Harm reduction activists crashed the Texas State Capitol in Austin on April 27, protesting lawmakers’ combination of inaction and regressive action around fentanyl and people who use it. A bill to decriminalize fentanyl test strips is currently stalled in a Senate committee. Meanwhile, lawmakers are moving on a different bill, to drastically increase penalties for selling fentanyl—including potentially charging sellers with murder in overdose cases.
House Bill 362, sponsored by Representative Tom Oliverson (R), would amend the state’s drug “paraphernalia” statute by removing fentanyl test strips—defined as “equipment that identifies the presence of fentanyl, alpha-methylfentanyl, or any other derivative of fentanyl.” By decriminalizing these simple tools, which can save lives by warning people if fentanyl is present in the drugs they plan to use, Texas would follow states like Kentucky, New Jersey, Ohio and Pennsylvania.
On April 11, HB 362 passed the House—which, like the Senate, is Republican-controlled—by an overwhelming, bipartisan vote of 143-2. The Senate then received the bill and sent it to the Criminal Justice committee—but to date, it hasn’t moved any further. In recent months, two similar bills (SB 207 and SB 868) have also been filed in the Senate; these have also stalled in committee.
A person could be charged with murder, manslaughter or criminally negligent homicide if they manufacture or deliver fentanyl or related substances, and someone dies.
In contrast, Senators are moving with House Bill 6: The Senate version, SB 645, already passed out of committee by unanimous vote. This would drastically increase criminal penalties related to fentanyl and its analogs. It amends the state’s “criminal homicide” statute to include fentanyl-related activity. A person could be charged with murder, manslaughter or criminally negligent homicide if they manufacture or deliver fentanyl or related substances, and someone “dies as a result of injecting, ingesting, inhaling, or introducing” the drug into their body.
HB 6 also adds a range of felony charges to existing statute that would produce extremely harsh sentences. For example, manufacturing, delivering or possessing with intent to deliver 200-400 grams of fentanyl substances would carry a first-degree felony charge, punishable by a prison sentence of life or 10-99 years, and a fine of up to $100,000. HB 6 also orders medical examiners to list “homicide” as the cause of death in fatal fentanyl-involved overdoses.
In 2021, according to CDC data, Texas suffered about 5,000 drug overdose deaths. According to the Texas health department, 1,612 deaths that year, roughly a third of the total, involved fentanyl substances. These deaths have been surging since 2018, when the fentanyl figure was just over 200.
The Senate’s response is to block the test-strips bill that could save lives—while seeking to ramp up criminalization in ways that will directly ruin lives and make it harder for people to access emergency aid and lifesaving resources.
Activists are refusing to tolerate this while members of their communities are dying. As local outlet KXAN reported, on April 27 protestors led by Texas Harm Reduction Alliance confronted staffers for Senator Joan Huffman (R), chanting “shame.”
Huffman sits on the Criminal Justice Committee, where the fentanyl test strip bill currently waits without action. And it was she who authored SB 645, the Senate version of House Bill 6.
The protesters then moved into the House gallery, chanting “no more drug war” in opposition to HB 6.
“We’ve heard from multiple sources that Joan Huffman is keeping the [fentanyl test strips] bill from getting a hearing [in committee],” Cate Graziani, executive director of Texas Harm Reduction Alliance, told Filter. “She has declined to comment.”
“We want there to be a public conversation about the dire need for fentanyl testing strips during this overdose crisis.”
“I’ve been in touch with her staff for many months trying to gain some insight and offer data and resources that might change her mind,” Graziani continued, “but the information we’re getting from her staff is she doesn’t have an opinion on the bill and wouldn’t until it was given a hearing.”
Huffman only has one vote on the seven-member committee, and advocates have also tried to pressure the chair to set a hearing, with or without Huffman’s support.
“We’ve asked [Chair John Whitmire (D)] if he’d be willing to do that,” Graziani said, “and he’s said on record the bill doesn’t have the votes and that’s why it hasn’t been given a hearing yet. We’d like him to set the bill anyway; we want there to be a public conversation about the dire need for fentanyl testing strips during this overdose crisis.”
Governor Greg Abbott (R) has voiced his support for decriminalizing fentanyl test strips. But he also supports the increased criminalization of fentanyl sellers championed by HB 6 and Huffman’s Senate equivalent.
“This is not a fentanyl overdose,” he said in March 2022. “This is poisoning by fentanyl, which we want to make a murder crime in the state of Texas.”
“Drug-induced homicide bills increase deaths and risks associated with drug use, because people are less likely to call 911.”
Graziani is clear that this would do nothing to protect people who use drugs and their loved ones.
“Not only do we know drug-induced homicide bills increase deaths and risks associated with drug use, because people are less likely to call 911 during an overdose if you’ve got a potential murder charge hanging over you,” she said, but “oftentimes the person supplying the drug is a friend or family member—they would be going after somebody else they care for and charging them with murder.”
HB 6 makes no distinction based on whether or not substances are sold to someone as containing fentanyl, Graziani noted.
“You’ve got folks who are choosing to use fentanyl,” she said. “I haven’t heard any discussion for what happens if somebody dies from a fentanyl-related overdose but it was their drug of choice. Are we still charging folks with homicide?”
“As long as we have an illicit drug supply,” she added, referencing the Iron Law of Prohibition, “we’re going to see things like fentanyl—strong, potent and cheap is what the drug market is going to do.”
Drug-induced homicide laws and prosecutions have spread around the country, including, for example, in Arizona, California, North Carolina and Pennsylvania. And while many politicians and public officials have been quick to pursue enhanced punishments for people who sell and use drugs, they’ve been much slower to legalize, expand and fund harm reduction.
“We’re going to continue to build people power.”
In Texas—the nation’s second-largest state by population and the largest by land area in the contiguous United States—even authorized syringe service programs are rare, with no state-run programs, and lawmakers have failed to support wider access. Sterile syringes are still classed as “paraphernalia.”
Despite the immediate urgency of the situation, Graziani tacitly acknowledged that progress is likely to be a longer game in the context of the current legislature.
“We’re going to continue to build people power,” she said, “so hopefully next session we can repeal any drug-induced homicide law [and] legalize harm reduction programs—as well as fentanyl test strips, if we don’t get that this session.”
Photograph of Texas State Capitol by Wally Gobetz via Flickr/Creative Commons 2.0
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