1-1  By:  Barrientos                                        S.B. No. 528
    1-2        (In the Senate - Filed February 13, 1995; February 14, 1995,
    1-3  read first time and referred to Committee on State Affairs;
    1-4  April 21, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 10, Nays 0; April 21, 1995,
    1-6  sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 528                   By:  Rosson
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to the protection of certain unmarked burials and
   1-11  associated human remains or funerary objects and to the creation of
   1-12  certain offenses concerning unmarked burials;  providing criminal
   1-13  penalties.
   1-14        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-15        SECTION 1.  Chapter 42, Penal Code, is amended by adding
   1-16  Section 42.12 to read as follows:
   1-17        Sec. 42.12.  DISTURBING AN UNMARKED BURIAL.  (a)  In this
   1-18  section:
   1-19              (1)  "Funerary object" means an object buried with a
   1-20  person, including items of personal adornment, stone, bone and
   1-21  shell tools, pottery and stone vessels and pipes, casket and casket
   1-22  hardware, or other similar objects or materials.  The term includes
   1-23  objects that are part of a death rite or ceremony of a culture and
   1-24  that are reasonably believed to have been placed with individual
   1-25  human remains, either at the time of death or later.
   1-26              (2)  "Human remains" means the physical remains of a
   1-27  human body, including bone, hair, teeth, mummified flesh, and ash.
   1-28              (3)  "Unmarked burial" means any human skeletal remains
   1-29  or associated funerary objects or any location where human remains
   1-30  or associated funerary objects are discovered or believed to exist
   1-31  on the basis of archeological or historical evidence but to which
   1-32  Subtitle C, Title 8, Health and Safety Code, does not apply.
   1-33        (b)  A person commits an offense if the person intentionally
   1-34  or  knowingly:
   1-35              (1)  disturbs, damages, or destroys an unmarked burial;
   1-36              (2)  removes any human remains or funerary objects from
   1-37  an unmarked burial; or
   1-38              (3)  buys, sells, or barters human remains or funerary
   1-39  objects.
   1-40        (c)  A person commits an offense if the person knows that a
   1-41  burial is being disturbed, damaged, or destroyed and the person
   1-42  intentionally or knowingly fails to notify the sheriff of the
   1-43  county in which the burial is located that the burial is being
   1-44  disturbed, damaged, or destroyed.
   1-45        (d)  An offense under Subsection (c) of this section is a
   1-46  Class B misdemeanor.  An offense under Subsection (b) of this
   1-47  section is a state jail felony.
   1-48        (e)  It is a defense to prosecution for an alleged violation
   1-49  of this section that the human remains or funerary objects were
   1-50  recovered under:
   1-51              (1)  Chapter 191, Natural Resources Code;
   1-52              (2)  any applicable federal law, rule, or executive
   1-53  order, including:
   1-54                    (A)  the National Historic Preservation Act (16
   1-55  U.S.C. Section 470 et seq.);
   1-56                    (B)  Executive Order 11593 (36 Fed. Reg. 8921);
   1-57                    (C)  36 C.F.R. Part 800;
   1-58                    (D)  the Archaeological Resources Protection Act
   1-59  of 1979 (16 U.S.C. Section 470aa et seq.); or
   1-60                    (E)  the Native American Graves Protection and
   1-61  Repatriation Act (25 U.S.C. Section 3001 et seq.); or
   1-62              (3)  the lawful authority of the state archeologist.
   1-63        (f)  At the termination of a criminal prosecution of a
   1-64  defendant under this section, if ownership of the remains cannot be
   1-65  established to the satisfaction of the presiding judge, the state
   1-66  assumes jurisdiction as provided by Chapter 192, Natural Resources
   1-67  Code, over any human remains or funerary objects associated with
   1-68  the offense.
    2-1        SECTION 2.  Title 9, Natural Resources Code, is amended by
    2-2  adding Chapter 192 to read as follows:
    2-3              CHAPTER 192.  DISCOVERY OF UNMARKED BURIALS
    2-4        Sec. 192.001.  DEFINITIONS.  In this chapter:
    2-5              (1)  "Commission" means the Texas Historical
    2-6  Commission.
