OFFICE OF PHE ATTORNEY GENERAL OF TEXAS
@oonorable J. i'iattPage
adjutant General
Austin, Texas
ate of Texas? ,,
These Nationil Guardsmn have been.ordered’into
the aotive..tilitaryservice of t%e United States by the.
Tresibnt. of the United states octing,un&r the authority
of Pcblic Resdlution NO. 95 , Act by the 76th Congress. This
resolution reach .in,.part a.9 foLlom3: ~ >
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Honorable 5. Watt lage, ?age ‘2
. Yb?solvedby the $enate and House of Repre-
sentatives of the United Z&es of herim in
Con&ress aoseubled,That during the period ending
June 30, 1942, the Iresldeat be, and is hereby,
authorized.fro%tiz to.tlae to order Into the
aotive rtilitaryservice oi the United states for
a period OS twelve concecutive rsontheeach, any
or all smxbers oad aits or my or all reserve
com;;onents of the Amy of the United Xates (ex-
ce?t thit any Dcrcon in.the Xational Guard oi the
United Statas under the ace or 18 years so ordered
into ,the active Alittry sexvice shall be in:.lediote-
ly issued an honorable discharge froa~ths ILatioual
Guard of the United 5tctes); Ned retirad Dersonnel
OS the Zicgular:Ar~y, v&th or without their consent, ’
to such extent and in such ;mnl;erno he ray cleen
necessary for the stredgthenlngoi the national
deferso: Provideda That &he :;le,zbers
and units of
the reserve coxgoneatsof the Amy OS t!ieUnited
Zatss ordered into active “edera service mder
this Authority shall not be ezployed beyond the ,’
.:lizits ol the !Yestcrn5mlsphere except in the
” territories and possessionsof the United States,
including,the-Ghilip2iao .Islands.
“Sec. 2. -411Xational Guard, Esrerve,.and
retired parsoonel ordered into the active zilltary
service of the United &totes uziderthe foregoing
special authority, shall frostthe dates on which
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they are respectively,recjulred by such order to
ireport foxduty in such service, be subjectto the
:,res-peotivelass and’reguiationsrelating to .en-
reenlistxmts;
:.,.list~ents, ezgloyscnt., i2on&xt,
~rlghts,and privileges,and dischargesof such
personae1 in such service to 2he saxe extent ia
all particulars as if they had been ordered into
: such servica under existing general statutory au-
thorixationo.n.
Section 101 oi the Rational Defense ;,otof the
kited States, OS a:zendedto January 1, 1940, (38 Statutes
208)) provides:
*The National.Guard when oalled as such into
the service of tLe United states shall, from the
t.i;ethey darere$uire& by the term of the call to
respond thereto, be subjectto the ,laws’andrcgu-,
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Honorable J. Katt Page, Tage 3
lations governing the aegular Amy, so far as
such laws and regulations are applicableto .
officers and enlisted ‘menwhose permanent reten-
tion in the silitary service, either on the
aotive list or on the retired list, is not con-
templated by existing law."
Section 111 of the same act provides as follows: .,
"When Congress shall hzve declared a national
exergenoy and shall have authorized the use of armed
13nd forces of the United Atntes for any purpose
requiring the use of troops in excess of those of
the Regular Army, the President may, under such re-
gulations,including such physic31 examination3s
he may prescribe, order into the active military
service of the United States, to serve therein for '
the period of the w3r or emergency unless sooner
relieved, any or all units and (the) members (there-
of) of the National Guard of the United titates.
All persons so ordered into the active ,military
service of the United States shall from the &ate
of such order stand relieved from duty in the
National Guard of their respectiveStates, Terri-
tories; and the Liistrictof Columbia so long as
they shall rennin In the active military service
of the United States, snd during such time shall.
.‘, be subject to such laws and regulationsfor the
governmentof the Army of the United States 3s nay
be applicableto members of the Amy whose permanent
retention in active mi'litaryservice is not con-
templated by law.. The organizationof said ,units
existing at the date of the order into 3ctlve I;&-,:'-~~~:
era1 service shall be maintained intact insofar ~,
3s practicable.
