What Texas law makes selling fake drugs a crime?

Under Chapter 482.002 of the Texas Health and Safety Code, a person commits the offense of “unlawful delivery or manufacture with intent to deliver” a simulated controlled substance if he or she:

(1) expressly represents the substance to be a controlled substance;

(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance; or

(3) states to the person receiving or intended to receive the simulated controlled substance that the person may successfully represent the substance to be a controlled substance to a third party.

Selling fake drugs in Texas

Tarrant County officials recently announced the county’s largest-ever seizure of fentanyl when more than 2,000 grams were found in a residence. The sheriff’s office claimed it was enough fentanyl to cause more than a million fatal doses.

Fentanyl is a synthetic opioid often found disguised as something less powerful in counterfeit pills. Unsuspecting buyers, including school-aged children, are accidentally overdosing on spiked pills that look like brand-name drugs such as Oxycontin, Percocet, and Vicodin. Mass-produced fake prescription pills are often falsely marketed as the real deal and sold on social media platforms by criminal drug networks.

Selling fake drugs in Texas is illegal, regardless of whether it’s a counterfeit prescription drug or baking flour packed to look like cocaine. And prosecutors aren’t taking these cases lightly.

If you have been arrested or under investigation for an alleged simulated substance or counterfeit drug offense, you should retain legal counsel as soon as possible. The criminal defense attorneys at Varghese Summersett have vast experience handling drug cases. 

How does Texas define fake drugs?

The Texas Health and Safety Code defines a simulated controlled substance as any substance “purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be.”

State law makes it a criminal offense to possess, manufacture or deliver a counterfeit substance or any device that can be used to manufacture counterfeit substances.

A counterfeit drug in Texas includes the drug, the container, or labeling of a drug that without authorization, resembles the trademark, brand name, or identifying logo of a “drug manufacturer, processor, packer or distributor” other than the actual company that manufactured, processed, packed, or distributed the drug,” and falsely purports or represents to be the real product or to have been packed or distributed by the actual manufacturer, processor, packer, or distributor.

How do Texas courts determine fake drug offenses?

Texas courts typically consider three main factors when evaluating whether someone represented a simulated controlled substance to be a legitimate controlled substance in a way that could lead a reasonable person to believe the substance was, in fact, a controlled substance.

Under Texas law, the court may consider all relevant factors in the case, including: 

1. The simulated controlled substance was packaged in a manner generally used for the delivery of a controlled substance.
2. The delivery or intended delivery included an exchange of or demand for property as consideration for delivery of the substance, and the amount was substantially more than the reasonable value of the simulated controlled substance.
3. The physical appearance of the finished product containing the substance was substantially identical to a controlled substance.

Texas law requires proof that an offer to sell a simulated controlled substance is “corroborated by a person other than the offeree or by evidence other than a statement of the offeree.”

Do prosecutors have to prove the nature of a fake drug?

No. Prosecutors do not need to prove anything regarding the nature of the actual substance involved in a case involving the sale of a simulated controlled substance. 

The state only needs to prove that what was offered to the buyer was represented as a controlled substance. This is an important distinction because the description of the offense, such as the delivery of heroin by offering to sell it, incorrectly suggests prosecutors must prove the actual substance was indeed heroin. It doesn’t.

What is the punishments for selling fake drugs in Texas?

Selling fake drugs in Texas is a state jail felony punishable by 6 months to 2 years in a state jail facility and a maximum $10,000 fine.

State Jail Felony Punishment in Texas

Texas fake drug offenses include more than selling

A Texas resident can also be charged with a Class A misdemeanor fraud offense if they knowingly or intentionally make, distribute or possess any tool or device used to reproduce an actual or simulated trademark, trade name, or other identifying mark to represent a controlled substance.

Under Texas Health and Safety Code, the receipt of a prescription drug that is adulterated, misbranded, stolen, obtained by fraud or deceit, counterfeit, or suspected of being fake, and the delivery or proffered delivery of such a drug for payment or otherwise is also a Class A misdemeanor offense.

Additional Class A misdemeanors include any act that causes a drug to be counterfeit, the sale or dispensing, or the holding for sale or dispensing of a counterfeit drug.

Recent examples of fake drug cases in Texas

In Texas, it’s possible to also be charged by state or federal prosecutors for selling fake drugs in Texas. Below are examples of defendants who were prosecuted for selling fake drugs. Some of the cases were prosecuted federally. This article describes the law and penalties in state court.

• In 2022, a 40-year-old Fort Worth man was charged with selling fake Percocet pills laced with fentanyl.
• In November 2021, nine people between the ages 35 and 60 were indicted in a Beaumont court for conspiring to traffic misbranded and counterfeit drugs, specifically promethazine-codeine cough syrup. The group allegedly sold more than $52 million in fake drugs.
• In October 2021, 27 people between 23 and 64 in the Rio Grande Valley were arrested for trafficking counterfeit pills containing fentanyl and methamphetamine.
• In September 2021, a 52-year-old Plano man who pleaded guilty to possession with intent to distribute and distribution of controlled substances, including counterfeit pharmaceutical drugs, was sentenced to 30 years in federal prison.
• In June 2021, a 20-year-old Colleyville man died from an accidental overdose of a fake prescription drug containing para-fluorofentanyl, a synthetic opioid.
• In December 2020, 13 people in Austin were charged, including current and former college students, in connection with a drug trafficking operation that allegedly sold counterfeit prescription drugs laced with fentanyl and methamphetamine to college students in Central Texas. The alleged ringleader was a 23-year-old UT-Austin student at the time.
• In 2019, a 34-year-old man was sentenced to more than 20 years in prison for his role in a deadly San Antonio-based pill mill that sold more than 800,000 counterfeit prescription drugs between 2015 and 2017, including oxycodone pills laced with Fentanyl, Adderall pills laced with methamphetamine, and Xanax laced with cocaine.
• In 2018, 10 airline employees at Dallas-Fort Worth International Airport were charged with allegedly conspiring to smuggle counterfeit methamphetamine across the country on commercial airlines. Those arrested ranged in ages between 22 and 47.
• In 2013, two men, including a 49-year-old in Katy, were charged with smuggling counterfeit Viagra from China into the United States. The counterfeit drugs were allegedly shipped in bulk to Houston and Chicago and sold in small quantities.

Accused of selling fake drugs in Fort Worth or the surrounding area? Call us.

It is essential for anyone who has been arrested on charges of possessing or selling fake or counterfeit drugs in Tarrant County to seek legal help from an experienced defense attorney. Varghese Summersett has decades of experience defending drug cases and a proven record of exceptional results. Call our defense firm for a free consultation at 817-203-2220.