It’s effective September 1, 2025: SB 140 reclassifies SMS, MMS and images that promote goods or services as telemarketing, meaning you must obtain documented prior express written consent, provide instant opt-outs, observe 9 a.m.–9 p.m. Monday–Saturday (no texts before noon Sunday), retain your opt-in records, and possibly register in Texas by filing Form 3401, paying $200 and posting a $10,000 bond — violations allow consumer lawsuits under the Texas DTPA.
Key Takeaways:
- SMS, MMS, and promotional images/texts are legally classified as telemarketing under SB 140 (effective Sept 1, 2025).
- Telemarketers likely must register with Texas: file Form 3401, pay $200/year, post a $10,000 bond or letter of credit, and renew annually.
- Texas consumers can sue under the Texas Deceptive Trade Practices Act; violations — and repeat violations — expose you to individual lawsuits.
- Restricted sending hours: no marketing texts before 9 AM or after 9 PM Monday–Saturday; no marketing texts before noon on Sundays.
- Prior express written consent, an immediate opt-out mechanism, and complete recordkeeping of opt-ins/messages are required; exemptions (nonprofits, schools, long customer relationships) are vague and risky to assume.
The Transformative Shift: SMS as Telemarketing
SB 140 recategorizes routine SMS and MMS promotions as formal telemarketing activities, which transforms what you can send and when. Starting September 1, 2025, a single promotional image, coupon link, or MMS that “promotes” goods or services triggers the same state registration, bonding, and consumer-rights exposure that used to apply only to calls. Practical impact: if you send promotional blasts through GHL or any CRM to Texas numbers, you now potentially face Form 3401 filing, a $200 annual fee, and a $10,000 bond or letter of credit requirement before those campaigns go live.
Compliance shifts into operational processes: documented prior express written consent, instant opt-out mechanisms, and full message retention become routine business controls rather than optional best practices. Quiet hours (no messages before 9 a.m. or after 9 p.m. M–Sat; no texts before noon on Sundays) force scheduling changes and segmentation logic. Consumers gain private-action rights under the Texas Deceptive Trade Practices Act, so repeat or negligent sends can result in multiple lawsuits rather than administrative fines alone.
Expanding Definitions of Telemarketing
SB 140 expressly includes SMS, MMS, graphics and images that promote goods or services within the statutory definition of telemarketing, so a promotional JPG, animated GIF, or an MMS coupon qualifies the same as a sales call. Messages containing phrases like “limited-time offer,” “book now,” or embedded storefront links will be treated as telemarketing even if they look like transactional notifications; a dentist sending a 20% off teeth-whitening MMS is now under the telemarketing umbrella.
Exemptions are narrow and ambiguous: nonprofits, schools, or vendors with a two-year established relationship may qualify in limited circumstances, but the statute’s language and enforcement history make relying on those exemptions risky. Case examples from other states show regulators and plaintiffs’ attorneys pursue unclear boundaries aggressively, so classification decisions should be documented and conservative—assume telemarketing unless you have definitive legal confirmation of an exemption.
Implications for Businesses Using SMS
Operational costs and risk profile rise sharply: you may need to register via Form 3401, pay the $200 annual fee, and post a $10,000 bond or letter of credit that ties up capital or increases borrowing costs. Your marketing calendar and automation flows must honor strict quiet hours and instant opt-out processing, which can reduce open-rate windows and complicate time-sensitive promotions. Agencies that manage multiple client accounts through platforms like GHL will need client-specific consent records and separate compliance checks for Texas contacts.
Legal exposure also increases because Texas consumers can sue under the DTPA; plaintiffs’ attorneys often file class-style suits or serial individual claims, and repeated violations multiply liability. Implementing documented prior express written consent, storing timestamped opt-in records, and keeping full message logs will be your primary defenses if a recipient alleges an unlawful telemarketing send.
