Untitled Texas Attorney General Opinion ( 1962 )

THEA~TORNEP GENERAL OF TEXAS April 17, 1962 Brigadier General Thomas S. Bishop The Adjutant General of Texas Austin, Texas Opinion No. WW-1313 Re: Whether the National Quard or the State of Texas is required to pay additional service pay or additional medical or hospital expenses to or on behalf of service- men in the event of further treatment or rehospitaliza- tion under the facts stated, Dear General Bishop: and related questions. Your request for opinion on the above captioned matters informs us that fn September of 1961, 1st Lt. Ybarra and SP4 Alarcon, members of the 141st Infantry, Texas ARNG, were called into actfve service of the State of Texas for two (2) days for the purpose of assisting civil authorities In the protection of life and property of the citizens of Texas In the Hurricane Carla Disaster Area. The next day after their Induction, both men were Injured in the line of duty, which finding has the approval of the Adjutant General of Texas. Subsequent to their injuries, both were hospftalized in the U. S. Naval Hospital at Corpus christi. Your letter informs us that at the present time the hospital has been paid, but thet it is possible that further treatment or rehospitalization of these men may be necessary. The specific questions asked by you are as follows: "1* Is the National Guard or the State of Texas required to pay additional military service pay or additional medical or hospital expenses to or on behalf of either Ybarra or Alarcon In the event of further treatment OP rehospitalization? Brig. Gen. Thos. S. Bishop, page 2 (WW-1313) "2. If so, are either pay and allowances or medical or hospftal expenses limited in time to six (6) months, and, If so, when does the six (6) months expire? “3a If the six (6) months does not apply to either pay and allowances or medical and hqspital expenses, fs there any other factor which llmits or eliminates further such payments? If so, what are said factors and how are they applied? II '. In the event there results permanent 4, or temporary, total or?partial disability to either injured person, what benefits or privl- leges are they entitled to receive and what recovery may they effect from the National Guard or the State of Texas or any political subdivl- sion thereof? “5. In the event any money is recoverable by the fnjuped persons, what funds are available for disbursements? Under what circumstances must said disbursements be made?" Article 5845of Vernon's Civil Statutes states as follows: "(a) Every member of the military forces of this State who shall be wounded, disabled or Injured, 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, resistance to process, Invasion, lnsurrec- tion, or imminent danger thereof, or whenever call- ed upon in aid of the civil authorities, or when participating in any training formation or activity under order of the commanding officer of his unit, or while traveling to or from his place of duty In such Instances, shall be entitled to and shall recefve, or be refmbursed for, hospitall- zation, rehospitalization, and medical and aurgi- cal cape In a hospital and at his home appropriate for the treatment of such wounding, disability and necessary traniipor- il the resulting dls- ablllty cannot be materially Improved by further hospitalization or treatment, and shall receive the same pay and allowance whether in money or In . . Brig. Gen. Thos. S. Bishop, page 3. mw-1313) kind, to which he was entltled at the time when the injury was Incurred or the disease or illness contracted, duping the period of his dlsabllity 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 s-hallbe entitled to any reimbursement for which the de- ceased 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 compensa- tion or reimbursement, 'as well as the cost of carrying out the other provisions of this Article, shall be paid out of any funds in the State Treas- ury available to or appropriated for the use of the military forces of this State In the same man- ner provided for other expenditure of State funds; provided, however9 that no compensation or relm- bursement shall be paid In any case where the same Is payable under the provisions of any Federal law or regulation. "(b) The Adjutant General shall administer the provisions of this Act and map prescribe such rules and pegulatlons not Inconsistent with law as may be necessary to carry out the provisions of this Act and the decision as to whether any wound- ing, dfsabllhty, Injury, disease, Illness or death Is In line of duty or aa a result thereof, shall be made by the Adjutant General after proper lnvestl- nation and hearing pursuant to such regulations as he may prescribe." (Emphasis added) Article 584% states as follows: "The provisions of this Act . shall . _-_In no wise be construed to be a gratuity but mall De con- strued to be compensation for services for which each member of the military forces of this State shall be