R-219 

TEEATTORNEY GENERAL 

OFTEXAS 

PRICE DANIEL 

*TTORNEY GENERAL 

April 4, 1947 

Hon. D. c. Greer opinion No. v-114 

State Highway Engineer 

Texas Highway Department Re: Authority of the Highway 

Austin 26, Texas Department to pay medical 

aid and compensation to a 

Texas State Guard Officer, 

where no record of a medical examination is found 

in the files of the Adjutant General. 

Dear Sir: 

Your request is based upon the following facts 

and related questions: 

We have a report of injury to a Texas State 

Guard orrioer, reported to have oaourred on November 26, 1946. 

RAlthough the man olaims to have been examined 

after S. B. 135, 48th Legislature beoame eff’eOtive, 

no reoord or same can be found in the files of the 

Ad jutant General. Aooording to Attorney General 

Opinion No. O-5355, dated July 1, 1943, we have no 

authority to Cover the injured. 

“In the oase of this particular guardsman it 

so happens that he did take an examination for oommission in. the Texas National Guard in August, 1946, 

and the record is on rile with the Adjutant General. 

“Do we have authority to pay medical 

compensation to this injured man? Can we 

recognition to this examination which was 

another organization?* 

aid and 

give any 

given ror 

The anewer to your first question is 

by the provisions of Article 5891b of Vernon’s 

utes, which provides for compensation benerits 

controlled 

Civfl Statror mem- 

. bers of the Texas State Defense Guard and for the admlnistration of the act by the State Highway Department 0 
Han, D. C a Greer, Page 2 S V-114 

From Seotion 2 of said Artfole, we quote: 

eWmaber* shall mean every person in the Texas 

Defense Gna rd O Provided that no person shall be 

olassffied as a pmembers under this Aot mr be ellgible to any compensation benefits under the tern 

and provisions of this Aot until he shall hats submitted hfmselr first to a physical examination by 

a regularly licensed physician or surgeon, designated 

or aooeptsd by the Texas Defense Guard to make saeh 

an examination, and until as a result of such examination, all physioal dereots existant at the time 

of the examination have been noted and recorded. After his separation, either by disohargee resignatfcn, 

or otherwise from the Texas Derense Guard, no person 

shall be olassified as a member under this Act or be 

entitled to any compensation benerits thereunder.” 

The injured offioer olafms to have submitted 

to the required examination, but no such reoerd is on 

rile with the Adjutant General. This gives rise to a 

strong presumption agafnat the otiloerPs olaim, but It 

does net bar recovery, fr s in’ fach, ths officer did submit to the required examination0 I)efore aufhorizin@ 

the officer@8 elaim, the Offfoer should furnish go@ with 

adequate proof of the required phyrfoal examination tagether with the results thereof noted and noorded at 

the time of the er8minatlonQ Palling in this, the slaim 

should be denied,, beoause the oiflaer has net qa8lifie(, 

as a *member” as that term fe dailned fn the quoted statute. 

The fact that the olafaunt took an examlnrtian 

ror a commission in the Texas Matfonal Guard in Augtmt, 

1946, can be gfven no weight. Thare is no provision in 

the entire Act which expressly or im liedly permits an 

examination for s oommiseion in the i -exas IVational Guard 

~to be a substitute ‘fore or in lieu of, the examination 

epeoifioally provide& for in Saotion 3, aubsrotlon 2,eupra, The Texas Defense Guard is entirely different and 

separate from the Texas Hatfonal Guard. This Is speolfioally provided for in Artiole SSQla, Sea. l(b), as fOllows : 

“Suoh foroes shall be a p8rt of the l atlve 

militfa and a oomponent of the military forces 

of Texas and shall be addftfomal to and .distlnct 

from the Matlonal Guard and shall be knewa a8 

the Texaa State Guard: * * ** 
Hon. D. C. Greer, Page 3, V-1.14 

From the foregoing, it follows that the Texas 

State Guard Offloer is not elf,@ble for medical aid and 

compensation under the Texas State Guard Compensation Aat, 

unless adequate proof of the required physical exrmination is made by the injured offioer to the Highway Department e 

1, An injured State Guard Officer, who has 

no record of a physical examination on file with. 

the Adjutant General., is not entitled to medioal 

aid and compensation under Article 5391b V. C. 3, 

unless such offfoer furnishes adequate proof of the 

required physical examination, together with the 

results thereof noted and recorded at the time of 

the examination. 

2. A physical examination for a commission 

in the Texas National Guards recorded in the files 

of the Adjutant General, does not qualfry an inlured Texas State Guard Officer as a “member” en- 

” ~~~ titled to medical aid and compensation under Article 5891b, V. C. 9. 

Yours very truly 

ATTORNFJY GEhTERAL OF TEXAS 

Assistant 

APPROVED APR, 4, I.947 

2i.u c2zhL.d 

ATTO IA’EY GENERAL 

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