R-219

                   TEEATTORNEY                    GENERAL
                            OFTEXAS
PRICE   DANIEL
*TTORNEY GENERAL




                                     April   4, 1947

        Hon. D. c. Greer                opinion    No. v-114
        State Highway Engineer
        Texas Highway Department        Re: Authority of the Highway
        Austin 26, Texas                    Department to pay medical
                                            aid and compensation to a
                                            Texas State Guard Officer,
                                            where no record of a med-
                                            ical examination is found
                                            in the files  of the Adju-
                                            tant General.
        Dear Sir:
                      Your request   is based upon the following   facts
        and related     questions:
                    We have a report of injury to a Texas State
               Guard orrioer, reported to have oaourred on Novem-
               ber 26, 1946.
                     RAlthough the man olaims to have been examined
               after S. B. 135, 48th Legislature  beoame eff’eOtive,
               no reoord or same can be found in the files    of the
               Adjutant General.   Aooording to Attorney General
               Opinion No. O-5355, dated July 1, 1943, we have no
               authority to Cover the injured.
                     “In the oase of this particular guardsman it
               so happens that he did take an examination for oom-
               mission in. the Texas National Guard in August, 1946,
               and the record is on rile with the Adjutant General.
                     “Do we have authority to pay medical aid and
               compensation to this injured man? Can we give any
               recognition  to this examination which was given ror
               another organization?*
                  The anewer to your first  question is controlled
        by the provisions  of Article 5891b of Vernon’s Civfl Stat-
        utes, which provides for compensation benerits  ror mem-.
        bers of the Texas State Defense Guard and for the admln-
        istration of the act by the State Highway Department 0
Han, D. Ca Greer,   Page 2 S V-114


           From Seotion   2 of said Artfole,    we quote:
            eWmaber* shall mean every person in the Texas
     Defense Gnard O Provided that no person shall be
     olassffied    as a pmembers under this Aot mr be ell-
     gible to any compensation benefits       under the tern
     and provisions     of this Aot until he shall hats sub-
     mitted hfmselr first      to a physical examination by
     a regularly    licensed   physician or surgeon,   designated
     or aooeptsd by the Texas Defense Guard to make saeh
     an examination,     and until as a result of such exam-
     ination,   all physioal dereots existant at the time
     of the examination have been noted and recorded. Af-
     ter his separation,      either by disohargee resignatfcn,
     or otherwise from the Texas Derense Guard, no person
     shall be olassified      as a member under this Act or be
     entitled   to any compensation benerits     thereunder.”
            The injured offioer   olafms to have submitted
to the required examination, but no such reoerd is on
rile with the Adjutant General.       This gives rise to a
strong presumption agafnat the otiloerPs        olaim, but It
does net bar recovery,   fr s in’ fach, ths officer     did sub-
mit to the required examination0       I)efore aufhorizin@
the officer@8   elaim, the Offfoer should furnish go@ with
adequate proof of the required phyrfoal        examination ta-
gether with the results thereof noted and noorded at
the time of the er8minatlonQ      Palling in this, the slaim
should be denied,, beoause the oiflaer       has net qa8lifie(,
as a *member” as that term fe dailned        fn the quoted stat-
ute.
             The fact that the olafaunt took an examlnrtian
ror a commission in the Texas Matfonal Guard in Augtmt,
 1946, can be gfven no weight.      Thare is no provision   in
the entire Act which expressly or im liedly       permits an
examination for s oommiseion in the i -exas IVational Guard
~to be a substitute    ‘fore or in lieu of, the examination
epeoifioally    provide& for in Saotion 3, aubsrotlon 2,eu-
pra,    The Texas Defense Guard is entirely    different  and
 separate from the Texas Hatfonal Guard. This Is speolf-
 ioally  provided for in Artiole SSQla, Sea. l(b), as fOl-
 lows :
            “Suoh foroes shall be a p8rt of the latlve
     militfa   and a oomponent of the military forces
     of Texas and shall be addftfomal to and .distlnct
     from the Matlonal Guard and shall be knewa a8
     the Texaa State Guard: * * **
Hon. D. C. Greer,   Page   3, V-1.14



           From the foregoing,   it follows that the Texas
State Guard Offloer   is not elf,@ble    for medical aid and
compensation under the Texas State Guard Compensation Aat,
unless adequate proof of the required physical exrmina-
tion is made by the injured offioer      to the Highway Depart-
ment e


           1, An injured State Guard Officer,    who has
     no record of a physical examination on file with.
     the Adjutant General., is not entitled   to medioal
     aid and compensation under Article    5391b V. C. 3,
     unless such offfoer    furnishes adequate proof of the
     required physical examination, together with the
     results thereof   noted and recorded at the time of
     the examination.
            2. A physical   examination for a commission
     in the Texas National Guards recorded in the files
     of the Adjutant General, does not qualfry an in-
     lured Texas State Guard Officer as a “member” en-
     titled   to medical aid and compensation under Arti-
     ”   ~~~




     cle 5891b, V. C. 9.
                                          Yours very truly
                                       ATTORNFJY
                                              GEhTERAL
                                                     OF TEXAS




                                          Assistant


                                       APPROVED
                                              APR, 4, I.947

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                                       ATTOIA’EYGENERAL
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