Drug Homicide In

Texas

In an effort to combat the rising tide of fatalities, many states have implemented Drug Homicide laws to hold drug dealers accountable for the deaths. Texas has enacted the following law.

 

By: Huffman, et al. S.B. No. 645
A BILL TO BE ENTITLED
AN ACT
relating to the designation of fentanyl poisoning for purposes of
the death certificate and to the criminal penalties for certain
controlled substance offenses; increasing a criminal penalty.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1.  Section 193.005, Health and Safety Code, is
amended by adding Subsection (e-1) to read as follows:
       (e-1)  The medical certification on a death certificate must
include the term “Fentanyl Poisoning” if:
             (1)  a toxicology examination reveals a controlled
substance listed in Penalty Group 1-B present in the body of the
decedent in an amount or concentration that is considered to be
lethal by generally accepted scientific standards; and
             (2)  the results of an autopsy performed on the
decedent are consistent with an opioid overdose as the cause of
death.
       SECTION 2.  Section 481.102, Health and Safety Code, is
amended to read as follows:
       Sec. 481.102.  PENALTY GROUP 1.  Penalty Group 1 consists
of:
             (1)  the following opiates, including their isomers,
esters, ethers, salts, and salts of isomers, esters, and ethers,
unless specifically excepted, if the existence of these isomers,
esters, ethers, and salts is possible within the specific chemical
designation:
                   [Alfentanil;]
                   Allylprodine;
                   Alphacetylmethadol;
                   Benzethidine;
                   Betaprodine;
                   Clonitazene;
                   Diampromide;
                   Diethylthiambutene;
                   Difenoxin not listed in Penalty Group 3 or 4;
                   Dimenoxadol;
                   Dimethylthiambutene;
                   Dioxaphetyl butyrate;
                   Dipipanone;
                   Ethylmethylthiambutene;
                   Etonitazene;
                   Etoxeridine;
                   Furethidine;
                   Hydroxypethidine;
                   Ketobemidone;
                   Levophenacylmorphan;
                   Meprodine;
                   Methadol;
                   Moramide;
                   Morpheridine;
                   Noracymethadol;
                   Norlevorphanol;
                   Normethadone;
                   Norpipanone;
                   Phenadoxone;
                   Phenampromide;
                   Phenomorphan;
                   Phenoperidine;
                   Piritramide;
                   Proheptazine;
                   Properidine;
                   Propiram;
                   [Sufentanil;]
                   Tilidine; and
                   Trimeperidine;
             (2)  the following opium derivatives, their salts,
isomers, and salts of isomers, unless specifically excepted, if the
existence of these salts, isomers, and salts of isomers is possible
within the specific chemical designation:
                   Acetorphine;
                   Acetyldihydrocodeine;
                   Benzylmorphine;
                   Codeine methylbromide;
                   Codeine-N-Oxide;
                   Cyprenorphine;
                   Desomorphine;
                   Dihydromorphine;
                   Drotebanol;
                   Etorphine, except hydrochloride salt;
                   Heroin;
                   Hydromorphinol;
                   Methyldesorphine;
                   Methyldihydromorphine;
                   Monoacetylmorphine;
                   Morphine methylbromide;
                   Morphine methylsulfonate;
                   Morphine-N-Oxide;
                   Myrophine;
                   Nicocodeine;
                   Nicomorphine;
                   Normorphine;
                   Pholcodine; and
                   Thebacon;
             (3)  the following substances, however produced,
except those narcotic drugs listed in another group:
                   (A)  Opium and opiate not listed in Penalty Group
3 or 4, and a salt, compound, derivative, or preparation of opium or
opiate, other than thebaine derived butorphanol, nalmefene and its
salts, naloxone and its salts, and naltrexone and its salts, but
including:
                         Codeine not listed in Penalty Group 3 or 4;
                         Dihydroetorphine;
                         Ethylmorphine not listed in Penalty Group 3
or 4;
                         Granulated opium;
                         Hydrocodone not listed in Penalty Group 3;
                         Hydromorphone;
                         Metopon;
                         Morphine not listed in Penalty Group 3;
                         Opium extracts;
                         Opium fluid extracts;
                         Oripavine;
                         Oxycodone;
                         Oxymorphone;
                         Powdered opium;
                         Raw opium;
                         Thebaine; and
                         Tincture of opium;
                   (B)  a salt, compound, isomer, derivative, or
preparation of a substance that is chemically equivalent or
identical to a substance described by Paragraph (A), other than the
isoquinoline alkaloids of opium;
                   (C)  Opium poppy and poppy straw;
                   (D)  Cocaine, including:
                         (i)  its salts, its optical, position, and
geometric isomers, and the salts of those isomers;
                         (ii)  coca leaves and a salt, compound,
derivative, or preparation of coca leaves; and
                         (iii)  a salt, compound, derivative, or
preparation of a salt, compound, or derivative that is chemically
equivalent or identical to a substance described by Subparagraph
(i) or (ii), other than decocainized coca leaves or extractions of
coca leaves that do not contain cocaine or ecgonine; and
                   (E)  concentrate of poppy straw, meaning the crude
extract of poppy straw in liquid, solid, or powder form that
contains the phenanthrine alkaloids of the opium poppy;
             (4)  the following opiates, including their isomers,
esters, ethers, salts, and salts of isomers, if the existence of
these isomers, esters, ethers, and salts is possible within the
