Untitled Texas Attorney General Opinion

Hon. Thomas 5. Bishop _-.-a Opinion Ho. M-103 MaJor General, Tex Amu Ad jutant Generals Re: Constitutionality of Adjutant Geneyal's Dept, Rours Bill 406, Acts Austin, Texas, of Ch6 60th Legia1ature, SW lar Seseion, and .:z. Dear Generel ,lBishop: lY3Y&ted questions. IlOU haVe P8C4WbSbied~ &I'J.@$htllionfPi383this Off%@ a8 to the conetitutianalit~~ of Hau-ee ali, 406, Acts of the 60th Leglalature, Regular Session I ,and in partSaul,ar to the dura- tion of the t%Pm of offior of the National Guard Armory Board membere. In the event we holo such bill to be constitutional, then you present the following questions? "1 o Oti June I~, 1967, the Assistant Adjutant General,, Army, will become,Commandlng General of the 49th Armored Mvision. In view of Article XVI, Section 40 of the &ate Constltutlon, may he not concurrently hold membernkip cm the Texas National Guard Armory Roard as well as ssrving as Assistant Adjutant Genera3, Army, Texas National Guard? Should it be held that he cannot serve on the Armory Board because of his status as Aaaistant Adjutant General, Army, then* in that event, under H.8, 406, who,would be eU.$Sblc to serve on the Board from the 49th Armor%4 Division? "2. a, Under the.law (Rev.' Civ. St., Art. 5767, Set, 1) exietlng at the time of the pesaage of H.B. 406, the Air National Guard representative on'the National Ward Armory 3oard, wae the Senior Officer of the Texaa Air National Guard. R.B. 406 states that Ythe Chief of Staff for Air, Texas Air National Guards shatl regreaent the Air National Guar&on the Board. The present Senior Officer of the Texas Air National Guard, who ha8 been serving on the Armory Roard# is Deputy ChBef of Staff for the Air, National Guar,d, by assignment, but is per- formI& the duties of Chief of Staff for Air. In lione Thomas S. Bishop, page 2, (M-103) light of this fact, can the present Air National Guard representative continue to serve on the new 1.‘. Board created by H.B. 4064, “bv The present Air National Guard represent- ative on the Armory Board is a Civil Service employee of the United ,States, He works with the Small Bus- iness Administrationi Doe8 thie fact prohibit him from serving on the Armory Board in light df Article XVI, Section:12 of the Texas Constitution? Should he be ruled Ineligible, is the Aaeistant Ad utant General’for Air (next in point ,of seniority 3 eli- Ible to 8erve on the Board? If not, under H.B. fi’ 06, who 18 eligible to repreeent the Air National Guard on the Texarr l?at%onal Quarb Armory Board? “3. The prov:slone of H-P). 406 further etate the new Board shall bp: ” .composed of the Commanding General, 36th Inf~&yyDivJ.slon. * 0 "In compliant with Department of Defense direc- tives, the Texas Army ‘~tlonal Guard was reorganized on 1 November 1965, On this date, the Texas Army National Guard loat the 36th Infantry Division, as 8uch, beCaU8e the 36th Infantry Division was reorga- nized into the 36th Infafitry Divfaion (less detach- ments) to obtain unit equipment and personnel to form a Separate Infantry Brigade. "In'vlew of the above, if H.B. 406 correctly fdentifiea the only Officer eligible to Berve on the Armory Board, which officer ehould be certified as the member bf the Board -- the Commandlng General, 36th Infantry Dlviefon (which no,longer exists , or the Commanding Qeneral, 36th Infantry Brigade t which doe8 exist) 7” Rouse Bill 406 of the 60th Legisl&ture, Regular Session, which Is codified as Article 5931-1, reads as fOllOW8: “There 18 hereby created the Texas Nationals Guard Armory Board to be composed of the Commanding General of the 36th Infantry Division, Texas Na- tional Guard, the Commanding General of the 49th Armored Divkafon, Texas National Guard, and the -464- Hon. Thomas S. Bishop, page 3, (M-103) Chief of Staff ,for ~,Alr, 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 a vacancy, the person qualifying for the position shall complate the unexpired term of his predecessor. Each officer of the Texas National Quard or the Texas Air National Guard who may thereafter fill the position qualifying him for membership on the Texas National Guard Armory Board, a8 pro- vided ln,thle Act, shall be certified by the Adjutant General of Texas to the secretary of state, and to, the officer concerned within 30 day8 after the occurrence of a vacancy. Each member of the Texas National Guard Armory Board shall, ‘within 15 day6 from the date of his receipt ; of notice of his eligibility to serve to fill a ,.’ vacancy, qualify by taking and fifing with the .. secretary of state the constitutional oath of office I) “The senior and junior in military rank, of -’ the members of said board shall be, respectively, chairman and treasurer thereof, and the persons holding such offices shall change as military rank may determine when changes in membership of said board occur. “In the event any member of the board Is un- able to serve because of his Induction into federal service or the induction of his military unit Into federal servfce, the Governor of Texas shall designate a member from among the state military forces as suc- cessor in function, who shall thereupon be and become a member of the board only for the duration of such term of lnductlon into federal service, there- after the military successor in function of the Texas National Guard shall qualify as a member of the board. “It 1s further provided that none of the members of this board shelf. 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 Ward operating as successor in military function. Hon. Thomas S. Bishop, page 4, (M-103) “Should any officer fall 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.' We will first consider the constitutionality of H.B. 406, 60th Legislature, Regular Session, as It relates to the provision therein which states that the board shall be composed of three members from the military organlsa- tlons as stated therein, and the term of office for members of the Texas National Guard Armory Board shall be ~of six years duration. The Supreme Court of Texas in the case of Texas National Guard A-mory Board v. t&Craw, 132 Tex,m613,xS.W.2d 527 (19191, . ---,- wherein the court was con:itriiing the constitutionality of’provlsions of the civil statutes ptrtainlng to the appolnt- ment of persons acting as members of the Texas National Guard Armory Board, held at page 632 as follows: "'Article 16, Section 3oa, of the Constltu-. tlon deals with civil officers and boards, and Article 16, Section 46 of the Constltutlon deals with dlstlnctly,military matters. This seems to have been recognized without question in commiasionlng officers of the National Guard, and we conclude that the statute creating the Armory Hoard deals distinctly with the military and Is not limited by the provisions Of the Constitution applying to the civil officers of the government. lsVThe Constitution seems to give to the Legislature unlimited power to pass laws for the organization and dlsclpllning of the Militia in so far as the said Constitution Is concerned, and not otherwise limited, except by the require- ment that the laws passed must not be “lncom- patible with the constitutional laws of the United States 0” ” s It Is, therefore, submitted that the tenure of office, asprescribed In the Armory Hoard Act, Is not in conflict with the pro- visions of our State Constitutlon.s” ‘-Lg&$*, . . Hon. Thomas S. Bishop, page 5, (M-103) ‘The court has held that the members of the National Guard Armory Board do not fall within the same category as other civil offices and can be appointed for any tenure desig- nated by the legislature. We, therefore, are of the opinion that H.B. 406, Acts of the 60th Legislature, Is constitutional, and that such persons constituting said board can be appointed for any duration of time designated by the legislature. As H.B. 406, 60th Legislature, Regular Session, created the Texas National Guard Armory Board, It is our opin- ion that such members as designated should be appointed for a term of SIX (6) years as set out in said Act. Your second question poaes the problem as to whether the Assistant Adjutant General, who will on June 1, 1967, be- come Commanding General of the 49th Armored Dlvlsion, is because of his serving as Ase%mtant Adjutant General, ineligible to serve on the Armory Board, and who would be otherwise eligible to serve on the board from the 49th Armored Division. Your attention Is directed to the fourth paragraph of Article 5931-l which provides: “It ie further provided that none oE 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 uovernment, 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.) It &I our opinion that the Assistant Adjutant General, a statutory office under Article 5796, who will be the Commanding General of the 49th Armored Division, could not be appointed as member of the Texas National Guard Armorv Board because of the fact that he holds a position of honor, trust and profit under the state government. Page III-l-Appropriation Act, 60th