       OFFICE      OF        PHE   ATTORNEY         GENERAL       OF TEXAS




@oonorable J. i'iattPage
adjutant  General
Austin, Texas




                                ate of Texas? ,,




          These Nationil Guardsmn have been.ordered’into
the aotive..tilitaryservice of t%e United States by the.
Tresibnt. of the United states octing,un&r the authority
of Pcblic Resdlution NO. 95 , Act by the 76th Congress. This
resolution        reach       .in,.part   a.9 foLlom3:        ~                          >
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                 Honorable 5. Watt lage, ?age ‘2


.                           Yb?solvedby the $enate and House of Repre-
                      sentatives of the United Z&es    of herim in
                      Con&ress aoseubled,That during the period ending
                      June 30, 1942, the Iresldeat be, and is hereby,
                      authorized.fro%tiz to.tlae to order Into the
                      aotive rtilitaryservice oi the United states for
                      a period OS twelve concecutive rsontheeach, any
                      or all smxbers oad aits or my or all reserve
                      com;;onents of the Amy of the United Xates (ex-
                      ce?t thit any Dcrcon in.the Xational Guard oi the
                      United Statas under the ace or 18 years so ordered
                      into ,the active Alittry sexvice shall be in:.lediote-
                      ly issued an honorable discharge froa~ths ILatioual
                      Guard of the United 5tctes); Ned retirad Dersonnel
                      OS the Zicgular:Ar~y, v&th or without their consent, ’
                      to such extent and in such ;mnl;erno he ray cleen
                      necessary for the stredgthenlngoi the national
                      deferso: Provideda That &he :;le,zbers
                                                           and units of
                      the reserve coxgoneatsof the Amy OS t!ieUnited
                      Zatss ordered into active “edera service mder
                      this Authority shall not be ezployed beyond the    ,’
                    .:lizits ol the !Yestcrn5mlsphere except in the
                    ” territories and possessionsof the United States,
                      including,the-Ghilip2iao .Islands.
                           “Sec. 2. -411Xational Guard, Esrerve,.and
                      retired parsoonel ordered into the active zilltary
                      service of the United &totes uziderthe foregoing
                      special authority, shall frostthe dates on which
                 .“,,;.
                      they are respectively,recjulred by such order to
                     ireport foxduty in such service, be subjectto the
                    :,res-peotivelass and’reguiationsrelating to .en-
                                 reenlistxmts;
                    :.,.list~ents,              ezgloyscnt., i2on&xt,
                     ~rlghts,and privileges,and dischargesof such
                      personae1 in such service to 2he saxe extent ia
                      all particulars as if they had been ordered into
                    : such servica under existing general statutory au-
                      thorixationo.n.
                           Section 101 oi the Rational Defense ;,otof the
                 kited States, OS a:zendedto January 1, 1940, (38 Statutes
                 208)) provides:
                           *The National.Guard when oalled as such into
                      the service of tLe United states shall, from the
                      t.i;ethey darere$uire& by the term of the call to
                      respond thereto, be subjectto the ,laws’andrcgu-,


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Honorable J. Katt Page, Tage 3


     lations governing the aegular Amy, so far as
     such laws and regulations are applicableto .
     officers and enlisted ‘menwhose permanent reten-
     tion in the silitary  service, either on the
     aotive list or on the retired list, is not con-
     templated by existing law."
         Section 111 of the same act provides as follows: .,
             "When Congress shall hzve declared a national
       exergenoy  and shall have authorized the use of armed
       13nd forces of the United Atntes for any purpose
       requiring the use of troops in excess of those of
       the Regular Army, the President may, under such re-
       gulations,including such physic31 examination3s
       he may prescribe, order into the active military
       service of the United States, to serve therein for      '
       the period of the w3r or emergency unless sooner
       relieved, any or all units and (the) members (there-
       of) of the National Guard of the United titates.
       All persons so ordered into the active ,military
       service of the United States shall from the &ate
       of such order stand relieved from duty in the
      National Guard of their respectiveStates, Terri-
       tories; and the Liistrictof Columbia so long as
       they shall rennin In the active military service
       of the United States, snd during such time shall.
   .‘, be subject to such laws and regulationsfor the
       governmentof the Army of the United States 3s nay
       be applicableto members of the Amy whose permanent
       retention in active mi'litaryservice is not con-
       templated by law.. The organizationof said ,units
       existing at the date of the order into 3ctlve I;&-,:'-~~~:
       era1 service shall be maintained intact insofar      ~,
       3s practicable.

           "Comnissionedofficers and warrant officers
    appointed in the National Guard of the United
    States and commissionedor holding w3rrauts in
    the Army of the United States, ordered into Federal
    service 3s herein provided, shell be ordered to
    active duty under such appointmentsand commissions
    or warrants: Provided, That those officers and
    ~i3rran+, officers of the &tionsl Guard vihodo not
    hold appointmentsin the National Guard of the
    United states may be appointed and commissionedor
    tendered warrants therein by the President, in the
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RonorableJ. ;;attRage, 23Se 4


    sam      grnde ona brihch they hold in the Xational
    Chard.

