### EA Y GENE

Major GeneralThomas S. Bishop Adjutant General of Texas Austin, Texas Opinion No. WW-1390
Re: Whether under Article 5845(a), Vernon's Civil Statutes,the State is liable for pay and allowances and payment for medical treatment due to a Texas National Guardsmanas a result of illness contracted in line of duty, under Dear GeneralBishop: the fact situationgiven.

You have asked this office for an opinion as to whether under Article 5845(a),Vernon's Civil Statutes, the State is liable for pay and allowances and payment for medical treatment due to a Texas National Guardsmanas a result of illness contracted in line of duty, under the fact situation given.

On May 31, 1962,Major Hollowell,a member of Headquarters, 136thAir DefenseWing, Texas Air National Guard, with headquartersat U.S.NavalAir Station,Dallas, Texas, was ordered to attend field training exercises at the Headquarters of saidWing, and was then further ordered to perform dutieswith the Adjutant General'sDepartment, CampMabry, Austin, Texas. While performing duties in Austin Major Hollowell developedan eye ailment, forwhich he was treated at EergstromAir Force Base Hospital as an out-patient. On June 15, 1962,Major Hollowell's trainingperiod ended, and he was permitted to return to his home. Treatment for his eye ailment was continuedwith a specialist in Tyler, under whose care Major Hollowell remains at this time.

Major Hollowell is an attorney, and the doctorswho have treated him have rated him as 100s disabled for the duration of the eye condition. A formal line of duty investigation was conductedupon the order of the Adjutant General,and it was determined that the disease of Major Hollowellwas incurredMaj. Gen. Thomas S. Bishop, page 2 (WW-1390)

in the line of duty, and was not the result of misconduct,

Further informationwas sup under the authority of 32 U.S.Code ilied, to the effect that, 319(b)(2), the Federal Government ispaying for all of the medical servicesprovided to Major Hollowell.

Article 5845(a),Vernon's Civil Statutes,reads as follows: "(a) Every member of the military forces of

this Statewho shallbe wounded, disabled or injured, or who shall contractany 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, insurrection, or imminent danger thereof, or whenever calledupon in aid of the civil authorities, orwhen 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 receive, or be reimbursed for, hospitalization,rehospitalization,and medical and surgical care in a hospital and at his home appropriate for the treatment of suchwounding, disability, injury, disease or illness, and necessary transportation incident thereto until the resulting disability cannotbe materially improvedby furtherhospitalization or treatment, and shall receive the samepay and allowancewhether in money or in kind, to which he was entitled at the timewhen the injurywas incurred or the disease or illness contracted,during the period of his disabilitybut 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 shallbe entitled to any reimbursement forwhich the deceasedwould have been entitled and to his accrued pay and allowances and compensationor reimbursement for actual funeral expenses not to exceed the sum of Five Hundred Dollars ($500), such compensationor reimbursement,as well as the cost of carrying out the otherprovisions of this Article, shallbe 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 samemannerprovided for other expenditure of State funds;provided, however, that no compensationor reimbursement shallbe paid in any casewhere the same ispayable under the provisions of any Federal law or regulation."- -

Maj. Gen. Thomas S. Bishop, page 3 (WW-1390)

Major Hollowellwas participating in an activity under order of his commandingofficer, and was in the line of duty when he contractedhis illness. Under the plain meaning of the statuteabove quoted he Is thus entitled to payment for his medical care, and to continuation of his pay and allowances during the period of his disability. Suchpay and allowances cannot,however, be paid for a period longer than six (6) months after the end of his originallyassigned tour of duty,which in this particular casewas June 15, 1962. The Federal Governmenthas assumed the duty of makingpayment for the medical servicesprovided to Major Hollowell;the State may not make further ayments Federal-regulationsP in this area. However, under Paragraph 50157d(l)(a),Air Force Manual 177-1051,Major Hollowell is not entitled to receivepay and allowairces

from the Federal Government. Under the statute above quoted, the State is obligated to furnishhim pay and allowances only up until such time as his disability is removed, or six (6) months after June 15, 1962,whichever date occurs sooner. At this point it must be noted that Major Hollowellbecame eligible for an increased longevitypayment on June 23, 1962. This incrementmay not be included in the amount $aid to him under Article 5845(a),by virtue of the phrase

. . .and shall receive the samepay and allowance whether in money or in kind, to which he was entitled at the time when the injurywas incurred or the disease or illness contracted

. . .' (Emphasis supplied).

SUMMARY

Under Article 5845(a),Vernon's Civil Statutes, Major Billie G. Hollowell is entitled to receivepayment for medical servicesrendered,plus pay and allowances during his period of disability, suchperiod not to exceed six (6) months. Since the Federal Government is paying for the medical serivces involved, those are not payable by the State. Major Hollowell is thus entitled to receive from the State of Texas the pay and allowances to which he was entitled at the time the disease or illnesswas contracted, such amount to be paid for the duration of his disability,Maj. Gen. Thomas S. Bishop, page 4. (WW-1390)

or for six (6) months after June 15, 1962, whichever date occurs first.

MLQ:ms:zt Yours very truly,

WILL WILSON Attorney General of Texas

APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman
Frank R. Booth ScrantonJones Robert Rowland William E. Allen

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore