1-1 By: Barrientos S.B. No. 810 1-2 (In the Senate - Filed February 26, 1997; March 4, 1997, read 1-3 first time and referred to Committee on Criminal Justice; 1-4 April 16, 1997, reported favorably by the following vote: Yeas 4, 1-5 Nays 0; April 16, 1997, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the protection of certain unmarked burials and 1-9 associated human remains or funerary objects and to the creation of 1-10 certain offenses concerning unmarked burials; providing criminal 1-11 penalties. 1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-13 SECTION 1. Chapter 42, Penal Code, is amended by adding 1-14 Section 42.13 to read as follows: 1-15 Sec. 42.13. DISTURBING AN UNMARKED BURIAL. (a) In this 1-16 section: 1-17 (1) "Funerary object" means an object buried with a 1-18 person, including items of personal adornment, stone, bone and 1-19 shell tools, pottery and stone vessels and pipes, casket and casket 1-20 hardware, or other similar objects or materials. The term includes 1-21 objects that are part of a death rite or ceremony of a culture that 1-22 have been placed with individual human remains. 1-23 (2) "Human remains" means the physical remains of a 1-24 human body, including bone, hair, teeth, mummified flesh, and ash. 1-25 (3) "Unmarked burial" means any human skeletal remains 1-26 or associated funerary objects or any location where human remains 1-27 or associated funerary objects are discovered or are reasonably 1-28 likely to exist on the basis of archeological or historical 1-29 evidence but to which Subtitle C, Title 8, Health and Safety Code, 1-30 does not apply. 1-31 (4) "Disturbance" means the removal, damage, or other 1-32 alteration or defacing of human remains or funerary objects of an 1-33 unmarked burial. 1-34 (b) A person commits an offense if the person intentionally 1-35 or knowingly: 1-36 (1) disturbs human remains or funerary objects from an 1-37 unmarked burial; or 1-38 (2) 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 and the person intentionally or knowingly 1-42 fails to notify the sheriff of the county in which the unmarked 1-43 burial is located or the state archeologist that the burial is 1-44 being disturbed. 1-45 (d) An offense under Subsection (c) is a Class B 1-46 misdemeanor. An offense under Subsection (b) is a state jail 1-47 felony. 1-48 (e) It is an exception to the application of this section 1-49 that the human remains or funerary objects were recovered under: 1-50 (1) Chapter 191, Natural Resources Code; 1-51 (2) the National Historic Preservation Act (16 U.S.C. 1-52 Section 470 et seq.); or 1-53 (3) 36 C.F.R. Part 800. 1-54 (f) It is a defense to prosecution for an alleged violation 1-55 of this section that the human remains or funerary objects were 1-56 recovered under: 1-57 (1) any applicable federal or state law, rule, or 1-58 order, other than a federal law or rule cited in Subsection (e), 1-59 including: 1-60 (A) Executive Order 11593 (36 Fed. Reg. 8921); 1-61 (B) the Archaeological Resources Protection Act 1-62 of 1979 (16 U.S.C. Section 470aa et seq.); or 1-63 (C) the Native American Graves Protection and 1-64 Repatriation Act (25 U.S.C. Section 3001 et seq.); or 2-1 (2) the lawful authority of the state archeologist. 2-2 (g) At the termination of a criminal prosecution of a 2-3 defendant under this section, if ownership of the remains cannot be 2-4 established to the satisfaction of the presiding judge, the state 2-5 assumes jurisdiction as provided by Chapter 192, Natural Resources 2-6 Code, over any human remains or funerary objects associated with 2-7 the offense. 2-8 SECTION 2. Title 9, Natural Resources Code, is amended by 2-9 adding Chapter 192 to read as follows: 2-10 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS 2-11 Sec. 192.001. DEFINITIONS. In this chapter: 2-12 (1) "Commission" means the Texas Historical 2-13 Commission. 2-14 (2) "Funerary object" means an object buried with a 2-15 person, including items of personal adornment, stone, bone and 2-16 shell tools, pottery and stone vessels and pipes, casket and casket 2-17 hardware, or other similar objects or materials. The term includes 2-18 objects that are part of a death rite or ceremony of a culture that 2-19 have been placed with individual human remains. 2-20 (3) "Human remains" means the physical remains of a 2-21 human body, including bone, hair, teeth, mummified flesh, and ash. 2-22 (4) "Medical examiner" means a person appointed under 2-23 Section 2, Article 49.25, Code of Criminal Procedure. 2-24 (5) "Native American remains" means human remains of 2-25 or relating to a tribe, people, or culture that is indigenous to 2-26 the United States. 