LEGAL ALERT: New Texas Telemarking Law to Expand Scope and Reshape Litigation
On September 1, 2025, Texas Senate Bill 140 (“SB 140”) will take affect and significantly alter telemarketing laws under the Texas Business & Commerce Code by expanding the definition of telephone solicitation and allowing consumers to bring a private right of action against businesses. These changes bring more businesses into the scope of solicitation rules and bring new challenges for businesses engaged in telemarking, making it imperative that telemarketers understand the current requirements under Texas Law.
Key Changes to the Law
Under SB 140, the definition of telephone solicitation is expanded to include not only a telephone call, but also “other transmission, including a transmission of a text or graphic message or of an image” intended to sell goods or services. Common marketing strategies such as Short Message Service (“SMS”) and Multimedia Messaging Service (MMS) now must comply with Texas’ telemarking restrictions. New technologies are also encompassed by the catch-all provision, “other transmission,” eliminating a potential loophole.
Additionally, the new law increases litigation opportunities through the creation of a private right of action under the Texas Deceptive Trade and Consumer Protection Act (“DTPA”) for violations of Chapter 304 (“Telemarking”) and Chapter 305 (“Telephonic Communications Made for the Purposes of Solicitation)” of the Texas Business & Commerce Code. While enforcement was previously primarily conducted through the attorney general, individuals are now granted the right to sue businesses directly under the DTPA for violations which may include failing to comply with time restrictions, failing to register, and failing to honor opt-out requests.
SB 140 further opens the door for litigation by allowing consumers to recover damages for each violation, regardless of whether they have previously recovered for a similar violation. For businesses, this means that a single consumer can initiate multiple lawsuits, each with the potential for significant damages.
Exemptions
Certain businesses and actions are exempted from the new Texas telemarketing laws, including:
- Certain regulated entities such as banks, insurance companies, public utilities, and publicly traded companies registered with the SEC or the Texas Securities Board;
- Certain sales of media subscriptions, periodic merchandise shipments, or catalog sales;
- Educational and nonprofit organizations;
- Solicitation of food sales;
- Solicitation of former or current customers; and
- Sales connected to established retail locations if the majority of the retail business comes from sales at the retail location.
Compliance
Registration. To comply with SB 140, businesses subject to the Texas telemarketing law are required to register each location from which telephone solicitations are made or face penalties.
Consent. Obtaining clear and written consent for marketing texts and calls and maintaining records of such consent is a good way for businesses to avoid unwanted conflicts. Consent forms could include information about message frequency, data rates, and opt-out instructions. To bolster such actions, businesses may consider requiring a confirmation reply before sending messages to new subscribers. If a consumer does not consent and chooses to opt-out, businesses must make sure to honor these requests and process them quickly.
Restrictions. Quiet hours are imposed upon telemarketing, allowing solicitation only between 9 a.m. and 9 p.m. on weekdays and Saturdays and between 12 p.m. and 9 p.m. on Sundays. Businesses should make sure to adhere to these restrictions and avoid contacting consumers on the do-not-call list.
Training. With this changing landscape, additional training may be needed for staff involved in marketing, sales, and/or customer service to ensure that employees are up to date on the new compliance requirements and restrictions.
If you or your business may be affected by these changes, please contact Kessler Collins to assist you in navigating these challenges and protecting your interests.
