SMS Compliance: Texas Amendments

The landscape of SMS marketing compliance is constantly evolving, and recent amendments to Texas law have been a significant point of discussion for brands. At Attentive, we're committed to providing our clients with the most current and actionable guidance to navigate these changes confidently.

We're pleased to share updated information directly from our engagement with the State of Texas regarding Senate Bill 140 (SB 140) and its impact on text message marketing. This post outlines the key amendments, Attentive's latest recommendations, and what these developments mean for your compliance strategy, including how to mitigate the remaining risks of private litigation.

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Understanding the Texas Mini-TCPA Amendments (SB 140)

Effective September 1, 2025, Texas Senate Bill 140 (SB 140) significantly expanded the scope of the state's telemarketing regulations, often referred to as the Texas mini-TCPA. This legislation amended Chapter 302 of the Texas Business & Commerce Code to include certain text message marketing under its definition of “telephone solicitation.”

The key changes introduced by SB 140 include:

• Expanded scope: The law now explicitly applies to certain commercial text messages, not just traditional phone calls. This expansion initially raised concerns about new registration requirements for businesses sending messages from or to Texas subscribers.
• New private right of action: SB 140 grants individual consumers the ability to sue businesses directly for violations, adding a layer of potential litigation risk.

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Latest guidance: Direct from the State of Texas

Since these changes went into effect, Attentive has been actively working with its outside counsel and directly engaging with the State of Texas to gain a clearer understanding of the law's impact on our clients.

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

Key details of this updated guidance include:

• Registration exemption clarified: Entities that engage in consent-based text message marketing campaigns are exempt from the registration requirements of Chapter 302, as amended by SB 140. While the State’s position regarding the registration requirement is now clear for consent-based messaging, companies should be aware that the Texas law includes a private right of action, and so the risk of private litigation remains.
  
  
• Withdrawal of pending applications: For any entities that have already applied for registration, where such application has not yet been acted upon by the Secretary of State, they can withdraw their registration.
  
  
  • You have several options to submit a written request to withdraw your application
    
    
    • 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
      
      
• Public adoption and formal opinion: The Texas Secretary of State’s Office publicly adopted this view on its website and formally requested that the Attorney General 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.
  
  
• Be prepared for potential private litigation: While registration is clarified, maintain thorough records of consent and adherence to quiet hours, as these are the primary areas where private litigation may still arise. More on this below.

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Navigating remaining risks: The 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 other bases.

If faced with litigation, including for claims based on registration, companies relying on consent have a number of persuasive defenses at their disposal. Attentive is committed to supporting our clients in this regard and will provide an audit letter reflecting available evidence of consent to help substantiate your compliance efforts.

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.

We strongly recommend that you consult your legal counsel with specific questions about your facts and circumstances to ensure your practices align with your business's risk tolerance.

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Attentive's recommendations for compliance

Our legal team has developed what we consider the most responsible interpretation of this law, prioritizing both consumer protection and brand reputation. Our recommendations are designed to help you maintain robust compliance while continuing to engage effectively with your Texas subscribers.

Here's what we recommend:

• Prioritize consent best practices: Continue to 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.
  
  
• Adhere to quiet hours: 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. 👉Learn more about enabling State Quiet Hours.
  
  
• Consult legal counsel: Always consult your legal counsel to assess whether any aspect of the law applies to you. While the State's assurances clarify the registration exemption for consent-based campaigns, 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.
  
  
• Continue business as usual: Keep running business as usual and continue engaging your Texas subscribers. By utilizing Attentive's Quiet Hours features 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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How Attentive supports your Texas SMS compliance

Attentive will continue to monitor developments in Texas law, updating recommendations as new information becomes available, and exploring other ways to support our 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.

Please contact your Attentive CSM or White Glove if you have any questions. You can also visit our Help Center for additional information on how to configure Attentive’s recommended settings.

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.