The Attorney General of Texas 

January 30, 1979 

MARK WHITE 

Attorney General 

Honorable George McCrea 

County Attorney 

Tom Green County Courthouse 

San Angelo, Texas 

Dear Mr. McCrea: 

Opinion No. MW-1 

Re: Constitutionality of section 

42.01(a)(l), Penal Code. 

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. 

P. 1 
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 

-e 

the constitutionality of another portion 

of the statute in question, section 42.01(a 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 

P. 2 
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 

P. 3