Disorderly Conduct Charge for Making an Obscene Gesture

[kaybaby]

My question involves criminal law for the state of: Texas

My 20 year old daughter lives across the street from a junior high, while attending college. She was coming home from class and found that her driveway was blocked by cars and the crossing guards. They would not allow her to pull into her drive way. I don't think they realized she lived there. Anyhow, she flipped off the crossing guard who immediately called over a traffic cop and my daughter was cited for disorderly conduct for flipping her off. The cop saw nothing, my daughter admitted to nothing. She was wrong, she should have never of done that. She did it from inside her car. The cop didn't want to hear anything she had to say and told her he would arrest her if she opened her mouth.

She has never been in trouble for anything, ever. This scared the crap out of her. She just wants to plead guilty and pay the fine. I'm on the other side of Texas and don't know what she should do. I'm more concerned about having this on her record.

I would love some suggestions,

Kay

[Disagreeable]

Many courts have held flipping off police officers is freedom of expression. I would imagine a lowly crossing guard does not even rate that high. Tell her to plead not guilty and let the state make its case. By law the act must have created a breach of the peace. It is a defense if the person had provocation for their threatening conduct. Conviction is a class C misdemeanor which can cause her to not gain employment after college. A lawyer is a good idea. I also suggest she exercise her right to remain silent. Even if the guard testifies she did it, all she needs to do is establish provocation and not admit guilt.

http://www.statutes.legis.state.tx.u.../htm/PE.42.htm

[kaybaby]

Thank you for responding. She does not want to fight it. She just wants to pay the fine and move on. I really want her to challenge it, but she doesn't want to. She's really a nice quiet girl, I don't know what got into her.

I wanted to add that she is attending college in a very christian town.

Kay

[Disagreeable]

Ask her if she is wasting 4 years of her life going to college to give away a potential dream job over flipping off an idiot. That is likely what she is doing by not fighting this. The officer was being a jerk for citing her IMO. Sometimes in life we do things we have to do whether we want to or not.

[kaybaby]

I will talk to her today. I am concerned with the cost of the attorney etc. I also don't know of anyone in her town that we can use.

Kay

[cdwjava]

The crossing guard is not a police officer and the same standards of tolerance likely do not apply.

Here is the law (assuming this is what she was charged with):

http://www.statutes.legis.state.tx.u.../htm/PE.42.htm

It would appear she is guilty of 42.01(a)(2)

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
(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;

Whether the gesture alone is sufficient to meet the legal requirements that it "tends" to incite a breach of the peace or not, I can't say. But, it certainly was not intended as a gesture of "it's okay" or "peace and love."

If this is an offense that can carry jail time, she should have the right to have an attorney assigned to her by the court if she cannot afford one. However, if it is such that it is a fine only, appointed counsel may not be an option.

[adjusterjack]

She's really a nice quiet girl, I don't know what got into her.

That's what people invariably say about those who take up firearms and massacre groups of crowded people.

She probably

She's really a nice quiet girl, I don't know what got into her.

a very christian town.

What does that have to do with anything?

Ever hear of the Crusades?

[kaybaby]

She was frustrated with her drive way being blocked. Comparing this to massacre groups is ludicrous. I mention it being a christian town because they frown heavily on cussing etc.

Kay

[Bubba Jimmy]

This is not a traffic ticket, it is a misdemeanor criminal charge that will stay on her record. Please, have her get some professional advice before paying the fine and moving on. I don't think she understands the potential consequences. It is dangerous to proceed when you don't know what you don't know. A consultation with an attorney should not be very expensive, and then she can decide what to do. Many lawyers will give you a short consultation for a very reduced rate so you can sort things out a bit.

- - - Updated - - -

The crossing guard is not a police officer and the same standards of tolerance likely do not apply.

Here is the law (assuming this is what she was charged with):

http://www.statutes.legis.state.tx.u.../htm/PE.42.htm

(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;[/indent]

Don't overlook the word "and" in that statute. I don't see any immediate breach of the peace in the facts of this occurrence. No fight broke out.

[kaybaby]

Thank you all, I have called an attorney and am waiting on a call back.

Kay