                            AunTIN.       EXAB   7-7
                               September 8, 1966


Major General Thomas S. Bishop                   Opinion No. C-755
The Adjutant General OS Texas
Camp Mabry                                       Re:   Whether the Governor
Austin, Texas                                          of Texaa can issue
                                                       regulationa,under
                                                       the authority of
                                                       Art. 5780, Sec. 2;
                                                       Art. 5765, Sec. 4;
                                                       and under his con-
                                                       6titutionalauthority
                                                       aa Commander In Chief,
                                                       giving the.Adjutant
                                                       General's Department
                                                       authority to.enter in-
                                                       to an agreement with
                                                       the NationaLGuard
                                                       Bureau and the United
                                                       States Air Force for
                                                       the operation of
                                                       Ellington Air,Force
                                                       Base as the host
                                                       orgsnizafion,financed
                                                       out of lOO$ Federal
                                                       funds, without going
                                                       through or being ln-
                                                       volved with the pro-
                                                       cedurea of Art. 5767,
Dear Sir:                                              V.C.S.
          Your opinion request in regard to the above matter.
reads, In part, as Sollows:
            n
                .   .   .

         "The request for thia Attorney General's
    opinion ia brought about by a change of circum-
    stances at Ellington Air Force Base. Recently,
    the Secretary of Deiense and, under his direction,
    the National.Guard Bureau, advised the State of
    Texas that there would be an inactivationof cer-
    tain United States Air Force Reserve Units at
    Ellington Air Force Bare. These are the unit,z '~' ,'
    that had host jurisdictionand responsibility
    in the past. With the Inactivationof thcee
    units, The National Guard Bureau haa requested
    that the base juriedictionor host responsibility
                                      -3627-
Major General Thomas S. Bishop, page S (C-755)


    be transferredfrom the ContinentalAir Coumaud
    to the Texas Air National Guard. The acceptance
    of hont responsibilityat Ellington would be pur-
    suant to a permit or license to control the pro-
    perty. The Texas Air National Guard would not
    purchase or acquire the realty. The proposal
    would atill,leaveseveral small units on the base,
    and these units would be tenants of the Texas
    Air National Guard and/or the Adjutant General's
    DepartJaent.These unita include the National
    Aeronauticsand Space Admlniatration,a United
    States Coast Guard Unit, an OS1 Detachment,and
    an Air Force Advisor's Detachment end other small
    units. If the State of Texas assumes this reaponsl-
    blllty, the National Guard Bureau has indicated
    Its willingness to Sinance this operation out OS
    lOO$ Federal funds. No State funds would be
    obllgated~bythe assumptionof this reeponei-
    blllty. Howeve,r, since NASA, the Coast Guard,
    and other units are involved, it is felt that
    the~problemsof operating this base under the
    jurisdietlonof the Adjutant General for Air
    would be Ii&possibleifall Host-TenantAgree-
    ments, licenaiug, Service Contracts, repairs,
    and constructionhad to go through the Texas
    Natlonal Guard Armory Board and the bidding
    process required by State Law with regard to
    such projects.
         ,I
          . . .
         "Your opinion ia respectfullyrequested as
    to whether the Governor of Texas c&n issue
    regulations . . . giving the Adjutant General's
    Department authority to enter into an agreement
    with the National Guard Bureau and the United
    States Air Force for the operation of Ellington
    Air Force Base as the host organization,financed
    out of lOO$ Federal funds, without going through
    or being involved with the procedures of Article
    5767, Vernon's Civil Statutes of Texas. a a .
          . . .II
         ‘1

          Article 5767, Vernon's Civil Statutes, creating the
Texas National Guard Armory Board, a body politic and corporate,
was enacted for purposes of assisting the Adjutant General and
the Governor in acquiring, constructing,renting, controlling,
maintaining,and operating all Texas National Guard Armories0
                         ,-3628-
.     .




