              EA                 Y GENE




Major General Thomas S. Bishop
Adjutant General of Texas
Austin, Texas
                                 Opinion No. WW-1390
                                 Re:   Whether under Article 5845(a),
                                       Vernon's Civil Statutes, the
                                       State is liable for pay and
                                       allowances and payment for
                                       medical treatment due to a
                                       Texas National Guardsman as
                                       a result of illness contract-
                                       ed in line of duty, under
Dear General Bishop:                   the fact situation given.
        You have asked this office for an opinion as to whether
under Article 5845(a), Vernon's Civil Statutes, the State is
liable for pay and allowances and payment for medical treatment
due to a Texas National Guardsman as a result of illness con-
tracted in line of duty, under the fact situation given.

        On May 31, 1962, Major Hollowell, a member of Head-
quarters, 136th Air Defense Wing, Texas Air National Guard,
with headquarters at U.S.Naval Air Station, Dallas, Texas,
was ordered to attend field training exercises at the Head-
quarters of said Wing, and was then further ordered to perform
duties with the Adjutant General's Department, Camp Mabry,
Austin, Texas. While performing duties in Austin Major Hollo-
well developed an eye ailment, for which he was treated at Eerg-
strom Air Force Base Hospital as an out-patient. On June 15,
1962, Major Hollowell's training period ended, and he was per-
mitted to return to his home. Treatment for his eye ailment
was continued with a specialist in Tyler, under whose care
Major Hollowell remains at this time.
        Major Hollowell is an attorney, and the doctors who
have treated him have rated him as 100s disabled for the dura-
tion of the eye condition. A formal line of duty investigation
was conducted upon the order of the Adjutant General, and it
was determined that the disease of Major Hollowell was incurred
Maj. Gen. Thomas S. Bishop, page 2   (WW-1390)


in the line of duty, and was not the result of misconduct,
        Further information was sup lied, to the effect that,
under the authority of 32 U.S.Code i 319(b)(2), the Federal
Government is paying for all of the medical services provided
to Major Hollowell.
        Article 5845(a), Vernon's Civil Statutes, reads as
follows:
           "(a) Every member of the military forces of
       this State who shall be wounded, disabled or injur-
       ed, or who shall contract any disease or illness,
       in line of duty while in the service of this State
       in case of riot, tumult, breach of the peace, resist-
       ance to process, invasion, insurrection, or imminent
       danger thereof, or whenever called upon in aid of the
       civil authorities, or when participating in any train-
       ing formation or activity under order of the command-
       ing 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 medical and
       surgical care in a hospital and at his home appropri-
       ate for the treatment of such wounding, disability,
       injury, disease or illness, and necessary transporta-
       tion incident thereto until the resulting disability
       cannot be materially improved by further hospitaliza-
       tion or treatment, and shall receive the same pay and
       allowance whether in money or in kind, to which he
       was entitled at the time when the injury was incurred
       or the disease or illness contracted, during the per-
       iod of his disability but not for more than a total of
       six (6) months after the end of his tour of duty, and
       in the event of his death in such cases, his estate
       shall be entitled to any reimbursement 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), such compensation or re-
       imbursement, as well as the cost of carrying out the
       other provisions of this Article, shall be paid out
       of any funds in the State Treasury available to or
       appropriated for the use of the military forces of
       this State in the same manner provided for other ex-
       penditure of State funds; provided, however, that no
       compensation or reimbursement shall be paid in any
       case where the same is payable under the provisions
       of any Federal law or regulation."
-   -




        Maj. Gen. Thomas S. Bishop, page 3   (WW-1390)


                Major Hollowell was participating in an activity under
        order of his commanding officer, and was in the line of duty
        when he contracted his illness. Under the plain meaning of
        the statute above quoted he Is thus entitled to payment for
        his medical care, and to continuation of his pay and allow-
        ances during the period of his disability. Such pay and al-
        lowances cannot, however, be paid for a period longer than
        six (6) months after the end of his originally assigned tour
        of duty, which in this particular case was June 15, 1962. The
        Federal Government has assumed the duty of making payment for
        the medical services provided to Major Hollowell; the State
        may not make further ayments in this area. However, under
        Federal-regulations P Paragraph 50157d(l)(a), Air Force Manual
        177-1051, Major Hollowell is not entitled to receive pay and
        allowaircesfrom the Federal Government. Under the statute
        above quoted, the State is obligated to furnish him pay and
        allowances only up until such time as his disability is re-
        moved, or six (6) months after June 15, 1962, whichever date
        occurs sooner. At this point it must be noted that Major
        Hollowell became eligible for an increased longevity payment
        on June 23, 1962. This increment may not be included in the
        amount $aid to him under Article 5845(a), by virtue of the
        phrase . . . and shall receive the same pay and allowance
        whether in money or in kind, to which he was entitled at the
        time when the injury was incurred or the disease or illness
        contracted . . .' (Emphasis supplied).



                               SUMMARY

                Under Article 5845(a), Vernon's Civil Statutes,
                Major Billie G. Hollowell is entitled to re-
                ceive payment for medical services rendered, plus
                pay and allowances during his period of disability,
                such period not to exceed six (6) months. Since
                the Federal Government is paying for the medical
                serivces involved, those are not payable by the
                State. Major Hollowell is thus entitled to re-
                ceive from the State of Texas the pay and allow-
                ances to which he was entitled at the time the
                disease or illness was contracted, such amount
                to be paid for the duration of his disability,
Maj. Gen. Thomas S. Bishop, page 4.   (WW-1390)


        or for six (6) months after June 15,   1962,
        whichever date occurs first.
                              Yours very truly,
                              WILL WILSON
                              Attorney General of Texas




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APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank R. Booth
Scranton Jones
Robert Rowland
William E. Allen
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
