78R4769 YDB-F
By: Chavez H.B. No. 929
A BILL TO BE ENTITLED
AN ACT
relating to the protection of certain unmarked burials and
associated human remains or funerary objects and to the creation of
certain offenses concerning unmarked burials; providing criminal
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 42, Penal Code, is amended by adding
Section 42.13 to read as follows:
Sec. 42.13. DISTURBING AN UNMARKED BURIAL. (a) In this
section:
(1) "Disturb" means to remove, damage, or otherwise
alter or deface human remains or funerary objects of an unmarked
burial.
(2) "Funerary object" means an object buried with a
person, including items of personal adornment, stone, bone and
shell tools, pottery and stone vessels and pipes, and any casket and
casket hardware. The term includes objects that are part of a death
rite or ceremony of a culture and are placed with individual human
remains.
(3) "Human remains" means the physical remains of a
human body, including bone, hair, teeth, mummified flesh, and ash.
(4) "Unmarked burial" means any human skeletal remains
or associated funerary objects or any location where human remains
or associated funerary objects are discovered or are reasonably
likely to exist on the basis of archeological or historical
evidence but to which Subtitle C, Title 8, Health and Safety Code,
does not apply.
(b) A person commits an offense if the person intentionally
or knowingly:
(1) disturbs human remains or funerary objects from an
unmarked burial; or
(2) buys, sells, or barters human remains or funerary
objects.
(c) A person commits an offense if the person knows a burial
is being disturbed and the person intentionally or knowingly fails
to notify either:
(1) the sheriff of the county in which the unmarked
burial is located; or
(2) the state archeologist.
(d) An offense under Subsection (b) is a state jail felony
unless it is shown on the trial of the offense that the defendant
has been previously convicted of an offense under Subsection (b),
in which event the offense is a felony of the third degree.
(e) An offense under Subsection (c) is a Class B misdemeanor
unless it is shown on the trial of the offense that the defendant
has been previously convicted of an offense under Subsection (c),
in which event the offense is a Class A misdemeanor.
(f) It is an affirmative defense to prosecution for an
alleged violation of this section that the human remains or
funerary objects were recovered under:
(1) Chapter 191, Natural Resources Code;
(2) the National Historic Preservation Act (16 U.S.C.
Section 470 et seq.);
(3) 36 C.F.R. Part 800;
(4) any other applicable federal or state law, rule,
or order, including:
(A) Executive Order 11593 (36 Fed. Reg. 8921);
(B) the Archaeological Resources Protection Act
of 1979 (16 U.S.C. Section 470aa et seq.);
(C) Section 192.002, Natural Resources Code; or
(D) the Native American Graves Protection and
Repatriation Act (25 U.S.C. Section 3001 et seq.); or
(5) the lawful authority of the state archeologist.
(g) At the termination of a criminal prosecution of a
defendant under this section, if the custodial rights of the
remains cannot be established to the satisfaction of the presiding
judge, the state retains jurisdiction as provided by Chapter 192,
Natural Resources Code, over any human remains or funerary objects
associated with the offense.
SECTION 2. Title 9, Natural Resources Code, is amended by
adding Chapter 192 to read as follows:
CHAPTER 192. DISCOVERY OF UNMARKED BURIALS
Sec. 192.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Historical
Commission.
(2) "Disturb" means to remove, damage, or otherwise
alter or deface human remains or funerary objects of an unmarked
burial.
(3) "Funerary object" means an object buried with a
person, including items of personal adornment, stone, bone and
shell tools, pottery and stone vessels and pipes, and any casket and
casket hardware. The term includes objects that are part of a death
rite or ceremony of a culture and are placed with individual human
remains.
(4) "Human remains" means the physical remains of a
human body, including bone, hair, teeth, mummified flesh, and ash.
(5) "Medical examiner" means a person appointed under
Section 2, Article 49.25, Code of Criminal Procedure.
(6) "Native American culture" means a tribe, band,
nation, people, or culture that is indigenous to the United States.
(7) "Native American remains" means human remains of
or relating to Native American culture.
(8) "Professional archeologist" means a person:
(A) registered in the Register of Professional
Archaeologists; or
(B) meeting the qualifications for archeology in
the Secretary of Interior's Standards and Guidelines for Archeology
and Historic Preservation.
(9) "State archeologist" means the person employed by
the Texas Historical Commission under Section 442.007, Government
Code.
(10) "Unmarked burial" means any human skeletal
remains or associated funerary objects or any location where human
remains or associated funerary objects are discovered or are
reasonably likely to exist on the basis of archeological or
historical evidence but to which Subtitle C, Title 8, Health and
Safety Code, does not apply.
Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) A person
who discovers an unmarked burial in, partially in, or on the ground
shall immediately stop any activity that may disturb the burial and
shall report the presence and location of the burial to the sheriff
of the county in which the burial is located or to the state
archeologist. Activity that will not disturb the burial site may
continue.
(b) The person who discovers an unmarked burial shall
immediately take all reasonable steps to secure and maintain its
preservation. If it is necessary to move an object before
completion of disposition as prescribed by Section 192.005 to
permit the continuation of work on a construction project or
similar project, the state archeologist or sheriff shall supervise
the move and require the move be accomplished in the manner that
will least disturb and best preserve the object before construction
can recommence.
(c) If human remains are discovered and the state
archeologist or a professional archeologist determines further
human remains are unlikely to be present, the steps to be taken
under Subsection (b) extend to soil immediately surrounding the
burial and to funerary objects, sacred ceremonial objects, or
objects of national or tribal patrimony that are discovered along
with the human remains.
