The recent enactment of Texas Senate Bill 140 (SB 140), effective September 1, 2025, has generated significant controversy within the ecommerce industry. The Ecommerce Innovation Alliance (EIA), on behalf of its members, together with Postscript and Flux Footwear, filed a Motion for Preliminary Injunction seeking to immediately halt enforcement, arguing that SB 140 unconstitutionally burdens legitimate, consent-based text messaging campaigns by imposing burdensome registration and disclosure requirements intended for unwanted spam.

On Friday, September 26, 2025, the State of Texas, through Attorney General Ken Paxton’s office, filed a detailed Response to EIA’s motion. The State’s primary argument is that the law does not actually regulate text messages sent by Plaintiffs (EIA members, Postscript and Flux Footwear) because they are sent with a consumer’s prior consent.  Texas asserts, therefore, that the Plaintiffs do not need an injunction because SB 140 does not “proscribe[ ] their conduct.”

The Core of the Dispute: Does “A Call” Mean “A Telephone Call”?

The crux of the legal debate, as presented in the State’s argument (starting around page 12 of the brief), centers on the correct interpretation of the word “call” as used in the definition of “telephone solicitation” in Chapter 302 of the Texas Business & Commerce Code.

SB 140 amended Chapter 302 to define “telephone solicitation” as: “A call or other transmission, including a transmission of a text or graphic message or of an image, initiated by a seller or salesperson to induce a person to purchase, rent, claim, or receive an item”. EIA pointed out in its filing that the removal of the word “telephone” before “call” in the first line of the new definition mistakenly broadened the law’s scope to include consent-based texts, effectively severing the critical link to Chapter 304’s definition that excludes consent-based solicitations.  

Despite the change in definitions, the State disagrees that SB 140 should be interpreted to extend to messages sent with consent, arguing that such an interpretation “strips [the statute] of its context”. According to the State, “texts sent with the consent of the recipient” are not among the communications captured by Chapter 302’s updated definition of “telephone solicitation”.

The Consent Exemption in Chapter 304

The State highlights that SB 140 itself added a subdivision (§ 302.001(6-a)) to Chapter 302 stating that “‘telephone call’ has the meaning assigned by Section 304.002”. The importance of this cross-reference lies in Chapter 304’s specific exclusion for consensual marketing.

The State quotes Chapter 304, which defines “telephone call” to exclude:

“[A] transmission made to a mobile telephone number as part of an ad-based telephone service, in . . . which the telephone service customer has agreed . . . to receive the transmission.” [§ 304.002(10)(C)]

According to the State, because the Plaintiffs’ business model involves “sending text messages to consumers who want, and have consented to, receiving such messages,” Plaintiffs’ services are “specifically exempted from regulations reaching ‘telephone calls’ as Chapter 304 defines the phrase.”

The State’s Position on Enforcement

Crucially, the Texas Attorney General’s office explicitly stated its interpretation of the law regarding enforcement actions against consent-based messaging and its intention to not enforce the law against Plaintiffs, which includes EIA’s members who obtain consent before sending text messages.

The Texas brief includes a declaration from Ernest C. Garcia, Chief of the Administrative and Legal Division within the Office of the Attorney General (OAG), who confirmed the OAG’s understanding of the statute’s scope: “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.”

This interpretation directly leads to the State’s conclusion that the text marketing campaigns run by the EIA’s members are exempt, therefore nullifying risk of enforcement:

For this reason, the State asserts that the Plaintiffs’ conduct of sending consent-based marketing text messages “is not even reached by S.B. 140.” 

Supporting Pillars of the State’s Statutory Interpretation

The State provided three main arguments to demonstrate why the word “call” in SB 140 must be interpreted as “telephone call,” thereby preserving the exemption for consent-based messages:

1. Ordinary Meaning

Courts must look to the ordinary meaning of undefined statutory language, which includes considering common usage. While “call” can have many meanings (a command, a justification, a divine vocation), in the context of Chapter 302, the most reasonable, commonsense understanding is a “telephone call”. The State argues that Plaintiffs’ reading, which neglects this ordinary meaning, requires “special, lawyers-only grammar rules.”

2. Contextual Reading

The words of a statute must be read in context and with a view to the “overall statutory scheme.” The titles and headings surrounding Chapter 302 make the intent clear.

• Chapter 302 is in Title 10 of the Code, entitled “Use of Telecommunications”.
• Title 10’s subtitle is entitled “Telephones”.
• Chapter 302 is entitled “Regulation of Telephone Solicitation”.

These headings “leave[] no doubt whatsoever” that the drafters were concerned about communications happening via telephones, supporting the State’s reading that “a call” refers to “a telephone call.”

Furthermore, Chapter 302 mandates that its language be “liberally construed and applied to promote its underlying purpose to protect persons . . . against false, misleading, or deceptive practices in telephone solicitation business.” The State explains that the Plaintiffs’ business—sending texts only to those who have consented—is not a “deceptive practice.” Therefore, according to the State, for anyone to assert that the regulations apply to consensual messaging would be “at odds with the stated purpose of Chapter 302” and “teeters on absurdity”.

3. Avoiding Contradiction

Finally, the State asserts that concluding that the use of the word “call” in the definition of “telephone solicitation” didn’t incorporate the consent exception in Chapter 304 would render a neighboring statutory provision meaningless.

The State points out that the Legislature added § 302.001(6-a) to incorporate Chapter 304’s definition of “telephone call”. Since Chapter 304’s definition includes the exemption for consent-based texts, reading the subsequent definition of “telephone solicitation” (§ 302.001(7)) to ignore the “telephone call” definition would mean that SB 140 exposes Plaintiffs to the regulatory regime that the immediately preceding subsection (§ 302.001(6-a)) was intended to shield them from. This “cuts against the bedrock principle that ‘a statute should be construed so that each of its provisions is given its full effect.'”

Conclusion on Injunctive Relief

Based on this interpretation, the State argues that the Plaintiffs do not need a preliminary injunction. According to the State, when the statute is properly construed it does not regulate consent-based text messages.  Therefore, Plaintiffs have failed to establish an actual or imminent injury.

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