We've been chewing on a case trying to determine what offense (if any) we can charge.

Suspect hires private detective to investigate spouse. After hearing the results of the investigation, the spouse asks the private detective if he knows someone who will kill the spouse. The private detective contacts the local police, and an undercover officer poses as a "hit man."

During the meeting with the "hit man," the suspect is no longer interested in a "hit," but instead offers to pay the "hit man" to plant drugs--cocaine--in the house and car of the spouse's business partner. The meeting is taped.

My review of the penal code did not reveal an offense that seems to apply to "frame ups." Tampering/fabricating, 37.09, does not seem to apply because no investigation or proceeding is in progress and no crime is yet committed. There seem to be other problems in that section, too. Obstruction/Retaliation, 36.06, doesn't seem to apply because the business partner doesn't fit into the protected class. Tampering, 36.05, doesn't seem to apply because the "hit man" isn't a witness as contemplated by that section. False report doesn't seem to apply because the "hit man" isn't hired to file a report, but plant evidence.

Overiding everything is the fact that solicitation applies only to capital and 1st degree felonies.

The only solution floated so far is solicitation of burglary of a habitation with intent to possess a controlled substance and/or burglary of a habitation and commit or attempt to commit possession of a controlled substance. Of course, that seems weird on its face--who breaks into a house in order to possess dope? Yet, it seems to fit. After all, in order to plant dope you must possess it, and you must break in while possessing it in order to unpossess it. This person seems like they need more than a lecture or a class B. Any good ideas?

I have no good ideas about what to do with your suspect, but you raise an interesting point about setting up another. What does the word "pending" mean in 37.09? Presumably something other than "in progress". If I were the victim of a "frame", I would want the perpetrator criminally prosecuted. A civil remedy doesn't quite seem enough. I guess the person who sets you up is guilty of the offense you commit (unknowingly) under 7.02(a)(1), so if one takes an overt act (not just talk) toward that end (beyond mere preparation)he has attempted to commit the underlying offense that would actually be done by someone else.