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. 4-6 * * * * *