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                                  * * * * *