4.7 Public Order, Weapons, Intoxication, and Organized Crime

Patrol-Facing Penal Code Families

Many of these offenses begin as patrol calls — a noisy crowd, a visible weapon, an intoxicated person. The correct charge still comes from elements, not the scene's appearance.

Public order and the First Amendment

Disorderly conduct (PC 42.01) covers abusive/profane language in a public place that tends to incite an immediate breach of the peace, unreasonable noise, fighting, or displaying a firearm to alarm. The exam tests whether speech is protected expression or conduct meeting the statute. Offensive speech alone is usually protected; speech that incites imminent breach of peace is not. Harassment (PC 42.07) and stalking (PC 42.072) require repeated or threatening conduct directed at a person.

Weapons (Chapter 46)

Unlawful carrying (PC 46.02) and places weapons prohibited (PC 46.03) — schools, polling places, courts, secured airport areas, certain government meetings — are heavily tested. Unlawful possession of a firearm by a felon (PC 46.04) generally bars possession before the fifth anniversary of release and limits later possession to the felon's home. Prohibited weapons (PC 46.05) include explosive weapons, machine guns, short-barrel firearms, and tire-deflation devices. Texas permitless carry (since 2021) changes who may carry but does not repeal the prohibited-places and prohibited-weapons rules.

Intoxication (Chapter 49) — exact thresholds

Intoxicated (PC 49.01) means not having the normal use of mental or physical faculties due to alcohol or drugs, OR having an alcohol concentration of 0.08 or more. The 0.08 figure is a frequent exam anchor.

Worked example: an officer stops a speeder and sees an uncapped liquor bottle in the console. If field sobriety testing clears intoxication, DWI fails, but the open container offense may stand. Add a 6-year-old in the back seat plus proven intoxication → DWI with child passenger (PC 49.045), a state jail felony.

DWI grading and the no-defense rule

DWI grades climb fast. A first DWI is a Class B misdemeanor (with a 72-hour minimum confinement). A second is a Class A. A third or more is a third-degree felony. A first DWI with a BAC of 0.15 or more at testing is bumped to a Class A misdemeanor. Importantly, PC 49.10 provides that in a Chapter 49 prosecution, the fact that the defendant was entitled to use the substance (a valid prescription, for instance) is no defense — loss of normal faculties is what matters, not legality of the drug. The exam tests this directly with prescription-medication fact patterns.

Public intoxication nuance

Public intoxication (PC 49.02) is a Class C misdemeanor and requires intoxication in a public place to a degree that the person may endanger himself or another. Intoxication alone is not enough — the endangerment element must be met, and the location must be public. A person quietly intoxicated inside his own home commits no PI offense. For a minor, intoxication is also addressable under the Alcoholic Beverage Code, not just Chapter 49.

Weapons exceptions and prohibited places worked example

Under permitless (constitutional) carry, most adults 21 and over not otherwise prohibited may carry a handgun. But PC 46.03 still bars carrying in schools, polling places on election day, courts, racetracks, secured airport areas, and within 1,000 feet of an execution site on certain days, and PC 46.04 still bars felons and those with recent family-violence convictions. Worked example: a non-prohibited adult lawfully carries a handgun on the street, then walks into a school building to vote — the carry was lawful outside but becomes unlawful carrying in a prohibited place once inside the school.

The location, not the person, created the offense.

Organized crime (Chapter 71)

Engaging in organized criminal activity (PC 71.02) requires that the actor, with intent to establish, maintain, or participate in a combination or a criminal street gang, commits or conspires to commit a listed predicate offense (such as murder, robbery, or certain drug offenses). A combination under PC 71.01 is three or more persons who collaborate in carrying on criminal activities; participants need not know each other's identities, and membership may change.

A criminal street gang is three or more persons with a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in criminal activity. Two people loitering together do not meet the statute.

Exam trap: Do not turn every intoxicated contact into DWI — operation, public place, and the 0.08-or-loss-of-faculties test must all be met, and PI requires endangerment. And remember organized crime needs the statutory combination of three or more plus a predicate offense, not mere association.