# 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, 430U.S.962 (1977). The statute inquestion states:

(a) Aperson commits an offense ifhe intentionally orknowingly: (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 wasby memorandum opinion which merely indicated that the conviction was reversed~and cited page 525of its opinion in Gooding v.Wilson, 405U.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. Wedo not believe that so much can be read into the Supreure Court’s summary action. ,Since Chaplinsky v. New Hampshire, 315U.S. 568 (1942), the Supreme Court has held that states may validly prohibit the useof
“fighting words.” Wehave examined the briefs submitted to the Supreme Court in Acker, and the page of Gooding relied onby the Court wascited by appellant for the proposition that the words involved in Acker were not fighting words, i.+, words which bytheir 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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There is no indication that the Court found the statute to be facially invalid. Indeed, it isobvious 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., S42.01. 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 bythe 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 ofGoodin -e the constitutionality ofanother 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 ofthe peace.” The court then answered its ownquestion:

. . . 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 ofdisorderly conduct statutes.
. . . 561S.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)ofthe Penal Code isfacially 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 ofabusive 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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APPROVED: OPINION COMMITTEE C. Robert Heath, Chairman Douglas M.Becker David B.Brooks Susan Garrison Rick Gilpin William GReid Bruce Youngblood

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