Be Aware—Cold Calling and Texting Could Cost You

Texas REALTORS® is providing this update because Senate Bill 140 recently amended parts of the Texas telephone solicitation laws. This information highlights what’s new and, just as importantly, what’s not new but remains important to know.

 

 

SB 140 expanded what counts as a “telephone call” and “telephone solicitation” when selling goods or services to include:

• Text messages
• Graphic/image messages
• Other types of electronic transmissions sent to a phone number.

The effect of this expansion of what counts as a telephone call is to now prohibit unsolicited text messages, graphic/image messages, and other types of electronic transmissions to a phone or fax number (in addition to the unsolicited telephone calls) unless they meet certain criteria or exceptions under various statutes (Chapters 301, 302, 304 and 305 of the Texas Business and Commerce Code).

SB 140 also expanded the application of deceptive trade practices laws. More types of telephone solicitation violations are now automatically considered “false, misleading, or deceptive” under the deceptive trade practices laws.

• This makes penalties for telephone solicitation violations in Texas even costlier.
• Consumers can sue and collect damages for each violation, even if they’ve already won damages for similar violations in the past.

• Texas has several laws on “telephone solicitation.” They cover calls, texts, graphic messages, images, and faxes to a phone number used to sell or promote services. Note: Various terms are used in the statutes, and each have slightly different meaning. For ease of reading, we used “telephone solicitation” generically throughout.

• Federal rules still apply (e.g., national do-not-call, robocalls). The information provided here covers Texas laws only. 

1. Identify yourself right away — You should state your name, your company, and why you’re calling.
2. Reach out only during allowed hours: 9 a.m.–9 p.m. Monday through Saturday and noon-9 p.m. on Sundays.
3. Don’t hide your caller ID or pretend to be someone else.
4. Check the Texas No-Call List at least quarterly and keep proof you checked. Don’t reach out to listed numbers unless an exception applies.
5. Know that texts count as calls. Same rules apply.
6. Avoid autodialers/robotexting for cold outreach. Many exemptions do not apply if you use them.
7. If anyone says, “do not call or text,” stop and keep a do-not-call/text list.

1. Maintain written calling/texting procedures, especially regarding making unsolicited sales calls/texts and other solicitations (how you scrub lists, hours, caller ID, do-not-call handling).
2. Scrub against the Texas No-Call List regularly (it updates quarterly-January 1, April 1, July 1 and October 1) and document the date you scrubbed. Find more information about the Texas “No Call Lists” here.
3. Keep an internal do-not-call list and honor it immediately.
4. Don’t use autodialers or mass-text tools for cold outreach.
5. Train everyone to open with identity and purpose and to record opt-outs.
6. If you or your brokerage does high-volume calling, find Texas SOS registration and bond forms here. Talk to a private attorney about how these requirements apply to you.
7. When in doubt, review your marketing program with a private attorney.

• The statutory prohibitions on reaching out to numbers that have been added to the Texas No Call List generally do not apply to:
  • Consumers who asked you to contact them
  • Consumers who contact you after receiving a solicitation or advertisement that makes all required federal and state law disclosures
  • Current clients or recent clients, provided that the call or text is made within 12 months from the date that the relationship with such current or recent clients ended.
• Registration with the Texas Secretary of State as a telephone solicitor may not be required under Chapter 302 if you only contact former or current clients and you have been operating under the same business name for at least two years.

• If you regularly make sales calls/texts, you may fall under a law that requires:

  • Registering with the Texas Secretary of State for each calling location (Telephone Solicitation Registration Statement or Form 3401, accessible on the Texas Secretary of State’s website)

  • Posting the certificate at the calling location
  • Quarterly updates and annual renewal
  • Security on file such as a surety bond, letter of credit, or CD.

A Texas state licensee (like a real estate license holder) may be exempt from the Texas No-Call restrictions if all are true:

• You do not use an autodialer
• There is a face-to-face sales presentation before the solicitation is completed
• No payment/authorization happens until after that presentation
• The consumer hasn’t told you not to call.

Important: This exemption does not cover third-party callers working on your behalf.

• It is illegal to make a call to a mobile phone number for the purpose of making a sale of a good or service if the recipient might be charged for the call and has not given prior consent. (There is a similar prohibition that applies to a fax sent as a solicitation.)

• These laws are interpreted to protect consumers. Multiple agencies can enforce them.
• Violations can bring civil penalties, criminal penalties, and lawsuits under the Texas Deceptive Trade Practices Act (DTPA).
• If you unexpectedly and unintentionally call or text a no-call number, there is a narrow exception in Section 26.37(h)(2) of the Rules of the Texas Public Utilities Commission that may allow you to avoid a violation if you can prove that you had written compliance procedures in place, you checked the most current version of the list, and it was an isolated mistake.