Leglsla-, ture, providee a salary of $15,000,00 per year> for Assistants Adjutant General n In answer to YOUPquestion as.to who would be eligible to serve on the board from the 49th Armored Division, Article 5931-l further provides as follows: “Should any officer sell to qualify as a member of the board under the,‘Drovisions of the State Constitution or the Provisions of this Act, the next senior oSf&er in mllitarjr rank of the respective military units to qualify shall be Hon. ‘l’homaa S. Bishop, page 6, (M-103) certified by the Adjutant General of Texas ,~.to the secretary of .state as provided in this Act.” (35mphasis added. ) It therefore follows that the next aen1or officer in rflitary rank, OS the, 49th Armored Division, if not like- rigs disqualified, should be certftieti to the secretary of state, for appointment to the Armory Board. In view OS our answer as to who would be eligible to serve on the board from the 49th drmcrred Division and our answer to your next questlon, it is not necessary to answer your question number 2a. Question 3b states th8t the present Air Natianal Guard representative on the Armory 3oard 1s a Civil Service employee ,of the Untted States , and that he is employed by the Small Business AdmlnistratZon and aonointed bv the head 0P this agency. Under the authorfty af-U.S.,-?. Smith, 8 Sup. Ct. 595, 597, 124 U.S. 525 (18883, h,e is a federal off”lcor. In vL#?wof the pravfaion of H.B. 405, 60th Legislature, which states that non& of the members of ,thia board shall at the aame the hold any other oSf%.ce or position of honor, trust or prolit, with the state or federal government, it is our apinion that he would be ineligible to represent the Air Uattional Guard on the Texas National Guard Armory Board. You should be guided In your appointment of a representative from the Air Netional Guard by the provision that states that should any officer fall to qualiSy as a member of the board under the provisions of the State Constitution or the provl~sions of that Actr the next seniox officer in military rank of the respective military units, if not likewise disqualified, shall be certified gr~ to the secretary of state for appointment to the Armory . Pour next question deal% with wfutther the Command%ng General OS the 36th InSantry Mvlsion, wh%?h dlvSsion wa8 re- c?rgen.tEei¶ on November 1, l965p or the Caaaaandil~@ General OS the 36th InSantry Br&gade should be certified as the member OS the board from such mllltary organization. Inaemuch as the legislature had before it the f&ct that the Texas Army National Guard was reorganized on November ,I, 3965, and did not change the wording in W.B- Aa6 whereby it would show that the Commend&g General OS the 36th Infantry Brigada ua~ to be appoltrted, it is our opinion thet the Legls- . - . Hon. Thomas S. Bishopi page 7, (M-103) lature intended for the Commanding General of,the 36th Infantry Divisign to be appointed as a member of the National Guard Armory Board, as set out in said H.B. 406, 60th Legislature. SUMMARY ------- 1. H.B. 406, 60th Legislature, Regular Session, Is constitutional and under its pro- visions the members of the Texas National Guard Armory Board are to be appointed for a term of six (6) yearn. 2. The Assistant Adjutant General, who will be the Commanding General of the 49th Armored Division, is not eligible to be appointed to the Armory Board, aa he holds an office or position of honor, trust or profit under the state govern- ;:niie (Page III-l, Appropriation Act, 60th Legis- , and H.B. 406, supra.) 3. The next senior officer in military rank in the 49th Armored Division, If not disqualified under the provisions of H.B. 406, 60th Legislature, should be appointed to serve bn the Armoxy Board. 4. The present Air National Guard representa- tive on the Armory Board is not eligible for appoint- ment to the Board, since he is employed by the Small Business Administration, uhich is a position of honor, trust, or profit with the federal government, and such apporntment would be in violation of the provisions of H,B. 406, 60th Legislature. 5. The Commanding General of the 36th Infantry Division, should be certified for appointment as a member of the Texas National Guard Armory Board, H.B. 4G6, 60th Legislature. # Prepared by Sohn H. Banks Assistant Attorney General Hon. Thomas $3. Biffhopt Page 8, (&f-103) APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman Roger Tyler P0t Bailey Arthur Sandlin Robert Flowers A. J. Carubbi,,Jr. Staff Legal Assletanfi .. ., ,, ‘