Murder: Texas Penal Code §19.02

The Texas Murder law applies to criminal homicide charges that involve intentionally killing someone, accidentally killing someone while acting recklessly, committing a felony that resulted in someone dying, and as of 2023, even simply providing fentanyl to someone who later dies.

In Texas, the first degree murder law applies to almost all of Murder cases. Second degree murder only applies when the defendant proves the sudden passion defense. There are, however, other “Homicide Crimes” in Texas described in Chapter 19 of the Texas Penal Code, including Capital Murder, Manslaughter, Intoxication Manslaughter, and Criminally Negligent Homicide.

The Texas legislature codified the criminal offense of Murder in Texas Penal Code Section 19.02. For many years, the Murder statute in Texas included intentionally killing someone, knowingly killing someone, intentionally causing serious bodily injury that ended up killing someone, and “felony murder” – where someone dies in the course of another felony being committed. But the legislature updated this law in 2023, and effective September 1, 2023, the Texas Murder statute also includes drugs killing someone. This new type of Murder has been called the “Fentanyl Murder” law.

The Penal Code classifies the Texas Murder law under Title 5 “Offenses Against the Person,” Chapter 19 “Criminal Homicide.” Learn more about the Texas offense of Murder below.

What is the current Texas law about Murder?

Texas law currently defines the offense of Murder in Penal Code Section §19.02 as follows:^[1]

(b) A person commits an offense if the person:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, the person commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual; or

(4) knowingly manufactures or delivers a controlled substance included in Penalty Group 1-B under Section 481.1022, Health and Safety Code, in violation of Section 481.1123, Health and Safety Code, and an individual dies as a result of injecting, ingesting, inhaling, or introducing into the individual’s body any amount of the controlled substance manufactured or delivered by the actor, regardless of whether the controlled substance was used by itself or with another substance, including a drug, adulterant, or dilutant.

Subsection (b)(4) was added in 2023 by the 88th Texas Legislature.^[2] This is what is known as the Fentanyl Murder law.

What affirmative defenses and defenses to prosecution are available under the Texas Murder statute?

The Texas Murder statute provides a defense to the prosecution of the Fentanyl Murder law “that the actor’s conduct in manufacturing or delivering the controlled substance was authorized under Chapter 481, Health and Safety Code, or other state or federal law.”^[3]

The statute also provides a Sudden Passion defense that, while not completely absolving you of criminal responsibility for Murder, does reduce the penalty classification to that of a second degree felony.

What is the difference between Murder and Manslaughter?

Under Texas law, both Murder and Manslaughter require the state prove a homicide (meaning that someone died at the hands of another person). But these laws differ both in terms of the intent that the state is required to prove and the applicable penalty range.

Differences in Intent

A person can be convicted of Murder under Texas state law when that person:

• 1. Intentionally or knowingly causes the death of an individual; OR
• 2. Intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; OR
• 3. Commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, the person commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

In the first two circumstances, the person must have the intent to commit harm in order to be guilty of Murder. The state must prove this specific intent. However, you can be convicted of Murder without any intent to harm someone under the third circumstance described above. This circumstance applies if you kill someone by committing an act “clearly dangerous to human life” while in the course of committing a felony. This is commonly known as the Felony Murder Doctrine.

Manslaughter, on the other hand, only requires the state to prove that the person recklessly caused someone’s death.

Penalty Level Differences

All Murder convictions are a minimum offense level of a first degree felony, meaning that a conviction will entail a prison term between 5 to 99 years, or life.

Manslaughter is a felony of the second degree, punishable from 2 to 20 years in prison.

So the two main differences between Murder and Manslaughter are 1) the way in which the death was caused (was it intentional, reckless or caused during the commission of a felony) and 2) the penalty range (a first degree felony for Murder versus a second degree felony for Manslaughter). It is also important to note that Capital Murder is a separate charge under Texas state law.

What is the difference between Murder and Criminally Negligent Homicide?

Under Texas law, both Murder and Criminally Negligent Homicide require the state prove a homicide (meaning that someone died at the hands of another person). But, similar to the difference beween Murder and Manslaughter, Murder and Criminally Negligent Homicide differ both in terms of the intent that the state is required to prove and the applicable penalty range.

The Texas Criminally Negligent Homicide law only requires the state to prove that you caused the death of an individual as a result of “criminal negligence.”

Differences in Intent

To obtain a conviction for Murder under Texas law, the state must prove either that you had the intent to commit harm or that you killed someone by committing an act “clearly dangerous to human life” while in the course of committing a felony. Also, as of 2023, the state can obtain a Murder conviction unde the new Fentanyl Murder Law by proving only that you delivered Fentanyl to someone who died as a result of using it.

