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.

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