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Myth Busting and the Texas Flag

Galveston County Courthouse Every month I find another website that quotes a list of facts about Texas. Most of the time they quote the same "facts" about Texas picked up from other websites, because the lists are always similar. This morning, I was rummaging through my news reader and found this article, Texas Facts, with a list of twenty-two facts, including number 14.

14. Texas is the only state to enter the U.S. by TREATY, (known as the Constitution of 1845 by the Republic of Texas to enter the Union) instead of by annexation. This allows the Texas Flag to fly at the same height as the U.S. Flag, and Texas may divide into 5 states.

Having read and heard these two facts quoted for years, I decided to go to the source and see whether they were true or not. The short answer is, one is true and the other is not.

A copy of the entire 1845 Constitution of the State of Texas is available online from the Tarlton Law Library and the time I spent reading the document was worth the time. It is an enjoyable way to spend an hour if you want to know more about 19th century Texas. The Tarlton website includes the text of the 1845 Constitution and scanned images of the original documents on the website, so examination is very easy.

First, the provision to divide the state into additional states is valid according to the section of the constitution titled, An Ordinance. This part of the document was the "counter offer" from the Congress of the United States back to the Republic of Texas as a condition for entry. There were three conditions listed with number three being …

Third. New States of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution; and such States as may be formed out of that portion of said territory lying south of thirty-six degrees thirty minutes north latitude, commonly known as the Missouri compromise line, shall be admitted into the Union, with or without slavery, as the people of each State asking admission may desire; and in such State or States as shall be formed out of said territory north of said Missouri compromise line, slavery, or involuntary servitude, (except for crime,) shall be prohibited:"

The first condition concerned legal boundaries of the Republic and the second outlined the properties the Republic would relinquish to the United States upon entry. That confirmed one of the Texas facts.

I continued reading and upon completing the entire document, there was no reference to the Texas flag or U.S. flag. Even running a search through the document produced no reference to flags.

U.S. Flag Code

Frequently, the Texas flag/U.S. flag fact says Texas is the only state that can fly their flag equal in height to the American flag, which is not accurate according to the U.S. Flag Code.

The U.S. Flag Code allows all states to fly their flags at the same height as the U.S. flag according to Section 7 (f).

(f) When flags of States, cities, or localities, or pennants of societies are flown on the same halyard with the flag of the United States, the latter should always be at the peak. When the flags are flown from adjacent staffs, the flag of the United States should be hoisted first and lowered last. No such flag or pennant may be placed above the flag of the United States or to the United States flag’s right.

You’ll notice the bold text, no flag can fly above the U.S. flag, but all state flags can fly the same height if they are on adjacent poles of equal height. There are other sections of the Flag Code that address other situations with flags, but none contradict this section.

Even though the U.S. Flag Code wasn’t passed by Congress until 1942, it was codified in 1923 by the National Flag Conference, which met in Washington D.C. for that purpose. The final Flag Code was a composite of the various State Desecration flag laws in existence as early as 1897, meaning, flying a state flag at the same height as the U.S. flag was not a new concept in 1845.

Republics Entering the Union

Texas was not the first Republic to join the United States nor was it the last. Vermont was a Republic immediately prior to joining the United States as the fourteenth state, and in fact, Vermont was a Republic longer than the Republic of Texas (see list below).

After Texas was California, though it wasn’t a Republic for very long. The last Republic to join the United States was Hawaii, with a large asterisk*. Hawaii was a U.S. territory immediately prior to joining the Union, but was a Republic before that. Heck, Hawaii was even a Kingdom, and that may trump a Republic.

  • Vermont was a Republic for 14 years: 1777 – 1791
  • Texas was a Republic for 9 years: 1836 – 1845
  • California was a Republic for 25 days: June 14 – July 9, 1846
  • Hawaii was a Republic for 4 years: 1894 – 1898

The document never refers to a treaty and, in fact, Texas sought statehood as protection from Mexico. Mexico didn’t recognize the newly formed Republic and was readying a new invasion into Texas. The Mexican-American war began in 1846 as a result of Texas entering the United States December 29, 1845.

Requirements to Enter Union

At the time Texas became a state, all petitioners for statehood were required to submit a working state constitution to the Congress of the United States for approval, so the 1845 Constitution was not unique, and in fact was fashioned after the Louisiana constitution. Louisiana became a state in 1812, thirty-three years before Texas. The 1845 Constitution of the Republic of Texas addressed the same items the U.S. Constitution did. It established a government with three branches, Legislative, Judicial, and Executive, outlining the election procedures of each along with the requirements to run for office.

