EA Y GENE
Major General Thomas S. Bishop
Adjutant General of Texas
Austin, Texas
Opinion No. WW-1390
Re: Whether under Article 5845(a),
Vernon's Civil Statutes, the
State is liable for pay and
allowances and payment for
medical treatment due to a
Texas National Guardsman as
a result of illness contract-
ed in line of duty, under
Dear General Bishop: the fact situation given.
You have asked this office for an opinion as to whether
under Article 5845(a), Vernon's Civil Statutes, the State is
liable for pay and allowances and payment for medical treatment
due to a Texas National Guardsman as a result of illness con-
tracted in line of duty, under the fact situation given.
On May 31, 1962, Major Hollowell, a member of Head-
quarters, 136th Air Defense Wing, Texas Air National Guard,
with headquarters at U.S.Naval Air Station, Dallas, Texas,
was ordered to attend field training exercises at the Head-
quarters of said Wing, and was then further ordered to perform
duties with the Adjutant General's Department, Camp Mabry,
Austin, Texas. While performing duties in Austin Major Hollo-
well developed an eye ailment, for which he was treated at Eerg-
strom Air Force Base Hospital as an out-patient. On June 15,
1962, Major Hollowell's training period ended, and he was per-
mitted to return to his home. Treatment for his eye ailment
was continued with a specialist in Tyler, under whose care
Major Hollowell remains at this time.
Major Hollowell is an attorney, and the doctors who
have treated him have rated him as 100s disabled for the dura-
tion of the eye condition. A formal line of duty investigation
was conducted upon the order of the Adjutant General, and it
was determined that the disease of Major Hollowell was incurred
Maj. Gen. Thomas S. Bishop, page 2 (WW-1390)
in the line of duty, and was not the result of misconduct,
Further information was sup lied, to the effect that,
under the authority of 32 U.S.Code i 319(b)(2), the Federal
Government is paying for all of the medical services provided
to Major Hollowell.
Article 5845(a), Vernon's Civil Statutes, reads as
follows:
"(a) Every member of the military forces of
this State who shall be wounded, disabled or injur-
ed, or who shall contract any disease or illness,
in line of duty while in the service of this State
in case of riot, tumult, breach of the peace, resist-
ance to process, invasion, insurrection, or imminent
danger thereof, or whenever called upon in aid of the
civil authorities, or when participating in any train-
ing formation or activity under order of the command-
ing officer of his unit, or while traveling to or
from his place of duty in such instances, shall be
entitled to and shall receive, or be reimbursed for,
hospitalization, rehospitalization, and medical and
surgical care in a hospital and at his home appropri-
ate for the treatment of such wounding, disability,
injury, disease or illness, and necessary transporta-
tion incident thereto until the resulting disability
cannot be materially improved by further hospitaliza-
tion or treatment, and shall receive the same pay and
allowance whether in money or in kind, to which he
was entitled at the time when the injury was incurred
or the disease or illness contracted, during the per-
iod of his disability but not for more than a total of
six (6) months after the end of his tour of duty, and
in the event of his death in such cases, his estate
shall be entitled to any reimbursement for which the
deceased would have been entitled and to his accrued
pay and allowances and compensation or reimbursement
for actual funeral expenses not to exceed the sum of
Five Hundred Dollars ($500), such compensation or re-
imbursement, as well as the cost of carrying out the
other provisions of this Article, shall be paid out
of any funds in the State Treasury available to or
appropriated for the use of the military forces of
this State in the same manner provided for other ex-
penditure of State funds; provided, however, that no
compensation or reimbursement shall be paid in any
case where the same is payable under the provisions
of any Federal law or regulation."
- -
Maj. Gen. Thomas S. Bishop, page 3 (WW-1390)
Major Hollowell was participating in an activity under
order of his commanding officer, and was in the line of duty
when he contracted his illness. Under the plain meaning of
the statute above quoted he Is thus entitled to payment for
his medical care, and to continuation of his pay and allow-
ances during the period of his disability. Such pay and al-
lowances cannot, however, be paid for a period longer than
six (6) months after the end of his originally assigned tour
of duty, which in this particular case was June 15, 1962. The
Federal Government has assumed the duty of making payment for
the medical services provided to Major Hollowell; the State
may not make further ayments in this area. However, under
Federal-regulations P Paragraph 50157d(l)(a), Air Force Manual
177-1051, Major Hollowell is not entitled to receive pay and
allowaircesfrom the Federal Government. Under the statute
above quoted, the State is obligated to furnish him pay and
allowances only up until such time as his disability is re-
moved, or six (6) months after June 15, 1962, whichever date
occurs sooner. At this point it must be noted that Major
Hollowell became eligible for an increased longevity payment
on June 23, 1962. This increment may not be included in the
amount $aid to him under Article 5845(a), by virtue of the
phrase . . . and shall receive the same pay and allowance
whether in money or in kind, to which he was entitled at the
time when the injury was incurred or the disease or illness
contracted . . .' (Emphasis supplied).
SUMMARY
Under Article 5845(a), Vernon's Civil Statutes,
Major Billie G. Hollowell is entitled to re-
ceive payment for medical services rendered, plus
pay and allowances during his period of disability,
such period not to exceed six (6) months. Since
the Federal Government is paying for the medical
serivces involved, those are not payable by the
State. Major Hollowell is thus entitled to re-
ceive from the State of Texas the pay and allow-
ances to which he was entitled at the time the
disease or illness was contracted, such amount
to be paid for the duration of his disability,
Maj. Gen. Thomas S. Bishop, page 4. (WW-1390)
or for six (6) months after June 15, 1962,
whichever date occurs first.
Yours very truly,
WILL WILSON
Attorney General of Texas
MLQ:ms:zt
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank R. Booth
Scranton Jones
Robert Rowland
William E. Allen
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore