Texas Doubles Down on Ineffective Drug Policies that Could Cost Lives

In January 2023, Attorney General Ken Paxton, who was impeached by the Texas House of Representatives on May 27, announced that the state had joined a $10.7 billion nationwide settlement with CVS and Walgreens for their contributory role in the overdose crisis. In a statement, Paxton said, “The tragic and infuriating reality is that this epidemic has not happened by accident. There are companies that have played a role in worsening, and in many cases causing opioid addiction.”

Paxton is correct that today’s crisis did not happen by accident. But the blame extends beyond private companies. Decades of bad policies have heightened the risks of drug use and erected barriers to health care and effective treatment. And while some states are now trying to reduce the harms caused by the drug war, Texas is doubling down on ineffective policies.

Texas Legislature Failed to Pass Bills That Would Reduce Drug Risks

In the months since the CVS/Walgreens settlement was announced, the Texas Legislature completed its 88th regular session. Elected officials introduced many good pieces of legislation that would have reduced legal system harms for people who use drugs and expanded access to treatment and harm reduction services. Most did not pass.

These included bills to decriminalize paraphernalia and to legalize tools to test drugs for adulterants like fentanyl. House Bill 362, the fentanyl testing bill that gained the most traction, was approved by the House in a 143 to 2 vote. It was never scheduled for a hearing in the Senate, wholly or in part because it did not have the support of Lieutenant Governor Dan Patrick, whose office has a uniquely large amount of control over the Senate’s agenda.

Another failed bill would have increased access to treatment by allowing nurse practitioners to prescribe Schedule II substances for patients participating in narcotic drug treatment programs. A bill to authorize syringe service programs, some version of which has been introduced in every legislative session since at least 1993, did not even clear the House County Affairs Committee, a first since 2011.

The state’s failure to remove legal obstacles that stand in the way of improving care for people who use drugs might have been compensated for by investing in underfunded services like medically assisted treatment. But the Legislature did not approve any spending increases for drug treatment, despite having a $32.7 billion budget surplus.

The state did appropriate $18.7 million over two years for drug use prevention and education and for the opioid overdose reversal medication naloxone, but this money comes from Texas’ opioid settlement fund and is separate from general revenue. Indeed, the official strategy seems to be to rely on the opioid settlement fund, and federal grant dollars, for all overdose crisis-related spending. But the $1.6 billion settlement accrues over a period of 18 years, and the roll-out is a slow and deliberate process that will not increase treatment access as quickly as would an injection of state funding into already-existing programs.

New Legislation Increases Penalties for Drug Possession and Selling

Instead of trying to improve care for people who use drugs, Texas reaffirmed its punishment-first approach with the passage of House Bill 6, which increases penalties for the manufacture, delivery, and intent to deliver fentanyl and fentanyl derivatives. Possession with intent to deliver less than one gram of fentanyl is a third-degree felony, the punishment for which is two to 10 years in prison. Larger amounts carry longer sentences. The bill passed with bipartisan support.

Texas already has laws that threaten long sentences for possessing or selling fentanyl, and yet these activities proliferate. The probability of getting caught using or selling drugs, while unevenly distributed across sociodemographic groups, is relatively low overall. When someone who sells drugs does get caught, their customers don’t stop using drugs; they find a new source, one which may be unfamiliar to them and therefore riskier.

The harsher penalties that House Bill 6 creates will not change how people respond to prohibition. Many of those affected will be low-level sellers who use drugs themselves. Incarceration will not address their substance use or improve their odds of finding legal employment once released.

House Bill 6 also stipulates that an individual commits murder if they “knowingly” sell or deliver fentanyl to an individual who dies from consuming it. The bill does not require consideration of whether the deceased knew they were consuming fentanyl, though this seems highly relevant to charging the seller with homicide. Knowingly selling fentanyl to someone and concealing that information is quite different from selling fentanyl to someone who knows they are purchasing fentanyl.

