# 'AV o\ \ 

### Court of Appeals 

### Ifxfitf Itstnct of Okxas at Batlas JUDGMENT LAURAL LAND MEMORIAL PARK, INC., LITTLE BETHEL MEMORIAL PARK, INC., RESTLAND OF DALLAS, INC., and ROSELAWN MEMORIAL GARDENS, INC. Appellants
No. 05-94-01668-CV V.
DALLAS CENTRAL APPRAISAL DISTRICT, DALLAS CENTRAL APPRAISAL DISTRICT APPRAISAL REVIEW BOARD, and FOY MITCHELL, JR., Appellees Appeal from the 160th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 92-10665-H). Opinion delivered by Justice Morris, Justice Devany participating.

In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that dedicated cemetery property is exempt from the assessment of ad valorem taxes. After all costs of this appeal have been paid, the clerk of the district court is directed to release the balance of the cash deposit in lieu of cost bond to Laurel Land Memorial Park, Inc. Judgment entered October 20, 1995.



## ^ ?U^^

### REVERSE and RENDER and Opinion Filed October 20, 1995

In The 

### QLautt ofAppeals 2xfty Itstrtrt of(Eexas at 5allas
No. 05-94-01668-CV 

### LAUREL LAND MEMORIAL PARK, INC., LITTLE BETHEL MEMORIAL PARK, INC., RESTLAND OF DALLAS, INC., and ROSELAWN MEMORIAL GARDENS, INC., Appellants
V. 

### DALLAS CENTRAL APPRAISAL DISTRICT, DALLAS CENTRAL 

### APPRAISAL DISTRICTAPPRAISAL REVDZWBOARD, and FOY MITCHELL, JR., Appellees On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. 92-10665-H
OPINION 

### Before Justices Baker1, Morris, and Devany Opinion By Justice Morris 

### This summaryjudgment case presents an unanswered question oflaw. We decide 

### whether publicly dedicated cemetery property is exempt from ad valorem taxation even 1The Honorable James A. Baker, Justice, participated in this cause atthe time it was submittedfor decision Due to the 

## appointmentofJust.ceBakertotheTexasSupremeCourtonOctober3,1995,hedidnotparticipateintheJ*Z££££.

### though a corporation organized to make profit owns the property. We conclude the property is exempt from taxation. 

### In four points of error, Laurel Land Memorial Park, Inc., Little Bethel Memorial 

### Park, Inc., Restland of Dallas, Inc., and Roselawn Memorial Gardens, Inc., appealed a summaryjudgment granted in favor ofthe Dallas Central Appraisal District, Dallas Central 

### Appraisal District Appraisal Review Board, and Foy Mitchell, Jr.2 The Cemeteries filed suit 

### to challenge the District's decision to assess ad valorem taxes on the Cemeteries' publicly dedicated cemetery property. The trial court rendered judgment in favor ofthe District 

### after all parties filed cross-motions for summaryjudgment and made extensive stipulations 

### offact. The trial court'sjudgment subjected the Cemeteries' dedicated cemetery property

to ad valorem taxation. 

### In deciding the Cemeteries' appeal, we conclude first that dedicated cemetery property is statutorily exempt from ad valorem taxation by the Texas Health and Safety 

### Code. That decision, in turn, leads us to conclude thatpublicly dedicated cemeteryproperty is not "held for profit" as contemplated by the Texas Tax Code and, therefore, is also exempt under the tax code. Because we conclude the property involved in this case is exempt, we reverse the trial court's judgment and renderjudgment for the Cemeteries.

For clarity, appellants will be referred toas the "Cemeteries" and appeUees will be referred toas the "District.

-2-FACTUAL BACKGROUND 

# The Cemeteries own and operate perpetual care cemeteries, which are comprised ofdistinct categories ofland. The Cemeteries own publicly dedicated ,and used or to be usedexclusivelyforhuman burial. The Cemeteriesalsoown undedicated tend, which is no, in.nded to be used for interment purposes. The only property a. issue in this case is the 

# f«category: publicly dedicated cemetery property used or to be used exclusively for

.iman burial. 

## Before 1992, theDistrictgrantedexemptionfromtaxationtotheCemeteriesfortheir 

# publiclydedicated cemeterypropertyinwhich at leastone intermenthad takenplace or at least fifty percent ofthe burial spaces had been sold even ifthere had not yet been an 

# interment. But in 1992, the District ended its practice ofexempting dedicated cemetery property from taxation ifacorporation chartered and organized for profit owned the land 

## and operatedthe cemetery. The Cemeteries fitthis description. The Districtthen assessed 

## advaloremtaxes onall ofthe Cemeteries' property. TheDistrictdidnotassess advalorem taxes on other publicly dedicated cemetery property ifanon-profit corporation owned the property. 

## After unsuccessfully protesting the District's tax notices for theirpublicly dedicated cemetery property, the Cemeteries appealed the review board's decisions to the district 

# court. There the Cemeteries allegednine causes ofaction. In one ofthe causes ofaction, 

# theCemeteriesallegedthattheTexasHealthandSafetyCodeexemptsdedicatedcemetery

•3-property from taxation, regardless ofthe cemetery owner's corporate character. The District and the Cemeteries filed cross-motions for summary judgment based upon stipulated facts. The District's motion for summary judgment asserted that, because the parties stipulated to the value of the dedicated property, the only question for the trial court was whether the law entitled the dedicated property to an exemption from ad valorem taxation. The District's position rested on its conclusion that the Cemeteries held their properties for profit and, therefore, under the Texas Tax Code, the property was not exempt from taxation. In their motion for summaryjudgment, the Cemeteries asserted the dedicated property was exemptfrom ad valoremtaxation under the TexasHealth and Safety Code. The trialcourtgranted the District's motion forsummaryjudgment in itsentirety and denied the Cemeteries' motion for summary judgment in its entirety. The trial court renderedjudgment to the effect that the Cemeteries' dedicated property is not exempt and, consequently, is subject to taxation. The Cemeteries perfected their appeal to this Court.
DISCUSSION We apply well-known standards when reviewing a motion for summary judgment. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a. When both parties move for summaryjudgment, each must carry its
own burden of proof. Benchmark Bank v. State Farm Lloyds, 893 S.W.2d 649, 650 (Tex. App.--Dallas 1994, no writ). That burden is to show an entitlement to summaryjudgment

as a matter of law by conclusively proving all the elements of the cause of action or defense.

-4-Odeneal v. Van Horn, 678 S.W.2d 941, 941 (Tex. 1984). In this case, we review both the 

### Texas Tax Code and the Texas Health and Safety Code, as well as the summaryjudgment record, to decide whether the trial court should have granted either motion. SeeJones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). We necessarily address the nature and legal consequences of publicly dedicating property for use as a cemetery. Cemeteries historically have received special favor under Texas law. See Peterson v. Stolz, 269 S.W. 113, 115-16 (Tex. Civ. App.-Beaumont 1925, writ refd). For example, land that a cemetery owner publicly dedicates is exempt from the exercise of eminent domain. Sacred Gardens of Memory, Inc. v. State, 334 S.W.2d 220, 222 (Tex. Civ. App.-San Antonio 1960, writ refd n.r.e.). Also, dedicated cemetery property is not subject to levy and execution. Tex. Health & Safety Code Ann. § 711.037(b) (Vernon Supp. 1995); Oakland Cemetery Co. v. People's Cemetery Ass'n, 93 Tex. 569, 575, 57 S.W. 27, 29 (1900). And, despite thelong-standing antipathy against restraints onalienation, dedicated cemetery property is exempt from the rule against perpetuities. Tex. Health & Safety Code Ann. § 711.035(c) (Vernon Supp. 1995). The statute also makes it difficultfor utilities to obtain easements through, over, or across any part of a dedicated cemetery. Id. § 711.035(d). Exempting dedicated cemetery property from taxation is also an expression of society's interestinprotecting and preserving places ofburial. Texas recognizes this interest in its constitution and various statutes. In particular, the issue of taxability ofcemetery property is expressly addressed in the Texas Constitution, the Texas Tax Code, and the

-5-Texas Health and Safety Code. 