         "Gfflccrs and enlisted .:.oA
                                    ?hila     the ser-
                                                  in

    vice of 5t.Gu2itca .2t.‘.?.i*25
                              uncor the ter.:3Of tilis
    sect102 si311 raceive the gay and 0110~3r:c3s   ~ZO-
    vidsd by 1~ for officers and eulisted .XC o? the
    rescAmc forces w!:saozderad to active duty, except
    briszdicr generals aaL &or   Cmemls, vho s?all       .
    ?azoivo the saze 23y a.ldaiioeznces as 3rov?dad by
    law for brigadier gencmls 3.-d:zjor g-ncrliLsof
    th3 Aegular.Ar~y,reagectiv3lg. Upon being relieved
    fro3 activa duty in the 2kiitory sir;rice of tt3
    United Lta'xs a11 individasls325 units shall there-
    uson revert to their Zatio231 Guard status.

         "In the initial zobilizztionof the X'etionsl
    Guard of  ;; I=. ~2~. it e a States,    ccr-streS$h officer
    personnel shall be tclkn fron the ;i3tioml Guard
    33 far as.practicabie,2nd r‘s2 t33 purpose Of this
    erps..nsion  mrral;t       O;'fiCclSS rd   eaiisted aen of
    the Sistional h.rd ;~y, in tizLeof PWCE, be ap-
    pointed officer3 in the Xntional Guard of the United
    states a3d comissionad 'inthe Army of 'United
    Ltates."
          The,provisionsof the Constitutionof.the State
of ?exas bearing up03 your ~uastiocs ere as follo:?s:
            .nSc~iion lE, krticla 16. No mzber of Congzass,
    nor person holding.or exercising say office of pro-
     fit or trust, Uyler tho United States, or either of
     thes, or uader shy Zoreigr,power, shall be .eligible
   ,,as a z;lber of *&,aLegislut;lre
                                   , or hold or axeroise
     any office of profit or trust under this state."
           Wection 33, Articlo.16. The accounting of-
    ficers of this State s&ill neither dr3vjnor >ay
    3 I'JDEailZ u_oonthe treasury in fsvor of any person,
    for sel3ry or co:ngcnsation  as ageat, officer or
    ap$okiteo,   w:;oh:;lds3t <hc sc~e time any other
    offica 02 ~o3ition of hOCO2,~trust or arofit, un-
    der this State or the Tnitad SS3tes, except 3s pro-
    scribed in this Constitution. Provided, that this
    restrictiou3s to the dr3wlnC a3d flayingof 2arrsnts
    u>on the treasury sh311 not a?.nlyto ofricers of
    the N3tional Guard of Terss,   the National Guard
    Reserve, the Officers Reserve Corps of the 'Jnited


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     Ronorable J. 'tiatt
                       Page, Rage 3


          States, or to,enlisted men of the Xntional Guard,
          the Xational Guard Reserve, and the Organized
          Rese-es of the United States, nor to retired of-
          ficers of the United States Army, Navy, and Marine
          corps, and retired warrant officers and retired
          enlisted .menof the United States Army, Navy, and
          LtirineCorps.n
                "Section 40, ilrticle2.6. No person shall
         hold'or exercise, at the same tims, more than one
          civil office of eJolu.leiit,except that of Justice
          of leace, County Comtissioner,Notary Rublic and
         ?ostz.aster,  Officer of the i\iati.onal
                                               Guard, the
         National Guard Reserve, and the Officers Reserve
          Corps of the United States and enlisted men of the
         ';~"ipe~
         - m1       Gaz,-d
                         , the X~tiorzL Gxrd ?.eserve,cad
         -: _
          .-= CZZT1-'-,-zi
                         -jr===-,--
                          -----2: 0'
                                   - -'em
                                     .-e ---iy=i;--.Ls- ZLZ-
                                         Gm---w Y.."e-3,
         re;ireZ officers of she United States Army Iiavy,
         and Xsrine Corps, and retired warrant offi.Aers,
         and retired enlisted men of the United States
         Army, Navy, and Larine Corps, unless otherwise
         .speciallyprovided herein. .?rovided,,that   nothing
         in this Constitution shall.be construed to prohibit
         an officer or enlisted ;1anof the National Guard,
         and the Rational Guard seserve, or an officer in
         the Officers Reserve Corps of the United States,
         or an enlisted man in the Organized tieservesof the
         United States; or retired officers of the United
         States Army, Navy, and Zarin~eCorns, and retired
         warrant officers, and retired enlisted msn of the
         United States Army, Navy, and ibrine Corps, from
         holding in conjunctionwith such office any. other
         office or position of -honor trust or profit, un-
         der this State or the United States, or from voting
         at any election, general, special or primary, in
         this State when otherwise qualified.**
               Since Article 16, Section 40 has applicationonly
     to the hoiding of~two l'civil"offices of emolument, that
     section of the Constitutiondoes not apply to the situation
     vkich you present. Zx parte Dailey, (Texas Criminal Appeals)
     246 S.K. 91.
               Article 16, Section 12, and Artiole 16, Section
     33, however, are not linited in their application to "oivil"
     offices.
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     Eonorable J. -:'att
                      ?age, ?age 6
                               *

