THEA~TORNEP GENERAL
OF TEXAS
April 17, 1962
Brigadier General Thomas S. Bishop
The Adjutant General of Texas
Austin, Texas
Opinion No. WW-1313
Re: Whether the National Quard
or the State of Texas is
required to pay additional
service pay or additional
medical or hospital expenses
to or on behalf of service-
men in the event of further
treatment or rehospitaliza-
tion under the facts stated,
Dear General Bishop: and related questions.
Your request for opinion on the above captioned matters
informs us that fn September of 1961, 1st Lt. Ybarra and SP4
Alarcon, members of the 141st Infantry, Texas ARNG, were called
into actfve service of the State of Texas for two (2) days for
the purpose of assisting civil authorities In the protection of
life and property of the citizens of Texas In the Hurricane Carla
Disaster Area.
The next day after their Induction, both men were
Injured in the line of duty, which finding has the approval
of the Adjutant General of Texas. Subsequent to their injuries,
both were hospftalized in the U. S. Naval Hospital at Corpus
christi. Your letter informs us that at the present time the
hospital has been paid, but thet it is possible that further
treatment or rehospitalization of these men may be necessary.
The specific questions asked by you are as follows:
"1* Is the National Guard or the State of
Texas required to pay additional military service
pay or additional medical or hospital expenses to
or on behalf of either Ybarra or Alarcon In the
event of further treatment OP rehospitalization?
Brig. Gen. Thos. S. Bishop, page 2 (WW-1313)
"2. If so, are either pay and allowances
or medical or hospftal expenses limited in time
to six (6) months, and, If so, when does the six
(6) months expire?
“3a If the six (6) months does not apply
to either pay and allowances or medical and
hqspital expenses, fs there any other factor
which llmits or eliminates further such payments?
If so, what are said factors and how are they
applied?
II
'. In the event there results permanent
4,
or temporary, total or?partial disability to
either injured person, what benefits or privl-
leges are they entitled to receive and what
recovery may they effect from the National Guard
or the State of Texas or any political subdivl-
sion thereof?
“5. In the event any money is recoverable
by the fnjuped persons, what funds are available
for disbursements? Under what circumstances must
said disbursements be made?"
Article 5845of Vernon's Civil Statutes states as
follows:
"(a) Every member of the military forces
of this State who shall be wounded, disabled or
Injured, 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, resistance to process, Invasion, lnsurrec-
tion, or imminent danger thereof, or whenever call-
ed upon in aid of the civil authorities, or when
participating in any training formation or activity
under order of the commanding officer of his
unit, or while traveling to or from his place of
duty In such Instances, shall be entitled to and
shall recefve, or be refmbursed for, hospitall-
zation, rehospitalization, and medical and aurgi-
cal cape In a hospital and at his home appropriate
for the treatment of such wounding, disability
and necessary traniipor-
il the resulting dls-
ablllty cannot be materially Improved by further
hospitalization or treatment, and shall receive
the same pay and allowance whether in money or In
. .
Brig. Gen. Thos. S. Bishop, page 3. mw-1313)
kind, to which he was entltled at the time when
the injury was Incurred or the disease or illness
contracted, duping the period of his dlsabllity
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 s-hallbe
entitled to any reimbursement for which the de-
ceased 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 compensa-
tion or reimbursement, 'as well as the cost of
carrying out the other provisions of this Article,
shall be paid out of any funds in the State Treas-
ury available to or appropriated for the use of
the military forces of this State In the same man-
ner provided for other expenditure of State funds;
provided, however9 that no compensation or relm-
bursement shall be paid In any case where the same
Is payable under the provisions of any Federal law
or regulation.
