By: Barrientos S.B. No. 810
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the protection of certain unmarked burials and
1-2 associated human remains or funerary objects and to the creation of
1-3 certain offenses concerning unmarked burials; providing criminal
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 42, Penal Code, is amended by adding
1-7 Section 42.13 to read as follows:
1-8 Sec. 42.13. DISTURBING AN UNMARKED BURIAL. (a) In this
1-9 section:
1-10 (1) "Funerary object" means an object buried with a
1-11 person, including items of personal adornment, stone, bone and
1-12 shell tools, pottery and stone vessels and pipes, casket and casket
1-13 hardware, or other similar objects or materials. The term includes
1-14 objects that are part of a death rite or ceremony of a culture that
1-15 have been placed with individual human remains.
1-16 (2) "Human remains" means the physical remains of a
1-17 human body, including bone, hair, teeth, mummified flesh, and ash.
1-18 (3) "Unmarked burial" means any human skeletal remains
1-19 or associated funerary objects or any location where human remains
1-20 or associated funerary objects are discovered or are reasonably
1-21 likely to exist on the basis of archeological or historical
1-22 evidence but to which Subtitle C, Title 8, Health and Safety Code,
1-23 does not apply.
2-1 (4) "Disturbance" means the removal, damage, or other
2-2 alteration or defacing of human remains or funerary objects of an
2-3 unmarked burial.
2-4 (b) A person commits an offense if the person intentionally
2-5 or knowingly:
2-6 (1) disturbs human remains or funerary objects from an
2-7 unmarked burial; or
2-8 (2) buys, sells, or barters human remains or funerary
2-9 objects.
2-10 (c) A person commits an offense if the person knows that a
2-11 burial is being disturbed and the person intentionally or knowingly
2-12 fails to notify the sheriff of the county in which the unmarked
2-13 burial is located or the state archeologist that the burial is
2-14 being disturbed.
2-15 (d) An offense under Subsection (c) is a Class B
2-16 misdemeanor. An offense under Subsection (b) is a state jail
2-17 felony.
2-18 (e) It is an exception to the application of this section
2-19 that the human remains or funerary objects were recovered under:
2-20 (1) Chapter 191, Natural Resources Code;
2-21 (2) the National Historic Preservation Act (16 U.S.C.
2-22 Section 470 et seq.); or
2-23 (3) 36 C.F.R. Part 800.
2-24 (f) It is a defense to prosecution for an alleged violation
2-25 of this section that the human remains or funerary objects were:
3-1 (1) recovered under any applicable federal or state
3-2 law, rule, or order, other than a federal law or rule cited in
3-3 Subsection (e), including:
3-4 (A) Executive Order 11593 (36 Fed. Reg. 8921);
3-5 (B) the Archaeological Resources Protection Act
3-6 of 1979 (16 U.S.C. Section 470aa et seq.); or
3-7 (C) the Native American Graves Protection and
3-8 Repatriation Act (25 U.S.C. Section 3001 et seq.);
3-9 (2) discovered inadvertently or accidentally in the
3-10 course of exploration, production, or transmission of energy or
3-11 minerals; or
3-12 (3) the lawful authority of the state archeologist.
3-13 (g) At the termination of a criminal prosecution of a
3-14 defendant under this section, if ownership of the remains cannot be
3-15 established to the satisfaction of the presiding judge, the state
3-16 assumes jurisdiction as provided by Chapter 192, Natural Resources
3-17 Code, over any human remains or funerary objects associated with
3-18 the offense.
3-19 SECTION 2. Title 9, Natural Resources Code, is amended by
3-20 adding Chapter 192 to read as follows:
3-21 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS
3-22 Sec. 192.001. DEFINITIONS. In this chapter:
3-23 (1) "Commission" means the Texas Historical
3-24 Commission.
3-25 (2) "Funerary object" means an object buried with a
4-1 person, including items of personal adornment, stone, bone and
4-2 shell tools, pottery and stone vessels and pipes, casket and casket
4-3 hardware, or other similar objects or materials. The term includes
4-4 objects that are part of a death rite or ceremony of a culture that
4-5 have been placed with individual human remains.
4-6 (3) "Human remains" means the physical remains of a
4-7 human body, including bone, hair, teeth, mummified flesh, and ash.
