#### Peter C. COLE, Appellant, v. TEXAS ARMY NATIONAL GUARD and Adjutant General Sam C. Turk, Appellees.

No. 03-94-00612-CV.

Court of Appeals of Texas, Austin.

July 12, 1995.

Rehearing Overruled Aug. 30, 1995.

*536John R. Vasquez, Van Os, White & Vasquez, Austin, for appellant.

Dan Morales, Atty. Gen., Lisa Paul Hodges, Asst. Atty. Gen., General Litigation Div., Austin, for appellees.

Before POWERS, KIDD and B.A. SMITH, JJ.

POWERS, Justice.

Lieutenant-Colonel Peter C. Cole appeals from a district-court judgment that dismisses for want of subject-matter jurisdiction his actions against the Texas Army National Guard, Adjutant General Sam C. Turk, and two unknown officers of the Texas Army National Guard designated “Richard Roe” and “John Doe.” Concluding the district court had subject-matter jurisdiction, we will reverse the judgment below and remand the cause to the district court.

THE CONTROVERSY

The Adjutant General, relying upon sections 431.042(b)(2) and 431.089(a) of the Government Code, and upon a regulation of the Adjutant General’s Department deemed to be authorized by those statutes, discharged Cole from the Texas Army National Guard involuntarily and for cause determined by the Adjutant General without a hearing. Tex.Gov’t Code Ann. §§ 431.042(b)(2), .089(a) (West 1990). Cole sued for declaratory relief to the effect that his discharge was illegal and ineffective on constitutional and statute-*537ry grounds, together with ancillary relief in the form of a permanent injunction, attorney’s fees, and costs of court. The district court dismissed Cole’s causes of action for want of subject-matter jurisdiction. Cole appeals to this Court on a single point of error that the district court erred in ruling that it lacked jurisdiction.

THE STATUTES

Section 431.089 of the Government Code authorizes the Adjutant General to discharge a person from the state military forces according to regulations adopted by the Adjutant General or to federal law or regulations, and directs the Adjutant General to furnish an officer, on termination of his or her appointment, a certificate of discharge stating the character of the officer’s service. *Id.*§ 431.089(a), (b). Cole received an honorable-discharge certificate.

Section 431.042(a) of the Government Code provides for the Governor’s appointment of commissioned officers in the Texas National Guard, refers to their qualifications, and requires that they take the official oath. *Id.*§ 431.042(a). Subsection (b) of the same statute provides as follows:

> (b) An officer is *entitled to hold the position*until the officer reaches 64 years of age, unless earlier discharged or retired because of:

> (1) resignation;

> (2) *administrative regulation;*

> (3) individual application;

> (4) disability; or

> (5) *cause determined by a court-martial or efficiency board legally convened for that purpose.**1*

*Id.*§ 431.042(b) (emphasis added). No court martial or efficiency board was convened to consider and determine the cause for which Cole was discharged; no hearing was conducted by anyone in that regard. Instead, he was purportedly discharged for cause under authority of the “administrative regulation” next to be discussed.

THE REGULATION

In 1981, the Adjutant General promulgated Texas Army National Guard Regulation No. 635-100 (“TARNG 635-100”), entitled “Administrative Discharge of Officers and Warrant Officers.”2 Paragraph 4 of the regulation sets out three basic grounds for the discharge of an officer before he or she reaches age sixty-four: (1) at the officer’s request; (2) for certain reasons relating to promotion and assignment of officers; and (3) for cause, as described in the following statement:

> Officers who are substandard in performance of duty or conduct, deficient in character, lacking in professional qualifications or status, or otherwise unsuited for continued military service are not to be retained in the Texas [Army] National Guard. Presence of one or more of these conditions will be sufficient basis for the administrative discharge of an officer from the Texas [Army] National Guard.

TARNG 635-100, ¶4.

