                     THE         A-TMBFZNEY                GENERAL
                                         ~FTEXAS




Maj. Gen. Rose Ayers                                     Opinion       No.    M- 1209
Adjutant  General of Texas
P.   0.    Box     52218                                 Re:    Whether       Sec.     10, Art,.
Austin,          Texas                                          5783, v.c.s.,           appiiee
                                                                to the Texas           State
ATTENTION:           Lt.Col.     Rtchard    K. Day              Guard and constitutes
                     Inspector      General                     authority        to expend
                                                                State     funds      for pay-
                                                                ment of medical             ex-
                                                                pensee      reeulting        from
                                                                the injury         of a Texas
                                                                State     Guardsman         during
                                                                an authorized           duty
Dear      Sir:                                                     service.

       Ln connection             with your recent  opinion             request    concerning
the above captioned               matter,  you have given             ue then following
information:

                           "On 18 April      1972, SGT Charles           R. Eicks;      a
                   member of the Texas          State    Guard as reflected           in
                   Section     2, Article      5768, Title       94, Verno,n's
                   Annotated      Revised    Civil.   Statutes      of 'Texas;     was
                   engaged     ,in Ann authorized      tra,ining      assembly     of his
                   unit    at t.Fie Odessa     Texas Army National            Guard
                   Armory.       During   a claee     concerning        "crowd control",
                   SC2 Hicks      wae thrown      to ,the concrete         armory
                   floor     by another    member of the Texas State                Guard.
                   SGT Hicks.     struck   his    head on the floor           and has
                   required      medical   treatment       the cost      of which
                   totals     $1,787.33 as of this da,t:e.
                          "It is   ant,iciptated      th.a,t  SCT Hicks     will    seek
                   payment    of   hi8   medical  bills      by the Sta,te       of
                   Texas under     the provisions         of Section     10, Article
                   5783,    wt1e 94, Revised        Civi:l    Sta,tute.?  of Texas,
                   11963,as amended by F.B. 108, 60th Legislature,
                   H,rgu:lar Ses?s!ion."




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Maj.    Gen.    Ross    Ayers,     page     2 (M-1209)



         IGU have further         advised      that    the Adjutant         General’s
Department      has not in the past              recognized       th,e compensability
of such a claim          by a member of the Texas State                    Guard when
no,t called     i.,o active      duty by the Governor             and that      the
Dejpartment     has made no att.empt             to prescribe         rules    and
reg:slations       for the training          or other       operations       of the
Texas State       Guard to carry          out the provisione             of Articles
5765-5786,      Vernon’s       Civil    Statutes.         Your request         poses
the following         questions:

                        “a . Are the provisions         of Section    10,
                Article     5783, Title   gk, Revised      Civil   Sta,tutes
                of Texas,     as amended,    applicable     to the Texas
                State    Guard or solely     to the Texas National
                Guard?

                         “b . If the provisions              of the law are
                appl,icable       to the Texas State            Guard,    is the
                Adjutant       General      of,Texae      authorized      to expend
                appropriated          State    funde    for payment       of medical
                expenses       resulting       from injury        of Texas State
                Guard personnel            which were incurred          during    an
                authorized        duty status        as reflected       in Se&ion
                10(a)     Artie1.e     5783, Title        $1, Revised       Civil
                Sf,atutes      of Texas,       as amended,        and if so, what
                St~:at:e ,fund citati,on         should    be employed”!!’

          1.n answer    to your fi,rst            ques,tion,      please    be advi,sed
,tnat we‘ nave co!~lc~!tided that               the provisions           of Sectjon      iO
of Art..ele       ‘>‘78: ::l..,; appii.cable         I;o the Texas State          Guard.
This stat,~t-e       IWXFa ;+art o,T S.B. No. 2’79 (Acts,                    Wth. L,eg.,
R.S. 1~963, ~Chap~ter I,i.2, p.XOg),                   which was de!?cribed           in ite
caFt,ion       “An Ac,t. amending          and revis‘i,ng        Cnapter’ 3, Title
!>& of t.he Revised           Ciivil     Statut.es       of Texas 1925, a8 amended,
r;elati:ig      to the Nat,ional           Guard and ot,her~’ State          Military
Forces.        . .” (Emphasis           added .)       Sections5,6,7,8,113,             11
Em           cf Article       5783 contain           provisi,ons       more comprehensive
tha:n t.he Na,tional          Guard and co’ver the “Military                   Forces”      of
t’his state       o’r tk       “,st,ate    Miii t,ar’y Forc!r:e. ”

        The very next regular          session  of the Legislature        two
years    .!,atw enact-d      H. B. ND. l-110 (Act: .? 59th Leg.,R.S.,
1965,    Chapter;    690 ,$ p.l6olj,    of which Ariiicle      5765 ia a
part,    and   z=scr*~iot-d   in   its captio,n as “An    Act,  amendi.ng




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Maj.   Gen.      Roes    Ayers,        page      3 (M-1209)



and revising       Chapters             1 and 2, Title    94, Revised                     Civil
Statutes    of 1925, as               amended,  and certain     other                   laws,     as
amended,    relating      to          the State  Militia.     . .'

       Article        5765,      Section         I,    states       in    part:

                          "The militia          of this         State     shall      be divided
                 Pinto ,two classes,            the Active           and Reserve           Militia.
                 The Active        Mil,itia,       herein        referred        to as the
                 State     Military       Forces,         shall      consist       of the
                 organized        and uniformed            military         forces       of this
                 State     which shall          be known as the Texas Army
                 National       Guard,       the Texas Air National                   Guard,
                 the Texas State             Guard,      and any other             militia        or
                 military       force     organi.:~cd        under      the laws of this
                 State;     the reserve           miIltia        shall      consist        of all
                 of those       liable       to serve,          but not serving,              in the
                 State     Military       Forces.         . .'