Roughly half of the states have some version of this provision, commonly referred to as a drug-induced homicide law. Application of these laws has often led to prosecution of a deceased’s close friends or loved ones. Drug-induced homicide laws can make people more fearful of calling for help if someone they are with overdoses. Overdoses have not decreased in states that have enacted these laws. One study found an association between greater media coverage of drug-induced homicide laws and an increase in overdose deaths.

The final major component of HB 6 is the requirement that certificates of death for individuals who die from fentanyl exposure state the cause of death as “fentanyl toxicity” or “fentanyl poisoning.” In cases where an individual does not intend to consume fentanyl but does intend to consume other drugs, fentanyl test strips could help prevent that poisoning. Yet the bill to legalize test strips did not pass. The state recognized that people are being poisoned and at the same time refused to give them a tool to avoid being poisoned.

Some Effective Legislation Did Pass

A few helpful measures to make it across the finish line include Senate Bill 1319, which requires emergency responders to report overdoses for improved mapping, and Senate Bill 629, which requires middle and high schools to maintain naloxone on campus.[1]

Improved overdose data is urgently needed, as is expanded naloxone access for teens. Fatal and nonfatal overdoses are underreported, and data often are not available until months after incidents occur, making it nearly impossible to respond to bad batches of drugs in real time. Up-to-date information can improve public messaging, possibly preventing overdose clusters like those that occurred among students in Dallas and Austin suburbs in the 2022-23 school year.

The parental advocacy that grew out of these tragedies was instrumental in garnering support for requiring naloxone to be available in middle and high schools, as well as for the passage of bills that add fentanyl awareness to school health curricula (HB 3908) and designate October fentanyl awareness month (HB 3144).

While these measures are fundamental to the overdose crisis response, their effectiveness will be limited by the absence of more comprehensive reforms that reduce the harms of drug use and current drug policies. 

Texas is Unprepared for Future Drug Crises

Nearly all of the overdose-related bills that advanced this session were specific to fentanyl. This may seem reasonable given the drug’s role in today’s crisis, but the fentanyl focus ignores the larger takeaway from this epidemic, which is that the unregulated drug market is evolving rapidly and toward more dangerous synthetic substances.

N-Desethyl isonitazene, a synthetic opioid distinct from fentanyl and 20 times stronger, is showing up in the unregulated drug supply. This drug is not subject to the new penalty enhancements in HB 6; if the logic underlying that bill were correct, people selling fentanyl may simply switch to selling this or other potent opioids.

Xylazine is another drug becoming increasingly prevalent. A veterinary tranquilizer mixed in with fentanyl and known as “tranq,” xylazine causes skin sores, which left untreated can lead to amputation. It also causes overdoses for which naloxone is less effective. The DEA reported that it was in 23% of fentanyl powder and 7% of counterfeit pills seized in 2022.

Elected officials were warned about these emerging drug threats during the legislative session. Test strips for xylazine became commercially available as the fentanyl test strip bill (HB 362) was being considered. I and many others shared this information repeatedly with multiple offices. Xylazine, unlike fentanyl, is not highly prevalent in Texas — yet. Xylazine test strips would have provided a chance at preventing a new drug problem. If we are lucky, the unpleasant effects of xylazine will be enough to exert downward pressure on its prevalence in the unregulated drug market. If not, we will be talking about xylazine in the 2025 legislative session.

Speaking about the CVS/Walgreens opioid settlement, the embattled Paxton said the pharmacy chains “must be held responsible” for their role in the overdose epidemic. This session, too many of Texas’ elected officials failed to support — and in some cases actively blocked — the advancement of pragmatic and effective strategies to end preventable drug-related harms and death. They should also be held responsible for their role in this crisis.

Endnote

[1] The language in SB 629, consistent with other Texas codes, uses the term “opioid antagonist” to refer to naloxone. Naloxone is an opioid antagonist, but so is naltrexone, an FDA-approved medication to treat opioid and alcohol use disorder that is not used to reverse overdoses, making the term antagonist an odd choice for policies specific to overdose reversal.

This material may be quoted or reproduced without prior permission, provided appropriate credit is given to the author and Rice University’s Baker Institute for Public Policy. The views expressed herein are those of the individual author(s), and do not necessarily represent the views of Rice University’s Baker Institute for Public Policy.