By: Barrientos S.B. No. 528 A BILL TO BE ENTITLED AN ACT 1-1 relating to the protection of certain unmarked burials and 1-2 associated human remains or funerary objects and to the creation of 1-3 certain offenses concerning unmarked burials; providing criminal 1-4 penalties. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Chapter 42, Penal Code, is amended by adding 1-7 Section 42.12 to read as follows: 1-8 Sec. 42.12. DISTURBING AN UNMARKED BURIAL. (a) In this 1-9 section: 1-10 (1) "Funerary object" means an object buried with a 1-11 person, including items of personal adornment, stone, bone and 1-12 shell tools, pottery and stone vessels and pipes, casket and casket 1-13 hardware, or other similar objects or materials. The term includes 1-14 objects that are part of a death rite or ceremony of a culture and 1-15 that are reasonably believed to have been placed with individual 1-16 human remains, either at the time of death or later. 1-17 (2) "Human remains" means the physical remains of a 1-18 human body, including bone, hair, teeth, mummified flesh, and ash. 1-19 (3) "Unmarked burial" means any human skeletal remains 1-20 or associated funerary objects or any location where human remains 1-21 or associated funerary objects are discovered or believed to exist 1-22 on the basis of archeological or historical evidence but to which 1-23 Subtitle C, Title 8, Health and Safety Code, does not apply. 1-24 (b) A person commits an offense if the person intentionally 2-1 or knowingly: 2-2 (1) disturbs, damages, or destroys an unmarked burial; 2-3 (2) removes any human remains or funerary objects from 2-4 an unmarked burial; or 2-5 (3) buys, sells, or barters human remains or funerary 2-6 objects. 2-7 (c) A person commits an offense if the person knows that a 2-8 burial is being disturbed, damaged, or destroyed and the person 2-9 intentionally or knowingly fails to notify the sheriff of the 2-10 county in which the burial is located that the burial is being 2-11 disturbed, damaged, or destroyed. 2-12 (d) An offense under Subsection (c) of this section is a 2-13 Class B misdemeanor. An offense under Subsection (b) of this 2-14 section is a state jail felony. 2-15 (e) It is a defense to prosecution for an alleged violation 2-16 of this section that the human remains or funerary objects were 2-17 recovered under: 2-18 (1) Chapter 191, Natural Resources Code; 2-19 (2) any applicable federal law, rule, or executive 2-20 order, including: 2-21 (A) the National Historic Preservation Act (16 2-22 U.S.C. Section 470 et seq.); 2-23 (B) Executive Order 11593 (36 Fed. Reg. 8921); 2-24 (C) 36 C.F.R. Part 800; 2-25 (D) the Archaeological Resources Protection Act 2-26 of 1979 (16 U.S.C. Section 470aa et seq.); or 2-27 (E) the Native American Graves Protection and 3-1 Repatriation Act (25 U.S.C. Section 3001 et seq.); or 3-2 (3) the lawful authority of the state archeologist. 3-3 (f) At the termination of a criminal prosecution of a 3-4 defendant under this section, if ownership of the remains cannot be 3-5 established to the satisfaction of the presiding judge, the state 3-6 assumes jurisdiction as provided by Chapter 192, Natural Resources 3-7 Code, over any human remains or funerary objects associated with 3-8 the offense. 3-9 SECTION 2. Title 9, Natural Resources Code, is amended by 3-10 adding Chapter 192 to read as follows: 3-11 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS 3-12 Sec. 192.001. DEFINITIONS. In this chapter: 3-13 (1) "Commission" means the Texas Historical 3-14 Commission. 3-15 (2) "Funerary object" means an object buried with a 3-16 person, including items of personal adornment, stone, bone and 3-17 shell tools, pottery and stone vessels and pipes, casket and casket 3-18 hardware, or other similar objects or materials. The term includes 3-19 objects that are part of a death rite or ceremony of a culture and 3-20 that are reasonably believed to have been placed with individual 3-21 human remains, either at the time of death or later. 3-22 (3) "Human remains" means the physical remains of a 3-23 human body, including bone, hair, teeth, mummified flesh, and ash. 3-24 (4) "Medical examiner" means a person appointed under 3-25 Section 2, Article 49.25, Code of Criminal Procedure. 3-26 (5) "Native American remains" means human remains of 3-27 or relating to a tribe, people, or culture that is indigenous to 4-1 the United States. 4-2 (6) "Professional archeologist" means a person: 4-3 (A) certified by the Society of Professional 4-4 Archeologists; 4-5 (B) meeting the qualifications for archeology in 4-6 the Secretary of Interior's Guidelines: Archeology and Historic 4-7 Preservation; or 4-8 (C) approved by the state archeologist as 4-9 meeting the training and experience requirements for certification. 4-10 (7) "State archeologist" means the person employed by 4-11 the Texas Historical Commission under Section 442.007, Government 4-12 Code. 4-13 (8) "Unmarked burial" means any human skeletal remains 4-14 or associated funerary objects or any location where human remains 4-15 or associated funerary objects are discovered or believed to exist 4-16 on the basis of archeological or historical evidence but to which 4-17 Subtitle C, Title 8, Health and Safety Code, does not apply. 4-18 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person 4-19 who discovers an unmarked burial in or on the ground immediately 4-20 shall stop any activity that may disturb the burial and shall 4-21 report the presence and location of the burial to the sheriff of 4-22 the county in which the burial is located. 4-23 (b) An officer to whom an unmarked burial is reported under 4-24 this section shall keep the location of the unmarked burial 4-25 confidential. The location of the site is confidential and may not 4-26 be disclosed in any public document. 4-27 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A 5-1 person commits an offense if the person knowingly fails to report 5-2 the presence or discovery of an unmarked burial within 48 hours to 5-3 the sheriff of the county in which the remains are found. 