Drug-Induced Homicide Prosecutions in Texas: Overdose Murders

Fentanyl arrests in Texas may soon come with specific felony murder charges.

Fentanyl is changing things in Texas and across the country, as more and more law enforcement efforts are targeting the manufacturing and distribution of this particular illegal drug and controlled substance. For more, read our earlier discussions in Texas Governor’s Designation of Mexican Cartels As Terrorist Organizations: Criminal Defense Perspective and Fentanyl Charges Under Federal Law: Felonies and Range of Sentencing. 

In 2023, both state and federal legislation are in the works that will change things even more, where fentanyl is involved.  There are proposed statutes before Congress and the Texas Legislature that seek to make fatal fentanyl overdoses a formal homicide charge.  Once passed, these will be the first drug-induced homicide laws available to prosecutors in the Lone Star State.

Texas’ Proposed “Combat Fentanyl Bill” in SB645: “Fentanyl Poisoning”

Last week, the Texas Senate unanimously passed SB645, known as the “Combat Fentanyl Bill.” This proposed new state criminal statute was introduced earlier this year by State Senator Joan Huffman with the following statement:

“Since the beginning of Operation Lone Star, the Texas Department of Public Safety has seized over 353 million lethal doses of fentanyl which is enough to kill nearly every person in the United States. Senate Bill 645 sends a clear message to those manufacturing and peddling this lethal poison that the State of Texas is fighting back. 

“Every day, Texans are losing their lives to fentanyl. Because of our proximity to the border, we must pass legislation like SB 645 that will severely punish those who are flooding our communities with the most lethal street drug we have ever seen as a society. I look forward to working with my colleagues to get this bill signed into law.”

Read, “Senate passes bill opening door for prosecutors to charge fentanyl distributors with murder,” written by James Barragán and published in the Texas Tribune on March 15, 2023.  As the above article explains, the key to this proposed legislation is that by labelling the overdose as a “poisoning,” it enables prosecutors to pursue fatal fentanyl overdoses as homicides.

SB645 does so by its proposed amendment to Section 193.005 of the Texas Health and Safety Code, adding Subsection (e-1), as follows:

(e-1) Requires that the medical certification on the death certificate include the presence of the substance and the term “Fentanyl Poisoning” if a toxicology examination reveals a detectable amount of a controlled substance listed in Penalty Group 1-B in the body of the decedent. Provides that this subsection does not apply if the decedent at the time of death had a valid prescription for the controlled substance.

There’s no dispute that Governor Abbott will sign this bill into law when it reaches his desk.  For over a year now, he has made clear his desire for a Texas drug-induced homicide law to be passed as it pertains to fentanyl.  Read, “‘Poisoning by fentanyl’: Gov. Abbott wants dealing drug to be murder crime in Texas,” written by Jala Washington and published by KXAN on March 10, 2022.

Texas’ Proposed Drug-Induced Homicide Statute

Currently, around half of the states have passed some form of state statute that defines a homicide or murder charge to include the delivery of a controlled substance to someone who took the drug and died as a result.  Overdose deaths are charged as murders by the supplier of the drug in these states.

They are collectively called “drug-induced homicide laws.”  The crimes vary from state to state, not only in what prosecutors have to show as evidence to obtain a conviction but also in the sentencing range available to those who are convicted of the crime.  For details, read the online comparison dataset compiled by the Health in Justice Action Lab and Legal Science.

If Texas SB645 becomes law, it will be Texas’ first drug-induced homicide law.  Specifically, the statute, as described by its author, will do the following four things:

As filed, SB 645 increases the penalty for manufacturing or delivery of less than 1 gram of fentanyl from a state jail felony to a third-degree felony.

Furthermore, when an individual overdoses and dies from fentanyl, the penalty would be enhanced to a second-degree felony. This is designed to address the “one-pill scenario”, where due to the lethality of fentanyl compared to other illicit drugs, it only takes one pill to kill.

Additionally, to further crack down on distribution, SB 645 includes possession of fentanyl with intent to deliver in the organized criminal activity statute.

Finally, it clarifies penalty levels for drug offenses to ensure more efficient prosecution of these crimes.

Second Degree Felony Charge with Possible Enhancement to Life Imprisonment

Accordingly, very soon Texas prosecutors faced with deaths attributed to fentanyl ingestion or overdose will be able to seek second-degree felony charges against anyone alleged to have manufactured or delivered the drug.

Pursuant to Texas Penal Code §12.33, as a felony of the second degree this will involve a sentencing range of 2 -20 years’ imprisonment in the Texas Department of Criminal Justice with a possible fine of up to $10,000.00.

The state district attorney will also be able to pursue charges based on the existing organized criminal activity statute for additional felony sentencing upon conviction.  This will serve to enhance the conviction substantially.  Texas Penal Code §§71.01, 71.02.

Subject to some statutory exceptions and defense arguments, those convicted in Texas of engaging in organized criminal activity in violation of the statute face sentencing that is boosted to one category higher than the most serious underlying charge for which he or she has been convicted.

A second-degree felony becomes a first-degree felony in this scenario.  Texas Penal Code §12.32 provides first-degree felonies with a sentence of life imprisonment in the Texas Department of Criminal Justice or for any term not less than 5 years and not more than 99 years, as well as a possible fine of up to $10,000.00.

• For more on organized crime charges in Texas, read our earlier discussion in Organized Criminal Activity Charges Under Texas Penal Code §71.02.
• Also see, Felony Charges under Texas and Federal Law: Criminal Defense Overview.

