## TREATI-OIZN~:Y RENEWAL

Hon. Tom Blackwell CountyAttorney TravisCounty Austin,Texas
Dear Mr. Blackwell: December **1.6, 1957** 
Opinion No. **ww-326**
Re: Exemption from taxationof **87** acres of land dedicated to the Catholic Cemetery Association of Austin, Texas.
You request the opinion of this office as towhether certainproperty owned by the Catholic Cemetery Association of Austin Is exempt from ad valorem taxationunder the facts presented in your letter of November 22, 1957, the pertinent part of which reads as follows:

"The Catholic's CemeteryAssociation of Austin has dedicated for cemetery purposes **87** acres of land justnorth of the MlssourlPacific Railroad Intersectionwith the Interregional Highway,which land lies south of St. Edwards University. This land was deeded to the Catholic CemeteryAssociation of Austin by deed shown InVolume 1302 at page 425 of the Deed Records of Travis County, Texas... The CemeteryAssociation then dedicated the acreage for cemeterypurposes as shown by the plat InVolume **6,** page **76** of the Plats of Travis County, Texas. This plat was for approximately 95 acres of land since which time the south boundary line has been changed at the request of the City of Austin In order tomake way for the south boundary loop. After thismodification there remained **85** acres of land still Intact for cemetery purposes. "The **85** acres, the subject of this oplnlon, is calledAssumption Cemetery, the Catholic Cemetery Association controls thie Cemetery and sells right of sepulture to lndlvlduals. Ten per cent of the salesprice Is paid Into the Cemetery's continuous care fund, tenper cent goes to the continuous care fund of the Mount Calvary Cemetery (theold Catholic cemetery) and eighty per cent goes to the third party developer (St.Edwards University)<
. 1.~: Hon. Tom Blackwell, page 2 (WW-326)

from which Is paid operational expenses, cost of development, and cost of land. "TheDeed from the St..EdwardsUnlverslty to the Catholic CemeteryAssociationhas a provision In it to the effect that If the Cemetery Association'sCorporate existence shall terminate, the land shall revert to St. Edwards University. The deed also provides that the land Is being conveyed to the Cemetery Association 'forso long as the land Is used for cemeterypurposes and no longer'. "The Cemetery Assoclatlon is not obligated to resell the land before any set date;nor Is It bound to sell the spaces for any predeterminedprice. No matter the time or price,whenever the right of sepulture Is sold to any of the'spaces,St. Edwards University receives eightyper cent of such salesprice.
"DOyou think this land Is being 'held with a view to profit' in such a wax as to,dlsquallfy it for tax exemption?

r We assume for thepurpose of this opinion that the

Catholic Cemetery Associationwas Incorporatedas a nonprofit corporation and that It has not departed from this. There appears to be no question but that the landbelongs to the CemeteryAssociation subject to the reversionaryright of the grantor, St. Edwards University, if Itsuse for cemeterypurposes should be abandonedby the Association. It Is equally apparent that the land has been dedicated to cemetery purposes. Section 2 of ArticleVIII of the Constitutionof Texas provides In part as follows:

"TheLegislature may by general law exempt from taxation.

. .placesof burial not held for private or corporateprofit." (Emphasis supplied,)
In recognition of the authority thus vested, the Legislaturehas enacted Article **7150,** Vernon's Civil Statutes, which provides In part as follows:Hon. Tom Blackwell, page **3 (~-326)** 

(tThe followingproperty shall be exempt from taxation, towit:

. . . "Section **3.** All landsused exclusively for graveyardsor grounds for burying the i dead, except such as are held by a&person company or corporation

### witha view to p,rofTt.

Under the facts submittedwe think Itmust be conceded that the land In questlon Is held exclusively for thepurpose of burying the dead. This alone would not be sufficient to accord the exemption "Ifheld by any person, company or corporationwith a view to profit or for the purpose of speculation In the sale thereof".

The Cemetery Association controls the cemetery and sells the lots. Teri per cent of the price received for the lots Is allocated to perpetual care of this particular cemeterywhich Is called AssumptionCemetery, and tenper cent Is allocated for the samepurpose to Mt. Calvary Cemetery,which you refer to In your letter as the old Catholic cemetery,arideightyper cent to St. Edwards University for the land and for operating and

..~ developmentpurposes by St. Edwards.

The questionwe must decide Is whether or not this arrangementwith St. Edwards University Is such as to constitute a holding by the cemetery corporation "with a view to profit or for thepurpose of speculating In the sale thereof". We have reached the conclusion that It Is not a holding "witha view to profit or for speculating In the sale thereof".

We do not construe theword "exclusively" to mean that no plot or burial space Is used exclusively for the burial until It has been transferred to a person who devotes It to.thlspurpose. The language of the statute Is not susceptible to this narrow constructionbut to the broader andmore rational view that all the'land Is used exclusively for graveyards or grounds for burying the dead so long as It Is not held for profit.

Upon the dedication of the land by the Cemetery Association to the Interment of the dead, It was held by the Association for thatpurpose just as effectively as would be any segregatedportion thereof transferred to an Individual and thereafterby him devoted to that purpose.Hon. Tom Blackwell, page 4 (~~-326)

We do not think that there Is any element

### ofprofit In the senseused In the constitutionand statutes to the Cemetery Association.

, All that theAssoolatlon reaelves Is a return to It of thepurchase price 

### of the land 

### and lts~developmentby St. Edwards 

### forwhich 

### St.Edwardsreceives eightyper aent from the sale of the lots. Nothing Is left In theway of profit that could be distributed to themembers of the Association. Whether or not this Is a profitable arrangement for St.Edwards University Is not material. Itmay ormay not be.

What we have held here is not In conflictwith our holding In OpinionWW-205, a oopy of whlch~ls herewith enclosed This for the reason that the land Involved In that opinionwas held by a private corporation expressly organleed forprofit and theproperty was held for private or corporateprofit and with a view to profit orfor thepurpose of speculating In the sale thereof,hence was taxableuntli Itwas sold to persons who either used It for burial purposes or field It for such purpose. The whole **87** acres are, under the Constitution and Statutes, exempt from ad valorem taxation.

We conclude,under the facts submittedby you, the land Is not held by the Associationwith a view to profit or for the purpose of speculation In the sale thereof.
SUMMARY Cemeteryproperty held by non-profit corporationsnot for private or corporate profit or with a view to profit or for thepurpose of speculating in the sale thereof Is exempt from ad valorem taxesunder the Constitution ,and Statutes of this State. LPL:gs Yours very truly, APPROVED: OPINION COMMITTEE WILL WILSON Qeo. P.Blackburn,Chalrman Attorney Qeneral
John H. Mlnton Marietta MacGregor Payne B. H. Tlmmlns, Jr. By Pred Werkenthln <P <++-J L. P. Lo1 ar Assistant FYVIEWEDFOR THE ATTORNEY OERBRAL

James N. Ludlum