Case Information
*1 ENERAL Hen, K:. L. Berry Oplnlon Ho,,.;V-679.
Adjutant General
Capitol Station Re: The legallty.of the pay- Austin, Texas ment of a personal injury
claim of a I'iatlonal Guards; man from funds appropriated to the Adjutant General's Department.
bear Sir:
Your request for opinion and correspondence at- tached thereto show that Wllllem C. Lynch, a member of the Texas Hatlonal Guard, was Injured while playing soft- ball with a national Guard softball team during a Hemorlal Day celebration on May 30, 1948. Iilk medical and hospital bills amount to the sum of $348.50.
Your questions are as follows: "(1) Is payment of claim set forth In basic letter a legal expenditure from funds appropriated to the Ad utrnt General's.De- partment under item 11 i of the Adjutant Gen- eral's appropriation for Fiscal Year 1948?
"(2) In the event the answer to ques- tion No. 1 Is in the affirm@tlve, can other outstanding claims of similar nature, which, if presented and approved, will exceed the balance left in .th8 amqunt of the present ap- proprlatlen, be legaily paid, and If so how can payment be made?
We are of the opinion tMt the above claim con- not be Id from funds appropriated 'to your .department. r Item 11 of th8 current appropriation fer the Adjutant
General's Department provides:
"General maintenance, traveling expenses, bond premiums, laundering and reconditioning of property, lnc,ludlng transportation there- of, medical and hospital services for troops
, ,, member of the military forces of “Eiiery this State who shall be wounded or disabled while lti the service ef this State, in casea of riot, tumult, breach of the peace, resist- ance tm precessP lnvagion; insurrectien, er ilhmlnent danger thereef, er’ Whenever called upon In aid of the clvll autheritles, shall be taken care ef end provided for at the ex- 1 pense of this State,‘~
A study of the Obey ~statutb ?$ads to the ten- elusion that before the State Is 1iabIe’fsr any Injury by a National &tiards@an,, ,sukh InjQry must be iticupIT8d Incurred under one et~the tilrauv?stancba above set out. In other words) the rule ef ~exnressle ~uhlua (the expres- sion of on8 thing 1s the excIusl.on, of another) applies. -Since the 1njur.y sustained in the’ instant case was net sustained under. anj ef the olrowP&tances enumerated In-.. Article 5845, we cannet see whew the claim can be legal- ly paMby the State.
Article 5845, tegethrr’ &th the appropriation bill, requires that~ an lnjtit er weund,must net only be Incurred in line Qf duty, bu must be incurred in one of several enumerated circumstances ‘p The situation under censlderation does not come within any ef these enumer- ated clrcumstanc~es O .
Since we have answered Jrour first question In the negative, it 1~s unnecessary te answer your secend . question.
SUMMARY The&e being no statutery autherlty, the State of Texas may ‘net pay for the medical and hespltal‘servlces of a Bat,l6hal Guardsman Injured while participating In an athletic con- test as a member ef the,Guard Team, such Guards- man not being In the actlve’servlce ef,the State at the time In response te rict, tumult, breach *3 Hon. K. L. Berry, Page 3, V-679.
of peace, resistance, invasion, lnsurrec- tlon or aid to clvll authorities (Art. 5845, v. c. 9.).
Yours very truly ATTORFIEY GENERAL OF TEXAS By &&-% a'& Clinton Foshee, Assistant.
AlPROVED: ' zkfLYA=
ACTING ATTORHEY GEIVEERAL, CF: jac