                                       February   26, 1975


Major   General Thomas S. Bishop                        Opinion   No.   H-    540
The Adjutant General  of Texas
P. 0. Box 5218                                          Re: Legality    of use of
Austin,  Texas  78763                                   National    Guard facilities
                                                        by civilian   groups.

Dear   General   Bishop:

         The Adjutant      General’s      Department   has   received   several
r e q u e s t s t o us e national guard and air ‘natiotial guard facilities
for various     purposes including Civil Air Patrol  encampment,     Boy Scount
Posts and other youth group activities.

         The Adjutant    General’s   first question is whether     or not his
Department    is authorized    to permit   use of armory  facilities    for such
purposes,   and whether     state funds may be used to pay utility and mainte-
nance costs incu@red by such groups while utilizing         armory     facilities.

         We think both federal  regulations      applicable   to National   Guard
units and Texas statutes governing      control    and command      of State military
forces  permit the use of armory     facilities    by the civil air patrol cadets,
Boy Scouts    of America,   Girl Scouts,      and other youth groups when in
the State’s judgment   such use is practical,       supports the public purpose
of a State militia and entails no additional      expense to the State.

          The Adjutant    General    controls   the military  department    of Texas
and all matters     pertaining    to his department     and the military  forces   of
this State.    He is subordinate      only to the Governor,     who, as Commander-
in-Chief,    has constitutional     and statutory   authority  to issue regulations   and
orders    governing   the affairs    of the Texas National    Guard as an adjunct     of
the State militia.      Texas Constitution     art. 4, 5 7; V. T. C. S. art. 5765, $4;
V. T. C. S. art. 5780, $2; V. T. C.S. art. 5781, $4.




                                            p. 2427
Major   General       Thomas   S. Bishop,     page    2   (H- 540)



     The Adjutant General   is given the power to lease or sublease
buildings  “to be used for armory     and other proper purposes    . . . .”
V. T. C.S. art. 5781, $4.     He may prescribe     regulations  controlling its
use so long as it is not inconsistent    with the laws or orders   to which his
departme~nt is subject.   V. T. C.S. art. 5781, $8.

     We conclude     that it is within the discretion        of your department,
subject to orders     or regulations      of the Governor       and Armory   Board,   to
authorize   the use of armory      facilities   by the Civil Air Patrol,      Boy Scouts
of America,     Girl Scouts and other youth groups if you determine,              as a
factual matter,     that such use of armory       facilities     promotes  the proper
public purpose     of the State militia.

     In making this determination        you are entitled to give some weight
to federal   regulations   relating   to use of National   Guard facilities,     since
the federal    government,    provides    75% of the construction     and maintenance
costs of National     Guard Armories       in Texas.   Its regulations    authorize    use
of these facilities    by youth groups,      when the state adjutant general      deter-
mines such uses are practical.          See Departments     of the Army      and the Air
Force,    National    Guard Regulations      No. 735-12 and Air National      Guard Regu-
lations No. 67-l (Jan. 26, 1973).

     You have       also askedwhat    legal liability would be incurred   by the State
of Texas,     or    members    of the Guard individually,   or state employees
individually,       as a result of death or injury to members      of the Civil Air
Patrol,    Boy     Scouts or other youth groups while using National       Guard facilities.

     Liability    for tortious   conduct always will depend on the facts of each par-
ticular   case.     Without being presented      with a particular     fact situation we can
discuss your questions         only in the terms of general     rules,    and it should be
understood      that the application    of the general  rules and any exceptions       which
might apply will be governed          by the facts of any specific      case.

     Generally,   the State of Texas is immune from liability unless permission
to be sued has been given.      Texas Highway Dept. v. Weber,   219 S. W. 2d 70
(Tex. Sup. 1949); Davis v. County of Lubbock,    486 S. W. 2d 109 (Tex. Civ.
APP.   --Amarillo    1972, no writ).

     The Texas Tort Claims      Act, article   6252-19,   V.T.C.S..     constitutes
a waiver  of sovereign     immunity   and grants permission    for suit against the
State under certain    circumstances.




                                            p. 2428
.   .




        Major     General    Thomas      S. Bishop      page    3     (H- 540)




        The Act,     however,       preserves   the State’s     immunity     against:

                            [a]ny claim arising out of the activities    of the
                            National  Guard, the State Militia,    or the Texas
                            State Guard, when on active duty pursuant to
                            lawful orders of competent   authority.    (Art.  6252-19.
                             $6).

        Article    5765,    V. T. C. S., extends     immunity       to members,    individually,     of
        the State Military    Forces   for any acts or acts done by them while in the
        discharge    of their duty after being ordered   by proper authority into active
        service   of the State.   Sec. 8, amended by Acts 1973, 63rd Leg.,      p. 988,
        ch. 399, eff. Jan. 1, 1974. -See V. T. C. S., art. 5783, $1.

                 The Texas Tort Claims              Act also preserves       sovereign    immunity   from
        claims arising    from intentional           torts, article   6252-19, section 14(10), and
        does not remove      the individual        immunity      of public officers,    agents or
        employees    of government      from        tort claims,     but preserves     such immunity
        to the extent that such persons            are presently      immune.      V. T. C. S. art.
        6252-19, 5 15.

                  Responding   to your specific   questions,  the Governor   as Commander
        in Chief of the State Militia,   the Adjutant General     and unit commanders      and
        individual   guardsmen    would enjoy the protection    against tort liability afforded
        by section 8 of article    5765, V. T. C. S. for injuries   to others when arising
        out of the lawful performance      of their duties while in active military    service
        to the State.

