                                    ENERAL




Hen, K:. L. Berry         Oplnlon Ho,,.;V-679.
Adjutant General
Capitol Station           Re:   The legallty.of the pay-
Austin, Texas                   ment of a personal injury
                                claim of a I'iatlonal
                                                    Guards;
                                man from funds appropriated
                                to the Adjutant General's
                                Department.
bear Sir:
          Your request for opinion and correspondence at-
tached thereto show that Wllllem C. Lynch, a member of
the Texas Hatlonal Guard, was Injured while playing soft-
ball with a national Guard softball team during a Hemorlal
Day celebration on May 30, 1948.    Iilkmedical and hospital
bills amount to the sum of $348.50.
            Your questions are as follows:
          "(1) Is payment of claim set forth In
     basic letter a legal expenditure from funds
     appropriated to the Ad utrnt General's.De-
     partment under item 11i of the Adjutant Gen-
     eral's appropriation for Fiscal Year 1948?
          "(2) In the event the answer to ques-
     tion No. 1 Is in the affirm@tlve, can other
     outstanding claims of similar nature, which,
     if presented and approved, will exceed the
     balance left in .th8 amqunt of the present ap-
     proprlatlen, be legaily paid, and If so how
     can payment be made?
          We are of the opinion tMt the above claim con-
not be   Id from funds appropriated 'to your .department.
Item 11r of th8 current appropriation fer the Adjutant
General's Department provides:
          "General maintenance, traveling expenses,
     bond premiums, laundering and reconditioning
     of property, lnc,ludlngtransportation there-
     of, medical and hospital services for troops
                            ,       ,,
                  “Eiierymember of the military forces of
             this State who shall be wounded or disabled
             while ltithe service ef this State, in casea
             of riot, tumult, breach of the peace, resist-
             ance tm precessP lnvagion; insurrectien, er
             ilhmlnentdanger thereef, er’Whenever called
             upon In aid of the clvll autheritles, shall
             be taken care ef end provided for at the ex- 1
             pense of this State,‘~

           A study of the Obey ~statutb?$ads to the ten-
elusion that before the State Is 1iabIe’fsr any Injury
iticupIT8dby a National &tiards@an,,
                                   ,sukhInjQry must be
Incurred under one et~the tilrauv?stancbaabove set out.
In other words) the rule ef ~exnressle~uhlua (the expres-
sion of on8 thing 1s the excIusl.on,of another) applies.
-Since the 1njur.ysustained in the’instant case was net
sustained under.anj ef the olrowP&tances enumerated In-..
Article 5845, we cannet see whew the claim can be legal-
ly paMby    the State.
          Article 5845, tegethrr’&th the appropriation
bill, requires that~an lnjtit er weund,must net only be
Incurred in line Qf duty, bu must be incurred in one of
several enumerated circumstances‘p The situation under
censlderation does not come within any ef these enumer-
ated clrcumstanc~es
                  O               .
          Since we have answered Jrourfirst question In
the negative, it 1~sunnecessary te answer your secend .
question.
                                SUMMARY
                  The&e being no statutery autherlty, the
             State of Texas may ‘net pay for the medical
             and hespltal‘servlces of a Bat,l6halGuardsman
             Injured while participating In an athletic con-
             test as a member ef the,Guard Team, such Guards-
             man not being In the actlve’servlce ef,the State
             at the time In response te rict, tumult, breach
Hon.   K. L. Berry, Page 3,    V-679.


       of peace, resistance, invasion, lnsurrec-
       tlon or aid to clvll authorities (Art. 5845,
       v. c. 9.).
                              Yours very truly
                       ATTORFIEYGENERAL OF TEXAS


                       By       &&-%         a'&
                                    Clinton Foshee,
                                         Assistant.


                       AlPROVED:        '
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                       ACTING ATTORHEY GEIVEERAL,
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