(d) The sheriff or the state archeologist to whom an
unmarked burial is reported under this section shall keep the
location of the unmarked burial confidential except as provided by
this chapter. The location of the site is confidential, may not be
disclosed in any public document, and is not considered to be public
information for purposes of Chapter 552, Government Code.
Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
person commits an offense if the person observes human remains,
knows or reasonably should know that the county sheriff or the state
archeologist is not aware of the existence of or location of the
remains, and fails to report the existence of and location of the
remains to the county sheriff or the state archeologist.
(b) An offense under this section is a Class A misdemeanor
unless it is shown on the trial of the offense that the defendant
has been previously convicted of an offense under this section, in
which event the offense is a state jail felony.
Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. (a)
A person commits an offense if the person disturbs or permits
disturbance of an unmarked human burial with the intent to
unlawfully appropriate human remains or funerary objects. A person
found in actual or constructive possession of human remains or
funerary objects more than 50 feet from the burial is presumed to
intend to appropriate the remains or objects unless the possession
is pursuant to Section 192.002(b).
(b) An offense under this section is a state jail felony
unless it is shown on the trial of the offense that the defendant
has been previously convicted of an offense under this section, in
which event the offense is a felony of the third degree.
Sec. 192.005. DISPOSITION OF REMAINS. (a) If there is
reason to believe a site may contain human remains, the law
enforcement officer or state archeologist shall immediately notify
the landowner and the appropriate medical examiner. If the remains
reported under this section are associated with or suspected of
association with any crime, the medical examiner shall, not later
than the fifth business day after the medical examiner is notified
under this subsection, inform the landowner and the person whose
activities resulted in discovery of the site as to the nature and
duration of any additional measures needed to protect the site.
(b) If remains reported under this section are not
associated with or suspected of association with any crime, the
medical examiner shall notify the state archeologist not later than
the fifth business day after the medical examiner is notified under
Subsection (a). The state archeologist shall inform the landowner
and the person whose activities resulted in discovery of the site as
to the nature and duration of any additional measures needed to
protect the site as soon as reasonably practicable, but not later
than the fifth business day after the date the state archeologist
receives notice under this subsection.
(c) If review by the state archeologist of the human remains
or any funerary objects suggests or demonstrates a direct
historical relationship of the remains to a Native American
culture, the state archeologist shall:
(1) notify the appropriate Native American leaders;
and
(2) consult with the appropriate Native American
leaders regarding any proposed treatment or scientific studies and
final disposition of the remains.
(d) All Native American burial remains and associated
funerary objects not claimed for reburial by the applicable Native
American culture shall be placed for curation purposes by the state
archeologist with an institution or state or local government
agency, including an institution of higher learning that receives
federal funds.
(e) If the burial remains and associated funerary objects
are not directly related to a Native American culture, the state
archeologist shall determine the racial or ethnic group of the
remains. The state archeologist shall contact any descendants
associated with the remains. If the descendants cannot be located,
the state archeologist shall consult community leaders from the
appropriate racial or ethnic group concerning the disposition of
the remains. If the remains are not claimed for repatriation by the
consulted entity, the state archeologist shall designate an
appropriate repository for curation or reinterment of the remains.
(f) Unmarked burials and funerary objects discovered by
professional archeologists during the performance of their
official duties shall be reported to the state archeologist not
later than the third business day after the date of the discovery.
Not later than the 15th business day after the date the state
archeologist is notified under this subsection, the professional
archeologist shall report to the state archeologist concerning the
cultural and biological characteristics of the burial and shall
recommend temporary disposition of the remains for purposes of
analysis in accordance with this chapter.
Sec. 192.006. EXCAVATION NOT REQUIRED. This chapter does
not require excavation of an unmarked human burial unless
excavation is necessary to prevent destruction of the remains or
associated funerary objects.
Sec. 192.007. INVOLVEMENT OF PRIVATE LANDOWNERS. (a) Not
later than the third business day after the date the state
archeologist is notified that human remains or funerary objects
have been disturbed on private land, the state archeologist shall
notify the landowner. At the request of the landowner, the state
archeologist shall consult with the landowner about the proposed
treatment and disposition of the human remains and funerary
objects. A landowner receives no additional rights to the human
remains or funerary objects solely because the landowner consults
with the state archeologist.
(b) The location of human remains or funerary objects does
not allow public access on the private property controlled by the
landowner.
Sec. 192.008. AFFIRMATIVE DEFENSES TO PROSECUTION. It is an
affirmative defense to prosecution for an alleged violation of
Section 192.004 that:
(1) the person:
(A) is the landowner or the landowner's agent,
employee, easement holder, or tenant and the disturbance of the
unmarked burial or funerary objects occurred accidentally in the
course of legitimate activity; and
(B) has no intention of further disturbing or
permitting the disturbance of an unmarked burial or funerary
objects; or
(2) the person was a law enforcement officer, a
medical examiner, a professional archeologist, a person working
under the lawful authority of the state archeologist, or another
official performing a duty imposed by law, and the disturbance of
the unmarked burial or funerary objects occurred in the performance
of the person's official duty.
Sec. 192.009. RULEMAKING AUTHORITY. The Texas Historical
Commission by rule shall establish procedures to implement this
chapter.
SECTION 3. (a) Section 42.13, Penal Code, as added by this
Act, and Sections 192.003 and 192.004, Natural Resources Code, as
added by this Act, apply only to an offense committed on or after
the effective date of this Act. For purposes of this section, an
offense is committed before the effective date of this Act if any
element of the offense occurs before that date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2003.