By Barrientos S.B. No. 528
Substitute the following for S.B. No. 528:
By Hunter of Taylor C.S.S.B. No. 528
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 funerary 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 42.12 to read as follows:
1-9 Sec. 42.12. DISTURBING AN UNMARKED BURIAL. (a) In this
1-10 section:
1-11 (1) "Funerary 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. The term includes
1-15 objects that are part of a death rite or ceremony of a culture that
1-16 have been placed with individual human remains.
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 are reasonably
1-22 likely to exist on the basis of archeological or historical
1-23 evidence but to which Subtitle C, Title 8, Health and Safety Code,
1-24 does not apply.
2-1 (4) "Disturbance" means the removal, damage, or
2-2 otherwise altering or defacing human remains or funerary objects of
2-3 an unmarked burial.
2-4 (b) A person commits an offense if the person intentionally
2-5 or knowingly:
2-6 (1) disturbs human remains or funerary objects from an
2-7 unmarked burial; or
2-8 (2) buys, sells, or barters human remains or funerary
2-9 objects.
2-10 (c) A person commits an offense if the person knows that a
2-11 burial is being disturbed and the person intentionally or knowingly
2-12 fails to notify the sheriff of the county in which the unmarked
2-13 burial is located or the state archeologist that the burial is
2-14 being disturbed.
2-15 (d) An offense under Subsection (c) of this section is a
2-16 Class B misdemeanor. An offense under Subsection (b) of this
2-17 section is a state jail felony.
2-18 (e) It is an exception to the application of this section
2-19 that the human remains or funerary objects were recovered under:
2-20 (1) Chapter 191, Natural Resources Code;
2-21 (2) the National Historic Preservation Act (16 U.S.C.
2-22 Section 470 et seq.);
2-23 (3) 36 C.F.R. Section 800.
2-24 (f) It is a defense to prosecution for an alleged violation
2-25 of this section that the human remains or funerary objects were
2-26 recovered under:
2-27 (1) any applicable federal or state law, rule, or
3-1 order, other than a federal law or rule cited in Subsection (e),
3-2 including:
3-3 (A) Executive Order 11593 (36 Fed. Reg. 8921);
3-4 (B) the Archaeological Resources Protection Act
3-5 of 1979 (16 U.S.C. Section 470aa et seq.); or
3-6 (C) the Native American Graves Protection and
3-7 Repatriation Act (25 U.S.C. Section 3001 et seq.); or
3-8 (2) the lawful authority of the state archeologist.
3-9 (g) At the termination of a criminal prosecution of a
3-10 defendant under this section, if ownership of the remains cannot be
3-11 established to the satisfaction of the presiding judge, the state
3-12 assumes jurisdiction as provided by Chapter 192, Natural Resources
3-13 Code, over any human remains or funerary objects associated with
3-14 the offense.
3-15 SECTION 2. Title 9, Natural Resources Code, is amended by
3-16 adding Chapter 192 to read as follows:
3-17 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS
3-18 Sec. 192.001. DEFINITIONS. In this chapter:
3-19 (1) "Commission" means the Texas Historical
3-20 Commission.
3-21 (2) "Funerary object" means an object buried with a
3-22 person, including items of personal adornment, stone, bone and
3-23 shell tools, pottery and stone vessels and pipes, casket and casket
3-24 hardware, or other similar objects or materials. The term includes
3-25 objects that are part of a death rite or ceremony of a culture that
3-26 have been placed with individual human remains.
3-27 (3) "Human remains" means the physical remains of a
4-1 human body, including bone, hair, teeth, mummified flesh, and ash.
4-2 (4) "Medical examiner" means a person appointed under
4-3 Section 2, Article 49.25, Code of Criminal Procedure.
4-4 (5) "Native American remains" means human remains of
4-5 or relating to a tribe, people, or culture that is indigenous to
4-6 the United States.
