AunTIN. EXAB 7-7 

September 8, 1966 

Major General Thomas S. Bishop 

The Adjutant General OS Texas 

Opinion No. C-755 

Camp Mabry Re: Whether the Governor 

Austin, Texas of Texaa can issue 

regulationa, under 

the authority of 

Art. 5780, Sec. 2; 

Art. 5765, Sec. 4; 

and under his con6titutional authority 

aa Commander In Chief, 

giving the.Adjutant 

General's Department 

authority to.enter into an agreement with 

the NationaLGuard 

Bureau and the United 

States Air Force for 

the operation of 

Ellington Air, Force 

Base as the host 

orgsnizafion, financed 

out of lOO$ Federal 

funds, without going 

through or being lnvolved with the procedurea of Art. 5767, 

Dear Sir: V.C.S. 

Your opinion request in regard to the above matter. 

reads, In part, as Sollows: 

n 

. . . 

"The request for thia Attorney General's 

opinion ia brought about by a change of circumstances at Ellington Air Force Base. Recently, 

the Secretary of Deiense and, under his direction, 

the National. Guard Bureau, advised the State of 

Texas that there would be an inactivation of certain United States Air Force Reserve Units at 

Ellington Air Force Bare. These are the unit,z '~' ,' 

that had host jurisdiction and responsibility 

in the past. With the Inactivation of thcee 

units, The National Guard Bureau haa requested 

that the base juriediction or host responsibility 

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Major General Thomas S. Bishop, page S (C-755) 

be transferred from the Continental Air Coumaud 

to the Texas Air National Guard. The acceptance 

of hont responsibility at Ellington would be pursuant to a permit or license to control the property. The Texas Air National Guard would not 

purchase or acquire the realty. The proposal 

would atill,leave several small units on the base, 

and these units would be tenants of the Texas 

Air National Guard and/or the Adjutant General's 

DepartJaent. These unita include the National 

Aeronautics and Space Admlniatration, a United 

States Coast Guard Unit, an OS1 Detachment, and 

an Air Force Advisor's Detachment end other small 

units. If the State of Texas assumes this reaponslblllty, the National Guard Bureau has indicated 

Its willingness to Sinance this operation out OS 

lOO$ Federal funds. No State funds would be 

obllgated~by the assumption of this reeponeiblllty. Howe ve,r ,since NASA, the Coast Guard, 

and other units are involved, it is felt that 

the~problems of operating this base under the 

jurisdietlon of the Adjutant General for Air 

would be Ii&possible ifall Host-Tenant Agreements, licenaiug, Service Contracts, repairs, 

and construction had to go through the Texas 

Natlonal Guard Armory Board and the bidding 

process required by State Law with regard to 

such projects. 

,I . . . 

"Your opinion ia respectfully requested as 

to whether the Governor of Texas c&n issue 

regulations . . . giving the Adjutant General's 

Department authority to enter into an agreement 

with the National Guard Bureau and the United 

States Air Force for the operation of Ellington 

Air Force Base as the host organization, financed 

out of lOO$ Federal funds, without going through 

or being involved with the procedures of Article 

5767, Vernon's Civil Statutes of Texas. a a . 

‘1 II . . . 

Article 5767, Vernon's Civil Statutes, creating the 

Texas National Guard Armory Board, a body politic and corporate, 

was enacted for purposes of assisting the Adjutant General and 

the Governor in acquiring, constructing, renting, controlling, 

maintaining, and operating all Texas National Guard Armories0 

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. . 

