The Attorney General of Texas
May 1, 1978
JOHN L. HILL
Attorney General
Thomas E. Bishop Opinion No. H- 1160
Major General, TexARNG
The Adjutant General Re: Whether article 6252-26,
P. 0. Box 5218 V.T.C.S., applies to members of the
Austin, Texas 78783 State military forces.
Dear Mr. Bishop:
You inquire whether members of the State military forces are covered
by article 6252-26, V.T.C.S., as amended by the 65th Legislature. Acts 1977,
65th Leg., ch. 273, at 730. Prior to amendment, article 6252-26 required the
State to pay ,damages adjudged against officers and employees of certain
named agencies for acts or omissions in the exercise of their duties. Among
the named agencies were the State military forces, which consist of the
Texas National Guard and the Texas State Guard. V.T.C.S. art. 5765. The
Governor is the commander-in-chief of the State military forces, V.T.C.S.
art. 5765, S 4, but the Adjutant General’s Department is responsible for day-
to-day operations. V.T.C.S. art. 5781; see General Appropriations Act, Acts
1977, 65th Leg., ch. 872, art. III, at 2814.
The 65th Legislature enacted Senate Bill 37, which amended article
6252-26 to provide as follows:
The State of Texas is liable for and shall pay actual
damages, court costs, and attorney fees adjudged
against officers or employees of any agency, institu-
tion, or department of the state . . . where the
damages are based on an act or omission by the person
in the course and scope of his office or employment
for the institution, department, or agency. . . .
Section l(a). According to the bill analysis, the amendments extended to all
State officials and employees the protection formerly accorded to a limited
group of persons. Thus, the deletion of references to specific agencies did
not remove them from the Act, but instead broadened it to cover agencies
p. 4697
Thomas E. Bishop - Page 2 (H-1160)
too numerous to list. Consequently, employees and officers of the Texas military
forces sre covered by article 6252-26 as amended.
We note, however, that the Adjutant General supervises National Guard
technicians who are federal employees paid to assist the Texas National Guard
pursuant to 32 U.S.C. S 709. The technicians are employees of the United States
and are covered by the Federal Tort Claims Act. 32 U.S.C. S 709(d); i19681 U.S.
Code Cong. & Ad. News 3318, 3325; see also 32 U.S.C. S 715. The caption of Senate
Bill 37 states that the Act relates to “defense of claims based on certain conduct of
state officers or employees. . . .‘I Acts 1977, 65th Leg., ch. 273, at 730 (emphasis
added). See Texarkana & Ft. S. Ry. Co. v. Houston Gas & Fuel Co., 51 S.W.2d 284,
287 (Texn32). In our oninion. it does not aoolv to the federal technicians
supervised by the Adjutant General. Se-e Attorney General Opinions H-540 (1975);
M-719 (1970).
SUMMARY
The State military forces are covered by article 6252-26,
V.T.C.S., as amended by the 65th Legislature. Its protection
does not extend to the federal National Guard technicians
supervised by the Adjutant General.
Very truly yours,
Attorney General of Texas
//
APPROVED: w
Opinion Committee
jst
p. 4698