    2-7              (2)  "Funerary object" means an object buried with a
    2-8  person, including items of personal adornment, stone, bone and
    2-9  shell tools, pottery and stone vessels and pipes, casket and casket
   2-10  hardware, or other similar objects or materials.  The term includes
   2-11  objects that are part of a death rite or ceremony of a culture and
   2-12  that are reasonably believed to have been placed with individual
   2-13  human remains, either at the time of death or later.
   2-14              (3)  "Human remains" means the physical remains of a
   2-15  human body, including bone, hair, teeth, mummified flesh, and ash.
   2-16              (4)  "Medical examiner" means a person appointed under
   2-17  Section 2, Article 49.25, Code of Criminal Procedure.
   2-18              (5)  "Native American remains" means human remains of
   2-19  or relating to a tribe, people, or culture that is indigenous to
   2-20  the United States.
   2-21              (6)  "Professional archeologist" means a person:
   2-22                    (A)  certified by the Society of Professional
   2-23  Archeologists;
   2-24                    (B)  meeting the qualifications for archeology in
   2-25  the Secretary of Interior's Guidelines:  Archeology and Historic
   2-26  Preservation; or
   2-27                    (C)  approved by the state archeologist as
   2-28  meeting the training and experience requirements for certification.
   2-29              (7)  "State archeologist" means the person employed by
   2-30  the Texas Historical Commission under Section 442.007, Government
   2-31  Code.
   2-32              (8)  "Unmarked burial" means any human skeletal remains
   2-33  or associated funerary objects or any location where human remains
   2-34  or associated funerary objects are discovered or believed to exist
   2-35  on the basis of archeological or historical evidence but to which
   2-36  Subtitle C, Title 8, Health and Safety Code, does not apply.
   2-37        Sec. 192.002.  DISCOVERY OF UNMARKED BURIALS.  (a)  A person
   2-38  who discovers an unmarked burial in or on the ground immediately
   2-39  shall stop any activity that may disturb the burial and shall
   2-40  report the presence and location of the burial to the sheriff of
   2-41  the county in which the burial is located.
   2-42        (b)  An officer to whom an unmarked burial is reported under
   2-43  this section shall keep the location of the unmarked burial
   2-44  confidential.  The location of the site is confidential and may not
   2-45  be disclosed in any public document.
   2-46        Sec. 192.003.  FAILURE TO REPORT; CRIMINAL PENALTY.   (a)  A
   2-47  person commits an offense if the person knowingly fails to report
   2-48  the presence or discovery of an unmarked burial within 48 hours to
   2-49  the sheriff of the county in which the remains are found.
   2-50        (b)  An offense under this section is a Class C misdemeanor.
   2-51        (c)  It is a defense to prosecution for an alleged violation
   2-52  of this section that the person:
   2-53              (1)  was the landowner or agricultural tenant and the
   2-54  discovery of the unmarked burial or funerary objects occurred
   2-55  accidentally in the course of legitimate agricultural activity; and
   2-56              (2)  has no intention of further disturbing or
   2-57  permitting the disturbance of an unmarked burial or funerary
   2-58  objects.
   2-59        Sec. 192.004.  DISTURBANCE OF BURIAL; CRIMINAL PENALTY.
   2-60  (a)  A person commits an offense if the person knowingly or
   2-61  recklessly disturbs an unmarked burial or funerary objects.
   2-62        (b)  A person commits an offense if the person disturbs or
   2-63  permits disturbance of an unmarked human burial with the intent to
   2-64  appropriate human skeletal remains or funerary objects.  A person
   2-65  found in actual or constructive possession of human remains or
   2-66  funerary objects more than 50 feet from the burial is presumed to
   2-67  intend to appropriate the remains or objects.
   2-68        (c)  An offense under Subsection (a) of this section is a
   2-69  Class C misdemeanor.  An offense under Subsection (b) of this
   2-70  section is a state jail felony.
