Hon. Thomas 5. Bishop
                    _-.-a            Opinion Ho. M-103
MaJor    General,   Tex   Amu
Ad jutant Generals                   Re:   Constitutionality   of
Adjutant Geneyal's        Dept,            Rours Bill 406, Acts
Austin, Texas,                             of Ch6 60th Legia1ature,
                                           SW lar Seseion, and .:z.
Dear Generel ,lBishop:                     lY3Y&ted questions.
             IlOU haVe P8C4WbSbied~ &I'J.@$htllionfPi383this Off%@ a8
to the conetitutianalit~~      of Hau-ee ali, 406, Acts of the 60th
Leglalature,     Regular Session I ,and in partSaul,ar to the dura-
tion of the t%Pm of offior       of the National Guard Armory
Board membere.
          In the event we holo      such bill to be constitutional,
then you present the following      questions?
              "1 o Oti June I~, 1967, the Assistant Adjutant
        General,, Army, will become,Commandlng General of
        the 49th Armored Mvision.      In view of Article
        XVI, Section 40 of the &ate Constltutlon,     may he
        not concurrently   hold membernkip cm the Texas
        National Guard Armory Roard as well as ssrving
        as Assistant Adjutant Genera3, Army, Texas National
        Guard? Should it be held that he cannot serve on
        the Armory Board because of his status as Aaaistant
        Adjutant General, Army, then* in that event, under
        H.8, 406, who,would be eU.$Sblc to serve on the
        Board from the 49th Armor%4 Division?
               "2.   a, Under the.law (Rev.' Civ. St., Art.
        5767, Set, 1) exietlng    at the time of the pesaage
        of H.B. 406, the Air National Guard representative
        on'the National Ward Armory 3oard, wae the Senior
        Officer    of the Texaa Air National Guard. R.B. 406
        states that Ythe Chief of Staff for Air, Texas Air
        National Guards shatl regreaent the Air National
        Guar&on the Board.      The present Senior Officer   of
        the Texas Air National Guard, who ha8 been serving
        on the Armory Roard# is Deputy ChBef of Staff for
        the Air, National Guar,d, by assignment, but is per-
        formI& the duties of Chief of Staff for Air.        In
       lione Thomas S. Bishop,   page 2,   (M-103)



            light of this fact,  can the present Air National
            Guard representative  continue to serve on the new
1.‘.
            Board created by H.B. 4064,
                   “bv The present Air National Guard represent-
            ative on the Armory Board is a Civil Service employee
            of the United ,States,    He works with the Small Bus-
            iness Administrationi     Doe8 thie fact prohibit   him
            from serving on the Armory Board in light df Article
            XVI, Section:12    of the Texas Constitution?    Should
            he be ruled Ineligible,    is the Aaeistant Ad utant
            General’for   Air (next in point ,of seniority 3 eli-
              Ible to 8erve on the Board? If not, under H.B.
            fi’
              06, who 18 eligible   to repreeent the Air National
            Guard on the Texarr l?at%onal Quarb Armory Board?
                 “3.  The prov:slone  of H-P). 406 further etate
            the new Board shall bp:
                 ”     .composed of the Commanding General, 36th
            Inf~&yyDivJ.slon.    * 0
                   "In compliant  with   Department of Defense direc-
            tives,   the Texas Army ‘~tlonal    Guard was reorganized
            on 1 November 1965,    On this date, the Texas Army
            National Guard loat the 36th Infantry Division,        as
            8uch, beCaU8e the 36th Infantry Division was reorga-
            nized into the 36th Infafitry    Divfaion (less detach-
            ments) to obtain unit equipment and personnel to
            form a Separate Infantry Brigade.
                   "In'vlew of the above, if H.B. 406 correctly
            fdentifiea     the only Officer eligible    to Berve on
            the Armory Board, which officer       ehould be certified
            as the member bf the Board -- the Commandlng General,
            36th Infantry Dlviefon (which no,longer        exists   , or
            the Commanding Qeneral, 36th Infantry Brigade t which
            doe8 exist) 7”
                   Rouse Bill 406 of the 60th Legisl&ture,  Regular
       Session,   which Is codified as Article 5931-1, reads as
       fOllOW8:
                  “There 18 hereby created the Texas Nationals
            Guard Armory Board to be composed of the Commanding
            General of the 36th Infantry Division,  Texas Na-
            tional Guard, the Commanding General of the 49th
            Armored Divkafon, Texas National Guard, and the
                                        -464-
Hon. Thomas S. Bishop,     page 3,   (M-103)


