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,


Attorney General
Supreme Court Building
P.O. Box 12548
Austin, TX. 78711
701 Commerce, Suite 200
Dallas, TX. 75202
4824 Alberta Ave., Suite 160
2I Paso, TX. 79905
723 Main, Suite 610
TX. 77002
'606 Broadway, Suite 312
Lubbock, TX. 79401
4313 N. Tenth, Suite F
tcAllen, TX. 78501
11 2/682-4547
200 Main Plaza, Suite 400
San Antonio, TX. 78205
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

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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