    3-1        (d)  It is a defense to prosecution for an alleged violation
    3-2  of this section that:
    3-3              (1)  the person was:
    3-4                    (A)  the landowner or an agricultural tenant and
    3-5  the disturbance of the unmarked burial or funerary objects occurred
    3-6  accidentally in the course of legitimate agricultural activity; or
    3-7                    (B)  a lignite rights owner, pipeline owner, or
    3-8  aggregate mining operations owner and the disturbance of the
    3-9  unmarked burial or funerary objects occurred accidentally in the
   3-10  course of legitimate activity associated with the particular use;
   3-11  or
   3-12              (2)  the person was a law enforcement officer, a
   3-13  medical examiner, a professional archeologist, a person working
   3-14  under the lawful authority of the state archeologist, or another
   3-15  official performing a duty imposed by law, and the disturbance of
   3-16  the unmarked burial or funerary objects occurred in the performance
   3-17  of the person's official duty.
   3-18        Sec. 192.005.  DISPOSITION OF REMAINS.  (a)  If there is
   3-19  reason to believe a burial site may contain human remains, the law
   3-20  enforcement officer shall promptly notify the landowner and the
   3-21  appropriate medical examiner.
   3-22        (b)  If remains reported under this section are not
   3-23  associated with or suspected of association with any crime, the
   3-24  state archeologist shall be notified within seven working days.
   3-25        (c)  If review by the state archeologist of the human remains
   3-26  and any funerary objects suggests or demonstrates a direct
   3-27  historical relationship of the remains to a Native American tribal
   3-28  or other ethnic group, the state archeologist shall:
   3-29              (1)  notify the appropriate Native American tribal
   3-30  leaders or ethnic group; and
   3-31              (2)  consult with the appropriate tribal or ethnic
   3-32  group leaders regarding any proposed treatment or scientific
   3-33  studies and final disposition of the remains.
   3-34        (d)  All Native American burial remains and associated
   3-35  funerary objects shall be placed for curation purposes by the state
   3-36  archeologist with an institution or state or local government
   3-37  agency, including an institution of higher learning, that receives
   3-38  federal funds.  In other cases, where the burial remains and
   3-39  associated funerary objects are not directly related to a tribal or
   3-40  ethnic group, or if the remains are not claimed for repatriation by
   3-41  the consulted entity, the state archeologist may designate an
   3-42  appropriate repository for curation of the remains.
   3-43        (e)  Unmarked burials and funerary objects discovered by
   3-44  professional archeologists during the performance of their official
   3-45  duties shall be reported to the state archeologist within three
   3-46  working days of the discovery.   Not later than 15 working days
   3-47  after notification to the state archeologist, the archeologist
   3-48  shall report to the state archeologist concerning the cultural and
   3-49  biological characteristics of the burial and shall recommend
   3-50  temporary disposition of the remains for purposes of analysis.
   3-51        Sec. 192.006.  EXCAVATION NOT REQUIRED.  This chapter does
   3-52  not require excavation of an unmarked human burial unless
   3-53  excavation is necessary to prevent destruction of the remains or
   3-54  associated funerary objects.
   3-55        Sec. 192.007.  DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY.
   3-56  (a)  A person commits an offense if the person knowingly displays
   3-57  human remains for profit or to aid and abet a commercial
   3-58  enterprise.
   3-59        (b)  An offense under this section is a Class A misdemeanor,
   3-60  and each day of display is a separate offense.
   3-61        SECTION 3.  (a)  Section 42.12, Penal Code, and Sections
   3-62  192.003, 192.004, and 192.007, Natural Resources Code, as added by
   3-63  this Act, apply only to an offense committed on or after the
   3-64  effective date of this Act.  For purposes of this section, an
   3-65  offense is committed before the effective date of this Act if any
   3-66  element of the offense occurs before that date.
   3-67        (b)  An offense committed before the effective date of this
   3-68  Act is covered by the law in effect when the offense was committed,
   3-69  and the former law is continued in effect for that purpose.
   3-70        SECTION 4.  This Act takes effect September 1, 1995.
    4-1        SECTION 5.  The importance of this legislation and the
    4-2  crowded condition of the calendars in both houses create an
    4-3  emergency and an imperative public necessity that the
    4-4  constitutional rule requiring bills to be read on three several
    4-5  days in each house be suspended, and this rule is hereby suspended.
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