Hon. Noah Kennedy, Jr County Attorney Nueces County Corpus Chrieti,Texae Dear Mr. Kennedy: OPINION NO. WW 205 Re: Are cemetery lands~held by a corporationorganized for profit subject to taxation? YOU qiestions 1’1.

”2.

“3.
” 4. request the opinion of this office upon four stated In your letter as follows: Are cemetery lands held by a corpora- * tion organizedfor profit (or by a partnership,

assooiationor individual), though dedicated for euch purpose, but from which no intermentrights have been sold, but are Intended to be sold, subject to taxation? Are intermentrights to such land whiqh have revlouslybeen sold by such corporation P partnership,

associationor Individual) to Individualsfor the express purpose of interment,althoughnot so utilized, subject to taxation? Are such Intermentrights, which have been sold and have been actuallyutilized, subject to taxation? Are areas wherein streets, sidewalks,and planting stripshave been installed and dedicated, in such a cemetery, subjectto taxation?” We agree with you that the answer to these questions turns,Apon

the proper construction and applicationof Sec. 2 of’ Art. VIII of the Constitution of Texas and Brt. glla-11, Vernon’s Civil Statutes,as amended,and to which we add Art. 7150, V.C.S. These are as follows: Sec. 2 of Art. VIII OS the Constitutionof Texas proVide8 in part as follows:Hon. Noah Kennedy, Jr. Page 2 (WW-205) -. - I

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"The Legislaturemay by general law exempt from taxation. places of burial not held for prlvate~or.~orporate~profit." Pursuant to the authority thus vested, the Leglslature has enacted Art. 7150, V.C.S., which provides In part as follows:

"The Sollowlng ,property shall be exempt from taxation, towit:.
. . “Sec. 3. All lands used exclusivelyfor graveyardsor grounds for burying the dead, except sudh.as.are held by any person, company or corporationwith.a.vlew.to.proSlt, or for the purpose of,speculating ln.the sale,thereof."(Rnphasissupplied) Art. glla-11,V.C.S., provides In part as follows: "As such dedicationand so long as such property shall remain dedicatedto cemetery purposes. . . all of such property shall be exempt from all public taxation." We answer your questions in the order stated in the light of the foregoing constitutional and stat-itory

provi slons. It is quite clear, it seems to us, t&a: Qzstion No. 1 should be answered In the aSfirmatlveand not require authoritiesto support this answer. The plain an,3 explrcit provisionof Sec. 2 of Art, VIII of the Constitttionof Texas, and Sec. 3 of Art. 7150 of V,C.S., aa s*t out above would, it seems to us, require this answer* As to the property embraced in QusticnN;i, 1 that portion of Art. glla-11,V.C.S,, quote3 above is un:!onstltutlonal if intended to apply to cemeteryprcp,srty %ld for profit by a corporation,partnership, as?o.:iatiLon

or Individual. It would be a clear violationOS tha.k portion of Sec. 2 of Art. VIII of the Constitution quo%ed above. The Legislatureis without authority to enSa~rg* 02 add to the exemptionfrom taxation of cerketery prcpe~-'-v

where held for profit. Cemeteryproperty not used o-rr lie~:n ior, profit is clearly exempt from taxation under the Szegcing c.onstltutional

and statutoryprovisionsand as to sach property,Art. glla-11,V.C.S,, quoted above 1,szon.s%itutlonal.c - .

4.

Hon. Noah Kennedy, Jr. ‘,Page 3 (WW-205)

We are aware of such cases as OaklandCemetery Com2d 6b, and MountOlive Cemetery Company v. Fort Worth, 275 S.W. 2d 152 but when properlyunderstoodthey do **not** militate ag&st the taxability of cemetery property which has not been sold but held to be sold for profit. None of these involve taxation or exemptionfrom taxation of cemeteryproperty. They involve either the enforcementof contractrights, damage to property or special assessments. Taxation does not arise by contract and taxes are not debts in the usual sense. In holding that cemetery propertyheld for profit, such as embraced in Question No. 1, is taxable,we are not to be understoodas holding that the enforcement of the collectionof taxes upon such propertymay disrup$ the dedicationor work an Injury to others who have acquired property in the cemetery for burial purposes. Mount Olive Cemetery Company TRefc;-n.r.e.1St

v. City of Fort Worth, 275 S.W. 2d 152 ate.v.~Forest 152 Tex. 41, $54 S.W. 2d 67. Lawn,Owners Association,
The answer to Questions 2, 3 and 4 is in the negative. The property referred to in these questionshas passed out of the category of being held for profit and, therefore, is exempt from taxation by virtue of Sec. 3 of Art. 7150 V.C.S. The streets,alleys and roadways In the cemeteries are exempt from taxation because i,hey a,re dedicatedt.o

the use of the public and constitutean essentfa;appurtenance to the use of the other property of the ceme+ery. Moreover, they are not held for sale; hence, not for profit. Your able brief has been most helpful to us.
SUMMARY Cemetery lands owned and held by corporations organized for profit (or by partnership,associations or Individuals),thou& de&cat4 for cemeterypurposes,but from which no ir&erment rights have been sold are subject to taxation under the constitutionand laws of this State. But property after It has been sold by a cemetery corporation, association,

partnership or individualfor burial purposes Is exemptHon. Noah Kennedy, Jr. Page 4 (WW-205)

from taxationwhether intermentshave been made therein or not; this by virtue of Sec. 3 of Art. 7150 V.C.S. Such property is no longer held for profit. The exemptionapplies to streets,alleys and roadways in the cemeteries,for they are dedicatedto a public use and are not held for sale or profit. Enforcementof the collectionofthe' taxes against cemeteryproperty that is subject to taxationmay not disrupt the dedication or work an injury to others owning property in the cemeteryused for burial purposes. Yours very truly
WILL WILSON

LPL/fb APPROVED: OPINION COMMITTEE: H. Grady Chandler,Chairman Mary Kate Wall Howard Maya W. R. Hemphlll Wayland C. Rlvers, Jr. REVIEWED FOR THE ATTORNEYGENiRAL BY: Geo. P. Blackburn