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 corporation organized 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 organized for profit (or by a 

partnership, assooiation or individual), 

though dedicated for euch purpose, but 

from which no interment rights have been 

sold, but are Intended to be sold, subject 

to taxation? 

Are interment rights to such land whiqh 

have revlously been sold by such corporation P partnership, association or Individual) 

to Individuals for the express purpose of 

interment, although not so utilized, subject 

to taxation? 

Are such Interment rights, which have been 

sold and have been actually utilized, subject 

to taxation? 

Are areas wherein streets, sidewalks, and 

planting strips have been installed and 

dedicated, in such a cemetery, subject to 

taxation?” 

We agree with you that the answer to these questions 

turns,Apon the proper construction and application of 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 Constitution of Texas proVide8 in part as follows: 
Hon. Noah Kennedy, Jr. Page 2 (WW-205) 

-. - I 

,. 

.- ,. 

"The Legislature may 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 exclusively for 

graveyards or grounds for burying the dead, 

except sudh.as.are held by any person, company or corporation with.a.vlew.to.proSlt, 

or for the purpose of,speculating ln.the 

sale,thereof." (Rnphasis supplied) 

Art. glla-11, V.C.S., provides In part as follows: 

"As such dedication and so long as such 

property shall remain dedicated to 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 aSfirmatlve and not require 

authorities to support this answer. The plain an,3 explrcit 

provision of Sec. 2 of Art, VIII of the Constitttion of 

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 Qusticn N;i, 1 that 

portion of Art. glla-11, V.C.S,, quote3 above is un:!onstltutlonal if intended to apply to cemetery prcp,srty %ld 

for profit by a corporation, partnership, as?o.:iatiLon or 

Individual. It would be a clear violation OS tha.k portion 

of Sec. 2 of Art. VIII of the Constitution quo%ed above. 

The Legislature is without authority to enSa~rg* 02 add to 

the exemption from taxation of cerketery prcpe~-'-v where held 

for profit. Cemetery property not used o-rr lie~:n ior, profit 

is clearly exempt from taxation under the Szegcing c.onstltutional and statutory provisions and as to sach 

property, Art. glla-11, V.C.S,, quoted above 1,s zon.s%itutlonal. 
c - . 

4. 

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

We are aware of such cases as Oakland Cemetery Com2d 6b, and MountOlive Cemetery Company v. Fort Worth, 

275 S.W. 2d 152 but when properly understood they 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 exemption from 

taxation of cemetery property. They involve either the 

enforcement of contract rights, 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 property held for profit, 

such as embraced in Question No. 1, is taxable, we are not 

to be understood as holding that the enforcement of the 

collection of taxes upon such property may disrup$ the 

dedication or work an Injury to others who have acquired 

property in the cemetery for burial purposes. Mount Olive 

Cemetery Company 

TRefc;-n.r.e.1 St 

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 questions has 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 dedicated t.o the 

use of the public and constitute an 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 

cemetery purposes, but from which no ir&erment 

rights have been sold are subject to taxation 

under the constitution and laws of this State. 

But property after It has been sold by a 

cemetery corporation, association, partnership 

or individual for burial purposes Is exempt 
Hon. Noah Kennedy, Jr. Page 4 (WW-205) 

from taxation whether interments have 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 exemption applies to streets, alleys and roadways in 

the cemeteries, for they are dedicated to a 

public use and are not held for sale or 

profit. Enforcement of the collection ofthe' 

taxes against cemetery property that is 

subject to taxation may not disrupt the dedication or work an injury to others owning 

property in the cemetery used 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 ATTORNEY GENiRAL 

BY: Geo. P. Blackburn