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1979 Texas Attorney General Reports and Opinions 1 (1979)

handle is hein.sag/sagtx0013 and id is 1 raw text is: The Attorney General of Texas January 30, 1979 1ARK WHITE Attorney General Supreme Court Building P.O. Box 12548 Austin, TX. 78711 512/475-2501 701 Commerce, Suite 200 Dallas, TX. 75202 214/742-8944 4824 Alberta Ave., Suite 160 2I Paso, TX. 79905 915/533-3484 723 Main, Suite 610 TX. 77002 80701 '606 Broadway, Suite 312 Lubbock, TX. 79401 8'06/747-5238 4313 N. Tenth, Suite F tcAllen, TX. 78501 11 2/682-4547 200 Main Plaza, Suite 400 San Antonio, TX. 78205 512/225-4191 An Equal Opportunity/ Affirmative Action Employer Honorable George McCrea County Attorney Tom Green County Courthouse San Angelo, Texas Opinion No. MW-I Re: Constitutionality of section 42.01(a)(1), Penal Code. Dear Mr. McCrea: You have requested our opinion regarding the constitutionality of article 42.01(a)(1) 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, language in a public place, language by its very utterance incite an immediate breach peace.... or vulgar and the tends to of the In Acker, 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 Supreme 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 use of 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.e., 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

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