                 C'henan Officer or an enlfsted man fn the National
     Guard of the .Stateof Texas is called into thG active military
     service ~ofthe United States, from the date that such officer
     Or enlisted   ran in the i~ationnlGunrd of tho State~of Texas
     is m'usteredinto the active military service of the United
     Sb?teS he is relieved from duty in ths Nstional   Curd  of the
     Pisate Of Texas and ceases     to be a member      of that   orgsnization..
     If hG holds nn office of profit or trust under this State,.
     2nd by virtue of having been ordered ?nto tke active military
     service Of tho United States he acqtiires and holds or exer-
     CiSGS    an Office   Gf r;rOfit or trur;t in the    active   dlitary
     service of the United Statss, under the provisions of Article
     16,  kCtiOn 3.2, Of OUT State CGnstitutiGn, h.e autGm&tically
     vacates the office which he holds under this State. Lowe
     VS. State, 83 Texas Criminel ZGsorts, 134, ,201S.::'.  986;
     Fekota vs. City of Zest St. Louis, 315 Ill., 58, 145 N.E:,092.'
     Quoting from the case last above cited:
                  nAftn$ She plaintiff was inducted into the United
             States Army he ceasGd to be a r.ember of the 1Xlitia,
             and tke provision  in the Constitutionthat appoint-
             rmnts in that organization  should cot bc considered
             lucrative can have no apglicoticn.~~
              Each of the question's v?hicti
                                           you have presented
     therefore, must be answered in t.hGnegative,
               You have limited yo;lrquestions to thG situation
     v,herea gstional Guardsman holding an "office* under this
     State by virtus of the greeidentialon11 acquires sn '~0ff.i~~'~
     in the active militsry service of the UEited States, and
     ouropinion above has reference only to that situstlon. Hovr-
     ever the ,followingfeet situations,we feel, should be OOn-
     sidered:
                   1,    ~ssu~le that i Kational Gusrdsnan holding a
     State *~office~~                     ke pesidential call ecquires,
                          by virtue of t.,"
     I;ot an    ~~offiCG*~ of  profit  or trust, but a W~ositiOn~~of
     honor, trust or pofit in the active,militarysarvice or the             <
     United States.        TO  ty.Ls situo:tSon,Article 16, Zectioc 12,
     of the Constitution,does not api~ly,and the Stats office
     ?7OUldnot be forfeited. i?owev        er, so fans as tix "gosition**
     Gf hOZlOr,    trust    or ~r0fj.t be hold under the United States,
     under J,rticle10, section 33, of the Constitution,the ac-
     coutin~      officers of the State are 3rohibitcd from drowin&
      -.. gsying   ,y y:errart  upon  the treesury for the salery.or Com- :
     i&ation attaching-tothe State "office.!'
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              Xonoiable 5. ':'att
                                ?cge, Tace 7


                          2.    dssmo
                                    that a Xntionel Wardsan is an nom?loy~en
              of the   Xoto,&mi     by
                                   virtue of t&? prcsidectial caii, nc.;ulr*s
              an "office" or ff30sitionf'of "hon.or,trust or profit** in the
              a ctivc riilitaryiervics of ihlr:i'nitedSt3tcs.  To this situa-
              tion ?yticl,e16, Section 12 of the coastitutiondoes m t apply,
              end tileendoyee Of the S-bate?:ouldnot thereby automtically
              loss his 5tate eqloyxxt.     ,U.owever,30 long as the wofficelz
              or 9ositionf1of "ho;lor,trcst'or yrofitB1in the active nilitary
              service of the United States is held, under Article 16, Section
              33, of the Constitution,the accounting officers or the State
              of Texas are Fzohibited fro- drawiq: or Taying a vrorrantu?on,'
              the treasury for salary or coxpansationattachinG.tothe State
              employzzent.
                        BCT a discussion,ofSection 33, Article 16, of the
              Constitution;in its application ",ot5e holding,oi'tvropod-
              tj.onsat the sane ti.xe,see our C?iziol Ko. o-2607, attaohed
              heroto.


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                                               3JY
                                                     Richard i?:'.
                                                                Fairchild
                                                               Assistant