specific chemical designation:
                   [Acetyl-alpha-methylfentanyl (N-[1-(1-methyl-2-
phenethyl)-4-piperidinyl]-N-phenylacetamide);
                   [Alpha-methylthiofentanyl (N-[1-methyl-2-(2-
thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide);]
                   Alphaprodine;
                   Anileridine;
                   [Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-
phenethyl)-4-piperidinyl] -N-phenylpropanamide);
                   [Beta-hydroxy-3-methylfentanyl;]
                   Bezitramide;
                   [Carfentanil;]
                   Dihydrocodeine not listed in Penalty Group 3 or 4;
                   Diphenoxylate not listed in Penalty Group 3 or 4;
                   Isomethadone;
                   Levomethorphan;
                   Levorphanol;
                   Metazocine;
                   Methadone;
                   Methadone-Intermediate, 4-cyano-2-dimethylamino-
4, 4-diphenyl butane;
                   [3-methylfentanyl(N-[3-methyl-1-(2-phenylethyl)-
4-piperidyl]-N-phenylpropanamide);
                   [3-methylthiofentanyl(N-[3-methyl-1-(2-thienyl)
ethyl-4-piperidinyl]-N-phenylpropanamide);]
                   Moramide-Intermediate, 2-methyl-3-morpholino-1,
1-diphenyl-propane-carboxylic acid;
                   [Para-fluorofentanyl(N-(4-fluorophenyl)-N-1-(2-
phenylethyl)-4-piperidinylpropanamide);]
                   PEPAP (1-(2-phenethyl)-4-phenyl-4-
acetoxypiperidine);
                   Pethidine (Meperidine);
                   Pethidine-Intermediate-A, 4-cyano-1-methyl-4-
phenylpiperidine;
                   Pethidine-Intermediate-B, ethyl-4-
phenylpiperidine-4 carboxylate;
                   Pethidine-Intermediate-C, 1-methyl-4-
phenylpiperidine-4-carboxylic acid;
                   Phenazocine;
                   Piminodine;
                   Racemethorphan; and
                   Racemorphan;
                   [Remifentanil; and
                   [Thiofentanyl(N-phenyl-N-[1-(2-thienyl)ethyl-4-
piperidinyl]-propanamide);]
             (5)  Flunitrazepam (trade or other name: Rohypnol);
             (6)  Methamphetamine, including its salts, optical
isomers, and salts of optical isomers;
             (7)  Phenylacetone and methylamine, if possessed
together with intent to manufacture methamphetamine;
             (8)  Phencyclidine, including its salts;
             (9)  Gamma hydroxybutyric acid (some trade or other
names: gamma hydroxybutyrate, GHB), including its salts;
             (10)  Ketamine;
             (11)  Phenazepam;
             (12)  U-47700;
             (13)  AH-7921;
             (14)  ADB-FUBINACA;
             (15)  AMB-FUBINACA; and
             (16)  MDMB-CHMICA.
       SECTION 3.  Section 481.1022, Health and Safety Code, is
amended to read as follows:
       Sec. 481.1022.  PENALTY GROUP 1-B.  Penalty Group 1-B
consists of the following opiates, including their isomers, esters,
ethers, salts, and salts of isomers, esters, and ethers, if the
existence of these isomers, esters, ethers, and salts is possible
within the specific chemical designation:
                   Acetyl-alpha-methylfentanyl (N-[1-(1-methyl-2-
phenethyl)-4-piperidinyl]-N-phenylacetamide);
                   Alfentanil;
                   Alpha-methylthiofentanyl (N-[1-methyl-2-(2-
thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide);
                   Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-
phenethyl)-4-piperidinyl] -N-phenylpropanamide);
                   Beta-hydroxy-3-methylfentanyl;
                   Carfentanil;
                   Fentanyl [fentanyl], alpha-methylfentanyl, and
any other derivative of fentanyl;
                   3-methylfentanyl(N-[3-methyl-1-(2-phenylethyl)-
4-piperidyl]-N-phenylpropanamide);
                   3-methylthiofentanyl(N-[3-methyl-1-(2-thienyl)
ethyl-4-piperidinyl]-N-phenylpropanamide);
                   Para-fluorofentanyl(N-(4-fluorophenyl)-N-1-(2-
phenylethyl)-4-piperidinylpropanamide);
                   Remifentanil;
                   Sufentanil; and
                   Thiofentanyl(N-phenyl-N-[1-(2-thienyl)ethyl-4-
piperidinyl]-propanamide).
       SECTION 4.  Sections 481.112(e) and (f), Health and Safety
Code, are amended to read as follows:
       (e)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than 10 years, and a fine not to exceed $100,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 200 grams or
more but less than 400 grams.
       (f)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than 15 years, and a fine not to exceed $250,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 400 grams or
more.
       SECTION 5.  Section 481.1121(b), Health and Safety Code, is
amended to read as follows:
       (b)  An offense under this section is:
             (1)  a state jail felony if the number of abuse units of
the controlled substance is fewer than 20;
             (2)  a felony of the second degree if the number of
abuse units of the controlled substance is 20 or more but fewer than
80;
             (3)  a felony of the first degree if the number of abuse
units of the controlled substance is 80 or more but fewer than
4,000; and
             (4)  a felony of the first degree punishable by
imprisonment in the Texas Department of Criminal Justice for life
or for a term of not more than 99 years or less than 15 years and a
fine not to exceed $250,000, if the number of abuse units of the
controlled substance is 4,000 or more.
       SECTION 6.  Sections 481.1123(b), (d), (e), and (f), Health
and Safety Code, are amended to read as follows:
       (b)  An offense under Subsection (a) is a [state jail] felony
of the third degree if the amount of the controlled substance to
which the offense applies is, by aggregate weight, including
adulterants or dilutants, less than one gram.
       (d)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than 10 years, and a fine not to exceed $20,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, four grams or
more but less than 200 grams.
       (e)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than 15 years, and a fine not to exceed $200,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 200 grams or
more but less than 400 grams.
       (f)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than 20 years, and a fine not to exceed $500,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 400 grams or
more.
       SECTION 7.  Section 481.113(e), Health and Safety Code, is
