Untitled Texas Attorney General Opinion ( 1965 )

ENE Col. Laurence T. Ayres Executive Assistant Emergency Resources Planning Committee Austin, Texas Opinion No. C-455 Re: Does the Governor, in time of national emergency,have the authority to direct the implementationof the sub- mitted Emergency Resources Management Plan. If not, what legislationwill be necessary to give him the authority, and allied Dear Sir: questions. We are in receipt of your letter requesting an opinion on the questions as hereinafter set out. The first portion of your letter reads as follows: “Enclosedherewith is a preliminary draft of a portion of the Emergency Resources Management Plan for the State of Texas as developed by a committee appointed by the Governor. This plan, in its entirety and upon completion,will be the resulting product of a contract between the Federal Government, representedby the Office of Rmergency Planning, and the State of Texas, ‘ColonelHomer Garrison, Jr., by directive,representingthe Governor. “This draft is submitted to your office for study and opinion relative to certain assumptions and authorities. Specifically,the following are a few of the questions raised by the committee: “1. Does the Governor, in time of national emergency, have the authority to direct the implementationof this plan? If not, what legis- lation will be necessary to give him the authority? -2162- Col. Laurence T. Ayres, page 2 (C-455) "2. Does the Governor have authority to direct certain State agencies to assume respon- sibilities under the provisions of this plan - planning responsibilitiesduring peace, operating responsibilitiesduring emergency. “3. What additional authorities (Annex A) are applicable? “4. Does the Covernor have or does he have to have authorit to create a State Executive Reserve (Annex E3 ?" The introductionto this preliminary draft sets out the overall State policies which are to be followed in the event of nuclear attack and is a plan that includes organiza- tional and staffing arrangementsfor central coordinationand policy direction to State governmentalorganizations,with emergency assignments in particular resource fields. It is noticed in your introductionthe following: "Although it is conceivable,it is improbable that the Emergency Resource Management Plan will be implementedwithout the State first being under the operationalprovisions of the State of Texas Civil Defense Operational Survival Plan, under which, upon warning of attack, citizens of the State occupy shelters. Following emergence from shelter, local governments take actions directed in the State of Texas Civil Defense OperationalSurvival Plan and local civil defense plans and additionallyinsure conservationof available local resources. . . .'I The above portion of the introductionis set out for informationpurposes. From our reading and study of the plans which have been submitted, together with your questions, it is ascertained that the overall purpose of such plans, is the handling of our resources in time of emergency and to have some governmental agency, individualor group of individuals that will be respon- sible in carrying out this plan. To answer your questions as set out in your letter, we must look to the statute governing civil defense, which is Article 6889-4, Vernon's Civil Statutes. -2163- Col. Laurence T. Ayree, page 3 (C-455) The caption of House Bill 784, Acts 1951, 52nd Deg. p. 529, Ch. 311, which is codified by~vernon as Article 6889-4, states in part: 'An Act relating to the developmentof a civil defense and disaster relief plan for this State and its political subdivisions;granting necessary powers to State and local govrernmentsof this State to cope with emergencies threateninglife and property within the State; . . .II(Emphasisadded) Section 2 states: ?he Governor shall provide for the organization andcoordination of a program of civil defense and disaster relief adequate to'protect life and property in this State in case of natural disaster, enemy action, or the threat thereof. 'He m+y establish by executive proclamationa State Defense and Disaster Relief Council, consisting of the representativesof such State agencies, departments,and institutionsof the State whose legal functions relate to importantphases of this activity and representativesof public or quasi- public relief organizations)tand who may be designatedby the Governor. Section 3 states: "The Cover-nor,or upon his designation,the State Defense and Disaster Relief Council, may issue,,within the limits of constitutionalpower, such directives and executive orders as may be necessary to effectuate the purpose of this Act, which directives shall be filed in the office of the Secretary of State and shall receive widespread publicity and notice unless such notice will be of aid and comfort to the enemy." Section 4 states in part: "The Governor, or upon his designation,the State Defense and Disaster Relief Council,%s further authorized and empowered: ” . . * "(b) To provide for the organizationand -2164- Col. Laurence T. Ayres, Page 4 (C-455) operation of Mobile Support Units for use by him in dispatchingoutside aid to stricken areas; "(c) To,coordinate the negotiation.ofcivil defense mutual aid agreementsbetween political subdivisionsof the State and to direct, if neces- sary, the coordinationof civil defense activity sunder such agreements; "(d) Through appropriateState agencies and State Disaster District Control Centers to direct evacuation plans and operations; "(e) To prescribe uniform signals, warnings, alerts, credentials,insignia, and civil defense operationalplans throughout the State and to provide for dim outs or other precautionary measures deemed necessary to prevent or minimize loss of life or injury to persons or property from enew action or other catastropheor the threat thereof; 1, . . .' (Emphasisadded) Section a states: "In carrying out the provisions of this Act, the Governor and the executive officers or governing bodies of the political subdivisionsof the State are authorized to utilize the services, equipment, supplies and facilitiesof existing departments,offices, and agencies of the State and of the political subdivisionsthereof to the maximum extent practicable,and the officers and personnel of all such departments,offices, and agencies are directed to cooperate with and extend such services and facilities to the Governor and to the civil defense organization of the State upon request." Section 10 states: "It shall be the duty of every organization for civil defense establishedpursuant to this Act and of the officers thereof to execute and enforce such orders, rules and regulationsas may be made by the Governor and/or the State Defense and Disaster Relief Council, under authority of this Act." -2165- Col. Laurence T. Ayres, page 5 (C- 455) There have been no'cases construing the above mentioned statute and therefore;this opinion is based upon our construction of the statute; togetherwith the'plans as submitted. In answering your first question, under Article 6889-4, we are of the opinion that the Governor, in time of national emergency,has the authority to direct the implementationof the plan submitted. In answering your second question,, we are of the opinion that under the above quoted provisions of Article 6889-4, the Covernor has the authority to direct certain State agencies to assume responsibilityunder this plan, both during peace and emergency. To question No. 3 we can find no applicable additional State authoritiesgoverning the plan as submitted. Under Section 2 of Article 68&J-&which states: "The Governor shall provide forthe organieation and coordinationof a program of civil defense and disaster relief adequate to protectlife and property in this State in case of natural disaster, enemy action, or the threat thereof. the Governor has authority to create a State Executive Reserve under the plan submitted. However, there is no authority which we can find that will allow payment to the individuals so selected for such training in the executive reserve, and the persons so selected, would have to serve without compensa- tion. SUMMARY 1. In time of national emergency, the Governor has the authority to direct implementationof the Emergency Resources Management Plan, under Article 6889-4, Vernon's ciiil Statutes. 2. Under Article 6889-4, the Covernor has the authority to direct certain State agencies to assume responsibilitiesunder provisions of this plan, both in peace and during emergencies. 3. We can find no additional State authorities governing the plan as submitted, except those set out in Annex A. -2166- ~01. Laurence T. Ayres, page 6 (C-455) 4. The Governor has the authority to create a State .ZxecutiveReserve, under Article 6889-4, and the plan as submitted,provided such reserves serve without compensation. Yours very truly, Assistant JIiB:sj APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey John Reeves J. C. Davis H. Grady Chandler APPROVED FOR TBE ATTORNEY GEXFXAL BY: T. B. Wright -2167-