Case Information
*1 OFFICE OF PHE ATTORNEY GENERAL OF TEXAS @oonorable J. i'iatt Page
adjutant General
Austin, Texas
ate of Texas? ,, These Nationil Guardsmn have been. ordered’ into the aotive. .tilitary service of t%e United States by the. Tresibnt. of the United states octing,un&r the authority of Pcblic Resdlution NO. 95 , Act by the 76th Congress. This > resolution reach .in,.part a.9 foLlom3: ~ . -. ,’ i. ,. .I / ,. ” ‘. ,. .‘,.,
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Honorable 5. Watt lage, ?age ‘2 Yb?solved by the $enate and House of Repre- . sentatives of the United Z&es of herim in Con&ress aoseubled, That during the period ending June 30, 1942, the Iresldeat be, and is hereby, authorized .fro% tiz to. tlae to order Into the aotive rtilitary service oi the United states for a period OS twelve concecutive rsonthe each, any or all smxbers oad aits or my or all reserve com;;onents of the Amy of the United Xates (ex- ce?t thit any Dcrcon in. the Xational Guard oi the United Statas under the ace or 18 years so ordered into ,the active Alittry sexvice shall be in:.lediote- ly issued an honorable discharge froa~ ths ILatioual Guard of the United 5tctes); Ned retirad Dersonnel OS the Zicgular:Ar~y, v&th or without their consent, ’ to such extent and in such ;mnl;er no he ray cleen necessary for the stredgthenlng oi the national deferso: Provided a That &he :;le,zbers and units of the reserve coxgoneats of the Amy OS t!ie United Zatss ordered into active “edera service mder this Authority shall not be ezployed beyond the ,’ .: lizits ol the !Yestcrn 5mlsphere except in the ” territories and possessions of the United States,
including ,the -Ghilip2iao .Islands.
“Sec. 2. -411 Xational Guard, Esrerve,. and retired parsoonel ordered into the active zilltary service of the United &totes uzider the foregoing special authority, shall frost the dates on which .“, ,;. they are respectively ,recjulred by such order to report foxduty in such service, be subject to the i
:, res-peotive lass and’ reguiations relating to .en- :.,.list~ents, reenlistxmts; ezgloyscnt., i2on&xt,
~rlghts, and privileges, and discharges of such personae1 in such service to 2he saxe extent ia all particulars as if they had been ordered into : such servica under existing general statutory au-
thorixationo.n.
Section 101 oi the Rational Defense ;,ot of the kited States, OS a:zended to January 1, 1940, (38 Statutes 208)) provides:
*The National. Guard when oalled as such into the service of tLe United states shall, from the t.i;e they dare re$uire& by the term of the call to respond thereto, be subject to the ,laws’and rcgu-, ,, *3 Honorable J. Katt Page, Tage 3
lations governing the aegular Amy, so far as such laws and regulations are applicable to .
officers and enlisted ‘men whose permanent reten- tion in the silitary service, either on the aotive list or on the retired list, is not con- templated by existing law."
Section 111 of the same act provides as follows: ., "When Congress shall hzve declared a national exergenoy and shall have authorized the use of armed 13nd forces of the United Atntes for any purpose requiring the use of troops in excess of those of the Regular Army, the President may, under such re- gulations, including such physic31 examination 3s he may prescribe, order into the active military service of the United States, to serve therein for ' the period of the w3r or emergency unless sooner relieved, any or all units and (the) members (there- of) of the National Guard of the United titates.
All persons so ordered into the active ,military service of the United States shall from the &ate of such order stand relieved from duty in the National Guard of their respective States, Terri- tories; and the Liistrict of Columbia so long as they shall rennin In the active military service of the United States, snd during such time shall. be subject to such laws and regulations for the
.‘, government of the Army of the United States 3s nay
be applicable to members of the Amy whose permanent retention in active mi'litary service is not con- templated by law.. The organization of said ,units existing at the date of the order into 3ctlve I;&-,:'-~~~: era1 service shall be maintained intact insofar ~, 3s practicable.