Practical steps you should deploy immediately include timestamped opt-in capture (IP, form data, checkbox language referencing SMS marketing), automated opt-out keywords that trigger retention of the opt-out confirmation, and system-enforced quiet-hour blocking in your SMS platform. Audit your contact lists for Texas numbers and quarantine any segment without verifiable consent—losing a few leads now is far cheaper than litigation, a $10,000 bond hit, or forced suspension after a complaint.
Registration Requirements: Navigating Compliance
Entities sending promotional SMS, MMS, or image-based messages to Texas residents must register as telemarketers under SB 140 unless a clearly documented exemption applies. You will need to file Form 3401, pay the $200 annual fee, and post a $10,000 surety bond or letter of credit before continuing regulated marketing activity after September 1, 2025. Even when you use platforms like GHL, your business is the registrant and directly liable under the Texas Deceptive Trade Practices Act if consumers sue over violations.
Operational adjustments you should make include tagging every Texas contact with the exact consent timestamp, exporting and retaining opt-in/message logs for litigation defense, and enforcing the statutory quiet hours (9:00 a.m.–9:00 p.m. Monday–Saturday; after 12:00 p.m. on Sundays). Update your consent language to meet “prior express written consent” standards, implement immediate opt-out mechanisms, and treat registration as a gatekeeper step before any new Texas-targeted campaign.
Steps to File Form 3401
Gather required documentation first: your legal business name and DBA, EIN/Tax ID, principal business address, designated contact person and registered agent, list of telephone numbers/channels used for marketing, a copy of your standard opt-in consent language, and evidence of an authorized officer’s signature. Secure the $10,000 surety bond or a bank letter of credit so you can attach proof during filing.
Submit Form 3401 through the state’s telemarketing registration portal, attach the electronic bond/LOC document, and pay the $200 filing fee by the portal’s accepted payment methods. After you receive the registration confirmation and number, file it with your compliance records, integrate checks for registered status into campaign approval workflows, and update the registration promptly if you add numbers, change ownership, or alter your primary contact information.
Financial Obligations and Renewals
Annual financial obligations consist of the $200 registration fee plus maintaining a $10,000 surety bond or letter of credit; the bond secures potential consumer claims and state actions. You can obtain the bond through a licensed surety company or post a bank LOC; keep documentation readily available for audits or court proceedings while the registration is active.
Renewal is required every year: pay the fee again and ensure the bond/LOC remains valid for the new term to avoid a registration lapse. Lapses expose you to private lawsuits and administrative enforcement for any marketing activity conducted while unregistered, so build renewal reminders into your compliance calendar and confirm bond expiration dates well in advance.
Budget for an initial outlay of roughly $10,200 (the $10,000 bond plus the $200 fee) and ongoing costs—bond premiums typically run about 1–3% of the bond annually depending on your credit, so expect an annual premium in the low hundreds unless you post a full LOC; consult surety brokers and your bank to compare options and factor these costs into the ROI of any Texas-targeted SMS program.
Legal Ramifications: The Power of Direct Lawsuits
SB 140 hands Texas residents a direct path to court under the Texas Deceptive Trade Practices Act, so a single misstep in your SMS program can turn into a civil suit. Consumers can sue for actual damages and injunctive relief, seek recovery of attorney’s fees and costs, and — if a court finds your conduct was knowing or intentional — pursue treble damages; that exposure multiplies quickly when multiple recipients or repeat violations are involved. Concrete examples: failing to produce documented prior express written consent, texting during prohibited hours (before 9 a.m. or after 9 p.m. Mon–Sat, before noon on Sundays), or omitting an instant opt-out can each be the basis for separate claims.
Understanding the Texas Deceptive Trade Practices Act
The DTPA gives individual consumers a private right of action against deceptive or unconscionable business practices; SB 140 effectively places telemarketing texts (SMS, MMS, images) squarely within that framework. Under the statute, you face liability for actual economic damages and, when the conduct is proven knowing, courts may award up to three times those damages plus attorneys’ fees. That means a $10,000 economic loss claimed by a plaintiff could become $30,000 in liability before fees — and multiple plaintiffs multiply that risk.
