THE A-TMBFZNEY GENERAL
~FTEXAS
Maj. Gen. Rose Ayers Opinion No. M- 1209
Adjutant General of Texas
P. 0. Box 52218 Re: Whether Sec. 10, Art,.
Austin, Texas 5783, v.c.s., appiiee
to the Texas State
ATTENTION: Lt.Col. Rtchard K. Day Guard and constitutes
Inspector General authority to expend
State funds for pay-
ment of medical ex-
pensee reeulting from
the injury of a Texas
State Guardsman during
an authorized duty
Dear Sir: service.
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 in
Section 2, Article 5768, Title 94, Verno,n's
Annotated Revised Civil. Statutes of '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",
SC2 Hicks wae thrown to ,the concrete armory
floor by another member of the Texas State Guard.
SGT Hicks. struck his head on the floor and has
required medical treatment the cost of which
totals $1,787.33 as of this da,t:e.
"It is ant,iciptated th.a,t SCT Hicks will seek
payment of hi8 medical bills by the Sta,te of
Texas under the provisions of Section 10, Article
5783, wt1e 94, Revised Civi:l Sta,tute.? of Texas,
11963,as amended by F.B. 108, 60th Legislature,
H,rgu:lar Ses?s!ion."
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Maj. Gen. Ross Ayers, page 2 (M-1209)
IGU have further advised that the Adjutant 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 that the
Dejpartment has made no att.empt to prescribe rules and
reg:slations for the training or other operations of the
Texas State Guard to carry out the provisione of Articles
5765-5786, Vernon’s Civil Statutes. Your request poses
the following questions:
“a . Are the provisions of Section 10,
Article 5783, Title gk, Revised Civil Sta,tutes
of Texas, as amended, applicable to the Texas
State Guard or solely to the Texas National
Guard?
“b . If the provisions of the law are
appl,icable to the Texas State Guard, is the
Adjutant General of,Texae authorized to expend
appropriated State funde for payment of medical
expenses resulting from injury of Texas State
Guard personnel which were incurred during an
authorized duty status as reflected in Se&ion
10(a) Artie1.e 5783, Title $1, Revised Civil
Sf,atutes of Texas, as amended, and if so, what
St~:at:e ,fund citati,on should be employed”!!’
1.n answer to your fi,rst ques,tion, please be advi,sed
,tnat we‘ nave co!~lc~!tided that the provisions of Sectjon iO
of Art..ele ‘>‘78: ::l..,; appii.cable I;o the Texas State Guard.
This stat,~t-e IWXFa ;+art o,T S.B. No. 2’79 (Acts, Wth. L,eg.,
R.S. 1~963, ~Chap~ter I,i.2, p.XOg), which was de!?cribed in ite
caFt,ion “An Ac,t. amending and revis‘i,ng Cnapter’ 3, Title
!>& of t.he Revised Ciivil Statut.es of Texas 1925, a8 amended,
r;elati:ig to the Nat,ional Guard and ot,her~’ State Military
Forces. . .” (Emphasis added .) Sections5,6,7,8,113, 11
Em cf Article 5783 contain provisi,ons more comprehensive
tha:n t.he Na,tional Guard and co’ver the “Military Forces” of
t’his state o’r tk “,st,ate Miii t,ar’y Forc!r:e. ”
The very next regular session of the Legislature two
years .!,atw enact-d H. B. ND. l-110 (Act: .? 59th Leg.,R.S.,
1965, Chapter; 690 ,$ p.l6olj, of which Ariiicle 5765 ia a
part, and z=scr*~iot-d in its captio,n as “An Act, amendi.ng
-5933-
. ,
Maj. Gen. Roes Ayers, page 3 (M-1209)
and revising Chapters 1 and 2, Title 94, Revised Civil
Statutes of 1925, as amended, and certain other laws, as
amended, relating to the State Militia. . .'
Article 5765, 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,
the Texas State Guard, and any other militia or
military force organi.:~cd under the laws of this
State; the reserve miIltia shall consist of all
of those liable to serve, but not serving, in the
State Military Forces. . .'
