By Barrientos S.B. No. 528
74R5034 MI-F
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 burial 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) "Burial 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.
1-15 (2) "Human remains" means the physical remains of a
1-16 human body, including bone, teeth, mummified flesh, and ash.
1-17 (3) "Unmarked burial" means any human skeletal remains
1-18 or associated burial objects or any location where human remains or
1-19 associated burial objects are discovered or believed to exist on
1-20 the basis of archeological or historical evidence but to which
1-21 Subtitle C, Title 8, Health and Safety Code, does not apply.
1-22 (b) A person commits an offense if the person intentionally
1-23 or knowingly:
1-24 (1) disturbs, damages, or destroys an unmarked burial;
2-1 (2) removes any human remains or burial objects from
2-2 an unmarked burial; or
2-3 (3) buys, sells, or barters human remains or burial
2-4 objects.
2-5 (c) A person commits an offense if the person knows that a
2-6 burial is being disturbed, damaged, or destroyed and the person
2-7 intentionally or knowingly fails to notify a law enforcement
2-8 agency, whose jurisdiction includes the site of the burial, that
2-9 the burial is being disturbed, damaged, or destroyed.
2-10 (d) An offense under Subsection (c) of this section is a
2-11 Class B misdemeanor. An offense under Subsection (b) of this
2-12 section is a felony of the third degree.
2-13 (e) It is an exception to the application of this section
2-14 that the human remains or burial objects were recovered under:
2-15 (1) Chapter 191, Natural Resources Code;
2-16 (2) any applicable federal law, rule, or executive
2-17 order, including:
2-18 (A) 16 U.S.C. Section 470;
2-19 (B) Subchapter II, Chapter 1A, Title 16, United
2-20 States Code;
2-21 (C) Chapter 1B, Title 16, United States Code;
2-22 (D) Executive Order 11593 (36 Fed. Reg. 8921);
2-23 (E) 36 C.F.R. Section 800;
2-24 (F) the Archeological Resources Protection Act
2-25 of 1979 (Pub. L. No. 96-95; 93 Stat. 712; 16 U.S.C. 470);
2-26 (G) the Native American Graves Protection and
2-27 Repatriation Act (Pub. L. No. 101-601); or
3-1 (H) the authority of the state archeologist.
3-2 (f) At the termination of a criminal prosecution of a
3-3 defendant under this section, if ownership of the remains cannot be
3-4 established to the satisfaction of the presiding judge, the state
3-5 assumes jurisdiction as provided by Chapter 192, Natural Resources
3-6 Code, over any human remains or burial objects associated with the
3-7 offense.
3-8 SECTION 2. Title 9, Natural Resources Code, is amended by
3-9 adding Chapter 192 to read as follows:
3-10 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS
3-11 Sec. 192.001. DEFINITIONS. In this chapter:
3-12 (1) "Burial object" means an object buried with a
3-13 person, including items of personal adornment, stone, bone and
3-14 shell tools, pottery and stone vessels and pipes, casket and casket
3-15 hardware, or other similar objects or materials.
3-16 (2) "Commission" means the Texas Historical
3-17 Commission.
3-18 (3) "Human remains" means the physical remains of a
3-19 human body, including bone, teeth, mummified flesh, and ash.
3-20 (4) "Medical examiner" means a person appointed under
3-21 Section 2, Article 49.25, Code of Criminal Procedure.
3-22 (5) "Native American remains" means human remains of
3-23 or relating to a tribe, people, or culture that is indigenous to
3-24 the United States.
3-25 (6) "Professional archeologist" means a person:
3-26 (A) certified by the Society of Professional
3-27 Archeologists;
4-1 (B) meeting the qualifications for archeology in
4-2 the Secretary of Interior's Guidelines: Archeology and Historic
4-3 Preservation; or
4-4 (C) approved by the state archeologist as
4-5 meeting the training and experience requirements for certification.
4-6 (7) "State archeologist" means the person employed by
4-7 the Texas Historical Commission under Section 442.007, Government
4-8 Code.
4-9 (8) "Unmarked burial" means any human skeletal remains
4-10 or associated burial objects or any location where human remains or
4-11 associated burial objects are discovered or believed to exist on
4-12 the basis of archeological or historical evidence but to which
4-13 Subtitle C, Title 8, Health and Safety Code, does not apply.
4-14 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person
4-15 who discovers an unmarked burial in or on the ground immediately
4-16 shall stop any activity that may disturb the burial and shall
4-17 report the presence and location of the burial to an appropriate
4-18 law enforcement officer.
4-19 (b) An officer to whom an unmarked burial is reported under
4-20 this section shall keep the location of the unmarked burial
4-21 confidential. The location of the site is confidential and may not
4-22 be disclosed in any public document.
4-23 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
4-24 person commits an offense if the person knowingly fails to report
4-25 the presence or discovery of an unmarked burial within 48 hours to
4-26 an appropriate law enforcement officer in the county in which the
4-27 remains are found.