Paragraph 5 of TARNG 635-100 specifies the procedures to be followed in discharging an officer for a reason authorized in paragraph 4. Under paragraph 5a, lower level commanders may request the resignation of an individual for any such reason. If the officer’s resignation is not forthcoming, the lower commander may request the Adjutant *538General to discharge the officer. In deciding whether to approve the request, the Adjutant General “may appoint a board of officers to investigate the appeal [sic] and provide pertinent recommendations based on the findings of the board.” TARNG 635-100, ¶ 5a. Paragraph 5b states, “The Adjutant General may cause the administrative discharge of an officer for reasons indicated in paragraph 4 without the request or recommendation of an intermediate commander.” *Id.*¶51⁄8 The Adjutant General interprets paragraph 5b to mean that he may, on his own initiative and determination of cause without a hearing, direct the discharge of an officer from the Texas Army National Guard. On that ground, he directed Cole’s discharge in the present case. Cole disputes this construction of paragraph 5b as being contrary to subsection 431.042(b)(5) of the Government Code, which requires that discharges for cause be based upon “cause determined by a court martial or efficiency board legally convened for that purpose.” Tex.Gov’t Code Ann. § 431.042(b)(5).

DISCUSSION AND HOLDINGS

In *Newth v. Adjutant General's Department,*883 S.W.2d 356, 360 (Tex.App.—Austin 1994, writ denied), we held the legislature did not intend that the provisions of the ‘‘Whistleblower Act,” found in sections 554.001-.009 of the Government Code, should extend to a Texas Army National Guard officer’s claim that his military assignments were made in retaliation for his reporting illegal activities by another member of the Guard. We reached that holding based on our conclusion that the legislature did not intend the disruption of military functions that would attend application of the Whistle-blower Act to the Texas Army National Guard. *Id.*at 357-60. We were careful to point out, however, that not all claims by military personnel, in civilian courts and based upon wrongs suffered in the course of military service, are barred because they would interfere with the efficient conduct of military functions. *Id.*at 357. Consequently, *Newth*cannot reasonably be understood as standing for the proposition that the decisions and actions of military officers are immune from judicial inquiry whenever it may be plausibly contended that a judicial remedy — an injunction, for example — will interfere with the efficient conduct of military functions.3

We deal in the present case with a different matter entirely — the long-standing rule that equitable relief by injunction is available to prevent executive officers of government from causing injury by administrative actions taken by them in excess of their authority. In such cases, it “can not be said that the judicial power is fettered because the injury is attributable to a military order.” *Sterling v. Constantin,*287 U.S. 378, 403, 53 S.Ct. 190, 197, 77 L.Ed. 375 (1932). In the present context, the rule holds that a civilian court may set aside a servicemember’s administrative discharge when it is issued without authority and results in a legally cognizable injury. *Harmon v. Brucker,*355 U.S. 579, 581-82, 78 S.Ct. 433, 434-35, 2 L.Ed.2d 503 (1958) (district court possessed jurisdiction to review propriety of less-than-honorable discharge by Secretary of the Army based upon mistaken enlargement of his *539powers resulting from misinterpretation of applicable statute). The district court in *Hannon*

> had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the [Secretary of the Army] did exceed his powers. If he did so, his actions would not constitute exercises of his administrative discretion, and in such circumstances as those before us [discharge based on grounds not authorized by statute], judicial relief from this illegality would be available.

*Id.*at 582, 78 S.Ct. at 435; *see also*Alfred Avins, *State Court Review of National Guard Courts-Martial and Military Board Proceedings,*41 Cornell L.Q. 457 (1956); Christopher H. Landing, *Judicial Review of Administrative Discharges,*83 Yale L.J. 33, 59-60 (1973); Dag E. Ytreberg, Annotation, *Judicial Review of Military Action With Respect to Type of Discharge Given Serviceman,*4 A.L.R. Fed. 343, 367-72 (1970).

In most of the decisions referred to in the foregoing writings, a legally cognizable injury existed because the plaintiff had received a discharge in a form less than honorable. This was the case in *Harmon,*for example. *See*355 U.S. at 582, 78 S.Ct. at 435 (“Moreover, the claims presented in these cases may be entertained by the District Court because petitioners have alleged judicially cognizable injuries.”). Cole is not stigmatized by such a discharge. Nevertheless, we believe he has alleged a legally cognizable injury because section 431.042(a) of the Government Code confers upon officers of the Guard a statutory right to hold their position until they reach age 64 unless *legally*discharged or retired earlier for one of the reasons stated in section 431.042(b) of the Code. Tex. Gov’t Code Ann. § 431.042(a), (b). If Cole’s discharge was illegal, as he contends, he will have been deprived of the statutory right unless the discharge is set aside as he requests.

