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.