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.