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Disorderly Conduct: The Texas Crime

Disorderly Conduct is a Texas crime that occurs when someone’s actions disturb or upset the ‘general order’ of the public. Prosecuting attorneys typically file this charge when someone has been arrested for causing some kind of disturbance. The language of the Disorderly Conduct statute covers many situations (we cover these in detail below). Disorderly Conduct is often brought together with other criminal charges such as Public Lewdness or Criminal Mischief. For example, if you ‘pick a fight’ at a bar you might be charged with both Assault and Disorderly Conduct.

The Disorderly Conduct Texas law is vague and extremely broad. The statute essentially criminalizes public actions that could be seen as offensive, rude, or threatening to the general public.

Disorderly Conduct is classified under Texas Penal Code in Title 9, “Offenses Against Public Order and Decency,” Chapter 42, “Disorderly Conduct and Related Offenses.” The full text of the Disorderly Conduct law is below, and as you can see, it covers a wide range of conduct.

The offense also encompasses actions that are not violent. There are a handful of defenses specific to this charge that are discussed below in addition to all of the other ways in which we defend against Assault Crimes and Property Crimes. An experienced criminal attorney can help you determine whether or not you have a defense available under the Disorderly Conduct statute.

How can I be charged with the offense of Disorderly Conduct?

Because the statute was written in a very general way, a whole array of conduct may fall under the Disorderly Conduct law.

Disorderly Conduct is described in Section 42.01 of the Texas Penal Code as follows:

(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;

(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;

(3) creates, by chemical means, a noxious and unreasonable odor in a public place;

(4) abuses or threatens a person in a public place in an obviously offensive manner;

(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;

(6) fights with another in a public place;

(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

(9) discharges a firearm on or across a public road;

(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or

(11) for a lewd or unlawful purpose:

(A) enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;

(B) while on the premises of a hotel or comparable establishment, looks into a guest room not the person’s own through a window or other opening in the room; or

(C) while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.

This statute covers a lot of ground, but we break the law down into its basic parts below. Disorderly Conduct includes situations in which someone:

  • Uses language that is so upsetting and vulgar that it causes public disorder. (For example, shouting ‘Fire’ in a crowded movie theater)
  • Makes some sort of gesture of display that is so upsetting and vulgar that it causes public disorder (For example, lighting a smoke bomb that makes people believe there is a fire in a theater)
  • Uses chemicals to make an odor that is so strong that it causes disorder (For example, a ‘stink bomb’ that a student uses to get out of class)
  • Makes threats or using abusive behavior that any reasonable person would be offended by it (For example, approaching a child and threatening to kill their parents would be considered an offensive threat)
  • Makes a noise so loud in a public place or private location you are not allowed in, that an average person would consider it unreasonable (For example, driving a car with a modified muffler that creates a painfully loud noise)
  • Fights with someone else in public (For example, if someone were to start fighting with you at a bar, you both might be charged)
  • Displays fires, or uses a gun in a threatening manner in a public place (For example, firing a gun into the air in the middle of the street)
  • Exposes his or her genitals in public
  • Looks into windows you are not allowed in (For example, the classic ‘peeping tom’)

Disorderly conduct can be categorized into three distinct categories; speech, assaultive behavior, and lewd behavior.

Speech

Although the government generally cannot impeded your freedom of speech, certain types of language and communication could fall under the disorderly conduct statute. The state criminalizes speaking words or phrases that would be interpreted as abusive, indecent, profane or vulgar in a public place, if they would tend to incite an immediate “breach of the peace.” The statute also criminalizes gestures or displays or offensive behavior that would incite a “breach of the peace”.

Assaultive and Disruptive Behavior

Acts that tend to scare the public or be a nuisance are also encompassed under this statute. Fighting in a public place would constitute the elements of disorderly conduct. Discharging a weapon in public, even if it doesn’t hurt anyone could also be a criminal act if it puts another in fear. Because the bar is so low, acts such as throwing a smoke or stink bomb could also be considered disorderly conduct.

