The Texas Destruction of Flag law gives police the right to arrest you if they believe you intentionally burned or damaged the flags of the United States or Texas.

IMPORTANT NOTE: This law has been held unconstitutional by the Texas Court of Criminal Appeals, the highest court of criminal appeals in the State of Texas.

The Texas Penal Code codifies the Destruction of Flag law under Title 9 “Offenses Against Public Order and Decency,” Chapter 42 “Disorderly Conduct and Related Offenses.” Learn more about the Texas offense of Destruction of Flag below.

What is the current Texas law about Destruction of Flag?

The current Texas law defines the offense of Destruction of Flag in Penal Code Section §42.11 as follows:^[1]

(a) A person commits an offense if the person intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United States or the State of Texas.

This law has been held unconstitutional by the Texas Court of Criminal Appeals, the highest court of criminal appeals in the State of Texas.^[2] The United States Supreme Court held a similar law to be unconstitutional back in 1989.^[3] So this law should no longer be enforced, even though it is still on the books.

How can I be charged with a Destruction of Flag offense in Texas?

You could theoretically be charged with Destruction of Flag in Texas if the state’s attorneys believe that each of the elements of 42.11(a) as described in the section above have been met. However, because the statute is unconstitutional,^[4] no one should be charged with this offense at this time.

What is the statute of limitation for Destruction of Flag in Texas?

As a misdemeanor, Destruction of Flag charges have a two-year limitations period.^[5]

What is the penalty for a Texas Destruction of Flag offense?

A conviction for Destruction of Flag in Texas is punished as a Class A misdemeanor,^[6] with a maximum possible fine under Texas state law of up to $4000 and jail time of up to one year. Learn about the differences between grades of felonies and misdemeanors here.

Can you get probation for Destruction of Flag in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Destruction of Flag, and judges are also allowed to accept deferred adjudication plea deals.^[7]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years or for any state jail felony sentence.^[8] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[9]

What level of crime is Destruction of Flag in Texas?

The Penal Code classifies Destruction of Flag as a Class A misdemeanor.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §42.11. This law is current as of the 88th Legislature Regular Session.^2. State v. Johnson, 475 S.W.3d 860, 865 (Tex. Crim. App. 2015); see also News Coverage^3. Texas v. Johnson, 491 U.S. 397 (1989)^4. Texas v. Johnson, 491 U.S. 397 (1989)^5. See Code of Criminal Procedure 12.02(a)^6. Texas Penal Code §42.11(d)^7. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^8. Art. 42A.053(c), Texas Code of Criminal Procedure^9. Art. 42A.054(b), Texas Code of Criminal Procedure