April 2024

1. Governing Texts

The Office of the Texas Governor signed, on June 18, 2023, the Texas Data Privacy and Security Act (TDPSA). The TDPSA establishes consumer rights and various controller and processor obligations, granting the Attorney General of Texas (AG) exclusive authority to enforce its provisions. The TDPSA will enter into effect on July 1, 2024.

1.1. Key acts, regulations, directives, bills

• TDPSA

1.2. Guidelines

The AG has not issued any guidelines on the TDPSA.

1.3. Case law

Not applicable.

2. Scope of Application

2.1. Personal scope

The TDPSA applies to persons that (Tex. Bus. & Com. Code §541.002(a)):

• conduct business in Texas or produce a product or service consumed by residents in Texas;

• process or engage in the sale of personal data; and

• are not a small business as defined by the U.S. Small Business Administration, except to the extent that organizations are exempt as provided for under the TDPSA.

However, the TDPSA does not apply to organizations including, among others (Tex. Bus. & Com. Code §541.002(b)):

• any state agency or political subdivision of Texas;

• financial institutions or data subject to the Gramm-Leach Bliley Act (GLBA);

• entities or business associates governed by the privacy, security, and breach notification rules under the Health Insurance Portability and Accountability Act (HIPAA) and Health Information Technology for Economic and Clinical Health Act;

• non-profit organizations; or

• institutions of higher education.

2.2. Territorial scope

The TDPSA applies to persons that conduct business in Texas or produce a product or service consumed by residents in Texas, process or engage in the sale of personal data, and are not a small business as defined by the U.S. Small Business Administration, except to the extent that organizations are exempt as provided for under the TDPSA (Tex. Bus. & Com. Code §541.002(a)).

2.3. Material scope

The TDPSA applies to the processing or the sale of personal data (Tex. Bus. & Com. Code §541.002(a)), defined as any information, including sensitive data, that is linked or reasonably linkable to an identified or identifiable individual, including pseudonymous data when the data is used by a controller or processor in conjunction with additional information that reasonably links the data to an identified or identifiable individual, and excluding de-identified data or publicly available information (Tex. Bus. & Com. Code §541.001(19)).

In addition, information exempt from the TDPSA includes, among others (Tex. Bus. & Com. Code §541.003):

• protected health information under HIPAA;

• health records;

• identifiable private information;

• personal data regulated by the Family Educational Rights and Privacy Act;

• personal data collected, processed, sold, or disclosed in compliance with the Farm Credit Act of 1971; or

• data processed or maintained in the course of an individual applying to, employed by, or acting as an agent or independent contractor of a controller, processor, or third party, to the extent that the data is collected and used within the context of that role.

Notably, the TDPSA does not apply to the processing of personal data by a person in the course of a purely personal or household activity (Tex. Bus. & Com. Code §541.004).

3. Data Protection Authority | Regulatory Authority 

3.1. Main regulator for data protection

The AG is the regulator of the TDPSA.

3.2. Main powers, duties and responsibilities

The AG has exclusive authority to enforce the TDPSA and may issue a civil investigative demand where they have reasonable cause to believe that a person has engaged or is engaging in violation of the TDPSA (Tex. Bus. & Com. Code §541.151). The AG may request, pursuant to a civil investigative demand a controller disclose any DPA that is relevant to an investigation conducted by the AG. The AG may evaluate the DPA for compliance with the requirements set forth in § 541.101, 541.102, and 541.103.

The TDPSA provides that the AG will post on the AGs website (Tex. Bus. & Com. Code §541.152):

• information relating to:

  • the responsibilities of a controller;

  • the responsibility of a processor; and

  • consumer's rights under the TDPSA; and

• an online mechanism through which a consumer may submit a complaint under the TDPSA through the AG.

4. Key Definitions

Data controller: An individual or other person that, alone or jointly with others, determines the purpose and means of processing personal data (Tex. Bus. & Com. Code §541.001(8)).

Data processor: A person that processes personal data on behalf of a controller (Tex. Bus. & Com. Code §541.001(23)).

Personal data: Any information, including sensitive data, that is linked or reasonably linkable to an identified or identifiable individual. The term includes pseudonymous data when the data is used by a controller or processor in conjunction with additional information that reasonably links the data to an identified or identifiable individual. The term does not include de-identified data or publicly available information (Tex. Bus. & Com. Code §541.001(19)).

