 Grover     Sellers              Arrwrrs~ II. TEXAY

r.TT<,III:V*:YGhcNICWAL


       Miss ,&n I?; Ware; Executive    Secretary’
       Texas .N~ational ‘Guard Armory Board
       Room ~I.603 Second National   Bank Bldg.
       Houston,   Texas
                                 Opinion No* o-6425
                                 Re:    Approval of expense account
                                 of member of Texas National   Guard
                                  Armory Board.
       Dear Miss Ware:

                    Your request    for our opinion  on the hereinabove   cap-
          tioned matter has been received    by this Department.     We quote
          from your letter  as follows:

                       “Permit me to hand you herewith    a file  of papers
                containing    the Armory Board’s  voucher #2 against   Appro-
                priation    G-198 in favor of Walter B. Pyron, member of
                the Texas National     Guard Armory Board, which voucher
                has been approved by the Armory Board, the Governor
                and the Adjutant General for payment.       Attached to this
                voucher are certain     receipts.

                       “When the voucher had been approved it was passed
                to the Comptroller    who has written  the Armory Board
                under date of February 14th calling     attention    to your
                opinion   0-6135 -which he appears to construe     as holding
                an account    such as General Pyron’s  account    cannot be
                paid.    He suggests   that, if the Armory Board does not
                agree with him, the account be submitted to you for
                your advice.

                     “Upon receipt   of the Comptroller’s  letter   the
                Armory Board requested   Col. Wren to give his views in
                the matter and I am enclosing   herewith  his letter    bear-
                ing the same date as this letter    on the subject.

                       V?his is to request      that you advise whether or not,
                in your opinion,       General Pyron’s   account  can be paid.
                It is In all respects        similar  to two former accounts
                covering    trips   between Washington    and Houston which were
                paid without      question.

                      “Relying upon the precedents of the other two trips
                General Pyron has expended his personal  funds in the
                matter and it will  be unfortunate indeed if the account
                cannot be paid.”
Mi.sS fhn Fe Ware,      page    2   (O-6425)


             Section 1 of Article    589Ob,          Vernon’s     Annotated        Civil
Statutes,    reads in part. as follows:

             “There is hereby created           the Texas National
      Guard -Armory Board to be composed of five                   (5) mem-
      bers who shall        serve without      compensation       other than
      their   actual,    necessary       expenses while traveling            on
      the business      of the Board.         Those three (3) individ-
      uals who are acting           as members of the Texas National
      Guard Armory Board as created              and defined      by Chapter
      366 of~the Regular Session of the Forty-fifth                     Legis-
      lature    of the State of Texas on the effective                  date
      of this     Act, together       with the senior       active     officer
      of the National        Guard of Texas, not of the three (3)
      above mentioned 9 and the senior             cavalry     officer      of
      said Guard, shall          constitute    the initial      membershi
      of the Board created           by this Act.      Of the three         (3 P
      individuals     first      above mentioned,      the oldest        shall
      have the initial         term of six (6) years,          the next
      oldest   the four (4)          ear and the youngest         of the
      three   (3) the two (2 7 year initial            term.      Of the
      other two (2) members, the cavalry               officer      shall
      have the three        (3) year term, and the other the one
      (1) year term.          All such initial      terms shall date
      from the date this Act becomes effective.                     Except
      as above provided,          the terms of membership on said
      Board shall be of six (6) years’ duration.

              “Each member of said Board shall,               within    fifteen
      (15) days from the day upon which this Act becomes
      effective,       or from the date of his receipt              of notice
      of his eligibility          to serve to fill        a vacancy,      qualify
      by taking and filing          with the Secretary           of State the
      constitutional        oath of off ice D Failure           to qualify,
      expiration       of the term of a member, or the occurrence
      of his death,       resignation      or ineligibility         to serve,
      shall    create    a vacancy in such membership which shall
      be filled      in the following        manner8 Within five            (5)
      days after the occurrence            of a vacancy the Adjutant
      General of Texas shall           certify     to the Secretary         of
      State and to the officer            concerned,      the name of the
      senior     active   officer    of the National         Guard of Texas
      who is not then occupying            an unexpired        term as a mem-
      ber of said Board, together              with the length of term
      in which then vacancy exists.               The officer      whose name
      is so certified,         or those later       certified      as herein-
      after provided,        shall be ‘eligible        to fill     such vaarancy.
      In case such officer          shall,     for any reason,       fail    to
      qualify     within    a period    of fifteen       (15) days from the
      date of such certification,              the said Adjutant General
Miss    Ann F. Ware,    page   3   (O-6425)


