By Chavez                                             H.B. No. 1997
         77R4252 YDB-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)  "Disturb" means to remove, damage, or otherwise
1-12     alter or deface human remains or funerary objects of an unmarked
1-13     burial.
1-14                 (2)  "Funerary object" means an object buried with a
1-15     person, including items of personal adornment, stone, bone and
1-16     shell tools, pottery and stone vessels and pipes, and any casket
1-17     and casket hardware.  The term includes objects that are part of a
1-18     death rite or ceremony of a culture and are placed with individual
1-19     human remains.
1-20                 (3)  "Human remains" means the physical remains of a
1-21     human body, including bone, hair, teeth, mummified flesh, and ash. 
1-22                 (4)  "Unmarked burial" means any human skeletal remains
1-23     or associated funerary objects or any location where human remains
1-24     or associated funerary objects are discovered or are reasonably
 2-1     likely to exist on the basis of archeological or historical
 2-2     evidence but to which Subtitle C, Title 8, Health and Safety Code,
 2-3     does not apply.
 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 either:
2-13                 (1)  the sheriff of the county in which the unmarked
2-14     burial is located; or
2-15                 (2)  the state archeologist.
2-16           (d)  An offense under Subsection (b) is a state jail felony
2-17     unless it is shown on the trial of the offense that the defendant
2-18     has been previously convicted of an offense under Subsection (b),
2-19     in which event the offense is a felony of the third degree.  An
2-20     offense under Subsection (c) is a Class B misdemeanor unless it is
2-21     shown on the trial of the offense that the defendant has been
2-22     previously convicted of an offense under Subsection (c), in which
2-23     event the offense is a Class A misdemeanor.
2-24           (e)  It is an affirmative defense to prosecution for an
2-25     alleged violation of this section that the human remains or
2-26     funerary objects were recovered under:
2-27                 (1)  Chapter 191, Natural Resources Code;
 3-1                 (2)  the National Historic Preservation Act (16 U.S.C.
 3-2     Section 470 et seq.);
 3-3                 (3)  36 C.F.R. Part 800;
 3-4                 (4)  any other applicable federal or state law, rule,
 3-5     or order, including:
 3-6                       (A)  Executive Order 11593 (36 Fed. Reg. 8921);
 3-7                       (B)  the Archaeological Resources Protection Act
 3-8     of 1979 (16 U.S.C. Section 470aa et seq.);
 3-9                       (C)  Section 192.002, Natural Resources Code; or
3-10                       (D)  the Native American Graves Protection and
3-11     Repatriation Act (25 U.S.C. Section 3001 et seq.); or
3-12                 (5)  the lawful authority of the state archeologist.
3-13           (f)  At the termination of a criminal prosecution of a
3-14     defendant under this section, if the custodial rights of the
3-15     remains cannot be established to the satisfaction of the presiding
3-16     judge, the state retains jurisdiction as provided by Chapter 192,
3-17     Natural Resources Code, over any human remains or funerary objects
3-18     associated with 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)  "Disturb" means to remove, damage, or otherwise
3-26     alter or deface human remains or funerary objects of an unmarked
3-27     grave.
 4-1                 (3)  "Funerary object" means an object buried with a
 4-2     person, including items of personal adornment, stone, bone and
 4-3     shell tools, pottery and stone vessels and pipes, and any casket
 4-4     and casket hardware.  The term includes objects that are part of a
 4-5     death rite or ceremony of a culture and are placed with individual
 4-6     human remains.
 4-7                 (4)  "Human remains" means the physical remains of a
 4-8     human body, including bone, hair, teeth, mummified flesh, and ash. 
 4-9                 (5)  "Medical examiner" means a person appointed under
4-10     Section 2, Article 49.25, Code of Criminal Procedure.
4-11                 (6)  "Native American culture" means a tribe, band,
4-12     nation, people, or culture that is indigenous to the United States.
4-13                 (7)  "Native American remains" means human remains of
4-14     or relating to Native American culture.
4-15                 (8)  "Professional archeologist" means a person:
4-16                       (A)  registered in the Register of Professional
4-17     Archaeologists; or
4-18                       (B)  meeting the qualifications for archeology in
4-19     the Secretary of Interior's Standards and Guidelines for Archeology
4-20     and Historic Preservation.
