By Chavez                                             H.B. No. 2394
         77R7888 MCK-D                           
                                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; 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)  "Disturb" means to remove, damage, or otherwise
1-11     alter or deface human remains or funerary objects of an unmarked
1-12     burial.
1-13                 (2)  "Funerary object" means an object buried with a
1-14     person, including items of personal adornment, stone, bone and
1-15     shell tools, pottery and stone vessels and pipes, and any casket
1-16     and casket hardware.  The term includes objects that are part of a
1-17     death rite or ceremony of a culture and are placed with individual
1-18     human remains.
1-19                 (3)  "Human remains" means the physical remains of a
1-20     human body, including bone, hair, teeth, mummified flesh, and ash. 
1-21                 (4)  "Unmarked burial" means any human skeletal remains
1-22     or associated funerary objects or any location where human remains
1-23     or associated funerary objects are discovered or are reasonably
1-24     likely to exist on the basis of archeological or historical
 2-1     evidence but to which Subtitle C, Title 8, Health and Safety Code,
 2-2     does not apply.
 2-3           (b)  A person commits an offense if the person intentionally
 2-4     or knowingly:
 2-5                 (1)  disturbs human remains or funerary objects from an
 2-6     unmarked burial; or
 2-7                 (2)  buys, sells, or barters human remains or funerary
 2-8     objects.
 2-9           (c)  A person commits an offense if the person knows that a
2-10     burial is being disturbed and the person intentionally or knowingly
2-11     fails to notify either:
2-12                 (1)  the sheriff of the county in which the unmarked
2-13     burial is located; or
2-14                 (2)  the state archeologist.
2-15           (d)  An offense under Subsection (b) is a state jail felony
2-16     unless it is shown on the trial of the offense that the defendant
2-17     has been previously convicted of an offense under Subsection (b),
2-18     in which event the offense is a felony of the third degree.  An
2-19     offense under Subsection (c) is a Class B misdemeanor unless it is
2-20     shown on the trial of the offense that the defendant has been
2-21     previously convicted of an offense under Subsection (c), in which
2-22     event the offense is a Class A misdemeanor.
2-23           (e)  It is an affirmative defense to prosecution for an
2-24     alleged violation of this section that the human remains or
2-25     funerary objects were recovered under:
2-26                 (1)  Chapter 191, Natural Resources Code;
2-27                 (2)  the National Historic Preservation Act (16 U.S.C.
 3-1     Section 470 et seq.);
 3-2                 (3)  36 C.F.R. Part 800;
 3-3                 (4)  any other applicable federal or state law, rule,
 3-4     or order, including:
 3-5                       (A)  Executive Order 11593 (36 Fed. Reg. 8921);
 3-6                       (B)  the Archaeological Resources Protection Act
 3-7     of 1979 (16 U.S.C. Section 470aa et seq.); or
 3-8                       (C)  the Native American Graves Protection and
 3-9     Repatriation Act (25 U.S.C. Section 3001 et seq.); or
3-10                 (5)  the lawful authority of the state archeologist.
3-11           (f)  At the termination of a criminal prosecution of a
3-12     defendant under this section, if the custodial rights of the
3-13     remains cannot be established to the satisfaction of the presiding
3-14     judge, the state retains jurisdiction over any human remains or
3-15     funerary objects associated with the offense and the court may
3-16     order that the remains be transferred to the Texas Historical
3-17     Commission for appropriate disposition.
3-18           SECTION 2.  (a)  Section 42.13, Penal Code, as added by this
3-19     Act,  applies only to an offense committed on or after the
3-20     effective date of this Act.  For purposes of this section, an
3-21     offense is committed before the effective date of this Act if any
3-22     element of the offense occurs before that date.
3-23           (b)  An offense committed before the effective date of this
3-24     Act is covered by the law in effect when the offense was committed,
3-25     and the former law is continued in effect for that purpose.
3-26           SECTION 3.  This Act takes effect September 1, 2001.