Enforcement under the DTPA is fact-driven: documentation and patterns matter. If you rely on GHL or another platform, lacking timestamped opt-ins, message archives, or proof of opt-out compliance makes defense difficult; courts and juries weigh the presence or absence of those records heavily when assessing whether your conduct was deceptive or knowing. Injunctive relief can also force you to halt campaigns while litigation proceeds, creating operational disruption and revenue loss.
The Consequences of Non-Compliance
Civil liability is only part of the fallout: failing to register when required (Form 3401, $200 annual fee, $10,000 bond or LOC) exposes you to additional risk because regulators and plaintiffs can point to non-registration as evidence of noncompliance with telemarketing rules. Legal defense costs alone commonly exceed tens of thousands of dollars; add possible trebled damage awards, statutory cost shifts, and the chance of multiple suits from different Texas residents and the math becomes stark. A single suit alleging $5,000 in damages could realistically cost you $15,000 in trebled damages plus sizable attorney fees and settlement pressure.
Beyond monetary exposure, procedural failures attract repeated litigation: plaintiffs’ attorneys sometimes file serial suits against businesses that text without solid opt-in records or that repeatedly violate quiet hours. That pattern-driven litigation increases the odds of class-like coordinated actions or multiple individual suits, which can quickly overwhelm small-business budgets and force settlements even when you believe you complied.
Operationally, lapses in recordkeeping or opt-out handling are the most common triggers of successful claims — courts often rule against defendants who cannot produce prior express written consent with signer details, timestamps, and the specific language required by law. Maintaining audit-ready logs, strict scheduling to honor 9 a.m.–9 p.m. (Mon–Sat) and noon Sunday rules, and completing registration and bonding where doubt exists are the practical defenses that materially reduce your exposure.
Scheduling Restrictions: Adhering to Quiet Hours
Specific Timeframes for Marketing Texts
No marketing texts may be sent to Texas recipients before 9:00 a.m. or after 9:00 p.m. Monday through Saturday, and no marketing texts before 12:00 p.m. on Sundays. Treat those cutoffs as inclusive boundaries: schedule sends for 9:00:00 a.m. through 9:00:00 p.m. (Mon–Sat) and 12:00:00 p.m. through 9:00:00 p.m. (Sun) in the recipient’s local time. Note that most of Texas is Central Time but El Paso observes Mountain Time; enforce per-contact local time to avoid accidental violations.
Implement a scheduling layer that maps each contact to a timezone (billing address, IP, or confirmed opt-in data), then apply hard blocks for any send attempt outside the allowed windows. For large campaigns, stagger batches to avoid spillover: for example, split 50,000 Texas numbers into six waves and schedule them between 9:00 a.m. and 8:30 p.m. to prevent queue delays that could push messages past 9:00 p.m.
Impact on Marketing Strategies
You’ll see outreach windows compress, which compresses delivery volume into shorter periods and can raise complaint and opt-out rates if messaging frequency increases. A retail campaign that used to run all-day drip blasts will now have to concentrate top-funnel pushes into the 9 a.m.–9 p.m. window (noon start on Sundays), producing higher immediate engagement but also higher carrier scrutiny; historically, concentrated sends can spike complaint rates by 0.1–0.5 percentage points if not throttled carefully.
Shift more of your promotional cadence to email, push notifications, or in-app messaging outside quiet hours, and reserve SMS for high-value, time-sensitive alerts that fit inside the permitted windows. Update campaign playbooks: tag messages as “marketing” vs “transactional,” test A/B sends within the legal windows (for example, 9:00–11:00 a.m. vs. 4:00–6:00 p.m.), and track opt-out and complaint KPIs after each wave to detect issues early.