4-8 (4) "Medical examiner" means a person appointed under
4-9 Section 2, Article 49.25, Code of Criminal Procedure.
4-10 (5) "Native American remains" means human remains of
4-11 or relating to a tribe, people, or culture that is indigenous to
4-12 the United States.
4-13 (6) "Professional archeologist" means a person:
4-14 (A) certified by the Society of Professional
4-15 Archeologists; or
4-16 (B) meeting the qualifications for archeology in
4-17 the Secretary of Interior's Standards and Guidelines for Archeology
4-18 and Historic Preservation.
4-19 (7) "State archeologist" means the person employed by
4-20 the Texas Historical Commission under Section 442.007, Government
4-21 Code.
4-22 (8) "Unmarked burial" means any human skeletal remains
4-23 or associated funerary objects or any location where human remains
4-24 or associated funerary objects are discovered or are reasonably
4-25 likely to exist on the basis of archeological or historical
5-1 evidence but to which Subtitle C, Title 8, Health and Safety Code,
5-2 does not apply.
5-3 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person
5-4 who discovers an unmarked burial in or on the ground immediately
5-5 shall stop any activity that may disturb the burial and shall
5-6 report the presence and location of the burial to the sheriff of
5-7 the county in which the burial is located or to the state
5-8 archeologist. Activity that will not disturb the burial site may
5-9 continue.
5-10 (b) The person who discovers an unmarked burial shall
5-11 immediately take all reasonable steps to secure and maintain its
5-12 preservation. If it is necessary to move an object before
5-13 completion of disposition as prescribed by Section 192.005 to
5-14 permit the continuation of work on a construction project or
5-15 similar project, the state archeologist or sheriff shall require
5-16 that the move be accomplished in the manner that will least disturb
5-17 and best preserve the object before construction can recommence.
5-18 (c) If human remains are discovered and the state
5-19 archeologist or a professional archeologist determines that further
5-20 human remains are unlikely to be present, then the steps to be
5-21 taken under Subsection (b) extend to soil immediately surrounding
5-22 the burial and to funerary objects, sacred ceremonial objects, or
5-23 objects of national or tribal patrimony that are discovered along
5-24 with the human remains.
5-25 (d) An officer to whom an unmarked burial is reported under
6-1 this section shall keep the location of the unmarked burial
6-2 confidential. The location of the site is confidential and may not
6-3 be disclosed in any public document.
6-4 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
6-5 person commits an offense if the person knowingly fails to report
6-6 the presence or discovery of an unmarked burial within 48 hours to
6-7 the state archeologist or the sheriff of the county in which the
6-8 remains are found unless the discovery occurred as part of a
6-9 legitimate activity undertaken after consultation with the Texas
6-10 Historical Commission.
6-11 (b) An offense under this section is a Class C misdemeanor.
6-12 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY.
6-13 (a) A person commits an offense if the person disturbs or permits
6-14 disturbance of an unmarked human burial with the intent to
6-15 unlawfully appropriate human remains or funerary objects. A person
6-16 found in actual or constructive possession of human remains or
6-17 funerary objects more than 50 feet from the burial is presumed to
6-18 intend to appropriate the remains or objects unless the possession
6-19 is pursuant to Section 192.002(b).
6-20 (b) An offense under this section is a third degree felony.
6-21 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is
6-22 reason to believe a site may contain human remains, the law
6-23 enforcement officer or state archeologist shall promptly notify the
6-24 landowner and the appropriate medical examiner. If the remains
6-25 reported under this section are associated with or suspected of
7-1 association with any crime, the medical examiner shall within five
7-2 working days inform the landowner and the person whose activities
7-3 resulted in discovery of the site as to the nature and duration of
7-4 any additional measures needed to protect the site.
7-5 (b) If remains reported under this section are not
7-6 associated with or suspected of association with any crime, the
7-7 state archeologist shall be notified by the medical examiner within
7-8 seven working days. The state archeologist within 15 working days
7-9 shall inform the landowner and the person whose activities resulted
7-10 in discovery of the site as to the nature and duration of any
7-11 additional measures needed to protect the site.