Sensitive data: Sensitive data is defined as including (Tex. Bus. & Com. Code §541.001(29)):

• personal data revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexuality, or citizenship or immigration status;

• genetic or biometric data that is processed for the purpose of uniquely identifying an individual;

• personal data collected from a known child; or

• precise geolocation data.

Health data: The TDPSA does not expressly define 'health data' but instead refers to 'protected health information' as defined under HIPAA (Tex. Bus. & Com. Code §541.001(25)).

On the other hand, 'health record' means any written, printed, or electronically recorded material maintained by a health care provider in the course of providing health care services to an individual that concerns the individual and the services provided. The term includes (Tex. Bus. & Com. Code §541.001(14)):

• the substance of any communication made by an individual to a health care provider in confidence during or in connection with the provision of health care services; or

• information otherwise acquired by the health care provider about an individual in confidence and in connection with health care services provided to the individual.

Biometric data: Means data generated by automatic measurements of an individual's biological characteristics. The term includes a fingerprint, voiceprint, eye retina or iris, or other unique biological pattern or characteristic that is used to identify a specific individual. The term does not include a physical or digital photograph or data generated from a physical or digital photograph, a video or audio recording or data generated from a video or audio recording, or information collected, used, or stored for health care treatment, payment, or operations under HIPAA (Tex. Bus. & Com. Code §541.001(3)).

Pseudonymization: 'Pseudonymous data' means any information that cannot be attributed to a specific individual without the use of additional information, provided that the additional information is kept separately and is subject to appropriate technical and organizational measures to ensure that the personal data is not attributed to an identified or identifiable individual (Tex. Bus. & Com. Code §541.001(26)).

5. Legal Bases

Personal data processed under §541.202 by a controller may be processed to the extent that the processing is (Tex. Bus. & Com. Code §541.204(a)):

• reasonably necessary and proportionate to the purposes listed in this subchapter; and

• adequate, relevant, and limited to what is necessary for specific purposes in the TDPSA.

In addition, personal data collected, used, or retained under §541.202 must, where applicable, take into account the nature and purpose of such collection, use, or retention. Moreover, the personal data is subject to reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and accessibility of the personal data and to reduce reasonably foreseeable risks of harm to consumers relating to the collection, use, or retention of personal data.

5.1. Consent

'Consent' under the TDPSA is defined as a clear affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal data relating to the consumer. The term includes a written statement, including a statement written by electronic means, or any other unambiguous affirmative action. The term 'consent' does not include (Tex. Bus. & Com. Code §541.001(6)):

• acceptance of a general or broad terms of use or similar document that contains descriptions of personal data processing along with other, unrelated information;

• hovering over, muting, pausing, or closing a given piece of content; or

• agreement obtained through the use of dark patterns.

Specifically, a controller may not process personal data for a purpose that is not reasonably necessary to nor compatible with the disclosed purpose for which personal data is processed unless the controller obtains the consumer's consent (Tex. Bus. & Com. Code §541.101(b)(1). Likewise, a controller may not process the sensitive data of a consumer without obtaining the consumer's consent, or, in the case of processing the sensitive data of a known child, without processing that data in accordance with the Children's Online Privacy Protection Act of 1998 (COPPA) (Tex. Bus. & Com. Code §541.101(b)(4)).

5.2. Contract with the data subject

The TDPSA does not expressly provide that personal data can be processed for the performance of a contract with a data subject.

However, the TDPSA outlines that nothing mut restrict the ability of a controller or processor to provide a product or service specifically requested by a consumer or the parent or guardian of a child, perform a contract to which the consumer is a party, including fulfilling the terms of a written warranty, or take steps at the request of the consumer before entering into a contract (Tex. Bus. & Com. Code §541.201(a)(4)).

5.3. Legal obligations

The TDPSA does not expressly provide that personal data can be processed based on legal obligations.

However, the TDPSA provides that its requirements do not restrict a controller or processor's ability to among others (Tex. Bus. & Com. Code §541.201(a)):

• comply with federal, state, or local laws, rules, or regulations;

• comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, local, or other governmental authorities; or

• investigate, establish, exercise, prepare for, or defend legal claims.

5.4. Interests of the data subject

The TDPSA does not expressly provide that personal data can be processed based on the interests of the data subject.

However, the TDPSA states that nothing within shall be construed to impose a requirement on controllers and processors that adversely affects the rights and freedoms of any person, including the right of free speech (Tex. Bus. & Com. Code §541.201(c)).

