                     The Attorney                   General of Texas
                                          January        30,   1979
MARK WHITE
Attorney General


                   Honorable George McCrea                        Opinion No. MW-1
                   County Attorney
                   Tom Green County Courthouse                    Re: Constitutionality      of section
                   San Angelo, Texas                              42.01(a)(l), Penal Code.

                   Dear Mr. McCrea:

                          You have requested our opinion regarding the constitutionality      of
                   article 42.01(a)@ of the Texas Penal Code, in light of the United States
                   Supreme Court’s decision in Acker v. Texas, 430 U.S. 962 (1977). The statute
                   in question states:

                              (a)   A person commits an offense if he intentionally
                                    or knowingly:

                                    (1)     uses abusive, indecent, profane, or vulgar :,
                                            language in a public place, and the
                                            language by its very utterance tends to
                                            incite  an immediate      breach   of the
                                            peace. . . .

                          In m,      a case on direct appeal to the United States Supreme Court
                   from County Court at Law No. 2 of Travis County, the Supreme Court
                   reversed a conviction under this statute. The Supreme Court’s action was by
                   memorandum opinion which merely indicated that the conviction was
                   reversed~ and cited page 525 of its opinion in Gooding v. Wilson, 405 U.S. 518
                   (1972). You suggest that there is a question regarding the statute’s facial
                   constitutionality  since the Gooding case found a similar Georgia statute to
                   be invalid.

                          We do not believe that so much can be read into the Supreure Court’s
                   summary action. ,Since Chaplinsky v. New Hampshire, 315 U.S. 568 (1942),
                   the Supreme Court has held that states may validly prohibit the useof
                   “fighting words.” We have examined the briefs submitted to the Supreme
                   Court in Acker, and the page of Gooding relied on by the Court was cited by
                   appellant for the proposition that the words involved in Acker were not
                   fighting words, i.+, words which by their very utterance would tend to incite
                   an immediate breach of the peace. Thus it appears that the Supreme Court
                   found merely that the particular         facts involved in Acker could not
                   constitutionally  constitute an offense.




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Honorable George McCrea       -    Page Two    (NW-l)



       There is no indication that the Court found the statute to be facially invalid.
Indeed, it is obvious that the Texas statute was carefully drafted with the relevant United
States Supreme Court cases in mind. See Practice Commentary to V.T.P.C., S 42.01.
Also, in marked contrast to the Georgiastatute       involved in Gooding, the Texas law has
received judicial gloss indicating that the legislature did not intend to prohibit conduct
unless it fell within limits defined by the United States Supreme Court. Nine months after
the Acker case was decided, the Texas Court of Criminal Appeals issued its en bane
de&-n          Jimmerson v. State, 561 S.W.2d 5 (Tex. Crim. App. 1978), in which the
defendant had challenged, on the basis of Goodin the constitutionality     of another portion
of the statute in question, section 42.01(a  -e 4). Although  the Court of  Criminal Appeals
ultimately found it unnecessary to determine the question, it asked rhetorically whether
section 42.01(a)(4) applies “only to ‘fighting words’ which by their very utterance tend to
incite an immediate breach of the peace. ” The court then answered its own question:

            . . . we are confident that the Legislature intended that anything
            short of ‘fighting words’ would not be a violation of that section
            because     the section     was enacted     and became    effective
            (January 1, 1974) well after the decisions in Gooding v. Wilson and
            Chaplinsky v.. New Hampshire, both supra, had clarified the law on
            the subject of disorderly conduct statutes. . . .

561 S.W.ILd, at 7.

      Thus, in our opinion the United States Supreme Court’s decision in Acker v. Texas
did not indicate that section 42.01(a)(l) of the Penal Code is facially unconstitutional.

                                       SUMMARY

            The United States Supreme Court’s decision in Acker v. Texas, 430
            U.S. 962 (1977), did not invalidate section 42.01(a)(l) of the Penal
            Code which relates to the use of abusive language.

                                         hm&.g



                                               Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Rick Gilpin
and C. Robert Heath
Assistant Attorneys General



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Honorable George McCrea     -   Page Three   (MW-1)



APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Douglas M. Becker
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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