4-21                 (9)  "State archeologist" means the person employed by
4-22     the Texas Historical Commission under Section 442.007, Government
4-23     Code.
4-24                 (10)  "Unmarked burial" means any human skeletal
4-25     remains or associated funerary objects or any location where human
4-26     remains or associated funerary objects are discovered or are
4-27     reasonably likely to exist on the basis of archeological or
 5-1     historical evidence but to which Subtitle C, Title 8, Health and
 5-2     Safety Code, does not apply.
 5-3           Sec. 192.002.  DISCOVERY OF UNMARKED BURIALS.  (a)  A person
 5-4     who discovers an unmarked burial in, partially in, or on the ground
 5-5     shall immediately stop any activity that may disturb the burial and
 5-6     shall report the presence and location of the burial to the sheriff
 5-7     of 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 supervise
5-16     the move and require the move be accomplished in the manner that
5-17     will least disturb and best preserve the object before construction
5-18     can recommence.
5-19           (c)  If human remains are discovered and the state
5-20     archeologist or a professional archeologist determines further
5-21     human remains are unlikely to be present, the steps to be taken
5-22     under Subsection (b) extend to soil immediately surrounding the
5-23     burial and to funerary objects, sacred ceremonial objects, or
5-24     objects of national or tribal patrimony that are discovered along
5-25     with the human remains.
5-26           (d)  The sheriff or the state archeologist to whom an
5-27     unmarked burial is reported under this section shall keep the
 6-1     location of the unmarked burial confidential except as provided by
 6-2     this chapter.  The location of the site is confidential, may not be
 6-3     disclosed in any public document, and is not considered to be
 6-4     public information for purposes of Chapter 552, Government Code.
 6-5           Sec. 192.003.  FAILURE TO REPORT; CRIMINAL PENALTY.  (a)  A
 6-6     person commits an offense if the person observes human remains,
 6-7     knows or reasonably should know that the county sheriff or the
 6-8     state archeologist is not aware of the existence of or location of
 6-9     the remains, and fails to report the existence of and location of
6-10     the remains to the county sheriff or the state archeologist.
6-11           (b)  An offense under this section is a Class A misdemeanor
6-12     unless it is shown on the trial of the offense that the defendant
6-13     has been previously convicted of an offense under this section, in
6-14     which event the offense is a state jail felony.
6-15           Sec. 192.004.  DISTURBANCE OF BURIAL; CRIMINAL PENALTY.  (a)
6-16     A person commits an offense if the person disturbs or permits
6-17     disturbance of an unmarked human burial with the intent to
6-18     unlawfully appropriate human remains or funerary objects.  A person
6-19     found in actual or constructive possession of human remains or
6-20     funerary objects more than 50 feet from the burial is presumed to
6-21     intend to appropriate the remains or objects unless the possession
6-22     is pursuant to Section 192.002(b).
6-23           (b)  An offense under this section is a state jail felony
6-24     unless it is shown on the trial of the offense that the defendant
6-25     has been previously convicted of an offense under this section, in
6-26     which event the offense is a felony of the third degree.
6-27           Sec. 192.005.  DISPOSITION OF REMAINS.  (a)  If there is
 7-1     reason to believe a site may contain human remains, the law
 7-2     enforcement officer or state archeologist shall immediately notify
 7-3     the landowner and the appropriate medical examiner.  If the remains
 7-4     reported under this section are associated with or suspected of
 7-5     association with any crime, the medical examiner shall, within five
 7-6     business days, inform the landowner and the person whose activities
 7-7     resulted in discovery of the site as to the nature and duration of
 7-8     any additional measures needed to protect the site.
 7-9           (b)  If remains reported under this section are not
7-10     associated with or suspected of association with any crime, the
7-11     state archeologist shall be notified by the medical examiner within
7-12     five business days.  The state archeologist shall inform the
7-13     landowner and the person whose activities resulted in discovery of
7-14     the site as to the nature and duration of any additional measures
7-15     needed to protect the site as soon as reasonably practicable, but
7-16     not later than the fifth business day after the date the state
7-17     archeologist receives notice under this subsection.
7-18           (c)  If review by the state archeologist of the human remains
7-19     or any funerary objects suggests or demonstrates a direct
7-20     historical relationship of the remains to a Native American
7-21     culture, the state archeologist shall:
7-22                 (1)  notify the appropriate Native American leaders;
7-23     and
7-24                 (2)  consult with the appropriate Native American
7-25     leaders regarding any proposed treatment or scientific studies and
7-26     final disposition of the remains.
