                           Q9fficeof tt)e !Zlttornep 4Benetal
                                   Sbtatt of Ctxas
DAN MORALES                            August 10.1992
 .,l-nMWY
        CESLLAL
     Major General Wiiiam C Wilson             Opinion No. DM-148
     Adjutant General
     Texas Army National Guard                 Re: Authority of the Texas National
     P. 0. Box 5218                            Guard to obtain liability insurance with
     Austin, Texas 78763-5218                  federal funds to cover National Guard
                                               officers and employees who operate a
                                               mobile shooting range for recruitment
                                               purposes (RQ-167)

     Dear Major General Wilson:

            You asked for the attorney general’s opinion concerning whether the Texas
     National Guard is authorized to purchase liability insurance, with funds fumisbed by
     the federal government, to cover National Guard officers and employees who
     operate a mobile shooting range for recruitment purposes. We conclude that the
     Texas National Guard does have such authority.

              You advise that this issue arises in the following context: The Texas
     Adjutant General’s Department has three mobile pellet rifle ranges that are used by
     the adjutant general during National Guard recruiting activities; these mobile
     ranges are intended to give national guardsmen and potential recruits an
     opportunity to practice and demonstrate their marksmanship. The mobile ranges
     are installed in trailers and must be pulled by trucks. The adjutant general obtained
     liability insurance to cover the officers and employees of the adjutant general that
     operate the mobile rifle range. The insurance was placed with Bssex Insurance
     Company, of Wilmington, Delaware, through a licensed Texas insurance agent. The
     premium for this insurance is S919.45 for the period from une 1,~1991, through
     June 1, 1992. The federal National Guard Bureau approved the purchase of the
     liability insurance and has paid the state of Texas S919.45 to obtain the liability
     insurance; this sum has been deposited with the Texas Comptroller of Public
     Accomlts.

            The adjutant general submitted a purchase voucher to the Comptroller of
     Public Accounts in July 1991, requesting that the comptroller issue a warrant for




                                              p.   775
Major General Wu~ranlL Wilson - Page 2            (U+148)




$919.45 payable to the insurance age1.t to pay the premium Ibe comptroller
advised the adjutant general that the voucher could not be paid because the adjutant
general did not adequately demonstrate that he had authority to obtain the liability
insurance. Because the insurer was not licensed to transact business in Terms, the
comptroller also concluded that the insurer was not a ‘liability insurance company
or companies authorized to transact business ia the state of Texas [as required by
article 6252-19a, V.T.CS.1,” and therefore the comptroller could not pay the
voucher. As a result of the foregoing, the premium has not been paid.

        A public officer may make only those contracts on behalf of the state that the
off&r is expressly or impliedly authorized by law to make. FOHWot~h Cindy Club
v. Sheppd, 83 S.WJd 660, 663 (Tex. 1935). Article III, section 44 of the Texas
Constitution provides that an appropriation is valid if it is supported by pre-ezisting
law. See Taas Pub. Bldg. Auth. v. Mattar, 686 S.W.2d 924.929 (Rx. 1985); Au&
Nat7 Bank v. Sheppard, 71 S.W2d 242, 245 (Tex 1934). Therefore, the voucher
presented to tbe comptroller should be paid if: 1)the adjutant general bad
authority pursuant to preexisting law to fncur the type .of obligation at issue, and
2) funds have been duly appropriated to pay the obligation, We conclude that both
of these conditions have been met.

        The National Guard has an “unurlal ‘hybrid’status as an agency with both
federal and state characteristics.” Johnron v. ckr, 780 F2d 386,388 (3d Cir. 1986)
(citation omitted). The National Guard is the modem successor to the state militias
recognized in article I, section 8 of the United States Constitttt.ion Jorzicn v.
Nurionol Gud Bureau, 799 F2d 99.101 (M Cr. 1986). The state National Guard
units are agencies under state control and authority. Jdrnron v. Orr, id Pursuant to
Texas law, the state of Texas has established a National Guard unit Set Gov’t Code
90 431.041-.@45. The federal government provides state National Guard units with
funds, subject to federal rules and regulations. See 32 U.S.C 00 106,107. Through
this funding and regulation process, the federal government maintains considerable
control over the standards, organization, activities, and functions of the various state
National Guard units. See New Jw Air Nat1 Gu& v. Fed Labor Rd Ador.., 677
F2d 276,278 (3d Cir. 1%). The National Guard Bureau is a federal agency within
the Departments of the Army and the Air Force with responsiiility for maintaining
liaison between the Departments of the Army anh the Air Force and the various
state b ~tional Guard units, as well as publishing National Guard regulations and
implementing and adminkteting approved National Guard policies and progranr.




                                          p. 776
Major General William C Wilson - Page 3        (~~148)




See 10 U.S.C 0 3040; Bollen v. Nat7 Guani Bunsau, 449 F. Supp. 343,345 (W.D. Pa
1978).

