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.