Lewd Behavior

The law was also drafted to criminalize lewd or offensive behavior not categorized as assaultive. Exposing ones genitals or anus in a reckless manner without considering who may be around to witness it and may be offended is prohibited. This is the statute that public urination falls under in Texas law. “Mooning” would also fall under this category, so long as it was not for sexual gratification, in that case it could be elevated to Indecent Exposure.

You can be charged under the lewd acts category if, “for lewd or unlawful purposes,” you enter another’s property to look into the dwelling through windows or other openings. This also applies to hotel rooms and other places intended to provide privacy such as restrooms and changing rooms.

What is the range of punishment for Disorderly Conduct?

An offense under this statute is usually a Class C Misdemeanor (maximum $500 fine), except for two categories of activities involving firearms1 that are Class B Misdemeanors (maximum six months in county jail plus a $2000 fine). Learn more about the range of punishments for Texas crimes

Don’t I have a First Amendment Right to free speech?

The First Amendment guarantees the right to freedom of speech, but the courts have made some exceptions. Particular vulgar language, or language that might constitute a ‘true threat’ of danger or violence is not protected. For example, yelling ‘fire’ in a movie theater has the potential to cause serious bodily harm to the people in there and the constitution does not protect that. However, there are some sorts of comments that may seem inappropriate but are still protected. A skilled criminal defense attorney will be able to advise you on your chances of raising this defense.

The only reason I had a gun out was that I was afraid for my safety. Does that change the offense?

If you had your weapon out for the purposes of self-defense, then you have a defense to a Disorderly Conduct charge.2 You may also have a defense if you feared for your safety from a wild animal.

The only reason I made threats and used abusive language was that I was provoked. Can I still be charged?

The Disorderly Conduct law provides a defense to prosecution if you can show that you were unreasonably provoked if the Disorderly Conduct charge was for making threats and using abusive language.3 For example, if someone were to come up to you and start provoking you with exceptionally vulgar remarks, threats, or suggestions, then we may be able to successfully defend you under this charge and win a verdict of not guilty.

Can I keep a Disorderly Conduct off my record?

If you have been charged with disorderly conduct there are ways to prevent it from permanently damaging your record. If the charge remains a Class C misdemeanor, a deferred probation is a possibility, which if successfully completed would result in the dismissal or your case. These cases would then be eligible for complete record destruction through the process of expunction.

Other notes about Disorderly Conduct

The Disorderly Conduct statute specifically exempts noise arising from “space flight activities.” So, if you’re flying a space shuttle, don’t worry about breaking the law.4

Kids younger than 12 are exempted from some types of Disorderly Conduct when they are in school.5


Legal References:

1 The two exceptions are Texas Penal Code Section 42.01(a)(7) (“discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code”) and Texas Penal Code Section 42.01(a)(8) (“displays a firearm or other deadly weapon in a public place in a manner calculated to alarm”). See Texas Penal Code Section 42.01(d) – “An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.”

2 Texas Penal Code Section 42.01(e) – “It is a defense to prosecution for an offense under Subsection (a)(7) or (9) that the person who discharged the firearm had a reasonable fear of bodily injury to the person or to another by a dangerous wild animal as defined by Section 822.101, Health and Safety Code.”

3 Texas Penal Code Section 42.01(b) – “It is a defense to prosecution under Subsection (a)(4) that the actor had significant provocation for his abusive or threatening conduct.”

4 Texas Penal Code Section 42.01(g) – “Noise arising from space flight activities, as defined by Section 100A.001, Civil Practice and Remedies Code, if lawfully conducted, does not constitute “unreasonable noise” for purposes of this section.”

5 Texas Penal Code Section 42.01(f) – “Subsections (a)(1), (2), (3), (5), and (6) do not apply to a person who, at the time the person engaged in conduct prohibited under the applicable subdivision, was a student younger than 12 years of age, and the prohibited conduct occurred at a public school campus during regular school hours.”