5-1 (b) An offense under this section is a Class C misdemeanor.
5-2 (c) It is an exception to the application of this section
5-3 that the person:
5-4 (1) was the landowner or agricultural tenant and the
5-5 discovery of the unmarked burial or burial items occurred
5-6 accidentally in the course of legitimate agricultural activity; and
5-7 (2) has no intention of further disturbing or
5-8 permitting the disturbance of an unmarked burial or burial items.
5-9 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. (a)
5-10 A person commits an offense if the person knowingly disturbs an
5-11 unmarked burial or burial items.
5-12 (b) A person commits an offense if the person disturbs or
5-13 permits disturbance of an unmarked human burial with the intent to
5-14 obtain human skeletal remains or burial objects.
5-15 (c) An offense under Subsection (a) of this section is a
5-16 Class C misdemeanor. An offense under Subsection (b) of this
5-17 section is a felony of the third degree.
5-18 (d) It is an exception to the application of this section
5-19 that:
5-20 (1) the person was:
5-21 (A) the landowner or an agricultural tenant and
5-22 the disturbance of the unmarked burial or burial items occurred
5-23 accidentally in the course of legitimate agricultural activity; or
5-24 (B) a lignite rights owner or pipeline owner and
5-25 the disturbance of the unmarked burial or burial items occurred
5-26 accidentally in the course of legitimate activity associated with
5-27 the particular use; or
6-1 (2) the person was a law enforcement officer, a
6-2 medical examiner, a professional archeologist, a person working
6-3 under the authority of the state archeologist, or another official
6-4 performing a duty imposed by law, and the disturbance of the
6-5 unmarked burial or burial items occurred in the performance of the
6-6 person's official duty.
6-7 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is
6-8 reason to believe a burial site may contain human remains, the law
6-9 enforcement officer shall promptly notify the landowner and the
6-10 appropriate medical examiner.
6-11 (b) If remains reported under this section are not
6-12 associated with or suspected of association with any crime, the
6-13 state archeologist shall be notified within seven working days.
6-14 (c) If review by the state archeologist of the human remains
6-15 and any burial objects suggests or demonstrates a direct historical
6-16 relationship of the remains to a Native American tribal or other
6-17 ethnic group, the state archeologist shall:
6-18 (1) notify the appropriate Native American tribal
6-19 leaders or ethnic group; and
6-20 (2) consult with the appropriate tribal or ethnic
6-21 group leaders regarding any proposed treatment or scientific
6-22 studies and final disposition of the remains.
6-23 (d) All Native American burial remains and associated burial
6-24 objects shall be placed for curation purposes by the state
6-25 archeologist with an institution or state or local government
6-26 agency, including an institution of higher learning, that receives
6-27 federal funds. In other cases, where the burial remains and
7-1 associated burial objects are not directly related to a tribal or
7-2 ethnic group, or if the remains are not claimed for repatriation by
7-3 the consulted entity, the state archeologist may designate an
7-4 appropriate repository for curation of the remains.
7-5 (e) Unmarked burials and burial objects discovered by
7-6 professional archeologists during the performance of their official
7-7 duties shall be reported to the state archeologist within three
7-8 working days of the discovery. Not later than 15 working days
7-9 after notification to the state archeologist, the archeologist
7-10 shall report to the state archeologist concerning the cultural and
7-11 biological characteristics of the burial and shall recommend
7-12 temporary disposition of the remains for purposes of analysis.
7-13 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does
7-14 not require excavation of an unmarked human burial unless
7-15 excavation is necessary to prevent destruction of the remains or
7-16 associated burial objects.
7-17 Sec. 192.007. DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY.
7-18 (a) A person commits an offense if the person knowingly displays
7-19 human remains for profit or to aid and abet a commercial
7-20 enterprise.
7-21 (b) An offense under this section is a Class A misdemeanor,
7-22 and each day of display is a separate offense.
7-23 SECTION 3. (a) Section 42.12, Penal Code, and Sections
7-24 192.003, 192.004, and 192.007, Natural Resources Code, as added by
7-25 this Act, apply only to an offense committed on or after the
7-26 effective date of this Act. For purposes of this section, an
7-27 offense is committed before the effective date of this Act if any
8-1 element of the offense occurs before that date.
8-2 (b) An offense committed before the effective date of this
8-3 Act is covered by the law in effect when the offense was committed,
8-4 and the former law is continued in effect for that purpose.
8-5 SECTION 4. This Act takes effect September 1, 1995.
8-6 SECTION 5. The importance of this legislation and the
8-7 crowded condition of the calendars in both houses create an
8-8 emergency and an imperative public necessity that the
8-9 constitutional rule requiring bills to be read on three several
8-10 days in each house be suspended, and this rule is hereby suspended.