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 ofuse of National Guard facilities by civilian groups. Dear General Bishop:

The Adjutant General’s Department has received several requests to 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 ofarmory 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 ofState military forces permit the use ofarmory facilities bythe civil air patrol cadets, Boy Scouts ofAmerica, Girl Scouts, and other youth groups when in the State’s judgment such use is practical, supports the public purpose ofaState militia and entails noadditional expense to the State.

The Adjutant General controls the military department ofTexas and all matters pertaining tohis 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 ofthe Texas National Guard as an adjunct of the State militia. Texas Constitution art. 4, 57;V. T. C.S. art. 5765, $4; V. T. C.S. art. 5780, $2; V. T. C.S. art. 5781, $4.

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

The Adjutant General is given the power to lease or sublease buildings “to beused 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 towhich his departme~nt is subject. V. T. C.S. art. 5781, $8.
We conclude that it is within the discretion ofyour department, subject to orders or regulations ofthe Governor and Armory Board, to authorize the use ofarmory facilities by the Civil Air Patrol, Boy Scouts ofAmerica, Girl Scouts and other youth groups ifyou determine, as a factual matter, that such use ofarmory facilities promotes the proper public purpose ofthe State militia.
In making this determination you are entitled to give some weight to federal regulations relating touse ofNational Guard facilities, since the federal government, provides 75%ofthe construction and maintenance costs ofNational Guard Armories in Texas. Its regulations authorize use ofthese facilities byyouth groups, when the state adjutant general determines such uses are practical. See Departments ofthe 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 ofthe Guard individually, or state employees individually, as a result ofdeath or injury tomembers ofthe Civil Air Patrol, Boy Scouts or other youth groups while using National Guard facilities. Liability for tortious conduct always will depend on the facts ofeach particular case. Without being presented with aparticular fact situation we can discuss your questions only in the terms ofgeneral rules, and it should be understood that the application ofthe general rules and any exceptions which might apply will be governed bythe facts ofany specific case. Generally, the State of Texas is immune from liability unless permission to be sued has been given. Texas Highway Dept. v. Weber, 219S.W. 2d 70 (Tex. Sup. 1949); Davis v. County ofLubbock, 486 S.W. 2d 109(Tex. Civ. APP. --Amarillo 1972, nowrit). The Texas Tort Claims Act, article 6252-19, V.T.C.S.. constitutes awaiver 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 ofthe activities ofthe National Guard, the State Militia, or the Texas State Guard, when onactive 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 bythem while in the discharge oftheir duty after being ordered by proper authority into active service ofthe State. Sec. 8, amended byActs 1973, 63rd Leg., p. 988, ch. 399, eff. Jan. 1, 1974. See V. T. C.S., art. 5783, $1. - 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 ofpublic officers, agents or employees ofgovernment from tort claims, butpreserves such immunity to the extent that such persons are presently immune. V. T. C.S. art. 6252-19, 515.

Responding toyour specific questions, the Governor as Commander in Chief ofthe State Militia, the Adjutant General and unit commanders and individual guardsmen would enjoy the protection against tort liability afforded by section 8ofarticle 5765, V. T. C.S. for injuries to others when arising out ofthe lawful performance oftheir duties while in active military service tothe State.

Although we believe section 8ofarticle 5765 is intended tofully protect officers and members ofthe State Military, individually, for liability from any act while in the discharge oftheir military duties, and while section 14(6) ofarticle 6252-19 retains the State’s immunity from suit for injuries arising out ofmilitia 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~tehas breached the duty it owes to licensees onState property. See V. T. C.S. art. 6252-19, $18(b). -

p. 2429. i

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

The duty owed toa licensee is described bythe Supreme Court of Texas in State v. Tennison, 509S.W. 2d 560 (Tex. Sup. 1974) as the duty:

. . . not to injure [a licensee] bywillful, wanton or gross negligence.

. . .An exception to the general rule is that when the licenser has knowledge ofa dangerous condition, and the licensee does not, a duty is owed on the part ofthe 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 tomembers ofyouth groups onarmory property are a result of abreach ofthe State’s duty toward licensees onarmory facilities. Officers and individual guardsmen would not be liable for such injuries.

State employees at armory facilities, as distinguished from National Guardsmen onactive duty, could be individually liable for tortious injuries to members ofyouth groups using Army property whether within the scope oftheir employment or not if proximately caused by their negligence. The State could be liable for the tortious conduct ofsuch employees if the act resulting in the injury is within the scope oftheir employment and otherwise cognizable under section 3ofthe 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 ofits 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, ifthe act causing the injury is within the scope oftheir federal employment. The exclusive remedy in such case is against the federal government. 28U.S. C. Sec. 2679; Nova v. U.S., 411F. 2d 943 (9th Cir. 1969), cert. denied 396 U.S. 841 (1969). If not within the scope oftheir employment federal technicians would be individually liable, and the State of Texas would not ordinarily be responsible for the consequences oftheir acts.

p. 2430Major 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 ofayouth group, or bytheir parents or guardians.

The Supreme Court ofTexas, considering the validity ofan exculpatory clause in alease agreement with apublic housing authority, has had this to say:

Agreements exempting aparty from future liability for negligence are generally recognized as valid and effective except where, because ofthe relationship of the parties, the exculpatory provi,sion is contrary to public policy or the public interest. Ifthe contract is between private persons who bargain from positions ofsubstantially 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 ofDallas, 495 S.W. 2d 887 (Tex. sup. 1973). The clause required by the Housing Authority was said to be a classic example ofunequal 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, andjoining his troop, or not signing and thereby forfeiting the privilege of sharing in a valuable training program, could present another situation ofunequal bargaining power and force ayoung person or his parent to make a difficult choice while unaware ofthe risks which might accompany aprolonged visit toa 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 topermit the use ofArmory facilities bythe Civil Air Patrol,

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

Boy Scouts and other groups ifhe determines that such use is practical, promotes the public purpose ofaState militia, and entails noadditional expense tothe State. The State may be liable under certain circumstances for injuries arising from abreach of its duty toward licensees on armory property, and for certain injuries proximately caused byState employees acting within the scope oftheir state employment. An exculpatory agreement executed bymembers ofayouth 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 ofthe State and that ofits officers and employees always will depend on the facts ofany particular case. Very truly yours,

Attorney General of Texas APPROVED:


### Lfq DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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