By: Barrientos S.B. No. 472
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
1-25 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 Class A misdemeanor
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 state jail felony. An offense
2-19 under Subsection (c) is a Class B misdemeanor unless it is shown on
2-20 the trial of the offense that the defendant has been previously
2-21 convicted of an offense under Subsection (c), in which event the
2-22 offense is a Class A misdemeanor.
2-23 (e) It is an exception to prosecution for an alleged
2-24 violation of this section that the human remains or funerary
2-25 objects were discovered inadvertently or accidentally in the course
2-26 of exploration, production, or transmission of energy and minerals
3-1 or were recovered under:
3-2 (1) Chapter 191, Natural Resources Code;
3-3 (2) the National Historic Preservation Act (16 U.S.C.
3-4 Section 470 et seq.);
3-5 (3) 36 C.F.R. Part 800;
3-6 (4) any other applicable federal or state law, rule,
3-7 or order, including:
3-8 (A) Executive Order 11593 (36 Fed. Reg. 8921);
3-9 (B) the Archaeological Resources Protection Act
3-10 of 1979 (16 U.S.C. Section 470aa et seq.);
3-11 (C) Section 192.002, Natural Resources Code; or
3-12 (D) the Native American Graves Protection and
3-13 Repatriation Act (25 U.S.C. Section 3001 et seq.); or
3-14 (5) the lawful authority of the state archeologist.
3-15 (f) At the termination of a criminal prosecution of a
3-16 defendant under this section, if the custodial rights of the
3-17 remains cannot be established to the satisfaction of the presiding
3-18 judge, the state retains jurisdiction as provided by Chapter 192,
3-19 Natural Resources Code, over any human remains or funerary objects
3-20 associated with the offense.
3-21 SECTION 2. Title 9, Natural Resources Code, is amended by
3-22 adding Chapter 192 to read as follows:
3-23 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS
3-24 Sec. 192.001. DEFINITIONS. In this chapter:
3-25 (1) "Commission" means the Texas Historical
3-26 Commission.
4-1 (2) "Disturb" means to remove, damage, or otherwise
4-2 alter or deface human remains or funerary objects of an unmarked
4-3 grave.
4-4 (3) "Funerary object" means an object buried with a
4-5 person, including items of personal adornment, stone, bone and
4-6 shell tools, pottery and stone vessels and pipes, and any casket
4-7 and casket hardware. The term includes objects that are part of a
4-8 death rite or ceremony of a culture and are placed with individual
4-9 human remains.
4-10 (4) "Human remains" means the physical remains of a
4-11 human body, including bone, hair, teeth, mummified flesh, and ash.
4-12 (5) "Medical examiner" means a person appointed under
4-13 Section 2, Article 49.25, Code of Criminal Procedure.
4-14 (6) "Native American culture" means a tribe, band,
4-15 nation, people, or culture that is indigenous to the United States.
4-16 (7) "Native American remains" means human remains of
4-17 or relating to Native American culture.
4-18 (8) "Professional archeologist" means a person:
4-19 (A) registered in the Register of Professional
4-20 Archaeologists; or
4-21 (B) meeting the qualifications for archeology in
4-22 the Secretary of Interior's Standards and Guidelines for Archeology
4-23 and Historic Preservation.
4-24 (9) "State archeologist" means the person employed by
4-25 the Texas Historical Commission under Section 442.007, Government
4-26 Code.
5-1 (10) "Unmarked burial" means any human skeletal
5-2 remains or associated funerary objects or any location where human
5-3 remains or associated funerary objects are discovered or are
5-4 reasonably likely to exist on the basis of archeological or
5-5 historical evidence but to which Subtitle C, Title 8, Health and
5-6 Safety Code, does not apply.
5-7 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person
5-8 who discovers an unmarked burial in, partially in, or on the ground
5-9 shall immediately stop any activity that may disturb the burial and
5-10 shall report the presence and location of the burial to the sheriff
5-11 of the county in which the burial is located or to the state
5-12 archeologist. Activity that will not disturb the burial site may
5-13 continue.