I did find a few interesting laws in the 1845 Constitution.

Interesting Tidbits from the 1845 Constitution

  • SEC. 3. Electors in all cases shall be privileged from arrest during their attendance at elections, and in going to and returning from same; except in cases of treason, felony, or breach of the peace.
  • SEC. 13. Each house may determine the rules of its own proceedings; punish members for disorderly conduct; and, with the consent of two-thirds, expel a member, but not a second time for the same offence.
  • SEC. 14. There shall be a seal of the State, which shall be kept by the governor, and used by him officially. The said seal shall be a star of five points, encircled by an olive and live-oak branches, and the words "the State of Texas."

And the most surprising of all;

  • SEC. 27. Ministers of the gospel being, by their profession, dedicated to God, and the care of souls, ought not to be diverted from the great duties of their functions; therefore, no minister of the gospel, or priest of any denomination whatever, shall be eligible to the legislature.

So the facts are clear, Texas can constitutionally split off four new states besides the original State of Texas, but every state can fly their flag equal in height to the U.S. flag. As a native Texan, I am very proud of The Lone Star flag and all it stands for, but I also want to keep it real.

10 thoughts on “Myth Busting and the Texas Flag

  1. Thanks for the research, Larry. The link you provided has been updated.

  2. That’s super, Rick, … and thanks for the link to The Daily Flag.

  3. Great research Rick… I really appreciate the information. -DC

  4. […] from the Union : Controversial Issues Forum [3] I may run for president of Texas, page 1 [4] The Daily Flag ” Blog Archive ” Myth Busting and the Texas Flag [5] Would the US allow Texas to leave & form its own country? [6] 147 – The Stillborn State of […]

  5. According to another article I read, Texas cannot split into any states per Article IV, Section 3 of the U.S. Constitution. It supersedes the Texas Constitution.

    Please correct me if wrong as these are contraditing articles.

  6. Interesting article. Thanks. I did notice that the flag law says that no state flag should be to the right of the US flag. The picture in the article shows the Texas flag on the right.

    1. Not your right, mattym, as you face the flag—it means the flag’s right facing outward. Imagine that the flags (as you see them in the photo of the Galveston County Courts) are leading a parade, and the court house is the first thing behind them in the parade. The U.S. flag always follows its own right (its marching right), which means it takes the right-most position—or all the way to the left as you see it from standing in front of the flag(s). But if you mentally stand right behind the flagpole, then it all the way to the right makes sense.

      Here are some other articles at from The Daily Flag which you may find useful.

      Thank you for writing, and best wishes,
      Deborah Hendrick

    2. Yes, because the order of precedence is from left to right, while facing a building. There’s nothing wrong with how they’re being flown in the photo nor is that photo reversed at all.

  7. Hello,

    I have a question about the Texas flag that I cannot find an answer to; is there an official state flag code for allowing the Lone Star to fly on its own (none of this “same height” banter that’s all over the internet, but alone)? Because I see many businesses around the state flying her without being accompanied by Old Glory at all. I was born here too, and my mother told me that because TX entered into the Union by treaty and not annexation, she was granted that honor. Can you clarify on that?

    1. Hi Aaron. Thank you for writing. I apologize for the delay in responding. I’ve moved house this week—150 miles—and haven’t looked at email until this evening.
      There is a Texas Flag Code, linked here. There is nothing in the Texas Flag Code or the U.S. Flag Code that would prohibit flying the state flag of Texas (or any state flag) alone on a flagpole. As you have noticed, we Texans fly the Lone Star flag all the time, without flying the U.S. flag on the same pole. At the state capitol building in Austin, there are two prominent flag poles. On one the U.S. and Texas flag fly together, and on the other pole (on the opposite side of the building), the Lone Star flag flies alone. While I often fly the U.S. and Texas flags together on my home pole, I frequently fly the Texas flag alone. I am sorry to tell you that your mother was misinformed about history of the Texas flag.

      Here is a link to the U.S. Flag Code, which is very interesting. And I always encourage people to read the citations because there is a great deal of flag history to be found in the citations.

      Thank you again for writing to The Daily Flag.
      Best wishes,
      Deborah Hendrick

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