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
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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
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. .
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,
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.
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
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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
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