Maj. Gan. Thomas S. Bishop Opinion NO. M-284
Adjutant General of Texas
Camp Mabry Re: Eligibility requirements
Austin, Texas for membership on the
Texas National Guard
Dear Mr. Bishop: Armory Board.
Your request for an opinion reads as follows:
"Article 5931-1 T.R.C.S., Acts of the 60th
Legislature, Regular Session, creates the Texas
National Guard Armory Board. The Act specifies
that the Board will be composed of the Command-
ing General of the 36th Infantry Division, Texas
National Guard, the Commanding General of the
49th Armored Division, Texas National Guard
and the Chief of Staff for Air, Texas Air
National Guard.
"Reorganization authority Number 66-67,
National Guard Bureau, dated 4 December 1967
reorganizes the Texas Army National Guard in
part on 15 December 1967 and the remainder on
15 January 1968. The provisions of the above
referenced reorganization authority deletes
the 36th Infantry Division from the Troop
allotment to the State of Texas and reorga-
nizes the Headquarters and Headquarters Com-
pany t 36th Infantry Division and other 36th
Infantry Division units into the Headquarters
and Headquarters Company (-1 71st Infantry
Brigade (Airborne) effective 15 January 1968;
deletes the 49th Armored Division from the
Troop Allotment to the S,tateof Texas and
reorganizes the Headquarters and Headquarters
Company, 49th Armored Division into the
Headquarters and Headquarters Company (-1,
72nd Infantry Brigade (Mechanized), effec-
tive 15 January 1968. After 15 January,
1968, the 36th Infantry Division and 49th
Armored Division will no longer exist but
their successors in function, i.e., the
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Maj. Gen. Thomas S. Bishop, page 2, (M-204)
71st Infantry Brigade (Airborne) and the
72nd Infantry Brigade (Mechanized) will
exist and supersede the 36th Infantry Di-
vision and 49th Armored Division respec-
tively, as their successors in function.
..
. . .
"Due to the above factual situation the
following questions are submitted to you for
your legal opinion:
"1 . By virtue of the reorganization of
the Texas National Guard and the resulting
elimination of the 36th Infantry Division
and the 49th Armored Division, who should
be certified by the Adjutant General to
the Secretary of State for membership on
the Texas National Guard Armory Board?
"2 . Is an Officer of the National Guard,
otherwise qualified, whose civilian occupa-
tion is District Attorney of Travis County,
Texas, eligible to serve as a member of the
Texas National Guard Armory Board?
"3. Should any officer fail to qualify
as a member of the Texas National Guard Armory
Board under the provisions of the State Con-
stitution or the State statutes, then in that
event, who should be certified by the Adjutant
General to the Secretary of State for member-
ship on said Board?
'I.. ."
Article 5931-1, Vernon's Civil Statutes, provides
in part:
"There is hereby created the Texas Na-
tional Guard Armory Board to be composed of
the Commanding General of the 36th Infantry
Division, Texas National Guard, the Command-
ing General of the 49th Armored Division,
Texas National Guard, and the Chief of Staff
for Air, Texas Air National Guard. The board
shall be composed of three members and the
term of office for members of the Texas Na-
tional Guard Armory Board shall be of six
years ' duration except that in the event of
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. .
Maj. Gen. Thomas 5. Bishop, page 3, (M-204)
a vacancy, the person qualifying for the
position shall complete the unexpired term
of his predecessor. . . .
II
. . .
II
. . .
"It is further provided that none of the
members of this board shall at the same time
hold any other office or position of honor,
trust, or profit under the state or federal
government, except as a member of the Texas
National Guard or as a member of the Texas
State Guard operating as successor in mili-
tary function.
"Should any officer fail to qualify as a
member of the board under the provisions of
the State Constitution or the provisions of
this Act, the next senior officer in military
rank of the respective military units to
qualify shall be certified by the Adjutant
General of Texas to the secretary of state as
provided in this Act."
Under the facts stated in your request, the 71st
Infantry Brigade (Airborne) is the successor to the 36th
Infantry Division, Texas National Guard, and the 72nd In-
fantry Brigade (Mechanized) is the successor to the 49th
Armored Division, Texas National Guard.
It is our opinion that the Texas National Guard
Armory Board, created pursuant to the provisions of Ar-
ticle 5931-1, was intended to be composed of the senior
officers who command the highest ranking military units.
Therefore, it is our opinion the phrase "36th Infantry
Division, Texas National Guard," now refers to the 71st
Infantry Brigade (Airborne), since the 71st Infantry
Brigade (Airborne) is the successor to the 36th In-
fantry Division. Likewise, the phrase "49th Armored
Division, Texas National Guard," now refers to the
72nd Infantry Brigade (Mechanized), since it is the
successor to the 49th Armored Division. You are
therefore advised in answer to your first question,
that you should certify for membership in the Texas
National Guard Armory Board the senior officers
of the 71st Infantry Brigade (Airborne) and the 12nd
Infantry Brigade (Mechanized), provided such officers
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.
Maj. Gen. Thomas S. Bishop, page 4, (M-204)
are qualified under the provisions of Article 5931-l.
Article 5931-1 specifically provides, in part:
II. . . that none of the members of this board
shall at the same time hold any other office
or position of honor, trust, or profit-
the state or federal government, except as a
member of the Texas National Guard or as a
member of the Texas State Guard operating as
successor in military function." (Emphasis
added.)
The office of District Attorney of Travis County is such an
office. Tex.Const. Art. V, Sec. 21, Articles 322 and 322A,
V.C.S.
In view of the prohibition contained in Article
5931-1, you are advised that in answer to your second
question, the District Attorney of Travis County is not
eligible to serve as a member of the Texas National Guard
Armory Board.
In answer to your third question, you are advised
that since the Commanding General of the 71st Infantry
Brigade (Airborne) is the District Attorney af Travis County,
and therefore not eligible to serve as a member of the Texas
National Guard Armory Board, you should certify the next
senior officer in the military rank of the 71st Infantry
Brigade (Airborne) for membership.
SUMMARY
-------
Under the present reorganization of
military units in Texas, the Texas National
Guard Armory Board is to be composed of the
Commanding Generals of the 71st Infantry
Brigade (Airborne) and the 72nd Infantry
Brigade (Mechanized), successors to the 36th
Infantry Division and 49th Armored Division
and the Chief of Staff for Air, Texas Air
National Guard. Since the Commanding Gen-
eral of the 71st Infantry Brigade (Airborne)
is ineligible to serve as a member of the
Texas National Guard Armory Board by reason
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. .
Maj. Gen. Thomas S. Bishop, page 5, (M-204)
of holding the office of District Attorney
of Travis County, Texas, the next senior
officer in military rank of the 71st Infantry
Brigade (Airborne) should be certified by
the Adjutant General for membership on the
Texas National Guard Armory Board, pursuant
to the provisions of Article 5931-1, Vernon's
Civil Statutes.
C. MARTIN
ney General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE'
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
John Banks
Larry Craddock
Pat Cain
A. J. CARUBBI, JR.
EXECUTIVE ASSISTANT
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