There is a link to TX secretary of state:
https://www.sos.state.tx.us/statdoc/faqs3400.shtml
and full text:
https://statutes.capitol.texas.gov/docs/BC/htm/BC.302.htm

The listed exemptions:

Are there exemptions?

The law exempts certain companies from the registration requirement. These exemptions include, but are not limited to:

• Certain publicly traded companies and their subsidiaries

• Certain financial institutions

• Educational institutions

• 501(c)(3) nonprofits

• Businesses marketing the sale of food

• Retail sellers with brick and mortar locations if it has operated under the same name for the last two years and a majority of sales occur at retail locations

• Businesses contacting their current or former customers if that business has operated under the same business name for the last two years

SO we can SMS current and former customers.
IS a double opted-in subscriber to our SMS list a “customer” ?

I asked ChatGPT

 

SO is a double opted in (consented) SMS SUBSCRIBER a “customer” in the eyes of Texas?

ChatGPT:
is a double opted in (consented) SMS SUBSCRIBER a “customer” in the eyes of Texas? re: @https://statutes.capitol.texas.gov/docs/BC/htm/BC.302.htm

ChatGPT said:

Under Chapter 302 of the Texas Business & Commerce Code (regulating telephone solicitation) — including SMS messages treated as “telephone calls” — the relevant definitions are:

• “Purchaser”: someone who is solicited to purchase or rent an item, or offered to receive one (§ 302.001(3)) gryphon.ai+15Texas Statutes+15BillTrack50+15.

• “Seller” and “Salesperson” refer to those making the solicitation (§ 302.001(4–5)) Texas Statutes.

Notably, the term “customer” is not defined in Chapter 302 — so a double‑opt‑in SMS subscriber does not qualify as a “customer” under that chapter.

In contrast, in Chapter 304, which implements the Texas Telemarketing Disclosure and Privacy Act, additional definitions include “consumer” and “established business relationship”:

• “Consumer” is defined generally as an individual who enters into a transaction primarily for personal, family, or household purposes (though that’s in a separate context in Title 1) Texas Statutes+4Findlaw+4Texas Statutes+4Texas Statutes+1Texas Statutes+1.

• A “telemarketing call” under § 304.002 includes an unsolicited transmission to a mobile number — explicitly covering SMS/text messages — intended to solicit consumer goods or services Findlaw+1Texas No Call+1.

Thus:

• A person who opts in via double opt-in to receive SMS messages is not automatically a “customer” under Chapter 302, because they’re not necessarily a purchaser or a party to a transaction.

• However, that person may be considered a “consumer” (if they fit the consumer‑good/service context) under Chapter 304, and any SMS that qualifies as telemarketing must comply with consent, disclosure, and opt-out requirements.

 Summary

So, to your question: a double opt‑in SMS subscriber is not a “customer” under Texas Chapter 302, but they could be a “consumer” under Chapter 304 if the messages constitute telemarketing content. Let me know if you’d like to look at any exemption or additional provision around consent requirements.

===

There is grey area in the text – “customer” vs. “consumer”

A person who opts in via double opt-in to receive SMS messages is not automatically a “customer” under Chapter 302, because they’re not necessarily a purchaser or a party to a transaction.

However, that person may be considered a “consumer” (if they fit the consumer‑good/service context) under Chapter 304, and any SMS that qualifies as telemarketing must comply with consent, disclosure, and opt-out requirements.

Because I am obsessive with SMS opt-in, and I know I am not sending to anyone who hasn’t double opted in, not gonna think about this at all.

If my SMS list consent was sloppy/not double opted in, and not in business for 2 years, I would ask a lawyer
I am not a lawyer. My advice is worthless.

In my opinion, Klaviyo should have added the part about the exemptions, and Klaviyo with well paid lawyers, could have identified that customer and consumer is a Texas law grey area that is not clear.

I’m replying here (although I made my own thread about it, because we need more eyes on this issue. My main question is “is a fully consented, double-opted in profile exempt from this new regulation?”

Attentive stated that on their platform, if a profile consents, you’re good to go. It seems to me the law is geared towards cold-calling, not messaging willing participants in a marketing list. But I’m waiting to get more info. Can’t rely on Chat-GPT for legal advice.

I will likely NOT register with Texas, as that requires a $10,000 deposit (or surety bond), and I feel like unscrupulous people will use this new law to report perceived violations left and right. Then I’ll have to lawyer-up and defend myself, or pay the fines and lose my $10,000 deposit.

I also wanted to share our help article to provide more information.

