DAN MORALES 

.,l-nMWY CESLLAL 

Q9ffice of tt)e !Zlttornep 4Benetal 

Sbtatt of Ctxas 

August 10.1992 

Major General Wiiiam C Wilson 

Adjutant General 

Texas Army National Guard 

P. 0. Box 5218 

Austin, Texas 78763-5218 

Opinion No. DM-148 

Re: Authority of the Texas National 

Guard to obtain liability insurance with 

federal funds to cover National Guard 

officers and employees who operate a 

mobile shooting range for recruitment 

purposes (RQ-167) 

Dear Major General Wilson: 

You asked for the attorney general’s opinion concerning whether the Texas 

National Guard is authorized to purchase liability insurance, with funds fumisbed by 

the federal government, to cover National Guard officers and employees who 

operate a mobile shooting range for recruitment purposes. We conclude that the 

Texas National Guard does have such authority. 

You advise that this issue arises in the following context: The Texas 

Adjutant General’s Department has three mobile pellet rifle ranges that are used by 

the adjutant general during National Guard recruiting activities; these mobile 

ranges are intended to give national guardsmen and potential recruits an 

opportunity to practice and demonstrate their marksmanship. The mobile ranges 

are installed in trailers and must be pulled by trucks. The adjutant general obtained 

liability insurance to cover the officers and employees of the adjutant general that 

operate the mobile rifle range. The insurance was placed with Bssex Insurance 

Company, of Wilmington, Delaware, through a licensed Texas insurance agent. The 

premium for this insurance is S919.45 for the period from une 1,~ 1991, through 

June 1, 1992. The federal National Guard Bureau approved the purchase of the 

liability insurance and has paid the state of Texas S919.45 to obtain the liability 

insurance; this sum has been deposited with the Texas Comptroller of Public 

Accomlts. 

The adjutant general submitted a purchase voucher to the Comptroller of 

Public Accounts in July 1991, requesting that the comptroller issue a warrant for 

p. 775 
Major General Wu~ranl L Wilson - Page 2 (U+148) 

$919.45 payable to the insurance age1.t to pay the premium Ibe comptroller 

advised the adjutant general that the voucher could not be paid because the adjutant 

general did not adequately demonstrate that he had authority to obtain the liability 

insurance. Because the insurer was not licensed to transact business in Terms, the 

comptroller also concluded that the insurer was not a ‘liability insurance company 

or companies authorized to transact business ia the state of Texas [as required by 

article 6252-19a, V.T.CS.1,” and therefore the comptroller could not pay the 

voucher. As a result of the foregoing, the premium has not been paid. 

A public officer may make only those contracts on behalf of the state that the 

off&r is expressly or impliedly authorized by law to make. FOH Wot~h Cindy Club 

v. Sheppd, 83 S.WJd 660, 663 (Tex. 1935). Article III, section 44 of the Texas 

Constitution provides that an appropriation is valid if it is supported by pre-ezisting 

law. See Taas Pub. Bldg. Auth. v. Mattar, 686 S.W.2d 924.929 (Rx. 1985); Au& 

Nat7 Bank v. Sheppard, 71 S.W2d 242, 245 (Tex 1934). Therefore, the voucher 

presented to tbe comptroller should be paid if: 1)the adjutant general bad 

authority pursuant to preexisting law to fncur the type .of obligation at issue, and 

2) funds have been duly appropriated to pay the obligation, We conclude that both 

of these conditions have been met. 

The National Guard has an “unurlal ‘hybrid’ status as an agency with both 

federal and state characteristics.” Johnron v. ckr, 780 F2d 386,388 (3d Cir. 1986) 

(citation omitted). The National Guard is the modem successor to the state militias 

recognized in article I, section 8 of the United States Constitttt.ion Jorzicn v. 

Nurionol Gud Bureau, 799 F2d 99.101 (M Cr. 1986). The state National Guard 

units are agencies under state control and authority. Jdrnron v. Orr, id Pursuant to 

Texas law, the state of Texas has established a National Guard unit Set Gov’t Code 

90 431.041-.@45. The federal government provides state National Guard units with 

funds, subject to federal rules and regulations. See 32 U.S.C 00 106,107. Through 

this funding and regulation process, the federal government maintains considerable 

control over the standards, organization, activities, and functions of the various state 

National Guard units. See New Jw Air Nat1 Gu& v. Fed Labor Rd Ador.., 677 

F2d 276,278 (3d Cir. 1%). The National Guard Bureau is a federal agency within 

the Departments of the Army and the Air Force with responsiiility for maintaining 

liaison between the Departments of the Army anh the Air Force and the various 

state b ~tional Guard units, as well as publishing National Guard regulations and 

implementing and adminkteting approved National Guard policies and progranr. 

p. 776 
Major General William C Wilson - Page 3 (~~148) 

See 10 U.S.C 0 3040; Bollen v. Nat7 Guani Bunsau, 449 F. Supp. 343,345 (W.D. Pa 

1978). 

