Hon. Noah Kennedy, Jr        OPINION NO. WW 205
County Attorney
Nueces County                Re: Are cemetery lands~held
Corpus Chrieti, Texae            by a corporationorgan-
                                 ized for profit subject
Dear Mr. Kennedy:                to taxation?
     YOU request the opinion of this office upon four
qiestions stated In your letter as follows:
      1’1.Are cemetery lands held by a corpora-    *
          tion organized for profit (or by a
          partnership,assooiationor individual),
          though dedicated for euch purpose, but
          from which no interment rights have been
          sold, but are Intended to be sold, subject
          to taxation?
      ”2. Are interment rights to such land whiqh
          have revlously been sold by such corpora-
          tion Ppartnership,associationor Individual)
          to Individualsfor the express purpose of
          interment, although not so utilized, subject
          to taxation?
      “3.   Are such Interment rights, which have been
            sold and have been actually utilized, subject
            to taxation?
      ”4. 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,Aponthe proper constructionand applicationof Sec. 2
 of’Art. VIII of the Constitutionof 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 pro-
 Vide8 in part as follows:
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Hon. Noah Kennedy,   Jr. Page 2   (WW-205)


           "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 Legls-
lature has enacted Art. 7150, V.C.S., which provides In
part as follows:
           "The Sollowlng,propertyshall be exempt
       from taxation, towit:. . .
           “Sec. 3. All lands used exclusivelyfor
       graveyards or grounds for burying the dead,
       except sudh.as.areheld by any person, com-
       pany or corporationwith.a.vlew.to.proSlt,
       or for the purpose of,speculatingln.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 constitutionaland stat-itory    pro-
vi 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,3explrcit
provision of 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 Qusticn N;i,1 that
portion of Art. glla-11, V.C.S,, quote3 above is un:!onstl-
tutlonal 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.kportion
of Sec. 2 of Art. VIII of the Constitutionquo%ed above.
The Legislatureis without authority to enSa~rg*02 add to
the exemption from taxation of cerketeryprcpe~-'-v
                                                 where held
for profit. Cemetery property not used o-rrlie~:n
                                                ior,profit
is clearly exempt from taxation under the Szegcing c.on-
stltutionaland statutory provisions and as to sach
property, Art. glla-11, V.C.S,, quoted above 1,szon.s%itu-
tlonal.
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                 Hon. Noah Kennedy, Jr. ‘,Page3   (WW-205)


                       We are aware of such cases as Oakland Cemetery Com-


                 2d 6b, and MountOlive Cemetery Company v. Fort Worth,
                 275 S.W. 2d 152 but when properly understoodthey do
                 not militate ag&st   the taxability of cemeteryproperty
                 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
                 enforcementof 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 enforcementof 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 v. City of Fort Worth, 275 S.W. 2d 152
                 TRefc;-n.r.e.1 State.v.~ForestLawn,OwnersAssociation,
                 152 Tex. 41, $54 S.W. 2d 67.
                       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,heya,rededicated t.othe
                 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,asso-
                       ciations or Individuals),thou& de&cat4 for
                       cemetery purposes, 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 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 ap-
     plies to streets,alleys and roadways in
     the cemeteries,for they are dedicated to a
     public use and are not held for sale or
     profit. Enforcementof the collection ofthe'
     taxes against cemetery property that is
     subject to taxation may not disrupt the de-
     dication 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
