February 26, 1975 

Major General Thomas S. Bishop 

The Adjutant General of Texas 

P. 0. Box 5218 

Austin, Texas 78763 

Opinion No. H- 540 

Re: Legality of use of 

National Guard facilities 

by civilian groups. 

Dear General Bishop: 

The Adjutant General’s Department has received several 

r e q u e s t s t o us e national guard and air ‘natiotial guard facilities 

for various purposes including Civil Air Patrol encampment, Boy Scount 

Posts and other youth group activities. 

The Adjutant General’s first question is whether or not his 

Department is authorized to permit use of armory facilities for such 

purposes, and whether state funds may be used to pay utility and maintenance costs incu@red by such groups while utilizing armory facilities. 

We think both federal regulations applicable to National Guard 

units and Texas statutes governing control and command of State military 

forces permit the use of armory facilities by the civil air patrol cadets, 

Boy Scouts of America, Girl Scouts, and other youth groups when in 

the State’s judgment such use is practical, supports the public purpose 

of a State militia and entails no additional expense to the State. 

The Adjutant General controls the military department of Texas 

and all matters pertaining to his department and the military forces of 

this State. He is subordinate only to the Governor, who, as Commanderin-Chief, has constitutional and statutory authority to issue regulations and 

orders governing the affairs of the Texas National Guard as an adjunct of 

the State militia. Texas Constitution art. 4, 5 7; V. T. C. S. art. 5765, $4; 

V. T. C. S. art. 5780, $2; V. T. C.S. art. 5781, $4. 

p. 2427 
Major General Thomas S. Bishop, page 2 (H- 540) 

The Adjutant General is given the power to lease or sublease 

buildings “to be used for armory and other proper purposes . . . . ” 

V. T. C.S. art. 5781, $4. He may prescribe regulations controlling its 

use so long as it is not inconsistent with the laws or orders to which his 

departme~nt is subject. V. T. C.S. art. 5781, $8. 

We conclude that it is within the discretion of your department, 

subject to orders or regulations of the Governor and Armory Board, to 

authorize the use of armory facilities by the Civil Air Patrol, Boy Scouts 

of America, Girl Scouts and other youth groups if you determine, as a 

factual matter, that such use of armory facilities promotes the proper 

public purpose of the State militia. 

In making this determination you are entitled to give some weight 

to federal regulations relating to use of National Guard facilities, since 

the federal government, provides 75% of the construction and maintenance 

costs of National Guard Armories in Texas. Its regulations authorize use 

of these facilities by youth groups, when the state adjutant general determines such uses are practical. See Departments of the Army and the Air 

Force, National Guard Regulations No. 735-12 and Air National Guard Regulations No. 67-l (Jan. 26, 1973). 

You have also askedwhat legal liability would be incurred by the State 

of Texas, or members of the Guard individually, or state employees 

individually, as a result of death or injury to members of the Civil Air 

Patrol, Boy Scouts or other youth groups while using National Guard facilities. 

Liability for tortious conduct always will depend on the facts of each particular case. Without being presented with a particular fact situation we can 

discuss your questions only in the terms of general rules, and it should be 

understood that the application of the general rules and any exceptions which 

might apply will be governed by the facts of any specific case. 

Generally, the State of Texas is immune from liability unless permission 

to be sued has been given. Texas Highway Dept. v. Weber, 219 S. W. 2d 70 

(Tex. Sup. 1949); Davis v. County of Lubbock, 486 S. W. 2d 109 (Tex. Civ. 

APP. --Amarillo 1972, no writ). 

The Texas Tort Claims Act, article 6252-19, V.T.C.S.. constitutes 

a waiver of sovereign immunity and grants permission for suit against the 

State under certain circumstances. 

p. 2428 
. . 

Major General Thomas S. Bishop page 3 (H- 540) 

The Act, however, preserves the State’s immunity against: 

[a]ny claim arising out of the activities of the 

National Guard, the State Militia, or the Texas 

State Guard, when on active duty pursuant to 

lawful orders of competent authority. (Art. 6252-19. 

$6). 

Article 5765, V. T. C. S., extends immunity to members, individually, of 

the State Military Forces for any acts or acts done by them while in the 

discharge of their duty after being ordered by proper authority into active 

service of the State. Sec. 8, amended by Acts 1973, 63rd Leg., p. 988, 

ch. 399, eff. Jan. 1, 1974. See V. T. C. S., art. 5783, $1. 

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The Texas Tort Claims Act also preserves sovereign immunity from 

claims arising from intentional torts, article 6252-19, section 14(10), and 

does not remove the individual immunity of public officers, agents or 

employees of government from tort claims, but preserves such immunity 

to the extent that such persons are presently immune. V. T. C. S. art. 

6252-19, 5 15. 

Responding to your specific questions, the Governor as Commander 

in Chief of the State Militia, the Adjutant General and unit commanders and 

individual guardsmen would enjoy the protection against tort liability afforded 

by section 8 of article 5765, V. T. C. S. for injuries to others when arising 

out of the lawful performance of their duties while in active military service 

to the State. 

