose to register, no, posting the security (most commonly via a surety bond) is a required part of the registration process.

3. We have multiple brands. Do we need to register each of the brands with the Texas Public Utility Commission (PUC)?

For businesses that choose to register, the Texas statute does not clearly say whether a parent company can register on behalf of multiple brands or whether each brand must register separately. The registration requirement applies to certain “sellers,” defined as “a person who makes a telephone solicitation on the person's own behalf.” Whether each brand is a “seller” for registration purposes is something that may vary company by company, and we recommend consulting with your legal counsel to help you make this determination.

4. What should I do if I registered but haven’t heard back from the Secretary of State's Office?

Here’s what the State says:

Any business that has previously submitted a Telephone Solicitation Registration Statement pursuant to Chapter 302 may withdraw the application—if the submission has not been acted on by the Secretary of State—by submitting a written request to withdraw the application to: 

• In person: Secretary of State, Registrations Unit, 1019 Brazos St. Austin, TX 78701
• By mail: Secretary of State, Registrations Unit, P.O. Box 13193, Austin, TX 78711-3193
• By fax: (512) 475-2815
• By email: RegistrationsUnit_Assist@sos.texas.gov

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How Attentive supports compliance

Attentive will continue to monitor developments in Texas law, update its recommendations as new guidance becomes available, and explore other ways to support its customers’ ability to comply with the law. Attentive supports consistent and predictable federal regulation of our industry, and we advocate for this from our seat on the board of directors of the CTIA, the industry group that represents mobile messaging.

For additional information about the Texas mini-TCPA, watch Chief Strategy Officer Eric Miao’s recent conversation with one of our trusted TCPA counsel’s, Steptoe LLP Partner Dan Blynn, Esq.

The materials available in this post are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.