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.