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.