## THE ATI[Y)MNEY GENERAL
OF %%XAS

Lt. Col. Harry B.Xelton Opinion No. El-210 Director, Texas National Guard Armory Board Re: Membership of the West Austin Station Texas National Guard Austin, Texas 78703 Armory Board after change of commanding officers of units of theTexas National Dear Lt. Col. Kelton: Guard.

Your request for an opinion on the above subjectmatter poses the following questions:

"Is there avacancy created by reorganization ofmilitary units other thanwhere a member is unable to serve because of the above described induction into federal service and 'thereafter the military successor in function of the Texas National Guard shall qualify as amember of the board?' .

"If there isno vacancy, can the Secretary of State legally accept the constitutional oath of office of such officers certified in addition to the three incumbent members certified July 11, 1967?

"Was it intended thatAttorney General's Opinion M-204 resolve only the question of legal succession in the event avacancy were to occurs provided inArticle 5931-1, T.R.C.S., Acts of the 60th Legislature, Regular Session?"

You state inyour request thatMajor General Everett S. Simpson, Brigadier General Kelly Arnold and Colonel Charles A. Francis were certified to the Secretary of State on July 11, 1965. On February 28, 1968,

-1008-Lt. Col. Harry B.Kelton, page 2, (M-210)

theAdjutant General certified to the Secretary of State the following formembership on the Texas National Guard Armory Board -Brigadier General D.A. Thompson, CommandingGeneral, 72nd Infantry Brigade, and Colonel Lewis E. Bracy, Jr., Executive Officer, 71st Infantry Brigade, and further certified that Colonel Charles A. Francis, high-, est ranking officer of theTexas Air National Guard, will continue to serve on theTexas National Guard Armory Board.

This certificate by theAdjutant General of Texas
was made as aresult of reorganization of units of the Texas National Guard. As a result of the reorganization, the 71st Infantry Brigade is the successor to the 36th Infantry Division, Texas National Guard, and the 72nd Infantry Brigade is the successor to the 49thArmored Division, Texas National Guard. Article 5931-1, Vernon% Civil Statutes, provides inpart:

"There ishereby created theTexas National Guard Armory Board tobe composed of the Commanding General of the 36th Infantry Division, Texas National Guard, the Commanding General of the 49thArmored Division, Texas National Guard, and the Chief of Staff forAir, Texas Air National Guard. The board shall be composed of three members and the term of office formembers of the Texas National Guard Armory Board shall be of sixyears' duration except that in the event of avacancy, theperson qualifying for theposition shall complete the unexpired term ofhis predecessor.

. . ."

Itwas held inAttorney General's Opinion M204 that:

"Under thepresent reorganization ofmilitary units inTexas, the Texas National Guard Armory Board is tobe composed of the Commanding Generals of the 71st Infantry Brigade (Airborne) and the 72nd Infantry Brigade (Mechanized), successors to the 36th Infantry Division and 49thArmored Division and the Chief of Staff forAir, Texas Air NationalGuard. Since the Commanding

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## PO09

-Lt. Col. Barry B.Kelton, paye 3, (W210)

General of the 71st Infantry Brigade (Airborne) is ineliqible to
serve as amember of theTexas National Guard Armory Board by reason ofholding the office ofDistrict Attorney ofTravis County, Texas, the next senior officer inmilitary rank of the 71st Infantry Brigade (Airborne) should be certified by theAdjutant General formembership on theTexas National Guard Armory Board, pursuant to theprovisions ofArticle 5931-l. Vernon's Civil Statutes."

Under the facts submitted byyou, the highest ranking officer of the 72nd Infantry Brigade is Brigadier General D.A. Thompson. Since the Commanding General of the 71st Infantry Brigade is ineligible to serve as amember of the Texas National Guard Armory Board, the next highest ranking officer of the 71st Infantry Brigade is Colonel Lewis E. Bracy, Jr., and thehighest ranking officer of theTexas Air National Guard isColonel Charles A. Francis.

Since Article 5931-1 requires the Texas NationalGuard Armory Board tobe composed of these officers, it is our opinion that vacancies were created by the change of the commanding officers which occurred as a result of the reorganization of units of the Texas National Guard. Therefore, you are advised, under the facts submitted, that the above mentioned highest rankinq officers are the officers eligible to serve at thepresent time on theTexas National Guard Armory Board.

SUMMARY -------

Under the facts submitted, thehighest ranking officers eligible formembership
on the Texas National Guard Armory Board are Brigadier General D.A. Thompson, CommandingGeneral, 72nd Infantry Brigade, Colonel Lewis E. Bracy, Jr., Executive Officer, 7lst Infantry Brigade, and Colonel Charles A. Francis, Texas Air National Guard..

Lt. Col. Harry B.Kelton, page 4, (M-210)

V 29 truly yours,

General ofTexas

” Prepared by John Reeves Assistant Attorney General

APPROVED: OPINION COMMITTEE

Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W.V. Geppert John Banks Larry Craddock Pat Cain

EXECUTIVE ASSISTANT A. J. CARUBBI, JR.



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