## THEA~TORNEP GENERAL OF TEXAS

April 17, 1962

Brigadier GeneralThomas S. Bishop The Adjutant General of Texas Austin, Texas OpinionNo. WW-1313

Re: Whether the National Quard or the State of Texas is required to pay additional servicepay or additional medical or hospital expenses to or on behalf of servicemen in the event of further treatment or rehospitalization under the facts stated, Dear General Bishop: and related questions.

Your request for opinion on the above captionedmatters informsus that fn Septemberof 1961, 1st Lt. Ybarra and SP4 Alarcon, members of the 141st Infantry,Texas ARNG, were called into actfve serviceof 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 DisasterArea.

The next day after their Induction,both men were Injured in the line of duty, which findinghas the approval of the Adjutant General of Texas. Subsequentto their injuries, both were hospftalized in the U. S. Naval Hospital at Corpus christi. Your letter informsus that at the present time the hospital has beenpaid, but thet it is possible that further treatment or rehospitalizationof these men may be necessary.

The specific questionsasked by you are as follows:
"1* Is the National Guard or the State of Texas required to pay additionalmilitary service pay or additionalmedical 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 eitherpay and allowances or medical or hospftal expenses limited in time to six (6)months, and, (6)months expire? If so,when does the six


## “3 a If the six (6)months does not apply to eitherpay and allowances or medical and hqspital expenses, fs there any other factor which llmits or eliminates further suchpayments? If so,what are said factorsand how are they applied? II '. 4, In the event there resultspermanent or temporary, total or? partial disability to either injuredperson, what benefits or privlleges are they entitled to receive and what recoverymay they effect from the National Guard or the State of Texas or any political subdivlsion thereof? 

## “5.In the event any money is recoverable by the fnjuped persons,what funds are available for disbursements? Under what circumstancesmust said disbursementsbe made?"
Article

## 5845

ofVernon's Civil Statutes statesas follows: "(a) Every member of the military forces of this Statewho shallbe wounded, disabled or Injured, or who shall contractany disease or Illness, in line of dutywhile In the service of this State in case of riot, tumult, breach of the peace, resistance to process, Invasion, lnsurrection, or imminentdanger thereof, or whenever called 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, shallbe entitled to and shall recefve, or be refmbursed for, hospitallzation,rehospitalization,and medical and aurgical cape In a hospital and at his home appropriate for the treatment of suchwounding, disability and necessary traniiporil the resulting dlsablllty cannot be materially Improvedby further hospitalizationor treatment, and shall receive the samepay and allowancewhether in money or **In**. .

Brig. Gen. Thos. S. Bishop, page

## 3. mw-1313)

kind, to which he was entltled at the time when the injurywas 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-hall be entitled to any reimbursement for which the deceasedwould have been entitled and to his accrued pay and allowances and compensationor reimbursement for actual funeral expensesnot to exceed the sum of Five Hundred Dollars ($500), such compensation or reimbursement,'aswell as the cost of carrying out the otherprovisions of this Article, shallbe 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 expenditure of State funds; provided, however9 that no compensationor relmbursement shallbe paid In any casewhere 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 Inconsistentwith law as may be necessary to carry out the provisions of this Act and the decision as to whether any wounding, dfsabllhty, Injury, disease, Illness or death Is In line of duty or aa a result thereof, shall be made by the Adjutant Generalafter proper lnvestlnation and hearingpursuant to such regulations as he may prescribe." (Emphasis
Article 

## 584%statesas added)
follows:
"Theprovisions of this be construed to be a gratuityAct shall In no wise

. . _-_ but mall De construed to be compensationfor services for which each member of the military forces of this State shallbe deemed to have bargained for and consldered as a condftlon of his enlistment and employ- -." (Emphasisadded)
Article 5845 states the desire and Intent of the Legislature that members of the military forces of Texas receive hospitalization,medical and surgical care, etc., "until the resulting dlsablllty cannot be materially improvedby furtherhospitalization or treatment."'This phraseology evidences to us that Injured members shall receive the benefitsBrig. Gen. Thos. S. Bishop,page 4. 

### (hW-1313)

provided until they disability, Injury,have completelyrecovered from their disease or illness, or until In such

_. - cases that may arlse, a medical expert advlses you that the particularmember "cannotbe materially improvedby further hospitalizationor treatment." vides for "rehospltallzatlon,~ The statute specificallyprotherefore,you are advised that the members in questionmust 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 restriction on a member's recelvlnghospitalization,medical and surgical care, and we cannot Infer one.

As to your second question,may we again quote from Article 

### 5845In part as follows: 0 whether

and shall receive the samepay and allowance In money or In kind, to which he was entitled at the time when the inlurvwas incurred or the disease or illness contracted,during the period of his disability but not for more than a total of six 

### (6 months after the end of his tour of duty V

. . (Emphaslaadded)

It has been stated that the members In question In this oplnlonwere ordered Into active service for only two (2) days. Since their injurieswere 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 restrictionplaced on hospltallzatlon,medical and surgical care, the Legislature did provide that a member, during the period of his dlsablllty may receive the samepay and allowance "butnot 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 receivepay and allowance for a period of six 

### (6) months only. If, as In the case In question there is a recurring dlsablllty,and the members had not received pay and allowance for a period of six 

### (6)months, then they may receive additional compensationuntil they have received same for "a total of slx 

### (6)months." (Emphasisadded)

The conclusionsreached by us make It unnecessary to answer your third question.

As to your fourth question,Article 

### 5845does not provide for various degrees of dlsablllty or Incapacity,but onlyprovides f"or benefits "untilthe resulting dlsablllty cannot be materially lmprovedby furtherhospitalizationorBrig. Qen. Thos. S. Bishop,page 

### 5. (W-1313)

treatment." (Emphasisadded). We assume your Inquiry 18 to whether or not a member recefvlng injuries renderinghim partially or totally Incapacitatedma8 recover other benefita than thoseprescribed by Article 

### 5 45, eitherperiodically or by a lump sum. We have not found, nor are we aware of' any lawswhereby the Adjutant General'sDepartmentmay carry any type of coverageproviding for any other benefits and prlvlleges other than thoae enumerated in Article 

### 5845.

You are therefore advised that a member la limited under the terms of Article 

### 5845to receivinghia pay and allowance for a totalperiod of six (6)months and all of his hospitalization,medical and surgical care until cured or until a medical expert advises you that "theresulting dlsability cannot be materially Improved by furtherhospltallzatlon or treatment."

The answer to your fourth questionmakes it unnecessary to answer your last question.

gEMMARY -----

Under the terms of Article 

### 5845of Vernon's Civil Statutes, If a member of the mllltary forces of the State or Texas Is wounded, disabled or Injured, or haa contractedany disease or Illness In the line of duty, he la entitled to hospitalization,rehospltallzatlon, and medical and surgical care until cured or until a medical expert advises that the resulting disability cannot be materially Improvedby furtherhospltallzatlon or treatment. Such member is alao entitled to receive the same pay and allowance 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,waywhereby such a membermay obtain any other type of recovery from the National Guard or the State of Texas.
Yours very truly,

FlX:jkr:zt WILL WILSON y2z-&?(q r2z-&?(q

Fred D. Ward Assistant

APPROVED:
OPINION COMMITTEE
J. C. IXtvls,Chairman
Robert McGee Grady Chandler W. 0. Shultz

REVIEWED FOR THE ATTORNEY GENERAL BY: HoughtonBrownlee, Jr.