Texas Defends SB 140: What the State’s Opposition Brief Means for SMS Marketers

On September 26, 2025, the Texas Attorney General’s office filed its opposition to the preliminary injunction motion in the federal constitutional challenge to Texas SB 140. While the State’s position may provide some comfort to SMS marketers operating consent-based programs, businesses should understand both what the filing says—and what risks remain despite it.

December 2025 Update

The Texas Attorney General settled the case and provided some clarity.

The State’s Core Argument: “A Call” Means “A Telephone Call”

The crux of the State’s defense rests on statutory interpretation. Texas argues that when SB 140 amended the definition of “telephone solicitation” to include “a call or other transmission,” the term “a call” should be understood as “a telephone call” as defined in Chapter 304 of the Texas Business & Commerce Code.

This matters because Chapter 304 explicitly exempts from the definition of “telephone call” any “transmission made to a mobile telephone number as part of an ad-based telephone service, in connection with which the telephone service customer has agreed with the service provider to receive the transmission.”

According to declarations filed by both the Secretary of State and the Attorney General, the State interprets SB 140 as not applying to consent-based text message marketing programs. Ernest C. Garcia, Chief of the Administrative and Legal Division within the Attorney General’s office, stated explicitly: “I understand ‘call’ in the definition of ‘telephone solicitation’ to include a ‘telephone call’ as defined by Section 302.001(6-a) and Section 304.002 of the Code.”

The State’s Additional Defense: No Enforcement Authority or Intent

Beyond statutory interpretation, Texas raised several procedural defenses:

Sovereign Immunity Arguments

The State argues that sovereign immunity bars the plaintiffs’ claims entirely, and that the Ex parte Young exception doesn’t apply because:

• Neither the Secretary of State nor Attorney General has a “particular duty” to enforce SB 140
• The Attorney General’s enforcement authority under Chapter 302 is discretionary (“may bring an action”), not mandatory
• Neither official has demonstrated willingness to enforce the statute against consent-based SMS marketers
• The defendants have not “compelled or constrained” plaintiffs to comply

Notably, the Secretary of State filed a declaration stating that her office “does not have authority to investigate violations of S.B. 140…or otherwise enforce the requirements of the telephone solicitation law” and “has not taken, and does not anticipate taking, any actions to enforce the provisions of S.B. 140.”

Standing Challenges

Texas also argues the plaintiffs lack Article III standing because they’ve failed to show:

• An actual injury in fact (the State maintains their conduct isn’t covered by SB 140)
• A credible threat of enforcement (no warnings, threats, or prior enforcement actions have occurred)

Why SMS Marketers Still Face Significant Risk

While the Attorney General’s interpretation is encouraging, businesses engaging in text message marketing should understand a critical reality: the AG’s stated position does not eliminate litigation risk.

The Threat of Opportunistic Private Litigation

Just as we’ve seen with ADA website compliance lawsuits and CIPA pixel litigation, plaintiffs’ class action attorneys actively search for new vectors of attack. These attorneys don’t wait for state enforcement—they file lawsuits testing legal theories, even when government officials have signaled no intent to enforce.

Consider the parallel: Even when agencies like the Department of Justice indicate they won’t pursue certain ADA website claims, private plaintiffs’ firms continue filing thousands of such lawsuits annually. The same dynamic exists with TCPA text message marketing claims, where private litigants bring most enforcement actions regardless of FCC guidance.

Why SB 140 Remains Attractive to Plaintiffs’ Attorneys

Several factors make SB 140 an appealing target for opportunistic litigation:

1. Statutory ambiguity: The removal of “telephone” from the definition of “telephone solicitation” creates interpretive questions that courts—not the AG—will ultimately resolve
2. Statutory damages potential: Like the TCPA, violations of Chapter 302 can trigger significant per-message penalties
3. Class action viability: SMS marketing campaigns typically reach large numbers of recipients, making class certification economically attractive
4. Unclear safe harbors: Unlike federal TCPA compliance, where certain consent standards are well-established, SB 140’s registration and disclosure requirements create new compliance burdens

The Statutory Interpretation Battle Ahead

The State’s textual arguments are reasonable:

• Dictionary definitions support reading “a call” as “a telephone call”
• The statutory context (Title 10’s focus on “Telecommunications” and Chapter 302’s heading “Regulation of Telephone Solicitation”) reinforces this interpretation
• The immediately preceding subsection (§ 302.001(6-a)) cross-references Chapter 304’s “telephone call” definition

However, opposing counsel will argue:

• The Legislature deliberately removed “telephone” from the first instance in § 302.001(7)
• “Call or other transmission” should be read as two separate categories
• The broad language was intended to capture all forms of solicitation, including SMS

Courts, not the Attorney General, will decide these competing interpretations. And litigation testing these theories is likely regardless of the AG’s stated position.