     Chief of Staff ,for ~,Alr, Texas Air National Guard.
     The board shall be composed of three members and
     the term of office      for members of the Texas Na-
     tional Guard Armory Board shall be of six years’
     duration except that in the event of a vacancy,
     the person qualifying       for the position    shall
     complate the unexpired term of his predecessor.
     Each officer    of the Texas National Quard or the
     Texas Air National Guard who may thereafter            fill
     the position    qualifying     him for membership on
     the Texas National Guard Armory Board, a8 pro-
     vided ln,thle    Act, shall be certified       by the
     Adjutant General of Texas to the secretary            of
     state, and to, the officer       concerned within 30
     day8 after the occurrence        of a vacancy.    Each
     member of the Texas National Guard Armory Board
     shall, ‘within 15 day6 from the date of his receipt             ;
     of notice of his eligibility         to serve to fill      a    ,.’
     vacancy, qualify     by taking and fifing      with the         ..
     secretary    of state the constitutional       oath of
     office I)
           “The senior and junior in military  rank, of             -’
     the members of said board shall be, respectively,
     chairman and treasurer thereof,  and the persons
     holding such offices  shall change as military
     rank may determine when changes in membership
     of said board occur.
            “In the event any member of the board Is un-
     able to serve because of his Induction into federal
     service or the induction of his military unit Into
     federal servfce,    the Governor of Texas shall designate
     a member from among the state military     forces as suc-
     cessor in function,    who shall thereupon be and become
     a member of the board only for the duration of
     such term of lnductlon into federal service,      there-
     after the military    successor in function of the
     Texas National Guard shall qualify as a member of
     the board.
            “It 1s further provided that none of the
     members of this board shelf. at the same time hold
     any other office     or position   of honor, trust, or
     profit    under the state or federal government,
     except as a member of the Texas National Guard or
     as a member of the Texas State Ward operating as
     successor    in military  function.
Hon. Thomas S. Bishop,    page 4,   (M-103)


             “Should any officer   fall to qualify as a
     member of the board under the provisions       of the
     State Constitution     or the provisions   of this Act,
     the next senior officer      in military rank of the
     respective    military  units to qualify shall be
     certified    by the Adjutant General of Texas to the
     secretary    of. state as provided In this Act.'
          We will first   consider the constitutionality      of
H.B. 406, 60th Legislature,    Regular Session, as It relates
to the provision  therein which states that the board shall
be composed of three members from the military      organlsa-
tlons as stated therein,    and the term of office   for members
of the Texas National Guard Armory Board shall be ~of six
years duration.
              The Supreme Court of Texas in the case of Texas
National Guard A-mory Board v. t&Craw, 132 Tex,m613,xS.W.2d
527 (19191,
      . ---,-   wherein the court was con:itriiing the constitutionality
of’provlsions     of the civil statutes ptrtainlng   to the appolnt-
ment of persons acting as members of the Texas National Guard
Armory Board, held at page 632 as follows:
            "'Article   16, Section 3oa, of the Constltu-.
     tlon deals with civil     officers   and boards, and
     Article    16, Section 46 of the Constltutlon      deals
     with dlstlnctly,military      matters.   This seems
     to have been recognized without question in
     commiasionlng officers      of the National Guard,
     and we conclude that the statute creating         the
     Armory Hoard deals distinctly      with the military
     and Is not limited by the provisions        Of the
     Constitution     applying to the civil   officers   of
     the government.
            lsVThe Constitution   seems to give to the
     Legislature    unlimited power to pass laws for
     the organization     and dlsclpllning    of the Militia
     in so far as the said Constitution        Is concerned,
     and not otherwise limited,       except by the require-
     ment that the laws passed must not be “lncom-
     patible with the constitutional        laws of the
     United States 0”
            ” s It Is, therefore,    submitted that the
     tenure of office,      asprescribed     In the Armory
     Hoard Act, Is not in conflict        with the pro-
     visions     of our State Constitutlon.s”
                              ‘-Lg&$*,
     .   .




Hon. Thomas S. Bishop,    page 5,   (M-103)


          ‘The court has held that the members of the National
Guard Armory Board do not fall within the same category as
other civil   offices and can be appointed for any tenure desig-
nated by the legislature.    We, therefore,  are of the opinion
that H.B. 406, Acts of the 60th Legislature,    Is constitutional,
and that such persons constituting    said board can be appointed
for any duration of time designated by the legislature.
          As H.B. 406, 60th Legislature,  Regular Session,
created the Texas National Guard Armory Board, It is our opin-
ion that such members as designated should be appointed for
a term of SIX (6) years as set out in said Act.
           Your second question poaes the problem as to whether
the Assistant Adjutant General, who will on June 1, 1967, be-
come Commanding General of the 49th Armored Dlvlsion,    is because
of his serving as Ase%mtant Adjutant General, ineligible    to
serve on the Armory Board, and who would be otherwise eligible
to serve on the board from the 49th Armored Division.     Your
attention  Is directed to the fourth paragraph of Article   5931-l
which provides:
            “It ie further provided that none oE the
     members of this board shall at the same time hold
     any other office     or position   of honor, trust, or
     profit    under the state or federal uovernment,
     except as a member of the Texas National Guard or
     as a member of the Texas State Guard operating as
     successor    in military  function.”    (Emphasis added.)
            It &I our opinion that the Assistant Adjutant General,
a statutory   office under Article    5796, who will be the Commanding
General of the 49th Armored Division,      could not be appointed
as member of the Texas National Guard Armorv Board because of
the fact that he holds a position      of honor, trust and profit  under
the state government.     Page III-l-Appropriation    Act, 60th Leglsla-,
ture, providee a salary of $15,000,00 per year> for Assistants
Adjutant General n
           In answer to YOUPquestion as.to who would be eligible
to serve on the board from the 49th Armored Division, Article
5931-l further provides as follows:
           “Should any officer    sell to qualify as a
     member of the board under the,‘Drovisions     of the
     State Constitution   or the Provisions    of this Act,
     the next senior oSf&er in mllitarjr rank of the
     respective  military   units to qualify shall be
Hon. ‘l’homaa S. Bishop,   page 6,   (M-103)


