.. . .




                          THEA'ITORNEYGENERAL
                                    OF     TEXAS

   WILL    WIIBON
ATTORNEY         GENE-L
                                         May 4, 1960

         Major General K. L. Berry
         The Adjutant General of Texas
         P. 0. Box 5218,West Austin Station
         Austin 31, Texas
                                         Opinion No. W'W-837
                                         Re:   Authority to obtain group
                                               insurance for a class of
                                               individuals referred to as
                                               "Army National Guard Tech-
         Dear General Berry:                   nlclans."
                You have asked, by your letter of March 15, 1960,
         whether Army National Guard Technicians who are paid from
         federal funds are State employees. You state that this
         opinion is desired in connection with an effort to write
         group insurance for this class of Individuals.
                   Section 1, Article 3.50 of the Insurance Code states
         that:
                        I'Nopolicy of group life insurance
                   shall be delivered in this State unless
                   it conforms to one of the following des-
                   criptions:
                           0. . .

                        "(3) A policy issued to an incor-
                   porated city, town, or village, an inde-
                   pendent school district, State colleges
                   or universities, any association of
                   State employees, any association of State,
                   County and City, town or village employees,
                   and any association of any combination of
                   State, County or City, town or village
                   employees, and any Department of the State
                   Government . . ."
                                                               -...




Major General K. L. Berry, Page 2, (w-837)


       Article 3.51 provides in part:
            "Sec. 1. The State of Texas and each
       of its political, governmental and admin-
       istrative subdivisions, departments, agen-
       cies, assoclatlon of public employees, and
       the governing boards and authorities of each
       State university, college, common and inde-
       pendent school districts or of any other
       agency or subdivision of the public school
       system of the State of Texas are authorized
       to procure contracts insuring their respect-
       ive employees or any class or classes there-
       of under a policy or policies of group
       health, accident, accidental death and dis-
       memberment, and hospital, surgical, and/or
       medical expense insurance. e e ."
       The employees in question are Army National Guard
technicians and they receive their compensation directly
from the Federal Government,
       National Guard Regulation No. 51, Section I, para-
graph 4 provides that the "technicians are considered State
employees" but are entitled to certain specified benefits.
However, the State of Texas is not bound by this designation
by the National Guard. Section I, paragraph 2 of National
Guard Regulation No. 51 provides:
            "2. Authority, Army National Guard tech-
       nicians referred to in these regulations are
       employees authorized under the provisions of
       title 32, United States Code, Section 709, for
       administrative and accounting duties, mainten-
       ance, repair and inspection of material, arma-
       ment, vehicles, and equipment provided for the
       Army National Guard and used solely for military
       purposes. The Secretary of the Army has dele-
       gated to the adjutants general of the several
       States, Territories, Puerto Rico, and the
       District of Columbia, the authority to employ,
       fix rates of pay, establish duties and work
       hours (a minimum of 40 hours oer week). suuer-
       vise, and discharge employees-within the purview
       of these regulations, subject to the provisions
       of law and such instructions as may from time to
       time be issued by the Chief, National Guard
       Bureau. (21 Comp. Gen. 305.)" (Emphasis ours.)
Major General K. L. Berry, Page 3, (~4-837)


       We quote from United States v. Holly, 192 F. 2d 221
(C. C. A. lOth, 1951) which held that a person who was em-
ployed as a caretaker or technician assigned to a State
National Guard unit was an employee of the United States
within the meaning of provisions of the Federal Tort Claims
Act:
            "Thus the Federal statute creates the
       position of unit caretaker and generally out-
       lines the duties. The pay for these services
       is wholly from Federal funds. The regulations
       define the duties and responsibilities in de-
       tail. The maximum pay scales are fixed by the
       Secretary of the Army, while actual rates of
       pay, within the limits fixed by regulation, are
       eatabllshed by the State Adjutant General by
       virtue of the delegation of that power from the
       Secretary of the Army. The primary duties of the
       caretakers are the care and maintenance of Federal
       property assigned to the National Guard for mili-
       tary purposes. Through the State Adjutant Gen-
       eral, the Secretary of the Army and the Chief of
       the National Guard Bureau have complete control
       over the work of the caretaker, including his
       employment and discharge. The federal govern-
       ment maintains a reasonable measure of direction
       and control over the method and means of a care-
       taker's performing his service. There is present
       every element necessary to constitute a unit care-
       taker an employee of the United States. The fact
       that under the regulations the caretaker must be
       a member of the National Guard and perform duties
       for the state is immaterial. ~ D 0"
       Using the same line of reasoning as was used by the
Court in United States v. Holly, supra, we are of the
opinion that the individuals in question here are not
State employees.
                        SUMMARY
            Army National Guard technicians em-
            ployed pursuant to Title 32, United
            States Code, Section 709, are not
            State employees within the meaning
Major General K. L. Berry, Page 4, (wW-837)


            of Articles 3.50 and 3.51 of the
            Insurance Code.
                          Yours very truly,
                          WILL WILSON
                          Attorney General of Texas


                           By   'L&&,~~
                                 William H. Pool, Jr.
                                 Assistant Attorney General

WHPjr:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Wallace Finfrock
John Reeves
Marietta McGregor Payne
Marvin F. Sentell
REVIEWED FOR THE ATTORNEY GENERAL

BY:   Leonard Passmore