Practical Guidance for SMS Marketers

Until courts provide definitive guidance, businesses should:

1. Maintain Robust Federal Compliance

Continue following TCPA text message marketing requirements, including:

• Obtaining proper express written consent
• Providing clear opt-out mechanisms
• Maintaining detailed consent records
• Honoring opt-out requests promptly

2. Document Your Consent-Based Model

Given the State’s position that consent-based programs fall outside SB 140’s scope:

• Clearly document that recipients have opted in to receive messages
• Maintain records showing the ad-based, consent-driven nature of your service
• Ensure your consent mechanisms meet both federal TCPA and any applicable state standards

3. Monitor Legal Developments

The landscape is evolving rapidly:

• Track the ongoing federal litigation challenging SB 140
• Watch for any private lawsuits filed under Chapter 302
• Stay informed about how Texas courts interpret the amended statute
• Consider that state-specific regulations continue proliferating, requiring multi-jurisdictional compliance strategies

4. Assess Registration Requirements Carefully

Even if your consent-based program may fall outside SB 140’s scope under the State’s interpretation:

• Evaluate whether voluntary registration might provide additional protection
• Consider that registration creates a compliance record should disputes arise
• Understand that class action plaintiffs may argue registration was required regardless of AG guidance

5. Prepare for Potential Litigation

Given the opportunistic litigation patterns in adjacent practice areas:

• Review your insurance coverage for regulatory and litigation defense
• Ensure your telemarketing compliance program can withstand scrutiny
• Develop response protocols for demand letters or complaints
• Consider pre-litigation risk assessments for high-volume campaigns

The Broader Context: Multi-State SMS Compliance Complexity

SB 140 represents just one piece of an increasingly complex regulatory puzzle for text message marketers. Businesses must navigate:

• Federal TCPA requirements and FCC interpretations
• State-specific statutes like Washington’s CEMA
• Varying consent standards across jurisdictions
• Industry-specific regulations (healthcare, financial services, etc.)
• Evolving privacy laws affecting marketing communications

The Ecommerce Innovation Alliance has noted that its members may be “exempt” from SB 140, but even trade association guidance cannot eliminate litigation risk when statutes contain ambiguous language.

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What to Expect Next

Several developments will shape the SB 140 landscape:

Court Decisions on the Preliminary Injunction

The district court’s ruling on the motion for preliminary injunction will provide initial judicial guidance on:

• Whether the Ex parte Young exception applies
• Whether plaintiffs have established standing
• The court’s preliminary view on the statutory interpretation questions
• The likelihood of success on the constitutional claims

Potential Private Enforcement Actions

Regardless of how the federal constitutional challenge proceeds:

• Class action firms may file test cases under Chapter 302
• Defendants in such cases would need to assert the State’s interpretation as a defense
• Early cases will establish important precedents about SB 140’s scope

Possible Legislative Clarification

If litigation proliferates or compliance confusion persists:

• The Texas Legislature might clarify the statute’s scope in future sessions
• Industry groups may seek amendments explicitly exempting consent-based programs
• Additional registration or disclosure safe harbors could be established

Conclusion: Cautious Optimism with Eyes Wide Open

The Attorney General’s opposition brief provides valuable insight into how Texas officials interpret SB 140. The position that consent-based text message marketing falls outside the statute’s scope is reassuring and legally defensible.

However, businesses cannot rely solely on the AG’s stated interpretation. The history of opportunistic litigation in adjacent practice areas—from ADA website claims to CIPA pixel litigation—demonstrates that plaintiffs’ attorneys will test legal theories regardless of government enforcement positions.

SMS marketers should:

• Maintain strong federal TCPA compliance as a foundation
• Document the consent-based nature of their programs
• Monitor legal developments closely
• Prepare for potential litigation despite the State’s current position
• Consider strategic compliance measures that provide defensibility

The coming months will bring clarity as courts address these issues. Until then, a measured approach balancing practical business needs with legal risk management remains essential.

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The information in this post is current as of the filing date and represents analysis of publicly available court documents. It does not constitute legal advice for any specific situation. Businesses concerned about SB 140 compliance or facing enforcement actions should consult with experienced telemarketing compliance counsel to assess their specific circumstances.

For more information about SB 140 and text message marketing compliance, visit the Ecommerce Innovation Alliance’s SB 140 resource page.