       The Emergency             Clause       of      the   bill,        Section      4,   recites:

                          "The fact    that   there   exists     an urgent          need
                 that     the laws relating        to the State         Militia,       State
                 Military      Forces,    and Texas State         Guard be revised
                 and amended so as to complete               the revision           of
                 the laws relating          to the State       Military        'Forces
                 which 'was commenced         by the 58th Legislature
                 creates      an emergency      and an imperative            public
                 r.eceseity.      . . .'I

       Section        10(a)      of    Article         5783 states           In    pertinent          part:

                           "Every       member of the Military                  Forces     of this
                 state      zshall             be wounded,         disabled        or injured,
                 or who shali              contact      any disease          or illness,         in
                 l,ine of duty wh,ile in the service                           of this     state
                 in case of :riot,               tumult,      breach       of the peace,
                 resistance          to process,           inva s ion        insurrection          or
                  imminent        danger       thereof,       or whe;ever           called    upon
                 in aid of the civil                 authorities,            or when partici- -
                 pating       fin any training             formation         or activity
                 ur,dCI’ order-o'-T-t.he            commanding          officer      of his
                 ;;rryjy--      --~---'--'
                            [or' while        LraveUnp        to or from his place
                 3Tut.y          in such .insl;ances,             shall      be entitled         to




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Maj.    Gen.    Ross    Ayers,     page    4     (M-1209)



               and shall         receive,      or be reimbursed            for,     hospita-
               lization,
               surgical        care in a hospital             and at his home
               appropriate          for the treatment             of such wounding,
               dieab,ility,         injury,     disease       or Lllnees.         and necessary
               transportation-incident                 thereto       so long as such              -
               wounding,         disability,       injury,        disease     or illness
               exists,        and shall      receive      the E-ame pay and allow-
               ance whether           in money or in kind,              to which he
               was entitled           at the time when the injury                   was
               Yncurred        or the disease          or illness         contracted,
               during       the period       of his disability             but not for
               more than a ,tctal            of twelve          l?
                                                              ( ,-I    months     after
               the end of 'his tour             of duty.'          (Emphasis      added.)

        Section     10(d)    of Article       5783 provides    that  the Adjutant
General      shall   adm,i.ni.eter   tteLorovision     of this    Act and shall
prescribe       such rules       and regula,tions     as may be necessary       to
carry     out the provisions         of the Act.

        The Texas State        Guard is declared          by Article     5768, Vernon's
Civil    S.tatutee,     ,to be a defense      force     which Congress      has
authorized       pursuant    to 32 ‘U.S.C.A.,        Section      109, and for this
reason     it is a part      of the State       Militia      authorized    by federal
law.

         The cited     statutes     having    ,the same general      subject   and
purpose      and relating       to the same class        of persons,      the
military      forces     of the state,       must be consIdered       as being
in pari      materia     even though      they were passed       a,t different
seseio,ns     o.f the legisia,ture.          53 Tex.Jur.2d     280, Statutes,
Sec.     186; Wintermann        7:. McDonald,     129 Tex. 275, 102 S.W.
2d 167 (.l9’_rT,                V. dyer     145 Tex. 586, 200 S.W.2d 813
(1947).               -              _I

         It is,        therefore,       our opinion       tha,t under      Article       5784,
Section        10      that    if the Adjutant          General    decides      after
inveetigatlon              and a 'hearing,       tha.t Sgt.     Hicks    injury       was in
line     of dut:y er a :restll!,           thereof      when participating            in
training         activitiy       under' irde,re     of the commanding           officer
of nie unl,t,            Sgt.    Kicks   Is enfitled        to receive      or be reim-
bursed       for hospitalization,               medical     and surgical        care
under      tna,t     stat:ute.




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Maj.       Gen.    Ross   Ayers,          page      5 (M-1209)



        In answer' to your second           question     as to what state
fund may be used to compensate               Sgt.    Hicks,   we observe
tha,t there       is an appropriation        sufficient     in law for such
purpose      provided    for the Adjutant         General's    Department.
Item    9 of Article       III-l,    Chapter     1047, page 3500,      62nd
Legislature,        R.S. 1971:

                              "Martial      Law and emergency    use of troops,
                   expense       of courts      martial,   and for medical    and
                   hospital         service    fees and wages:

                          A.       Emergency          Pay    of   Troops       $ 2,000.

                          B.      Riot   Control            Training
                                  -(Texas State             Guard)             $15,000.”

                              (Emphasis          added.)

        In our opinion,         Sgt.   Hick's     claim     may be paid out
of that    appropriation.            If that     appropriation      has been
previously     exhausted,        Sgt.   Hick Is claim         could be paid by
a subsequent       legislature,        assuming      the Adjutant      General
makes the decision           to approve       the claim.

                                           -SUMMARY-

                            The compensation       provisions         of Section        10,
                   Article     ?783,, V.C.S.,      are applicable           to members
                   of the Texas State          Guard when injured             in line       of
                   duty during      a training       assembly       involving       riot
                   control,     and the approved          claim     by the Adjutant
                   General's     Department       may be paid out of its
                   1971 Appropriation          for riot       control     training.




Prepared          by Kerns       Taylor
Assistant          Attorney       General




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Maj.    Sen.      Ross   Ayers,     page     6 (M-1209)



APPROVED:
OPINION COMMITTEE

W. F.    Allen,      Acting       Chairnan

Roge~r Tyler
Ronald   Luna
Max Flusche
James :Hackney

SAMUFL D. MCDANIEL
Staf,f Legal Assistant

ALFRED WAL,KER
Executive Assistant

NOIA WHITE
First Assistant




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