     certified  by the Adjutant General of Texas ,~.to the
     secretary  of .state as provided in this Act.”
     (35mphasis added. )
            It therefore   follows that the next aen1or officer
in rflitary   rank, OS the, 49th Armored Division, if not like-
rigs disqualified,    should be certftieti to the secretary of
state,   for appointment to the Armory Board.
           In view OS our answer as to who would be eligible
to serve on the board from the 49th drmcrred Division and our
answer to your next questlon,  it is not necessary to answer
your question number 2a.
             Question 3b states th8t the present Air Natianal
Guard representative     on the Armory 3oard 1s a Civil Service
employee ,of the Untted States , and that he is employed by
the Small Business AdmlnistratZon and aonointed bv the head
0P this agency.      Under the authorfty af-U.S.,-?.     Smith, 8 Sup.
Ct. 595, 597, 124 U.S. 525 (18883, h,e is a federal off”lcor.
In vL#?wof the pravfaion of H.B. 405, 60th Legislature,          which
states that non& of the members of ,thia board shall at the
aame the     hold any other oSf%.ce or position     of honor, trust
or prolit,    with the state or federal government, it is our
apinion that he would be ineligible        to represent the Air
Uattional Guard on the Texas National Guard Armory Board.          You
should be guided In your appointment of a representative          from
the Air Netional Guard by the provision         that states that should
any officer     fall to qualiSy as a member of the board under the
provisions    of the State Constitution      or the provl~sions of that
Actr the next seniox officer       in military rank of the respective
military    units, if not likewise disqualified,      shall be certified
gr~      to the secretary    of state for appointment to the Armory
       .
             Pour next question deal% with wfutther the Command%ng
General OS the 36th InSantry Mvlsion,       wh%?h dlvSsion wa8 re-
c?rgen.tEei¶ on November 1, l965p or the Caaaaandil~@ General OS
the 36th InSantry Br&gade should be certified      as the member
OS the board from such mllltary     organization.
           Inaemuch as the legislature  had before it the f&ct
that the Texas Army National Guard was reorganized   on November
,I, 3965, and did not change the wording in W.B- Aa6 whereby
it would show that the Commend&g General OS the 36th Infantry
Brigada ua~ to be appoltrted,  it is our opinion thet the Legls-
    .     - .




Hon. Thomas S. Bishopi      page 7,    (M-103)



lature intended for the Commanding General of,the 36th Infantry
Divisign to be appointed as a member of the National Guard
Armory Board, as set out in said H.B. 406, 60th Legislature.
                             SUMMARY
                             -------
              1. H.B. 406, 60th Legislature,   Regular
        Session,  Is constitutional and under its pro-
        visions  the members of the Texas National Guard
        Armory Board are to be appointed for a term of
        six (6) yearn.

               2.   The Assistant    Adjutant General, who
        will be the Commanding General of the 49th Armored
        Division,    is not eligible     to be appointed to the
        Armory Board, aa he holds an office or position
        of honor, trust or profit       under the state govern-
        ;:niie    (Page III-l,    Appropriation  Act, 60th Legis-
                ,  and H.B.    406, supra.)

              3. The next senior officer    in military    rank
        in the 49th Armored Division,    If not disqualified
        under the provisions  of H.B. 406, 60th Legislature,
        should be appointed to serve bn the Armoxy Board.
              4. The present Air National Guard representa-
        tive on the Armory Board is not eligible     for appoint-
        ment to the Board, since he is employed by the Small
        Business Administration,   uhich is a position   of honor,
        trust, or profit  with the federal government, and such
        apporntment would be in violation   of the provisions
        of H,B. 406, 60th Legislature.

              5.  The Commanding General of the 36th Infantry
        Division,  should be certified   for appointment as a
        member of the Texas National Guard Armory Board,
        H.B. 4G6, 60th Legislature.
                                       #




Prepared by Sohn H. Banks
Assistant Attorney General
Hon. Thomas $3. Biffhopt Page 8,   (&f-103)


APPROVED:
OPINIONCOMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Roger Tyler
P0t Bailey
Arthur Sandlin
Robert Flowers
A. J. Carubbi,,Jr.
Staff Legal Assletanfi




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