"Comnissionedofficers and warrant officers
appointed in the National Guard of the United
States and commissionedor holding w3rrauts in
the Army of the United States, ordered into Federal
service 3s herein provided, shell be ordered to
active duty under such appointmentsand commissions
or warrants: Provided, That those officers and
~i3rran+, officers of the &tionsl Guard vihodo not
hold appointmentsin the National Guard of the
United states may be appointed and commissionedor
tendered warrants therein by the President, in the
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RonorableJ. ;;attRage, 23Se 4
sam grnde ona brihch they hold in the Xational
Chard.
"Gfflccrs and enlisted .:.oA
?hila the ser-
in
vice of 5t.Gu2itca .2t.‘.?.i*25
uncor the ter.:3Of tilis
sect102 si311 raceive the gay and 0110~3r:c3s ~ZO-
vidsd by 1~ for officers and eulisted .XC o? the
rescAmc forces w!:saozderad to active duty, except
briszdicr generals aaL &or Cmemls, vho s?all .
?azoivo the saze 23y a.ldaiioeznces as 3rov?dad by
law for brigadier gencmls 3.-d:zjor g-ncrliLsof
th3 Aegular.Ar~y,reagectiv3lg. Upon being relieved
fro3 activa duty in the 2kiitory sir;rice of tt3
United Lta'xs a11 individasls325 units shall there-
uson revert to their Zatio231 Guard status.
"In the initial zobilizztionof the X'etionsl
Guard of ;; I=. ~2~. it e a States, ccr-streS$h officer
personnel shall be tclkn fron the ;i3tioml Guard
33 far as.practicabie,2nd r‘s2 t33 purpose Of this
erps..nsion mrral;t O;'fiCclSS rd eaiisted aen of
the Sistional h.rd ;~y, in tizLeof PWCE, be ap-
pointed officer3 in the Xntional Guard of the United
states a3d comissionad 'inthe Army of 'United
Ltates."
The,provisionsof the Constitutionof.the State
of ?exas bearing up03 your ~uastiocs ere as follo:?s:
.nSc~iion lE, krticla 16. No mzber of Congzass,
nor person holding.or exercising say office of pro-
fit or trust, Uyler tho United States, or either of
thes, or uader shy Zoreigr,power, shall be .eligible
,,as a z;lber of *&,aLegislut;lre
, or hold or axeroise
any office of profit or trust under this state."
Wection 33, Articlo.16. The accounting of-
ficers of this State s&ill neither dr3vjnor >ay
3 I'JDEailZ u_oonthe treasury in fsvor of any person,
for sel3ry or co:ngcnsation as ageat, officer or
ap$okiteo, w:;oh:;lds3t on the treasury sh311 not a?.nlyto ofricers of
the N3tional Guard of Terss, the National Guard
Reserve, the Officers Reserve Corps of the 'Jnited
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Ronorable J. 'tiatt
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States, or to,enlisted men of the Xntional Guard,
the Xational Guard Reserve, and the Organized
Rese-es of the United States, nor to retired of-
ficers of the United States Army, Navy, and Marine
corps, and retired warrant officers and retired
enlisted .menof the United States Army, Navy, and
LtirineCorps.n
"Section 40, ilrticle2.6. No person shall
hold'or exercise, at the same tims, more than one
civil office of eJolu.leiit,except that of Justice
of leace, County Comtissioner,Notary Rublic and
?ostz.aster, Officer of the i\iati.onal
Guard, the
National Guard Reserve, and the Officers Reserve
Corps of the United States and enlisted men of the
';~"ipe~
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, the X~tiorzL Gxrd ?.eserve,cad
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re;ireZ officers of she United States Army Iiavy,
and Xsrine Corps, and retired warrant offi.Aers,
and retired enlisted men of the United States
Army, Navy, and Larine Corps, unless otherwise
.speciallyprovided herein. .?rovided,,that nothing
in this Constitution shall.be construed to prohibit
an officer or enlisted ;1anof the National Guard,
and the Rational Guard seserve, or an officer in
the Officers Reserve Corps of the United States,
or an enlisted man in the Organized tieservesof the
United States; or retired officers of the United
States Army, Navy, and Zarin~eCorns, and retired
warrant officers, and retired enlisted msn of the
United States Army, Navy, and ibrine Corps, from
holding in conjunctionwith such office any. other
office or position of -honor trust or profit, un-
der this State or the United States, or from voting
at any election, general, special or primary, in
this State when otherwise qualified.**
Since Article 16, Section 40 has applicationonly
to the hoiding of~two l'civil"offices of emolument, that
section of the Constitutiondoes not apply to the situation
vkich you present. Zx parte Dailey, (Texas Criminal Appeals)
246 S.K. 91.
Article 16, Section 12, and Artiole 16, Section
33, however, are not linited in their application to "oivil"
offices.