2-27 (6) "Professional archeologist" means a person: 2-28 (A) certified by the Society of Professional 2-29 Archeologists; or 2-30 (B) meeting the qualifications for archeology in 2-31 the Secretary of Interior's Standards and Guidelines for Archeology 2-32 and Historic Preservation. 2-33 (7) "State archeologist" means the person employed by 2-34 the Texas Historical Commission under Section 442.007, Government 2-35 Code. 2-36 (8) "Unmarked burial" means any human skeletal remains 2-37 or associated funerary objects or any location where human remains 2-38 or associated funerary objects are discovered or are reasonably 2-39 likely to exist on the basis of archeological or historical 2-40 evidence but to which Subtitle C, Title 8, Health and Safety Code, 2-41 does not apply. 2-42 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person 2-43 who discovers an unmarked burial in or on the ground immediately 2-44 shall stop any activity that may disturb the burial and shall 2-45 report the presence and location of the burial to the sheriff of 2-46 the county in which the burial is located or to the state 2-47 archeologist. Activity that will not disturb the burial site may 2-48 continue. 2-49 (b) The person who discovers an unmarked burial shall 2-50 immediately take all reasonable steps to secure and maintain its 2-51 preservation. If it is necessary to move an object before 2-52 completion of disposition as prescribed by Section 192.005 to 2-53 permit the continuation of work on a construction project or 2-54 similar project, the state archeologist or sheriff shall require 2-55 that the move be accomplished in the manner that will least disturb 2-56 and best preserve the object before construction can recommence. 2-57 (c) If human remains are discovered and the state 2-58 archeologist or a professional archeologist determines that further 2-59 human remains are unlikely to be present, then the steps to be 2-60 taken under Subsection (b) extend to soil immediately surrounding 2-61 the burial and to funerary objects, sacred ceremonial objects, or 2-62 objects of national or tribal patrimony that are discovered along 2-63 with the human remains. 2-64 (d) An officer to whom an unmarked burial is reported under 2-65 this section shall keep the location of the unmarked burial 2-66 confidential. The location of the site is confidential and may not 2-67 be disclosed in any public document. 2-68 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A 2-69 person commits an offense if the person knowingly fails to report 3-1 the presence or discovery of an unmarked burial within 48 hours to 3-2 the state archeologist or the sheriff of the county in which the 3-3 remains are found unless the discovery occurred as part of a 3-4 legitimate activity undertaken after consultation with the Texas 3-5 Historical Commission. 3-6 (b) An offense under this section is a Class C misdemeanor. 3-7 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. 3-8 (a) A person commits an offense if the person disturbs or permits 3-9 disturbance of an unmarked human burial with the intent to 3-10 unlawfully appropriate human remains or funerary objects. A person 3-11 found in actual or constructive possession of human remains or 3-12 funerary objects more than 50 feet from the burial is presumed to 3-13 intend to appropriate the remains or objects unless the possession 3-14 is pursuant to Section 192.002(b). 3-15 (b) An offense under this section is a third degree felony. 3-16 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is 3-17 reason to believe a site may contain human remains, the law 3-18 enforcement officer or state archeologist shall promptly notify the 3-19 landowner and the appropriate medical examiner. If the remains 3-20 reported under this section are associated with or suspected of 3-21 association with any crime, the medical examiner shall within five 3-22 working days inform the landowner and the person whose activities 3-23 resulted in discovery of the site as to the nature and duration of 3-24 any additional measures needed to protect the site. 3-25 (b) If remains reported under this section are not 3-26 associated with or suspected of association with any crime, the 3-27 state archeologist shall be notified by the medical examiner within 3-28 seven working days. The state archeologist within 15 working days 3-29 shall inform the landowner and the person whose activities resulted 3-30 in discovery of the site as to the nature and duration of any 3-31 additional measures needed to protect the site. 3-32 (c) If review by the state archeologist of the human remains 3-33 and any funerary objects suggests or demonstrates a direct 3-34 historical relationship of the remains to a Native American tribal 3-35 or other ethnic group, the state archeologist shall: 3-36 (1) notify the appropriate Native American tribal 3-37 leaders or ethnic group; and 3-38 (2) consult with the appropriate tribal or ethnic 3-39 group leaders regarding any proposed treatment or scientific 3-40 studies and final disposition of the remains. 