By Barrientos                                    S.B. No. 810

      75R7307 MI-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the protection of certain unmarked burials and

 1-3     associated human remains or funerary objects and to the creation of

 1-4     certain offenses concerning unmarked burials; providing criminal

 1-5     penalties.

 1-6           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-7           SECTION 1.  Chapter 42, Penal Code, is amended by adding

 1-8     Section 42.13 to read as follows:

 1-9           Sec. 42.13.  DISTURBING AN UNMARKED BURIAL.  (a)  In this

1-10     section:

1-11                 (1)  "Funerary object" means an object buried with a

1-12     person, including items of personal adornment, stone, bone and

1-13     shell tools, pottery and stone vessels and pipes, casket and casket

1-14     hardware, or other similar objects or materials.  The term includes

1-15     objects that are part of a death rite or ceremony of a culture that

1-16     have been placed with individual human remains.

1-17                 (2)  "Human remains" means the physical remains of a

1-18     human body, including bone, hair, teeth, mummified flesh, and ash.

1-19                 (3)  "Unmarked burial" means any human skeletal remains

1-20     or associated funerary objects or any location where human remains

1-21     or associated funerary objects are discovered or are reasonably

1-22     likely to exist on the basis of archeological or historical

1-23     evidence but to which Subtitle C, Title 8, Health and Safety Code,

1-24     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.);

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

2-26     recovered under:

2-27                 (1)  any applicable federal or state law, rule, or

 3-1     order, other than a federal law or rule cited in Subsection (e),

 3-2     including:

 3-3                       (A)  Executive Order 11593 (36 Fed. Reg. 8921);

 3-4                       (B)  the Archaeological Resources Protection Act

 3-5     of 1979 (16 U.S.C. Section 470aa et seq.); or

 3-6                       (C)  the Native American Graves Protection and

 3-7     Repatriation Act (25 U.S.C. Section 3001 et seq.); or

 3-8                 (2)  the lawful authority of the state archeologist.

 3-9           (g)  At the termination of a criminal prosecution of a

3-10     defendant under this section, if ownership of the remains cannot be

3-11     established to the satisfaction of the presiding judge, the state

3-12     assumes jurisdiction as provided by Chapter 192, Natural Resources

3-13     Code, over any human remains or funerary objects associated with

3-14     the offense.

3-15           SECTION 2.  Title 9, Natural Resources Code, is amended by

3-16     adding Chapter 192 to read as follows:

3-17                 CHAPTER 192.  DISCOVERY OF UNMARKED BURIALS

3-18           Sec. 192.001.  DEFINITIONS.  In this chapter:

3-19                 (1)  "Commission" means the Texas Historical

3-20     Commission.

3-21                 (2)  "Funerary object" means an object buried with a

3-22     person, including items of personal adornment, stone, bone and

3-23     shell tools, pottery and stone vessels and pipes, casket and casket

3-24     hardware, or other similar objects or materials.  The term includes

3-25     objects that are part of a death rite or ceremony of a culture that

3-26     have been placed with individual human remains.

3-27                 (3)  "Human remains" means the physical remains of a

 4-1     human body, including bone, hair, teeth, mummified flesh, and ash.

 4-2                 (4)  "Medical examiner" means a person appointed under

 4-3     Section 2, Article 49.25, Code of Criminal Procedure.

 4-4                 (5)  "Native American remains" means human remains of

 4-5     or relating to a tribe, people, or culture that is indigenous to

 4-6     the United States.

 4-7                 (6)  "Professional archeologist" means a person:

 4-8                       (A)  certified by the Society of Professional

 4-9     Archeologists; or

4-10                       (B)  meeting the qualifications for archeology in

4-11     the Secretary of Interior's Guidelines:  Archeology and Historic

4-12     Preservation.

4-13                 (7)  "State archeologist" means the person employed by

4-14     the Texas Historical Commission under Section 442.007, Government

4-15     Code.

4-16                 (8)  "Unmarked burial" means any human skeletal remains

4-17     or associated funerary objects or any location where human remains

4-18     or associated funerary objects are discovered or are reasonably

4-19     likely to exist on the basis of archeological or historical

4-20     evidence but to which Subtitle C, Title 8, Health and Safety Code,

4-21     does not apply.

