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
.. ., ,,
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