Case Information

*1 THE A-TMBFZNEY GENERAL ~FTEXAS

Maj. Gen. Rose Ayers Opinion No. M- 1209 Adjutant of Texas Re: Whether Sec. 10, Art,.

P. 0. Box 52218 5783, v.c.s., Austin, Texas appiiee the Texas State Guard and constitutes ATTENTION: Lt.Col. Rtchard K. Day authority to expend Inspector funds for pay- ment of medical ex- pensee reeulting from of a Texas State Guardsman an authorized duty service. Dear Sir:

Ln connection with your recent opinion request concerning the above captioned matter, you have given ue then following information:

"On 18 April 1972, SGT Charles R. Eicks; a member of the Texas State Guard as reflected 5768, Title 2, Article 94, Verno,n's Annotated Revised Civil. Statutes 'Texas; was engaged ,in Ann authorized tra,ining assembly of his unit at t.Fie Odessa Texas Army National Guard Armory. During a claee concerning "crowd control", thrown SC2 Hicks wae ,the concrete armory floor by another member of the Texas State Guard. head on floor and has SGT Hicks. struck his required medical treatment cost of which $1,787.33 as of totals da,t:e. "It is ant,iciptated th.a,t SCT Hicks will seek of hi8 medical bills by the Sta,te

payment Texas under 10, Article wt1e Revised Civi:l Sta,tute.? of Texas, 11963, as amended by F.B. 108, 60th Legislature, H,rgu:lar Ses?s!ion." *2 page 2 (M-1209)

IGU have further advised that General’s Department has not in the past recognized th,e compensability of such a claim by a member of the Texas State Guard when no,t called i.,o active duty by the Governor and Dejpartment has made no att.empt to prescribe rules reg:slations or other operations Texas State Guard to carry the provisione of Articles 5765-5786, Vernon’s Civil Statutes. Your request poses following questions:

“a . Are the provisions 10, Title gk, Revised Civil Sta,tutes Article of Texas, as amended, applicable to the Texas State Guard or solely the Texas National Guard? If the provisions law are

“b . appl,icable the Texas State Guard, is Adjutant of,Texae authorized to expend appropriated funde for payment of medical expenses resulting from of Texas State Guard personnel which were incurred an authorized duty status reflected in Se&ion 10(a) Artie1.e Title $1, Revised Civil Sf,atutes of Texas, as amended, if so, what St~:at:e ,fund citati,on should be employed”!!’

1.n answer to your fi,rst ques,tion, please be advi,sed ,tnat we‘ nave co!~lc~! tided of Sectjon iO of Art..ele ‘>‘78: ::l..,; appii.cable I;o the Texas State Guard. This stat,~t-e IWXF a ;+art o,T S.B. No. 2’79 (Acts, Wth. L,eg., R.S. 1~963, ~Chap~ter I,i.2, p.XOg), which was de!?cribed ite caFt,ion “An Ac,t. amending revis‘i,ng Cnapter’ 3, Title !>& of t.he Revised Ciivil Statut.es of Texas 1925, a8 amended, r;elati:ig the Nat,ional Guard and ot,her~’ State Military added .) Sections5,6,7,8,113, 11 Forces. .” contain Em cf provisi,ons more comprehensive tha:n t.he Na,tional Guard and co’ver “Military Forces” t’his o’r tk “,st,ate Miii t,ar’y Forc!r:e. ” session the Legislature two

The very next regular years .!,atw enact-d H. B. ND. l-110 (Act: .? 59th Leg.,R.S., Chapter; 690 ,$ p.l6olj, of which Ariiicle 5765 ia a and z=scr*~iot-d its captio,n as “An Act, amendi.ng part,

. ,

Maj. Gen. Roes Ayers, page 3 (M-1209) revising Chapters 1 and 2, Title 94, Revised Civil

Statutes of 1925, as amended, and certain other laws, amended, relating to the State Militia. . .' Section I, states in part:

"The militia of this State shall be divided Pinto ,two classes, the Active and Reserve Militia. The Active Mil,itia, herein referred to as the State Military Forces, shall consist of the organized and uniformed military forces of this State which shall be known as the Texas Army National Guard, the Texas Air National Guard, and any other militia or the Texas State Guard, military force organi.:~cd under the laws of this State; reserve miIltia shall consist of all of those liable to serve, but not serving, in State Military Forces. .'

