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.