The Adjutant General conceded in oral argument that he discharged Cole “for cause” and the attachments to Cole’s petition indicate as much without a doubt. The district court had power to determine its jurisdiction and the power to construe the relevant statutes and regulations to determine if the Adjutant General exceeded his powers. Nothing in the text of TARNG 635-100 gives the Adjutant General an express power to discharge for cause determined by him alone and without a hearing. The Adjutant General has only inferred that power from the text of the regulation, apparently on the doubtful theory that because the regulation does not expressly require him to obtain a board determination of cause, he is not required to do so. *See*TARNG 635-100, ¶ 5b. We must reject his inference, however, for a more important reason — a statute denies him the power he claims.

Section 431.042(b)(5) of the Government Code explicitly directs that when the discharge of an officer is based on “cause,” the determination of cause shall be made by a court martial or by an “efficiency board legally convened for that purpose.” It is undisputed here that neither a court martial nor an efficiency board made a determination of cause preceding Cole’s purported discharge for cause. “[W]here a [statutory] power is granted, and the method of its exercise prescribed, the prescribed method excludes all others, and must be followed.” *Foster v. City of Waco,*113 Tex. 352, 255 S.W. 1104, 1105 (1923); *see also Cobra Oil & Gas Corp. v. Sadler,*447 S.W.2d 887, 892 (Tex.1968); *Balios v. Texas Dep’t of Pub. Safety,*733 S.W.2d 308, 311 (Tex.App.—Amarillo 1987, writ refd). Moreover, the Adjutant General is not free to create a new particular power in himself by “administrative regulation” when that power has not been first delegated to him by statute, either expressly or by *necessary*implication. *Sexton v. Mount Olivet Cemetery Ass’n,*720 S.W.2d 129, 137 (Tex.App.—Austin 1986, writ refd n.r.e.). We find no such delegation of power. Consequently the Adjutant General was powerless to discharge Cole based upon the Adjutant General’s own determination of cause because the relevant statute provides that discharges for cause shall be based upon cause determined by a court martial or by an efficiency board convened for the purpose. TARNG 635-100 must be construed and must operate consistently with the statute.

*540We hold accordingly, sustain the point of error, reverse the judgment below, and remand the cause to that court. We need not discuss whether Cole’s discharge is invalid on constitutional grounds.

1

. The discharge of an appointed officer for "cause" does not mean the arbitrary wiE of the appointing power, for that might be the outgrowth of passion, which would in reality be no cause at all. Rather, the phrase means some cause affecting or concerning the ability and fitness of the incumbent to perform the duty imposed upon him or her. It means inefficiency, incompetency, or other kindred disqualification. *Street Comm'rs of Hagerstown v. Williams,*96 Md. 232, 53 A. 923, 925 (1903); *see also Black’s Law Dictionary*644 (6th ed. 1990) (defining "for cause”).

2

. For purposes of discussion only, without mentioning or deciding the issues, we wiU make two assumptions pertaining to the controversy. The first is that TARNG 635-100 is a regulation that is generaHy valid because it was promulgated according to procedures required by law in an exercise of a rulemaking power delegated to the Adjutant General by the legislature. The second is that no federal statute or regulation applies to the controversy. Any discussion of the particulars of these assumptions is unnecessary and would extend our opinion inordinately.

3

. So long as the courts are open and able to act effectively, the fundamental rule is this: "The military shall at all times be subordinate to the civil authority." Tex.Const. art. I, § 24. The powers and duties of the Adjutant General of Texas "are derived from, they must be found in, the *civil*law. At no time and under no conditions are [his] actions above court inquiry or court review." *Constantin v. Smith,*57 F.2d 227, 238 (E.D.Tex.), *aff'd, Sterling v. Constantin,*287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932) (emphasis added). “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are *judicial*questions.” *Sterling,*287 U.S. at 401, 53 S.Ct. at 196 (emphasis added). Thus, there can be no question of the district court's power to inquire whether a military officer's administrative order exceeds his or her authority. *See, e.g., State v. Sparks,*27 Tex. 627 (1864).

The courts do not interfere with most military decisions and actions, however, because they are ordinarily taken within the limits of military power and discretion. The courts do not wish to hamper military efficiency and they ordinarily have no familiarity with applicable "military law,” that is to say the law applicable to military justice, the law of war, martial law, and military government. *See*Alfred Avins, *State Court Review of National Guard Courts Martial and Military Board Proceedings,*41 Cornell L.Q. 457, 470-71 (1956).