By: Hunter, Bob H.B. No. 1179
73R4369 MI-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the protection of certain unmarked burials and
1-3 associated human remains or burial objects and to the creation of
1-4 certain offenses concerning unmarked burials; providing criminal
1-5 penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Chapter 42, Penal Code, is amended by adding
1-8 Section 42.101 to read as follows:
1-9 Sec. 42.101. DISTURBING AN UNMARKED BURIAL. (a) In this
1-10 section:
1-11 (1) "Burial object" means an object buried with a
1-12 person, including items of personal adornment, stone, bone and
1-13 shell tools, pottery and stone vessels and pipes, casket and casket
1-14 hardware, or other similar objects or materials.
1-15 (2) "Human remains" means the physical remains of a
1-16 human body, including bone, teeth, mummified flesh, and ash.
1-17 (3) "Unmarked burial" means any human skeletal remains
1-18 or associated burial objects or any location where human remains or
1-19 associated burial objects are discovered or believed to exist on
1-20 the basis of archeological or historical evidence but to which
1-21 Subtitle C, Title 8, Health and Safety Code, does not apply.
1-22 (b) A person commits an offense if the person intentionally
1-23 or knowingly:
1-24 (1) disturbs, damages, or destroys an unmarked burial;
2-1 (2) removes any human remains or burial objects from
2-2 an unmarked burial; or
2-3 (3) buys, sells, or barters human remains or burial
2-4 objects.
2-5 (c) A person commits an offense if the person knows that a
2-6 burial is being disturbed, damaged, or destroyed and the person
2-7 intentionally or knowingly fails to notify a law enforcement
2-8 agency, whose jurisdiction includes the site of the burial, that
2-9 the burial is being disturbed, damaged, or destroyed.
2-10 (d) An offense under Subsection (c) of this section is a
2-11 Class B misdemeanor. An offense under Subsection (b) of this
2-12 section is a felony of the third degree.
2-13 (e) It is an affirmative defense to prosecution under this
2-14 section that the human remains or burial objects were recovered
2-15 under:
2-16 (1) Chapter 191, Natural Resources Code;
2-17 (2) any applicable federal law, rule, or executive
2-18 order, including:
2-19 (A) 16 U.S.C. Section 470;
2-20 (B) Subchapter II, Chapter 1A, Title 16, United
2-21 States Code;
2-22 (C) Chapter 1B, Title 16, United States Code;
2-23 (D) Executive Order 11593 (36 Fed. Reg. 8921);
2-24 (E) 36 C.F.R. Section 800;
2-25 (F) the Archeological Resources Protection Act
2-26 of 1979 (Pub. L. No. 96-95; 93 Stat. 712; 16 U.S.C. 470);
2-27 (G) the Native American Graves Protection and
3-1 Repatriation Act (Pub. L. No. 101-601); or
3-2 (H) the authority of the state archeologist.
3-3 (f) On conviction of a defendant under this section, the
3-4 state assumes jurisdiction as provided by Chapter 192, Natural
3-5 Resources Code, over any human remains or burial objects associated
3-6 with the offense.
3-7 SECTION 2. Title 9, Natural Resources Code, is amended by
3-8 adding Chapter 192 to read as follows:
3-9 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS
3-10 Sec. 192.001. DEFINITIONS. In this chapter:
3-11 (1) "Burial object" means an object buried with a
3-12 person, including items of personal adornment, stone, bone and
3-13 shell tools, pottery and stone vessels and pipes, casket and casket
3-14 hardware, or other similar objects or materials.
3-15 (2) "Commission" means the Texas Historical
3-16 Commission.
3-17 (3) "Human remains" means the physical remains of a
3-18 human body, including bone, teeth, mummified flesh, and ash.
3-19 (4) "Medical examiner" means a person appointed under
3-20 Section 2, Article 49.25, Code of Criminal Procedure.
3-21 (5) "Professional archeologist" means a person:
3-22 (A) certified by the Society of Professional
3-23 Archeologists;
3-24 (B) meeting the qualifications for archeology in
3-25 the Secretary of Interior's Guidelines: Archeology and Historic
3-26 Preservation; or
3-27 (C) approved by the state archeologist as
4-1 meeting the training and experience requirements for certification.
4-2 (6) "State archeologist" means the person employed by
4-3 the Texas Historical Commission under Section 442.007, Government
4-4 Code.
4-5 (7) "Unmarked burial" means any human skeletal remains
4-6 or associated burial objects or any location where human remains or
4-7 associated burial objects are discovered or believed to exist on
4-8 the basis of archeological or historical evidence but to which
4-9 Subtitle C, Title 8, Health and Safety Code, does not apply.
