Texas Settles Constitutional Challenge to the Texas Mini-TCPA: What This Means

Are you sending marketing text messages or placing telemarketing calls to individuals in Texas? If so, then you’ve probably been tracking the amendments to the Texas mini-TCPA, which took effect on September 1, 2025. Below we outline some recent litigation developments and related considerations.

On November 6, 2025, the E-Commerce Innovation Alliance (“EIA”) announced that it settled its lawsuit against the State of Texas challenging the constitutionality of registration requirements applicable to senders of telemarketing texts added by the Texas amendments. This settlement goes a long way in minimizing the litigation and enforcement risks related to the Texas mini-TCPA’s registration requirements for parties sending marketing texts with the texted parties’ consent. However, with around 250 cases already filed in Texas federal district courts in 2025, Texas remains a hotbed of TCPA litigation, and the amendment’s expanded private right of action for violations will undoubtedly encourage even more lawsuits. Our focus here is limited to how these developments relate to the registration requirement and the litigation risk from not registering following the EIA settlement.  

The TCPA Litigation Landscape in Texas

Texas has emerged as one of the most popular venues for plaintiffs to file TCPA litigation. Thus far in 2025, there have been around 250 TCPA lawsuits filed in Texas federal district courts and over 200 filed in Texas state court. Of the states with their own mini-TCPA laws, Texas is the second most active jurisdiction, behind only Florida.

While a mix of factors contribute to Texas’ popularity among TCPA litigants, one such factor is the Texas mini-TCPA (Tex. Bus. & Com. Code §§ 301-305) and its private right of action. Under the pre-amended version of the Texas mini-TCPA, plaintiffs could generally bring a private right of action under the Section 302 registration requirement only if they first complied with a relatively cumbersome administrative process. 

But even though the pre-amended version of the Texas mini-TCPA had a limited private of action, the prospect of recovering additional damages still made Texas an attractive venue for TCPA litigation. To maximize their potential recovery, plaintiffs regularly pair federal TCPA claims with Texas mini-TCPA-specific claims. The Texas mini-TCPA-specific claims often allege that a company failed to register with the Texas Secretary of State before making solicitation phone calls in violation of Section 302.101 of the Texas mini-TCPA. Notably, a plaintiff may recover up to $5,000 per violation of Section 302 of the Texas mini-TCPA—on top of any recovery under the federal TCPA.

As discussed more below, the Texas mini-TCPA’s now effective expanded private right of action is likely going to further increase the amount of TCPA litigation occurring across the state.

Texas Mini-TCPA Amendments

In June 2025, Texas passed SB140, which amended the Texas mini-TCPA. These amendments took effect on September 1, 2025, and included three significant changes:

1.  expanding the definition of “telephone solicitation” to expressly include not only telephone calls, but also any “other transmission, including a transmission of a text or graphic message or of an image;”
2.  expanding the private right of action to include alleged violations of the Texas TCPA’s registration, do-not-call and mobile telemarketing consent provisions (Tex. Bus. & Com. Code §§ 304, 305); and
3.  expanding the scope of companies required to register with the Texas Secretary of State to include companies contacting Texans through text messages.

Texas Mini-TCPA Legal Challenge and Settlement

On the day the Texas mini-TCPA’s amendments were set to take effect, EIA filed suit to challenge the constitutionality of the expanded registration requirements. As argued by EIA, the amendments to the Texas mini-TCPA would have unconstitutionally (and possibly unintentionally) required companies sending consented-to text messages to register as a telemarketer with the Texas Secretary of State.

In what was a surprising move to many, in its September 26, 2025 opposition to EIA’s request for preliminary injunction, the State argued that consented-to text messages were not within the scope of the Texas mini-TCPA amendments. Specifically, the State took the position that under a “plain reading of the statute . . . ‘texts sent with the consent of the recipient’ are not among the communications captured by Chapter 302’s updated definition of ‘telephone solicitation.’” (internal citations omitted). 

Shortly thereafter, on November 6, 2025, the State and EIA announced that they had reached a settlement resolving EIA’s constitutional challenge to the Texas TCPA amendments. The settlement contained two main components. First, the Texas Secretary of State agreed to provide guidance on its website clarifying that, in its view, businesses engaging in consent-based text messaging are not required to complete the Telephone Solicitation Registration Statement. Second, the Texas Secretary of State agreed to formally request that the Texas Attorney General issue a formal letter opinion clarifying that companies engaging in consent-based text messaging are not subject to the registration requirements.

What This Means

This settlement goes a long way in providing assurances to companies sending consent-based marketing texts in the State that they are not required to register in order to engage in texting activities. First, the settlement provides assurance that the Texas Attorney General, which has enforcement authority under the Texas TCPA, will not target companies that are engaging solely in consented-to text messaging (at least for now since the Texas Attorney General is permitted to rescind a letter opinion at any time).

Second, the terms of the settlement are likely to provide a significant defense to claims in private lawsuits alleging a violation of the Texas mini-TCPA’s registration provision for consent-based texting. Absent this settlement, companies faced the risk of a wave of lawsuits claiming violations of the Texas mini-TCPA’s registration requirements, even where texted parties consented to receiving text messages. Now, however, it is the position of the Texas Attorney General and the Texas Secretary of State, who administers the registration requirement, that registration is not required for consent-based marketing texts.

While neither the settlement, forthcoming guidance from the Texas Secretary of State, nor a formal letter opinion from the Texas Attorney General technically bind a federal or state court, they are undoubtedly likely to provide persuasive authority that the registration requirement does not extend to consent-based texting. It remains to be seen whether this is enough to deter plaintiffs from filing suits with claims alleging a violation of the registration requirement where a company had consent to send the text message, but the settlement does provide defendants with a potent defense to such claims.

What’s Next

While this settlement was a substantial win for companies concerned about being penalized by Texas regulators or other financial exposure for sending consented-to text messages, the Texas mini-TCPA’s expanded private right does include other traps for the unwary. Specifically, violations of Sections 304 and 305 of the Texas mini-TCPA, which cover to Do-Not-Call (DNC), caller ID for telemarketing calls and texts, solicitation calls, and autodialed solicitation calls using an “automated dial announcing device” (a specific type of calling platform defined under Texas law) constitute violations of the Texas Deceptive Trade Practices Act (“DTPA”). Under the Texas DTPA, a plaintiff can potentially recover economic damages, mental anguish damages, treble damages, and attorney’s fees and costs.  

To avoid being caught up in a potential wave of Texas mini-TCPA litigation, companies should carefully consider the scope of the Texas mini-TCPA and whether the Texas mini-TCPA is applicable to the company and the company’s outbound calling and texting activities. In addition to the EIA settlement, which is of course welcome news to parties engaged in consent-based texting in the State, the Texas TCPA is a fairly technical statute, replete with numerous defined terms (which are not always the model of clarity), as well numerous exemptions. These should also be reviewed and considered as to their applicability to a particular business as well as its calling and texting activities.