By Barrientos S.B. No. 472 77R4252 YDB-F 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 2-1 likely to exist on the basis of archeological or historical 2-2 evidence but to which Subtitle C, Title 8, Health and Safety Code, 2-3 does not apply. 2-4 (b) A person commits an offense if the person intentionally 2-5 or knowingly: 2-6 (1) disturbs human remains or funerary objects from an 2-7 unmarked burial; or 2-8 (2) buys, sells, or barters human remains or funerary 2-9 objects. 2-10 (c) A person commits an offense if the person knows that a 2-11 burial is being disturbed and the person intentionally or knowingly 2-12 fails to notify either: 2-13 (1) the sheriff of the county in which the unmarked 2-14 burial is located; or 2-15 (2) the state archeologist. 2-16 (d) An offense under Subsection (b) is a state jail felony 2-17 unless it is shown on the trial of the offense that the defendant 2-18 has been previously convicted of an offense under Subsection (b), 2-19 in which event the offense is a felony of the third degree. An 2-20 offense under Subsection (c) is a Class B misdemeanor unless it is 2-21 shown on the trial of the offense that the defendant has been 2-22 previously convicted of an offense under Subsection (c), in which 2-23 event the offense is a Class A misdemeanor. 2-24 (e) It is an affirmative defense to prosecution for an 2-25 alleged violation of this section that the human remains or 2-26 funerary objects were recovered under: 2-27 (1) Chapter 191, Natural Resources Code; 3-1 (2) the National Historic Preservation Act (16 U.S.C. 3-2 Section 470 et seq.); 3-3 (3) 36 C.F.R. Part 800; 3-4 (4) any other applicable federal or state law, rule, 3-5 or order, including: 3-6 (A) Executive Order 11593 (36 Fed. Reg. 8921); 3-7 (B) the Archaeological Resources Protection Act 3-8 of 1979 (16 U.S.C. Section 470aa et seq.); 3-9 (C) Section 192.002, Natural Resources Code; or 3-10 (D) the Native American Graves Protection and 3-11 Repatriation Act (25 U.S.C. Section 3001 et seq.); or 3-12 (5) the lawful authority of the state archeologist. 3-13 (f) At the termination of a criminal prosecution of a 3-14 defendant under this section, if the custodial rights of the 3-15 remains cannot be established to the satisfaction of the presiding 3-16 judge, the state retains jurisdiction as provided by Chapter 192, 3-17 Natural Resources Code, over any human remains or funerary objects 3-18 associated with the offense. 3-19 SECTION 2. Title 9, Natural Resources Code, is amended by 3-20 adding Chapter 192 to read as follows: 3-21 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS 3-22 Sec. 192.001. DEFINITIONS. In this chapter: 3-23 (1) "Commission" means the Texas Historical 3-24 Commission. 3-25 (2) "Disturb" means to remove, damage, or otherwise 3-26 alter or deface human remains or funerary objects of an unmarked 3-27 grave. 4-1 (3) "Funerary object" means an object buried with a 4-2 person, including items of personal adornment, stone, bone and 4-3 shell tools, pottery and stone vessels and pipes, and any casket 4-4 and casket hardware. The term includes objects that are part of a 4-5 death rite or ceremony of a culture and are placed with individual 4-6 human remains. 4-7 (4) "Human remains" means the physical remains of a 4-8 human body, including bone, hair, teeth, mummified flesh, and ash. 4-9 (5) "Medical examiner" means a person appointed under 4-10 Section 2, Article 49.25, Code of Criminal Procedure. 4-11 (6) "Native American culture" means a tribe, band, 4-12 nation, people, or culture that is indigenous to the United States. 4-13 (7) "Native American remains" means human remains of 4-14 or relating to Native American culture. 4-15 (8) "Professional archeologist" means a person: 4-16 (A) registered in the Register of Professional 4-17 Archaeologists; or 4-18 (B) meeting the qualifications for archeology in 4-19 the Secretary of Interior's Standards and Guidelines for Archeology 4-20 and Historic Preservation. 4-21 (9) "State archeologist" means the person employed by 4-22 the Texas Historical Commission under Section 442.007, Government 4-23 Code. 4-24 (10) "Unmarked burial" means any human skeletal 4-25 remains or associated funerary objects or any location where human 4-26 remains or associated funerary objects are discovered or are 4-27 reasonably likely to exist on the basis of archeological or 5-1 historical evidence but to which Subtitle C, Title 8, Health and 5-2 Safety Code, does not apply. 