Grover Sellers Arrwrrs~ II. TEXAY
r.TT<,III:V*:YGhcNICWAL
Miss ,&n I?; Ware; Executive Secretary’
Texas .N~ational ‘Guard Armory Board
Room ~I.603 Second National Bank Bldg.
Houston, Texas
Opinion No* o-6425
Re: Approval of expense account
of member of Texas National Guard
Armory Board.
Dear Miss Ware:
Your request for our opinion on the hereinabove cap-
tioned matter has been received by this Department. We quote
from your letter as follows:
“Permit me to hand you herewith a file of papers
containing the Armory Board’s voucher #2 against Appro-
priation G-198 in favor of Walter B. Pyron, member of
the Texas National Guard Armory Board, which voucher
has been approved by the Armory Board, the Governor
and the Adjutant General for payment. Attached to this
voucher are certain receipts.
“When the voucher had been approved it was passed
to the Comptroller who has written the Armory Board
under date of February 14th calling attention to your
opinion 0-6135 -which he appears to construe as holding
an account such as General Pyron’s account cannot be
paid. He suggests that, if the Armory Board does not
agree with him, the account be submitted to you for
your advice.
“Upon receipt of the Comptroller’s letter the
Armory Board requested Col. Wren to give his views in
the matter and I am enclosing herewith his letter bear-
ing the same date as this letter on the subject.
V?his is to request that you advise whether or not,
in your opinion, General Pyron’s account can be paid.
It is In all respects similar to two former accounts
covering trips between Washington and Houston which were
paid without question.
“Relying upon the precedents of the other two trips
General Pyron has expended his personal funds in the
matter and it will be unfortunate indeed if the account
cannot be paid.”
Mi.sS fhn Fe Ware, page 2 (O-6425)
Section 1 of Article 589Ob, Vernon’s Annotated Civil
Statutes, reads in part. as follows:
“There is hereby created the Texas National
Guard -Armory Board to be composed of five (5) mem-
bers who shall serve without compensation other than
their actual, necessary expenses while traveling on
the business of the Board. Those three (3) individ-
uals who are acting as members of the Texas National
Guard Armory Board as created and defined by Chapter
366 of~the Regular Session of the Forty-fifth Legis-
lature of the State of Texas on the effective date
of this Act, together with the senior active officer
of the National Guard of Texas, not of the three (3)
above mentioned 9 and the senior cavalry officer of
said Guard, shall constitute the initial membershi
of the Board created by this Act. Of the three (3 P
individuals first above mentioned, the oldest shall
have the initial term of six (6) years, the next
oldest the four (4) ear and the youngest of the
three (3) the two (2 7 year initial term. Of the
other two (2) members, the cavalry officer shall
have the three (3) year term, and the other the one
(1) year term. All such initial terms shall date
from the date this Act becomes effective. Except
as above provided, the terms of membership on said
Board shall be of six (6) years’ duration.
“Each member of said Board shall, within fifteen
(15) days from the day upon which this Act becomes
effective, or from the date of his receipt of notice
of his eligibility to serve to fill a vacancy, qualify
by taking and filing with the Secretary of State the
constitutional oath of off ice D Failure to qualify,
expiration of the term of a member, or the occurrence
of his death, resignation or ineligibility to serve,
shall create a vacancy in such membership which shall
be filled in the following manner8 Within five (5)
days after the occurrence of a vacancy the Adjutant
General of Texas shall certify to the Secretary of
State and to the officer concerned, the name of the
senior active officer of the National Guard of Texas
who is not then occupying an unexpired term as a mem-
ber of said Board, together with the length of term
in which then vacancy exists. The officer whose name
is so certified, or those later certified as herein-
after provided, shall be ‘eligible to fill such vaarancy.
In case such officer shall, for any reason, fail to
qualify within a period of fifteen (15) days from the
date of such certification, the said Adjutant General
Miss Ann F. Ware, page 3 (O-6425)
shall forthwith certify that fact to the Secretary
of State, and shall certify to him and to the offi-
cer concerned the name of the next senior active
officer of the said Guard in like manner as herein-
above provided, and so on until an officer so certi-
fied qualifies to fill the vacancy.
ItAn active officer, within the meaning of the
above -provisions, shall be any regularly commissioned
officer of the line of the said Guard, other than re-
tired officers. No change in military status while
a member and no retirement of an active officer for
age or length of service shall affect his eligibility
to serve out his term as a member of said Board; but
if he shall resign from or be separated from active
service in said National Guard, otherwise than by
such retirement, he shall thereby become ineligible
for designation to or service on the membership of
said Board.”
The Supreme Court of Texas in Texas Nat. Guard &nory
Board v. McGraw, 126 S.W. (2d) 627, said:
_ _
II. . e we conclude that the statute creating
the Armory Board deals distinctly with the military
and is not limited by the provisions of the Consti-
tution applying to the civil officers of the govern-
ment 0 tt
The above holding by the Supreme Court definitely re-
moves members of the Armory Board from the class of civil offi-
cers, and consequently that part of Section 14 of Article 16 of
the Texas Constitution providing that “all civil officers shall
reside within the State” has no application to said board mem-
bers.
Section 1 of Article 589Ob, supra, provides that mem-
bers of the Armory Board shall serve without compensation, except
actual and necessary expenses while traveling on business of the
Board. The Attorney General of Texas in Opinion No. O-1734, held
that the trip made by General Walter B. Pyron was for State busi-
ness purposes, and this fact was further corroborated by a letter
written to the Attorney General by the Executive Secretary of the
Board, dated January 25, 1945.
In view of the foregoing we have decided that General
Pyron holds a plilitarv office as a member of the Texas National
Guard Armory Board, and the Constitutional provisions applicable
to civil officers have no bearing on his case. Further, we find
no constitutional or statutory provision requiring the General to
- --
Miss Ann F. Ware, page 4 (o-6425)
reside within the State of Texas in order to serve as a member of
the Armory Board, and in addition thereto the above quoted stat-
ute clearly provides that the General is entitled to his travel-
ing expenses while traveling on business of the Board.
It is therefore our opinion that the expense account
of General Walter B, Pyron should be approved by the Comptroller.
FOP your information there is no conflict between this
opinion and our prior opinions nos. o-3456 and 0-6135. In both
prior opinions we were de,aling with civil officers who are re-
quired by the Texas Constitution to reside within their respeo-
tive counties, districts, or state, and the present opinion con-
cerns a military officer who is not required by Constitution or
statutes to reside within this State, but simply to be an officer
in the Texas National Guard.
Yours very truly
ATTORNEYGENERALOF TEXAS
By /s/ J. C. Davis, Jr,
J. C. Davis, Jr., Assistant
APPROVEDFEB 28, 1945
/s/ Carlos C. Ashley
FIRST ASSISTANT ATTORNEYGENERAL
APPROVED: OPINION COMMITTEE
BY: Aw, CHAIRMAN
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