Current Enhancement Available Under Tex. Health & Safety Code §481.141

What happens now in Texas?  Without a drug-induced homicide law, are Texas prosecutors left without a means to charge those they blame for a fatal overdose?  Currently, these deaths do not correspond to specific murder charges.

Instead, the ADA must look to charging for drug charges involving manufacturing or distribution of the drug (be it fentanyl, heroin, meth, etc.).  The death comes into play as part of sentencing.

Of importance, there is currently an avenue in Texas law for prosecutors to increase the penalty range by one level and produce mandatory stacked sentence with any other sentences upon criminal conviction of certain drug laws where a death has occurred.

Texas Health and Safety Code §481.141, entitled “Manufacture or Delivery of Controlled Substance Causing Death or Serious Bodily Injury,” states:

(a) If at the guilt or innocence phase of the trial of an offense described by Subsection (b), the judge or jury, whichever is the trier of fact, determines beyond a reasonable doubt that a person died or suffered serious bodily injury as a result of injecting, ingesting, inhaling, or introducing into the person’s body any amount of the controlled substance manufactured or delivered by the defendant, regardless of whether the controlled substance was used by itself or with another substance, including a drug, adulterant, or dilutant, the punishment for the offense is increased by one degree.

(b) This section applies to an offense otherwise punishable as a state jail felony, felony of the third degree, or felony of the second degree under Section 481.112, 481.1121, 481.113, 481.114, or 481.122 (Offense: Delivery of Controlled Substance or Marihuana to Child).

(c) Notwithstanding Article 42.08 (Cumulative or Concurrent Sentence), Code of Criminal Procedure, if punishment for a defendant is increased under this section, the court may not order the sentence for the offense to run concurrently with any other sentence the court imposes on the defendant.

If someone dies from a drug overdose, whether it is fentanyl or any other kind of illegal drug, state prosecutors can – and do – use this statute to boost, or enhance, the punishment sought for the accused.  However, this enhancement does not create an independent felony charge at any level for a homicide involving the deadly drug overdose.

The proposed state statute by labelling the overdose as a poisoning will allow murder charges to be filed when there is a fentanyl overdose in Texas. This will go into effect if the bill becomes law, and it will apply only to fentanyl.  There is no specific Texas drug-induced homicide law at this time.

Federal Fentanyl-Induced Homicide Law with Felony Murder Charges: S380

Almost in tandem with the Texas proposal is a fentanyl-death bill at the federal level that seeks to make fentanyl overdose deaths into the specific homicide crime of felony murder.

Within the past six weeks, a federal bill was introduced in the United States Senate (S380) by Florida Senator Marco Rubio and correspondingly in the House by Texas Congressman Tony Gonzalez that proposes the new federal criminal law entitled “Felony Murder for Deadly Fentanyl Distribution Act of 2023.”

Explains Senator Rubio in the accompanying news release:

We need to stop the flow of fentanyl and punish those responsible for poisoning our communities. If the illicit sale of this drug results in death, then the seller should be charged with felony murder. That is a simple, common-sense step we can take right now to help turn the tide and protect our communities.

What is felony murder?  When someone is accused of a violent crime they may also face “felony murder” charges if the commission of that violent crime caused the death of someone, regardless of whether or not they had any intention of causing harm.  Read, “Felony Murder: an On-Ramp for Extreme Sentencing,” published by the Sentencing Project in October 2022.

Currently, AUSAs across the country are prosecuting fatal overdoses under existing federal drug laws.  This applies to fentanyl and all other illegal drugs and controlled substances.  An enhancement to the federal drug distribution charge works to increase the punishment for someone who is arrested for providing the drug to the person who died.  There is the potential for life imprisonment.

Specifically, the federal drug statutes (21 U.S.C. § 841(a)-(b); 21 U.S.C. § 960(a)-(b)) make it a crime to knowingly or intentionally manufacture, distribute, or dispense, or to possess with intent to do so, a controlled substance or a counterfeit substance.  The federal law enhances the punishment to 20 years to life “…if death or serious bodily injury results from the use of such substance.” The AUSA can seek a mandatory life sentence with the filing of record of a notice of a prior conviction for a “felony drug offense” under 21 U.S.C. §851.

As an example, consider the recent conviction obtained in the United States District Court for the Northern District of Texas, Abilene Division, based upon violations of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), involving distribution and possession with intent to distribute fentanyl resulting in death or serious bodily injury.  United States v. Perez, No. 1: 22-CR-00058-H-BU (N.D. Tex. Jan. 17, 2023).

Defending Drug-Induced Homicide Charges in Texas

The reality of these drug overdose fatalities is that the person charged with causing the death of the victim may well be a friend or family member who is shocked and grieving the loss of a loved one.  While reading of these statutes may give the perception of a business arrangement with deadly consequences, things are usually more emotionally complicated.

Each fatal drug overdose in Texas which is investigated for possible felony murder charges in the future or for enhanced sentencing under the current statutory frameworks must be approached with zealous advocacy by the defense.  These cases can result in lengthy incarcerations, even for those who are very young and possibly still in school.

For more, read:

• Texas Drug Crimes: Criminal Defense Overview

• Carfentanil, Fentanyl Analogues, Heroin, China, the Police, and Felony Arrests
• Fentanyl and Heroin Here in Dallas: Dangers of Arrest and More
• Methamphetamine in Dallas and North Texas: Expect More Felony Meth Arrests
• Synthetic Drug Arrests in Texas: Police Focusing on K2 and Spice in Dallas.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”