C--.




                             June 1, 1948

       Hon. George Ii. Sheppard
       Comptroller of Public Accounts
       Austin,  Texas
                                      0p1a10a lo.      v-592
                                      Re:   The legality  of expead-
                                             lag State funds to pay
                                             thb Federal Oov&rnmeat
                                             for loss of or damage
                                             to Federal property
                                             assigned to the Texas
       Dear Sir:                             Rational Guard.

                 Your recent request for           an opinion   on the
       above queetion reads as follows:
                     “The Fiftieth   Legislature     made the
            follolilllg   Approprlatlon:
                  “‘109.   Replacement of, payment for,
            repair and rendvatlon of lost and unservlce-
            able property,   including transportation    on
            property purchased and transportation     on
            property turned la by the Texas Rational
            Guard units . . . i
                 “I am now being pre~sented with an ac-
            count drawn la favor of the Federal Qovern-
            meat to pay for stolen or missing property,
            damaged and wrecked truck.
                   “Please advise if the enclosed accounts,
             ln’who$e or part, are a legal charge against                           .: I !,;.,!i
             State funds. U                                              .~.;,
                                                                            ,I. _ j,-. ( ‘,

                 To your letter   of request  you at,taB<ed three
       Reports of Survey on property of the UnLted States,
       lost or damaged while assigned to the,,.Texae Rational
       Guard.  We do not conceive   it to be ,Wl’ office  to ex- J
       press an opinion as to the aufficlencg    or correctness
       of the Reports of Survey and shall for the purposes
       of this opinion assume that the same are in correct
Eon. George H. Sheppard,      Page 2 (V-592)


form  and legally sufficient  under the rules and regu-
lations  of the Texas Rational Guard and the United
States governing Reports of Survey.
            In your request you quoted the provisions
of paragraph 109 of the appropria$lon   made by the Flf-
tleth Legislature   to the Adjutant General’s Department.
Acts 50th Legls. R. 5. 1947, p. 8~07.
            Article    5798, V, C. 3.;    provides     in part:
              ” . . . he (the Adjutant General) shall
       see that all military     stores and supplies
       both the property of this State and of the
       United States .are proper.ly. cared for and
       kept in good order, ready for use; and all
       acCounta   which ‘hay accrue against this
       St$te under the p?ovlsions      of this chapter
       shall,   if correct,  be certified   and approved
       by the Adjutant tinegal and paid out of the
       State~,Tredsqy    as other claims are paid.
            .Artlcle   5799, V., C. S.,   provide,s:
              “The Assistant Quartepmister       General
       shall be appointed by the Gove.rnor Lou the
       recommendation of the Adjutant General . .
       . . He shall be responsible        for all quar-
       termasters,    subsistence,    ordnance,~ medical,
       signal,    and 311, other military    store? and
       supplies belonging to this State, .,or which
       may be issued to this State by the United
       States . . ;.~prepare such returns o,f all
       quartermasters,     subsistence,   ordnanhe, med-
       ical,   signal and other military      stores and
       supplies that hape been issued to this
       State by the United States at the times
       and in the matner required by the Secretary
       of War . . .
             32 U. 5. C. A., Sec. 47, provides:
             n . . . Whenever any such property ls-
       sued to the IVatlonal Guard in any State or
       Terrkt,ory or the Dlst,rlct of Columbia shall
       hate be@ lost, damaged,, ,.or destroyed    . . .
       it sh&l$’ bye examined bg,a ,dislnterested
       surveylng~ officer  of ‘the Regular Army or
Hon. George B. Sheppard,            Page 3 (V-592)


     the National Guard . . . and the report of
     such surveying officer      shall be forwarded
     to the, Secretary of War, or to such officer
     as he shall designate to receive such re-
     ports; and if it shall appear to the Secre-
     tary of War from the record of survey that
     the property was lost,     damaged, or destroyed
     through unavoidable      causes,   he is hereby
     authorized    to relieve   the State or Terrl-
     tory or the District     of Columbia from fur-
     ther accountability     therefor.   If it shall




     .   .   .
     al . . . and the net proceeds of collections
     made from any person or from any State, Ter-
     ritory  or District   to reimburse the Govern-
     ment for the loss, damage, or destruction
     of any property,    shall be deposited la the
     Treasury of the United States as a credit
     to said State, Territory,      or the’Dlstrict
     of Columbia, accountable     for said property,
     and shall remain available      throughout    the
     then current fiscal    year and throughout the
     fiscal  year following    that in which the
     sales,  stoppages,   and collections     were ef-
     fected,  for the purposes provided for         in
     that portion of its allotment set aside for
     the purchase of similar
     or material of war . . .
                 Article   5849,   V. C. S.,   provides:
             “The cost of arms, equipment, and all
     other military     supplies and stores,    and the
     cost of repairs or damages done to arms, e-
     quipment and all other military        supplies and
     stores,     shall be deducted from the pay of
     any officer     or soldier   la whose care or use     J
     the same were when such loss, destruction
     or damage occurred,       if said loss, destruc-
     tion or damage was occasioned by the care-
     lessness,    neglect or abuse of said officer
     or soldier. ’
Hon. George H. Shepperd,                pa@     4 .(V-592),


             ,You are therefore  advised that the ‘money val-
ue   of any United. States property assign&d to the Texas
 National Guard which Is lost, dainaged’oti destroyed due
 to carelessness     or neglect, br if it,s .loss, damage, or
 destruction    could haves been avoided by the exercise    of
 reasonable care, is a legal charge against State funds.
 The cost .of, any such property which is lost, damaged
 or destroyed~due to the carelessness,      ,neglect or abuse
.of any officer     or soldier while in his care or use is
 to be deducted from such officer’s      or soldier’s  pay.

                                   SUMMARY
                The money. value  of any..United States
          property assigned to, ,the Texas I?atlonal
          Guard which is lost, damaged, or .destroyed
          due to Carelessness, or neglect,     or elf the
          loss, damage, OF destruction     could have
          been avoided by the exercise     of reasonable
          care, is a, legal charge against State funds
          appropriated    to the Adjutant General’s De-
          partment for such purpose.      Acts 50th Leg.
          R.   s.   1947,   p.   807,   par.    109.


                                                  Yours   very truly,
                                               ATTORNEY
                                                      GENERAL
                                                            OF TEXAS




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