## The constitution authorizes the legislature to exempt from taxation public property and certain places ofburial. It provides: 

### [Tjaxes shall be equal and uniform upon the same class ofsubjects within the 

### limits ofthe authority levying the tax; butthe legislature may, by general laws, 

### exempt from taxation public property used for public purposes . . . [and] places ofburial not held for private or corporate profit. Tex. Const, art. VIII, § 2(a). 

### The policy expressed in the constitution is found again in the Texas Tax Code. The

tax code states: 

### Aperson is entitled to exemption from taxation ofthe property he owns and uses exclusively for human burial and does not hold for profit. 

### Tex. Tax CodeAnn. § 11.17 (Vernon 1992). Underthis provision ofthe tax code, property qualifies for tax exemption ifit meets atwo-part test. First, it must be used "exclusively for human burial." Second, it must not be held "for profit." 

### Additionally, the health and safety code grants "cemetery organizations" tax 

### exemptionfor certaincemeterypropertythatthe organizationpubliclydedicates as cemetery property. Acemetery organization can be an unincorporated association ofplot owners not operated for profit, provided its articles ofassociation authorize it to conduct business for 

### cemetery purposes. Tex. Health &Safety Code Ann. § 711.001(3)(A) (Vernon Supp. 

### 1995). Acemetery organization also can be acorporation chartered either for profit ornot 

### for profit, providedits articles ofincorporation authorize itto conductbusiness for cemetery

## purposes. Id. §(3)(B). The health and safety code requires acemetery organization to 

## dedicate its property for interment purposes. Id. § 711.034. Once the cemetery organizationpubliclydedicates propertyforintermentpurposes, the cemeteryorganization's dedicated property is exempt from taxation under the health and safety code. Section 711.035 ofthe health and safety code states: 

### (a) Property may be dedicated for cemetery purposes, and the dedication is permitted in respect for the dead, for 

### the disposition ofremains, and in fulfillment ofaduty to and for the benefit of the public. 

### (b) Dedication of cemetery property and title to the exclusive right of sepulture of a plot owner are not 

### affected by the dissolution ofthe cemetery organization, nonuse by the cemetery organization, alienation, encumbrance, orforced sale ofthe property. 

### (e) All property ofadedicated cemetery, including aroad, alley, or walk in the cemetery: 

### (1) is exemptfrom public improvements assessments, fees, and public taxation; and 

### (2) may not be sold on execution or applied in payment of debts due from individual owners and plots. 

### (f) Dedicated cemetery property shall be used exclusively for cemetery purposes until the dedication is removed by court order or until the maintenance ofthe cemetery is enjoined or abated as a nuisance under Section 711.007.

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### Tex. Health &Safety Code Ann. § 711.035 (Vernon Supp. 1995).3 We note that the 

### health and safety code requires dedicated property to be "used exclusively for cemetery purposes," which is similar to the condition imposed by the tax code where it requires property to be used "exclusively for human burial." The two code provisions in this regard

are consistent. 

### Nevertheless, the apparent tension between the Texas Tax Code, which provides that cemetery property held for profit is not exempt from taxation, and the Texas Health and 

### Safety Code, which provides for exemption ofpublicly dedicated cemetery property even if owned by a corporation chartered for profit, creates the central issue in this case: what is 

### the effect of a public dedication of cemetery property for burial purposes by a cemetery organization chartered and organized to make aprofit? Based upon the following analysis,
we conclude the effect ofpublic dedication is to qualify the property involved in this case for tax exemption under both the Texas Health and Safety Code and the Texas Tax Code. 

### Acemetery organization dedicates portions ofits property for human burial by filing a public declaration of dedication with the county clerk. See Tex. Health & Safety Code 

### Ann. § 711.034(b) (Vernon Supp. 1995). The effect of publicly dedicating cemetery property is to commit the land to a public purpose different from any other land. See Oak

We note that neitheran unincorporated association operatedfor profit nor individualpersons are covered by the health and safety code'sprovisionsfor dedicating cemeteryproperty. Thus, neitheran unincorporatedassociation operatedforprofitnoran individual can qualifyfor taiexempt status under the health and safety code. See Tex. Health &Safety Code Ann. H711.034- .035 (Vernon Supp. 1995). Whether or not unincorporated associations operatedfor profit or individuals may be eligible for exemption under section 11.17 ofthe Texas Tax Code isbeyond the scope ofthis opinion.