~Chloe

Here is what we are recommending to the companies we are working with. I wrote a whole blog article about it and I hope it is helpful https://ambinteractive.com/blog/texas-sms-compliance-what-businesses-need-to-know-about-the-new-law/

Decoding the New Texas SMS Law: A Guide for Brands

The email from Klaviyo is a proactive heads-up about a crucial change. As of September 1, 2025, an amendment to the Texas Business and Commerce Code will expand to regulate marketing text messages, not just telephone calls. Here’s a clear breakdown of what that means for you.

What exactly needs to be done to stay compliant?

At its core, the compliance process involves two main steps:

1. Determine if You Are Exempt: Before anything else, you must review the list of exemptions. If your business clearly falls into one of the exempt categories, you will not need to register. This is the most important first step.

2. Register if You Are Not Exempt: If your business does not meet any of the exemption criteria, you must register with the Texas Secretary of State as a "Telephone Solicitation" business. This registration will likely involve providing your business details and paying a fee.

Crucially, this registration is separate from and in addition to all existing SMS compliance best practices (like those required by the TCPA). You must still collect explicit consent, provide a clear opt-out on every message, and maintain your terms of service and privacy policy.

Is there a registration process already open?

As of now, the Texas Secretary of State has not launched a specific, updated portal for SMS marketers to register under this amended law. The links provided in the community post are the best official sources to monitor. It is expected that as we get closer to the September 1, 2025 deadline, the state will provide a clear process and online forms for registration.

Action Item: Bookmark the Texas Secretary of State's FAQ page and plan to check it quarterly as the deadline approaches.

Which types of companies or use cases are exempt?

This is the most critical area of analysis for most brands. As noted in the original post, the law provides several exemptions. The most relevant one for e-commerce brands is:

• Businesses contacting their current or former customers if that business has operated under the same business name for the last two years.

This brings up the million-dollar question from the community discussion: Is a double opted-in subscriber a "customer"?

The analysis provided by ChatGPT in Jeremy's post is spot on. Legally, there is a significant gray area.

• A "customer" typically implies a transactional relationship—they have purchased something from you.

• A "subscriber" or "consumer" has given you consent to market to them but may have never made a purchase.

The most conservative and safest approach is to assume that only a person who has actually purchased a product from you qualifies as a "customer" under this exemption. A lead who only signed up for your newsletter or SMS list but never bought anything would likely not be considered a customer in the eyes of the law. Therefore, if you are texting subscribers who have not yet purchased, you may not be exempt.

What is Klaviyo's role in this? Does Klaviyo handle any part of compliance?

This is a classic "shared responsibility" model.

• Klaviyo's Role: Klaviyo provides you with the tools to be compliant. This includes features like double opt-in, compliant sign-up forms with customizable disclosure language, and automatic opt-out management. They also provide educational resources (like the email you received) to keep you informed.

• Your Role (The Business): You are solely responsible for using those tools correctly and for adhering to all federal and state laws. Klaviyo cannot and will not register your business with the Texas Secretary of State. This legal responsibility lies entirely with you, the sender.

How does this apply to brands sending from outside the U.S. vs. those based in the U.S.?

The law's jurisdiction is based on the recipient, not the sender.

• If you are sending marketing SMS messages to a Texas resident (i.e., someone with a Texas area code or who you know resides in Texas), this law applies to you, regardless of whether your business is based in New York, Toronto, or London.

• Additionally, if your business is physically located in Texas, the law applies to your outbound marketing messages.

There is no distinction between U.S. and non-U.S. senders. If your audience includes Texans, you need to address this law.

Your Action Plan and Final Takeaways

1. Review the Exemptions Carefully: Look at the list provided. Does your business qualify, especially considering the "customer" distinction? If you have been in business for over two years and only text people who have previously purchased from you, you may be exempt.

2. Analyze Your List: Understand the difference between a subscriber and a customer. If you market to non-purchasers, you should plan to register.

3. Prioritize Best Practices: The best defense is a good offense. Using double opt-in for all SMS subscribers is a critical best practice that demonstrates clear, explicit consent. While it may not make you exempt from registration, it builds a high-quality list and strengthens your compliance position overall.

4. Budget for Legal Advice: As the community post wisely concludes, this is a gray area. Investing in a brief consultation with a lawyer who specializes in telecommunications or marketing law is the best way to get definitive advice for your specific situation.

In summary, Jeremy's final point is the most important one: Klaviyo's lawyers could have clarified the "customer vs. consumer" gray area. Because it's ambiguous, the safest path forward is to either confirm you meet a clear exemption or prepare to register.