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.