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Bills trying to legalize fentanyl test strips flood the Texas Legislature

Over a dozen bills have been filed by Republican and Democratic lawmakers after Gov. Abbott publicly supported lifting the ban.

FILE - This May 10, 2018, file photo shows an arrangement of fentanyl test strips in New York.
AP Photo/Mark Lennihan, File
FILE – This May 10, 2018, file photo shows an arrangement of fentanyl test strips in New York.

I’m covering mental health during the 2023 legislative session. If you have a story about accessing mental health or substance use resources in Texas, send me a message at swernst@houstonpublicmedia.org or DM me on Twitter @sarawilla1.

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The tide has changed this legislative session around the legalization of fentanyl test strips, what Texas advocates see as a harm reduction measure that can save lives.

The devastating impact of the fentanyl crisis is catching the attention of Texas leaders now more than ever, as the death rate due to opioid overdose has grown in recent years. Republican and Democratic lawmakers have filed over a dozen bills seeking to repeal the ban this year — a big bump in the number of bills compared to the 2021 session.

Fentanyl test strips are narrow pieces of paper that can resemble COVID-19 at home tests and allow drug users to know whether they're consuming drugs cut with fentanyl. The Centers for Disease Control says testing drugs for fentanyl ahead of time can reduce the risk of overdose and prevent harm. These strips are now illegal under Texas drug paraphernalia laws and could result in a Class C misdemeanor and $500 fine.

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The political momentum around this policy change came after public remarks Governor Greg Abbott made during a visit to the University of Houston in December. He focused on tightening border security as a way to stop the flow of fentanyl into the U.S., but also threw his support behind the expansion of Narcan and legalizing test strips.

"We also need to legalize fentanyl test strips in the state of Texas so that people will be able to test drugs at home to know whether or not it might be laced with fentanyl," Abbott said next to researchers developing a fentanyl vaccine. "All of these strategies together can save hundreds, if not thousands of lives just in the state of Texas on an annual basis alone."

Fentanyl is a synthetic opioid that is 50 to 100 times more potent than morphine. The Drug Enforcement Administration estimates that 40 percent of street drugs are cut with fentanyl. Texans taking less deadly drugs on the black market like Xanax or Adderall often don't realize that the pills might also have fentanyl too.

Opponents have said that fentanyl test strips enable drug use. A user might feel safe to take another illicit drug if the test comes back negative for fentanyl.

Abbott hasn't always been a supporter of this harm reduction tactic. He admitted that these comments were a reversal from his previous position on the issue.

"In the past, as in last session and before, there was pushback including from myself," Abbott said. "I was not in favor of it last session."

Addressing the fentanyl crisis has become a top priority for Abbott this year. During his State of the State address earlier this month, he named it as an emergency item — a designation that allows state lawmakers to pass related legislation in the first 60 days of the session.

Senator Nathan Johnson (D-Dallas) has filed two bill lifting the ban on fentanyl testing.

"It’s an opportune time," Johnson said. "Not to be too crass about it, but it’s a time when I don’t think anybody is worried that they’re taking too bold of a step."

On one of those bills, he partnered with Republican Senator Bob Hall — signaling bipartisan support.

Johnson said understanding around the issue is shifting.

"We’re talking about preventing a really tragic end through something very simple," Johnson said. "That does not undermine our ability to combat crime or drug use for that matter."

Some advocates believe this type of legislation is long overdue.

"Fentanyl testing strips would absolutely save lives," said Cate Graziani, Executive Director of the Texas Harm Reduction Alliance. "Unfortunately, it’s not going to be enough."

Her group staged a die-in — a form of protest during which demonstrators lay on the ground earlier this month. Around 100 people came from across the state to draw attention to the thousands of Texans who have overdosed and died from fentanyl in recent years.

Graziani is pushing for bills like HB 987, SB 623 and HB 1365 that don't just legalize fentanyl testing strips, but also remove bill language that bans drug testing supplies of all kinds.

"Although it may look like we are moving the needle so to speak in Texas, what it really feels like is lawmakers are doing the bare minimum," Graziani said.

Her group is calling for more harm reduction centers that can offer support like free overdose medication, needle exchange, overdose prevention training, and information about accessing housing and health care. One bill filed by Representative Joe Moody is trying to set up pilot programs of this nature across the state.

They also want stronger legal protections for people who call 911 in the wake of an overdose.

"I'm not seeing a whole lot of leadership really look at the things that people need to stay alive beyond fentanyl testing strips," Graziani said. "And that’s a disappointment."