AunTIN. EXAB 7-7 September 8, 1966

Major General Thomas S. Bishop The AdjutantGeneral OS Texas OpinionNo. C-755 Camp Mabry Re: Whether the Governor Austin, Texas of Texaa can issue regulationa,under the authorityof Art. 5780, Sec. 2; Art. 5765, Sec. 4; and under his con6titutional

authority aa Commander In Chief, giving the.Adjutant General'sDepartment authority to.enter into an agreementwith the NationaLGuard Bureau and the United States Air Force for the operationof EllingtonAir,

Force Base as the host orgsnizafion,financed out of lOO$ Federal funds, without going through or being lnvolvedwith 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 AttorneyGeneral's opinion ia brought about by a change of circumstances at EllingtonAir Force Base. Recently, the Secretaryof 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 EllingtonAir 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 -3627-Major General Thomas S. Bishop, page S (C-755)

be transferredfrom the Continental Air Coumaud to the Texas Air National Guard. The acceptance of hont responsibility at Ellingtonwould 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,leaveseveral 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 Aeronauticsand Space Admlniatration, a United States Coast Guard Unit, an OS1 Detachment,and an Air Force Advisor'sDetachmentend other small units. If the State of Texas assumes this reaponslblllty, the National Guard Bureau has indicated Its willingnessto Sinance this operationout OS lOO$ Federal funds. No State fundswould be obllgated~bythe assumptionof 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-TenantAgreements, licenaiug,Service Contracts,repairs, and construction

had to go through the Texas Natlonal Guard Armory Board and the bidding process requiredby State Law with regard to such projects. ,I

. . . "Your opinion ia respectfully requestedas to whether the Governorof Texas c&n issue regulations

. . . giving the Adjutant General's Departmentauthority to enter into an agreement with the National Guard Bureau and the United States Air Force for the operationof Ellington Air Force Base as the host organization,financed out of lOO$ Federal funds, without going through or being involvedwith the proceduresof Article 5767, Vernon's Civil Statutesof 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 assistingthe Adjutant General and the Governor in acquiring,constructing, renting, controlling, maintaining,and operatingall Texas National Guard Armories0 ,-3628-. .

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 codifieda6 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 particularpurpose6.” We said that

. , ‘.the Legislature intendedthe Act to have a dual purpose. The first purpose wa6 to create an agency, in the abeence of en exlsting agency, with authorityto cooperatewith the United States Government,

by securingavailable federal funds to. construct National Guard Armories in the State. The secondpurpose of the Act in effect made the Armoky’B~ardthe 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 exhaustivehi8torlcalsummation,see Attorney General OpinionsO-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 vestedwith both, inherent and expre66 Constitutional and statutorypower6 in the goveming, organizing,and trainingof 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 regulationsas 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-suchregulations, which shall be in aacordancewith this ChaDter,and conform as near as practicableto 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 reorganizeany Dortion of the Texas National Guard or the re6erve militia, and he shall have Sull control and authorityover 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 consistingof the Adjutant General,asralstants, -3629-.

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

and various others designatedtherein,

In view of the broad powers vestedboth lmpliedly and expressly in the Governor of Texas by the Constitution and statutes,6,nd

aster consideration of the statutorypxovision6pertaining 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 regulatingor operatinga military air base owned, Supportedand maintained lOO$ by the Federal Governmentsuch as that contemplated at ElllngtonAir Force ‘Base, it is hour opinion that Article 5767, Vernon’s Civil Statutes,does not apply to agreementsmade under the above stated factual situation. Further, it Is our opinion that the Governor of Texas Is authorizedto make the agreement,or direct that it be done, and the AdjutantGeneral can carry out the agreementunder the consent and directionof the Governor requiringsuch duties.

SUMMARY ------- The Governorof Texas can issue regulations, under the authorityof Art. 5780, Sec. 2~ Art. 5765, Sec. 4; and under his aonetltutionalauthority as Commander in Chief, giving the Adjutant
General's Departmentauthorityto enter into an agreementwith the National Guasd Bureau and the United States Air Force Base as the host organfzation, finanaedout of lOO$ Federal funds,without going through or being involvedwith the proceduresof 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&itA&ney General

R ayl u A%xnte~ttorney GeneralMajor GeneralThomas 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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