The Texas Adjutant General is the bead of the military department of the 

state and its military forces, incb~ding tha Taxas National Guard. Gov’t Code 

0 431.022, see ai.w id. 0 431.001(3X4). The duties of the adjutant general include 

pe&ming “for the state as naat as practicable the duties that pertain to the chiefs 

of staE of the army and air force and the secretaries of the military services, under 

regulations and customs of the Uaited States armed forces.’ Id. #43l.m(2). 

Federal Jaw provides that the Secretaties of the Army and the Air Force are 

responsible for, and have the authority necessary to conduct, all the affairs of their 

respective departments, includii reediting, orgat&ng, supplying, quipping, and 

train@ amice persons within their respqtive depattments. 10 U.S.C 

003013@)(l)-(S) (Secretaty of the Army); 8012(b)(l)-(S) (Secretary of tbe Air 

Force); see aJro Attorney General Opinion JM-885 (1988). Therefore, the Texas 

Adjutant General enjoys the same authority and responstMlities with respect to the 

Texas National Guard Gov’t Code 0 431.029(2). Federal law expressly authoriaes 

the use of appropriated federal funds to pay the expenses of the National Guard 

Bureau, fnchtding the “acquisition, construction, maintenance, aad equipment of 

shooting galleries.” 32 U.S.C 00 106,107(a)(6). 

Pursuant to a Federal-State Agreement between the United States National 

Guard Bureau and the State of Texas, the State of Tenas has agreed to amduct a 

National Guard recruiting and retention program in Texas Snanced by the federal 

government. ‘The agreement provides tltat all approved custs in the implementation 

of this program shall be furnished by the federal govermnent. In a National Guard 

Bureau directive dated August 21,1986, the National Guard Bureau authorized 

state National Guard units to obtain liability fnsurance to awer personal injury and 

property damage resulting from the use of the mobile recruiting pellet rifle ranges. 

This directive also authorized payment or refmbursement to the states for the costs 

of obtaining such insurance. Pursuant to this directive, the Texas National Guard 

requested payment from the National Guard Bureau for obtaining such liability 

insurance. This request was approved by the National Guard Bureau in a 

memorandum dated June 27, 1991, and the state of Texas has bean paid. Gn the 

basis of the Texas Government Code, the United States Code, the Federal-State 

Agreement, and the directive of the National Guard Bureau, we conclude that the 

Texas Adjutant General had authority to obtain the tiabih~ insurance to cover the 

National Guard officers and employees that operate the mobile recruiting pellet 
Major GeneraJ William C Wikn - Page 4 (~148) 

rifJe ranges. See gencmQ~ Attorney General Gpiion H-1186 (1978) (federal law 

may be the pre-existing legal basis for a state officer’s authority). 

Article V, section 22( 1). of the current General Appropriations Act provices: 

“AlJ funds received from the United States govetmnent by state agencies and 

institutions named in this Act are hereby appropriated to such agencies for the 

purposes for whifb the fcdcral grant, &cation, aid, payment or reimbursement wz 

made.’ I-LB. 1, Acts 1991.72.d J..eg, 1st CL, ch. 19, at 365, lK!2 of Aug. 30, 1991, 

Vernon’s Sesa law Serv. 365. 1022. Funds totaJJing r919.45 have already been 

received from tie federal government and deposited H th me comptroller for the 

purpose of paring for the liability insurance; pursuant to secu>n 22(l) this sum is 

appropriated for paying for the Jiabiity insurance. 

The comptroller ako refused to pay the requested voucher because the 

insurer, Essex Insurance Company, is DOi licensed in Texas, and tt crefore ‘be 

comptroller concluded that Essex wzs not authorized to transact busiutss Jn Texas 

as required by article 6252-19r, V.T.C.S. Article 6252-19a author&s the departments or agencies of the state to insure its officers and emp’wees from Jiabiity 

arkif from the use or operation of automobiles, trucJts, tractor 1 power equpment, 

aircraft, or Y’ jtercraft, but such insuranct shaJ! be provided by a liability insurance 

company ot companies autJ -rizcd to transz .t business in the State of Texas.” 

V.T.C.S. art 6252.19a, 0 1. This satme applies only to insurance obtained for 

‘iabilities asking from the use or operation of motor vehides, power equipment, 

aircraft, or watercraft. Id ‘Ibe mcbiJe shooting range is not s&propelled, it does 

not meet any of tbe other article 6252.19a categories, anE’ .&us the statute does not 

apply. 

The adjutant generaJ, as chief of the Texas National Guard, 

has authcity to obtain liability insurance, with federal funds, to 

cover NationaJ Guard officers and employees who operate a 

mobile shooting range for recruitment purposes. The funds to 

pay the insurance premium are appropriated by article V, 

section 22( 1). of the current General Appropriations Act. 

. 

Article 6252-19a, V.T.C.S., which requires that the state 

obtain liability insurance from a company authorized to transact 

p. 770 
Major GeneraJ William C Wilson - Page 5 KM-148) 

business in Texas, applies only to liability insurance obtained to 

cover liabilities arising froni the use or operation of motor 

vehicles, power equipmen& aircraft, and watercraft, and thus is 

not applicable in this case. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

: ; MARY KELLER 

Deputy Assistant Attorney General 

‘~REJvEAHJcKs l., 

ISpecial Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Geoffrey Hennessey 

Assistant Attorney General 

p. 779