-8-Park Cemetery. Inc. v. Donaldson, 148 S.W.2d 994, 998 (Tex. Civ. App.-Galveston 1940, writ dism'd judgm't cor.). Once a cemetery organization publicly dedicates property, the organization cannot use that property for any purpose other than for human burial. See Tex. Health & Safety Code Ann. § 711.035. Moreover, once a cemetery organization dedicates property, the dedication may be removed only throughjudicial proceedings. See id. § 711.036. In effect, the dedication fixes the property's use. Thus, once dedicated, the property not only must be used "exclusively for cemetery purposes" as required by the health and safety code, but also must be used "exclusively for human burial" as contemplated by the tax code. Publicly dedicating cemetery property, therefore, not only satisfies the health and safety code's prerequisite for tax exemption, but also satisfies the first condition of the two-part test for tax exemption set forth in the tax code. Once public dedication fixes the property's use, the dedication also causes the property not to be held "for profit," which is the second part of the tax code's test for tax exemption. It does so because public dedication of land for burial purposes effects an abandonment of the land's use and possession for all purposes other than burial. See Smalhvood v.Midfield OilCo., 89 S.W.2d 1086,1090 (Tex. Civ. App.-Texarkana 1935, writ dism'd); see also Damon v. State, 52 S.W.2d 368, 370 (Tex. Comm'n App. 1932, judgm't adopted). Once the property is dedicated, it cannot be sold or otherwise disposed of for any purpose other than burial. State v.Forest Lawn Lot Owners Ass'n, 152 Tex. 41, 48, 254 S.W.2d 87, 91 (1953). Dedicated property can no longer be a subject of any conveyance

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### or inheritance that might interfere with its use and possession as a burial ground. Smallwood, 89 S.W.2d at 1090; see also Damon, 52 S.W.2d at 370. Public dedication effectively takes the dedicated cemetery property out ofthe ordinary realm ofcommerce. 

### See Smallwood, 89 S.W.2d at 1090. Once dedicated, the property is no longer the subject of trade and commerce. Peterson, 269 S.W. at 115. Indeed, after public dedication, a corporate owner, such as the Cemeteries in this case, retains only the legal title to the dedicated property. Publicly dedicating the property ends the corporate owner's dominion over the land as the fee simple owner because the
owner has the power to sell and convey only the right ofburial. Oakland Cemetery Co., 93 Tex. at 573-74, 57 S.W. at 28-29. Thus, once a cemetery owner publicly dedicates property for burial purposes, the property becomes appropriated fully and exclusively to the public purpose of burying the dead and for no other purpose. SeeTex. Health & Safety Code Ann. § 711.035(a) (Vernon Supp. 1995); cf. Peterson, 269 S.W. at 117. Merely because the property ultimately may be sold for more money than the owner paid for it does not mean the propertyis "held for profit." As a matter oflaw, the public dedication of property for cemetery purposes causes the property to be held for the sole purpose ofburying the dead, regardless of whether the owner sells it for more than it paid for it. We conclude that, regardless of the cemetery owner's corporate character, once cemetery property is dedicated as required by the Texas Health and Safety Code, it is no longer held for profit as contemplated by the Texas Constitution or section 11.17 of the

•10-

# Texas Tax Code. See Tex. Const, art. VIII, §2; Tex. Tax Code Ann. §11.17 (Vernon 1992). Because the property is no longer held for profit and can be used only for human burial, it is exempt from ad valorem taxation as amatter oflaw. SeeTex. Tax Code Ann. 

# §11.17 (Vernon 1992); Tex. Health & Safety Code Ann. §711.035(e) (Vernon Supp. 1995). 

## The only issue before us is aquestion oflaw. Because there were cross-motions for summaryjudgment, the proper disposition is for us to renderjudgment for the party whose motion the trial court should have granted. Tex. R. App. P. 81(c); seeJones, 745 S.W.2d 

## at 900. Accordingly, we reverse the trial court'sjudgment. We renderjudgment for the Cemeteries that the dedicated cemetery property is exempt from the assessment of ad
valorem taxes.4

Publish Tex. R. App. P. 90 941668F.P05 ICE MORRIS "

from taxation pursuant to Tex. Health &Safety Code §711.035(e). P

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