Practical next steps include auditing your Texas contact list, mapping time zones for each number, configuring GHL (or your platform) to block sends outside the allowed hours, and breaking big lists into smaller waves—e.g., 20,000 Texas contacts into ten waves of 2,000 every 30–45 minutes starting at 9:00 a.m.—while logging consent timestamps and message delivery records for compliance and potential dispute defense.
The Necessity of Consent: Building a Legal Framework
What Constitutes Written Consent?
Your prior express written consent must be specific, traceable, and unambiguous: a consumer action (checked box, signed form, or electronic signature) that clearly acknowledges receipt of telemarketing texts and the sender’s identity. Include explicit language that covers SMS/MMS/graphics, notes any use of automated systems, and spells out message purpose and frequency (e.g., “You agree to receive promotional SMS and MMS messages up to X per month from [Your Business]”). Pre-checked boxes, implied consent, or vague opt-ins will not provide the evidentiary proof needed if a Texas resident sues under the DTPA.
Capture and retain metadata at the moment of opt-in: timestamp, IP address, form URL, the exact consent text presented, and the consumer’s input. Store these records in an exportable, tamper-evident format so you can produce them in litigation or to regulators; many operators keep opt-in evidence for 3–5 years to cover typical statutes of limitation and repeat-violation disputes. If you use GHL or similar platforms, map each consent event to the contact record and snapshot the landing page or checkbox state to prevent gaps in your audit trail.
Ensuring Effective Opt-Out Mechanisms
Design opt-out workflows so unsubscribe requests are honored immediately and verifiably: a single-text keyword (e.g., STOP) or a one-tap web link must terminate marketing messages and add the number to a suppression list the moment the request is received. Send an automated confirmation reply that records the date/time of the opt-out and the action taken (e.g., “You have been unsubscribed from marketing messages from [Business]. Reply HELP for support.”), then persist that suppression flag across all campaigns and integrations to prevent accidental re-enrollment.
Maintain an auditable suppression log that includes the trigger, processing timestamp, operator or automation ID, and any follow-up actions; exportability is necessary because Texas consumers have a private right of action and you’ll need to prove compliance quickly. Re-subscription should require new, documented written consent—do not rely on passive customer relationships or inferred permission—and run weekly automated checks to reconcile suppression lists with campaign audiences and third-party contact imports.
For additional operational security, test opt-out flows monthly with sample numbers, verify that suppressed contacts are blocked across all messaging templates, and document those test results; this mix of technical controls and documented testing creates the evidentiary trail that will defend you if a consumer files suit under SB 140.
Assessing Exemptions: Navigating Uncertainty
Evaluate exemption claims against SB 140 by mapping your messages to the statute’s telemarketing definition: any SMS, MMS, graphic, or image that “pushes goods or services” will likely trigger registration and consumer-suit exposure after September 1, 2025. If you operate through GHL, pull message histories, consent logs, and customer relationship timelines before making any exemption determination—Texas explicitly flags nonprofits, schools, and businesses with 2+ years of customer relationships as potential exceptions, but the language is ambiguous and will be interpreted case-by-case.
Documentary proof matters more than good-faith assumptions. Save 501(c)(3) determination letters, school accreditation or district status, contracts showing continuous customer relationships exceeding two years, and transaction histories with timestamps. Those records won’t guarantee protection, but they form the evidence you’ll need if a consumer files suit under the Texas Deceptive Trade Practices Act or if the state asks for substantiation.
Potential Exemptions for Nonprofits and Long-term Customers
Nonprofits and schools may qualify for limited carve-outs depending on message content and organizational status; for example, a church sending service schedules or a public school sending enrollment deadlines may be treated differently than a nonprofit soliciting donations tied to a product or paid service. A business that can prove a continuous commercial relationship of two or more years with a specific customer (invoices, signed agreements, consistent purchase history) could fall into the “long-term customer” category cited in summaries of the bill.