    Major General Thomas 9. Bishop, page3   (C-755)~


               In Opinion No. O-5752 (lgu), this office construed
    the above Act, which had been amended in 1937 and codified a6
    Article 58gGb, Vemontm Civil Statutes, in order to determine
    the legal rtatus and ptrpose of the Board. It was held that
    the Board was created . . . to act a6 the alttr ego,of the
    State for particular purpose6.” We said that . , ‘.the Leg-
    islature intended the Act to have a dual purpose. The first
    purpose wa6 to create an agency, in the abeence of en exlst-
    ing agency, with authority to cooperatewith the United States
    Government,by securing available federal funds to.construct
    National Guard Armories  in the State.        The second pur-
    pose of the Act in effect made the Armoky’B~ardthe managing
    agency of the State in respect to all Texan National Guard
    property. . . . The two purpod)es,as we have expres,sed them,
    are not in conflict.‘I

              For mere exhaustivehi8torlcal summation,see
    Attorney General Opinions O-5695 (1943), O-5752 (1944) and
    o-7398 (1946).
                                                        _*
              By virtue of his office, the Governor of the State
    OS Texas, a6 Comder-in-Chief, is vested with both,inherent
    and expre66 Constitutionaland statutorypower6 in the govem-
    ing, organizing,and training of the State Milltla. Article
    IV Sectlon 7, Constitutionof Texas; Articles 5765,,5768,
    5780, Vernon’s Civil Statutes; 57 C.J.S. 1086-1087, Militia,
    Section 10; 6ee Article XVI, Section 46, Constitutionof
    Texas.
              Section 2 of Artiale 5780, Vernon’6 Civil Statutes,
    reads as Sollows:
               "Sec. 2.  The Governor shall preracribesuch
          regulationsas he may 8ee fit for the organization
          s the .TexasWational,Guard; and he shall from
          time to time. as he may deem for the best’interests
          of the service, change-suchregulations,which
          shall be in aacordancewith this ChaDter, and
          conform as near as practicable to the organization
          OS the Armed Forcea of the United States. He may,
          at any time for aauae deemed good 6nd aulfficientby
          him, kster out of the service or reorganize any
          Dortion of the Texas National Guard or the re-
          6erve militia, and he shall have Sull control and
          authority over all matters touching the military
          force6 of thin atate its orp;anizatlon, equipment
          and discipline.” (E&hasis added.)
              By Section 4 of the above Article, the Governor le
    provided a staff consistingof the Adjutant General, asralstants,
                             -3629-
                                                              .




Major Gimeral !Chkae 9. Bishop, page 4 (C-755)


and   various   others designated therein,
          In view of the broad powers vested both lmpliedly
and expressly in the Governor of Texas by the Constitution
and statutes, 6,ndaster considerationof the statutory pxo-
vision6 pertaining to the Adjutant General of Texas and be-
ing OS the opinlon that Article 5767, Vernon’s Civil Statutes,
was not created, designed,nor intended to provide a pro-
cedure for regulating or operating a military air base owned,
Supported and maintained lOO$ by the Federal Government such
as that contemplatedat Elllngton Air Force ‘Base,it is hour
opinion that Article 5767, Vernon’s Civil Statutes, does
not apply to agreements made under the above stated factual
situation. Further, it Is our opinion that the Governor
of Texas Is authorized to make the agreement,or direct
that it be done, and the Adjutant General can carry out the
agreement under the consent and direction of the Governor
requiring such duties.
                       SUMMARY
                       -------
              The Governor of Texas can issue regulations,
       under the authority of Art. 5780, Sec. 2~ Art.
       5765, Sec. 4; and under his aonetltutionalauthor-
       ity as Commander in Chief, giving the Adjutant
       General's   Department authority to enter into an
       agreement with the National Guasd Bureau and the
       United States Air Force Base as the host organf-
       zation, finanaed out of lOO$ Federal funds, with-
       out going through or being involved with the pro-
       cedures of Art. 5767, V,C.S.
                                 Yours very truly,
                                 WAGGONER CARR
                                 Attorney General


                                 BY8    (-Y@Lwcv\~
                                       Al   H Mint
                                       AS~iat&it A&ney   General


                                 By:
                                       R    ayl    u
                                       A%xnte~ttorney    General
       AMrratdh
                             -3630-
Major General Thomas 5. Bishop, page 5 (C-755)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairnun
Kerns Taylor
J. C. Davis
Cbrdon Rouser
Robert Flowers
APPROVED FOR THE ATTORNEY OENERAL
BYI T. B. Wright




                          -3631-