7-12 (c) If review by the state archeologist of the human remains
7-13 and any funerary objects suggests or demonstrates a direct
7-14 historical relationship of the remains to a Native American tribal
7-15 or other ethnic group, the state archeologist shall:
7-16 (1) notify the appropriate Native American tribal
7-17 leaders or ethnic group; and
7-18 (2) consult with the appropriate tribal or ethnic
7-19 group leaders regarding any proposed treatment or scientific
7-20 studies and final disposition of the remains.
7-21 (d) All Native American burial remains and associated
7-22 funerary objects not claimed for reburial shall be placed for
7-23 curation purposes by the state archeologist with an institution or
7-24 state or local government agency, including an institution of
7-25 higher learning that receives federal funds. In other cases, where
8-1 the burial remains and associated funerary objects are not directly
8-2 related to a tribal or ethnic group, or if the remains are not
8-3 claimed for repatriation by the consulted entity, the state
8-4 archeologist shall designate an appropriate repository for curation
8-5 or reinterment of the remains.
8-6 (e) Unmarked burials and funerary objects discovered by
8-7 professional archeologists during the performance of their official
8-8 duties shall be reported to the state archeologist within three
8-9 working days of the discovery. Not later than 15 working days
8-10 after notification to the state archeologist, the archeologist
8-11 shall report to the state archeologist concerning the cultural and
8-12 biological characteristics of the burial and shall recommend
8-13 temporary disposition of the remains for purposes of analysis.
8-14 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does
8-15 not require excavation of an unmarked human burial unless
8-16 excavation is necessary to prevent destruction of the remains or
8-17 associated funerary objects.
8-18 Sec. 192.007. DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY.
8-19 (a) A person commits an offense if the person knowingly displays
8-20 human remains for profit or aids and abets a commercial enterprise
8-21 displaying human remains.
8-22 (b) An offense under this section is a Class A misdemeanor,
8-23 and each day of display is a separate offense.
8-24 Sec. 192.008. INVOLVEMENT OF PRIVATE LANDOWNERS. (a) If
8-25 human remains or funerary objects are disturbed on private land,
9-1 notification by the state archeologist to the landowner is required
9-2 within a reasonable time. At the request of the landowner, the
9-3 state archeologist shall consult with the landowner about the
9-4 proposed treatment of the human remains and funerary objects.
9-5 (b) The location of human remains or funerary objects does
9-6 not allow public access on the private property controlled by the
9-7 landowner.
9-8 Sec. 192.009. EXCEPTIONS TO PROSECUTION. It is an exception
9-9 to prosecution for an alleged violation of Section 192.004 that:
9-10 (1) the person:
9-11 (A) is the landowner or the landowner's agent,
9-12 employee, easement holder, or tenant and the disturbance of the
9-13 unmarked burial or funerary objects occurred accidentally in the
9-14 course of legitimate activity; and
9-15 (B) has no intention of further disturbing or
9-16 permitting the disturbance of an unmarked burial or funerary
9-17 objects; or
9-18 (2) the person was a law enforcement officer, a
9-19 medical examiner, a professional archeologist, a person working
9-20 under the lawful authority of the state archeologist, or another
9-21 official performing a duty imposed by law, and the disturbance of
9-22 the unmarked burial or funerary objects occurred in the performance
9-23 of the person's official duty.
9-24 Sec. 192.010. RULEMAKING AUTHORITY. The Texas Historical
9-25 Commission by rule shall establish procedures to implement this
10-1 chapter.
10-2 SECTION 3. (a) Section 42.13, Penal Code, as added by this
10-3 Act, and Sections 192.003, 192.004, and 192.007, Natural Resources
10-4 Code, as added by this Act, apply only to an offense committed on
10-5 or after the effective date of this Act. For purposes of this
10-6 section, an offense is committed before the effective date of this
10-7 Act if any element of the offense occurs before that date.
10-8 (b) An offense committed before the effective date of this
10-9 Act is covered by the law in effect when the offense was committed,
10-10 and the former law is continued in effect for that purpose.
10-11 SECTION 4. This Act takes effect September 1, 1997.
10-12 SECTION 5. The importance of this legislation and the
10-13 crowded condition of the calendars in both houses create an
10-14 emergency and an imperative public necessity that the
10-15 constitutional rule requiring bills to be read on three several
10-16 days in each house be suspended, and this rule is hereby suspended.