amended to read as follows:
       (e)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than 10 years, and a fine not to exceed $100,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 400 grams or
more.
       SECTION 8.  Section 481.114(e), Health and Safety Code, is
amended to read as follows:
       (e)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than 10 years, and a fine not to exceed $100,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including any adulterants or dilutants, 400 grams
or more.
       SECTION 9.  Section 481.115(f), Health and Safety Code, is
amended to read as follows:
       (f)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than 10 years, and a fine not to exceed $100,000, if the amount
of the controlled substance possessed is, by aggregate weight,
including adulterants or dilutants, 400 grams or more.
       SECTION 10.  Section 481.1151(b), Health and Safety Code, is
amended to read as follows:
       (b)  An offense under this section is:
             (1)  a state jail felony if the number of abuse units of
the controlled substance is fewer than 20;
             (2)  a felony of the third degree if the number of abuse
units of the controlled substance is 20 or more but fewer than 80;
             (3)  a felony of the second degree if the number of
abuse units of the controlled substance is 80 or more but fewer than
4,000;
             (4)  a felony of the first degree if the number of abuse
units of the controlled substance is 4,000 or more but fewer than
8,000; and
             (5)  a felony of the first degree punishable by
imprisonment in the Texas Department of Criminal Justice for life
or for a term of not more than 99 years or less than 15 years and a
fine not to exceed $250,000, if the number of abuse units of the
controlled substance is 8,000 or more.
       SECTION 11.  Section 481.116(e), Health and Safety Code, is
amended to read as follows:
       (e)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than five years, and a fine not to exceed $50,000, if the
amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, 400 grams or more.
       SECTION 12.  Section 481.1161(b), Health and Safety Code, is
amended to read as follows:
       (b)  An offense under this section is:
             (1)  a Class B misdemeanor if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, two ounces or less;
             (2)  a Class A misdemeanor if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, four ounces or less but more than two
ounces;
             (3)  a state jail felony if the amount of the controlled
substance possessed is, by aggregate weight, including adulterants
or dilutants, five pounds or less but more than four ounces;
             (4)  a felony of the third degree if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 50 pounds or less but more than 5 pounds;
             (5)  a felony of the second degree if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 2,000 pounds or less but more than 50
pounds; and
             (6)  a felony of the first degree punishable by
imprisonment in the Texas Department of Criminal Justice for life
or for a term of not more than 99 years or less than 5 years, and a
fine not to exceed $50,000, if the amount of the controlled
substance possessed is, by aggregate weight, including adulterants
or dilutants, more than 2,000 pounds.
       SECTION 13.  Section 481.117(e), Health and Safety Code, is
amended to read as follows:
       (e)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than five years, and a fine not to exceed $50,000, if the
amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, 400 grams or more.
       SECTION 14.  Section 481.118(e), Health and Safety Code, is
amended to read as follows:
       (e)  An offense under Subsection (a) is a felony of the first
degree punishable by imprisonment in the Texas Department of
Criminal Justice for life or for a term of not more than 99 years or
less than five years, and a fine not to exceed $50,000, if the
amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, 400 grams or more.
       SECTION 15.  Section 481.120(b), Health and Safety Code, is
amended to read as follows:
       (b)  An offense under Subsection (a) is:
             (1)  a Class B misdemeanor if the amount of marihuana
delivered is one-fourth ounce or less and the person committing the
offense does not receive remuneration for the marihuana;
             (2)  a Class A misdemeanor if the amount of marihuana
delivered is one-fourth ounce or less and the person committing the
offense receives remuneration for the marihuana;
             (3)  a state jail felony if the amount of marihuana
delivered is five pounds or less but more than one-fourth ounce;
             (4)  a felony of the second degree if the amount of
marihuana delivered is 50 pounds or less but more than five pounds;
             (5)  a felony of the first degree if the amount of
marihuana delivered is 2,000 pounds or less but more than 50 pounds;
and
             (6)  a felony of the first degree punishable by
imprisonment in the Texas Department of Criminal Justice for life
or for a term of not more than 99 years or less than 10 years, and a
fine not to exceed $100,000, if the amount of marihuana delivered is
more than 2,000 pounds.
       SECTION 16.  Section 481.121(b), Health and Safety Code, is
amended to read as follows:
       (b)  An offense under Subsection (a) is:
             (1)  a Class B misdemeanor if the amount of marihuana
possessed is two ounces or less;
             (2)  a Class A misdemeanor if the amount of marihuana
possessed is four ounces or less but more than two ounces;
             (3)  a state jail felony if the amount of marihuana
possessed is five pounds or less but more than four ounces;
             (4)  a felony of the third degree if the amount of
marihuana possessed is 50 pounds or less but more than 5 pounds;
             (5)  a felony of the second degree if the amount of
marihuana possessed is 2,000 pounds or less but more than 50 pounds;
and
             (6)  a felony of the first degree punishable by
imprisonment in the Texas Department of Criminal Justice for life
or for a term of not more than 99 years or less than 5 years, and a
fine not to exceed $50,000, if the amount of marihuana possessed is
more than 2,000 pounds.
       SECTION 17.  Section 481.126(a), Health and Safety Code, is
