Texas Attorney General Opinion: JC-465 Page: 2 of 14
This text is part of the collection entitled: Texas Attorney General Opinions and was provided to The Portal to Texas History by the UNT Libraries Government Documents Department.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
Mr. F. Lawrence Oaks - Page 2
date of passage of that law, and have the effect of giving the
State a claim to them as of its effective date?
Request Letter, supra note 1, at 2.
You do not provide any background or factual context. Given the abstract and global nature
of your questions, we answer them to the extent we can in general terms by referring only to the
former Penal Code provisions regulating archaeological explorations, the Antiquities Code, and to
the common law of finds.2 We first conclude that whether the state owns artifacts removed from
state lands prior to 1969 depends on the particular artifacts and where they are found. We cannot
provide a definite answer that would apply to all categories or types of artifacts. With respect to
artifacts found on submerged state lands, the state, as owner of the land, would own artifacts found
buried in the soil or over which the state had constructive possession; otherwise, the submerged
artifacts would belong to the person who had found them. The state, as owner of the land, would
own artifacts found on unsubmerged state lands that are classified as "mislaid" property; however,
artifacts classified as "lost" property would belong to the person who had found them. We next
conclude that the state would not own artifacts removed prior to 1969 from lands owned by political
subdivisions of the state unless they were determined to be "lost" property and the state had "found"
them. Under the Antiquities Code, the state owns artifacts removed subsequent to 1969 from lands
belonging to political subdivisions of the state. Additionally, we conclude that the Texas Historical
Commission is the legal custodian of artifacts removed from state public lands prior to 1969 if they
are recovered and retained by the state. Finally, we conclude that former articles 147a, 147b, 147b-
1, and 147b-2 of the Penal Code did not, as a matter of law, confer to the state ownership of artifacts
removed from state lands prior to 1969.
2A letter from Robert J. Truhill, submitted on behalf of the Ysleta Del Sur Pueblo, a federally recognized Native
American Indian Tribe located in El Paso County, asks this office to consider the provisions of the Native American
Graves Protection and Repatriation Act, 25 U.S.C. 3001-3013 (1994), and whether or not it preempts any provisions
of the Antiquities Code. See Letter from Robert J. Truhill, Diamond Rash Gordon & Jackson, P.C., Attorneys at Law,
to Susan Denmon Gusky, Chair, Opinion Committee, Office of the Attorney General (Sept. 19, 2001). The Native
American Graves Protection and Repatriation Act (the "Act") requires federal agencies and museums (which term
includes a state agency that receives federal funds and has possession of or control over Native American cultural items)
to inventory Native American human remains and other objects in its possession and return them upon request to the
tribes with the appropriate ethnic or cultural affiliation. See 25 U.S.C. 3001-3005 (1994). The Act also establishes
the ownership rights of Native American tribes and their descendants in "Native American cultural items which are
excavated or discovered on Federal or tribal lands after November 16, 1990." Id. 3002 (emphasis added). See Castro
Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001) (By its plain terms, the reach of the statute is limited to federal
or tribal lands and does not apply to municipal lands.); Western Mohegan Tribe and Nation v. New York, 100 F. Supp.
2d 122, 125-26 (N.D.N.Y. 2000), vacated in part on other grounds, 246 F.3d 230 (2d Cir. 2001) (federal statute did not
apply because state-owned land was neither federal nor tribal land). We do not consider the Act's provisions in relation
to the Antiquities Code because the Texas Historical Commission's request asking about artifacts found on state public
lands does not raise the issue, see Request Letter, supra note 1, and Mr. Truhill is not an authorized requestor, see
TEX.Gov'T CODE ANN. 402.042 (Vernon 1998). Additionally, Mr. Truhill does not indicate how the Act is otherwise
implicated by the present request.(JC-0465)
Upcoming Pages
Here’s what’s next.
Search Inside
This text can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Text.
Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-465, text, February 21, 2002; (https://texashistory.unt.edu/ark:/67531/metapth274775/m1/2/: accessed April 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.