4-10 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. A person who
4-11 discovers an unmarked burial in or on the ground immediately shall
4-12 stop any activity that may disturb the burial and shall report the
4-13 presence and location of the burial to an appropriate law
4-14 enforcement officer.
4-15 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
4-16 person commits an offense if the person knowingly fails to report
4-17 the presence or discovery of an unmarked burial within 48 hours to
4-18 an appropriate law enforcement officer in the county in which the
4-19 remains are found.
4-20 (b) An offense under this section is a Class C misdemeanor.
4-21 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. (a)
4-22 A person commits an offense if the person knowingly disturbs an
4-23 unmarked burial or burial items.
4-24 (b) A person commits an offense if the person disturbs or
4-25 permits disturbance of an unmarked human burial with the intent to
4-26 obtain human skeletal remains or burial objects.
4-27 (c) An offense under Subsection (a) of this section is a
5-1 Class C misdemeanor. An offense under Subsection (b) of this
5-2 section is a felony of the third degree.
5-3 (d) It is an exception to the application of this section
5-4 that the person was:
5-5 (1) the landowner or an agricultural tenant and the
5-6 disturbance of the unmarked burial or burial items occurred
5-7 accidentally in the course of legitimate agricultural activity; or
5-8 (2) a law enforcement officer, a medical examiner, a
5-9 professional archeologist, a person working under the authority of
5-10 the state archeologist, or another official performing a duty
5-11 imposed by law, and the disturbance of the unmarked burial or
5-12 burial items occurred in the performance of the person's official
5-13 duty.
5-14 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is
5-15 reason to believe a burial site may contain human remains, the law
5-16 enforcement officer shall promptly notify the landowner and the
5-17 appropriate medical examiner.
5-18 (b) If remains reported under this section are not
5-19 associated with or suspected of association with any crime, the
5-20 state archeologist shall be notified within seven working days.
5-21 (c) If review by the state archeologist of the human remains
5-22 and any burial objects suggests or demonstrates a direct historical
5-23 relationship of the remains to a Native American tribal or other
5-24 ethnic group, the state archeologist shall:
5-25 (1) notify the appropriate Native American tribal
5-26 leaders or ethnic group; and
5-27 (2) consult with the appropriate tribal or ethnic
6-1 group leaders regarding any proposed treatment or scientific
6-2 studies and final disposition of the remains.
6-3 (d) In cases where the burial remains and associated burial
6-4 objects are not directly related to a tribal or ethnic group, or if
6-5 the remains are not claimed by the consulted entity, the state
6-6 archeologist may designate an appropriate repository for curation
6-7 of the remains.
6-8 (e) Unmarked burials and burial objects discovered by
6-9 professional archeologists during the performance of their official
6-10 duties shall be reported to the state archeologist within three
6-11 working days of the discovery. Not later than 15 working days
6-12 after notification to the state archeologist, the archeologist
6-13 shall report to the state archeologist concerning the cultural and
6-14 biological characteristics of the burial and shall recommend
6-15 temporary disposition of the remains for purposes of analysis.
6-16 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does
6-17 not require excavation of an unmarked human burial unless
6-18 excavation is necessary to prevent destruction of the remains or
6-19 associated burial objects.
6-20 Sec. 192.007. DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY.
6-21 (a) A person commits an offense if the person knowingly displays
6-22 human remains for profit or to aid and abet a commercial
6-23 enterprise.
6-24 (b) An offense under this section is a Class A misdemeanor,
6-25 and each day of display is a separate offense.
6-26 SECTION 3. (a) Section 42.101, Penal Code, and Sections
6-27 192.003, 192.004, and 192.007, Natural Resources Code, as added by
7-1 this Act, apply only to an offense committed on or after the
7-2 effective date of this Act. For purposes of this section, an
7-3 offense is committed before the effective date of this Act if any
7-4 element of the offense occurs before that date.
7-5 (b) An offense committed before the effective date of this
7-6 Act is covered by the law in effect when the offense was committed,
7-7 and the former law is continued in effect for that purpose.
7-8 SECTION 4. This Act takes effect September 1, 1993.
7-9 SECTION 5. The importance of this legislation and the
7-10 crowded condition of the calendars in both houses create an
7-11 emergency and an imperative public necessity that the
7-12 constitutional rule requiring bills to be read on three several
7-13 days in each house be suspended, and this rule is hereby suspended.