Texas Attorney General Says Consent-Based SMS Marketing Exempt from SB 140

In a significant development that should ease concerns for SMS marketers, the Texas Attorney General's office has officially taken the position that businesses sending text messages with prior explicit written consent are not subject to the registration requirements of Texas Senate Bill 140 (SB 140).

Initial Concerns About SB 140

When SB 140 was enacted with an effective date of September 1, 2025, many businesses worried about new compliance burdens. The law expanded the Texas Business and Commerce Code beyond voice calls to include text messaging, and introduced many businesses with the following requirements:

• Register with the Texas Secretary of State
• Secure a $10,000 security deposit
• Adhere to detailed disclosure obligations

For legitimate businesses operating consent-based SMS marketing programs, these requirements raised alarm bells. The law appeared to apply universally to all commercial text messaging, whether spam or requested by consumers.

The Legal Clarification

On September 26, 2025, in response to legal action initiated by the Ecommerce Innovation Alliance, the Texas Attorney General's office provided clarity that fundamentally changes how brands should view SB 140.

The State's Official Position

The Attorney General's office has taken the position that SB 140's registration and compliance requirements do not apply to businesses that send marketing texts only to customers who have provided consent.

This interpretation stems from how Texas law defines regulated communications. The State argues that when properly understood in context, the statute specifically excludes messages sent with recipient consent.

Why Consent-Based Messaging Is Protected

The State's interpretation hinges on several key points. One example is that SB 140 incorporates the definition of "telephone call" from Chapter 304 of the Texas Business and Commerce Code, which explicitly excludes transmissions sent to mobile numbers where "the telephone service customer has agreed to receive the transmission." The Attorney General interprets this existing exclusion for consensual communications to apply to the amended law.

Additionally, the Attorney General's office emphasizes that Chapter 302 exists to protect consumers "against false, misleading, or deceptive practices in telephone solicitation business." Consent-based marketing, where customers actively request to receive messages, doesn't fall into this category of deceptive practices the law aims to prevent.

What This Means for Your Business

For Privy platform users, there’s more good news. If you currently use Privy or Emotive forms to compliantly collect phone numbers and market to those customers, you’re already compliant with SB 140.

For users of other platforms, make sure your SMS program:

• Obtains clear consent before sending marketing messages
• Honors opt-out requests
• Follows standard industry practices for consent-based messaging

According to the State's interpretation—assuming you follow those industry standards and practices—you likely do not need to register with the Texas Secretary of State.

Important Considerations

While this interpretation provides significant relief, brands should always:

1. Document Consent Practices: Ensure your consent collection methods are clear, documented, and defensible.
2. Maintain Compliance Records: Keep thorough records of when and how customers opted into your messaging program. These are available upon request by contacting support@privy.com or support@emotive.io.
3. Honor Opt-Out Requests: Ensure you honor opt-out requests that indicate a customer is withdrawing their consent to communications.
4. Follow Best Practices: Continue adhering to TCPA guidelines and industry standards for SMS marketing.
5. Monitor Developments: Stay informed as this interpretation may be subject to court review.

Moving Forward with Confidence

The clarification on SB 140 from the Texas Attorney General represents a victory for responsible SMS marketing. It recognizes the fundamental difference between spam and legitimate communications that customers want to receive while maintaining consumer protections against spam and other deceptive practices.

The State's position acknowledges what the industry has long maintained: consent-based marketing serves both businesses and consumers.

This development highlights the importance of maintaining robust consent practices and following industry standards. Brands that prioritize customer choice and transparent communication practices can continue their SMS marketing efforts with greater confidence regarding SB 140 compliance.

Note: This article provides general information about recent legal developments and is not legal advice. For specific legal advice regarding your business's compliance obligations, please consult with qualified legal counsel.