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 

the Texas National 

Dear Lt. Col. Kelton: Guard. 

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

"Is there a vacancy created by reorganization of military units other 

than where 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 a member of the 

board?' 

. 

"If there is no 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 that Attorney 

General's Opinion M-204 resolve only 

the question of legal succession in 

the event a vacancy were to occurs 

provided in Article 5931-1, T.R.C.S., 

Acts of the 60th Legislature, Regular 

Session?" 

You state in your request that Major 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, 

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

the Adjutant General certified to the Secretary of State 

the following for membership on the Texas National Guard 

Armory Board - Brigadier General D. A. Thompson, Commanding General, 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 the Texas Air National Guard, will 

continue to serve on the Texas National Guard Armory Board. 

This certificate by the Adjutant General of Texas 

was made as a result 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 49th Armored Division, Texas National Guard. Article 5931-1, Vernon% 

Civil Statutes, provides in part: 

"There is hereby created the Texas 

National Guard Armory Board to be composed of the Commanding General of the 

36th Infantry Division, Texas National 

Guard, the Commanding General of the 

49th Armored Division, Texas National 

Guard, and the Chief of Staff for Air, 

Texas Air National Guard. The board 

shall be composed of three members and 

the term of office for members of the 

Texas National Guard Armory Board 

shall be of six years' duration except that in the event of a vacancy, 

the person qualifying for the position shall complete the unexpired 

term of his predecessor. . . ." 

It was held in Attorney General's Opinion M204 that: 

"Under the present reorganization of military units in Texas, the 

Texas National Guard Armory Board is 

to be composed of the Commanding Generals of the 71st Infantry Brigade 

(Airborne) and the 72nd Infantry 

Brigade (Mechanized), successors 

to the 36th Infantry Division and 

49th Armored Division and the Chief 

of Staff for Air, Texas Air National Guard. Since the Commanding 

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

General of the 71st Infantry Brigade (Airborne) is ineliqible to 

serve as a member of the Texas National Guard Armory Board by reason 

of holding the office of District 

Attorney of Travis County, Texas, 

the next senior officer in military 

rank of the 71st Infantry Brigade 

(Airborne) should be certified by 

the Adjutant General for membership on the Texas National Guard 

Armory Board, pursuant to the provisions of Article 5931-l. Vernon's 

Civil Statutes." 

Under the facts submitted by you, 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 a member of the Texas National Guard Armory Board, the next 

highest ranking officer of the 71st Infantry Brigade is 

Colonel Lewis E. Bracy, Jr., and the highest ranking officer of the Texas Air National Guard is Colonel Charles 

A. Francis. 

Since Article 5931-1 requires the Texas National Guard Armory Board to be 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 the present time on the Texas 

National Guard Armory Board. 

SUMMARY ------- 

Under the facts submitted, the highest 

ranking officers eligible for membership 

on the Texas National Guard Armory Board are 

Brigadier General D. A. Thompson, Commanding General, 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 of Texas 

” 

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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