A 12 yr old offers to sell marijuana to another 12 yr old on a school bus. Potential buyer declines. No other witnesses. Possible charges against seller?

Did he have it with him, or could he just "get some" for the proposed buyer? There is no possession with intent to sell, so you'd just have possession if he had it (with the kid witness to his possession; could charge drug free zone if you want to push it). Either way, you might use him to find out where he's getting it from and worry more about the big fish.

No such thing as possession with intent to deliver but why not attempted delivery of marihuana?

But if he didn't have the marihuana on him and/or a sample wasn't seized to be tested you might have a hard time proving anything.

I don't think you can charge delivery in this circumstance. HSC 481.002(8), which contains the definition of deliver, and upon which we can often charge delivery based on an offer to sell states, in pertinent part,

"The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphenalia."

The definition of delivery refers to the definition of deliver.

Since Marijuana was not included and the statutory language being otherwise specific, I belive general principles of statutory construction require the conclusion that an offer to sell marijuana is not viable as a basis for charging delivery of marijuana.

Unless of course, I missing some other statute or law, in which case the learned folks on this forum will promptly point it out to me.

I was looking at HSC 481.122(b) (affirmative defense to delivery of marijuana to a child if the actor was a minor). Why isn't this defense available in the broader delivery provision in HSC 481.122? Not that I'm advocating adding affirmative defenses, but it seems weird that if the 12-year-old delivered to an adult, he could be charged, but if he delivers to a kid he has an affirmative defense.

It seems strange to me that you can't prosecute a juvenile for the more serious offense of delivery when he is doing so at school to other kids.

There is no evidence of possession. Stymied. thanks for thanking about it - I had reached the same conclusions.

It sounds like you don't have enough evidence to for attempted delivery (not to mention the problems Section 481.122 creates).

Perhaps the best recourse would be for the school to handle this. It's been my experience that when the law doesn't quite fit a juvenile problem, but we know the kid did something wrong, you can usually work with the school administration and teachers to craft an appropriate, creative remedy. (2 week in school suspension, kicked off the football team, whatever).

It certainly gives the school officials reasonable grounds to search the kid's locker. I still think it might not be bad to find out where this kid is getting his stash. Seems to me that if he's selling he must have more where that came from. Maybe even selling for someone else.

Jim - that was my point too. Crazy, huh?

Gretchen my reading of that affirmative defense is simply that you cannot charge a juvenile with the enhanced delivery charge of delivery to a minor, but that you can still prosecute them for just delivery. I guess the idea is that it is not as egregious for one minor to deliver to another, as opposed to an adult preying on children by selling them drugs.

In other words, being a juvenile is only a defense to the charge of delivery to a minor, not to the charge of delivery entirely.