5-14 (b) The person who discovers an unmarked burial shall
5-15 immediately take all reasonable steps to secure and maintain its
5-16 preservation. If it is necessary to move an object before
5-17 completion of disposition as prescribed by Section 192.005 to
5-18 permit the continuation of work on a construction project or
5-19 similar project, the state archeologist or sheriff shall supervise
5-20 the move and require the move be accomplished in the manner that
5-21 will least disturb and best preserve the object before construction
5-22 can recommence.
5-23 (c) If human remains are discovered and the state
5-24 archeologist or a professional archeologist determines further
5-25 human remains are unlikely to be present, the steps to be taken
5-26 under Subsection (b) extend to soil immediately surrounding the
6-1 burial and to funerary objects, sacred ceremonial objects, or
6-2 objects of national or tribal patrimony that are discovered along
6-3 with the human remains.
6-4 (d) The sheriff or the state archeologist to whom an
6-5 unmarked burial is reported under this section shall keep the
6-6 location of the unmarked burial confidential except as provided by
6-7 this chapter. The location of the site is confidential, may not be
6-8 disclosed in any public document, and is not considered to be
6-9 public information for purposes of Chapter 552, Government Code.
6-10 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
6-11 person commits an offense if the person observes human remains,
6-12 knows or reasonably should know that the county sheriff or the
6-13 state archeologist is not aware of the existence of or location of
6-14 the remains, and fails to report the existence of and location of
6-15 the remains to the county sheriff or the state archeologist.
6-16 (b) An offense under this section is a Class A misdemeanor
6-17 unless it is shown on the trial of the offense that the defendant
6-18 has been previously convicted of an offense under this section, in
6-19 which event the offense is a state jail felony.
6-20 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY.
6-21 (a) A person commits an offense if the person disturbs or permits
6-22 disturbance of an unmarked human burial with the intent to
6-23 unlawfully appropriate human remains or funerary objects. A person
6-24 found in actual or constructive possession of human remains or
6-25 funerary objects more than 50 feet from the burial is presumed to
6-26 intend to appropriate the remains or objects unless the possession
7-1 is pursuant to Section 192.002(b).
7-2 (b) An offense under this section is a Class A misdemeanor
7-3 unless it is shown on the trial of the offense that the defendant
7-4 has been previously convicted of an offense under this section, in
7-5 which event the offense is a state jail felony.
7-6 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is
7-7 reason to believe a site may contain human remains, the law
7-8 enforcement officer or state archeologist shall immediately notify
7-9 the landowner and the appropriate medical examiner. If the remains
7-10 reported under this section are associated with or suspected of
7-11 association with any crime, the medical examiner shall, within five
7-12 business days, inform the landowner and the person whose activities
7-13 resulted in discovery of the site as to the nature and duration of
7-14 any additional measures needed to protect the site.
7-15 (b) If remains reported under this section are not
7-16 associated with or suspected of association with any crime, the
7-17 state archeologist shall be notified by the medical examiner within
7-18 five business days. The state archeologist shall inform the
7-19 landowner and the person whose activities resulted in discovery of
7-20 the site as to the nature and duration of any additional measures
7-21 needed to protect the site as soon as reasonably practicable, but
7-22 not later than the fifth business day after the date the state
7-23 archeologist receives notice under this subsection.
7-24 (c) If review by the state archeologist of the human remains
7-25 or any funerary objects suggests or demonstrates a direct
7-26 historical relationship of the remains to a Native American
8-1 culture, the state archeologist shall:
8-2 (1) notify the appropriate Native American leaders;
8-3 and
8-4 (2) consult with the appropriate Native American
8-5 leaders regarding any proposed treatment or scientific studies and
8-6 final disposition of the remains.
8-7 (d) All Native American burial remains and associated
8-8 funerary objects not claimed for reburial by the applicable Native
8-9 American culture shall be placed for curation purposes by the state
8-10 archeologist with an institution or state or local government
8-11 agency, including an institution of higher learning that receives
8-12 federal funds. In other cases, where the burial remains and
8-13 associated funerary objects are not directly related to a Native
8-14 American culture, the state archeologist shall determine the racial
8-15 or ethnic group of the remains. The state archeologist shall
8-16 contact any descendants associated with the remains. If the
8-17 descendants cannot be located, the state archeologist shall consult
8-18 community leaders from the appropriate racial or ethnic group
8-19 concerning the disposition of the remains. If the remains are not
8-20 claimed for repatriation by the consulted entity, the state
8-21 archeologist shall designate an appropriate repository for curation
8-22 or reinterment of the remains.
