DAN MORALES

.,l-nMWY CESLLAL 

## Q9ffice

of tt)e !Zlttornep4Benetal Sbtattof

## 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 isauthorized to purchase liability insurance, withfunds 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 doeshave 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 intrailers 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, ofWilmington,Delaware, through a licensed Texas insurance agent. The premium for this insurance is S919.45for 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. 775Major 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 couldnotbe paid because the adjutant general did not adequately demonstrate that he had authority to obtain the liability insurance. Because the insurer was not licensedto transact business in Terms, the comptroller also concluded that the insurer wasnot 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 ofthe foregoing, the premiumhas not been paid.

Apublic officermaymake only those contractson behalf ofthe state that the off&r is expressly or impliedly authorized bylawto make. FOHWot~hCindy Club
v. Sheppd, 83 S.WJd 660, 663 (Tex. 1935). Article III, section 44 of the Texas Constitution provides that an appropriation isvalidifit is supported bypre-ezisting law. See Taas Pub. Bldg.Auth. v.Mattar, 686S.W.2d924.929 (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 havebeen met.
The National Guard has an “unurlal ‘hybrid’status as an agency with both federal and state characteristics.” Johnron v. ckr, 780F2d 386,388 (3d Cir. 1986) (citation omitted). The National Guard isthe modem successor to the state militias recognized in article I, section 8 of the United States Constitttt.ion Jorzicn v. Nurionol Gud Bureau, 799F2d 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 ofTexashas established aNational Guard unit Set Gov’tCode 90431.041-.@45.The federal government provides state National Guard units with funds, subject to federal rules and regulations. See32 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 ofthe various state National Guard units. SeeNewJw AirNat1 Gu& v.Fed LaborRd Ador.., 677 F2d 276,278 (3d Cir. 1%). The National Guard Bureau is a federal agency within the Departments ofthe Army and the Air Force with responsiiility for maintaining liaison betweenthe 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. 776Major General WilliamC Wilson - Page 3 (~~148)

See 10U.S.C 03040;Bollenv.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 0431.022, see ai.wid. 0431.001(3X4). The duties of the adjutant general include pe&ming “forthe state as naat as practicable the duties thatpertain 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 withrespect to the Texas National Guard Gov’t Code 0431.029(2). Federal lawexpressly 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.” 32U.S.C 00 106,107(a)(6).

Pursuant to a Federal-State Agreement between the United States National Guard Bureau and the State ofTexas, the State of Tenas has agreed to amduct a National Guard recruiting and retention program in Texas Snanced by the federal government. ‘Theagreement provides tltat all approved custsin the implementation ofthis 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 pelletMajor GeneraJ William C Wikn - Page 4 (~148)

rifJe ranges. SeegencmQ~Attorney General Gpiion H-1186 (1978) (federal law may be the pre-existing legal basisfor a state officer’sauthority).

Article V,section 22(1).ofthe currentGeneral 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 orreimbursement wz made.’ I-LB.1,Acts 1991.72.dJ..eg, 1stCL, ch. 19,at 365, lK!2 of Aug. 30, 1991, Vernon’s Sesa law Serv. 365. 1022. Funds totaJJingr919.45 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 forpaying 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 Essexwzs not authorized to transact busiutss JnTexas
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 ofautomobiles, trucJts,tractor 1power 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 oftbe other article 6252.19a categories, anE’.&usthe statute does not 

### apply.

The adjutant generaJ, as chief ofthe 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).ofthe 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. 770Major 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 inthis case.

DAN MORALES Attorney General ofTexas

WILL PRYOR First Assistant Attorney General

:;MARY KELLER Deputy Assistant Attorney General

‘~REJvEAHJcKs l., ISpecialAssistant Attorney General

MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Geoffrey Hennessey Assistant Attorney General

p. 779