                                 NEY      GENERAL




                        June   16, 1967


Thomas S. Bishop                        Opinion No. M- 93
Major Qeneral, TexAFWG
Adjutant General of Texas               Re:   Questions relative  to the
Austin, Texas                                 construction  of House Bill
                                              108, enacted by the 60th
Dear General Bishop:                          Legislature.
          In a recent letter to this office   you requested an
opinion In regard to the above referenced   matter.  We quote
from your letter  as follows:
           "1 * Does a surviving child of a guards-
     man, who is killed while performing State duty,
     commence receiving  the child's  compensation,
     authorized under Section lc .of HB 108,at the
     same time the surviving spouse starts receiving
     the $120. per month plus 12 l/2$ of the basic
     pay of the guardsman or Is this compensation
     only payable to the child In the event of the
     death of remarriage of the surviving spouse?
            n2. If a guardsman Is injured,     while
     performing State duty and Is unaware of his
     entitlements    under HB 108,and at a later date
     becomes aware of his benefits    and files   a claim,
     will his benefits    commence with the date of his
     filing   or will they commence with the date of
     injury?"
             The applicable   portions of House Bill 108,Acts 60th
Legislature,     1967 (amending Article  5783,Sec. 10, Vernon's Clvi
Statutes)    read as follows:
           "Section 10. DISABLEDMEN. (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

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Thomas S. Bishop,    page 2 (M-93)

     of duty while in the service of this state in
     case of riot,    tumult, breach of the peace, re-
     sistance    to process,   Invasion,     insurrection,     or
     imminent danger thereof,        or whenever called upon
     in aid of the civil      authorities,      or when partlci-
     pating 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 receive,       or be reimbursed for,
     hospitalization,     rehospitalization,       and medl-
     cal and surgical     care In a hospital       and at
     his home appropriate      for the treatment of such
     wounding, disability,       injury,   disease or ill-
     ness, and necessary transportation           Incident
     thereto 80 long as such wounding, disability,
     injury,   disease or illness      exists,    and shall re-
     ceive the same pay and allowance whether in
     money or in kind, to which he was entitled            ,at
     the time when the injure was Incurred or the
     disease or illness      contracted,     during the period
     of his disability     but not for more than a total
       f twelve (12) months after the end of his tour
     :f duty.
            “(b)    A member of the Military Forces of
     the state who Incurs a permanent disability           while
     performing a military         duty as provided In Sub-
     eectlon     (a) of this section is entitled       to re-
     ceive a compensation based on a percentage of
     total disability.        In addition to this compen-
     sation the disabled person shall be entitled            to
     and shall receive       or be reimbursed for hospltali-
     zatlon,    rehospltalixatlon,      and medical and surgl-
     cal care In a hospital         or at his home as appro-
     priate for the treatment of such wounding, dls-
     ability,     Injury, disease or illness,       and necessary
     transportation      incident thereto for the duration
     of his dlsablement.         The Adjutant General of
     Texaa shall appoint at least five persons, Including
     at least one officer        of the Medical Corps, to a
     board of officers       which shall determine the percent-
     age of total disability         and award compensation for
     the disability.        A person who Incurs a permanent
     disability     as provided In this subsection       3.8 en-
     titled    to receive a compensation set by the board
     of officers      of up to $120 per month plus 12 l/2
     percent of the basic pay of the grade or rank
     held by that person at the time the disability             was
     Incurred.      The board of officers      shall review each
     award of compensation annually on a date set by
     the Adjutant General of Texas to determine whether

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Thomas S. Bishop,   page 3 (M-93)


     each award of compensation should be continued,
     Increased, reduced, or eliminated.   Compensation
     under this subsection may not be awarded or paid
     until the provisions  of Subsection (a) have been
     complied with.
            "(c)    If a member of the Military Forces of
     the state dies as a result of injuries        or disease
     Incurred as provided In Subsection       (a) of this
     section,    his estate shall be entitled     to any re-
     imbursement for which the deceased 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).      His surviving spouse is entitled
     to receive a compensation of       120 per month lus
     12 l/2 percent of the basic pzy established         sor
     the member of State Military      Forces until the
     surviving spouse dies or remarries.        If the sur-
     viving spouse remarries and there are surviving
     children,    the children will receive    compensation
     as follows:




           In answer to your first question, a surviving child of
a guardsman who Is survived by his spouse, and who Is killed   while
performing State duty, Is entitled  to the compensation provided In
the Act only in the event that the surviving spouse subsequently
dies or remarries.
            In answer to your second question,   the following   language
contained   In House Bill 108 is controlling:
                .and shall receive the same pay and
     allowance whether in money or In kind, t,o which
     he was entitled  at the time when the injury was
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                                                          .    ,J




Thomas S. Bishop,   page 4 (M-93)


     incurred or the disease or Illness   contracted,
     during the period of his disability   but not for
     more than a total of twelve   12) months after the
     end of his tour of duty."   (&nphasls added.)
          The Injured or disabled guardsman Is entitled  to re-
ceive the benefits  provided in the Act commencing with the
date of the Injury or disability.
                      SUMMARY
           Pursuant to H.B. 108, 60th Legislature,   a
     surviving  child of a guardsman who Is killed
     while performing State duty Is entitled    to the
     compensation provided In the Act only In the
     event that the spouse of the guardsman does not
     survive or In the event that a spouse who does
     survive subsequently dies or remarries.
            An Injured or disabled guardsman is en-
     titled    to receive the benefits provided In the
     Act commencing with the date of the injury or
     d,lsabllity.
                                /7

                          @J$jjgg~~~
                              Att      ney G&era1   of Texas

Prepared by Lewis E. Berry,   Jr?
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Kerns Taylor
John Banks
Roger Tyler
Paul Martln
STAFF LEGALASSISTANT
A. J. Carubbi, Jr.




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