4-22           Sec. 192.002.  DISCOVERY OF UNMARKED BURIALS.  (a)  A person

4-23     who discovers an unmarked burial in or on the ground immediately

4-24     shall stop any activity that may disturb the burial and shall

4-25     report the presence and location of the burial to the sheriff of

4-26     the county in which the burial is located or to the state

4-27     archeologist.  Activity that will not disturb the burial site may

 5-1     continue.

 5-2           (b)  The person who discovers an unmarked burial shall

 5-3     immediately take all reasonable steps to secure and maintain its

 5-4     preservation.  If it is necessary to move an object before

 5-5     completion of disposition as prescribed by Section 192.005 to

 5-6     permit the continuation of work on a construction project or

 5-7     similar project, the state archeologist or sheriff shall require

 5-8     that the move be accomplished in the manner that will least disturb

 5-9     and best preserve the object before construction can recommence.

5-10           (c)  If human remains are discovered and the state

5-11     archeologist or a professional archeologist determines that further

5-12     human remains are unlikely to be present, then the steps to be

5-13     taken under Subsection (b) extend to soil immediately surrounding

5-14     the burial and to funerary objects, sacred ceremonial objects, or

5-15     objects of national or tribal patrimony that are discovered along

5-16     with the human remains.

5-17           (d)  An officer to whom an unmarked burial is reported under

5-18     this section shall keep the location of the unmarked burial

5-19     confidential.  The location of the site is confidential and may not

5-20     be disclosed in any public document.

5-21           Sec. 192.003.  FAILURE TO REPORT; CRIMINAL PENALTY.  (a)  A

5-22     person commits an offense if the person knowingly fails to report

5-23     the presence or discovery of an unmarked burial within 48 hours to

5-24     the state archeologist or the sheriff of the county in which the

5-25     remains are found unless the discovery occurred as part of a

5-26     legitimate activity undertaken after consultation with the Texas

5-27     Historical Commission.

 6-1           (b)  An offense under this section is a Class C misdemeanor.

 6-2           Sec. 192.004.  DISTURBANCE OF BURIAL; CRIMINAL PENALTY.  (a)

 6-3     A person commits an offense if the person disturbs or permits

 6-4     disturbance of an unmarked human burial with the intent to

 6-5     unlawfully appropriate human remains or funerary objects.  A person

 6-6     found in actual or constructive possession of human remains or

 6-7     funerary objects more than 50 feet from the burial is presumed to

 6-8     intend to appropriate the remains or objects unless the possession

 6-9     is pursuant to Section 192.002(b).

6-10           (b)  An offense under this section is a third degree felony.

6-11           Sec. 192.005.  DISPOSITION OF REMAINS.  (a)  If there is

6-12     reason to believe a site may contain human remains, the law

6-13     enforcement officer or state archeologist shall promptly notify the

6-14     landowner and the appropriate medical examiner.  If the remains

6-15     reported under this section are associated with or suspected of

6-16     association with any crime, the medical examiner shall within five

6-17     working days inform the landowner and the person whose activities

6-18     resulted in discovery of the site as to the nature and duration of

6-19     any additional measures needed to protect the site.

6-20           (b)  If remains reported under this section are not

6-21     associated with or suspected of association with any crime, the

6-22     state archeologist shall be notified by the medical examiner within

6-23     seven working days.  The state archeologist within 15 working days

6-24     shall inform the landowner and the person whose activities resulted

6-25     in discovery of the site as to the nature and duration of any

6-26     additional measures needed to protect the site.

6-27           (c)  If review by the state archeologist of the human remains

 7-1     and any funerary objects suggests or demonstrates a direct

 7-2     historical relationship of the remains to a Native American tribal

 7-3     or other ethnic group, the state archeologist shall:

 7-4                 (1)  notify the appropriate Native American tribal

 7-5     leaders or ethnic group; and

 7-6                 (2)  consult with the appropriate tribal or ethnic

 7-7     group leaders regarding any proposed treatment or scientific

 7-8     studies and final disposition of the remains.

