Texas State Laws on Flag Burning, Desecration, Abuse

American and Texas flags

TimothyJ / Flickr / CC BY 2.0

In Texas, it is a misdemeanor if someone "intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United States or the State of Texas."

A "flag" includes any "emblem, banner, or other standard or a copy of an emblem, standard, or banner that is an official or commonly recognized depiction of the flag of the United States or of this state and is capable of being flown from a staff of any character or size" but does not include "a representation of a flag on a written or printed document." Texas Penal Code 42.11.

Analysis of the Law

Texas was the source of the infamous Texas v. Johnson Supreme Court decision which upheld people's right to burn American flags. At the time, the law made it a misdemeanor for someone to knowingly desecrate "a state or national flag," where desecrate was defined as "deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action."

There isn't much difference between the law that was held unconstitutional in 1989 and the law which currently sits on the books in Texas. Now, as then, the crime is located not so much in the act as it is in causing negative reactions in others. You aren't guilty of flag desecration in Texas if you burn a flag and no one is offended; you only become a criminal when others take offense.