Local NewsWest Austin Home Turned Backyard Family Cemetery at Center of Dispute with Appraisal District

Cemeteries in Texas are exempt from property taxation, requiring that the cemetery must be only used for burial purposes and does not turn a profit.
May 16, 2022
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Buried deep in the obscurity of the Travis County District Court docket is a legal dispute between a property owner and the appraisal district fighting the tax exemption for his family cemetery.

Ray Dunn is suing the Travis Central Appraisal District (TCAD) over its refusal to grant him a cemetery property tax exemption.

In the backyard of Dunn’s suburban home in West Austin lies his mother’s remains. Lucille Dunn passed away in 1988 and was buried at a cemetery in San Antonio. After his father decided in the early aughts that he didn’t want to be buried next to Lucille, Ray Dunn began exploring the option of bringing his mother closer to home.

Dunn purchased the property in 2003. The value of Dunn’s homestead increased 52 percent this year, according to TCAD’s records. In Travis County, home appraisals increased by an average of 56 percent.

From 2004 through 2015, Dunn’s residence received a standard homestead exemption — an initial reduction in the property’s taxable value given to all homeowners in Texas.

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He registered the property as a corporation named the “Dunn Family Cemetery” and in January 2015 transferred her 3,000-pound vault from the Sunset Memorial Park Cemetery in San Antonio to his property. To carry this out, Dunn applied for and was granted a permit from the Department of State Health Services.

Dunn said he intends to be buried on the grounds as well and will pass the property on to his descendants.

When registering the property as a cemetery, the “homestead” status for Dunn’s property was eliminated, thus removing the ability to use the homestead exemption.

Each year since then, TCAD has rejected Dunn’s application for a cemetery exemption.

Per TCAD, “appraisal districts are responsible for processing exemption applications and determining if an application meets the requirements for an exemption that are set in state law.”

Dunn has sued multiple times, but the 2018 suit is the operative one moving through the courts.

Texas statute states, “A person is entitled to an exemption from taxation of the property he owns and uses exclusively for human burial and does not hold for profit.”

State code also defines a cemetery as “[A] place that is used or intended to be used for interment, and includes a graveyard, burial park, mausoleum, or any other area containing one or more graves.”

Dunn contends that he meets those requirements, specifically that only his mother is interred on the property and isn’t selling other plots.

TCAD has objected to the exemption, first on the grounds that his residence on the property negates its exemption status, contending it means the property is not being used “exclusively for human burial,” and therefore doesn’t meet the standards to classify as a cemetery.

Dunn’s counterargument to the residency issue is that nothing in state law prohibits residence on cemetery land and that his presence is “necessary or incidental” to maintaining the cemetery, as Texas code defines a “cemetery purpose.”

Additionally, Texas has a long history of residences existing on cemeteries for caretaking purposes. TCAD declined to comment whether their argument about Dunn’s residence applies to other cemeteries with residences on them.

In an interview with The Texas Horn, Dunn pointed to one instance in Travis County. “I do have photos of the Barnes family who lived at Texas State Cemetery for nearly four decades,” he said.

“The photos I have show Ernest Barnes and his family, including seven children, both living and working in the Texas State Cemetery. And if you ever drive by Austin Memorial Park Cemetery, that structure, out there to the right of the entrance, was the caretaker’s home.”

He further said the residence pre-existed the first burial at the Austin Memorial Park Cemetery.

And while much less common today, family cemeteries like Dunn’s were relatively commonplace in decades past.

The district also contends that the Dunn Family Cemetery cannot be officially operational because of its proximity to the City of Bee Cave. The state sets parameters for the location of cemeteries on a tiered system based on population. For cities between 5,000 and 25,000 population, cemeteries must be located at least a mile outside of the municipal boundaries.

With a population of 9,144 per the 2020 Census, Bee Cave meets this standard currently. But Dunn objects to this assessment by TCAD, saying that in 2014 when he first made his intention known, Bee Cave’s population was just under 5,000.

Dunn points to the Census Bureau’s 2020 five-year population review as evidence of Bee Cave’s 2014 inhabitant level. That same dataset shows Bee Cave’s 2015 population eclipsed 5,000 people. The two parties disagree on the starting point of the cemetery, and Dunn suggests that his family cemetery should be grandfathered past that requirement based on the 2014 population.

He also faces litigation from his neighborhood homeowner’s association, a case still pending in district court. In their lawsuit, the association asserts the property’s use as a cemetery violates the association contract’s terms of use. TCAD cited this case as evidence that his property may not be used as a cemetery and thus does not qualify for the tax exemption.

Responding to that, Dunn’s filing asserted that an uninvolved third party is in no position to weigh in on another dispute.

The filing adds, “What is more, using one’s property in a way that violates restrictive covenants does not make that use ‘legally impermissible.’ It merely means that the owner of the property is in breach of contract.”

On May 10, two weeks before the case was set for a jury trial, Judge Maria Cantu Hexsel of the 353rd District Court of Texas, issued an order approving TCAD’s request for summary judgment — ruling in favor of the district and against Dunn. But the order did not include any opinion that would explain the judge’s reasoning, typical of a summary judgment.

Dunn told The Texan he is considering an appeal of the summary judgment order.

If his appeal wins out, his property will be exempt from taxation as stipulated by state code.

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Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.

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