Untitled Texas Attorney General Opinion ( 1979 )

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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