In addition, the TDPSA states that its requirements do not restrict a controller or processor's ability to take immediate steps to protect an interest that is essential for the life or physical safety of the consumer or of another individual and in which the processing cannot be manifestly based on another legal basis (Tex. Bus. & Com. Code §541.201(a)(5)).

5.5. Public interest

The TDPSA provides that its requirements do not restrict a controller or processor's ability to engage in public or peer-reviewed scientific or statistical research in the public interest that adheres to all other applicable ethics and privacy laws and is approved, monitored, and governed by an institutional review board or similar independent oversight entity that determines (Tex. Bus. & Com. Code §541.201(a)(8)):

• if the deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller;

• whether the expected benefits of the research outweigh the privacy risks; and

• if the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with reidentification.

5.6. Legitimate interests of the data controller

The TDPSA does not expressly provide that personal data can be processed based on the legitimate interest of the data controller.

However, the TDPSA provides that its requirements do not restrict a controller or processor's ability to (Tex. Bus. & Com. Code §541.201(a)):

• prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity;

• preserve the integrity or security of systems or investigate, report, or prosecute those responsible for breaches of system security; or

• assist another controller, processor, or third party with any of the requirements under this subsection.

In addition, the TDPSA provides that the requirements imposed on controllers and processors under the TDPSA must not restrict their ability to collect, use, or train data to (Tex. Bus. & Com. Code §541.202(a)):

• conduct internal research to develop, improve, or repair products, services, or technology;

• affect a product recall;

• identify and repair technical errors that impair existing or intended functionality; or

• perform internal operations that:

  • are reasonably aligned with the expectations of the consumer;

  • are reasonably anticipated based on the consumer's existing relationship with the controller; or

  • are otherwise compatible with processing data in furtherance of the provision of a product or service specifically requested by a consumer or the performance of a contract to which the consumer is a party.

5.7. Legal bases in other instances

The TDPSA stipulates that nothing under its requirements shall be construed to prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under the laws of this state as part of a privileged communication (Tex. Bus. & Com. Code §541.201(b).

Likewise, the TDPSA also provides that nothing under its requirements shall be construed as requiring a controller, processor, third party, or consumer to disclose a trade secret (Tex. Bus. & Com. Code §541.201(d)).

6. Principles

The TDPSA provides the following principles for the processing of personal data:

Data minimization: controllers must limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which that personal data is processed, as disclosed to the consumer (Tex. Bus. & Com. Code §541.101(a)(1)).

Purpose limitation: controllers must not process personal data for a purpose that is neither reasonably necessary to nor compatible with the disclosed purpose for which the personal data is processed, as disclosed to the consumer unless the controller obtains the consumer's consent (Tex. Bus. & Com. Code §541.101(b)(1)).

Confidentiality and Integrity: controllers must, for the purposes of confidentiality, integrity, and accessibility, establish, implement, and maintain reasonable administrative, technical, and physical data security that is appropriate to the volume and nature of personal data (Tex. Bus. & Com. Code §541.101(a)(2)).

7. Controller and Processor Obligations

De-identified data and pseudonymous data

Controllers in possession of deidentified data must (Tex. Bus. & Com. Code §541.106(a)):

• take reasonable measures to ensure that the data cannot be associated with an individual;

• publicly commit to maintaining and using deidentified data without attempting to reidentify the data; and

• contractually obligate any recipient of the deidentified data to comply with the provisions of the TDPSA.

However, the TDPSA clarifies that it does not require a controller or processor to (Tex. Bus. & Com. Code §541.106(b)):

• re-identify de-identified or pseudonymous data;

• maintain data in an identifiable form, or collect, obtain, retain, or access data or technology, for the purpose of allowing consumers or processors to associate consumer requests with personal data; or

• comply with an authenticated consumer rights request, if it:

  • is not reasonably capable of associating the request with the personal data or it would be unreasonably burdensome for the controller to associate the request with the personal data;

  • does not use the personal data to recognize or respond to the specific consumer who is the subject of the personal data or associates the personal data with other personal data about the same specific consumer; and

  • does not sell the personal data to any third party or otherwise voluntarily disclose the personal data to any third party other than a processor, except as otherwise permitted by the TDPSA.

Consumer rights under the TDPSA do not apply to pseudonymous data in cases in which the controller is able to demonstrate any information necessary to identify the consumer is kept separately and is subject to effective technical and organizational controls that prevent the controller from accessing the information (Tex. Bus. & Com. Code §541.106(c)).