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Eonorable J. -:'att
?age, ?age 6
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C'henan Officer or an enlfsted man fn the National
Guard of the .Stateof Texas is called into thG active military
service ~ofthe United States, from the date that such officer
Or enlisted ran in the i~ationnlGunrd of tho State~of Texas
is m'usteredinto the active military service of the United
Sb?teS he is relieved from duty in ths Nstional Curd of the
Pisate Of Texas and ceases to be a member of that orgsnization..
If hG holds nn office of profit or trust under this State,.
2nd by virtue of having been ordered ?nto tke active military
service Of tho United States he acqtiires and holds or exer-
CiSGS an Office Gf r;rOfit or trur;t in the active dlitary
service of the United Statss, under the provisions of Article
16, kCtiOn 3.2, Of OUT State CGnstitutiGn, h.e autGm&tically
vacates the office which he holds under this State. Lowe
VS. State, 83 Texas Criminel ZGsorts, 134, ,201S.::'. 986;
Fekota vs. City of Zest St. Louis, 315 Ill., 58, 145 N.E:,092.'
Quoting from the case last above cited:
nAftn$ She plaintiff was inducted into the United
States Army he ceasGd to be a r.ember of the 1Xlitia,
and tke provision in the Constitutionthat appoint-
rmnts in that organization should cot bc considered
lucrative can have no apglicoticn.~~
Each of the question's v?hicti
you have presented
therefore, must be answered in t.hGnegative,
You have limited yo;lrquestions to thG situation
v,herea gstional Guardsman holding an "office* under this
State by virtus of the greeidentialon11 acquires sn '~0ff.i~~'~
in the active militsry service of the UEited States, and
ouropinion above has reference only to that situstlon. Hovr-
ever the ,followingfeet situations,we feel, should be OOn-
sidered:
1, ~ssu~le that i Kational Gusrdsnan holding a
State *~office~~ ke pesidential call ecquires,
by virtue of t.,"
I;ot an ~~offiCG*~ of profit or trust, but a W~ositiOn~~of
honor, trust or pofit in the active,militarysarvice or the <
United States. TO ty.Ls situo:tSon,Article 16, Zectioc 12,
of the Constitution,does not api~ly,and the Stats office
?7OUldnot be forfeited. i?owev er, so fans as tix "gosition**
Gf hOZlOr, trust or ~r0fj.t be hold under the United States,
under J,rticle10, section 33, of the Constitution,the ac-
coutin~ officers of the State are 3rohibitcd from drowin&
-.. gsying ,y y:errart upon the treesury for the salery.or Com- :
i&ation attaching-tothe State "office.!'
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Xonoiable 5. ':'att
?cge, Tace 7
2. dssmo
that a Xntionel Wardsan is an nom?loy~en
of the Xoto,&mi by
virtue of t&? prcsidectial caii, nc.;ulr*s
an "office" or ff30sitionf'of "hon.or,trust or profit** in the
a ctivc riilitaryiervics of ihlr:i'nitedSt3tcs. To this situa-
tion ?yticl,e16, Section 12 of the coastitutiondoes m t apply,
end tileendoyee Of the S-bate?:ouldnot thereby automtically
loss his 5tate eqloyxxt. ,U.owever,30 long as the wofficelz
or 9ositionf1of "ho;lor,trcst'or yrofitB1in the active nilitary
service of the United States is held, under Article 16, Section
33, of the Constitution,the accounting officers or the State
of Texas are Fzohibited fro- drawiq: or Taying a vrorrantu?on,'
the treasury for salary or coxpansationattachinG.tothe State
employzzent.
BCT a discussion,ofSection 33, Article 16, of the
Constitution;in its application ",ot5e holding,oi'tvropod-
tj.onsat the sane ti.xe,see our C?iziol Ko. o-2607, attaohed
heroto.
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Richard i?:'.
Fairchild
Assistant