Preserve specific evidence to support an exemption claim: IRS determination letters, membership rolls, multi-year invoice sequences, signed service agreements dated two years or older, and archived message threads demonstrating purely informational content. Use GHL’s exportable logs and timestamped opt-in records to build a chain of custody for each Texas contact you believe is exempt.
Risks of Assuming Exemption Status
Assuming an exemption without proof exposes you to direct consumer lawsuits under the DTPA; plaintiffs can pursue claims repeatedly for continuing violations. Litigation exposure can be expensive and disruptive even if you ultimately prevail—expect legal fees, discovery obligations that force production of opt-in records, and the risk of injunctive relief or settlement demands that exceed the $200 annual registration fee and the $10,000 bond you would have posted.
Operational fallout hits fast: regulatory audits, platform suspensions, and reputational damage are common when businesses misclassify outreach as exempt. You remain subject to SB 140’s operational rules—no marketing texts before 9 a.m. or after 9 p.m. M–S, no texts before noon on Sundays, documented prior express written consent, and instant opt-out—so misclassification won’t shield you from quiet-hour or consent-based claims.
Mitigate risk by defaulting to compliance when doubt exists: file Form 3401, pay the $200 fee, post the $10,000 bond or letter of credit, and keep airtight records of consent and sends. If you can’t or won’t register immediately, segment Texas numbers out of marketing blasts, restrict sends to permissible hours, and consult counsel to evaluate whether your specific message templates and documentation truly support an exemption.
Summing up
With this in mind, SB 140 reclassifies SMS, MMS, and image-based promotions as telemarketing in Texas, so you must treat text campaigns with the same legal safeguards as voice telemarketing: documented prior express written consent, instant opt-outs, comprehensive record-keeping, and compliance with restricted sending hours. If you contact Texas residents, plan for possible state registration (Form 3401, $200 annual fee, $10,000 bond or letter of credit, annual renewal) and the real risk of consumer lawsuits under the Texas Deceptive Trade Practices Act for repeated violations.
You should immediately audit your lists, consent records, opt-out and scheduling systems, and GHL workflows, and consult legal counsel to assess exemptions or the need to register; failing to take these steps leaves your business exposed to civil liability and regulatory penalties. Update your compliance policies and operational controls now so your text marketing to Texas residents is defensible under SB 140.
FAQ
What does Texas Senate Bill 140 (SB 140) do?
Effective September 1, 2025, SB 140 treats SMS, MMS, and marketing graphics/images that promote goods or services as “telemarketing.” That expands existing telemarketing rules to most text-based marketing communications aimed at Texas residents.
Who must register and what are the registration requirements?
Any person or business engaging in telemarketing to Texas residents may need to register with the state by filing Form 3401, paying a $200 annual fee, and posting a $10,000 bond or letter of credit. Registration must be renewed annually.
What are the legal risks and enforcement mechanisms?
Violations are actionable under the Texas Deceptive Trade Practices Act (DTPA), giving Texas residents a private right of action. Consumers can sue for violations and may bring repeated suits for subsequent breaches, exposing senders to civil liability and litigation costs.
What operational compliance steps does SB 140 require for text marketing?
Senders must obtain documented prior express written consent from recipients, provide an instant opt-out mechanism in every message, maintain full records of opt-ins and message history, and observe restricted sending hours: no marketing texts before 9 a.m. or after 9 p.m. Monday–Saturday, and no marketing texts before noon on Sundays.
Are there exemptions and how should platforms like GHL respond?
Exemptions (e.g., some nonprofits, schools, long-standing customer relationships) are limited and vague, so relying on them is risky. If you send marketing texts to Texas numbers via GHL or any platform, treat them as telemarketing: ensure airtight consent documentation, enforce quiet-hour scheduling, include instant opt-outs, keep complete records, and plan to register if eligibility is uncertain.
