R-219
TEEATTORNEY GENERAL
OFTEXAS
PRICE DANIEL
*TTORNEY GENERAL
April 4, 1947
Hon. D. c. Greer opinion No. v-114
State Highway Engineer
Texas Highway Department Re: Authority of the Highway
Austin 26, Texas Department to pay medical
aid and compensation to a
Texas State Guard Officer,
where no record of a med-
ical examination is found
in the files of the Adju-
tant General.
Dear Sir:
Your request is based upon the following facts
and related questions:
We have a report of injury to a Texas State
Guard orrioer, reported to have oaourred on Novem-
ber 26, 1946.
RAlthough the man olaims to have been examined
after S. B. 135, 48th Legislature beoame eff’eOtive,
no reoord or same can be found in the files of the
Adjutant General. Aooording to Attorney General
Opinion No. O-5355, dated July 1, 1943, we have no
authority to Cover the injured.
“In the oase of this particular guardsman it
so happens that he did take an examination for oom-
mission in. the Texas National Guard in August, 1946,
and the record is on rile with the Adjutant General.
“Do we have authority to pay medical aid and
compensation to this injured man? Can we give any
recognition to this examination which was given ror
another organization?*
The anewer to your first question is controlled
by the provisions of Article 5891b of Vernon’s Civfl Stat-
utes, which provides for compensation benerits ror mem-.
bers of the Texas State Defense Guard and for the admln-
istration of the act by the State Highway Department 0
Han, D. Ca Greer, Page 2 S V-114
From Seotion 2 of said Artfole, we quote:
eWmaber* shall mean every person in the Texas
Defense Gnard O Provided that no person shall be
olassffied as a pmembers under this Aot mr be ell-
gible to any compensation benefits under the tern
and provisions of this Aot until he shall hats sub-
mitted hfmselr first to a physical examination by
a regularly licensed physician or surgeon, designated
or aooeptsd by the Texas Defense Guard to make saeh
an examination, and until as a result of such exam-
ination, all physioal dereots existant at the time
of the examination have been noted and recorded. Af-
ter his separation, either by disohargee resignatfcn,
or otherwise from the Texas Derense Guard, no person
shall be olassified as a member under this Act or be
entitled to any compensation benerits thereunder.”
The injured offioer olafms to have submitted
to the required examination, but no such reoerd is on
rile with the Adjutant General. This gives rise to a
strong presumption agafnat the otiloerPs olaim, but It
does net bar recovery, fr s in’ fach, ths officer did sub-
mit to the required examination0 I)efore aufhorizin@
the officer@8 elaim, the Offfoer should furnish go@ with
adequate proof of the required phyrfoal examination ta-
gether with the results thereof noted and noorded at
the time of the er8minatlonQ Palling in this, the slaim
should be denied,, beoause the oiflaer has net qa8lifie(,
as a *member” as that term fe dailned fn the quoted stat-
ute.
The fact that the olafaunt took an examlnrtian
ror a commission in the Texas Matfonal Guard in Augtmt,
1946, can be gfven no weight. Thare is no provision in
the entire Act which expressly or im liedly permits an
examination for s oommiseion in the i -exas IVational Guard
~to be a substitute ‘fore or in lieu of, the examination
epeoifioally provide& for in Saotion 3, aubsrotlon 2,eu-
pra, The Texas Defense Guard is entirely different and
separate from the Texas Hatfonal Guard. This Is speolf-
ioally provided for in Artiole SSQla, Sea. l(b), as fOl-
lows :
“Suoh foroes shall be a p8rt of the latlve
militfa and a oomponent of the military forces
of Texas and shall be addftfomal to and .distlnct
from the Matlonal Guard and shall be knewa a8
the Texaa State Guard: * * **
Hon. D. C. Greer, Page 3, V-1.14
From the foregoing, it follows that the Texas
State Guard Offloer is not elf,@ble for medical aid and
compensation under the Texas State Guard Compensation Aat,
unless adequate proof of the required physical exrmina-
tion is made by the injured offioer to the Highway Depart-
ment e
1, An injured State Guard Officer, who has
no record of a physical examination on file with.
the Adjutant General., is not entitled to medioal
aid and compensation under Article 5391b V. C. 3,
unless such offfoer furnishes adequate proof of the
required physical examination, together with the
results thereof noted and recorded at the time of
the examination.
2. A physical examination for a commission
in the Texas National Guards recorded in the files
of the Adjutant General, does not qualfry an in-
lured Texas State Guard Officer as a “member” en-
titled to medical aid and compensation under Arti-
” ~~~
cle 5891b, V. C. 9.
Yours very truly
ATTORNFJY
GEhTERAL
OF TEXAS
Assistant
APPROVED
APR, 4, I.947
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ATTOIA’EYGENERAL
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