3-41 (d) All Native American burial remains and associated 3-42 funerary objects not claimed for reburial shall be placed for 3-43 curation purposes by the state archeologist with an institution or 3-44 state or local government agency, including an institution of 3-45 higher learning that receives federal funds. In other cases, where 3-46 the burial remains and associated funerary objects are not directly 3-47 related to a tribal or ethnic group, or if the remains are not 3-48 claimed for repatriation by the consulted entity, the state 3-49 archeologist shall designate an appropriate repository for curation 3-50 or reinterment of the remains. 3-51 (e) Unmarked burials and funerary objects discovered by 3-52 professional archeologists during the performance of their official 3-53 duties shall be reported to the state archeologist within three 3-54 working days of the discovery. Not later than 15 working days 3-55 after notification to the state archeologist, the archeologist 3-56 shall report to the state archeologist concerning the cultural and 3-57 biological characteristics of the burial and shall recommend 3-58 temporary disposition of the remains for purposes of analysis. 3-59 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does 3-60 not require excavation of an unmarked human burial unless 3-61 excavation is necessary to prevent destruction of the remains or 3-62 associated funerary objects. 3-63 Sec. 192.007. DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY. 3-64 (a) A person commits an offense if the person knowingly displays 3-65 human remains for profit or aids and abets a commercial enterprise 3-66 displaying human remains. 3-67 (b) An offense under this section is a Class A misdemeanor, 3-68 and each day of display is a separate offense. 3-69 Sec. 192.008. INVOLVEMENT OF PRIVATE LANDOWNERS. (a) If 4-1 human remains or funerary objects are disturbed on private land, 4-2 notification by the state archeologist to the landowner is required 4-3 within a reasonable time. At the request of the landowner, the 4-4 state archeologist shall consult with the landowner about the 4-5 proposed treatment of the human remains and funerary objects. 4-6 (b) The location of human remains or funerary objects does 4-7 not allow public access on the private property controlled by the 4-8 landowner. 4-9 Sec. 192.009. DEFENSES TO PROSECUTION. It is a defense to 4-10 prosecution for an alleged violation of Section 192.004 that: 4-11 (1) the person: 4-12 (A) is the landowner or the landowner's agent, 4-13 employee, easement holder, or tenant and the disturbance of the 4-14 unmarked burial or funerary objects occurred accidentally in the 4-15 course of legitimate activity; and 4-16 (B) has no intention of further disturbing or 4-17 permitting the disturbance of an unmarked burial or funerary 4-18 objects; or 4-19 (2) the person was a law enforcement officer, a 4-20 medical examiner, a professional archeologist, a person working 4-21 under the lawful authority of the state archeologist, or another 4-22 official performing a duty imposed by law, and the disturbance of 4-23 the unmarked burial or funerary objects occurred in the performance 4-24 of the person's official duty. 4-25 Sec. 192.010. RULEMAKING AUTHORITY. The Texas Historical 4-26 Commission by rule shall establish procedures to implement this 4-27 chapter. 4-28 SECTION 3. (a) Section 42.13, Penal Code, as added by this 4-29 Act, and Sections 192.003, 192.004, and 192.007, Natural Resources 4-30 Code, as added by this Act, apply only to an offense committed on 4-31 or after the effective date of this Act. For purposes of this 4-32 section, an offense is committed before the effective date of this 4-33 Act if any element of the offense occurs before that date. 4-34 (b) An offense committed before the effective date of this 4-35 Act is covered by the law in effect when the offense was committed, 4-36 and the former law is continued in effect for that purpose. 4-37 SECTION 4. This Act takes effect September 1, 1997. 4-38 SECTION 5. The importance of this legislation and the 4-39 crowded condition of the calendars in both houses create an 4-40 emergency and an imperative public necessity that the 4-41 constitutional rule requiring bills to be read on three several 4-42 days in each house be suspended, and this rule is hereby suspended. 4-43 * * * * *