5-3 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person 5-4 who discovers an unmarked burial in, partially in, or on the ground 5-5 shall immediately stop any activity that may disturb the burial and 5-6 shall report the presence and location of the burial to the sheriff 5-7 of the county in which the burial is located or to the state 5-8 archeologist. Activity that will not disturb the burial site may 5-9 continue. 5-10 (b) The person who discovers an unmarked burial shall 5-11 immediately take all reasonable steps to secure and maintain its 5-12 preservation. If it is necessary to move an object before 5-13 completion of disposition as prescribed by Section 192.005 to 5-14 permit the continuation of work on a construction project or 5-15 similar project, the state archeologist or sheriff shall supervise 5-16 the move and require the move be accomplished in the manner that 5-17 will least disturb and best preserve the object before construction 5-18 can recommence. 5-19 (c) If human remains are discovered and the state 5-20 archeologist or a professional archeologist determines further 5-21 human remains are unlikely to be present, the steps to be taken 5-22 under Subsection (b) extend to soil immediately surrounding the 5-23 burial and to funerary objects, sacred ceremonial objects, or 5-24 objects of national or tribal patrimony that are discovered along 5-25 with the human remains. 5-26 (d) The sheriff or the state archeologist to whom an 5-27 unmarked burial is reported under this section shall keep the 6-1 location of the unmarked burial confidential except as provided by 6-2 this chapter. The location of the site is confidential, may not be 6-3 disclosed in any public document, and is not considered to be 6-4 public information for purposes of Chapter 552, Government Code. 6-5 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A 6-6 person commits an offense if the person observes human remains, 6-7 knows or reasonably should know that the county sheriff or the 6-8 state archeologist is not aware of the existence of or location of 6-9 the remains, and fails to report the existence of and location of 6-10 the remains to the county sheriff or the state archeologist. 6-11 (b) An offense under this section is a Class A misdemeanor 6-12 unless it is shown on the trial of the offense that the defendant 6-13 has been previously convicted of an offense under this section, in 6-14 which event the offense is a state jail felony. 6-15 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. (a) 6-16 A person commits an offense if the person disturbs or permits 6-17 disturbance of an unmarked human burial with the intent to 6-18 unlawfully appropriate human remains or funerary objects. A person 6-19 found in actual or constructive possession of human remains or 6-20 funerary objects more than 50 feet from the burial is presumed to 6-21 intend to appropriate the remains or objects unless the possession 6-22 is pursuant to Section 192.002(b). 6-23 (b) An offense under this section is a state jail felony 6-24 unless it is shown on the trial of the offense that the defendant 6-25 has been previously convicted of an offense under this section, in 6-26 which event the offense is a felony of the third degree. 6-27 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is 7-1 reason to believe a site may contain human remains, the law 7-2 enforcement officer or state archeologist shall immediately notify 7-3 the landowner and the appropriate medical examiner. If the remains 7-4 reported under this section are associated with or suspected of 7-5 association with any crime, the medical examiner shall, within five 7-6 business days, inform the landowner and the person whose activities 7-7 resulted in discovery of the site as to the nature and duration of 7-8 any additional measures needed to protect the site. 7-9 (b) If remains reported under this section are not 7-10 associated with or suspected of association with any crime, the 7-11 state archeologist shall be notified by the medical examiner within 7-12 five business days. The state archeologist shall inform the 7-13 landowner and the person whose activities resulted in discovery of 7-14 the site as to the nature and duration of any additional measures 7-15 needed to protect the site as soon as reasonably practicable, but 7-16 not later than the fifth business day after the date the state 7-17 archeologist receives notice under this subsection. 7-18 (c) If review by the state archeologist of the human remains 7-19 or any funerary objects suggests or demonstrates a direct 7-20 historical relationship of the remains to a Native American 7-21 culture, the state archeologist shall: 7-22 (1) notify the appropriate Native American leaders; 7-23 and 7-24 (2) consult with the appropriate Native American 7-25 leaders regarding any proposed treatment or scientific studies and 7-26 final disposition of the remains. 