amended to read as follows:
       (a)  A person commits an offense if the person:
             (1)  barters property or expends funds the person knows
are derived from the commission of a first degree felony [an]
offense under this chapter punishable by imprisonment in the Texas
Department of Criminal Justice for life;
             (2)  barters property or expends funds the person knows
are derived from the commission of an offense under Section
481.121(a) that is punishable under Section 481.121(b)(5);
             (3)  barters property or finances or invests funds the
person knows or believes are intended to further the commission of
an offense for which the punishment is described by Subdivision
(1); or
             (4)  barters property or finances or invests funds the
person knows or believes are intended to further the commission of
an offense under Section 481.121(a) that is punishable under
Section 481.121(b)(5).
       SECTION 18.  Section 481.134(c), Health and Safety Code, as
amended by Chapters 584 (S.B. 768) and 807 (H.B. 1540), Acts of the
87th Legislature, Regular Session, 2021, is reenacted and amended
to read as follows:
       (c)  The minimum term of confinement or imprisonment for an
offense otherwise punishable under Section 481.112(c), (d), (e), or
(f), 481.1121(b)(2), (3), or (4), 481.1123(b), (c) [481.1123(c)],
(d), (e), or (f), 481.113(c), (d), or (e), 481.114(c), (d), or (e),
481.115(c)-(f), 481.1151(b)(2), (3), (4), or (5), 481.116(c), (d),
or (e), 481.1161(b)(4), (5), or (6), 481.117(c), (d), or (e),
481.118(c), (d), or (e), 481.120(b)(4), (5), or (6), or
481.121(b)(4), (5), or (6) is increased by five years and the
maximum fine for the offense is doubled if it is shown on the trial
of the offense that the offense was committed:
             (1)  in, on, or within 1,000 feet of the premises of a
school, the premises of a public or private youth center, or a
playground;
             (2)  on a school bus; or
             (3)  by any unauthorized person 18 years of age or
older, in, on, or within 1,000 feet of premises owned, rented, or
leased by a general residential operation operating as a
residential treatment center.
       SECTION 19.  Section 481.141, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
       (d)  Punishment may not be increased under this section if
the defendant is also prosecuted under Section 19.02(b)(4), Penal
Code, for conduct occurring during the same criminal episode.
       SECTION 20.  Section 19.02, Penal Code, is amended by
amending Subsection (b) and adding Subsection (e) to read as
follows:
       (b)  A person commits an offense if the person [he]:
             (1)  intentionally or knowingly causes the death of an
individual;
             (2)  intends to cause serious bodily injury and commits
an act clearly dangerous to human life that causes the death of an
individual; [or]
             (3)  commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the commission
or attempt, the person [he] commits or attempts to commit an act
clearly dangerous to human life that causes the death of an
individual; or
             (4)  knowingly manufactures or delivers a controlled
substance listed 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.
       (e)  It is a defense to prosecution under Subsection (b)(4)
that the actor’s conduct in manufacturing or delivering the
controlled substance was authorized under Chapter 481, Health and
Safety Code, or other state or federal law.
       SECTION 21.  Section 71.02(a), Penal Code, is amended to
read as follows:
       (a)  A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
             (1)  murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, continuous sexual abuse of young child or disabled
individual, solicitation of a minor, forgery, deadly conduct,
assault punishable as a Class A misdemeanor, burglary of a motor
vehicle, or unauthorized use of a motor vehicle;
             (2)  any gambling offense punishable as a Class A
misdemeanor;
             (3)  promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
             (4)  unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
             (5)  unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
             (5-a) causing the unlawful delivery, dispensation, or
distribution of a controlled substance or dangerous drug in
violation of Subtitle B, Title 3, Occupations Code;
             (5-b) unlawful possession with intent to deliver a
controlled substance listed in Penalty Group 1-B under Section
481.1022, Health and Safety Code;
             (6)  any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
             (7)  any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
             (8)  any felony offense under Chapter 32;
             (9)  any offense under Chapter 36;
             (10)  any offense under Chapter 34, 35, or 35A;
             (11)  any offense under Section 37.11(a);
             (12)  any offense under Chapter 20A;
             (13)  any offense under Section 37.10;
             (14)  any offense under Section 38.06, 38.07, 38.09, or
38.11;
             (15)  any offense under Section 42.10;
             (16)  any offense under Section 46.06(a)(1) or 46.14;
             (17)  any offense under Section 20.05 or 20.06;
             (18)  any offense under Section 16.02; or
             (19)  any offense classified as a felony under the Tax
Code.
       SECTION 22.  The change in law made by this Act to Section
193.005, Health and Safety Code, applies only to a death that occurs
on or after the effective date of this Act, or a death that occurs
before that date but is discovered on or after the effective date of
this Act.
       SECTION 23.  The changes in law made by this Act to Chapter
481, Health and Safety Code, and Sections 19.02 and 71.02, Penal
Code, apply only to an offense committed on or after the effective
date of this Act. An offense committed before the effective date of
this Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this section, an offense was committed
before the effective date of this Act if any element of the offense
occurred before that date.
       SECTION 24.  To the extent of any conflict, this Act prevails
over another Act of the 88th Legislature, Regular Session, 2023,
relating to nonsubstantive additions to and corrections in enacted
codes.
       SECTION 25.  This Act takes effect September 1, 2023.