Controllers that disclose pseudonymous data or deidentified data must exercise reasonable oversight to monitor compliance with any contractual commitments to which the pseudonymous data or deidentified data is subject and shall take appropriate steps to address any breach of the contractual requirements (Tex. Bus. & Com. Code §541.106(d)).

7.1. Data processing notification

The TDPSA does not specifically provide data processing notification requirements.

7.2. Data transfers

The TDPSA does not specifically address cross-border data transfers. Nonetheless, the term 'sale of personal data' is defined as 'the sharing, disclosing, or transferring of personal data for monetary or other valuable consideration by the controller to a third party' (Tex. Bus. & Com. Code §541.001(28)). However, the term does not include (Tex. Bus. & Com. Code §541.001(28)):

• the disclosure of personal data to a processor that processes the personal data on the controller's behalf;

• the disclosure of personal data to a third party for purposes of providing a product or service requested by the consumer;

• the disclosure or transfer of personal data to an affiliate of the controller;

• the disclosure of information that the consumer:

  • intentionally made available to the general public through a mass media channel; and

  • did not restrict to a specific audience; or

• the disclosure or transfer of personal data to a third party as an asset that is part of a merger or acquisition.

7.3. Data processing records

The TDPSA does not explicitly provide for data processing records. 

7.4. Data protection impact assessment

Under the TDPSA controllers must conduct Data Protection Assessments (DPA) for activities involving personal data, including where (Tex. Bus. & Com. Code §541.105(a)):

• the processing is for targeted advertising;

• the processing involves the sale of personal data;

• the processing is for the purpose of profiling, and the profiling presents reasonably foreseeable risks of:

  • unfair or deceptive treatment of or unlawful disparate on consumers;

  • financial, physical, or reputational injury to consumers;

  • a physical or other intrusion on the solitude or seclusion, or the private affairs or concerns, of consumers, if the intrusion would be offensive to a reasonable person; or

  • other substantial injury to consumers;

• the processing involves sensitive data; and

• the processing activities involve personal data that presents a heightened risk of harm to consumers.

DPAs must aim to identify and weigh the direct or indirect benefits that may flow from the processing to the controller, the consumer, other stakeholders, and the public, against the potential risks to the rights of the consumer associated with that processing, as mitigated by safeguards that can be employed by the controller to reduce the risks. DPAs must factor in (Tex. Bus. & Com. Code §541.105(b)):

• the use of deidentified data;

• the reasonable expectations of consumers;

• the context of the processing; and

• the relationship between the controller and the consumer whose personal data will be processed.

Notably, a single DPA may address a comparable set of processing operations that include similar activities (Tex. Bus. & Com. Code §541.105(e)). Likewise, DPAs conducted by a controller for the purpose of compliance with other laws or regulations may constitute compliance with the requirements of the TDPSA if the assessment has a reasonably comparable scope and effect (Tex. Bus. & Com. Code §541.105(f)).

DPAs must also be made available to the AG pursuant to a civil investigative demand (Tex. Bus. & Com. Code §541.105(c)).

7.5. Data protection officer appointment

The TDPSA does not expressly address data protection officer (DPO) appointments.

7.6. Data breach notification

The TDPSA does not provide for breach notification requirements. However, processors must adhere to the instructions of a controller and assist the controller in meeting their duties or requirements under the TDPSA, including by complying with the security of processing personal data and the notification of a breach of security of the processor's system (Tex. Bus. & Com. Code §541.104(a)(2)).

Additionally, on September 1, 2023, Senate Bill 768 relating to the process for notifying the attorney general of a breach of security of computerized data by persons doing business in the state entered into force. Under this, data breaches must be notified to the AG as soon as practicable and not later than the 30th day after the date on which it is determined that the breach occurred, if the breach involves at least 250 residents in Texas.

Under the bill, a data breach notification must include (Tex. Bus. & Com. Code §521.053(i)): 

• a detailed description of the nature and circumstances of the breach or the use of sensitive personal information acquired as a result of the breach;

• the number of residents of this State affected by the breach at the time of notification;

• the number of affected residents that have been sent a disclosure of the breach by mail or other direct method of communication at the time of notification;

• the measures taken by the person regarding the breach;

• any measures the person intends to take regarding the breach after the notification under this subsection; and

• information regarding whether law enforcement is engaged in investigating the breach.