Although we believe section 8 of article 5765 is intended to fully 

protect officers and members of the State Military, individually, for liability 

from any act while in the discharge of their military duties, and while 

section 14(6) of article 6252-19 retains the State’s immunity from suit for 

injuries arising out of militia activities, it is our opinion that the Texas 

Tort Claims Act (art. 6252-19) has waived the State’s immunity from suit 

for death or injuries proximately caused from some condition or use of 

tangible property, real or personal, when the Sta~te has breached the duty 

it owes to licensees on State property. See V. T. C.S. art. 6252-19, $18(b). 

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p. 2429 
. i 

Major General Thomas S. Bishop page 4 (H-540) 

The duty owed to a licensee is described by the Supreme Court of 

Texas in State v. Tennison, 509 S. W. 2d 560 (Tex. Sup. 1974) as the duty: 

. . . not to injure [a licensee] by willful, wanton or 

gross negligence. . . . An exception to the general 

rule is that when the licenser has knowledge of a 

dangerous condition, and the licensee does not, a 

duty is owed on the part of the licenser to either warn 

the licensee or to make the condition reasonably safe. 

The State could be sued and held liable for money damages if 

injuries to members of youth groups on armory property are a result of 

a breach of the State’s duty toward licensees on armory facilities. 

Officers and individual guardsmen would not be liable for such injuries. 

State employees at armory facilities, as distinguished from National 

Guardsmen on active duty, could be individually liable for tortious injuries 

to members of youth groups using Army property whether within the scope 

of their employment or not if proximately caused by their negligence. The 

State could be liable for the tortious conduct of such employees if the act 

resulting in the injury is within the scope of their employment and otherwise 

cognizable under section 3 of the Texas Tort Claims Act. Art. 6252-19, 

m. An individual who successfully prosecutes a claim against the State 

for injuries caused by the tortious conduct of its employees, is thereafter 

barred from asserting the same claim against the employee, individually. 

V. T. C.S. art. 6252-19, $12. 

You also ask whether National Guard Technicians, who are federal 

employees paid to assist the Texas National Guard (32 U.S. C. Sec. 709), 

would be liable, individually for their torts. The answer is no, if the act 

causing the injury is within the scope of their federal employment. The 

exclusive remedy in such case is against the federal government. 28 U.S. C. 

Sec. 2679; Nova v. U.S., 411 F. 2d 943 (9th Cir. 1969), cert. denied 396 

U.S. 841 (1969). If not within the scope of their employment federal technicians would be individually liable, and the State of Texas would not ordinarily 

be responsible for the consequences of their acts. 

p. 2430 
Major General Thomas S. Bishop page 5 (H-540) 

Finally we are asked if the State, its officers, employees and 

guardsmen can protect against ,tort liability if an agreement to that effect 

is executed by each cadet, scout, or other member of a youth group, or 

by their parents or guardians. 

The Supreme Court of Texas, considering the validity of an 

exculpatory clause in a lease agreement with a public housing authority, 

has had this to say: 

Agreements exempting a party from future liability 

for negligence are generally recognized as valid and 

effective except where, because of the relationship of 

the parties, the exculpatory provi,sion is contrary to 

public policy or the public interest. If the contract is 

between private persons who bargain from positions 

of substantially equal strength, the agreement is 

ordinarily enforced by the courts. The exculpatory 

agreement will be declared void, however, where 

one party is at such disadvantage in bargaining power 

that he is practically compelled to submit to the stipulation. 

Crowell v. Housing Authority of City of Dallas, 495 S. W. 2d 

887 (Tex. sup. 1973). 

The clause required by the Housing Authority was said to be a classic 

example of unequal bargaining power and therefore invalid. We believe that 

a cadet or Boy Scout confronted with the choice between signing the 

exculpatory agreement, assuming he has power to do so, and joining his 

troop, or not signing and thereby forfeiting the privilege of sharing in a 

valuable training program, could present another situation of unequal bargaining 

power and force a young person or his parent to make a difficult choice 

while unaware of the risks which might accompany a prolonged visit to a 

National Guard Armory. For these reasons, a release from liability 

might not, in our opinion, protect the State, its officers, or employees 

any further than the statutes protect them already. 

SUMMARY 

The Adjutant General has authority to permit 

the use of Armory facilities by the Civil Air Patrol, 

p. 2431 
Major General Thomas S. Bishop, page 6 (H-540) 

Boy Scouts and other groups if he determines that 

such use is practical, promotes the public purpose 

of a State militia, and entails no additional expense 

to the State. The State may be liable under certain 

circumstances for injuries arising from a breach of 

its duty toward licensees on armory property, and 

for certain injuries proximately caused by State 

employees acting within the scope of their state employment. An exculpatory agreement executed by members 

of a youth group or by their parents might not protect 

the State from~‘fiiture liability for its negligence any 

further than the State, its employees, or military 

personnel are presently protected by statute. The 

liability of the State and that of its officers and 

employees always will depend on the facts of any 

particular case. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

Lfq 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2432