 

What You Can Do

Let your elected officials know that enough is enough.

Together we can and will bring these perpetrators to justice.

Read The Brief

For many years, most prosecutors charged only those drug-related deaths involving rival drug gang fights as being homicides. But the focus has now broadened to also examine overdose deaths as prosecutable homicides against those who sold and distributed the drugs causing the overdose. It is important to emphasize that not every death because of a drug overdose is a criminal matter. Some are suicides, and some are simply accidents. But some deaths, legally and ethically, may rise to the level of criminal homicide. These homicides may not be easily discovered, investigated, prosecuted or proven, but they still deserve attention. For that to happen, a paradigm shift in thinking by law enforcement officers and prosecutors is required, away from attitudes focusing on accident to thinking and treating overdoses as homicides.

In order to make that shift, it is important to understand and appreciate the variety of approaches available within existing statutory schemes and case law. While a handful of states have no statutory or case law basis for treating overdose deaths as homicides,[8] the majority already had or have adopted a wide variety of legal theories useful in addressing these cases. Two basic options highlight the differing approaches: use of the existing statutory structure, often referred to as the felony murder rule, and creation of a specific offense of death resulting from the distribution of controlled substances.

What might be characterized as the traditional approach to the matter may be found in those states that have included overdose deaths within their murder statute. Arizona and Oklahoma, among others, list drug offenses as crimes which, when a death occurs during the commission of that offense, is treated as murder.[9] A significant number of states enumerate drug offenses within their murder statutes and, while the laws have been on the books for a considerable time, they are only now being considered for use in overdose cases.

A felony murder statute allows the prosecutor to charge an offense which requires no specific mental state other than that required for the enumerated offense;[10] the law may specifically state that no proof of intent to cause the death is required.[11] In general, proof of the underlying offense and the cause of death will be sufficient to obtain a conviction under this approach. Additional elements, such as proof that the underlying felony must be inherently dangerous to human life,[12] or proof of recklessness in both causation and appreciation or awareness of the risk,[13] may be required in some states.

Where these various felony murder states differ is in their classifications for punishment for the offense. The possibilities range from first degree or capital murder,[14] second degree murder,[15] manslaughter,[16] involuntary manslaughter,[17] and even negligent homicide.[18] They may also limit the application of the statute. For example, Florida’s statute applies only to distribution by an adult,[19] while Colorado’s statute applies only to distribution to a minor on school grounds.[20]

Those states punishing drug dealing resulting in death as a specific offense have adopted a variety of approaches as well. These “drug-induced homicide” statutes are crafted as stand-alone felonies rather than being included in existing murder or other statutes. Again, as with the felony murder alternatives, the treatment of punishment and application may vary. New Hampshire and New Jersey both define the offense as being one of strict liability.[21] Both statutes, mirroring one another, apply to methamphetamine, lysergic acid, diethylamide phencyclidine (PCP), or any other Schedule I and II controlled substances and provides that any person who manufactures, sells, or dispenses the substances in violation of law is strictly liable for a death resulting from their use.

The varieties of these statutes are numerous and diverse. Pennsylvania’s statute applies to any controlled substance and provides that the delivery must be done intentionally.[22] Delaware has imposed a minimum weight threshold to its statute, requiring, for example, that there be delivery of at least one gram or more of heroin.[23] Michigan’s law covers Schedule I and II controlled substances, but specifically excludes marijuana.[24] A recent amendment to the Illinois law allows for prosecution for a death within the state caused by a drug that was delivered outside the state in violation of the law of that other jurisdiction.[25]

For those states, such as California, which have no felony murder or drug-induced homicide statute that would apply to overdose situations, prosecutors are left to cobble together a criminal liability theory using a second degree murder or manslaughter charge with a negligence or reckless element. California might make use of its involuntary manslaughter statute.[26] New York might make use of its statutes regarding criminally negligent homicide (criminal negligence standard) or manslaughter in the second degree (reckless standard).[27] A bill to amend Ohio’s involuntary manslaughter statute to include causing or contributing to the death of a person as a result of the sale, delivery, or administration of a controlled substance and making it a strict liability offense was introduced but has languished since 2016.[28]

Regardless of the criminal statute scheme, one element is the lynchpin to the crime: causation. Whether a felony murder, strict liability, or reckless or negligent theory, causation raises perhaps the most difficult issues in proving these cases.

