Texas Flag Burning

Eugine and David have been posting at the Volokh Conspiracy about flag burning. This gives me a chance to address an issue that's been bothering me for years. Disclaimer 1: I'm not a lawyer, or a law student, or a person who did especially well in my Constitutional Law class at Rice. I'm very likely missing some important legal insights; pointers welcome. Disclaimer 2: I'm a huge believer in freedom of expression, including the right to burn flags. But I don't think this has anything to do with the point I'm about to make. As I understand it, the United States Supreme Court has declared flag burning to be a form of expression protected under the First Amendment. This the landmark decision of Texas v. Johnson in 1989. The Court struck down former Texas Penal Code §42.09, which read thus:

PenC §42.09. Desecration of Venerated Object (a) A person commits an offense if he intentionally or knowingly desecrates: (1) a public monument; (2) a place of worship or burial; or (3) a state or national flag. (b) For purposes of this section, 'desecrate' means 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. (c) An offense under this section is a Class A misdemeanor.

The Supreme Court overturned this statute, writing that: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." This was June 21, 1989. The Texas Legislature apparently observed the Court's nullification of its law, and turned around that very summer and passed a new anti-flag-burning statute. The following has been on the books ever since:

PenC §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. (b) In this section, “flag” means an 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. The term does not include a representation of a flag on a written or printed document, a periodical, stationery, a painting or photograph, or an article of clothing or jewelry. (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.

Is the new §42.11 substantively different from the unconstitutional §42.09? I haven't found any record of a court challenge to §42.11, which I find rather suprising. It seems to me as if the Texas Legislature in 1989 just decided to reword the old statute and put it up again, Constitutionality be damned. If this is right, it's kind of scary -- it means that when the Supreme Court makes a decision, we're not very safe from state who want to ignore it. What if Texas passed a new anti-gay-sex statute next year? Does anyone know if there's something more complicated going on here? Could I really be arrested for burning a flag as a political expression in Texas? If I were, is there any chance I'd lose a court case? Would my defense have to amount to anything more than "look what the Supreme Court wrote in Texas v. Johnson"?