Legal Question in Criminal Law in Texas

I was told that in the Texas penal code, if someone made a drug transaction and no money was exchanged that this would be a constructive delivery and would only be a state jail felony. If no prior state jail felony than no enhancement can be given and 2 yrs is the max you can get. Is this true?


Asked on 11/09/11, 10:51 am

2 Answer from Attorneys

M. Elizabeth Foley The Law Office of M. Elizabeth Foley

Sorry, but whoever told you that was just making things up. Constructive delivery doesn't have anything to do with money. An example would be if you wanted me to actually hand someone drugs you had made arrangements to sell them (or for that matter, "donate" to them). If that could all be proved up in court, the State would have an actual delivery case on me, and a constructive delivery case on you.

The distinction between the two is just something that's put into the jury charge as an explanation of what the State has to prove, and it does not affect the punishment range of the offense in any way--that's only affected by the type and amount of drugs involved and things like being in a drug-free zone, having prior pen trips, etc. In fact, a possession with intent to deliver charge or a manufacturing charge would carry the exact same punishment if the amount of drugs, etc. were the same--there does not have to be any actual delivery proven at all.

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Answered on 11/09/11, 11:17 am


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