Overdose cases have a number of matters that may cause the prosecutor some concern, from lack of sympathy for the victim to proving who provided the drugs. On top of these, many of the victims in overdose death cases are polysubstance abusers, injecting or ingesting a wide variety of both legal and illegal substances. Further, because of their drug addictions, their overall general health may be compromised, making them susceptible to diseases and conditions which might impact the situation leading to their deaths. It becomes imperative for the prosecutor to understand what is needed to prove regarding causation.

States have enumerated a variety of different legal standards for causation of death; “direct result,” “caused by,” “proximately caused,” and “results from” being the more common. Also included are “recklessly causes” and “more likely than not.” Each standard has its own legal ramification. It is important to note, however, that the analysis of proximate causation in tort law is quite different from that analysis applied in criminal law. Mere negligence may suffice in a personal injury case, but not in a criminal matter where gross or wanton disregard is needed to show criminal negligence.

In those states making use of a result-oriented scheme, states may follow the reasoning set forth in the leading federal case on the issue, Burrage v United States.[29] Burrage was prosecuted under the provisions of 21 U. S. C. § 841(b) (1) (C) which provides for punishment in the event that “death or serious bodily injury result[ed] from the use of [the drug].” In Burrage, long-time drug user Banka died following an extended binge that included using heroin purchased from Burrage. At trial, medical experts testified that Bank might have died even if he had not taken the heroin Burrage provided. Denying a motion for judgment of acquittal, the trial court instructed the jury that the government only had to prove that heroin was a contributing cause of death. The U.S. Supreme Court looked at both actual and proximate cause, holding that, at least where the use of the drug distributed by Burrage was not an independently sufficient cause of the victim’s death, he could not be held liable unless such use is a “but-for” cause of death. Thus, under Burrage, a particular drug causing a contributory effect to death is not sufficient to create criminal liability.

This narrow approach to causation makes it especially important that the medical examiner and toxicologist both be consulted prior to initiating a prosecution. Beyond the issue of whether the death is an accident versus a homicide, the medical examiner and toxicologist must understand the legal requirements and what ultimately may be asked of them during testimony in homicide prosecutions such as these. The prosecutor must also understand the distinctions and potential nuances in the medical examiner’s stated cause of death.

Even under a felony murder scheme, often seen as a strict liability situation, causation may still be required. For example, the sole act of selling heroin to a purchaser, who, voluntarily and out of the presence and without the assistance of the seller, subsequently injected heroin and died as a result, may be insufficient to invoke the felony murder rule. In order to convict of felony-murder, it may be necessary in some jurisdictions to show that the conduct causing the death was done while in the commission of a felony or in furtherance of the design to commit the felony.[30] Thus, if the commission of the felony is completed upon the sale, a felony murder charge cannot stand. Nor may the result causation element be ignored even in the strict liability situations. These statutes may still contain a result oriented causation requirement.[31]

Thus, even when not specifically enumerated in the statute, causation remains an essential element. For example, where manufacturing or delivering a controlled substance is the underlying felony relied upon in a felony murder prosecution, the state might still be required to prove (1) the commission or attempt to commit the felony; (2) the defendant’s participation in such felony; and (3) the death of the victim as a result of injuries received during the course of the commission or attempt.[32] Furthermore, the cause of death might not necessarily be the sole cause of death.[33] And where the medical examiner has found that the ingestion of the drug was not the sole cause of death, the prosecutor will face an additional legal hurdle. Thus, in order to make the shift to treating overdose deaths as homicides, it is imperative that investigators and prosecutors find not only the correct legal scheme under which to proceed, but also be mindful of the causation element embedded in a statute or required by a jurisdiction’s case law.

Prosecuting overdose deaths as homicides will not be the silver bullet to the public health crisis this nation faces. However, it is one tool in the law enforcement arsenal which, if used appropriately, can assist locally in focusing on the drug dealers who take advantage of those who have become addicted to opioids.

Attend A Rally

A rally or candlelight vigil can raise awareness while honoring the lives of those we have lost.
Find a local event.

Contact Your CA Representatives

We can make a powerful impact by urging our State Representatives to support and advocate Drug Homicide Law. They care what their constituents have to say.
Find your representatives

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Understanding Drug Homicide Law

From the Attorney General's point of view.

Read the Brief

For many years, most prosecutors charged only those drug-related deaths involving rival drug gang fights as being homicides. But the focus has now broadened to also examine overdose deaths as prosecutable homicides against those who sold and distributed the drugs causing the overdose. It is important to emphasize that not every death because of a drug overdose is a criminal matter. Some are suicides, and some are simply accidents. But some deaths, legally and ethically, may rise to the level of criminal homicide. These homicides may not be easily discovered, investigated, prosecuted or proven, but they still deserve attention. For that to happen, a paradigm shift in thinking by law enforcement officers and prosecutors is required, away from attitudes focusing on accident to thinking and treating overdoses as homicides.

