          THEA~TORNEP       GENERAL
                   OF TEXAS


                          April 17, 1962

Brigadier General Thomas S. Bishop
The Adjutant General of Texas
Austin, Texas
                                Opinion No. WW-1313
                                Re:   Whether the National Quard
                                      or the State of Texas is
                                      required to pay additional
                                      service pay or additional
                                      medical or hospital expenses
                                      to or on behalf of service-
                                      men in the event of further
                                      treatment or rehospitaliza-
                                      tion under the facts stated,
Dear General Bishop:                  and related questions.
          Your request for opinion on the above captioned matters
informs us that fn September of 1961, 1st Lt. Ybarra and SP4
Alarcon, members of the 141st Infantry, Texas ARNG, were called
into actfve service of the State of Texas for two (2) days for
the purpose of assisting civil authorities In the protection of
life and property of the citizens of Texas In the Hurricane Carla
Disaster Area.
           The next day after their Induction, both men were
Injured in the line of duty, which finding has the approval
of the Adjutant General of Texas. Subsequent to their injuries,
both were hospftalized in the U. S. Naval Hospital at Corpus
christi. Your letter informs us that at the present time the
hospital has been paid, but thet it is possible that further
treatment or rehospitalization of these men may be necessary.
           The specific questions asked by you are as follows:
           "1* Is the National Guard or the State of
     Texas required to pay additional military service
     pay or additional medical or hospital expenses to
     or on behalf of either Ybarra or Alarcon In the
     event of further treatment OP rehospitalization?
Brig. Gen. Thos. S. Bishop, page 2      (WW-1313)


          "2.    If so, are either pay and allowances
    or medical   or hospftal expenses limited in time
    to six (6)   months, and, If so, when does the six
    (6) months   expire?
          “3a If the six (6) months does not apply
    to either pay and allowances or medical and
    hqspital expenses, fs there any other factor
    which llmits or eliminates further such payments?
    If so, what are said factors and how are they
    applied?
          II
           '. In the event there results permanent
           4,
    or temporary, total or?partial disability to
    either injured person, what benefits or privl-
    leges are they entitled to receive and what
    recovery may they effect from the National Guard
    or the State of Texas or any political subdivl-
    sion thereof?
          “5. In the event any money is recoverable
    by the fnjuped persons, what funds are available
    for disbursements? Under what circumstances must
    said disbursements be made?"
           Article   5845of   Vernon's Civil Statutes states as
follows:
          "(a) Every member of the military forces
    of this State who shall be wounded, disabled or
    Injured, or who shall contract any disease or
    Illness, in line of duty while In the service of
    this State in case of riot, tumult, breach of the
    peace, resistance to process, Invasion, lnsurrec-
    tion, or imminent danger thereof, or whenever call-
    ed upon in aid of the civil authorities, or when
    participating in any training formation or activity
    under order of the commanding officer of his
    unit, or while traveling to or from his place of
    duty In such Instances, shall be entitled to and
    shall recefve, or be refmbursed for, hospitall-
    zation, rehospitalization, and medical and aurgi-
    cal cape In a hospital and at his home appropriate
    for the treatment of such wounding, disability
                                and necessary traniipor-
                               il the resulting dls-
    ablllty cannot be materially Improved by further
    hospitalization or treatment, and shall receive
    the same pay and allowance whether in money or In
.   .




        Brig. Gen. Thos. S. Bishop, page   3.   mw-1313)

            kind, to which he was entltled at the time when
            the injury was Incurred or the disease or illness
            contracted, duping the period of his dlsabllity
            but not for more than a total of six (6) months
            after the end of his tour of duty, and in the event
            of his death in such cases, his estate s-hallbe
            entitled to any reimbursement for which the de-
            ceased would have been entitled and to his accrued
            pay and allowances and compensation or reimbursement
            for actual funeral expenses not to exceed the sum
            of Five Hundred Dollars ($500), such compensa-
            tion or reimbursement, 'as well as the cost of
            carrying out the other provisions of this Article,
            shall be paid out of any funds in the State Treas-
            ury available to or appropriated for the use of
            the military forces of this State In the same man-
            ner provided for other expenditure of State funds;
            provided, however9 that no compensation or relm-
            bursement shall be paid In any case where the same
            Is payable under the provisions of any Federal law
            or regulation.
                   "(b) The Adjutant General shall administer
             the provisions of this Act and map prescribe such
             rules and pegulatlons not Inconsistent with law as
             may be necessary to carry out the provisions of
             this Act and the decision as to whether any wound-
             ing, dfsabllhty, Injury, disease, Illness or death
             Is In line of duty or aa a result thereof, shall be
             made by the Adjutant General after proper lnvestl-
             nation and hearing pursuant to such regulations as
             he may prescribe." (Emphasis added)
                   Article   584% states as   follows:
                   "The provisions of this Act
                                           .   shall
                                                . _-_In no wise
             be construed to be a gratuity but mall  De con-
             strued to be compensation for services for which
             each member of the military forces of this State
             shall be deemed to have bargained for and conslder-
             ed as a condftlon of his enlistment and employ-
             -."     (Emphasis added)
                   Article 5845 states the desire and Intent of the
        Legislature that members of the military forces of Texas re-
        ceive hospitalization, medical and surgical care, etc., "until
        the resulting dlsablllty cannot be materially improved by
        further hospitalization or treatment."' This phraseology evi-
        dences to us that Injured members shall receive the benefits
Brig. Gen. Thos. S. Bishop, page 4.   (hW-1313)