8-23 (e) Unmarked burials and funerary objects discovered by
8-24 professional archeologists during the performance of their official
8-25 duties shall be reported to the state archeologist within three
8-26 business days of the discovery. Not later than 15 business days
9-1 after notification to the state archeologist, the professional
9-2 archeologist shall report to the state archeologist concerning the
9-3 cultural and biological characteristics of the burial and shall
9-4 recommend temporary disposition of the remains for purposes of
9-5 analysis in accordance with this chapter.
9-6 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does
9-7 not require excavation of an unmarked human burial unless
9-8 excavation is necessary to prevent destruction of the remains or
9-9 associated funerary objects.
9-10 Sec. 192.007. INVOLVEMENT OF PRIVATE LANDOWNERS.
9-11 (a) Within three business days after the state archeologist is
9-12 notified that human remains or funerary objects have been disturbed
9-13 on private land, the state archeologist shall notify the landowner.
9-14 At the request of the landowner, the state archeologist shall
9-15 consult with the landowner about the proposed treatment and
9-16 disposition of the human remains and funerary objects. A landowner
9-17 receives no additional rights to the human remains or funerary
9-18 objects solely because the landowner consults with the state
9-19 archeologist.
9-20 (b) The location of human remains or funerary objects does
9-21 not allow public access on the private property controlled by the
9-22 landowner.
9-23 (c) If after notification of the proper authorities an
9-24 unmarked burial site is not determined to be a crime scene, an
9-25 individual landowner is entitled to repayment for lost production
9-26 from the specific site secured under this chapter and the
10-1 reasonable restoration of the site to its original condition. The
10-2 governmental agency or political subdivision responsible for an
10-3 excavation or investigation under Section 42.13, Penal Code, or
10-4 this chapter shall be responsible for all damages, costs, and
10-5 repairs associated with this subsection. If a landowner and a
10-6 governmental entity that is a state agency do not agree as to the
10-7 existence or amount of repayment to which the landowner is entitled
10-8 under this subsection, the dispute shall be resolved through the
10-9 State Office of Administrative Hearings.
10-10 Sec. 192.008. EXCEPTIONS TO PROSECUTION. It is an exception
10-11 to prosecution for an alleged violation of Section 192.004 that:
10-12 (1) the person:
10-13 (A) is the landowner or the landowner's agent,
10-14 employee, easement holder, or tenant and the disturbance of the
10-15 unmarked burial or funerary objects occurred accidentally in the
10-16 course of legitimate activity; and
10-17 (B) has no intention of further disturbing or
10-18 permitting the disturbance of an unmarked burial or funerary
10-19 objects; or
10-20 (2) the person was a law enforcement officer, a
10-21 medical examiner, a professional archeologist, a person working
10-22 under the lawful authority of the state archeologist, or another
10-23 official performing a duty imposed by law, and the disturbance of
10-24 the unmarked burial or funerary objects occurred in the performance
10-25 of the person's official duty.
10-26 Sec. 192.009. RULEMAKING AUTHORITY. The Texas Historical
11-1 Commission by rule shall establish procedures to implement this
11-2 chapter.
11-3 SECTION 3. (a) Section 42.13, Penal Code, as added by this
11-4 Act, and Sections 192.003 and 192.004, Natural Resources Code, as
11-5 added by this Act, apply only to an offense committed on or after
11-6 the effective date of this Act. For purposes of this section, an
11-7 offense is committed before the effective date of this Act if any
11-8 element of the offense occurs before that date.
11-9 (b) An offense committed before the effective date of this
11-10 Act is covered by the law in effect when the offense was committed,
11-11 and the former law is continued in effect for that purpose.
11-12 SECTION 4. This Act takes effect September 1, 2001.