The Emergency Clause of the bill, Section recites:

"The fact there exists an urgent need laws relating the State Militia, Military Forces, and Texas State Guard be revised and amended so as to complete revision laws relating the State Military 'Forces which 'was commenced by the 58th Legislature creates an emergency and an imperative public r.eceseity. .'I 10(a) of Article states In pertinent part:

"Every member of the Military Forces this state zshall be wounded, disabled or injured, or who shali contact any disease or illness, l,ine of duty wh,ile service in case of :riot, tumult, breach the peace, resistance to process, inva s ion insurrection or imminent danger thereof, or whe;ever called upon in aid of civil authorities, or when partici- - pating fin any formation or activity order-o'-T-t.he commanding officer of his ur,dCI’ ;;rryjy-- --~---'--' [or' while LraveUnp to or from his place 3Tut.y in such .insl;ances, shall be entitled *4 page 4 and shall receive, or be reimbursed for, hospita- lization,

surgical care in a hospital and at his home appropriate for treatment of such wounding, dieab,ility, injury, disease or Lllnees. and necessary - transportation-incident thereto so long as such wounding, disability, injury, disease or illness exists, and shall receive the E-ame pay and allow- ance whether in money or in kind, to which he was entitled at time when injury was Yncurred or the disease or illness contracted, the period of his disability but not for more than a ,tctal of twelve l? months after ( ,-I added.) the end of 'his tour of duty.' 5783 provides 10(d) of Article the Adjutant Section shall adm,i.ni.eter tteLorovision of this Act and shall prescribe such regula,tions as may be necessary rules carry the Act.

The Texas State Guard is declared by Article 5768, Vernon's Civil S.tatutee, ,to be a defense force which Congress has authorized pursuant to 32 Section 109, and ‘U.S.C.A., reason it is a part the State Militia authorized by federal law.

The cited statutes having ,the same general subject purpose relating of persons, same class military forces state, must be consIdered as being in pari materia even though they were passed a,t different seseio,ns o.f the legisia,ture. Tex.Jur.2d Statutes, Sec. 186; Wintermann 7:. McDonald, 129 Tex. 275, 102 S.W. 2d 167 (.l9’_rT, V. dyer 145 Tex. 200 S.W.2d 813 (1947). - _I

It is, therefore, our opinion tha,t under Article 10 if decides after inveetigatlon and a 'hearing, tha.t Sgt. Hicks was line of dut:y er a :restll!, thereof when participating activitiy under' irde,re commanding officer of nie unl,t, Sgt. Kicks Is enfitled or be receive reim- bursed for hospitalization, medical and surgical care under tna,t stat:ute. *5 page

In answer' to your second question to what fund may be used to compensate Sgt. Hicks, we observe tha,t there is an appropriation sufficient law for such purpose provided for the Adjutant General's Department. 9 of Article III-l, Chapter page 3500, 62nd

Item Legislature, R.S. 1971:

"Martial Law and emergency use of troops, expense of courts martial, for medical hospital service fees and wages: A. Emergency Pay of Troops $ 2,000. B. Riot Control Training -(Texas State Guard) $15,000.” added.) In our opinion, Sgt. Hick's claim may be paid appropriation. If appropriation has been previously exhausted, Sgt. Hick Is claim could be paid by a subsequent legislature, assuming the Adjutant makes the decision to approve the claim.

-SUMMARY- The compensation provisions ?783,, V.C.S., are applicable to members the Texas State Guard when injured line duty during a training assembly involving riot control, the approved claim by General's Department may be paid out of its 1971 Appropriation riot control training.

Prepared by Kerns Taylor

Assistant Attorney

Maj. Sen. Ross Ayers, page

APPROVED:

OPINION COMMITTEE

W. F. Allen, Acting Chairnan

Roge~r Tyler

Ronald Luna

Max Flusche

James :Hackney

SAMUFL D. MCDANIEL

Staf,f Legal Assistant

ALFRED WAL,KER

Executive Assistant

NOIA WHITE

First Assistant

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