In order to make that shift, it is important to understand and appreciate the variety of approaches available within existing statutory schemes and case law. While a handful of states have no statutory or case law basis for treating overdose deaths as homicides,[8] the majority already had or have adopted a wide variety of legal theories useful in addressing these cases. Two basic options highlight the differing approaches: use of the existing statutory structure, often referred to as the felony murder rule, and creation of a specific offense of death resulting from the distribution of controlled substances.

What might be characterized as the traditional approach to the matter may be found in those states that have included overdose deaths within their murder statute. Arizona and Oklahoma, among others, list drug offenses as crimes which, when a death occurs during the commission of that offense, is treated as murder.[9] A significant number of states enumerate drug offenses within their murder statutes and, while the laws have been on the books for a considerable time, they are only now being considered for use in overdose cases.

A felony murder statute allows the prosecutor to charge an offense which requires no specific mental state other than that required for the enumerated offense;[10] the law may specifically state that no proof of intent to cause the death is required.[11] In general, proof of the underlying offense and the cause of death will be sufficient to obtain a conviction under this approach. Additional elements, such as proof that the underlying felony must be inherently dangerous to human life,[12] or proof of recklessness in both causation and appreciation or awareness of the risk,[13] may be required in some states.

Where these various felony murder states differ is in their classifications for punishment for the offense. The possibilities range from first degree or capital murder,[14] second degree murder,[15] manslaughter,[16] involuntary manslaughter,[17] and even negligent homicide.[18] They may also limit the application of the statute. For example, Florida’s statute applies only to distribution by an adult,[19] while Colorado’s statute applies only to distribution to a minor on school grounds.[20]

Those states punishing drug dealing resulting in death as a specific offense have adopted a variety of approaches as well. These “drug-induced homicide” statutes are crafted as stand-alone felonies rather than being included in existing murder or other statutes. Again, as with the felony murder alternatives, the treatment of punishment and application may vary. New Hampshire and New Jersey both define the offense as being one of strict liability.[21] Both statutes, mirroring one another, apply to methamphetamine, lysergic acid, diethylamide phencyclidine (PCP), or any other Schedule I and II controlled substances and provides that any person who manufactures, sells, or dispenses the substances in violation of law is strictly liable for a death resulting from their use.

The varieties of these statutes are numerous and diverse. Pennsylvania’s statute applies to any controlled substance and provides that the delivery must be done intentionally.[22] Delaware has imposed a minimum weight threshold to its statute, requiring, for example, that there be delivery of at least one gram or more of heroin.[23] Michigan’s law covers Schedule I and II controlled substances, but specifically excludes marijuana.[24] A recent amendment to the Illinois law allows for prosecution for a death within the state caused by a drug that was delivered outside the state in violation of the law of that other jurisdiction.[25]

For those states, such as California, which have no felony murder or drug-induced homicide statute that would apply to overdose situations, prosecutors are left to cobble together a criminal liability theory using a second degree murder or manslaughter charge with a negligence or reckless element. California might make use of its involuntary manslaughter statute.[26] New York might make use of its statutes regarding criminally negligent homicide (criminal negligence standard) or manslaughter in the second degree (reckless standard).[27] A bill to amend Ohio’s involuntary manslaughter statute to include causing or contributing to the death of a person as a result of the sale, delivery, or administration of a controlled substance and making it a strict liability offense was introduced but has languished since 2016.[28]

Regardless of the criminal statute scheme, one element is the lynchpin to the crime: causation. Whether a felony murder, strict liability, or reckless or negligent theory, causation raises perhaps the most difficult issues in proving these cases.

Overdose cases have a number of matters that may cause the prosecutor some concern, from lack of sympathy for the victim to proving who provided the drugs. On top of these, many of the victims in overdose death cases are polysubstance abusers, injecting or ingesting a wide variety of both legal and illegal substances. Further, because of their drug addictions, their overall general health may be compromised, making them susceptible to diseases and conditions which might impact the situation leading to their deaths. It becomes imperative for the prosecutor to understand what is needed to prove regarding causation.

States have enumerated a variety of different legal standards for causation of death; “direct result,” “caused by,” “proximately caused,” and “results from” being the more common. Also included are “recklessly causes” and “more likely than not.” Each standard has its own legal ramification. It is important to note, however, that the analysis of proximate causation in tort law is quite different from that analysis applied in criminal law. Mere negligence may suffice in a personal injury case, but not in a criminal matter where gross or wanton disregard is needed to show criminal negligence.

