            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 sub-
ject matter poses the following questions:

           "Is there a vacancy created by re-
     organization of military units other
                                                                .
     than where a member  is unable to serve
     because of the above described induc-
     tion into federal service and 'there-
     after the military  successor in func-
     tion 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 Secre-
tary of State on July 11, 1965. On February 28, 1968,

                                -1008-
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, Command-
ing 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 In-
fantry Brigade is the successor to the 49th Armored Di-
vision, Texas National Guard. Article 5931-1, Vernon%
Civil Statutes, provides in part:

           "There is hereby created the Texas
     National Guard Armory Board to be com-
     posed 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 ex-
     cept that in the event of a vacancy,
     the person qualifying for the posi-
     tion shall complete the unexpired
     term of his predecessor. . . ."

            It was held in Attorney General's Opinion M-
204 that:

          "Under the present reorganiza-
     tion of military units in Texas, the
     Texas National Guard Armory Board is
     to be composed of the Commanding Gen-
     erals 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 Nation-
     al Guard.  Since the Commanding

                             -   PO09-
Lt. Col. Barry B. Kelton, paye 3,   (W210)



     General of the 71st Infantry Bri-
     gade (Airborne) is ineliqible to
     serve as a member of the Texas Na-
     tional 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 member-
     ship on the Texas National Guard
     Armory Board, pursuant to the pro-
     visions 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 mem-
ber 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 of-
ficer of the Texas Air National Guard is Colonel Charles
A. Francis.

          Since Article 5931-1 requires the Texas Nation-
al 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, Command-
     ing 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      truly yours,
                               29



                                          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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