5-4 (b) An offense under this section is a Class C misdemeanor. 5-5 (c) It is a defense to prosecution for an alleged violation 5-6 of this section that the person: 5-7 (1) was the landowner or agricultural tenant and the 5-8 discovery of the unmarked burial or funerary objects occurred 5-9 accidentally in the course of legitimate agricultural activity; and 5-10 (2) has no intention of further disturbing or 5-11 permitting the disturbance of an unmarked burial or funerary 5-12 objects. 5-13 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. 5-14 (a) A person commits an offense if the person knowingly or 5-15 recklessly disturbs an unmarked burial or funerary objects. 5-16 (b) A person commits an offense if the person disturbs or 5-17 permits disturbance of an unmarked human burial with the intent to 5-18 appropriate human skeletal remains or funerary objects. A person 5-19 found in actual or constructive possession of human remains or 5-20 funerary objects more than 50 feet from the burial is presumed to 5-21 intend to appropriate the remains or objects. 5-22 (c) An offense under Subsection (a) of this section is a 5-23 Class C misdemeanor. An offense under Subsection (b) of this 5-24 section is a state jail felony. 5-25 (d) It is a defense to prosecution for an alleged violation 5-26 of this section that: 5-27 (1) the person was: 6-1 (A) the landowner or an agricultural tenant and 6-2 the disturbance of the unmarked burial or funerary objects occurred 6-3 accidentally in the course of legitimate agricultural activity; or 6-4 (B) a lignite rights owner, pipeline owner, or 6-5 aggregate mining operations owner and the disturbance of the 6-6 unmarked burial or funerary objects occurred accidentally in the 6-7 course of legitimate activity associated with the particular use; 6-8 or 6-9 (2) the person was a law enforcement officer, a 6-10 medical examiner, a professional archeologist, a person working 6-11 under the lawful authority of the state archeologist, or another 6-12 official performing a duty imposed by law, and the disturbance of 6-13 the unmarked burial or funerary objects occurred in the performance 6-14 of the person's official duty. 6-15 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is 6-16 reason to believe a burial site may contain human remains, the law 6-17 enforcement officer shall promptly notify the landowner and the 6-18 appropriate medical examiner. 6-19 (b) If remains reported under this section are not 6-20 associated with or suspected of association with any crime, the 6-21 state archeologist shall be notified within seven working days. 6-22 (c) If review by the state archeologist of the human remains 6-23 and any funerary objects suggests or demonstrates a direct 6-24 historical relationship of the remains to a Native American tribal 6-25 or other ethnic group, the state archeologist shall: 6-26 (1) notify the appropriate Native American tribal 6-27 leaders or ethnic group; and 7-1 (2) consult with the appropriate tribal or ethnic 7-2 group leaders regarding any proposed treatment or scientific 7-3 studies and final disposition of the remains. 7-4 (d) All Native American burial remains and associated 7-5 funerary objects not claimed for reburial shall be placed for 7-6 curation purposes by the state archeologist with an institution or 7-7 state or local government agency, including an institution of 7-8 higher learning, that receives federal funds. In other cases, 7-9 where the burial remains and associated funerary objects are not 7-10 directly related to a tribal or ethnic group, or if the remains are 7-11 not claimed for repatriation by the consulted entity, the state 7-12 archeologist may designate an appropriate repository for curation 7-13 of the remains. 7-14 (e) Unmarked burials and funerary objects discovered by 7-15 professional archeologists during the performance of their official 7-16 duties shall be reported to the state archeologist within three 7-17 working days of the discovery. Not later than 15 working days 7-18 after notification to the state archeologist, the archeologist 7-19 shall report to the state archeologist concerning the cultural and 7-20 biological characteristics of the burial and shall recommend 7-21 temporary disposition of the remains for purposes of analysis. 7-22 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does 7-23 not require excavation of an unmarked human burial unless 7-24 excavation is necessary to prevent destruction of the remains or 7-25 associated funerary objects. 7-26 Sec. 192.007. DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY. 7-27 (a) A person commits an offense if the person knowingly displays 8-1 human remains for profit or to aid and abet a commercial 8-2 enterprise. 8-3 (b) An offense under this section is a Class A misdemeanor, 8-4 and each day of display is a separate offense. 8-5 SECTION 3. (a) Section 42.12, Penal Code, and Sections 8-6 192.003, 192.004, and 192.007, Natural Resources Code, as added by 8-7 this Act, apply only to an offense committed on or after the 8-8 effective date of this Act. For purposes of this section, an 8-9 offense is committed before the effective date of this Act if any 8-10 element of the offense occurs before that date. 8-11 (b) An offense committed before the effective date of this 8-12 Act is covered by the law in effect when the offense was committed, 8-13 and the former law is continued in effect for that purpose. 8-14 SECTION 4. This Act takes effect September 1, 1995. 8-15 SECTION 5. The importance of this legislation and the 8-16 crowded condition of the calendars in both houses create an 8-17 emergency and an imperative public necessity that the 8-18 constitutional rule requiring bills to be read on three several 8-19 days in each house be suspended, and this rule is hereby suspended.