Since 15-year-old Montana Brown’s death on Dec. 14, 2013, Frisco father Eric Brown has dedicated his life to spreading awareness about 25I-NBOMe, the synthetic hallucinogen responsible for his son’s death. And finally, it seems like the Texas Legislature is listening.
After hearing tearful testimony from Brown in Austin on March 10, the state Senate Committee on Criminal Justice put its stamp of approval on several pieces of legislation, including Senate Bill (SB) 172, a bill that would make it a felony to possess, manufacture or distribute NBOMe compounds. It will now be considered by the full Senate.
“My son did receive justice through the federal system, but imagine my shock and horror when I learned in January that there were no laws in Texas covering this [drug],” Brown said. “If you’re having to play catch up to the U.S. government, you’re in a world of hurt. Texas should be leading, not following the rest of the herd on this. I hope what is accomplished here will set a precedent for the rest of our nation and, hopefully, for our federal government.”
Marketed as a synthetic version of LSD or acid, NBOMe has had deadly consequences across the state, with the Dec. 20 death of Plano teen Evan Johnson being a recent reminder of the danger of the designer drug.
“Hopefully the fear of a felony punishment will prevent other teens from buying these synthetic substances,” said Leslie Cherryholmes, Johnson’s mother. “Dying from using the drug is significantly worse than a felony conviction. Perhaps a few felony convictions would discourage essentially good kids from trying this drug.”
Although NBOMe compounds are banned by the Department of State Health Services through its schedule of controlled substances, prosecutors are only able to pursue misdemeanor charges.
Authored by state Sen. Joan Huffman, SB 172 would add 25I-NBOMe and its chemical cousins to the Texas Controlled Substances Act Penalty Group 1-A, which carries felony punishment.
“It’s really an epidemic that’s affecting the young people of our state with deadly consequences,” Huffman told the committee. “Teens and young people everywhere are overdosing and, in the worst cases, dying from ingesting this non-punishable drug.”
Early last year, the Department of Public Safety crime laboratory reported more than 54 cases where NBOMe was identified. Under current law, none of these cases could be effectively prosecuted.
“The code we’ve been trying to crack is how to have a bill that would last through these people that are trying to trick the system,” Huffman said.
Sen. Juan Hinojosa agreed, and said that since chemicals are constantly changing in the producers’ attempts to skirt the law, it’s important to come up with effective language to deal with these compounds on a broader basis.
“I want to make it clear that this is not just an urban issue,” said Sen. Charles Perry. “This has been going on in Amarillo, Lubbock, Abilene … I’m committed to do whatever it takes to bring this to conclusion at a level where it’s unprofitable, unpopular and costly both of criminal and penalty nature going forward because this has become a plight. In my area, it’s a real problem.”
The committee also supported SB 173, a bill authored by Huffman that targets synthetic marijuana, popularly known as K2 or Spice. While a 2011 law prohibited certain forms of these drugs, the new bill seeks to ban any compound that includes the banned substances among its ingredients.
If the Senate votes in favor of the bills, they will go to the House of Representatives for consideration.
“In many states that do a line item of these types of substances, it’s like a game of Whac-A-Mole,” Brown said. “Our Legislature only meets every two years, and things can pop up. … We need emergency scheduling powers in Texas. Right now we have to wait 31 days once the feds make a substance a Schedule I … until we can adopt that in Texas, and that process doesn’t automatically happen at 31 days.”
Brown said that the federal government classified NBOMe as a Schedule I drug 29 days before Montana’s death, and that it took more than 120 days to get it scheduled in Texas.
“It’s not that we want our Legislature to meet every year, but we’ve got to have something to deal with synthetic drugs,” he said. “Something’s got to change.”
After hearing about the drug-related deaths of Montana and Johnson, state Sen. Van Taylor has authored SB 1582, or Montana’s Law, to change the culture in Texas.
“My heart goes out to the Brown and Johnson families,” Taylor said. “I have worked very closely with Montana’s parents on this bill, and it’s our belief that Montana’s Law will send a clear message to criminals who design and manufacture synthetic drugs that they will no longer find safe harbor in Texas from outdated state laws to classify and schedule dangerous drugs.”
Taylor said Montana’s Law, filed March 12, will take away the legal loophole that synthetic drug producers currently exploit in Texas and will give law enforcement the authority to arrest and charge individuals who manufacture or distribute illegal drugs.
Synthetic drug designers have been able to effectively skirt the law by creating variations of drugs the state has declared illegal. This problem is magnified in Texas, where the Legislature only meets for 180 days in odd-numbered years. Taylor said the Legislature has made several attempts to update state law to make all new drugs created during the previous two years illegal.
“Montana’s Law would allow the Texas Department of State Health Services to temporarily classify a dangerous drug as illegal, subject to the approval of the governor, lieutenant governor and attorney general, once the Food and Drug Administration has declared it illegal and other criteria are met,” he said. “Once session reconvenes, the Legislature would have to vote to make the change permanent.”
Unlike Huffman’s bills, which focus on specific classes of chemicals, Taylor’s bill would cover “everything,” Brown said.
“The way Huffman has written her bill, some chemist might find a way to skirt the law,” he said. “Taylor says if it acts on those brain receptors or it acts like a Schedule I class drug, then it is a Schedule I class drug and prosecutable.
“Huffman’s is a narrower net contemplating everything we know based on what might come in the future. Taylor’s is the whole net, in case we miss anything. … So if something appears that we’ve never contemplated as a Legislature and it’s acting as a Schedule I, we will have the power to schedule and criminalize it so it’s off the streets and not killing kids.”