R-219



## TEEATTORNEY GENERAL

OFTEXAS

PRICE DANIEL *TTORNEYGENERAL April 4, 1947

Hon. D. c. Greer opinion No. v-114 State HighwayEngineer Texas HighwayDepartment 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 amedical examination is found in the files of the Adjutant General. Dear Sir: Your request is based upon the following facts andrelated questions:

We have a report of injury to a Texas State Guardorrioer, reported to have oaourred on November 26, 1946. RAlthough the manolaims to have been examined after S. B. 135, 48th Legislature beoameeff ’eOtive, no reoord or samecan be found in the files of the Ad jutant General. Aooording to Attorney General Opinion No. O-5355, dated July 1, 1943, wehave 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, andthe record is onrile with the Adjutant General.

“Dowe have authority to paymedical compensation to this injured man? Canwe 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 Guardand for the admlnistration of the act by the State HighwayDepartment0Han, D. CaGreer, Page 2SV-114

FromSeotion 2of said Artfole, wequote: eWmaber* shall meanevery person in the Texas Defense Gna

rdO Provided that no person shall be olassffied as a pmembersunder 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, anduntil 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, noperson shall be olassified as amemberunder this Act or be entitled to any compensation benerits thereunder.” The injured offioer olafms to have submitted to the required examination, but nosuch 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 sin’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 noweight. Thare is noprovision in the entire Act which expressly or imliedly permits an examination for s oommiseion in the i-exas IVational Guard ~tobe a substitute ‘fore or in lieu of, the examination epeoifioally provide& for in Saotion 3, aubsrotlon 2,eupra, TheTexas 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 latlve militfa anda oomponent of the military forces of Texas andshall be addftfomal to and.distlnct from the Matlonal Guardand shall be knewa a8 the Texaa State Guard: * * **Hon. D. C. Greer, Page 3, V-1.14

Fromthe 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 madeby the injured offioer to the HighwayDepartmente

1, Aninjured State Guard Officer, whohas 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. Aphysical 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

OFTEXAS

Assistant

APPROVED

APR, 4, I.947

2i.u c2zhL.d ATTO IA’EY GENERAL CEC:rt:jrb