"Comnissioned officers and warrant officers appointed in the National Guard of the United States and commissioned or holding w3rrauts in the Army of the United States, ordered into Federal service 3s herein provided, shell be ordered to active duty under such appointments and commissions or warrants: Provided, That those officers and ~i3rran+, officers of the &tionsl Guard viho do not hold appointments in the National Guard of the United states may be appointed and commissioned or tendered warrants therein by the President, in the
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Ronorable J. ;;att Rage, 23Se 4
sam grnde ona brihch they hold in the Xational Chard.
"Gfflccrs and enlisted .:.oA ?hila in the ser- vice of 5t.G u2itca .2t.‘.?.i*25 uncor the ter.:3 Of tilis sect102 si311 raceive the gay and 0110~3r:c3s ~ZO- vidsd by 1~ for officers and eulisted .XC o? the rescAmc forces w!:sa ozderad to active duty, except briszdicr generals aaL &or Cmemls, vho s?all ?azoivo the saze 23y a.ld aiioeznces as 3rov?dad by law for brigadier gencmls 3.-d :zjor g-ncrliLs of th3 Aegular.Ar~y, reagectiv3lg. Upon being relieved fro3 activa duty in the 2kiitory sir;rice of tt3 United Lta'xs a11 individasls 325 units shall there- uson revert to their Zatio231 Guard status.
"In the initial zobilizztion of the X'etionsl ;; I=. ~2~. it e a ccr-streS$h officer States, Guard of personnel shall be tclkn fron the ;i3tioml Guard 33 far as.practicabie, 2nd r‘s2 t33 purpose Of this erps..nsion mrral;t eaiisted aen of
O;'fiCclSS rd the Sistional h.rd ;~y, in tizLe of PWCE, be ap- pointed officer3 in the Xntional Guard of the United states a3d comissionad 'in the Army of 'United Ltates."
The,provisions of the Constitution of.the State of ?exas bearing up03 your ~uastiocs ere as follo:?s:
.nSc~iion lE, krticla 16. No mzber of Congzass, nor person holding.or exercising say office of pro- fit or trust, Uyler tho United States, or either of thes, or uader shy Zoreigr, power, shall be .eligible ,, as a z;lber of *&,a Legislut;lre , or hold or axeroise
any office of profit or trust under this state."
Wection 33, Articlo.16. The accounting of- ficers of this State s&ill neither dr3vj nor >ay 3 I'JDEailZ u_oon the treasury in fsvor of any person, for sel3ry or co:ngcnsation as ageat, officer or ap$okiteo, w:;o h:;lds 3t <hc sc~e time any other offica 02 ~o3ition of hOCO2,~ trust or arofit, un- der this State or the Tnitad SS3tes, except 3s pro- scribed in this Constitution. Provided, that this restrictiou 3s to the dr3wlnC a3d flaying of 2arrsnts u>on the treasury sh311 not a?.nly to ofricers of the N3tional Guard of Terss, the National Guard Reserve, the Officers Reserve Corps of the 'Jnited *5 Ronorable J. 'tiatt Page, Rage 3
States, or to, enlisted men of the Xntional Guard, the Xational Guard Reserve, and the Organized Rese-es of the United States, nor to retired of- ficers of the United States Army, Navy, and Marine corps, and retired warrant officers and retired enlisted .men of the United States Army, Navy, and Ltirine Corps. n
"Section 40, ilrticle 2.6. No person shall hold'or exercise, at the same tims, more than one civil office of eJolu.leiit, except that of Justice of leace, County Comtissioner, Notary Rublic and ?ostz.aster, Officer of the i\iati.onal Guard, the National Guard Reserve, and the Officers Reserve Corps of the United States and enlisted men of the ';~"ipe~ Gaz,-d - m1 , the X~tiorzL Gxrd ?.eserve, cad -: _ .-= CZZT1- '-,-zi -jr===-,-- 0' -'em ---iy=i ;--.Ls- - - ----2: - .-e G m---w Y.."e-3, ZLZ re;ireZ officers of she United States Army Iiavy, and Xsrine Corps, and retired enlisted men of the United States and retired warrant offi.Aers, Army, Navy, and Larine Corps, unless otherwise .specially provided herein. .?rovided,,that nothing in this Constitution shall.be construed to prohibit an officer or enlisted ;1an of the National Guard, and the Rational Guard seserve, or an officer in the Officers Reserve Corps of the United States, or an enlisted man in the Organized tieserves of the United States; or retired officers of the United States Army, Navy, and Zarin~e Corns, and retired warrant officers, and retired enlisted msn of the United States Army, Navy, and ibrine Corps, from holding in conjunction with such office any. other office or position of -honor trust profit, un- der this State or the United States, or from voting at any election, general, special or primary, in this State when otherwise qualified.**
Since Article 16, Section 40 has application only to the hoiding of~two l'civil" offices of emolument, that section of the Constitution does not apply to the situation vkich you present. Zx parte Dailey, (Texas Criminal Appeals) 246 S.K. 91.