 7-9           (d)  All Native American burial remains and associated

7-10     funerary objects not claimed for reburial shall be placed for

7-11     curation purposes by the state archeologist with an institution or

7-12     state or local government agency, including an institution of

7-13     higher learning that receives federal funds.  In other cases, where

7-14     the burial remains and associated funerary objects are not directly

7-15     related to a tribal or ethnic group, or if the remains are not

7-16     claimed for repatriation by the consulted entity, the state

7-17     archeologist shall designate an appropriate repository for curation

7-18     or reinterment of the remains.

7-19           (e)  Unmarked burials and funerary objects discovered by

7-20     professional archeologists during the performance of their official

7-21     duties shall be reported to the state archeologist within three

7-22     working days of the discovery.  Not later than 15 working days

7-23     after notification to the state archeologist, the archeologist

7-24     shall report to the state archeologist concerning the cultural and

7-25     biological characteristics of the burial and shall recommend

7-26     temporary disposition of the remains for purposes of analysis.

7-27           Sec. 192.006.  EXCAVATION NOT REQUIRED.  This chapter does

 8-1     not require excavation of an unmarked human burial unless

 8-2     excavation is necessary to prevent destruction of the remains or

 8-3     associated funerary objects.

 8-4           Sec. 192.007.  DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY.

 8-5     (a)  A person commits an offense if the person knowingly displays

 8-6     human remains for profit or aids and abets a commercial enterprise

 8-7     displaying human remains.

 8-8           (b)  An offense under this section is a Class A misdemeanor,

 8-9     and each day of display is a separate offense.

8-10           Sec. 192.008.  INVOLVEMENT OF PRIVATE LANDOWNERS.  (a)  If

8-11     human remains or funerary objects are disturbed on private land,

8-12     notification by the state archeologist to the landowner is required

8-13     within a reasonable time.  At the request of the landowner, the

8-14     state archeologist shall consult with the landowner about the

8-15     proposed treatment of the human remains and funerary objects.

8-16           (b)  The location of human remains or funerary objects does

8-17     not allow public access on the private property controlled by the

8-18     landowner.

8-19           Sec. 192.009.  DEFENSES TO PROSECUTION.  It is a defense to

8-20     prosecution for an alleged violation of Section 192.004 that:

8-21                 (1)  the person:

8-22                       (A)  is the landowner or the landowner's agent,

8-23     employee, easement holder, or tenant and the disturbance of the

8-24     unmarked burial or funerary objects occurred accidentally in the

8-25     course of legitimate activity; and

8-26                       (B)  has no intention of further disturbing or

8-27     permitting the disturbance of an unmarked burial or funerary

 9-1     objects; or

 9-2                 (2)  the person was a law enforcement officer, a

 9-3     medical examiner, a professional archeologist, a person working

 9-4     under the lawful authority of the state archeologist, or another

 9-5     official performing a duty imposed by law, and the disturbance of

 9-6     the unmarked burial or funerary objects occurred in the performance

 9-7     of the person's official duty.

 9-8           Sec. 192.010.  RULEMAKING AUTHORITY.  The Texas Historical

 9-9     Commission by rule shall establish procedures to implement this

9-10     chapter.

9-11           SECTION 3.  (a)  Section 42.13, Penal Code, as added by this

9-12     Act, and Sections 192.003, 192.004, and 192.007, Natural Resources

9-13     Code, as added by this Act, apply only to an offense committed on

9-14     or after the effective date of this Act.  For purposes of this

9-15     section, an offense is committed before the effective date of this

9-16     Act if any element of the offense occurs before that date.

9-17           (b)  An offense committed before the effective date of this

9-18     Act is covered by the law in effect when the offense was committed,

9-19     and the former law is continued in effect for that purpose.

9-20           SECTION 4.  This Act takes effect September 1, 1997.

9-21           SECTION 5.  The importance of this legislation and the

9-22     crowded condition of the calendars in both houses create an

9-23     emergency and an imperative public necessity that the

9-24     constitutional rule requiring bills to be read on three several

9-25     days in each house be suspended, and this rule is hereby suspended.