7.7. Data retention

The TDPSA does not expressly address data retention.

7.8. Children's data

'Child' under the TDPSA is considered to be an individual younger than 13 years of age (Tex. Bus. & Com. Code §541.001(5). 'Known child' means a child under circumstances where a controller has actual knowledge of, or willfully disregards, the child's age (Tex. Bus. & Com. Code §541.001 (17).

Controllers or processors that comply with the verifiable parental consent requirements of COPPA with respect to data collected online are considered to be in compliance with any requirement to obtain parental consent under the TDPSA (Tex. Bus. & Com. Code §541.005).

Please note that personal data collected from a known child is considered a category of 'sensitive data'. Therefore, personal data collected from an individual the controller knows is under 13 years old must be processed in accordance with such requirements ((Tex. Bus. & Com. Code §541.001(29)).

7.9. Special categories of personal data

Controllers may not, under the TDPSA process the sensitive data of a consumer without obtaining the consumer's consent, or, in the case of processing the sensitive data of a known child, without processing that data in accordance with COPPA (Tex. Bus. & Com. Code §541.101(b)(4)). If controllers engage in the sale of personal data that is sensitive data, the controller must include the following notice, in the same location and in the same manner as the privacy notice required under the TDPSA (Tex. Bus. & Com. Code §541.102(b)):

• "NOTICE: We may sell your sensitive personal data."

Further, the TDPSA expressly provides that persons who are not a small businesses as defined by the U.S. Small Business Administration may not engage in the sale of personal data that is sensitive data without receiving prior consent from the consumer (Tex. Bus. & Com. Code §541.107(a)).

7.10. Controller and processor contracts

Processors must adhere to the instructions of a controller and assist the controller in meeting their duties or requirements under the TDPSA, including (Tex. Bus. & Com. Code §541.104(a)):

• responding to consumer requests by using appropriate technical and organizational measures, as reasonably practicable, taking into account the nature of processing and the information available;

• complying with the security of processing personal data and to the notification of a breach of security of the processor's system; and

• providing necessary information to enable the controller to conduct and document DPAs.

A contract must govern controller and processor procedures and must include (Tex. Bus. & Com. Code §541.104(b)):

• clear instructions for processing data;

• the nature and purpose of the processing;

• the type of data subject to processing;

• the duration of the processing;

• the rights and obligations of both parties; and

• a requirement that the processor shall:

  • ensure each person processing personal data is subject to a duty of confidentiality;

  • at the controller's direction, delete or return all personal data to the controller as requested after the provision of the service is complete unless retention is required by law;

  • make available to the controller, on reasonable request, all information in the processor's possession necessary to demonstrate the processor's compliance under the TDPSA;

  • allow, and cooperate with, reasonable assessments by the controller or controller's designated assessor; and

  • engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the requirements of the processor with respect to personal data.

Notwithstanding the above, a processor, in the alternative, may arrange for a qualified and independent assessor to conduct an assessment of its policies and technical and organizational measures in support of the requirements under the TDPSA using an appropriate and accepted control standard or framework and assessment procedure. However, the processor must provide a report of the assessment to the controller on request (Tex. Bus. & Com. Code §541.104(c)).

A determination of whether a person is acting as a controller or processor with respect to the specific processing of personal data is a fact-based determination that depends on the context in which personal data is to be processed. Processors that continue to adhere to a controller's instructions with respect to a specific processing activity remain a processor (Tex. Bus. & Com. Code §541.104(e)).

8. Data Subject Rights

Consumers under the TDPSA are entitled to exercise their consumer rights at any time by submitting a request to a controller specifying the consumer rights the consumer wishes to exercise. Regarding the processing of personal data belonging to a known child, a parent or legal guardian may exercise their consumer rights on behalf of the child (Tex. Bus. & Com. Code §541.051(a)). Controllers may not discriminate against a consumer for exercising any of the consumer rights contained in this chapter, including by denying goods or services, charging different prices or rates for goods or services, or providing a different level of quality of goods or services to the consumer (Tex. Bus. & Com. Code §541.101(b)(3))

Responding the consumer requests

Data controllers must comply with consumer requests without undue delay, which may not be later than 45 days after receipt of the request. The response period may be extended by another 45 days where reasonably necessary, taking into account the complexity and number of the consumer's request, so long as the controller informs the consumer of the extension within the initial 45-day response period, together with the reason for the extension (Tex. Bus. & Com. Code §541.052(b)). Further, if a controller declines to take action regarding a consumer's request, the controller must inform the consumer without undue delay, which may not be later than 45 days after the receipt of the request, of the justification for declining to take action and instructions on how to appeal the decision (Tex. Bus. & Com. Code §541.052(c)).

