Question
Nine-year-old Tiffany and 12-year-old Penelope get into a massive fight on their public elementary school playground during recess. Both girls are cut and bleeding because
Nine-year-old Tiffany and 12-year-old Penelope get into a massive fight on their public elementary school playground during recess. Both girls are cut and bleeding because they used their hair barrettes as weapons.
To make things worse, both girls are arrested and charged with disorderly conduct. Specifically, they're charged with fighting with another in a public place in violation of Texas Penal Code 42.01(a)(6).
Section 42.01 reads as follows:
Sec. 42.01. DISORDERLY CONDUCT.
(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 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;
(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm; or
(9) discharges a firearm on or across a public road;
(a-1) For purposes of Subsection (a), the term "public place" includes a public school campus or the school grounds on which a public school is located.
(b) It is a defense to prosecution under Subsection (a)(4) that the actor had significant provocation for his abusive or threatening conduct.
(c) 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.
(d) 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.
(e) Subsections (a)(1), (a)(2), (a)(3), (a)(5), and (a)(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.
(f) 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.
Using the statute, answer the following two questions.
1. What class of offense is this?
2. Is there a possible affirmative defense for Tiffany and Penelope? If so, what is that defense? Be specific.
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