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Lawmakers’ attempts to tighten drug laws would saddle crime labs with an unsustainable workload

By Stephen Simpson, The Texas Tribune

Lawmakers’ attempts to tighten drug laws would saddle crime labs with an unsustainable workload” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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HOUSTON — The pace at the Houston Forensic Science Center is brisk. Dozens of boxes stuffed with drugs seized by police are stacked on tables and nearby shelves. Lab employees quickly rush back and forth between vials, microscopes and computers working to uncover the secrets behind each unidentified item placed before them.

That’s because miles away, prosecutors from Houston and nearby counties clamor for results from this one crime lab so they can begin to prosecute criminal defendants. And when it comes to drug crimes, every Texas court case following an arrest and a drug seizure starts with a round of lab tests.

And that process begins inside a downtown Houston high rise, where in late March, a young analyst in training assesses six tiny pink pills on a tray that appear to be a 20 milligram dose of the prescription painkiller OxyContin.

But there’s something off about the pills’ color. It’s a little too pink. A check of the lab results in his hand confirms his suspicion.

“This one is fentanyl,” said the analyst, who asked that his name not be published. Watching the trainee’s work is James Miller, who manages the Seized Drugs Division at the Houston Forensic Science Center, one of 50 accredited crime labs across the state, and Peter Stout, the crime lab’s president and chief executive officer.

The pill’s more vivid color also appeared suspicious to Miller, who admits it’s getting harder to tell what’s what. He said illegal drug manufacturers have improved the appearance of opioids, making it tougher for even those charged with detecting dupes. Stout agrees.

“Over the years, they’ve gotten better so that you cannot tell as easily whether it’s counterfeit or not,” Stout says after watching the analyst. “So if you’re a user, it’s a lot more difficult for you to tell whether they’re fakes or not. From our standpoint, the odds are against you.”

Of the 50 crime labs in Texas, only 30 — including the Houston Forensic Science Center — are accredited to handle drug evidence in Texas. And the workload shows no sign of letting up. The odds are becoming stacked not only for people who use drugs but also those trying to catch drug dealers and manufacturers — in particular, crime labs.

In recent years, there have been frequent tweaks to state drug laws. With each legislative change, there’s more, or different, testing equipment to buy and more retraining of staff to be done, Stout said.

Recent drug law changes 

In 2019, Gov. Greg Abbott signed into law House Bill 1325, which legalized hemp. The law clarified the legal definition of marijuana as cannabis that contains more than 0.3% of tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana.

Before the law change, crime labs testing for marijuana simply checked for the presence of cannabinoids to designate something as cannabis and, therefore, marijuana. That one change resulted in a mass retraining of crime lab personnel across the state and the purchase of new equipment to detect THC levels, Stout said.

Now, as this current legislative session sees more state leaders call for ways to stamp out illegal fentanyl distribution and stop the rise in overdose deaths, crime labs are bracing for even more work. Fentanyl is a synthetic opioid that is up to 50 times stronger than heroin and 100 times stronger than morphine. Prescription fentanyl can be taken safely when prescribed by doctors. But there’s been a rise in its illicit use since the COVID-19 pandemic and an increase in overdose deaths among prescription drug users who often are unaware the drug they are abusing contains fentanyl.

State lawmakers also want additional regulations on the hemp product known as delta-8 because of the amount of THC found in delta-8 vape cartridges and gummies that produce the extract’s high.

Delta-8’s lower THC content qualifies it as a “lawful marijuana extract” under state law. But the product came under fire in 2021 when the Department of State Health Services attempted to stop sales by classifying delta-8 as an illegal substance. Officials with the state health agency argue that because Texas’ hemp law did not explicitly discuss delta-8 at all, it “did not — nor was it intended to — allow for the manufacture and sale” of delta-8 products.

However, it remains legal in Texas, until a court decision is handed down in an ongoing lawsuit challenging DSHS’s decision to ban the product.

Crime labs stretched thin

The added pressure to prosecute fentanyl cases is forcing crime lab officials, which have some of the smallest staffs in all of law enforcement, to speak out, asking that legislators talk to them before passing new drug laws.