4-7 (6) "Professional archeologist" means a person:
4-8 (A) certified by the Society of Professional
4-9 Archeologists; or
4-10 (B) meeting the qualifications for archeology in
4-11 the Secretary of Interior's Guidelines: Archeology and Historic
4-12 Preservation.
4-13 (7) "State archeologist" means the person employed by
4-14 the Texas Historical Commission under Section 442.007, Government
4-15 Code.
4-16 (8) "Unmarked burial" means any human skeletal remains
4-17 or associated funerary objects or any location where human remains
4-18 or associated funerary objects are discovered or are reasonably
4-19 likely to exist on the basis of archeological or historical
4-20 evidence but to which Subtitle C, Title 8, Health and Safety Code,
4-21 does not apply.
4-22 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person
4-23 who discovers an unmarked burial in or on the ground immediately
4-24 shall stop any activity that may disturb the burial and shall
4-25 report the presence and location of the burial to the sheriff of
4-26 the county in which the burial is located or the state
4-27 archeologist. Activity that will not disturb the burial site may
5-1 continue.
5-2 (b) The person making such discovery shall immediately take
5-3 all reasonable steps to secure and maintain its preservation. If
5-4 it is necessary to move the object before completion of the
5-5 disposition steps outlined in Sec. 192.005, to permit the
5-6 continuation of work on a construction project or similar project,
5-7 the state archeologist or sheriff shall require that the move be
5-8 accomplished in the manner that will least disturb and best
5-9 preserve the object before construction can recommence.
5-10 (c) If human remains are discovered and the state
5-11 archeologist or a professional archeologist determines that further
5-12 human remains are unlikely to be present, then the steps to be
5-13 taken in (b) shall extend to soil immediately surrounding the
5-14 burial, and to funerary objects, sacred ceremonial objects or
5-15 objects of national or tribal patrimony that are discovered along
5-16 with the human remains.
5-17 (d) An officer to whom an unmarked burial is reported under
5-18 this section shall keep the location of the unmarked burial
5-19 confidential. The location of the site is confidential and may not
5-20 be disclosed in any public document.
5-21 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
5-22 person commits an offense if the person knowingly fails to report
5-23 the presence or discovery of an unmarked burial within 48 hours to
5-24 the state archeologist or the sheriff of the county in which the
5-25 remains are found unless such discovery occured as part of a
5-26 legitimate activity undertaken after consultation with the Texas
5-27 Historical Commission.
6-1 (b) An offense under this section is a Class C misdemeanor.
6-2 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. (a)
6-3 A person commits an offense if the person disturbs or permits
6-4 disturbance of an unmarked human burial with the intent to
6-5 unlawfully appropriate human remains or funerary objects. A person
6-6 found in actual or constructive possession of human remains or
6-7 funerary objects more than 50 feet from the burial is presumed to
6-8 intend to appropriate the remains or objects unless such possession
6-9 is pursuant to Sec. 192.002(b).
6-10 (b) An offense under this section is a third degree felony.
6-11 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is
6-12 reason to believe a site may contain human remains, the law
6-13 enforcement officer or state archeologist shall promptly notify the
6-14 landowner and the appropriate medical examiner. If the remains
6-15 reported under this section are associated with or suspected of
6-16 association with any crime, the medical examiner shall within five
6-17 working days inform the landowner and the person whose activities
6-18 resulted in discovery of the site as to the nature and duration of
6-19 any additional measures needed to protect the site.
6-20 (b) If remains reported under this section are not
6-21 associated with or suspected of association with any crime, the
6-22 state archeologist shall be notified by the medical examiner within
6-23 seven working days. The state archeologist shall within fifteen
6-24 working days inform the landowner and the person whose activities
6-25 resulted in discovery of the site as to the nature and duration of
6-26 any additional measures needed to protect the site.
6-27 (c) If review by the state archeologist of the human remains
7-1 and any funerary objects suggests or demonstrates a direct
7-2 historical relationship to the remains to a Native American tribal
7-3 or other ethnic group, the state archeologist shall:
7-4 (1) notify the appropriate Native American tribal
7-5 leaders or ethnic group; and
7-6 (2) consult with the appropriate tribal or ethnic
7-7 group leaders regarding any proposed treatment or scientific
7-8 studies and final disposition of the remains.
