1-1 By: Barrientos S.B. No. 472 1-2 (In the Senate - Filed January 30, 2001; January 31, 2001, 1-3 read first time and referred to Committee on State Affairs; 1-4 February 28, 2001, reported favorably by the following vote: Yeas 1-5 8, Nays 0; February 28, 2001, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the protection of certain unmarked burials and 1-9 associated human remains or funerary objects and to the creation of 1-10 certain offenses concerning unmarked burials; providing criminal 1-11 penalties. 1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-13 SECTION 1. Chapter 42, Penal Code, is amended by adding 1-14 Section 42.13 to read as follows: 1-15 Sec. 42.13. DISTURBING AN UNMARKED BURIAL. (a) In this 1-16 section: 1-17 (1) "Disturb" means to remove, damage, or otherwise 1-18 alter or deface human remains or funerary objects of an unmarked 1-19 burial. 1-20 (2) "Funerary object" means an object buried with a 1-21 person, including items of personal adornment, stone, bone and 1-22 shell tools, pottery and stone vessels and pipes, and any casket 1-23 and casket hardware. The term includes objects that are part of a 1-24 death rite or ceremony of a culture and are placed with individual 1-25 human remains. 1-26 (3) "Human remains" means the physical remains of a 1-27 human body, including bone, hair, teeth, mummified flesh, and ash. 1-28 (4) "Unmarked burial" means any human skeletal remains 1-29 or associated funerary objects or any location where human remains 1-30 or associated funerary objects are discovered or are reasonably 1-31 likely to exist on the basis of archeological or historical 1-32 evidence but to which Subtitle C, Title 8, Health and Safety Code, 1-33 does not apply. 1-34 (b) A person commits an offense if the person intentionally 1-35 or knowingly: 1-36 (1) disturbs human remains or funerary objects from an 1-37 unmarked burial; or 1-38 (2) buys, sells, or barters human remains or funerary 1-39 objects. 1-40 (c) A person commits an offense if the person knows that a 1-41 burial is being disturbed and the person intentionally or knowingly 1-42 fails to notify either: 1-43 (1) the sheriff of the county in which the unmarked 1-44 burial is located; or 1-45 (2) the state archeologist. 1-46 (d) An offense under Subsection (b) is a state jail felony 1-47 unless it is shown on the trial of the offense that the defendant 1-48 has been previously convicted of an offense under Subsection (b), 1-49 in which event the offense is a felony of the third degree. An 1-50 offense under Subsection (c) is a Class B misdemeanor unless it is 1-51 shown on the trial of the offense that the defendant has been 1-52 previously convicted of an offense under Subsection (c), in which 1-53 event the offense is a Class A misdemeanor. 1-54 (e) It is an affirmative defense to prosecution for an 1-55 alleged violation of this section that the human remains or 1-56 funerary objects were recovered under: 1-57 (1) Chapter 191, Natural Resources Code; 1-58 (2) the National Historic Preservation Act (16 U.S.C. 1-59 Section 470 et seq.); 1-60 (3) 36 C.F.R. Part 800; 1-61 (4) any other applicable federal or state law, rule, 1-62 or order, including: 1-63 (A) Executive Order 11593 (36 Fed. Reg. 8921); 1-64 (B) the Archaeological Resources Protection Act 2-1 of 1979 (16 U.S.C. Section 470aa et seq.); 2-2 (C) Section 192.002, Natural Resources Code; or 2-3 (D) the Native American Graves Protection and 2-4 Repatriation Act (25 U.S.C. Section 3001 et seq.); or 2-5 (5) the lawful authority of the state archeologist. 2-6 (f) At the termination of a criminal prosecution of a 2-7 defendant under this section, if the custodial rights of the 2-8 remains cannot be established to the satisfaction of the presiding 2-9 judge, the state retains jurisdiction as provided by Chapter 192, 2-10 Natural Resources Code, over any human remains or funerary objects 2-11 associated with the offense. 2-12 SECTION 2. Title 9, Natural Resources Code, is amended by 2-13 adding Chapter 192 to read as follows: 2-14 CHAPTER 192. DISCOVERY OF UNMARKED BURIALS 2-15 Sec. 192.001. DEFINITIONS. In this chapter: 2-16 (1) "Commission" means the Texas Historical 2-17 Commission. 2-18 (2) "Disturb" means to remove, damage, or otherwise 2-19 alter or deface human remains or funerary objects of an unmarked 2-20 grave. 2-21 (3) "Funerary object" means an object buried with a 2-22 person, including items of personal adornment, stone, bone and 2-23 shell tools, pottery and stone vessels and pipes, and any casket 2-24 and casket hardware. The term includes objects that are part of a 2-25 death rite or ceremony of a culture and are placed with individual 2-26 human remains. 2-27 (4) "Human remains" means the physical remains of a 2-28 human body, including bone, hair, teeth, mummified flesh, and ash. 2-29 (5) "Medical examiner" means a person appointed under 2-30 Section 2, Article 49.25, Code of Criminal Procedure. 2-31 (6) "Native American culture" means a tribe, band, 2-32 nation, people, or culture that is indigenous to the United States. 