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.