        shall forthwith    certify  that fact to the Secretary
        of State,   and shall certify   to him and to the offi-
        cer concerned   the name of the next senior     active
        officer   of the said Guard in like manner as herein-
        above provided,    and so on until   an officer  so certi-
        fied qualifies   to fill   the vacancy.

                ItAn active  officer,   within   the meaning of the
        above -provisions,      shall be any regularly       commissioned
        officer     of the line of the said Guard, other than re-
        tired    officers.    No change in military      status while
        a member and no retirement         of an active    officer    for
        age or length of service        shall affect    his eligibility
        to serve out his term as a member of said Board; but
        if he shall resign        from or be separated     from active
        service      in said National   Guard, otherwise      than by
        such retirement,      he shall thereby become ineligible
        for designation      to or service     on the membership of
        said Board.”

               The Supreme Court of Texas in Texas Nat. Guard &nory
Board    v.  McGraw, 126 S.W. (2d) 627, said:
                                  _ _
               II. . e we conclude   that the statute     creating
        the Armory Board deals distinctly        with the military
        and is not limited     by the provisions     of the Consti-
        tution    applying to the civil   officers    of the govern-
        ment 0 tt

           The above holding    by the Supreme Court definitely                re-
moves members of the Armory Board from the class of civil                   offi-
cers,  and consequently   that part of Section   14 of Article              16 of
the Texas Constitution    providing   that “all civil  officers             shall
reside within   the State” has no application    to said board              mem-
bers.

           Section   1 of Article  589Ob, supra, provides      that mem-
bers of the Armory Board shall     serve without    compensation,   except
actual  and necessary    expenses while traveling    on business   of the
Board.   The Attorney    General of Texas in Opinion No. O-1734,       held
that the trip made by General Walter B. Pyron was for State busi-
ness purposes,    and this fact was further    corroborated    by a letter
written  to the Attorney General by the Executive        Secretary  of the
Board, dated January 25, 1945.

             In view of the foregoing    we have decided     that General
Pyron holds a plilitarv    office  as a member of the Texas National
Guard Armory Board, and the Constitutional        provisions     applicable
to civil   officers  have no bearing    on his case.     Further,   we find
no constitutional    or statutory   provision  requiring     the General to
                                                                                  -      --




Miss   Ann F. Ware,    page 4     (o-6425)


reside  within   the State of Texas in order to serve as a member of
the Armory Board, and in addition     thereto  the above quoted stat-
ute clearly    provides  that the General is entitled   to his travel-
ing expenses while traveling     on business  of the Board.

               It is therefore our opinion that the expense account
of   General    Walter B, Pyron should be approved by the Comptroller.

              FOP your information       there     is   no conflict    between this
opinion    and our prior      opinions   nos.     o-3456   and 0-6135.       In both
prior   opinions   we were de,aling with          civil   officers   who are re-
quired by the Texas Constitution            to    reside   within   their    respeo-
tive counties,     districts,      or state,      and the present      opinion    con-
cerns a military      officer     who is not      required     by Constitution      or
statutes    to reside    within     this State,      but simply to be an officer
in the Texas National         Guard.

                                         Yours     very    truly

                                         ATTORNEYGENERALOF TEXAS

                                        By /s/ J. C. Davis, Jr,
                                        J. C. Davis, Jr.,  Assistant

APPROVEDFEB 28, 1945
/s/ Carlos C. Ashley
FIRST ASSISTANT ATTORNEYGENERAL

APPROVED: OPINION COMMITTEE
BY:       Aw, CHAIRMAN

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