Maj. Gan. Thomas S. Bishop   Opinion NO. M-284
Adjutant General of Texas
Camp Mabry                   Re:   Eligibility requirements
Austin, Texas                      for membership on the
                                   Texas National Guard
Dear Mr. Bishop:                   Armory Board.
          Your request for an opinion reads as follows:
          "Article 5931-1 T.R.C.S., Acts of the 60th
     Legislature, Regular Session, creates the Texas
     National Guard Armory Board. The Act specifies
     that the Board will be composed of the Command-
     ing General of the 36th Infantry Division, Texas
     National Guard, the Commanding General of the
     49th Armored Division, Texas National Guard
     and the Chief of Staff for Air, Texas Air
     National Guard.
           "Reorganization authority Number 66-67,
     National Guard Bureau, dated 4 December 1967
     reorganizes the Texas Army National Guard in
     part on 15 December 1967 and the remainder on
     15 January 1968. The provisions of the above
     referenced reorganization authority deletes
     the 36th Infantry Division from the Troop
     allotment to the State of Texas and reorga-
     nizes the Headquarters and Headquarters Com-
     pany t 36th Infantry Division and other 36th
     Infantry Division units into the Headquarters
     and Headquarters Company (-1 71st Infantry
     Brigade (Airborne) effective 15 January 1968;
     deletes the 49th Armored Division from the
     Troop Allotment to the S,tateof Texas and
     reorganizes the Headquarters and Headquarters
     Company, 49th Armored Division into the
     Headquarters and Headquarters Company (-1,
     72nd Infantry Brigade (Mechanized), effec-
     tive 15 January 1968. After 15 January,
     1968, the 36th Infantry Division and 49th
     Armored Division will no longer exist but
     their successors in function, i.e., the
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Maj. Gen. Thomas S. Bishop, page 2, (M-204)


    71st Infantry Brigade (Airborne) and the
    72nd Infantry Brigade (Mechanized) will
    exist and supersede the 36th Infantry Di-
    vision and 49th Armored Division respec-
    tively, as their successors in function.
           ..
                .   .   .

         "Due to the above factual situation the
    following questions are submitted to you for
    your legal opinion:
         "1 . By virtue of the reorganization of
    the Texas National Guard and the resulting
    elimination of the 36th Infantry Division
    and the 49th Armored Division, who should
    be certified by the Adjutant General to
    the Secretary of State for membership on
    the Texas National Guard Armory Board?
         "2 . Is an Officer of the National Guard,
    otherwise qualified, whose civilian occupa-
    tion is District Attorney of Travis County,
    Texas, eligible to serve as a member of the
    Texas National Guard Armory Board?
         "3. Should any officer fail to qualify
    as a member of the Texas National Guard Armory
    Board under the provisions of the State Con-
    stitution or the State statutes, then in that
    event, who should be certified by the Adjutant
    General to the Secretary of State for member-
    ship on said Board?
           'I.. ."
           Article 5931-1, Vernon's Civil Statutes, provides
in part:
         "There is hereby created the Texas Na-
    tional Guard Armory Board to be composed of
    the Commanding General of the 36th Infantry
    Division, Texas National Guard, the Command-
    ing General of the 49th Armored Division,
    Texas National Guard, and the Chief of Staff
    for Air, Texas Air National Guard. The board
    shall be composed of three members and the
    term of office for members of the Texas Na-
    tional Guard Armory Board shall be of six
    years ' duration except that in the event of
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Maj. Gen. Thomas 5. Bishop, page 3, (M-204)


        a vacancy, the person qualifying for the
        position shall complete the unexpired term
        of his predecessor. . . .
             II
                  .   .   .



             II
                  .   .   .




             "It is further provided that none of the
        members of this board shall at the same time
        hold any other office or position of honor,
        trust, or profit under the state or federal
        government, except as a member of the Texas
        National Guard or as a member of the Texas
        State Guard operating as successor in mili-
        tary function.
             "Should any officer fail to qualify as a
        member of the board under the provisions of
        the State Constitution or the provisions of
        this Act, the next senior officer in military
        rank of the respective military units to
        qualify shall be certified by the Adjutant
        General of Texas to the secretary of state as
        provided in this Act."
          Under the facts stated in your request, the 71st
Infantry Brigade (Airborne) is the successor to the 36th
Infantry Division, Texas National Guard, and the 72nd In-
fantry Brigade (Mechanized) is the successor to the 49th
Armored Division, Texas National Guard.
          It is our opinion that the Texas National Guard
Armory Board, created pursuant to the provisions of Ar-
ticle 5931-1, was intended to be composed of the senior
officers who command the highest ranking military units.
Therefore, it is our opinion the phrase "36th Infantry
Division, Texas National Guard," now refers to the 71st
Infantry Brigade (Airborne), since the 71st Infantry
Brigade (Airborne) is the successor to the 36th In-
fantry Division. Likewise, the phrase "49th Armored
Division, Texas National Guard," now refers to the
72nd Infantry Brigade (Mechanized), since it is the
successor to the 49th Armored Division. You are
therefore advised in answer to your first question,
that you should certify for membership in the Texas
National Guard Armory Board the senior officers
of the 71st Infantry Brigade (Airborne) and the 12nd
Infantry Brigade (Mechanized), provided such officers
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Maj. Gen. Thomas S. Bishop, page 4, (M-204)



are qualified under the provisions of Article 5931-l.
          Article 5931-1 specifically provides, in part:
          II. . . that none of the members of this board
    shall at the same time hold any other office
    or position of honor, trust, or profit-
    the state or federal government, except as a
    member of the Texas National Guard or as a
    member of the Texas State Guard operating as
    successor   in military function." (Emphasis
    added.)
The office of District Attorney of Travis County is such an
office. Tex.Const. Art. V, Sec. 21, Articles 322 and 322A,
V.C.S.
          In view of the prohibition contained in Article
5931-1, you are advised that in answer to your second
question, the District Attorney of Travis County is not
eligible to serve as a member of the Texas National Guard
Armory Board.
          In answer to your third question, you are advised
that since the Commanding General of the 71st Infantry
Brigade (Airborne) is the District Attorney af Travis County,
and therefore not eligible to serve as a member of the Texas
National Guard Armory Board, you should certify the next
senior officer in the military rank of the 71st Infantry
Brigade (Airborne) for membership.
                       SUMMARY
                       -------
         Under the present reorganization of
    military units in Texas, the Texas National
    Guard Armory Board is to be composed of the
    Commanding Generals of the 71st Infantry
    Brigade (Airborne) and the 72nd Infantry
    Brigade (Mechanized), successors to the 36th
    Infantry Division and 49th Armored Division
    and the Chief of Staff for Air, Texas Air
    National Guard. Since the Commanding Gen-
    eral of the 71st Infantry Brigade (Airborne)
    is ineligible to serve as a member of the
    Texas National Guard Armory Board by reason



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Maj. Gen. Thomas S. Bishop, page 5, (M-204)


     of holding the office of District Attorney
     of Travis County, Texas, the next senior
     officer in military rank of the 71st Infantry
     Brigade (Airborne) should be certified by
     the Adjutant General for membership on the
     Texas National Guard Armory Board, pursuant
     to the provisions of Article 5931-1, Vernon's
     Civil Statutes.




                                         C. MARTIN
                                     ney General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE'
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
John Banks
Larry Craddock
Pat Cain
A. J. CARUBBI, JR.
EXECUTIVE ASSISTANT




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