Article 16, Section 12, and Artiole 16, Section 33, however, are not linited in their application to "oivil" offices. *6 Eonorable J. -:'att ?age, ?age 6
* C'hen an Officer or an enlfsted man fn the National Guard of the .State of Texas is called into thG active military service ~of the United States, from the date that such officer Or enlisted ran in the i~ationnl Gunrd of tho State~of Texas is m'ustered into the active military service of the United Sb?teS he is relieved from duty in ths Nstional Curd of the Pisate Of Texas and ceases to be a member of that orgsnization.. If hG holds nn office of profit or trust under this State,. 2nd by virtue of having been ordered ?nto tke active military service Of tho United States he acqtiires and holds or exer- CiSGS an Office Gf r;rOfit or trur;t in the active dlitary service of the United Statss, under the provisions of Article 16, kCtiOn 3.2, Of OUT State CGnstitutiGn, h.e autGm&tically vacates the office which he holds under this State. Lowe VS. State, 83 Texas Criminel ZGsorts, 134, ,201 S.::'. 986; Fekota vs. City of Zest St. Louis, 315 Ill., 58, 145 N.E:, 092.' Quoting from the case last above cited:
nAftn$ She plaintiff was inducted into the United States Army he ceasGd to be a r.ember of the 1Xlitia, and tke provision in the Constitution that appoint- rmnts in that organization should cot bc considered lucrative can have no apglicoticn.~~
Each of the question's v?hicti you have presented therefore, must be answered in t.hG negative,
You have limited yo;lr questions to thG situation v,here a gstional Guardsman holding an "office* under this State by virtus of the greeidential on11 acquires sn '~0ff.i~~'~ in the active militsry service of the UEited States, and ouropinion above has reference only to that situstlon. Hovr- ever the ,following feet situations, we feel, should be OOn- sidered:
1, ~ssu~le that i Kational Gusrdsnan holding a State *~office~~ by virtue of t.," ke pesidential call ecquires, I;ot an ~~offiCG*~ of profit or trust, but a W~ositiOn~~ of honor, trust or pofit in the active,military sarvice the < United States. TO ty.Ls situo:tSon, Article 16, Zectioc 12, of the Constitution, does not api~ly, and the Stats office ?7OUld not be forfeited. i?owev er , so fans as tix "gosition** Gf hOZlOr, trust or ~r0fj.t be hold under the United States, under J,rticle 10, section 33, of the Constitution, the ac- coutin~ officers of the State are 3rohibitcd from drowin& ,y y:errart upon the treesury for the salery.or Com- : -.. gsying i&ation attaching-to the State "office.!' *7 .-
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Xonoiable 5. ':'att ?cge, Tace 7
2. dssmo that a Xntionel Wardsan is an nom?loy~en of the Xoto,&mi by virtue of t&? prcsidectial caii, nc.;ulr*s an "office" or ff30sitionf' of "hon.or, trust profit** in the a ctivc riilitary iervics of ihlr: i'nited St3tcs. To this situa- tion ?yticl,e 16, Section 12 of the coastitution does m t apply, end tile endoyee Of the S-bate ?:ould not thereby automtically loss his 5tate eqloyxxt. ,U.owever, 30 long as the wofficelz or 9ositionf1 of "ho;lor, trcst'or yrofitB1 in the active nilitary service of the United States is held, under Article 16, Section 33, of the Constitution, the accounting officers or the State of Texas are Fzohibited fro- drawiq: or Taying a vrorrant u?on,' the treasury for salary or coxpansation attachinG.to the State employzzent.
BCT a discussion,of Section 33, Article 16, of the Constitution; in its application ",o t5e holding, oi' tvro pod- tj.ons at the sane ti.xe, see our C?iziol Ko. o-2607, attaohed heroto.
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3JY Richard i?:'. Fairchild Assistant