THEA~TORNEP GENERAL 

OF TEXAS 

April 17, 1962 

Brigadier General Thomas S. Bishop 

The Adjutant General of Texas 

Austin, Texas 

Opinion No. WW-1313 

Re: Whether the National Quard 

or the State of Texas is 

required to pay additional 

service pay 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 captioned matters 

informs us that fn September of 1961, 1st Lt. Ybarra and SP4 

Alarcon, members of the 141st Infantry, Texas ARNG, were called 

into actfve service of 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 

Disaster Area. 

The next day after their Induction, both men were 

Injured in the line of duty, which finding has the approval 

of the Adjutant General of Texas. Subsequent to their injuries, 

both were hospftalized in the U. S. Naval Hospital at Corpus 

christi. Your letter informs us that at the present time the 

hospital has been paid, but thet it is possible that further 

treatment or rehospitalization of these men may be necessary. 

The specific questions asked by you are as follows: 

"1 * Is the National Guard or the State of 

Texas required to pay additional military service 

pay or additional medical 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 either pay 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 either pay and allowances or medical and 

hqspital expenses, fs there any other factor 

which llmits or eliminates further such payments? 

If so, what are said factors and how are they 

applied? 

II '. 4, In the event there results permanent 

or temporary, total or? partial disability to 

either injured person, what benefits or privlleges are they entitled to receive and what 

recovery may 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 circumstances must 

said disbursements be made?" 

Article 5845 of Vernon's Civil Statutes states as 

follows: 

"(a) Every member of the military forces 

of this State who shall be wounded, disabled or 

Injured, or who shall contract any disease or 

Illness, in line of duty while In the service of 

this State in case of riot, tumult, breach of the 

peace, resistance to process, Invasion, lnsurrection, or imminent danger 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, shall be 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 such wounding, disability 

and necessary traniiporil the resulting dlsablllty cannot be materially Improved by further 

hospitalization or treatment, and shall receive 

the same pay and allowance whether in money or In 
. . 

Brig. Gen. Thos. S. Bishop, page 3. mw-1313) 

kind, to which he was entltled at the time when 

the injury was 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 deceased would have been entitled and to his accrued 

pay and allowances and compensation or reimbursement 

for actual funeral expenses not to exceed the sum 

of Five Hundred Dollars ($500), such compensation or reimbursement, 'as well as the cost of 

carrying out the other provisions of this Article, 

shall be 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 compensation or relmbursement shall be paid In any case where 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 Inconsistent with 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 General after proper lnvestlnation and hearing pursuant to such regulations as 

he may prescribe." (Emphasis 

Article 584% states as 

added) 

follows: 

"The provisions of this 

be construed to be a gratuity 

Act shall In no wise . . _-_ but mall De construed to be compensation for services for which 

each member of the military forces of this State 

shall be deemed to have bargained for and consldered as a condftlon of his enlistment and employ- 

-." (Emphasis added) 

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 improved by 

further hospitalization or treatment."' This phraseology evidences to us that Injured members shall receive the benefits 
Brig. Gen. Thos. S. Bishop, page 4. (hW-1313) 

provided until they 

disability, Injury, 

have completely recovered from their 

disease or illness, or until In such _. - 

cases that may arlse, a medical expert advlses you that the 

particular member "cannot be materially improved by further 

hospitalization or treatment." 

vides for "rehospltallzatlon,~ 

The statute specifically protherefore, you are advised that 

the members in question must 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 recelvlng hospitalization, medical and surgical care, and we cannot Infer one. 

As to your second question, may we again quote from 

Article 5845 In part as follows: 

0 

whether 

and shall receive the same pay and allowance 

In money or In kind, to which he was entitled 

at the time when the inlurv was 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 . . 

(Emphasla added) 

It has been stated that the members In question In 

this oplnlon were ordered Into active service for only two (2) 

days. Since their injuries were 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 restriction placed on 

hospltallzatlon, medical and surgical care, the Legislature 

did provide that a member, during the period of his dlsablllty 

may receive the same pay and allowance "but not 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 receive pay 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 compensation until they have received same 

for "a total of slx (6) months." (Emphasis added) 

The conclusions reached by us make It unnecessary 

to answer your third question. 

As to your fourth question, Article 5845 does not 

provide for various degrees of dlsablllty or Incapacity, but 

only provides f"or benefits "until the resulting dlsablllty 

cannot be materially lmproved by further hospitalization or 
Brig. Qen. Thos. S. Bishop, page 5. (W-1313) 

treatment." (Emphasis added). We assume your Inquiry 18 to 

whether or not a member recefvlng injuries rendering him partially or totally Incapacitated ma 

8 

recover other benefita 

than those prescribed by Article 5 45, either periodically or 

by a lump sum. We have not found, nor are we aware of' any 

laws whereby the Adjutant General's Department may carry any 

type of coverage providing 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 5845 to receiving hia pay and allowance for a total period of six (6) months and all of his 

hospitalization, medical and surgical care until cured or 

until a medical expert advises you that "the resulting dlsability cannot be materially Improved by further hospltallzatlon or treatment." 

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

gEMMARY ----- 

Under the terms of Article 5845 of Vernon's 

Civil Statutes, If a member of the mllltary forces of the State or Texas Is wounded, 

disabled or Injured, or haa contracted any 

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 Improved by further hospltallzatlon 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,way whereby such 

a member may 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: Houghton Brownlee, Jr.