At last week’s “One Pill Kills” conference in Austin that discussed the rise in illegal fentanyl use and included Abbott as a participant, Teree Warren, a forensic scientist for the Fort Worth Police Department, spelled out the herculean task before crime labs right now.

“Now we are trying to shift back to handle this fentanyl crisis, which makes it difficult to figure out what to do with our resources. At our laboratory we have six chemists, but timewise there’s only two who know how to do the marijuana testing,” Warren said. “So this means the remaining four are focused on all the other drugs. I know this is an issue going on everywhere.”

The result? Long wait times for evidence results.

“When we send drugs to get tested, we do get frustrated,” said Zapata County Sheriff Ray Del Bosque, who also attended last week’s summit in Austin. “By the time we get the toxicology report back for our investigation, it can be late.”

Crime lab officials have repeatedly told lawmakers and budget officials that the state’s legalization of hemp in 2019 would cause issues and now scientists are being forced to make uncomfortable decisions with their resources.

“Do I take my staff away from testing fentanyl cases to test all the marijuana cases that we have to deal with? Because it really is either/or at this point,” said Miller, the veteran manager at Houston’s crime lab.

Competing drug cases 

Miller and other crime lab staff across the state have been watching this legislative session closely as both delta-8 and fentanyl have become central issues.

“Right now, fentanyl is kind of battling with marijuana for supremacy in the Legislature. They seem to be deciding whether fentanyl or marijuana is more important to them,” Miller said.

Abbott and Republican lawmakers have focused their energies on raising criminal penalties related to fentanyl.

State Sen. Joan Huffman, R-Houston, is the author of Senate Bill 645, which would allow prosecutors to file a murder charge against individuals arrested for selling or making fentanyl illegally.

Those convicted under this bill could face, depending on the amount, at least 10 years in prison.

State Rep. Andrew Murr, R-Junction, has authored House Bill 178, which would require all public and private crime laboratories that conduct forensic analysis to test all seized controlled substances for the presence of fentanyl if there is suspicion it might contain the synthetic opioid.

But at Houston’s crime lab, that would be a tall order.

“I don’t have the resources to test all 20,000 pills in a box that is seized,” said Stout, the Houston Forensic Crime Center’s CEO.

The Texas Department of Public Safety, which operates 16 of the state’s 50 crime labs, has estimated in a fiscal note attached to Murr’s bill, that it would apply to all items that are not plant material or edibles. The agency’s crime laboratory reported that if this law were in effect in the fiscal year ending Aug. 31, 2022, an additional 31,554 drug evidence cases would have been added to their fentanyl testing docket.

According to the agency, a forensic scientist can work approximately 70 cases per month, or 840 per year. This means DPS would need at least 50 more employees to manage the uptick in cases.

“We are figuring between what DPS estimates that they would need and what we would need for the rest of the laboratories in the state that we would need 100 or 200 more forensic chemists in the state of Texas,” Stout said. “There are maybe 1,000 forensic chemists in the country. So we are going to hire 20% of the entire country’s population of forensic chemists here to deal with this? It’s just not going to happen.”

Then there’s the push for tighter controls on delta-8.

State Sen. Charles Perry, R-Lubbock, wants an end to the delta-8 consumable hemp market across the state. His proposal, Senate Bill 264, would make it illegal to sell or distribute consumable hemp products with cannabinoids to consumers, other than products generally recognized as safe by the United States Food and Drug Administration.

Delta-8 products have not been evaluated or approved by the FDA for safe use, and the agency has sent out warnings in the past due to product complaints.

Also, law enforcement officials struggle to tell the difference between legal and illegal cannabis anymore, meaning some prosecutors have refused to pursue any marijuana cases without test results from crime labs.

Miller, at the Houston Forensic Science Center, requested that whatever lawmakers do in this session, they stay mindful of how an increase in criminal prosecutions impacts everyone in the criminal justice system.

“You have legislators writing bills for one purpose and not necessarily considering the factors that we can’t actually do that,” Miller said. “You can write the legislation all you want to, but that doesn’t make something possible.”

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