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 a Texas 

State Guardsman during 

an authorized duty 

service. 

Ln connection with your recent opinion request concerning 

the above captioned matter, you have given ue then following 

information: 

"On 18 April 1972, SGT Charles 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 ,in Ann authorized tra,ining assembly of his 

unit at t.Fie Odessa Texas Army National Guard 

Armory. During a claee concerning "crowd control", 

SC2 Hicks wae thrown to ,the concrete armory 

floor by another member of the Texas State Guard. 

SGT Hicks. struck his head on the floor and has 

required medical treatment the cost of which 

totals $1,787.33 as of this da,t:e. 

"It is ant,iciptated th.a,t SCT Hicks will seek 

payment of hi8 medical bills by the Sta,te of 

Texas under the provisions of Section 10, Article 

5783, wt1e 94, Revised Civi:l Sta,tute.? of Texas, 

11963, as amended by F.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 a claim by a member of the Texas State Guard when 

no,t called i.,o active duty by the 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.n answer 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;o the Texas State Guard. 

This stat,~t-e IWXF a ;+art o,T S.B. No. 

R.S. 1~963, ~Chap~ter I,i.2, p.XOg), 

2’79 (Acts, Wth. L,eg., 

which was de!?cribed in ite 

caFt,ion “An Ac,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’r tk “,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 “An Act, amendi.ng 

-5933- 
. , 

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

and revising Chapters 1 and 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 ,two classes, 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 'was commenced by the 58th Legislature 

creates an emergency and an imperative public 

r.eceseity. . . .'I 

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

"Every member of the Military Forces of this 

state zshall be wounded, disabled or injured, 

or who shali 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 s ion insurrection or 

imminent danger thereof, or whe;ever called upon 

in aid of the civil authorities, or when partici- 

- 

pating fin any 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 a hospital 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-ame pay 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 5783 provides 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 by Article 5768, Vernon's 

Civil S.tatutee, ,to be a defense force which Congress has 

authorized pursuant to 32 ‘U.S.C.A., Section 109, and for this 

reason it is a part 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.f the legisia,ture. 53 Tex.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 may be used to compensate Sgt. Hicks, we observe 

tha,t there is an appropriation sufficient in law for such 

purpose provided for the Adjutant General's Department. 

Item 9 of Article III-l, Chapter 1047, page 3500, 62nd 

Legislature, R.S. 1971: 

"Martial Law and 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 may be paid out 

of that appropriation. If that appropriation has been 

previously exhausted, Sgt. Hick Is claim could be paid by 

a subsequent 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 a training 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 by Kerns Taylor 

Assistant Attorney General 

-5936- 
. . . 

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

APPROVED: 

OPINION COMMITTEE 

W. F. Allen, Acting Chairnan 

Roge~r Tyler 

Ronald Luna 

Max Flusche 

James :Hackney 

SAMUFL D. MCDANIEL 

Staf,f Legal Assistant 

ALFRED WAL,KER 

Executive Assistant 

NOIA WHITE 

First Assistant 

.-5937-