The Emergency Clause of the bill, Section 4, recites:
"The fact that there exists an urgent need
that the laws relating to the State Militia, State
Military Forces, and Texas State Guard be revised
and amended so as to complete the revision of
the laws relating to the State Military 'Forces
which 'was commenced by the 58th Legislature
creates an emergency and an imperative public
r.eceseity. . . .'I
Section 10(a) of Article 5783 states In pertinent part:
"Every member of the Military Forces of this
state zshall be wounded, disabled or injured,
or who shali contact any disease or illness, in
l,ine of duty wh,ile in the service of this state
in case of :riot, tumult, breach of the peace,
resistance to process, inva s ion insurrection or
imminent danger thereof, or whe;ever called upon
in aid of the civil authorities, or when partici- -
pating fin any training formation or activity
ur,dCI’ order-o'-T-t.he commanding officer of his
;;rryjy-- --~---'--'
[or' while LraveUnp to or from his place
3Tut.y in such .insl;ances, shall be entitled to
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Maj. Gen. Ross Ayers, page 4 (M-1209)
and shall receive, or be reimbursed for, hospita-
lization,
surgical care in a hospital and at his home
appropriate for the 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 the time when the injury was
Yncurred or the disease or illness contracted,
during the period of his disability but not for
more than a ,tctal of twelve l?
( ,-I months after
the end of 'his tour of duty.' (Emphasis added.)
Section 10(d) of Article 5783 provides that the Adjutant
General shall adm,i.ni.eter tteLorovision of this Act and shall
prescribe such rules and regula,tions as may be necessary to
carry out the provisions of 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 ‘U.S.C.A., Section 109, and for this
reason it is a part of the State Militia authorized by federal
law.
The cited statutes having ,the same general subject and
purpose and relating to the same class of persons, the
military forces of the state, must be consIdered as being
in pari materia even though they were passed a,t different
seseio,ns o.f the legisia,ture. 53 Tex.Jur.2d 280, Statutes,
Sec. 186; Wintermann 7:. McDonald, 129 Tex. 275, 102 S.W.
2d 167 (.l9’_rT, V. dyer 145 Tex. 586, 200 S.W.2d 813
(1947). - _I
It is, therefore, our opinion tha,t under Article 5784,
Section 10 that if the Adjutant General decides after
inveetigatlon and a 'hearing, tha.t Sgt. Hicks injury was in
line of dut:y er a :restll!, thereof when participating in
training activitiy under' irde,re of the commanding officer
of nie unl,t, Sgt. Kicks Is enfitled to receive or be reim-
bursed for hospitalization, medical and surgical care
under tna,t stat:ute.
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. . .
Maj. Gen. Ross Ayers, page 5 (M-1209)
In answer' to your second question as to what state
fund may be used to compensate Sgt. Hicks, we observe
tha,t there is an appropriation sufficient in law for such
purpose provided for the Adjutant General's Department.
Item 9 of Article III-l, Chapter 1047, page 3500, 62nd
Legislature, R.S. 1971:
"Martial Law and emergency use of troops,
expense of courts martial, and for medical and
hospital service fees and wages:
A. Emergency Pay of Troops $ 2,000.
B. Riot Control Training
-(Texas State Guard) $15,000.”
(Emphasis added.)
In our opinion, Sgt. Hick's claim may be paid out
of that appropriation. If that appropriation has been
previously exhausted, Sgt. Hick Is claim could be paid by
a subsequent legislature, assuming the Adjutant General
makes the decision to approve the claim.
-SUMMARY-
The compensation provisions of Section 10,
Article ?783,, V.C.S., are applicable to members
of the Texas State Guard when injured in line of
duty during a training assembly involving riot
control, and the approved claim by the Adjutant
General's Department may be paid out of its
1971 Appropriation for riot control training.
Prepared by Kerns Taylor
Assistant Attorney General
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. . .
Maj. Sen. Ross Ayers, page 6 (M-1209)
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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