Law / United States / 
Texas
Regulation of Electronic Mail
In force since .
A commercial messages rule binding private bodies.
- Obligation class
- Disclosure, Prohibition, Consent
What it requires
- Do not intentionally transmit an unsolicited commercial electronic mail message that falsifies its transmission or routing information, or any commercial electronic mail message with false, deceptive or misleading information in the subject line or that uses another person's Internet domain name without that person's consent.no control in the NIST Privacy Framework
- For an unsolicited commercial electronic mail message, put "ADV:" first in the subject line, or "ADV: ADULT ADVERTISEMENT" if it contains obscene material or material depicting sexual conduct, and provide a functioning return email address to which the recipient can send a removal request at no cost; remove the address within three days after receiving the request.NIST Privacy FrameworkCT.PO-P3
- Do not sell or otherwise provide to anyone the email address of a person who has asked to be removed, except as other law requires.NIST Privacy FrameworkCT.PO-P3
- A message sent with the recipient's consent, to someone with whom you have an established business relationship, or by an organization only to its members, employees or contractors is not an unsolicited commercial electronic mail message.
These lines are LexLint's reading of the law's text.
In the frameworks
- NIST Privacy Framework
- CT.PO-P3Policies, processes, and procedures for enabling individuals’ data processing preferences and requests are established and in place.
- FINOS AIGF
- AIR-PREV-005System Acceptance Testing
Our reading of where this law's duties sit in each framework, and in the NIST Privacy Framework, line by line beside each duty above. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Intentionally transmitting a message containing obscene material or material depicting sexual conduct in violation of the 'ADV: ADULT ADVERTISEMENT' subject-line duty is a Class B misdemeanor.
Penalty structure
Section 321.103 makes a violation of this chapter a false, misleading or deceptive act under Subchapter E, Chapter 17, and lets any public remedy of that subchapter enforce the chapter, so the consumer protection division may seek under section 17.47(c) a civil penalty of not more than $10,000 per violation, plus an additional amount of not more than $250,000 where the act was calculated to acquire or deprive money or other property from a consumer 65 or older. Section 321.102 separately lets the Attorney General or a prosecuting attorney recover a civil penalty of not more than the lesser of $10 for each unlawful message or unlawful action or $25,000 for each day an unlawful message is received or an unlawful action is taken, plus reasonable enforcement expenses. The private recovery uses the lesser-of figures.
- Rule
- Per violation only
- As of
- Currency
- USD
- Per violation unit
- Violation
- Per violation amount
- 10,000
Statutory damages
In place of actual damages, a person injured by a violation other than an email service provider may recover the lesser of $10 for each unlawful message or $25,000 for each day the unlawful message is received or an unlawful action occurs; an email service provider may instead recover the greater of the same two figures. Neither figure is trebled for a knowing violation; the chapter bars class-action certification of any action under it.
- As of
- Currency
- USD
Who enforces it
Enforcement body
Texas Attorney General or a local prosecuting attorney (civil penalty and injunction under section 321.102); the Deceptive Trade Practices Act's public and private remedies under section 321.103; a private plaintiff, including an email service provider, under sections 321.104-.106; no class-action certification.
Settledness
- As of
- Open questions
- Does 15 U.S.C. 7707(b)(1) preempt the "ADV:" subject-line and removal-request duties of Texas Business and Commerce Code section 321.052, which do not rest on falsity or deception?
- Does a recipient's removal request under Texas Business and Commerce Code section 321.052(a)(2) terminate an "established business relationship" within section 321.001(4)(C)?
What this law does
A person may not intentionally transmit an unsolicited commercial electronic mail message that falsifies its transmission or routing information, or any commercial electronic mail message with false, deceptive or misleading information in the subject line or that uses another person's Internet domain name without consent.
An unsolicited commercial electronic mail message is one sent without the recipient's consent by a person with whom the recipient has no established business relationship (one formed by a voluntary two-way communication about a product or service and not terminated), and the term excludes an organization's email communicating only with its members, employees or contractors.
Those prohibitions are framed as rules against falsity or deception, the kind of state email rule the CAN-SPAM Act's preemption clause leaves in force; the labeling and removal duties are not framed that way.
A person may not intentionally transmit an unsolicited commercial electronic mail message unless "ADV:" appears first in its subject line, or "ADV: ADULT ADVERTISEMENT" for obscene material or material depicting sexual conduct, and the sender provides a functioning return address to which a recipient can send a removal request at no cost; the sender must remove the address within three days after receiving the request.
A sender may not sell or otherwise provide to another the address of a person who has asked to be removed, except as other law requires. A person is not liable for a commercial electronic mail message transmitted by error or accident, and a sender who contracts in good faith with an electronic mail service provider to transmit its messages, with no reason to believe the provider will violate the chapter, is not liable for a message that violates it.
Intentionally transmitting a message with obscene material or material depicting sexual conduct without the adult-advertisement label is a Class B misdemeanor. A violator is liable to the state for a civil penalty of not more than the lesser of $10 for each unlawful message or $25,000 for each day, which the attorney general or a local prosecuting attorney may recover with an injunction and expenses.
A violation is also a false, misleading or deceptive act under the Deceptive Trade Practices Act, except that no action under the chapter may be certified as a class action.
A person injured by a violation may recover actual damages, including lost profits, or in lieu of them the lesser of $10 for each unlawful message or $25,000 for each day it is received, while an injured electronic mail service provider may recover the greater of those amounts, and a prevailing plaintiff recovers attorney's fees and costs.
When LexLint raises it
When your app profile says your app sends commercial email.
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