"(b) The Adjutant General shall administer
the provisions of this Act and map prescribe such
rules and pegulatlons not Inconsistent with law as
may be necessary to carry out the provisions of
this Act and the decision as to whether any wound-
ing, dfsabllhty, Injury, disease, Illness or death
Is In line of duty or aa a result thereof, shall be
made by the Adjutant General after proper lnvestl-
nation and hearing pursuant to such regulations as
he may prescribe." (Emphasis added)
Article 584% states as follows:
"The provisions of this Act
. shall
. _-_In no wise
be construed to be a gratuity but mall De con-
strued to be compensation for services for which
each member of the military forces of this State
shall be deemed to have bargained for and conslder-
ed as a condftlon of his enlistment and employ-
-." (Emphasis added)
Article 5845 states the desire and Intent of the
Legislature that members of the military forces of Texas re-
ceive hospitalization, medical and surgical care, etc., "until
the resulting dlsablllty cannot be materially improved by
further hospitalization or treatment."' This phraseology evi-
dences to us that Injured members shall receive the benefits
Brig. Gen. Thos. S. Bishop, page 4. (hW-1313)
provided until they have completely recovered from their
disability, Injury, disease_.or-illness, or until In such
cases that may arlse, a medical expert advlses you that the
particular member "cannot be materially improved by further
hospitalization or treatment." The statute specifically pro-
vides for "rehospltallzatlon,~ therefore, you are advised that
the members in question must be provided with the benefits
enumerated on their re-entry into a hospital, subject to the
previous sentence of this opinion. There Is no time restric-
tion on a member's recelvlng hospitalization, medical and sur-
gical care, and we cannot Infer one.
As to your second question, may we again quote from
Article 5845 In part as follows:
0 and shall receive the same pay and allowance
whether In money or In kind, to which he was entitled
at the time when the inlurv was incurred or the disease
or illness contracted, during the period of his dis-
ability but not for more than a total of six (6
months after the end of his tour of duty V . .
(Emphasla added)
It has been stated that the members In question In
this oplnlon were ordered Into active service for only two (2)
days. Since their injuries were received on the day which was
to be the "end of hls fiheld tour of duty," It follows that
the six (6) month period begins the day after they received
their lnjurles.
Although there Is no time restriction placed on
hospltallzatlon, medical and surgical care, the Legislature
did provide that a member, during the period of his dlsablllty
may receive the same pay and allowance "but not for more than
a total of six (6) months after the end of his tour of duty."
If the disability lasted SIX (6) months or longer, then the
member may receive pay and allowance for a period of six (6)
months only. If, as In the case In question there is a re-
curring dlsablllty, and the members had not received pay and
allowance for a period of six (6) months, then they may re-
ceive additional compensation until they have received same
for "a total of slx (6) months." (Emphasis added)
The conclusions reached by us make It unnecessary
to answer your third question.
As to your fourth question, Article 5845 does not
provide for various degrees of dlsablllty or Incapacity, but
only provides f"orbenefits "until the resulting dlsablllty
cannot be materially lmproved by further hospitalization or
Brig. Qen. Thos. S. Bishop, page 5. (W-1313)
treatment." (Emphasis added). We assume your Inquiry 18 to
whether or not a member recefvlng injuries rendering him par-
tially or totally Incapacitated ma recover other benefita
than those prescribed by Article 5845, either periodically or
by a lump sum. We have not found, nor are we aware of'any
laws whereby the Adjutant General's Department may carry any
type of coverage providing for any other benefits and prlvl-
leges other than thoae enumerated in Article 5845.
You are therefore advised that a member la limited
under the terms of Article 5845 to receiving hia pay and al-
lowance for a total period of six (6) months and all of his
hospitalization, medical and surgical care until cured or
until a medical expert advises you that "the resulting dls-
ability cannot be materially Improved by further hospltallza-
tlon or treatment."
The answer to your fourth question makes it un-
necessary to answer your last question.
gEMMARY
-----
Under the terms of Article 5845 of Vernon's
Civil Statutes, If a member of the mlll-
tary forces of the State or Texas Is wounded,
disabled or Injured, or haa contracted any
disease or Illness In the line of duty, he
la entitled to hospitalization, rehospltal-
lzatlon, and medical and surgical care
until cured or until a medical expert ad-
vises that the resulting disability cannot
be materially Improved by further hospltal-
lzatlon or treatment. Such member is alao
entitled to receive the same pay and al-
lowance to which he waa entitled at the
time of the injury or contraction of the
disease or illness during the period of
hle dlsablllty, but never for longer
than a total period of six (6) months.
Brig. Gen. Thos. S. Bishop, page 6. (W-1313)
There la no other,way whereby such
a member may obtain any other type
of recovery from the National Guard
or the State of Texas.
Yours very truly,
WILL WILSON
r2z-&?(q
y2z-&?(q
Fred D. Ward
FlX:jkr:zt Assistant
APPROVED:
OPINION COMMITTEE
J. C. IXtvls,Chairman
Robert McGee
Grady Chandler
W. 0. Shultz
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.