provided until they have completely recovered from their
disability, Injury, disease_.or-illness, or until In such
cases that may arlse, a medical expert advlses you that the
particular member "cannot be materially improved by further
hospitalization or treatment." The statute specifically pro-
vides for "rehospltallzatlon,~ therefore, you are advised that
the members in question must be provided with the benefits
enumerated on their re-entry into a hospital, subject to the
previous sentence of this opinion. There Is no time restric-
tion on a member's recelvlng hospitalization, medical and sur-
gical care, and we cannot Infer one.
           As to your second question, may we again quote from
Article 5845 In part as follows:
     0      and shall receive the same pay and allowance
     whether In money or In kind, to which he was entitled
     at the time when the inlurv was incurred or the disease
     or illness contracted, during the period of his dis-
     ability but not for more than a total of six (6
     months after the end of his tour of duty V . .
     (Emphasla added)
           It has been stated that the members In question In
this oplnlon were ordered Into active service for only two (2)
days. Since their injuries were received on the day which was
to be the "end of hls fiheld tour of duty," It follows that
the six (6) month period begins the day after they received
their lnjurles.
           Although there Is no time restriction placed on
hospltallzatlon, medical and surgical care, the Legislature
did provide that a member, during the period of his dlsablllty
may receive the same pay and allowance "but not for more than
a total of six (6) months after the end of his tour of duty."
If the disability lasted SIX (6) months or longer, then the
member may receive pay and allowance for a period of six (6)
months only. If, as In the case In question there is a re-
curring dlsablllty, and the members had not received pay and
allowance for a period of six (6) months, then they may re-
ceive additional compensation until they have received same
for "a total of slx (6) months." (Emphasis added)
           The conclusions reached by us make It unnecessary
to answer your third question.
           As to your fourth question, Article 5845 does not
provide for various degrees of dlsablllty or Incapacity, but
only provides f"orbenefits "until the resulting dlsablllty
cannot be materially lmproved by further hospitalization or
Brig. Qen. Thos. S. Bishop, page 5.   (W-1313)


treatment." (Emphasis added). We assume your Inquiry 18 to
whether or not a member recefvlng injuries rendering him par-
tially or totally Incapacitated ma recover other benefita
than those prescribed by Article 5845, either periodically or
by a lump sum. We have not found, nor are we aware of'any
laws whereby the Adjutant General's Department may carry any
type of coverage providing for any other benefits and prlvl-
leges other than thoae enumerated in Article 5845.
           You are therefore advised that a member la limited
under the terms of Article 5845 to receiving hia pay and al-
lowance for a total period of six (6) months and all of his
hospitalization, medical and surgical care until cured or
until a medical expert advises you that "the resulting dls-
ability cannot be materially Improved by further hospltallza-
tlon or treatment."
           The answer to your fourth question makes it un-
necessary to answer your last question.

                       gEMMARY
                           -----

             Under the terms of Article 5845 of Vernon's
             Civil Statutes, If a member of the mlll-
             tary forces of the State or Texas Is wounded,
             disabled or Injured, or haa contracted any
             disease or Illness In the line of duty, he
             la entitled to hospitalization, rehospltal-
             lzatlon, and medical and surgical care
             until cured or until a medical expert ad-
             vises that the resulting disability cannot
             be materially Improved by further hospltal-
             lzatlon or treatment. Such member is alao
             entitled to receive the same pay and al-
             lowance to which he waa entitled at the
             time of the injury or contraction of the
             disease or illness during the period of
             hle dlsablllty, but never for longer
             than a total period of six (6) months.
Brig. Gen. Thos. S. Bishop, page 6.   (W-1313)


             There la no other,way whereby such
             a member may obtain any other type
             of recovery from the National Guard
             or the State of Texas.
                              Yours   very truly,
                              WILL WILSON
                              r2z-&?(q
                              y2z-&?(q




                                    Fred D. Ward
FlX:jkr:zt                          Assistant


APPROVED:
OPINION COMMITTEE
J. C. IXtvls,Chairman
Robert McGee
Grady Chandler
W. 0. Shultz
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
