          TREATI-OIZN~:Y              RENEWAL



                      December 1.6, 1957

Hon. Tom Blackwell            Opinion No. ww-326
County Attorney
Travis County                 Re:   Exemption from taxation of
Austin, Texas                       87 acres of land dedicated
                                    to the Catholic Cemetery
Dear Mr. Blackwell:                 Association of Austin, Texas.
          You request the opinion of this office as to whether
certain property owned by the Catholic Cemetery Association
of Austin Is exempt from ad valorem taxation under the facts
presented in your letter of November 22, 1957, the pertinent
part of which reads as follows:
         "The Catholic's Cemetery Association of
         Austin has dedicated for cemetery purposes
         87 acres of land just north of the Mlssourl-
         Pacific Railroad Intersection with the Inter-
         regional Highway, which land lies south of
         St. Edwards University. This land was deeded
         to the Catholic Cemetery Association of Austin
         by deed shown In Volume 1302 at page 425 of
         the Deed Records of Travis County, Texas...
         The Cemetery Association then dedicated the
         acreage for cemetery purposes as shown by
         the plat In Volume 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
         to make way for the south boundary loop.
         After this modification there remained 85
         acres of land still Intact for cemetery purposes.
          "The 85 acres, the subject of this oplnlon,
          is called Assumption Cemetery, the Catholic
          Cemetery Association controls thie Cemetery
          and sells right of sepulture to lndlvlduals.
          Ten per cent of the sales price Is paid Into
          the Cemetery's continuous care fund, ten per
          cent goes to the continuous care fund of the
          Mount Calvary Cemetery (the old 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.
                        "The Deed from the St..Edwards Unlverslty
                         to the Catholic Cemetery Association has
                         a provision In it to the effect that If the
                         Cemetery Association's Corporate 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 'for so long
                         as the land Is used for cemetery purposes
                         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 pre-
                         determined price. No matter the time or
                         price, whenever the right of sepulture Is
                         sold to any of the'spaces, St. Edwards
                         University receives eighty per cent of
                         such sales price.
                         "DO you 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 the purpose of this opinion that the
    Catholic Cemetery Association was Incorporated as a non-
    profit corporation and that It has not departed from this.
    There appears to be no question but that the land belongs
    to the Cemetery Association subject to the reversionary right
    of the grantor, St. Edwards University, if Its use for ceme-
    tery purposes should be abandoned by the Association. It Is
    equally apparent that the land has been dedicated to cemetery
    purposes.
              Section 2 of Article VIII of the Constitution of
    Texas provides In part as follows:
                         "The Legislature may by general law exempt
                    from taxation. . .places of burial not held for
                    private or corporate profit." (Emphasis supplied,)
              In recognition of the authority thus vested, the
    Legislature has enacted Article 7150, Vernon's Civil Statutes,
    which provides In part as follows:
    Hon. Tom Blackwell, page 3 (~-326)


              (tThefollowingproperty shall be exempt
         from taxation, to wit: . . .
              "Section 3. All lands used exclusively
         for graveyards or grounds for burying the i
         dead, except such as are held by a&person
         company or corporation with a view to p,rofTt.


              Under the facts submitted we think It must be
    conceded that the land In questlon Is held exclusively for
    the purpose of burying the dead. This alone would not be
    sufficient to accord the exemption "If held by any person,
    company or corporation with a view to profit or for the
    purpose of speculation In the sale thereof".
              The Cemetery Association controls the cemetery
    and sells the lots. Teriper cent of the price received
    for the lots Is allocated to perpetual care of this par-
    ticular cemetery which Is called Assumption Cemetery, and
    ten per cent Is allocated for the same purpose to Mt.
    Calvary Cemetery, which you refer to In your letter as
    the old Catholic cemetery, arideighty per cent to St.
    Edwards University for the land and for operating and
..~ development purposes by St. Edwards.
              The question we must decide Is whether or not
    this arrangement with St. Edwards University Is such as
    to constitute a holding by the cemetery corporation "with
    a view to profit or for the purpose of speculating In the
    sale thereof". We have reached the conclusion that It Is
    not a holding "with a view to profit or for speculating In
    the sale thereof".
              We do not construe the word "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.thls purpose. The language of the statute
    Is not susceptible to this narrow construction but to the
    broader and more 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 that purpose just as effectively as
    would be any segregated portion thereof transferred to an
    Individual and thereafter by him devoted to that purpose.
    Hon. Tom Blackwell,   page 4     (~~-326)


    We do not think that there Is any element of profit In the
    sense used In the constitution and statutes to the Cemetery
    Association.
              All that the Assoolatlon reaelves Is a return to It
    of the purchase price of the land and lts~development by St.
,   Edwards for which St. Edwards receives eighty per aent from
    the sale of the lots. Nothing Is left In the way of profit
    that could be distributed to the members of the Association.
    Whether or not this Is a profitable arrangement for St.Edwards
    University Is not material. It may or may not be.
              What we have held here is not In conflict with our
    holding In Opinion WW-205, a oopy of whlch~ls herewith enclosed
    This for the reason that the land Involved In that opinion was
    held by a private corporation expressly organleed for profit
    and the property was held for private or corporate profit and
    with a view to profit orfor the purpose of speculating In the
    sale thereof, hence was taxable untli It was 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 submitted by you, the
    land Is not held by the Association with a view to profit or
    for the purpose of speculation In the sale thereof.
                           SUMMARY
              Cemetery property held by non-profit
              corporations not for private or cor-
              porate profit or with a view to profit
              or for the purpose of speculating in
              the sale thereof Is exempt from ad
              valorem taxes under 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  <P    <++-J
    Pred Werkenthln                   L. P. Lo1 ar
                                      Assistant
    FYVIEWEDFOR   THE ATTORNEY OERBRAL
             James N. Ludlum