Data controllers must also provide information in response to a consumer request free of charge, at least twice annually per consumer. Where consumer requests are manifestly unfounded, excessive, or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request (Tex. Bus. & Com. Code §541.052(d)). Importantly, the controller bears the burden of demonstrating for purposes of this subsection that a request is manifestly unfounded, excessive, or repetitive. If a controller is unable to authenticate the request using commercially reasonable efforts, the controller is not required to comply with a consumer request and may request the consumer provide additional information reasonably necessary to authenticate the consumer and their request (Tex. Bus. & Com. Code §541.052(e)).

Controllers must establish two or more secure and reliable methods to enable consumers to submit requests and must take into account (Tex. Bus. & Com. Code §541.055(a)):

• the ways in which consumers normally interact with the controller;

• the necessity for secure and reliable communications of those requests; and

• the ability of the controller to authenticate the identity of the consumer making the request.

When exercising consumer rights, consumers must not be required to create a new account but may require consumers to use an existing account (Tex. Bus. & Com. Code §541.055(b)). Controllers that maintain an internet website must provide a mechanism to submit consumer requests on the website (Tex. Bus. & Com. Code §541.055(c)), while controllers who operate exclusively online and have a direct relationship with the consumer from whom they collect information are only required to provide an email address for consumer requests (Tex. Bus. & Com. Code §541.055(d)).

In addition, the TDPSA provides that controllers must establish a process for consumers to appeal the controller's refusal to take action on a request within a reasonable period of time after the consumer's receipt of the decision (Tex. Bus. & Com. Code §541.053(a)). Specifically, the appeal process established must be conspicuously available and similar to the process for initiating action to exercise consumer rights Tex. Bus. & Com. Code §541.053(b)). Likewise, controllers must inform consumers, in writing, of any action taken or not taken in response to an appeal no later than 60 days after receiving the appeal, including a written explanation of the reason or reason for the decision (Tex. Bus. & Com. Code §541.053(c)). Finally, where controllers deny an appeal, they must provide the consumer with an online mechanism by which the consumer may contact the AG.

8.1. Right to be informed

Consumer rights under the TDPSA include the right to confirm whether a controller is processing the consumer's personal data (Tex. Bus. & Com. Code §541.051(b)(1). More specifically, data controllers must provide a privacy notice, with required information such as (Tex. Bus. & Com. Code §541.102(a)):

• the categories of personal data to be processed, including, if necessary, any sensitive data;

• the purpose of the processing;

• how consumers can exercise their data subject rights, including the appeal process;

• the categories of data shared with third parties (if any);

• the categories of third parties with whom data is shared (if any); and

• a description of the methods through which consumers can submit requests to exercise their consumer rights under the TDPSA.

Notably, if controllers engage in the sale of personal data that is sensitive data and/or biometric data, the controller must include the following notices respectively, in the same location and in the same manner as the privacy notice described above (Tex. Bus. & Com. Code §541.102(b) and (c)):

• "NOTICE: We may sell your sensitive personal data."

• "NOTICE: We may sell your biometric personal data."

If controllers sell personal data to third parties or process personal data for targeted advertising, the controller must clearly and conspicuously disclose that process and the manner in which a consumer may exercise the right to opt out of that process (Tex. Bus. & Com. Code §541.103).

However, it should be noted that consumer rights under the TDPSA and controller obligations do not apply to pseudonymous data in cases in which the controller is able to demonstrate any information necessary to identify the consumer is kept separately and is subject to effective technical and organizational controls that prevent the controller from accessing the information (Tex. Bus. & Com. Code §541.106(c)).

8.2. Right to access

Consumer rights under the TDPSA include the right to confirm whether a controller is processing the consumer's personal data and accessing the personal data (Tex. Bus. & Com. Code §541.051(b)(1).

8.3. Right to rectification

Consumers under the TDPSA also have the right to correct inaccuracies in the consumer's personal data, taking into account the nature of the personal data and the purposes of processing (Tex. Bus. & Com. Code §541.051(b)(2).

8.4. Right to erasure

Consumers under the TDPSA also have the right to delete personal data provided by or obtained about the consumer (Tex. Bus. & Com. Code §541.051(b)(3).