2-33 (7) "Native American remains" means human remains of 2-34 or relating to Native American culture. 2-35 (8) "Professional archeologist" means a person: 2-36 (A) registered in the Register of Professional 2-37 Archaeologists; or 2-38 (B) meeting the qualifications for archeology in 2-39 the Secretary of Interior's Standards and Guidelines for Archeology 2-40 and Historic Preservation. 2-41 (9) "State archeologist" means the person employed by 2-42 the Texas Historical Commission under Section 442.007, Government 2-43 Code. 2-44 (10) "Unmarked burial" means any human skeletal 2-45 remains or associated funerary objects or any location where human 2-46 remains or associated funerary objects are discovered or are 2-47 reasonably likely to exist on the basis of archeological or 2-48 historical evidence but to which Subtitle C, Title 8, Health and 2-49 Safety Code, does not apply. 2-50 Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person 2-51 who discovers an unmarked burial in, partially in, or on the ground 2-52 shall immediately stop any activity that may disturb the burial and 2-53 shall report the presence and location of the burial to the sheriff 2-54 of the county in which the burial is located or to the state 2-55 archeologist. Activity that will not disturb the burial site may 2-56 continue. 2-57 (b) The person who discovers an unmarked burial shall 2-58 immediately take all reasonable steps to secure and maintain its 2-59 preservation. If it is necessary to move an object before 2-60 completion of disposition as prescribed by Section 192.005 to 2-61 permit the continuation of work on a construction project or 2-62 similar project, the state archeologist or sheriff shall supervise 2-63 the move and require the move be accomplished in the manner that 2-64 will least disturb and best preserve the object before construction 2-65 can recommence. 2-66 (c) If human remains are discovered and the state 2-67 archeologist or a professional archeologist determines further 2-68 human remains are unlikely to be present, the steps to be taken 2-69 under Subsection (b) extend to soil immediately surrounding the 3-1 burial and to funerary objects, sacred ceremonial objects, or 3-2 objects of national or tribal patrimony that are discovered along 3-3 with the human remains. 3-4 (d) The sheriff or the state archeologist to whom an 3-5 unmarked burial is reported under this section shall keep the 3-6 location of the unmarked burial confidential except as provided by 3-7 this chapter. The location of the site is confidential, may not be 3-8 disclosed in any public document, and is not considered to be 3-9 public information for purposes of Chapter 552, Government Code. 3-10 Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A 3-11 person commits an offense if the person observes human remains, 3-12 knows or reasonably should know that the county sheriff or the 3-13 state archeologist is not aware of the existence of or location of 3-14 the remains, and fails to report the existence of and location of 3-15 the remains to the county sheriff or the state archeologist. 3-16 (b) An offense under this section is a Class A misdemeanor 3-17 unless it is shown on the trial of the offense that the defendant 3-18 has been previously convicted of an offense under this section, in 3-19 which event the offense is a state jail felony. 3-20 Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. 3-21 (a) A person commits an offense if the person disturbs or permits 3-22 disturbance of an unmarked human burial with the intent to 3-23 unlawfully appropriate human remains or funerary objects. A person 3-24 found in actual or constructive possession of human remains or 3-25 funerary objects more than 50 feet from the burial is presumed to 3-26 intend to appropriate the remains or objects unless the possession 3-27 is pursuant to Section 192.002(b). 3-28 (b) An offense under this section is a state jail felony 3-29 unless it is shown on the trial of the offense that the defendant 3-30 has been previously convicted of an offense under this section, in 3-31 which event the offense is a felony of the third degree. 3-32 Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is 3-33 reason to believe a site may contain human remains, the law 3-34 enforcement officer or state archeologist shall immediately notify 3-35 the landowner and the appropriate medical examiner. If the remains 3-36 reported under this section are associated with or suspected of 3-37 association with any crime, the medical examiner shall, within five 3-38 business days, inform the landowner and the person whose activities 3-39 resulted in discovery of the site as to the nature and duration of 3-40 any additional measures needed to protect the site. 3-41 (b) If remains reported under this section are not 3-42 associated with or suspected of association with any crime, the 3-43 state archeologist shall be notified by the medical examiner within 3-44 five business days. The state archeologist shall inform the 3-45 landowner and the person whose activities resulted in discovery of 3-46 the site as to the nature and duration of any additional measures 3-47 needed to protect the site as soon as reasonably practicable, but 3-48 not later than the fifth business day after the date the state 3-49 archeologist receives notice under this subsection. 