7-9 (d) All Native American burial remains and associated
7-10 funerary objects not claimed for reburial shall be placed for
7-11 curation purposes by the state archeologist with an institution or
7-12 state or local government agency, including an institution of
7-13 higher learning that receives federal funds. In other cases, where
7-14 the burial remains and associated funerary objects are not directly
7-15 related to a tribal or ethnic group, or if the remains are not
7-16 claimed for repatriation by the consulted entity, the state
7-17 archeologist shall designate an appropriate repository for curation
7-18 or reinterment of the remains.
7-19 (e) Unmarked burials and funerary objects discovered by
7-20 professional archeologists during the performance of their official
7-21 duties shall be reported to the state archeologist within three
7-22 working days of the discovery. Not later than 15 working days
7-23 after notification to the state archeologist, the archeologist
7-24 shall report to the state archeologist concerning the cultural and
7-25 biological characteristics of the burial and shall recommend
7-26 temporary disposition of the remains for purposes of analysis.
7-27 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does
8-1 not require excavation of an unmarked human burial unless
8-2 excavation is necessary to prevent destruction of the remains or
8-3 associated funerary objects.
8-4 Sec. 192.007. DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY.
8-5 (a) A person commits an offense if the person knowingly displays
8-6 human remains for profit or aids and abets a commercial enterprise.
8-7 (b) An offense under this section is a Class A misdemeanor,
8-8 and each day of display is a separate offense.
8-9 Sec. 192.008. INVOLVEMENT OF PRIVATE LANDOWNERS. (a) If
8-10 human remains or funerary objects are disturbed on private land,
8-11 notification by the state archeologist to the landowner is required
8-12 within a reasonable time. At the request of the landowner, the
8-13 state archeologist shall consult with the landowner about the
8-14 proposed treatment of the human remains and funerary objects.
8-15 (b) The location of human remains or funerary objects does
8-16 not allow public access on the private property controlled by the
8-17 landowner.
8-18 Sec. 192.009. DEFENSES TO PROSECUTION. (a) It is a defense
8-19 to prosecution for an alleged violation of Section 192.004 that:
8-20 (1) the person:
8-21 (A) is the landowner or their agent, employee,
8-22 easement holder, or tenant and the disturbance of the unmarked
8-23 burial or funerary objects occurred accidentally in the course of
8-24 legitimate activity; and
8-25 (B) has no intention of further disturbing or
8-26 permitting the disturbance of an unmarked burial or funerary
8-27 objects; or
9-1 (2) the person was a law enforcement officer, a
9-2 medical examiner, a professional archeologist, a person working
9-3 under the lawful authority of the state archeologist, or another
9-4 official performing a duty imposed by law, and the disturbance of
9-5 the unmarked burial or funerary objects occurred in the performance
9-6 of the person's official duty.
9-7 Sec. 192.010. RULEMAKING AUTHORITY. The Texas Historical
9-8 Commission by rule shall establish procedures to implement this
9-9 Act.
9-10 SECTION 3. (a) Section 42.12, Penal Code, and Sections
9-11 192.003, 192.004, and 192.007, Natural Resources Code, as added by
9-12 this Act, apply only to an offense committed on or after the
9-13 effective date of this Act. For purposes of this section, an
9-14 offense is committed before the effective date of this Act if any
9-15 element of the offense occurs before that date.
9-16 (b) An offense committed before the effective date of this
9-17 Act is covered by the law in effect when the offense was committed,
9-18 and the former law is continued in effect for that purpose.
9-19 SECTION 4. This Act takes effect September 1, 1995.
9-20 SECTION 5. The importance of this legislation and the
9-21 crowded condition of the calendars in both houses create an
9-22 emergency and an imperative public necessity that the
9-23 constitutional rule requiring bills to be read on three several
9-24 days in each house be suspended, and this rule is hereby suspended.