A controller that has obtained personal data about a consumer from a source other than the consumer is considered in compliance with a consumer's deletion request by: (i) retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring the personal data remains deleted from the business's records and not using the retained data for any other purpose; or (ii) opting the consumer out of the processing of the personal data for any purpose other than a purpose that is exempt under the TDPSA (Tex. Bus. & Com. Code §541.052(f)).

8.5. Right to object/opt-out

Consumers under the TDPSA have the right to opt out of the processing of personal data for the purposes of (Tex. Bus. & Com. Code §541.051(b)(5):

• targeted advertising;

• the sale of personal data; or

• profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer.

Third parties

Under the TDPSA consumers may designate another person to serve as their authorized representative and act on their behalf to opt out of the processing of the consumer's personal data. Specifically, a consumer may designate an authorized agent using a technology, including a link to an internet website, an internet browser setting or extension, or a global setting on an electronic device, that allows the consumer to indicate the consumer's intent to opt out of the processing. Controllers may comply with the opt-out request received if the controller is able to verify, with commercially reasonable effort, the identity of the consumer and the authorized agent's authority to act on the consumer's behalf (Tex. Bus. & Com. Code §541.055(e)).

A technology as described above must (Tex. Bus. & Com. Code §541.055(f)):

• not unfairly disadvantage another controller;

• not make use of a default setting, but must require the consumer to make an affirmative, freely given, and unambiguous choice to indicate the consumer's intent to opt out of any processing of a consumer's personal data; and

• be consumer-friendly and easy to use by the average consumer.

Controllers are not required to comply where (Tex. Bus. & Com. Code §541.055(e)):

• the authorized agent does not communicate the request in a clear and unambiguous manner;

• the controller is not able to verify, with reasonable commercial effort, that the consumer is a resident of Texas;

• the controller does not possess the ability to process the request; or

• the controller does not process similar or identical requests that the controller receives from consumers for the purpose of complying with similar or identical laws or regulations of another state.

However, such a provision does not enter into effect until January 1, 2025 (Tex. Bus. & Com. Code §541.205(Section 7)(b)).

8.6. Right to data portability

Notably, if data is available in a digital format, obtain a copy of the consumer's personal data that the consumer previously provided to the controller in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another controller without hindrance (Tex. Bus. & Com. Code §541.051(b)(4).

8.7. Right not to be subject to automated decision-making

Under the TDPSA 'profiling' means any form of solely automated processing performed on personal data to evaluate, analyze, or predict personal aspects related to an identified or identifiable individual's economic situation, health, personal preferences, interests, reliability, behavior, location, or movements (Tex. Bus. & Com. Code §541.001(24)).

Accordingly, the TDPSA specifies that consumers have the right to opt out of the processing of personal data for the purposes of profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer (Tex. Bus. & Com. Code §541.051(b)(5).

8.8. Other rights

Not applicable.

9. Penalties

The AG has exclusive authority to enforce the TDPSA and may issue a civil investigative demand where they have reasonable cause to believe that a person has engaged or is engaging in violation of the TDPSA (Tex. Bus. & Com. Code §541.153(a)). Before bringing an action under the TDPSA, the AG must notify persons in writing, no later than 30 days before bringing the action, identifying specific provisions of the TDPSA the AG alleges to have been or are being violated. However, the AG may not bring an action if (Tex. Bus. & Com. Code §541.154):

• within the 30-day period, the person cures the identified violation; or

• the person provides the AG with a written statement that the person:

  • cured the alleged violation;

  • notified the consumer that the consumer's privacy violation was addressed, if the consumer's contact information has been made available to the person;

  • provided supportive documentation to show how the privacy violation was cured; and

  • made changes to internal policies, if necessary, to ensure that no such further violations occur.

Persons who violate the TDPSA following the cure period or who breach a written statement provided to the AG are liable to a civil penalty that does not exceed $7,500 for each violation of the TDPSA (Tex. Bus. & Com. Code §541.155(a)). The AG may also bring an action in the name of this state to:

• recover a civil penalty under this section;

• restrain or enjoin the person from violating this chapter; or

• recover the civil penalty and seek injunctive relief.

Finally, nothing in the TDPSA shall be construed as providing a basis for, or being subject to, a private right of action for a violation of the TDPSA or any other law (Tex. Bus. & Com. Code §541.156).

9.1 Enforcement decisions

Not applicable.