Untitled Texas Attorney General Opinion

AunTIN. EXAB 7-7 September 8, 1966 Major General Thomas S. Bishop Opinion No. C-755 The Adjutant General OS Texas Camp Mabry Re: Whether the Governor Austin, Texas of Texaa can issue regulationa,under the authority of Art. 5780, Sec. 2; Art. 5765, Sec. 4; and under his con- 6titutionalauthority aa Commander In Chief, giving the.Adjutant General's Department authority to.enter in- to an agreement with the NationaLGuard Bureau and the United States Air Force for the operation of Ellington Air,Force Base as the host orgsnizafion,financed out of lOO$ Federal funds, without going through or being ln- volved with the pro- cedurea of Art. 5767, Dear Sir: V.C.S. Your opinion request in regard to the above matter. reads, In part, as Sollows: n . . . "The request for thia Attorney General's opinion ia brought about by a change of circum- stances at Ellington Air Force Base. Recently, the Secretary of Deiense and, under his direction, the National.Guard Bureau, advised the State of Texas that there would be an inactivationof cer- tain United States Air Force Reserve Units at Ellington Air Force Bare. These are the unit,z '~' ,' that had host jurisdictionand responsibility in the past. With the Inactivationof thcee units, The National Guard Bureau haa requested that the base juriedictionor host responsibility -3627- Major General Thomas S. Bishop, page S (C-755) be transferredfrom the ContinentalAir Coumaud to the Texas Air National Guard. The acceptance of hont responsibilityat Ellington would be pur- suant to a permit or license to control the pro- perty. The Texas Air National Guard would not purchase or acquire the realty. The proposal would atill,leaveseveral small units on the base, and these units would be tenants of the Texas Air National Guard and/or the Adjutant General's DepartJaent.These unita include the National Aeronauticsand Space Admlniatration,a United States Coast Guard Unit, an OS1 Detachment,and an Air Force Advisor's Detachment end other small units. If the State of Texas assumes this reaponsl- blllty, the National Guard Bureau has indicated Its willingness to Sinance this operation out OS lOO$ Federal funds. No State funds would be obllgated~bythe assumptionof this reeponei- blllty. Howeve,r, since NASA, the Coast Guard, and other units are involved, it is felt that the~problemsof operating this base under the jurisdietlonof the Adjutant General for Air would be Ii&possibleifall Host-TenantAgree- ments, licenaiug, Service Contracts, repairs, and constructionhad to go through the Texas Natlonal Guard Armory Board and the bidding process required by State Law with regard to such projects. ,I . . . "Your opinion ia respectfullyrequested as to whether the Governor of Texas c&n issue regulations . . . giving the Adjutant General's Department authority to enter into an agreement with the National Guard Bureau and the United States Air Force for the operation of Ellington Air Force Base as the host organization,financed out of lOO$ Federal funds, without going through or being involved with the procedures of Article 5767, Vernon's Civil Statutes of Texas. a a . . . .II ‘1 Article 5767, Vernon's Civil Statutes, creating the Texas National Guard Armory Board, a body politic and corporate, was enacted for purposes of assisting the Adjutant General and the Governor in acquiring, constructing,renting, controlling, maintaining,and operating all Texas National Guard Armories0 ,-3628- . . Major General Thomas 9. Bishop, page3 (C-755)~ In Opinion No. O-5752 (lgu), this office construed the above Act, which had been amended in 1937 and codified a6 Article 58gGb, Vemontm Civil Statutes, in order to determine the legal rtatus and ptrpose of the Board. It was held that the Board was created . . . to act a6 the alttr ego,of the State for particular purpose6.” We said that . , ‘.the Leg- islature intended the Act to have a dual purpose. The first purpose wa6 to create an agency, in the abeence of en exlst- ing agency, with authority to cooperatewith the United States Government,by securing available federal funds to.construct National Guard Armories in the State. The second pur- pose of the Act in effect made the Armoky’B~ardthe managing agency of the State in respect to all Texan National Guard property. . . . The two purpod)es,as we have expres,sed them, are not in conflict.‘I For mere exhaustivehi8torlcal summation,see Attorney General Opinions O-5695 (1943), O-5752 (1944) and o-7398 (1946). _* By virtue of his office, the Governor of the State OS Texas, a6 Comder-in-Chief, is vested with both,inherent and expre66 Constitutionaland statutorypower6 in the govem- ing, organizing,and training of the State Milltla. Article IV Sectlon 7, Constitutionof Texas; Articles 5765,,5768, 5780, Vernon’s Civil Statutes; 57 C.J.S. 1086-1087, Militia, Section 10; 6ee Article XVI, Section 46, Constitutionof Texas. Section 2 of Artiale 5780, Vernon’6 Civil Statutes, reads as Sollows: "Sec. 2. The Governor shall preracribesuch regulationsas he may 8ee fit for the organization s the .TexasWational,Guard; and he shall from time to time. as he may deem for the best’interests of the service, change-suchregulations,which shall be in aacordancewith this ChaDter, and conform as near as practicable to the organization OS the Armed Forcea of the United States. He may, at any time for aauae deemed good 6nd aulfficientby him, kster out of the service or reorganize any Dortion of the Texas National Guard or the re- 6erve militia, and he shall have Sull control and authority over all matters touching the military force6 of thin atate its orp;anizatlon, equipment and discipline.” (E&hasis added.) By Section 4 of the above Article, the Governor le provided a staff consistingof the Adjutant General, asralstants, -3629- . Major Gimeral !Chkae 9. Bishop, page 4 (C-755) and various others designated therein, In view of the broad powers vested both lmpliedly and expressly in the Governor of Texas by the Constitution and statutes, 6,ndaster considerationof the statutory pxo- vision6 pertaining to the Adjutant General of Texas and be- ing OS the opinlon that Article 5767, Vernon’s Civil Statutes, was not created, designed,nor intended to provide a pro- cedure for regulating or operating a military air base owned, Supported and maintained lOO$ by the Federal Government such as that contemplatedat Elllngton Air Force ‘Base,it is hour opinion that Article 5767, Vernon’s Civil Statutes, does not apply to agreements made under the above stated factual situation. Further, it Is our opinion that the Governor of Texas Is authorized to make the agreement,or direct that it be done, and the Adjutant General can carry out the agreement under the consent and direction of the Governor requiring such duties. SUMMARY ------- The Governor of Texas can issue regulations, under the authority of Art. 5780, Sec. 2~ Art. 5765, Sec. 4; and under his aonetltutionalauthor- ity as Commander in Chief, giving the Adjutant General's Department authority to enter into an agreement with the National Guasd Bureau and the United States Air Force Base as the host organf- zation, finanaed out of lOO$ Federal funds, with- out going through or being involved with the pro- cedures of Art. 5767, V,C.S. Yours very truly, WAGGONER CARR Attorney General BY8 (-Y@Lwcv\~ Al H Mint AS~iat&it A&ney General By: R ayl u A%xnte~ttorney General AMrratdh -3630- Major General Thomas 5. Bishop, page 5 (C-755) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairnun Kerns Taylor J. C. Davis Cbrdon Rouser Robert Flowers APPROVED FOR THE ATTORNEY OENERAL BYI T. B. Wright -3631-