In those states making use of a result-oriented scheme, states may follow the reasoning set forth in the leading federal case on the issue, Burrage v United States.[29] Burrage was prosecuted under the provisions of 21 U. S. C. § 841(b) (1) (C) which provides for punishment in the event that “death or serious bodily injury result[ed] from the use of [the drug].” In Burrage, long-time drug user Banka died following an extended binge that included using heroin purchased from Burrage. At trial, medical experts testified that Bank might have died even if he had not taken the heroin Burrage provided. Denying a motion for judgment of acquittal, the trial court instructed the jury that the government only had to prove that heroin was a contributing cause of death. The U.S. Supreme Court looked at both actual and proximate cause, holding that, at least where the use of the drug distributed by Burrage was not an independently sufficient cause of the victim’s death, he could not be held liable unless such use is a “but-for” cause of death. Thus, under Burrage, a particular drug causing a contributory effect to death is not sufficient to create criminal liability.

This narrow approach to causation makes it especially important that the medical examiner and toxicologist both be consulted prior to initiating a prosecution. Beyond the issue of whether the death is an accident versus a homicide, the medical examiner and toxicologist must understand the legal requirements and what ultimately may be asked of them during testimony in homicide prosecutions such as these. The prosecutor must also understand the distinctions and potential nuances in the medical examiner’s stated cause of death.

Even under a felony murder scheme, often seen as a strict liability situation, causation may still be required. For example, the sole act of selling heroin to a purchaser, who, voluntarily and out of the presence and without the assistance of the seller, subsequently injected heroin and died as a result, may be insufficient to invoke the felony murder rule. In order to convict of felony-murder, it may be necessary in some jurisdictions to show that the conduct causing the death was done while in the commission of a felony or in furtherance of the design to commit the felony.[30] Thus, if the commission of the felony is completed upon the sale, a felony murder charge cannot stand. Nor may the result causation element be ignored even in the strict liability situations. These statutes may still contain a result oriented causation requirement.[31]

Thus, even when not specifically enumerated in the statute, causation remains an essential element. For example, where manufacturing or delivering a controlled substance is the underlying felony relied upon in a felony murder prosecution, the state might still be required to prove (1) the commission or attempt to commit the felony; (2) the defendant’s participation in such felony; and (3) the death of the victim as a result of injuries received during the course of the commission or attempt.[32] Furthermore, the cause of death might not necessarily be the sole cause of death.[33] And where the medical examiner has found that the ingestion of the drug was not the sole cause of death, the prosecutor will face an additional legal hurdle. Thus, in order to make the shift to treating overdose deaths as homicides, it is imperative that investigators and prosecutors find not only the correct legal scheme under which to proceed, but also be mindful of the causation element embedded in a statute or required by a jurisdiction’s case law.

Prosecuting overdose deaths as homicides will not be the silver bullet to the public health crisis this nation faces. However, it is one tool in the law enforcement arsenal which, if used appropriately, can assist locally in focusing on the drug dealers who take advantage of those who have become addicted to opioids.

 

Sources and Works Cited

[1] Ctrs. for Disease Control, Provisional Counts of Drug Overdose Deaths

[2] Illicit Drug Use, Illicit Drug Use Disorders, and Drug Overdose Deaths in Metropolitan and Nonmetropolitan Areas

[3] The First Count of Fentanyl Deaths in 2016: Up 540% in Three Years

[4] The Heroin Epidemic: Then and Now

[5] Heroin Use Rises Significantly Among Young Whites

[6] Why Fentanyl Is So Much More Deadly than Heroin

[7] Counterfeit Prescription Pills Containing Fentanyl: A Global Threat, DEA Intell. Brief

[8] The offense of trafficking a controlled substance by possession with intent to distribute cannot be the predicate felony to a felony murder conviction because it is not an inherently dangerous crime. State v. Bankert, 117 N.M. 614, 975 P.2d 370 (1994).

[9] Ariz. Rev. Stat. § 13-1105 and 21 Okla. Stat. Ann. § 21-701/7.

[10] Alaska Stat. § 11.41.120.

[11] Minn. Stat. § 609.195.

[12] Ga. Code Ann. § 16-5-1.

[13] Iowa Code § 707.5.

[14] See, e.g., Ariz. Rev. Stat. § 13-1105, Ga. Code Ann. § 16-5-1.

[15] La. Rev. Stat. Ann. § 14:30.1, Mo. Rev. Stat. § 565.021.

[16] Mass. Gen. Laws Ann. Ch. 265, § 13.

[17] Nev. Rev. Stat. § 200.070.

[18] Mont. Code Ann. § 45-5-104.

[19] Fla. Stat. § 782.04(1(a)3.

[20] Colo. Rev. Stat. § 18-3-102(e).

[21] N.H. Rev. Stat. Ann § 318-B:26; N.J. Rev. Stat. § 2C:35-9.

[22] Tit. 18 Pa. Cons. Stat. Ann. § 2506.

[23] Del. Code Ann .tit 16 § 4752B.

[24] Mich. Comp. Laws Ann. § 750.317a.

[25] 720 Ill. Comp. Stat. 5/9-3.3.

[26] Cal. Penal Code § 192.

[27] N.Y. Penal Law §§ 125.10, 125.15.

[28] H.B. 141, 132nd General Assembly.

[29] 134 S. Ct. 881 (2014).

[30] See State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974)

[31] N.J. Rev. Stat. § 2C:35-9

[32] See., e.g., State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983)

[33] See State v. Jenkins, 229 W.Va. 415, 729 S.E.2d 250 (2012)

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