February 26, 1975
Major General Thomas S. Bishop Opinion No. H- 540
The Adjutant General of Texas
P. 0. Box 5218 Re: Legality of use of
Austin, Texas 78763 National Guard facilities
by civilian groups.
Dear General Bishop:
The Adjutant General’s Department has received several
r e q u e s t s t o us e national guard and air ‘natiotial guard facilities
for various purposes including Civil Air Patrol encampment, Boy Scount
Posts and other youth group activities.
The Adjutant General’s first question is whether or not his
Department is authorized to permit use of armory facilities for such
purposes, and whether state funds may be used to pay utility and mainte-
nance costs incu@red by such groups while utilizing armory facilities.
We think both federal regulations applicable to National Guard
units and Texas statutes governing control and command of State military
forces permit the use of armory facilities by the civil air patrol cadets,
Boy Scouts of America, Girl Scouts, and other youth groups when in
the State’s judgment such use is practical, supports the public purpose
of a State militia and entails no additional expense to the State.
The Adjutant General controls the military department of Texas
and all matters pertaining to his department and the military forces of
this State. He is subordinate only to the Governor, who, as Commander-
in-Chief, has constitutional and statutory authority to issue regulations and
orders governing the affairs of the Texas National Guard as an adjunct of
the State militia. Texas Constitution art. 4, 5 7; V. T. C. S. art. 5765, $4;
V. T. C. S. art. 5780, $2; V. T. C.S. art. 5781, $4.
p. 2427
Major General Thomas S. Bishop, page 2 (H- 540)
The Adjutant General is given the power to lease or sublease
buildings “to be used for armory and other proper purposes . . . .”
V. T. C.S. art. 5781, $4. He may prescribe regulations controlling its
use so long as it is not inconsistent with the laws or orders to which his
departme~nt is subject. V. T. C.S. art. 5781, $8.
We conclude that it is within the discretion of your department,
subject to orders or regulations of the Governor and Armory Board, to
authorize the use of armory facilities by the Civil Air Patrol, Boy Scouts
of America, Girl Scouts and other youth groups if you determine, as a
factual matter, that such use of armory facilities promotes the proper
public purpose of the State militia.
In making this determination you are entitled to give some weight
to federal regulations relating to use of National Guard facilities, since
the federal government, provides 75% of the construction and maintenance
costs of National Guard Armories in Texas. Its regulations authorize use
of these facilities by youth groups, when the state adjutant general deter-
mines such uses are practical. See Departments of the Army and the Air
Force, National Guard Regulations No. 735-12 and Air National Guard Regu-
lations No. 67-l (Jan. 26, 1973).
You have also askedwhat legal liability would be incurred by the State
of Texas, or members of the Guard individually, or state employees
individually, as a result of death or injury to members of the Civil Air
Patrol, Boy Scouts or other youth groups while using National Guard facilities.
Liability for tortious conduct always will depend on the facts of each par-
ticular case. Without being presented with a particular fact situation we can
discuss your questions only in the terms of general rules, and it should be
understood that the application of the general rules and any exceptions which
might apply will be governed by the facts of any specific case.
Generally, the State of Texas is immune from liability unless permission
to be sued has been given. Texas Highway Dept. v. Weber, 219 S. W. 2d 70
(Tex. Sup. 1949); Davis v. County of Lubbock, 486 S. W. 2d 109 (Tex. Civ.
APP. --Amarillo 1972, no writ).
The Texas Tort Claims Act, article 6252-19, V.T.C.S.. constitutes
a waiver of sovereign immunity and grants permission for suit against the
State under certain circumstances.
p. 2428
. .
Major General Thomas S. Bishop page 3 (H- 540)
The Act, however, preserves the State’s immunity against:
[a]ny claim arising out of the activities of the
National Guard, the State Militia, or the Texas
State Guard, when on active duty pursuant to
lawful orders of competent authority. (Art. 6252-19.
$6).
Article 5765, V. T. C. S., extends immunity to members, individually, of
the State Military Forces for any acts or acts done by them while in the
discharge of their duty after being ordered by proper authority into active
service of the State. Sec. 8, amended by Acts 1973, 63rd Leg., p. 988,
ch. 399, eff. Jan. 1, 1974. -See V. T. C. S., art. 5783, $1.
The Texas Tort Claims Act also preserves sovereign immunity from
claims arising from intentional torts, article 6252-19, section 14(10), and
does not remove the individual immunity of public officers, agents or
employees of government from tort claims, but preserves such immunity
to the extent that such persons are presently immune. V. T. C. S. art.
6252-19, 5 15.
Responding to your specific questions, the Governor as Commander
in Chief of the State Militia, the Adjutant General and unit commanders and
individual guardsmen would enjoy the protection against tort liability afforded
by section 8 of article 5765, V. T. C. S. for injuries to others when arising
out of the lawful performance of their duties while in active military service
to the State.
Although we believe section 8 of article 5765 is intended to fully
protect officers and members of the State Military, individually, for liability
from any act while in the discharge of their military duties, and while
section 14(6) of article 6252-19 retains the State’s immunity from suit for
injuries arising out of militia activities, it is our opinion that the Texas
Tort Claims Act (art. 6252-19) has waived the State’s immunity from suit
for death or injuries proximately caused from some condition or use of
tangible property, real or personal, when the Sta~te has breached the duty
it owes to licensees on State property. See
- V. T. C.S. art. 6252-19, $18(b).
p. 2429
. i
Major General Thomas S. Bishop page 4 (H-540)
The duty owed to a licensee is described by the Supreme Court of
Texas in State v. Tennison, 509 S. W. 2d 560 (Tex. Sup. 1974) as the duty:
. . . not to injure [a licensee] by willful, wanton or
gross negligence. . . . An exception to the general
rule is that when the licenser has knowledge of a
dangerous condition, and the licensee does not, a
duty is owed on the part of the licenser to either warn
the licensee or to make the condition reasonably safe.
The State could be sued and held liable for money damages if
injuries to members of youth groups on armory property are a result of
a breach of the State’s duty toward licensees on armory facilities.
Officers and individual guardsmen would not be liable for such injuries.
State employees at armory facilities, as distinguished from National
Guardsmen on active duty, could be individually liable for tortious injuries
to members of youth groups using Army property whether within the scope
of their employment or not if proximately caused by their negligence. The
State could be liable for the tortious conduct of such employees if the act
resulting in the injury is within the scope of their employment and otherwise
cognizable under section 3 of the Texas Tort Claims Act. Art. 6252-19,
m. An individual who successfully prosecutes a claim against the State
for injuries caused by the tortious conduct of its employees, is thereafter
barred from asserting the same claim against the employee, individually.
V. T. C.S. art. 6252-19, $12.
You also ask whether National Guard Technicians, who are federal
employees paid to assist the Texas National Guard (32 U.S. C. Sec. 709),
would be liable, individually for their torts. The answer is no, if the act
causing the injury is within the scope of their federal employment. The
exclusive remedy in such case is against the federal government. 28 U.S. C.
Sec. 2679; Nova v. U.S., 411 F. 2d 943 (9th Cir. 1969), cert. denied 396
U.S. 841 (1969). If not within the scope of their employment federal techni-
cians would be individually liable, and the State of Texas would not ordinarily
be responsible for the consequences of their acts.
p. 2430
Major General Thomas S. Bishop page 5 (H-540)
Finally we are asked if the State, its officers, employees and
guardsmen can protect against ,tort liability if an agreement to that effect
is executed by each cadet, scout, or other member of a youth group, or
by their parents or guardians.
The Supreme Court of Texas, considering the validity of an
exculpatory clause in a lease agreement with a public housing authority,
has had this to say:
Agreements exempting a party from future liability
for negligence are generally recognized as valid and
effective except where, because of the relationship of
the parties, the exculpatory provi,sion is contrary to
public policy or the public interest. If the contract is
between private persons who bargain from positions
of substantially equal strength, the agreement is
ordinarily enforced by the courts. The exculpatory
agreement will be declared void, however, where
one party is at such disadvantage in bargaining power
that he is practically compelled to submit to the stipulation.
Crowell v. Housing Authority of City of Dallas, 495 S. W. 2d
887 (Tex. sup. 1973).
The clause required by the Housing Authority was said to be a classic
example of unequal bargaining power and therefore invalid. We believe that
a cadet or Boy Scout confronted with the choice between signing the
exculpatory agreement, assuming he has power to do so, and joining his
troop, or not signing and thereby forfeiting the privilege of sharing in a
valuable training program, could present another situation of unequal bargaining
power and force a young person or his parent to make a difficult choice
while unaware of the risks which might accompany a prolonged visit to a
National Guard Armory. For these reasons, a release from liability
might not, in our opinion, protect the State, its officers, or employees
any further than the statutes protect them already.
SUMMARY
The Adjutant General has authority to permit
the use of Armory facilities by the Civil Air Patrol,
p. 2431
Major General Thomas S. Bishop, page 6 (H-540)
Boy Scouts and other groups if he determines that
such use is practical, promotes the public purpose
of a State militia, and entails no additional expense
to the State. The State may be liable under certain
circumstances for injuries arising from a breach of
its duty toward licensees on armory property, and
for certain injuries proximately caused by State
employees acting within the scope of their state employ-
ment. An exculpatory agreement executed by members
of a youth group or by their parents might not protect
the State from~‘fiiture liability for its negligence any
further than the State, its employees, or military
personnel are presently protected by statute. The
liability of the State and that of its officers and
employees always will depend on the facts of any
particular case.
Very truly yours,
Attorney General of Texas
APPROVED:
Lfq
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2432