If you run an ecommerce brand or handle marketing compliance, you’ve probably heard about Texas Senate Bill 140 (SB 140) and its potential impact on text message marketing. Earlier this month, a group of plaintiffs, including an industry association and two e-commerce companies, asked a federal court in Austin to block the state from enforcing parts of the law. The state recently filed its brief opposing that request. This post examines the state’s position and its practical implications for text message marketing programs.
Texas’ SB 140
Texas Senate Bill 140 (SB 140), signed on June 20, 2025, by Gov. Greg Abbott and effective September 1, 2025, expands the Texas Business & Commerce Code’s regulation of a “telephone solicitation” to include text messages and other sales solicitation methods. Significantly, SB 140 requires businesses using telemarketing through text messages to register with the Texas secretary of state, pay a $200 fee, post a $10,000 security bond, and submit quarterly reports prior to making any telemarketing solicitations to prospective customers.
However, a key carve-out may be significant for many brands: the “customer” exemption. Under Section 302.058, Chapter 302’s requirements don’t apply when a business solicits a current or former customer and has operated under the same name for at least two years. The statute defines “purchaser” but not “customer,” leaving the ordinary meaning of “customer” to control.
Industry analysis noted that “customer” in everyday usage often includes people who patronize or otherwise deal with a business — not only those who have already completed a purchase. That reading supports treating opt-in subscribers (people who visited your store and consented to receive your promotional texts) as “customers,” even if they haven’t bought a product yet. If that interpretation holds, many established brands that text only to opted-in subscribers could fall within the exemption.
The motion seeking to block enforcement of SB 140 argued that it violates federal law. Specifically, the plaintiffs argued that the law is unconstitutional and places unreasonable burdens on businesses that send text messages to individuals who have consented to receive them.
The State’s Filing
According to the state’s filing opposing the plaintiffs’ motion for a preliminary injunction, SB 140 is about stopping unwanted, deceptive solicitations — especially spam texts sent without permission.
Two definitions matter here:
- “Telephone call” – SB 140 tells us to use the meaning in Chapter 304. That chapter excludes transmissions that a mobile customer has agreed to receive as part of an ad-based service. In short, permission matters.
- “Telephone solicitation” – Chapter 302 now says it’s “a call or other transmission,” and it expressly mentions texts and images.
The state argued to the court that when Chapter 302 uses the word “call,” it still refers to a “telephone call” — the same concept Chapter 304 defines. In other words, the change from “telephone call” to “call” in the solicitation definition did not expand the law to capture everything; it still ties back to a definition that carves out communications a customer has consented to.
Why does that matter? Because the state also emphasizes that Chapter 302’s purpose is to protect people from false, misleading, or deceptive telephone solicitations — not to punish businesses who send consented messages that consumers want. In fact, the state’s brief points out that the plaintiffs’ business model is consent-based texting — and says that is not a “deceptive practice.”
Put simply: If your program sends texts only to people who opted in, the state argues SB 140 is not aimed at you.
Other interesting tidbits appear in the state’s filing about who is or, in this case, is not enforcing the registration requirements.
- Secretary of State (SoS) – The SoS administers registrations (accepts filings, keeps certificates, helps the public) but, per the state’s filing, does not investigate or enforce violations of SB 140 or Chapter 302. The office states it has not taken — and does not plan to take — enforcement actions.
- Attorney General (AG) – The AG states it has discretionary authority to bring civil enforcement actions (for example, to seek an injunction) and to pursue civil penalties for violating an injunction. The AG also states it understands “call” in the statute to mean a “telephone call” as defined in Chapters 302 and 304.
“Discretionary” is significant here: The AG is telling the court there’s no mandatory duty to bring actions in every situation.
So, Do I Need to Register and Post a $10,000 Bond?
SB 140 folds texts into the “telephone solicitation” framework, and Chapter 302 generally requires registration and a $10,000 security (bond, letter of credit, or CD).
Taking the state’s filing at face value, three practical takeaways emerge:
- Consent is the bright line. The state is focused on stopping unwanted or deceptive text solicitations. Programs built on clear, documented opt-in consent do not appear to be the target the state describes to the court.
- “Call” tracks phone-based communications. The state reads “call” as a telephone call (which, under Chapter 304, includes certain text transmissions), with an express exclusion for ad-based transmissions the consumer agreed to receive. That reinforces the centrality of permission and how your messages are delivered.
- Registration may not apply to everyone. If your audience qualifies as current or former customers and you’ve been operating under the same name for two years, the Chapter 302 registration and bond requirements may not apply — particularly for consent-only programs.
Action Items for Brands and Platforms
Even with the state’s positions, SB 140 is still a live issue — and the court hasn’t ruled on the preliminary injunction yet. Here’s how to stay ready:
- Audit your consent. Confirm your opt-in flows are clear and documented (who opted in, when, how, what disclosures they saw). This supports both the consent-based exclusion and any “customer” argument. (The state’s brief itself acknowledges the plaintiffs send texts only to consumers who want them.)
- Check the two-year rule. If you’ve operated under the same name for two years, the “customer” exemption may help. If you’re newer or recently rebranded, consult with counsel about whether registration is advisable while the case proceeds.
- Map your sending framework. Determine whether your delivery path fits within Chapter 304’s definition and exclusions (e.g., transmissions the user agreed to receive as part of a service), as highlighted by the state.
- Monitor enforcement signals. The SoS says it isn’t enforcing. The AG says enforcement is discretionary and frames consent-based messaging as non-deceptive. Still, maintain robust compliance practices.
- Private right of action. It remains an open question whether courts will recognize a consumer’s ability to sue a business directly under SB 140 for failure to register. No court has squarely decided that issue yet. However, the state’s brief narrows the statute’s focus to deceptive, non-consented solicitations and emphasizes discretionary public enforcement. That framing makes it harder for plaintiffs to argue for a broad private cause of action against consent-based text programs. Until a court rules, the question is unresolved, but the state’s position pushes against the expansive reading plaintiffs would need.
- Stay tuned for the ruling. The court will decide whether to issue preliminary relief; until then, keep compliance tight and documentation complete.
As always, facts matter. If you’re unsure whether your program qualifies for exemptions, or whether your consent path fits within the state’s framing, seek tailored advice. But for now, if you’re only texting people who asked to hear from you — and you can prove it — you’re much closer to “compliant” than a “cautionary tale.”
