### NEY GENERAL

June

### 16,1967

ThomasS. Bishop Opinion No. M-93 Major Qeneral, TexAFWG Adjutant General of Texas Re: Questions relative to the Austin, Texas construction of HouseBill 108, enacted by the 60th Dear General Bishop: Legislature.

In arecent letter to this office you requested an opinion In regard to the above referenced matter. Wequote from your letter as follows:

"1* Does a surviving child of aguardsman,whois killed while performing State duty, commencereceiving the child's compensation, authorized under Section lc .of HB

### 108,at the sametime the surviving spouse starts receiving the $120. per monthplus 12l/2$ of the basic pay of the guardsman or Is this compensation only payable to the child In the event of the death of remarriage of the surviving spouse? n2. If a guardsman Is injured, while performing State duty andIs unaware of his entitlements under HB

### 108, andat a later date becomes aware of his benefits andfiles a claim, will his benefits commencewith the date of his filing or will they commencewith the date of injury?" Theapplicable portions of House Bill 

### 108, Acts 60th Legislature, 1967 (amending Article 

### 5783, Sec. 10, Vernon's Clvi Statutes) read as follows:

"Section 10. DISABLED MEN. (a) Every memberof the Military Forces of this state who shall be wounded, disabled or Injured, or who shall contract anydisease or Illness, In line

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ThomasS. Bishop, page 2 (M-93)

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 called upon in aid of the civil authorities, or whenpartlcipating in any training formation or activity under order of the commandingofficer of his unit, or while traveling to or from his place of duty In such Instances, shall be entitled to andshall receive, or be reimbursed for, hospitalization, rehospitalization, andmedlcal andsurgical care In a hospital andat his homeappropriate for the treatment of such wounding, disability, injury, disease or illness, andnecessary transportation Incident thereto 80long as such wounding, disability, injury, disease or illness exists, and shall 

### receive the samepay andallowance whether in moneyor in kind, to which he wasentitled ,at the time whenthe injure was Incurred or the disease or illness contracted, during the period of his disability but not for more than a total f twelve (12) months after the end of his tour :f duty.

“(b) Amemberof the Military Forces of the state whoIncurs a permanent disability while performing amilitary duty as provided In Subeectlon (a) of this section is entitled to receive a compensation based on a percentage of total disability. In addition to this compensation the disabled person shall be entitled to and shall receive or be reimbursed for hospltalizatlon, rehospltalixatlon, andmedical andsurglcal care In a hospital or at his homeas appropriate for the treatment of such wounding, dlsability, Injury, disease or illness, andnecessary transportation incident thereto for the duration of his dlsablement. TheAdjutant General of Texaa shall appoint at least five persons, Including at least one officer of the Medical Corps, to a board of officers which shall determine the percentage of total disability andaward compensation for the disability. Aperson whoIncurs a permanent disability as provided In this subsection 3.8entitled to receive a compensation set by the board of officers of up to $120per monthplus 12 l/2 percent of the basic pay of the grade or rank held by that person at the time the disability was Incurred. Theboard of officers shall review each award of compensation annually on a date set by the Adjutant General of Texas to determine whether

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### 3 (M-93)

each award of compensation should be continued, Increased, reduced, or eliminated. Compensation under this subsection maynot be awarded or paid until the provisions of Subsection (a) have been complied with. "(c) If amemberof the Military Forces of the state dies as aresult of injuries or disease Incurred as provided In Subsection (a) of this section, his estate shall be entitled to anyreimbursement for which the deceased would have been entitled and to his accrued pay andallowances and compensation or reimbursement for actual funeral expenses not to exceed the sumof Five Hundred Dollars ($500). His surviving spouse is entitled to receive a compensation of 120per month lus 12 l/2 percent of the basic pzy established sor the memberof State Military Forces until the surviving spouse dies or remarries. If the surviving spouse remarries andthere are surviving children, the children will receive compensation as follows:

In answer to your first question, a surviving child of aguardsmanwhoIs survived by his spouse, andwhoIs killed while performing State duty, Is entitled to the compensation provided In the Act only in the event that the surviving spouse subsequently dies or remarries.

In answer to your second question, the following language contained In HouseBill 108is controlling:

.and shall receive the samepay and allowance whether in moneyor In kind, t,owhich hewas entitled at the time whenthe injury was -422-. ,J

ThomasS. Bishop, page 4 

### (M-93)

incurred or the disease or Illness contracted, during the period of his disability but not for more than a total of twelve 12) months after the end of his tour of duty." (&nphasls added.) The Injured or disabled guardsman Is entitled to receive the benefits provided in the Act commencingwith the date of the Injury or disability. SUMMARY Pursuant to H.B. 108, 60th Legislature, a surviving child of aguardsmanwhoIs killed while performing State duty Is entitled to the compensation provided In the Act only In the event that the spouse of the guardsmandoes not survive or In the event that a spouse whodoes survive subsequently dies or remarries. AnInjured or disabled guardsman is entitled to receive the benefits provided In the Act commencingwith the date of the injury or d,lsabllity. /7 

# @J$jjgg~~~

Att ney G&era1 of Texas Prepared by Lewis E. Berry, Jr? Assistant Attorney General APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman W.V. Geppert, Co-Chairman Kerns Taylor JohnBanks Roger Tyler Paul Martln STAFFLEGAL

ASSISTANT A. J. Carubbi, Jr.

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