7-27 (d) All Native American burial remains and associated 8-1 funerary objects not claimed for reburial by the applicable Native 8-2 American culture shall be placed for curation purposes by the state 8-3 archeologist with an institution or state or local government 8-4 agency, including an institution of higher learning that receives 8-5 federal funds. In other cases, where the burial remains and 8-6 associated funerary objects are not directly related to a Native 8-7 American culture, the state archeologist shall determine the racial 8-8 or ethnic group of the remains. The state archeologist shall 8-9 contact any descendants associated with the remains. If the 8-10 descendants cannot be located, the state archeologist shall consult 8-11 community leaders from the appropriate racial or ethnic group 8-12 concerning the disposition of the remains. If the remains are not 8-13 claimed for repatriation by the consulted entity, the state 8-14 archeologist shall designate an appropriate repository for curation 8-15 or reinterment of the remains. 8-16 (e) Unmarked burials and funerary objects discovered by 8-17 professional archeologists during the performance of their official 8-18 duties shall be reported to the state archeologist within three 8-19 business days of the discovery. Not later than 15 business days 8-20 after notification to the state archeologist, the professional 8-21 archeologist shall report to the state archeologist concerning the 8-22 cultural and biological characteristics of the burial and shall 8-23 recommend temporary disposition of the remains for purposes of 8-24 analysis in accordance with this chapter. 8-25 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does 8-26 not require excavation of an unmarked human burial unless 8-27 excavation is necessary to prevent destruction of the remains or 9-1 associated funerary objects. 9-2 Sec. 192.007. INVOLVEMENT OF PRIVATE LANDOWNERS. (a) 9-3 Within three business days after the state archeologist is notified 9-4 that human remains or funerary objects have been disturbed on 9-5 private land, the state archeologist shall notify the landowner. 9-6 At the request of the landowner, the state archeologist shall 9-7 consult with the landowner about the proposed treatment and 9-8 disposition of the human remains and funerary objects. A landowner 9-9 receives no additional rights to the human remains or funerary 9-10 objects solely because the landowner consults with the state 9-11 archeologist. 9-12 (b) The location of human remains or funerary objects does 9-13 not allow public access on the private property controlled by the 9-14 landowner. 9-15 Sec. 192.008. AFFIRMATIVE DEFENSES TO PROSECUTION. It is an 9-16 affirmative defense to prosecution for an alleged violation of 9-17 Section 192.004 that: 9-18 (1) the person: 9-19 (A) is the landowner or the landowner's agent, 9-20 employee, easement holder, or tenant and the disturbance of the 9-21 unmarked burial or funerary objects occurred accidentally in the 9-22 course of legitimate activity; and 9-23 (B) has no intention of further disturbing or 9-24 permitting the disturbance of an unmarked burial or funerary 9-25 objects; or 9-26 (2) the person was a law enforcement officer, a 9-27 medical examiner, a professional archeologist, a person working 10-1 under the lawful authority of the state archeologist, or another 10-2 official performing a duty imposed by law, and the disturbance of 10-3 the unmarked burial or funerary objects occurred in the performance 10-4 of the person's official duty. 10-5 Sec. 192.009. RULEMAKING AUTHORITY. The Texas Historical 10-6 Commission by rule shall establish procedures to implement this 10-7 chapter. 10-8 SECTION 3. (a) Section 42.13, Penal Code, as added by this 10-9 Act, and Sections 192.003 and 192.004, Natural Resources Code, as 10-10 added by this Act, apply only to an offense committed on or after 10-11 the effective date of this Act. For purposes of this section, an 10-12 offense is committed before the effective date of this Act if any 10-13 element of the offense occurs before that date. 10-14 (b) An offense committed before the effective date of this 10-15 Act is covered by the law in effect when the offense was committed, 10-16 and the former law is continued in effect for that purpose. 10-17 SECTION 4. This Act takes effect September 1, 2001.