Major General Thomas 9. Bishop, page3 (C- 755)~ 

In Opinion No. O-5752 (lgu), this office construed 

the above Act, which had been amended in 1937 and codified a6 

Article 58gGb, Vemontm Civil Statutes, in order to determine 

the legal rtatus and ptrpose of the Board. It was held that 

the Board was created . . . to act a6 the alttr ego,of the 

State for particular purpose6.” We said that . , ‘. the Legislature intended the Act to have a dual purpose. The first 

purpose wa6 to create an agency, in the abeence of en exlsting agency, with authority to cooperate with the United States 

Government, by securing available federal funds to. construct 

National Guard Armories in the State. The second purpose of the Act in effect made the Armoky’B~ard the managing 

agency of the State in respect to all Texan National Guard 

property. . . . The two purpod)es, 

are not in conflict .‘I 

as we have expres,sed them, 

For mere exhaustive hi8torlcal summation, see 

Attorney General Opinions O-5695 (1943), O-5752 (1944) and 

o-7398 (1946). _* 

By virtue of his office, the Governor of the State 

OS Texas, a6 Comder-in-Chief, is vested with both, inherent 

and expre66 Constitutional and statutory power6 in the goveming, organizing, and training of the State Milltla. Article 

IV Sectlon 7, Constitution of Texas; Articles 5765,,5768, 

5780, Vernon’s Civil Statutes; 57 C.J.S. 1086-1087, Militia, 

Section 10; 6ee Article XVI, Section 46, Constitution of 

Texas. 

Section 2 of Artiale 5780, Vernon’6 Civil Statutes, 

reads as Sollows: 

"Sec. 2. The Governor shall preracribe such 

regulations as he may 8ee fit for the organization 

s the .Texas Wational, Guard; and he shall from 

time to time. as he may deem for the best’interests 

of the service, change-such regulations, which 

shall be in aacordance with this ChaDter, and 

conform as near as practicable to the organization 

OS the Armed Forcea of the United States. He may, 

at any time for aauae deemed good 6nd aulfficient by 

him, kster out of the service or reorganize any 

Dortion of the Texas National Guard or the re6erve militia, and he shall have Sull control and 

authority over all matters touching the military 

force6 of thin atate its orp;anizatlon, equipment 

and discipline. ” (E&hasis added. ) 

By Section 4 of the above Article, the Governor le 

provided a staff consisting of the Adjutant General, asralstants, 

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. 

Major Gimeral !Chkae 9. Bishop, page 4 (C-755) 

and various others designated therein, 

In view of the broad powers vested both lmpliedly 

and expressly in the Governor of Texas by the Constitution 

and statutes, 6,nd aster consideration of the statutory pxovision6 pertaining to the Adjutant General of Texas and being OS the opinlon that Article 5767, Vernon’s Civil Statutes, 

was not created, designed, nor intended to provide a procedure for regulating or operating a military air base owned, 

Supported and maintained lOO$ by the Federal Government such 

as that contemplated at Elllngton Air Force ‘Base, it is hour 

opinion that Article 5767, Vernon’s Civil Statutes, does 

not apply to agreements made under the above stated factual 

situation. Further, it Is our opinion that the Governor 

of Texas Is authorized to make the agreement, or direct 

that it be done, and the Adjutant General can carry out the 

agreement under the consent and direction of the Governor 

requiring such duties. 

SUMMARY ------- 

The Governor of Texas can issue regulations, 

under the authority of Art. 5780, Sec. 2~ Art. 

5765, Sec. 4; and under his aonetltutional authority as Commander in Chief, giving the Adjutant 

General's Department authority to enter into an 

agreement with the National Guasd Bureau and the 

United States Air Force Base as the host organfzation, finanaed out of lOO$ Federal funds, without going through or being involved with the procedures of Art. 5767, V,C.S. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

AMr rat dh 

BY8 

By: 

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(-Y@Lwcv\~ 

Al H Mint 

AS~iat&it A&ney General 

R ayl u 

A%xnte~ttorney General 
Major General Thomas 5. Bishop, page 5 (C-755) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairnun 

Kerns Taylor 

J. C. Davis 

Cbrdon Rouser 

Robert Flowers 

APPROVED FOR THE ATTORNEY OENERAL 

BYI T. B. Wright 

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