### THE A-TMBFZNEY GENERAL ~FTEXAS

Maj. Gen. Rose Ayers Adjutant General of Texas P. 0. Box 52218 Austin, Texas ATTENTION: Lt.Col. Rtchard K.Day

Inspector General

Dear Sir: Opinion No. M-1209 Re: Whether Sec. 10, Art,. 5783, 

### v.c.s., appiiee to the Texas State Guard and constitutes authority to expend State funds for payment of medical expensee reeulting from the injury of aTexas State Guardsman during an authorized duty service. Lnconnection with your recent opinion request concerning the above captioned matter, you have given ue thenfollowing information: "On 18April 1972, SGTCharles R.Eicks; a

member of the Texas State Guard as reflected in Section 2, Article 

### 5768,Title 94, Verno,n's Annotated Revised Civil. Statutes of 'Texas; was engaged ,inAnnauthorized tra,ining assembly of his unit at t.FieOdessa Texas ArmyNational Guard Armory. During a claee concerning "crowd control", SC2Hicks wae thrown to ,the concrete armory floor byanother member of the Texas State Guard. SGTHicks. struck his head on the floor and has required medical treatment the cost of which totals 

### $1,787.33as of this da,t:e. "It is ant,iciptated th.a,t SCT Hicks will seek payment of hi8 medical bills bythe Sta,te of Texas under the provisions of Section 10, Article 5783, 

### wt1e 94, Revised Civi:l Sta,tute.? of Texas, 

### 11963, as amended byF.B. 108, 60th Legislature, H,rgu:lar Ses?s!ion."

-5932-Maj. Gen. Ross Ayers, page 2 (M-1209)

IGU have further advised that the Adjutant General’s Department has not in the past recognized th,e compensability of such aclaim byamember of the Texas State Guard when no,t called i.,oactive duty bythe Governor and that the Dejpartment has made no att.empt to prescribe rules and reg:slations for the training or other operations of the Texas State Guard to carry out the provisione of Articles 5765-5786, Vernon’s Civil Statutes. Your request poses the following questions:

“a. Are the provisions of Section 10, Article 5783, Title gk, Revised Civil Sta,tutes of Texas, as amended, applicable to the Texas State Guard or solely to the Texas National Guard?

“b

. If the provisions of the law are appl,icable to the Texas State Guard, is the Adjutant General of,Texae authorized to expend appropriated State funde for payment of medical expenses resulting from injury of Texas State Guard personnel which were incurred during an authorized duty status as reflected in Se&ion 10(a) Artie1.e 5783, Title $1, Revised Civil Sf,atutes of Texas, as amended, and if so, what St~:at:e,fund citati,on should be employed”!!’ 1.nanswer to your fi,rst ques,tion, please be advi,sed ,tnat we‘nave co!~lc~! tided that the provisions of Sectjon iO of Art..ele ‘>‘78:::l..,;appii.cable I;othe Texas State Guard. This stat,~t-e IWXF a;+art o,TS.B. No. R.S. 1~963, ~Chap~terI,i.2, p.XOg), 2’79(Acts, Wth. L,eg., which was de!?cribed in ite caFt,ion “AnAc,t.amending and revis‘i,ng Cnapter’ 3, Title !>&of t.he Revised Ciivil Statut.es of Texas 1925, a8 amended, r;elati:ig to the Nat,ional Guard and ot,her~’State Military Forces.

. .” (Emphasis added .) Sections5,6,7,8,113, 11 Em cf Article 5783 contain provisi,ons more comprehensive tha:n t.he Na,tional Guard and co’ver the “Military Forces” of t’his state o’rtk “,st,ate Miii t,ar’y Forc!r:e. ” The very next regular session of the Legislature two years .!,atw enact-d H.B.ND.l-110(Act: .?59th Leg.,R.S., 1965, Chapter; 690,$p.l6olj, of which Ariiicle 5765 ia a part, and z=scr*~iot-d in its captio,n as “AnAct,amendi.ng

-5933-. ,

Maj. Gen. Roes Ayers, page 3 (M-1209)

and revising Chapters 1and 2, Title 94, Revised Civil Statutes of 1925, as amended, and certain other laws, as amended, relating to the State Militia.

. .' Article 5765, Section I, states in part:

"The militia of this State shall be divided Pinto ,twoclasses, the Active and Reserve Militia. The Active Mil,itia, herein referred to as the State Military Forces, shall consist of the organized and uniformed military forces of this State which shall be known as the Texas Army National Guard, the Texas Air National Guard, the Texas State Guard, and any other militia or military force organi.:~cd under the laws of this State; the reserve miIltia shall consist of all of those liable to serve, but not serving, in the State Military Forces.

