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Fentanyl Murder in Texas | Penal Code 19.02(b)(4)

What is Fentanyl Murder?

Fentanyl murder is defined in Texas Penal Code 19.02(b)4 and refers to the criminal charge arising out of the delivery or manufacturing of fentanyl that results in a death. Fentanyl is a synthetic opioid that is fatal even in small doses.

Why Did the Fentanyl Murder Statute Become Law?

The rise of fentanyl-related deaths has been alarming, with the opioid crisis taking a significant toll on communities across the United States, including Texas. Fentanyl is up to 100 times more potent than morphine, and even a small dose can be lethal.

House Bill 6 (HB6) was introduced to address this crisis, and it became law on September 1, 2023. HB6 effectively reclassified fentanyl overdoses as “poisonings” and established the new offense of fentanyl murder.

This legislation aims to curb the growing number of fentanyl-related deaths by holding suppliers and distributors criminally accountable. Yet, as discussed in this article, that worthy goal has given law enforcement a brush that is sometimes used too broadly.

Fentanyl in Texas

Any death from fentanyl use is one death too many. One of the things that HB6 did was implement better record-keeping. Prior to HB6, a fentanyl death would likely be categorized with other drug deaths as a drug overdose. The CDC reported that 5,489 people died in Texas from drug overdoses in 2022.

The newly enacted law in Texas requires medical examiners to specifically record fentanyl deaths, rather than classify them as general drug overdoses. As Texas Governor Greg Abbott has pointed out,  more than 2,000 people died from fentanyl in Texas in 2022, equating to over five deaths per day. He stressed that fentanyl is the leading cause of death for Americans aged 18-45.

According to the Texas Department of State Health Services, the number of fentanyl-related deaths has been on a steep rise. Data indicates that from 2019 to 2021, the number of fentanyl-related deaths in Texas increased by over 400%, highlighting the severity of the crisis.

Fentanyl Deaths in Texas

The Fentanyl Murder Statute – Penal Code 19.02(b)(4)

The fentanyl murder statute is an addition to the murder statute and provides that the offense of murder includes:

knowingly manufactures or delivers a controlled substance included in Penalty Group 1-B under Section 481.1022, Health and Safety Code, in violation of Section 481.1123, Health and Safety Code, and an individual dies as a result of injecting, ingesting, inhaling, or introducing into the individual’s body any amount of the controlled substance manufactured or delivered by the actor, regardless of whether the controlled substance was used by itself or with another substance, including a drug, adulterant, or dilutant.

The Intent Requirement of the Fentanyl Murder Statute

Notice that the intent requirement “knowingly” applies to the manufacture or delivery of fentanyl. It does not apply to the death. In other words, the law does not require that a person intended to kill another or even knew that a death would occur. At a dealer or manufacturer level, that makes sense. The dealer and the manufacturer know what they are dealing is deadly. As we will discuss further in this article, it becomes less clear when this law applies to someone who is neither a manufacturer nor a dealer.

Punishment for Fentanyl Murder

Fentanyl murder is a first-degree felony punishable by 5-99 years or life in prison and up to a $10,000 fine.

First Degree Felony in Texas
First Degree Felony in Texas

A Criticism of the Fentanyl Murder Statute

It is absolutely true that one pill can kill and that we should take fentanyl seriously. It is also true that manufacturers and dealers of fentanyl (or any drug containing or laced with fentanyl) should be held criminally responsible for the deaths they caused.

But fentanyl manufacturers and dealers are not the only people to whom this law applies. The new law doesn’t target just manufacturers and dealers. It targets anyone who manufactures or delivers fentanyl.

Colloquially, when we say dealer, we think about someone who is profiting in some way from the delivery of drugs.

When we use the word “delivery” in criminal law in Texas, as the fentanyl murder statute does here, the law does not distinguish a drug dealer from a person who uses the drug and shares it with a fellow user or addict.

The Health and Safety Code definition is as follows:

“Deliver” means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.

As a result, law enforcement has been going after the seemingly low-hanging fruit of people who share drugs. It’s usually easy to determine who was doing drugs with someone who overdosed. In many instances, that’s the person who calls the police. Far too often, what we see are murder charges filed against these individuals.

As a practical matter, as a defense attorney, the first thing I am looking at is the mental state requirement. Oftentimes, the individual who overdosed on fentanyl believed they had purchased a prescription drug. Fentanyl can be pressed to look like anything – from a multivitamin to any other known narcotic.

The jury’s perspective on drug dealers supplying fentanyl versus drug addicts whose friends overdose during their joint drug use remains uncertain. Generally, jurors are imposing harsh sentences on fentanyl dealers and manufacturers. However, it is yet to be seen if juries will adopt the same stance toward two individuals who used drugs together, neither of whom sold to others when one dies after they share fentanyl.

Recent Fentanyl Murder Defense Victory

fentanyl murder victory
Varghese Summersett recently defended an individual charged in the death of a Tarrant County judge based on the new fentanyl murder statute. The grand jury ultimately no-billed the charge against our client. Varghese Summersett attorney Tiffany Burks, said the following:

“We are grateful to the grand jury for their careful review of this case, which led to the decision not to indict my client on a fentanyl murder charge. Any drug overdose resulting in death is a tragedy. We continue to extend our deepest condolences to the friends and family mourning the loss of [the] former [j]udge[].”

Facing a Fentanyl Murder Charge? Contact Us.

If you or a loved one is facing a fentanyl murder charge in Texas, it’s important to contact an experienced criminal defense attorney as soon as possible. Even though the law is new, our legal team has already handled several fentanyl murder cases and has vast experience handling drug charges. We understand the complexity and emotional devastation of these cases and will work tirelessly to defend your rights and protect your future. Call 817-203-2220.
Tough cases call for the toughest lawyers.

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