       The Texas Adjutant General is the bead of the military department of the
state and its military forces, incb~ding tha Taxas National Guard. Gov’t Code
0 431.022, see ai.w id. 0 431.001(3X4). The duties of the adjutant general include
pe&ming “for the state as naat as practicable the duties that pertain to the chiefs
of staE of the army and air force and the secretaries of the military services, under
regulations and customs of the Uaited States armed forces.’ Id. #43l.m(2).
Federal Jaw provides that the Secretaties of the Army and the Air Force are
responsible for, and have the authority necessary to conduct, all the affairs of their
respective departments, includii reediting, orgat&ng, supplying, quipping, and
train@ amice persons within their respqtive             depattments.      10 U.S.C
003013@)(l)-(S) (Secretaty of the Army); 8012(b)(l)-(S) (Secretary of tbe Air
Force); see aJro Attorney General Opinion JM-885 (1988). Therefore, the Texas
Adjutant General enjoys the same authority and responstMlities with respect to the
Texas National Guard Gov’t Code 0 431.029(2). Federal law expressly authoriaes
the use of appropriated federal funds to pay the expenses of the National Guard
Bureau, fnchtding the “acquisition, construction, maintenance, aad equipment of
shooting galleries.” 32 U.S.C 00 106,107(a)(6).

        Pursuant to a Federal-State Agreement between the United States National
Guard Bureau and the State of Texas, the State of Tenas has agreed to amduct a
National Guard recruiting and retention program in Texas Snanced by the federal
government. ‘The agreement provides tltat all approved custs in the implementation
of this program shall be furnished by the federal govermnent. In a National Guard
Bureau directive dated August 21,1986, the National Guard Bureau authorized
state National Guard units to obtain liability fnsurance to awer personal injury and
property damage resulting from the use of the mobile recruiting pellet rifle ranges.
This directive also authorized payment or refmbursement to the states for the costs
of obtaining such insurance. Pursuant to this directive, the Texas National Guard
requested payment from the National Guard Bureau for obtaining such liability
insurance. This request was approved by the National Guard Bureau in a
memorandum dated June 27, 1991, and the state of Texas has bean paid. Gn the
basis of the Texas Government Code, the United States Code, the Federal-State
Agreement, and the directive of the National Guard Bureau, we conclude that the
Texas Adjutant General had authority to obtain the tiabih~ insurance to cover the
National Guard officers and employees that operate the mobile recruiting pellet
Major GeneraJ William C Wikn        - Page 4        (~148)




rifJe ranges. See gencmQ~ Attorney General Gpiion H-1186 (1978) (federal law
may be the pre-existing legal basis for a state officer’s authority).

         Article V, section 22( 1). of the current General Appropriations Act provices:
“AlJ funds received from the United States govetmnent by state agencies and
institutions named in this Act are hereby appropriated to such agencies for the
purposes for whifb the fcdcral grant, &cation, aid, payment or reimbursement wz
made.’ I-LB. 1, Acts 1991.72.d J..eg, 1st CL, ch. 19, at 365, lK!2 of Aug. 30, 1991,
Vernon’s Sesa law Serv. 365. 1022. Funds totaJJing r919.45 have already been
received from tie federal government and deposited H th me comptroller for the
purpose of paring for the liability insurance; pursuant to secu>n 22(l) this sum is
appropriated for paying for the Jiabiity insurance.

         The comptroller ako refused to pay the requested voucher because the
insurer, Essex Insurance Company, is DOi licensed in Texas, and tt crefore ‘be
comptroller concluded that Essex wzs not authorized to transact busiutss Jn Texas
as required by article 6252-19r, V.T.C.S. Article 6252-19a author&s the depart-
ments or agencies of the state to insure its officers and emp’wees from Jiabiity
arkif from the use or operation of automobiles, trucJts, tractor 1 power equpment,
aircraft, or Y’jtercraft, but such insuranct shaJ! be provided by a liability insurance
company ot companies autJ -rizcd to transz .t business in the State of Texas.”
V.T.C.S. art 6252.19a, 0 1. This satme applies only to insurance obtained for
‘iabilities asking from the use or operation of motor vehides, power equipment,
aircraft, or watercraft. Id ‘Ibe mcbiJe shooting range is not s&propelled, it does
not meet any of tbe other article 6252.19a categories, anE’.&usthe statute does not
apply.



               The adjutant generaJ, as chief of the Texas National Guard,
          has authcity to obtain liability insurance, with federal funds, to
          cover NationaJ Guard officers and employees who operate a
          mobile shooting range for recruitment purposes. The funds to
          pay the insurance premium are appropriated by article V,
          section 22( 1). of the current General Appropriations Act.
                                       .
              Article 6252-19a, V.T.C.S., which requires that the state
          obtain liability insurance from a company authorized to transact




                                         p.   770
 Major GeneraJ William C Wilson - Page 5         KM-148)




           business in Texas, applies only to liability insurance obtained to
           cover liabilities arising froni the use or operation of motor
           vehicles, power equipmen& aircraft, and watercraft, and thus is
           not applicable in this case.




                                                   DAN      MORALES
                                                   Attorney General of Texas

 WILL PRYOR
 First Assistant Attorney General

: ;MARY KELLER
   Deputy Assistant Attorney General

‘~REJvEAHJcKs
l.,
  ISpecial Assistant Attorney General

 MADELEINE B. JOHNSON
 Chair, Opinion Committee

 Prepared by Geoffrey Hennessey
 Assistant Attorney General




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