. .' The Emergency Clause of the bill, Section 4, recites:

"The fact that there exists an urgent need that the laws relating to the State Militia, State Military Forces, and Texas State Guard be revised and amended so as to complete the revision of the laws relating to the State Military 'Forces which 'wascommenced by the 58th Legislature creates an emergency and an imperative public r.eceseity.

. . .'I Section 10(a) of Article 5783states In pertinent part:

"Every member of the Military Forces of this state zshall be wounded, disabled or injured, or whoshali contact any disease or illness, in l,ine of duty wh,ile in the service of this state in case of :riot, tumult, breach of the peace, resistance to process, inva ion s insurrection or imminent danger thereof, or whe;ever called upon in aid of the civil authorities, or when partici-- pating finany training formation or activity ur,dCI’ order-o'-T-t.he commanding officer of his ;;rryjy-- --~---'--' [or'while LraveUnp to or from his place 3Tut.y in such .insl;ances, shall be entitled to

-5934-Maj. Gen. Ross Ayers, page 4 (M-1209)

and shall receive, or be reimbursed for, hospitalization, surgical care in ahospital and at his home appropriate for the treatment of such wounding, dieab,ility, injury, disease or Lllnees. and necessary transportation-incident thereto so long as such - wounding, disability, injury, disease or illness exists, and shall receive the E-amepay and allowance whether in money or in kind, to which he was entitled at the time when the injury was Yncurred or the disease or illness contracted, during the period of his disability but not for more than a,tctal of twelve (,-I l? months after the end of 'his tour of duty.' (Emphasis added.) Section 10(d) of Article 5783provides that the Adjutant General shall adm,i.ni.eter tteLorovision of this Act and shall prescribe such rules and regula,tions as may be necessary to carry out the provisions of the Act. The Texas State Guard is declared byArticle 5768, Vernon's Civil S.tatutee, ,tobe adefense force which Congress has authorized pursuant to 32 ‘U.S.C.A., Section 109, and for this reason it is apart of the State Militia authorized by federal law. The cited statutes having ,the same general subject and purpose and relating to the same class of persons, the military forces of the state, must be consIdered as being in pari materia even though they were passed a,t different seseio,ns o.fthe legisia,ture. 53Tex.Jur.2d 280, Statutes, Sec. 186; Wintermann 7:.McDonald, 129 Tex. 275, 102 S.W. 2d 167 (.l9’_rT, V. dyer 145 Tex. 586, 200 S.W.2d 813 (1947). - _I It is, therefore, our opinion tha,t under Article 5784, Section 10 that if the Adjutant General decides after inveetigatlon and a'hearing, tha.t Sgt. Hicks injury was in line of dut:y er a:restll!, thereof when participating in training activitiy under' irde,re of the commanding officer of nie unl,t, Sgt. Kicks Is enfitled to receive or be reimbursed for hospitalization, medical and surgical care under tna,t stat:ute.

-5935-. . .

Maj. Gen. Ross Ayers, page 5(M-1209)

In answer' to your second question as to what state fund maybe used to compensate Sgt. Hicks, weobserve tha,t there is an appropriation sufficient in law for such purpose provided for the Adjutant General's Department. Item 9of Article III-l, Chapter 1047, page 3500, 62nd Legislature, R.S. 1971:

"Martial Lawand emergency use of troops, expense of courts martial, and for medical and hospital service fees and wages: A. Emergency Pay of Troops $2,000. B. Riot Control Training -(Texas State Guard) $15,000.” (Emphasis added.) In our opinion, Sgt. Hick's claim maybe paid out of that appropriation. If that appropriation has been previously exhausted, Sgt. HickIs claim could be paid by asubsequent legislature, assuming the Adjutant General makes the decision to approve the claim.-SUMMARYThe compensation provisions of Section 10, Article ?783,,V.C.S., are applicable to members of the Texas State Guard when injured in line of duty during atraining assembly involving riot control, and the approved claim by the Adjutant General's Department may be paid out of its 1971 Appropriation for riot control training.

Prepared byKerns Taylor Assistant Attorney General

-5936-. . .

Maj. Sen. Ross Ayers, page 6(M-1209)

APPROVED: OPINION COMMITTEE W.F. Allen, Acting Chairnan Roge~rTyler Ronald Luna MaxFlusche James :Hackney SAMUFLD.MCDANIEL Staf,f Legal Assistant ALFREDWAL,KER Executive Assistant NOIAWHITE First Assistant

.-5937-