I swear I am not starting a political discussion, I'm sort of presidential-candidated-out. I have an actual prosecution question from a pending case.

My question is: the flag burning statute--is it constitionally enforceable?

There are old statutes like 42.12 that is now a different offense that were unconstitutional, but it doesn't look like any of the statutes have passed const. muster--so why is it still on the books?

Homosexual conduct is also still on the books (section 21.06, PC) as a crime, years after Lawrence declared it unconstitutional. See any connection between the two provisions?

quote:

---

Originally posted by suzannejost:
why is it still on the books?

---

Caselaw can invalidate a statute, but it cannot repeal one. Only the legislature can remove language from a statute. Sometimes, that takes a long time. For instance, old CCP Art. 32A.02 ("Speedy Trial: Time Limitations") was invalidated by the CCA in 1987 (Meshell v. State, 739 S.W.2d 246), but it was not repealed by the Lege until 2005.

Just think of it as an ongoing prank on new lawyers.

But, I guess it could be the result of a Legislature that does not want to go on the record as supporting repeal of a law supported by a majority of the public (or at least a majority of the controlling political party in power at the time), even if a court has declared it unconstitutional.

And new officers....and experienced officers who get frustrated when now I tell them even their penal code isn't rock solid.

I'm just glad my agencies tend to call me when they have a question and no arrest was made.

But neither of my quick references--TDCAA's Penal Code or the O'Connor's mentioned any cases that said it was unconstitutional, so I thought maybe I was missing something in the caselaw.

Thanks as always!

In Criminal Laws of Texas, the TDCAA publication that has the annotations along with the codes, there are notes about unconstitutionality for both flag burning (42.11) and homosexual conduct (21.06) (see pp. 43 & 120). I haven't taken the statutes themselves out of the books for the reasons discussed by others who have replied to this thread -- while they've been declared unconstitutional, they have not been repealed.

The spiral-bound Penal Code doesn't have the same level of annotations as the Criminal Laws of Texas; instead, that book features the strikethrough/underline language from the bills. Each of those two features -- (1) strikethrough/underline, or (2) annotations -- take up a lot of pages, and unless the legislature repeals a WHOLE lot of statutes, we're never going to be able to accomodate both features in one volume, unfortunately. We have legislative notes in the spiral volumes of the PC and CCP but not annotations. A lot of offices solve the problem by buying at least one set of each book so they're not missing anything.

Thanks very much Ms. Beckham, it's on my supply list now!

I think there's a reward for burning a French flag.

There is, but you have to add powdered sugar and syrup to qualify.

I guess I should be thankful the kid in my jurisdiction just hung the burning flag out his car window as he drove down Main St. with "F the Police" written on his expired registration sticker--which was the reason he was actually stopped. Could've been worse, I suppose! He wasn't arrested for the flag burning, the officers called first to ask about it, but it's like a trap out there for them to fall into!