On September 1, 2021, Texas decided to get “tough” on fentanyl. Problem is, the Legislature decided to issue something closer to a political statement on fentanyl than an actual, workable law.
Effective September 1, 2021, the Texas Legislature has added a “new” Penalty Group to the Texas Health and Safety Code: Group 1-B. Penalty Group 1-B (PG 1-B) consists only of “fentanyl, alpha-methylfentanyl, and any other derivative form of fentanyl.” The creation of a new Penalty Group of this order was, to be frank, odd. Odd, as fentanyl and other derivative forms of fentanyl were already contained in the existing Penalty Group 1. In fact, in the proposed draft of this Senate Bill, “fentanyl, alpha-methylfentanyl, and any other derivative form of fentanyl” actually was struck from Penalty Group 1, only to be added to the newly created Penalty Group 1-B. Why do you need 1-B when Penalty Group 1 already contained these? Unless you’re trying to draw attention to what you’re doing…
The official word from the Governor’s office was that Abbott, as well as the three Republican sponsors and two Democratic sponsors, were getting tough on fentanyl. The new statute makes the penalty for manufacture/delivery of 200 grams to just under 400 grams of fentanyl, alpha-methylfentanyl, and any other derivative form of fentanyl a minimum of 15 years in prison and a maximum of 99 years or life, and a fine not to exceed $200,000. The new penalty for manufacture/delivery of 400 grams or more of fentanyl, alpha-methylfentanyl, and any other derivative form of fentanyl a minimum of 20 years in prison and a maximum of 99 years or life, and a fine not to exceed $500,000. This certainly sounds “tough.”
But, the old penalty for the penalty for manufacture/delivery of 200 grams to just under 400 grams of fentanyl, alpha-methylfentanyl, and any other derivative form of fentanyl a minimum of 10 years in prison and a maximum of 99 years or life, and a fine not to exceed $100,000. So the new law poses an increase of 5 years on the minimum and doubles the fine. And, the same is new penalty for manufacture/delivery of 400 grams or more of fentanyl, alpha-methylfentanyl, and any other derivative form of fentanyl: the new law merely adds five years to the minimum (which was 15 years, and is now 20 years) and doubles the fine under the old law (from $250,000 to $500,000.) (Note: fines are seldom assessed, and where assessed are almost never paid. Consider, how do you pay a half-million dollar fine from prison? This plays into the myth of the “wealthy drug dealer.”)
So, all told, the new law adds only five years to the minimum on only the two highest levels of manufacture/delivery for fentanyl (200 to 400 grams, and 400 or more grams.) Prosecution under state law is doubtful for possession of amounts of fentanyl that large at any rate; it is far more likely to be prosecuted federally. There is no increase in jail time for manufacturing/delivering fentanyl up to 199.999 grams. This is where the vast majority of manufacture/delivery cases that are prosecuted at the State level fall.
So, why do this? My best guess is to score some political points for being “tough” on fentanyl and drug trafficking; to be able to say that something—something bipartisan (which earns extra points with certain folks)—was done about the problem. The larger issue, however, is that this will do little if anything to address the problem in the long run.
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