SMS Compliance: Texas Amendments

This post has been updated with the most up-to-date information and legal recommendations as of October 1, 2025.

Recently, the Attorney General in Texas clarified their interpretation of S.B. 140 saying that they did not think it applied to texts sent with prior consent. The AG stated: “[T]he legislature enacted S.B. 140 to prevent telemarketers from spamming Texans with unwanted text messages they have not consented to receive.” This opinion better matches the current TCPA and Federal regulations, and implies there is unlikely to be any action from the State of Texas against merchants who use compliant sign up methods to obtain consumer consent for marketing text messages. This outcome is a major win for Attentive’s efforts - including our direct lobbying and our work through industry associations like the CTIA—to fight for our customers and keep SMS and RCS messaging regulated at a federal level. 

While this is a step in the right direction, this opinion is, by the AG’s definition, “not binding on the courts.” The opinion was made only in the context of dismissing the frivolous injunction against the law, and therefore the practical impact is limited.

The unfortunate reality is that this vague law is still on the books in Texas. While the government may not pursue cases under this law, private citizens will still be able to sue for violations. There is a cottage industry of trial lawyers who file frivolous claims under vague laws to try to get quick settlements in the tens to hundreds of thousands of dollars. We have seen this first hand in Florida; Florida’s mini-TCPA became effective in 2021, and hundreds of frivolous lawsuits were filed with the settlements totaling millions of dollars in aggregate. These suits are decided by individual judges and juries. These cases can be very costly to defend against, even if you win, so settlement unfortunately is a common path. 

Therefore, our overall position has not changed. We continue to believe the prudent course of action is to register with the State of Texas to avoid potential liability under the passed legislation. 

We will continue to fight and advocate for the industry as we have done for years both directly and through industry associations like the CTIA where we are board members. Our work is not done until messaging is only regulated with a single set of standards nationally.

What our legal team has recommended:

Attentive continues to recommend the following steps to help protect your business from the risk of litigation and enforcement, regardless of the Texas Attorney General’s recent statements about the potential scope of the law.

• Consult your legal counsel to assess whether the registration requirement actually applies to you. There are many exemptions to the registration, but their application to your company will depend on company-specific factors that you and your counsel are in the best position to know.
• Out of an abundance of caution, register with the state if you are unsure whether to register. The Texas legislature has stated that the law will be “construed liberally.” We anticipate that most businesses will pay no more than $1,500 to register.
• Update your Quiet Hours settings to 8PM to 12PM ET.
  
  • Monday - Saturday, send campaign messages between 12 PM ET - 8PM ET. 
  • On Sundays, send campaign messages only between 2 PM ET - 8PM ET.  
  • While Texas Quiet Hours restrictions don’t apply if the message is sent in direct response to a consumer’s request, or the sender already has an “existing business relationship” with the subscriber, we recommend thoughtful use of Quiet Hour settings.
• Keep running business as usual. Keep engaging your Texas subscribers. By updating Quiet Hours and addressing registration requirements, you can minimize disruption while protecting revenue.
  
  • Coming soon: Our team is developing new daily Quiet Hours functionality to make compliance easier and help reduce potential revenue impact. 

For those companies that are not required to register at all under the law, this approach provides you with assurances that you have thoughtfully considered the requirements and potential risks. And, for companies who determine that registration is required, registration allows you to operate your SMS program and maximize revenue without rolling the dice with your compliance.

Why we don't recommend the "wait and see" approach

We're aware of recommendations suggesting companies not register with Texas while waiting for a legal challenge to the law to make its way through the courts. Litigation in federal court routinely takes months, if not years, to resolve – and there is never a guarantee of a favorable result. For example, a 2022 challenge to Florida’s text messaging law was overwhelmingly unsuccessful. Unfortunately, ignoring legal requirements opens you up to immediate and significant monetary and business risk:

• The threat of lawsuits and state enforcement is immediate. Putting off compliance with the law in a “wait-and-see” approach poses real risk of legal fees and/or penalties in the meantime.
• Consumers can file class actions and multiple lawsuits for violations. Consumers are permitted to file class-action lawsuits (on behalf of other similarly-situated consumers) for alleged violations of the law—including a failure to register. Consumers are also permitted to file a separate lawsuit for each violation if a company continues to violate the law. Regardless of whether such lawsuits have merit, pending litigation can impact your company reputation. 
• Cost of litigation can be high. Consumers can seek actual damages and recover their attorneys’ fees. For violations of the registration requirement, consumers can seek up to three times those damages for intentional or knowing violations. In addition to any damages, defending any litigation can be costly.
• Litigation is not the only risk—the State can seek thousands in penalties and criminal prosecution. Beyond civil litigation, Texas can seek civil penalties of up to $5,000 per violation of the registration requirements (and $25,000 per violation of any related injunction), and up to $10,000 per violation of other messaging requirements.

Attentive supports consistent and predictable federal regulation of our industry. From our seat on the board of directors of the CTIA, the industry group that represents mobile messaging, we forcefully oppose the everchanging patchwork of state laws. In partnership with the CTIA, we believe one standard federal set of rules is better for the industry, our customers, and subscribers. We are also practical and want to be honest with our clients: legal change does not happen overnight. Given this reality, we do not believe the responsible approach is to ignore legal requirements.

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. 

Attentive will continue to monitor developments in Texas law, update its recommendations as new information becomes available, and explore other ways to support its clients’ ability to comply with the law.

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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.