                 Although   we believe     section 8 of article        5765 is intended to fully
        protect  officers   and members        of the State Military,        individually,     for liability
        from any act while in the discharge            of their military      duties,   and while
        section 14(6) of article    6252-19 retains        the State’s immunity        from suit for
        injuries  arising   out of militia    activities,      it is our opinion that the Texas
        Tort Claims Act (art. 6252-19) has waived the State’s immunity                       from suit
        for death or injuries     proximately      caused from some condition              or use of
        tangible  property,    real or personal,         when the Sta~te has breached          the duty
        it owes to licensees     on State property.         See
                                                             -      V.  T. C.S.   art.   6252-19,  $18(b).




                                                        p. 2429
                                                                                                 .   i




Major   General    Thomas     S. Bishop      page   4 (H-540)




          The duty owed to a licensee  is described    by the Supreme   Court of
Texas   in State v. Tennison,   509 S. W. 2d 560 (Tex.    Sup. 1974) as the duty:

                   . . . not to injure [a licensee]      by willful,    wanton or
                   gross negligence.       . . . An exception     to the general
                   rule is that when the licenser      has knowledge        of a
                   dangerous    condition,    and the licensee     does not, a
                   duty is owed on the part of the licenser          to either warn
                   the licensee   or to make the condition        reasonably     safe.

         The State could be sued and held liable for money damages         if
injuries  to members     of youth groups on armory    property   are a result of
a breach of the State’s    duty toward licensees  on armory    facilities.
Officers  and individual    guardsmen   would not be liable for such injuries.

          State employees      at armory   facilities,     as distinguished   from National
Guardsmen       on active duty,     could be individually     liable for tortious    injuries
to members       of youth groups using Army property            whether within the scope
of their employment       or not if proximately        caused by their negligence.         The
State could be liable for the tortious         conduct of such employees         if the act
resulting    in the injury is within the scope of their employment             and otherwise
cognizable     under section     3 of the Texas Tort Claims Act. Art.           6252-19,
m.        An individual    who successfully       prosecutes     a claim against the State
for injuries    caused by the tortious      conduct of its employees,       is thereafter
barred from asserting        the same claim against the employee,            individually.
V. T. C.S. art. 6252-19,        $12.

          You also ask whether National        Guard Technicians,    who are federal
employees     paid to assist the Texas National       Guard (32 U.S. C. Sec. 709),
would be liable,    individually    for their torts.   The answer is no, if the act
causing the injury is within the scope of their federal         employment.       The
exclusive    remedy   in such case is against the federal      government.      28 U.S. C.
Sec. 2679; Nova v. U.S.,         411 F. 2d 943 (9th Cir. 1969), cert.      denied 396
U.S. 841 (1969).     If not within the scope of their employment       federal    techni-
cians would be individually      liable,   and the State of Texas would not ordinarily
be responsible    for the consequences       of their acts.




                                          p. 2430
Major   General   Thomas     S. Bishop      page   5   (H-540)




         Finally  we are asked if the State, its officers,     employees    and
guardsmen     can protect  against ,tort liability if an agreement    to that effect
is executed    by each cadet,   scout, or other member      of a youth group,    or
by their parents    or guardians.

         The Supreme  Court of Texas,    considering  the validity         of an
exculpatory  clause in a lease agreement    with a public housing          authority,
has had this to say:

                  Agreements      exempting     a party from future liability
                  for negligence     are generally     recognized      as valid and
                  effective   except where, because        of the relationship      of
                  the parties,    the exculpatory     provi,sion    is contrary    to
                  public policy or the public interest.           If the contract    is
                  between private      persons    who bargain       from positions
                  of substantially     equal strength,     the agreement       is
                  ordinarily    enforced    by the courts.      The exculpatory
                  agreement     will be declared     void, however,       where
                  one party is at such disadvantage           in bargaining     power
                  that he is practically      compelled     to submit to the stipulation.
                   Crowell   v. Housing Authority        of City of Dallas, 495 S. W. 2d
                  887 (Tex.    sup. 1973).

          The clause required      by the Housing Authority       was said to be a classic
example    of unequal bargaining      power and therefore       invalid.     We believe   that
a cadet or Boy Scout confronted         with the choice between        signing the
exculpatory     agreement,    assuming     he has power to do so, and joining his
troop,   or not signing and thereby forfeiting       the privilege      of sharing in a
valuable   training   program,    could present   another    situation    of unequal bargaining
power and force       a young person or his parent to make a difficult             choice
while unaware of the risks which might accompany               a prolonged     visit to a
National    Guard Armory.       For these reasons,      a release     from liability
might not,    in our opinion,    protect    the State, its officers,   or employees
any further    than the statutes    protect    them already.

                                      SUMMARY

                      The Adjutant  General has authority    to permit
                  the use of Armory   facilities by the Civil Air Patrol,




                                          p. 2431
Major   General   Thomas     S.      Bishop,   page    6      (H-540)




                  Boy Scouts and other groups if he determines                    that
                   such use is practical,        promotes       the public purpose
                  of a State militia,      and entails        no additional     expense
                  to the State.      The State may be liable under certain
                  circumstances        for injuries      arising    from a breach of
                  its duty toward licensees           on armory       property,     and
                  for certain     injuries   proximately         caused by State
                  employees      acting within the scope of their state employ-
                  ment.     An exculpatory        agreement        executed   by members
                  of a youth group or by their parents might not protect
                  the State from~‘fiiture      liability     for its negligence        any
                  further    than the State, its employees,             or military
                  personnel     are presently       protected      by statute.     The
                  liability   of the State and that of its officers           and
                  employees      always will depend on the facts of any
                  particular     case.

                                                   Very    truly   yours,




                                                   Attorney     General     of Texas

APPROVED:




                            Lfq
DAVID   M.   KENDALL,        First     Assistant




C. ROBERT   HEATH,          Chairman
Opinion Committee




                                           p. 2432
