Texas Penal Code 42.11 – Destruction of Flag

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Texas Penal Code 42.11 – Destruction of Flag

WHAT IS DESTRUCTION OF FLAG IN TEXAS?

The Texas law against burning, defacing, or mutilating a United States or Texas flag was declared unconstitutional in 2015. The legislature has not repealed the statute, so although it is unenforceable, it is still a criminal offense in the Penal Code.

WHAT IS THE DESTRUCTION OF FLAG LAW IN TEXAS?

Tex. Penal Code § 42.11. DESTRUCTION OF FLAG.

(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.

(c) It is an exception to the application of this section that the act that would otherwise constitute an offense is done in conformity with statutes of the United States or of this state relating to the proper disposal of damaged flags.

(d) An offense under this section is a Class A misdemeanor.

WHAT IS THE PENALTY CLASS FOR DESTRUCTION OF FLAG IN TEXAS?

Destruction of an American flag is a Class A misdemeanor, and would be punishable by up to one year in county jail were it constitutional.

WHAT IS THE PUNISHMENT RANGE FOR DESTRUCTION OF FLAG IN TEXAS?

The punishment range for a Class A misdemeanor is a maximum jail sentence of one year, and up to a $4,000 fine.

WHAT ARE THE PENALTIES FOR DESTRUCTION OF FLAG IN TEXAS?

A person charged with a Class A misdemeanor may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period of up to two years.

WHAT ARE THE DEFENSES TO DESTRUCTION OF FLAG IN TEXAS?

Although this law was declared facially unconstitutional in 2015 after a pattern of non-enforcement, it has not been repealed. There is a slight chance a person who destroys an American flag in front of police will be wrongfully arrested. Ultimately, however, a destruction of flag charge must be dismissed, because it violates the First Amendment.

WHAT IS THE STATUTE OF LIMITATIONS FOR DESTRUCTION OF FLAG IN TEXAS?

The limitation period for destruction of a flag, a Class A misdemeanor, is two years.

DESTRUCTION OF FLAG IN TEXAS

The law prohibiting destruction of a flag was declared unconstitutional by the Texas Court of Criminal Appeals in 2015.

TEXAS DESTRUCTION OF FLAG COURT CASES

The case law regarding destruction of flag in Texas has declared the law unconstitutional.

In State v. Johnson, the defendant was walking by a local business with an American flag hanging. He pulled the flag and its staff down, and threw the flag in the street. After being caught on video surveillance and interviewed by police, he was charged with destroying the flag. Ultimately, the Court concluded the flag-desecration statute impermissibly restricted speech by punishing a person for expressing an idea.

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CHARGES DISMISSED

DRIVING WHILE INTOXICATED .15

Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.

CHARGES DISMISSED

DRIVING WHILE INTOXICATED .15+

Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest.

CHARGES DISMISSED

DWI 2ND

Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.

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