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 * * * * *