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Under Chapter 482.002 of the Texas Health and Safety Code, a person commits the offense of “unlawful delivery or manufacture with intent to deliver” a simulated controlled substance if he or she:
(1) expressly represents the substance to be a controlled substance;
(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance; or
(3) states to the person receiving or intended to receive the simulated controlled substance that the person may successfully represent the substance to be a controlled substance to a third party.
Tarrant County officials recently announced the county’s largest-ever seizure of fentanyl when more than 2,000 grams were found in a residence. The sheriff’s office claimed it was enough fentanyl to cause more than a million fatal doses.
Fentanyl is a synthetic opioid often found disguised as something less powerful in counterfeit pills. Unsuspecting buyers, including school-aged children, are accidentally overdosing on spiked pills that look like brand-name drugs such as Oxycontin, Percocet, and Vicodin. Mass-produced fake prescription pills are often falsely marketed as the real deal and sold on social media platforms by criminal drug networks.
Selling fake drugs in Texas is illegal, regardless of whether it’s a counterfeit prescription drug or baking flour packed to look like cocaine. And prosecutors aren’t taking these cases lightly.
If you have been arrested or under investigation for an alleged simulated substance or counterfeit drug offense, you should retain legal counsel as soon as possible. The criminal defense attorneys at Varghese Summersett have vast experience handling drug cases.
The Texas Health and Safety Code defines a simulated controlled substance as any substance “purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be.”
State law makes it a criminal offense to possess, manufacture or deliver a counterfeit substance or any device that can be used to manufacture counterfeit substances.
A counterfeit drug in Texas includes the drug, the container, or labeling of a drug that without authorization, resembles the trademark, brand name, or identifying logo of a “drug manufacturer, processor, packer or distributor” other than the actual company that manufactured, processed, packed, or distributed the drug,” and falsely purports or represents to be the real product or to have been packed or distributed by the actual manufacturer, processor, packer, or distributor.
Texas courts typically consider three main factors when evaluating whether someone represented a simulated controlled substance to be a legitimate controlled substance in a way that could lead a reasonable person to believe the substance was, in fact, a controlled substance.
Under Texas law, the court may consider all relevant factors in the case, including:
Texas law requires proof that an offer to sell a simulated controlled substance is “corroborated by a person other than the offeree or by evidence other than a statement of the offeree.”
No. Prosecutors do not need to prove anything regarding the nature of the actual substance involved in a case involving the sale of a simulated controlled substance.
The state only needs to prove that what was offered to the buyer was represented as a controlled substance. This is an important distinction because the description of the offense, such as the delivery of heroin by offering to sell it, incorrectly suggests prosecutors must prove the actual substance was indeed heroin. It doesn’t.
Selling fake drugs in Texas is a state jail felony punishable by 6 months to 2 years in a state jail facility and a maximum $10,000 fine.
A Texas resident can also be charged with a Class A misdemeanor fraud offense if they knowingly or intentionally make, distribute or possess any tool or device used to reproduce an actual or simulated trademark, trade name, or other identifying mark to represent a controlled substance.
Under Texas Health and Safety Code, the receipt of a prescription drug that is adulterated, misbranded, stolen, obtained by fraud or deceit, counterfeit, or suspected of being fake, and the delivery or proffered delivery of such a drug for payment or otherwise is also a Class A misdemeanor offense.
Additional Class A misdemeanors include any act that causes a drug to be counterfeit, the sale or dispensing, or the holding for sale or dispensing of a counterfeit drug.
In Texas, it’s possible to also be charged by state or federal prosecutors for selling fake drugs in Texas. Below are examples of defendants who were prosecuted for selling fake drugs. Some of the cases were prosecuted federally. This article describes the law and penalties in state court.
It is essential for anyone who has been arrested on charges of possessing or selling fake or counterfeit drugs in Tarrant County to seek legal help from an experienced defense attorney. Varghese Summersett has decades of experience defending drug cases and a proven record of exceptional results. Call our defense firm for a free consultation at 817-203-2220.