                      The Attorney               General of Texas
                                          May 1,    1978

JOHN L. HILL
Attorney General


                   Thomas E. Bishop                         Opinion No. H- 1160
                   Major General, TexARNG
                   The Adjutant General                     Re:    Whether      article 6252-26,
                   P. 0. Box 5218                           V.T.C.S., applies to members of the
                   Austin, Texas 78783                      State military forces.

                   Dear Mr. Bishop:

                          You inquire whether members of the State military forces are covered
                   by article 6252-26, V.T.C.S., as amended by the 65th Legislature.      Acts 1977,
                   65th Leg., ch. 273, at 730. Prior to amendment, article 6252-26 required the
                   State to pay ,damages adjudged against officers and employees of certain
                   named agencies for acts or omissions in the exercise of their duties. Among
                   the named agencies were the State military forces, which consist of the
                   Texas National Guard and the Texas State Guard. V.T.C.S. art. 5765. The
                   Governor is the commander-in-chief        of the State military forces, V.T.C.S.
                   art. 5765, S 4, but the Adjutant General’s Department is responsible for day-
                   to-day operations. V.T.C.S. art. 5781; see General Appropriations Act, Acts
                   1977, 65th Leg., ch. 872, art. III, at 2814.

                         The 65th Legislature enacted      Senate   Bill 37, which amended article
                   6252-26 to provide as follows:

                                  The State of Texas is liable for and shall pay actual
                               damages, court costs, and attorney        fees adjudged
                               against officers or employees of any agency, institu-
                               tion, or department     of the state . . . where the
                               damages are based on an act or omission by the person
                               in the course and scope of his office or employment
                               for the institution, department, or agency. . . .

                   Section l(a). According to the bill analysis, the amendments extended to all
                   State officials and employees the protection formerly accorded to a limited
                   group of persons. Thus, the deletion of references to specific agencies did
                   not remove them from the Act, but instead broadened it to cover agencies




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Thomas E. Bishop    -   Page 2        (H-1160)



too numerous to list. Consequently, employees and officers          of the Texas military
forces sre covered by article 6252-26 as amended.

       We note, however, that the Adjutant General supervises National Guard
technicians who are federal employees paid to assist the Texas National Guard
pursuant to 32 U.S.C. S 709. The technicians are employees of the United States
and are covered by the Federal Tort Claims Act. 32 U.S.C. S 709(d); i19681 U.S.
Code Cong. & Ad. News 3318, 3325; see also 32 U.S.C. S 715. The caption of Senate
Bill 37 states that the Act relates to “defense of claims based on certain conduct of
state officers or employees. . . .‘I Acts 1977, 65th Leg., ch. 273, at 730 (emphasis
added). See Texarkana & Ft. S. Ry. Co. v. Houston Gas & Fuel Co., 51 S.W.2d 284,
287 (Texn32).        In our oninion. it does not aoolv to the federal technicians
supervised by the Adjutant General. Se-e Attorney General Opinions H-540 (1975);
M-719 (1970).

                                      SUMMARY

           The State military forces are covered by article 6252-26,
           V.T.C.S., as amended by the 65th Legislature. Its protection
           does not extend to the federal National Guard technicians
           supervised by the Adjutant General.

                                                Very truly yours,




                                                 Attorney General of Texas
                                 //
APPROVED:                        w




Opinion Committee

jst




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