deemed to have bargained for and conslder- ed as a condftlon of his enlistment and employ- -." (Emphasis added) Article 5845 states the desire and Intent of the Legislature that members of the military forces of Texas re- ceive hospitalization, medical and surgical care, etc., "until the resulting dlsablllty cannot be materially improved by further hospitalization or treatment."' This phraseology evi- dences to us that Injured members shall receive the benefits Brig. Gen. Thos. S. Bishop, page 4. (hW-1313) provided until they have completely recovered from their disability, Injury, disease_.or-illness, or until In such cases that may arlse, a medical expert advlses you that the particular member "cannot be materially improved by further hospitalization or treatment." The statute specifically pro- vides for "rehospltallzatlon,~ therefore, you are advised that the members in question must be provided with the benefits enumerated on their re-entry into a hospital, subject to the previous sentence of this opinion. There Is no time restric- tion on a member's recelvlng hospitalization, medical and sur- gical care, and we cannot Infer one. As to your second question, may we again quote from Article 5845 In part as follows: 0 and shall receive the same pay and allowance whether In money or In kind, to which he was entitled at the time when the inlurv was incurred or the disease or illness contracted, during the period of his dis- ability but not for more than a total of six (6 months after the end of his tour of duty V . . (Emphasla added) It has been stated that the members In question In this oplnlon were ordered Into active service for only two (2) days. Since their injuries were received on the day which was to be the "end of hls fiheld tour of duty," It follows that the six (6) month period begins the day after they received their lnjurles. Although there Is no time restriction placed on hospltallzatlon, medical and surgical care, the Legislature did provide that a member, during the period of his dlsablllty may receive the same pay and allowance "but not for more than a total of six (6) months after the end of his tour of duty." If the disability lasted SIX (6) months or longer, then the member may receive pay and allowance for a period of six (6) months only. If, as In the case In question there is a re- curring dlsablllty, and the members had not received pay and allowance for a period of six (6) months, then they may re- ceive additional compensation until they have received same for "a total of slx (6) months." (Emphasis added) The conclusions reached by us make It unnecessary to answer your third question. As to your fourth question, Article 5845 does not provide for various degrees of dlsablllty or Incapacity, but only provides f"orbenefits "until the resulting dlsablllty cannot be materially lmproved by further hospitalization or Brig. Qen. Thos. S. Bishop, page 5. (W-1313) treatment." (Emphasis added). We assume your Inquiry 18 to whether or not a member recefvlng injuries rendering him par- tially or totally Incapacitated ma recover other benefita than those prescribed by Article 5845, either periodically or by a lump sum. We have not found, nor are we aware of'any laws whereby the Adjutant General's Department may carry any type of coverage providing for any other benefits and prlvl- leges other than thoae enumerated in Article 5845. You are therefore advised that a member la limited under the terms of Article 5845 to receiving hia pay and al- lowance for a total period of six (6) months and all of his hospitalization, medical and surgical care until cured or until a medical expert advises you that "the resulting dls- ability cannot be materially Improved by further hospltallza- tlon or treatment." The answer to your fourth question makes it un- necessary to answer your last question. gEMMARY ----- Under the terms of Article 5845 of Vernon's Civil Statutes, If a member of the mlll- tary forces of the State or Texas Is wounded, disabled or Injured, or haa contracted any disease or Illness In the line of duty, he la entitled to hospitalization, rehospltal- lzatlon, and medical and surgical care until cured or until a medical expert ad- vises that the resulting disability cannot be materially Improved by further hospltal- lzatlon or treatment. Such member is alao entitled to receive the same pay and al- lowance to which he waa entitled at the time of the injury or contraction of the disease or illness during the period of hle dlsablllty, but never for longer than a total period of six (6) months. Brig. Gen. Thos. S. Bishop, page 6. (W-1313) There la no other,way whereby such a member may obtain any other type of recovery from the National Guard or the State of Texas. Yours very truly, WILL WILSON r2z-&?(q y2z-&?(q Fred D. Ward FlX:jkr:zt Assistant APPROVED: OPINION COMMITTEE J. C. IXtvls,Chairman Robert McGee Grady Chandler W. 0. Shultz REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.