P 

Nay 11, 1988 

Honorable David H. Cain Opinion No. m-900 

Texas House of Representatives 

P. 0. BOX 2910 Re: Whether the use of 

Austin, Texas 78769 "abusive, indecent, profane or vulgar" language 

in a public place constitutes an immediate breach 

of the peace (RQ-1378) 

Dear Representative Cain: 

Section 42.01 of the Penal Code provides in part that 

(a) A person commits an offense if he 

intentionally or knowingly: 

(1) uses abusive, indecent, profane, or 

vulgar language in a public place, f& 

the lancuaue bv its verv utterance tends 

to incite an immediate breach of the 

peace[.] (Emphasis added.) 

Penal Code 542.01(a)(l). 

you ask the following questions: 

(1) Does uttering abusive, indecent, profane, or vulgar language in a public place 

constitute an immediate 'breach of the 

peace?' 

(2) How is 'breach of the peace' defined 

in relation to Article 42.01(a)(l)? 

In order for this provision to withstand scrutiny under the 

P broad guarantees for freedom of expression and due process 

of law in the United States Constitution, the utterances 

prohibited can & include "fighting words.11 Chanlinskv v. 

New Hamnshire, 315 U.S. 568 (1942). See Goodins v. Wilson, 

F 

p. 4438 
Honorable David H. Cain - Page 2 (JM-900) 

405 U.S. 518 (1972) and Acker v. Texas 430 U.S. 962 (1977). 

See also Attorney General Opinion MW-1'(1979).l 

Whether particular words are nfighting words" is a 

? 

matter of fact. Chanlinsky, sunra, at 573. 

The test is what men of common intelligence 

would understand would be words likely to 

cause an average addressee to fight. . . . 

Derisive and annoying words can be taken as 

coming within the purview of the statute 

. . . only when they have this characteristic 

of plainly tending to excite the addressee to 

a breach of the peace. 

See Goodingv. Wilson, sunra, at 522, quoting with appro;;; 

the Supreme Court of New Hampshire, 18 A.2d 754, 758, 

(1941). See aenerallv, Cohen v. California, 403 U.S. 15, 20 

(1971): Bachellar V. M a rv land, 397 U.S. 564, 567 (1970); and 

Goodinq, sunra. The "line between speech unconditionally 

guaranteed and speech which may legitimately be regulated, 

suppressed, or punished is finely drawn," Sneiser v. 

Randall, 357 U.S. 513, 525 (1958). 

Speech punishable under the Penal Code provision does 

not include language merely harsh and insulting, see 

Goodinq, a at 525, and it should not include speech, 

actual or symbolic, that is only l'inappropriate," 

"naughty," "disgusting,"' "repulsive," wtactless," llgross, I1 

or "appalling." Annot., 2 A.L.R.4th 1331. Conviction under 

a statute specifying a "breach of the peace" as an element 

of the offense must be based on jury instructions including 

an admonition that proof of "actual or threatened violence 

is essential." Woods v. State 213 S.W.2d 685, 687 (Tex. 

Crim. App. 1948). In other words anything short of the use 

of "fighting words" does not co;lstitute a breach of the 

statute. &R Jimmerson v. State 561 S.W.2d 5 (Tex. 

Speech is protected against punishment 

Crim. 

App. 1978). unless 

"shown likely to produce a clear and present danger of a 

serious substantive evil that rises far above public 

inconvenience, annoyance, or unrest." Terminello v. 

Chicaao, 337 U.S. 1, 4 (1949). 

1. This statute does not concern speech legally obscene 

under the standards provided by the United States Supreme 

Court in Wilier v. California, 418 U.S. 915 (1973). See 

Snears v. State, 337 So.Zd 977 (Fla. 1976). 

p. 4439 
Honorable David H. Cain - Page 3 (JR-900) 

Finally, because- the application of the statute may 

turn largely on the factual setting of the speech at issue, 

- the test is whether, in a particular instance, an average 

person would be inured to respond by fighting. 

person is 

An average 

not someone who is overly sensitive or 

inured to the speech in question. 

overly 

Cohen. suora and Houston 

v. Hill, 482 U.S. --, 96 L.Ed.2d 398 (1987), quoting from 

a concurring opinion of Justice Powell in Lewis v. New 

Orle ans, 415 U.S. 130, 135 (1974). 

SUMMARY 

Article 42.01(a)(l) of the Penal Code 

applies only to speech which as a matter of 

fact constitutes "fighting words." As a 

matter of law, the statute does not reach 

speech that merely causes public inconvenience, annoyance, or unrest. "Fighting 

wordsl' are words which would likely cause an 

average addressee to fight. An "average 

addressee" is not .someone either overly 

sensitive or overly inured to the speech in 

question. 

JIM MATTOX 

Attorney General of Texas 

MARYEELLER 

First Assistant Attorney General 

Lou MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAELEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Don Bustion 

Assistant Attorney General 

p. 4440