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.