3-50 (c) If review by the state archeologist of the human remains 3-51 or any funerary objects suggests or demonstrates a direct 3-52 historical relationship of the remains to a Native American 3-53 culture, the state archeologist shall: 3-54 (1) notify the appropriate Native American leaders; 3-55 and 3-56 (2) consult with the appropriate Native American 3-57 leaders regarding any proposed treatment or scientific studies and 3-58 final disposition of the remains. 3-59 (d) All Native American burial remains and associated 3-60 funerary objects not claimed for reburial by the applicable Native 3-61 American culture shall be placed for curation purposes by the state 3-62 archeologist with an institution or state or local government 3-63 agency, including an institution of higher learning that receives 3-64 federal funds. In other cases, where the burial remains and 3-65 associated funerary objects are not directly related to a Native 3-66 American culture, the state archeologist shall determine the racial 3-67 or ethnic group of the remains. The state archeologist shall 3-68 contact any descendants associated with the remains. If the 3-69 descendants cannot be located, the state archeologist shall consult 4-1 community leaders from the appropriate racial or ethnic group 4-2 concerning the disposition of the remains. If the remains are not 4-3 claimed for repatriation by the consulted entity, the state 4-4 archeologist shall designate an appropriate repository for curation 4-5 or reinterment of the remains. 4-6 (e) Unmarked burials and funerary objects discovered by 4-7 professional archeologists during the performance of their official 4-8 duties shall be reported to the state archeologist within three 4-9 business days of the discovery. Not later than 15 business days 4-10 after notification to the state archeologist, the professional 4-11 archeologist shall report to the state archeologist concerning the 4-12 cultural and biological characteristics of the burial and shall 4-13 recommend temporary disposition of the remains for purposes of 4-14 analysis in accordance with this chapter. 4-15 Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does 4-16 not require excavation of an unmarked human burial unless 4-17 excavation is necessary to prevent destruction of the remains or 4-18 associated funerary objects. 4-19 Sec. 192.007. INVOLVEMENT OF PRIVATE LANDOWNERS. 4-20 (a) Within three business days after the state archeologist is 4-21 notified that human remains or funerary objects have been disturbed 4-22 on private land, the state archeologist shall notify the landowner. 4-23 At the request of the landowner, the state archeologist shall 4-24 consult with the landowner about the proposed treatment and 4-25 disposition of the human remains and funerary objects. A landowner 4-26 receives no additional rights to the human remains or funerary 4-27 objects solely because the landowner consults with the state 4-28 archeologist. 4-29 (b) The location of human remains or funerary objects does 4-30 not allow public access on the private property controlled by the 4-31 landowner. 4-32 Sec. 192.008. AFFIRMATIVE DEFENSES TO PROSECUTION. It is an 4-33 affirmative defense to prosecution for an alleged violation of 4-34 Section 192.004 that: 4-35 (1) the person: 4-36 (A) is the landowner or the landowner's agent, 4-37 employee, easement holder, or tenant and the disturbance of the 4-38 unmarked burial or funerary objects occurred accidentally in the 4-39 course of legitimate activity; and 4-40 (B) has no intention of further disturbing or 4-41 permitting the disturbance of an unmarked burial or funerary 4-42 objects; or 4-43 (2) the person was a law enforcement officer, a 4-44 medical examiner, a professional archeologist, a person working 4-45 under the lawful authority of the state archeologist, or another 4-46 official performing a duty imposed by law, and the disturbance of 4-47 the unmarked burial or funerary objects occurred in the performance 4-48 of the person's official duty. 4-49 Sec. 192.009. RULEMAKING AUTHORITY. The Texas Historical 4-50 Commission by rule shall establish procedures to implement this 4-51 chapter. 4-52 SECTION 3. (a) Section 42.13, Penal Code, as added by this 4-53 Act, and Sections 192.003 and 192.004, Natural Resources Code, as 4-54 added by this Act, apply only to an offense committed on or after 4-55 the effective date of this Act. For purposes of this section, an 4-56 offense is committed before the effective date of this Act if any 4-57 element of the offense occurs before that date. 4-58 (b) An offense committed before the effective date of this 4-59 Act is covered by the law in effect when the offense was committed, 4-60 and the former law is continued in effect for that purpose. 4-61 SECTION 4. This Act takes effect September 1, 2001. 4-62 * * * * *