7-27           (d)  All Native American burial remains and associated
 8-1     funerary objects not claimed for reburial by the applicable Native
 8-2     American culture shall be placed for curation purposes by the state
 8-3     archeologist with an institution or state or local government
 8-4     agency, including an institution of higher learning that receives
 8-5     federal funds.  In other cases, where the burial remains and
 8-6     associated funerary objects are not directly related to a Native
 8-7     American culture, the state archeologist shall determine the racial
 8-8     or ethnic group of the remains.  The state archeologist shall
 8-9     contact any descendants associated with the remains.  If the
8-10     descendants cannot be located, the state archeologist shall consult
8-11     community leaders from the appropriate racial or ethnic group
8-12     concerning the disposition of the remains.  If the remains are not
8-13     claimed for repatriation by the consulted entity, the state
8-14     archeologist shall designate an appropriate repository for curation
8-15     or reinterment of the remains.
8-16           (e)  Unmarked burials and funerary objects discovered by
8-17     professional archeologists during the performance of their official
8-18     duties shall be reported to the state archeologist within three
8-19     business days of the discovery.  Not later than 15 business days
8-20     after notification to the state archeologist, the professional
8-21     archeologist shall report to the state archeologist concerning the
8-22     cultural and biological characteristics of the burial and shall
8-23     recommend temporary disposition of the remains for purposes of
8-24     analysis in accordance with this chapter.
8-25           Sec. 192.006.  EXCAVATION NOT REQUIRED.  This chapter does
8-26     not require excavation of an unmarked human burial unless
8-27     excavation is necessary to prevent destruction of the remains or
 9-1     associated funerary objects.
 9-2           Sec. 192.007.  INVOLVEMENT OF PRIVATE LANDOWNERS.  (a)
 9-3     Within three business days after the state archeologist is notified
 9-4     that human remains or funerary objects have been disturbed on
 9-5     private land, the state archeologist shall notify the landowner.
 9-6     At the request of the landowner, the state archeologist shall
 9-7     consult with the landowner about the proposed treatment and
 9-8     disposition of the human remains and funerary objects.  A landowner
 9-9     receives no additional rights to the human remains or funerary
9-10     objects solely because the landowner consults with the state
9-11     archeologist.
9-12           (b)  The location of human remains or funerary objects does
9-13     not allow public access on the private property controlled by the
9-14     landowner.
9-15           Sec. 192.008.  AFFIRMATIVE DEFENSES TO PROSECUTION.  It is an
9-16     affirmative defense to prosecution for an alleged violation of
9-17     Section 192.004 that:
9-18                 (1)  the person:
9-19                       (A)  is the landowner or the landowner's agent,
9-20     employee, easement holder, or tenant and the disturbance of the
9-21     unmarked burial or funerary objects occurred accidentally in the
9-22     course of legitimate activity; and
9-23                       (B)  has no intention of further disturbing or
9-24     permitting the disturbance of an unmarked burial or funerary
9-25     objects; or
9-26                 (2)  the person was a law enforcement officer, a
9-27     medical examiner, a professional archeologist, a person working
 10-1    under the lawful authority of the state archeologist, or another
 10-2    official performing a duty imposed by law, and the disturbance of
 10-3    the unmarked burial or funerary objects occurred in the performance
 10-4    of the person's official duty.
 10-5          Sec. 192.009.  RULEMAKING AUTHORITY.  The Texas Historical
 10-6    Commission by rule shall establish procedures to implement this
 10-7    chapter.
 10-8          SECTION 3.  (a)  Section 42.13, Penal Code, as added by this
 10-9    Act, and Sections 192.003 and 192.004, Natural Resources Code, as
10-10    added by this Act, apply only to an offense committed on or after
10-11    the effective date of this Act.  For purposes of this section, an
10-12    offense is committed before the effective date of this Act if any
10-13    element of the offense occurs before that date.
10-14          (b)  An offense committed before the effective date of this
10-15    Act is covered by the law in effect when the offense was committed,
10-16    and the former law is continued in effect for that purpose.
10-17          SECTION 4.  This Act takes effect September 1, 2001.