Penalty Level Differences

All Murder convictions are a minimum offense level of a first degree felony, meaning that a conviction will entail a prison term between 5 to 99 years, or life.

Manslaughter is a felony of the second degree, punishable from 2 to 20 years in prison.

The offense of Criminally Negligent Homicide is a state jail felony.^[4]

So the two main differences between Murder and Criminally Negligent Homicide are 1) the way in which the death was caused (was it intentional, reckless or caused during the commission of a felony, or merely “criminally negligent”) and 2) the penalty range (a first degree felony for Murder versus a state jail felony felony for Criminally Negligent Homicide).

What is the Fentanyl Murder law?

The Fentanyl Murder law refers to subsection (b)(4) of the Murder statute: “A person commits an offense if the person … knowingly manufactures or delivers a controlled substance included in Penalty Group 1-B under Section 481.1022, Health and Safety Code, in violation of Section 481.1123, Health and Safety Code, and an individual dies as a result of injecting, ingesting, inhaling, or introducing into the individual’s body any amount of the controlled substance manufactured or delivered by the actor, regardless of whether the controlled substance was used by itself or with another substance, including a drug, adulterant, or dilutant.”

This new Fentanyl Murder law was added in 2023 by the legislature, effective September 1, 2023.^[5]

What is second degree Murder in Texas?

In Texas, Second Degree Murder refers to the offense of Murder when it is classified as a second degree felony. Murder is typically classified as a first degre felony, but if the defendant can prove that the sudden passion affirmative defense applies, the offense is classified as a second degree felony Murder.

The Sudden Passion Defense

The Texas Murder statute provides that “at the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.”^[6]

What is Penalty Range for Second Degree Murder?

Second Degree Murder is classified as a second degree felony with a maximum prison sentence of 20 years.^[7]

What is first degree Murder in Texas?

In Texas, First Degree Murder refers to the offense of Murder when it is classified as a first degree felony. This is the default punishment for Murder in Texas. The offense is classified as a second degree felony only when the defendant proves that the sudden passion affirmative defense applies.

What is Penalty Range for First Degree Murder?

First Degree Murder is classified as a first degree felony, with a penalty range from 5 to 99 years or life in prison.

What is the statute of limitation for Murder in Texas?

Murder has no limitations period under Texas law.^[8]

What is the penalty for a Texas Murder offense?

Murder is punishable as a first degree felony,^[9] with a penalty range from 5 to 99 years or life in prison. However, if you prove that you “caused the death under the immediate influence of sudden passion arising from an adequate cause” by a preponderance of the evidence at the punishment stage of a trial (after conviction), then the offense is punishable as a second degree felony with a maximum prison sentence of 20 years.^[10]

Accordingly, a Texas murder sentence can vary widely. You can get years in prison for Murder, but you could also potentially be eligible for probation.

Can you get probation for Murder in Texas?

Judges are prohibited from granting deferred adjudication unless the judge determines that the defendant (1) did not cause the death of the deceased, (2) did not intend to kill the deceased or another, and (3) did not anticipate that a human life would be taken.^[11] The Texas Code of Criminal Procedure prohibits judges from placing people convicted of this offense on straight probation.^[12]

What level of crime is Murder in Texas?

The Penal Code classifies the punishment for Murder as a first degree felony, unless the death was caused under the immediate influence of sudden passion arising from an adequate cause. In those cases, Murder is a second degree felony offense.

Learn more about the penalty range for this offense in the section above.

Can a Texas Murder offense be reduced?

Yes, a Murder charge can be reduced. Murder could be reduced to Manslaughter, or even Attempted Murder, Attempted Manslaughter, Criminally Negligent Homicide, or all the way down to Assault.

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Legal References:

^1. Texas Penal Code §19.02. This law is current as of 2024.^2. HB 6, 88th Texas Legislature, Section 20^3. Texas Penal Code §19.02(e), as enacted in 2023 by the 88th Texas Legislature^4. Texas Penal Code §19.02(b)^5. HB 6, 88th Texas Legislature, Section 20^6. Texas Penal Code §19.02(d)^7. Texas Penal Code §19.02(d)^8. Code of Criminal Procedure 12.01(1)(A)^9. Texas Penal Code §19.02(c)^10. Texas Penal Code §19.02(d)^11. Art. 42A.102(b)(4), Texas Code of Criminal Procedure.^12 Art. 42A.054(a)(2), Texas Code of Criminal Procedure