Senate passes bill opening door for prosecutors to charge fentanyl distributors with murder

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

The Texas Senate on Wednesday unanimously passed a key bill of the Legislature’s war on opioids that would increase the penalties related to the sale and production of fentanyl, by classifying overdoses from the drug as “poisonings.”

Senate Bill 645 by Sen. Joan Huffman, R-Houston, would achieve one of Gov. Greg Abbott’s legislative priorities by opening the door for prosecutors to charge people who make, sell and deliver fentanyl with murder.

The bill would also increase the penalty for making or delivering less than 1 gram of fentanyl from a state jail felony to a third-degree felony. If a person dies from an overdose as a result of that manufacturing or delivery of the drug, that penalty is escalated to a second-degree felony. In 2021, Huffman authored a law that increased penalties for manufacturing or delivering more than 1 gram of fentanyl.

“We have tragically learned the extent of how dangerous fentanyl is and how even under 1 gram is so dangerous,” Huffman said on Wednesday, while introducing her “Combating Fentanyl” bill. “It’s a fact that fentanyl is flooding our borders. It is absolutely without a doubt killing our citizens on a daily basis. And it’s time that we take a comprehensive approach to combat this.”

Just 2 milligrams of fentanyl can be a lethal dose depending on a person’s body size, tolerance and past usage, according to the U.S. Drug Enforcement Agency.

Abbott and state lawmakers have taken a tough-on-drugs approach to the fentanyl crisis, primarily pushing efforts to increase criminal penalties. That strategy has been criticized by some drug policy experts who say such policies only criminalize drug users instead of offering them help with addiction.

The move to charge people who sell or make fentanyl with murder has backfired in other states, leading to more overdose deaths and the charging of family and friends who were present when the victim took the drug.

Overdose deaths involving fentanyl in the state rose nearly 400%, from 333 people dying in fiscal year 2019 to 1,662 in fiscal year 2021. In Texas, the CDC predicts that more than 5,000 people died of drug overdoses between July 2021 and July 2022.

Fentanyl overdose deaths in Texas have gained attention as news outlets have covered stories of young teens and adults who die from fentanyl overdoses, sometimes thinking that they were using other drugs like adderall, which is commonly prescribed for people with attention deficit/hyperactivity disorder.

Huffman’s bill would also stiffen penalties for making, delivering or possessing larger quantities of fentanyl. Having between 200 and 400 grams would be a first-degree felony, which could lead to between 10 years and life in prison as well as a fine of up to $100,000. Having more than 400 grams would also be a first-degree felony punishable by at least 15 years in prison and a fine of up to $250,000.

But if approved by lawmakers, charging suspects with murder could still be a difficult outcome for law enforcement officials. Some of the challenges include questions about how prosecutors could prove whether the person selling or distributing the drug knew that they were selling something that included fentanyl. And those who sell or distribute the drug aren’t usually the same people who manufacture the drugs.

“It may be that they find it’s easier to prosecute under the other statute that I passed that would make it a second-degree felony,” she said. “But there may be extraordinary cases where it’s clear cut and the prosecutor then could have this tool to file for first-degree felony.”

Huffman made an exception in the law for medical professionals who prescribe fentanyl as treatment. She also changed the law so that death certificates do not classify as “fentanyl poisonings” deaths in which fentanyl is detected in the body but there is another clear cause of death.

Separately, the Senate also approved Senate Bill 1319 by Huffman, which would make it mandatory for law enforcement, first responders or other people who respond to emergencies to provide overdose information to a governmental entity that maintains a digital overdose mapping system. Many areas use tools like odmap.org to track overdose hot spots and deploy resources to those areas. Supporters of such programs say they are a needed tool to fight overdoses in the state.

Under current Texas law, some state entities do not have liability under the Health Insurance Portability and Accountability Act (HIPAA) to share overdose information in efforts to identify overdose hot spots to deploy resources to those areas. The bill allows emergency responders to provide limited parts of that information without fear of legal retribution.

The bill would allow emergency responders to share the date and time of the overdose incident, the approximate location of the incident, whether an opioid antagonist like naloxone was administered and the outcome of the patient. It does not allow for the sharing of the victim’s personal information.

The two bills received unanimous support in the Texas Senate, with one senator absent. They now move to the Texas House.

---

We can’t wait to welcome you Sept. 21-23 to the 2023 Texas Tribune Festival, our multiday celebration of big, bold ideas about politics, public policy and the day’s news — all taking place just steps away from the Texas Capitol. When tickets go on sale in May, Tribune members will save big. Donate to join or renew today.