Untitled Texas Attorney General Opinion ( 1957 )

March 18, 1957
Hon. Paul Brashear, Chairman Opinion No. Ww-62
Military and Veterans'
Affairs Committee Re: Whether or not H.B, 416,
House of Representatives 88 8mended, Will adverse-
Austin, Texas ly affeot the issuance of
bonds by the Armory Board.
Dear Mr. Breshear:
The question presented is whether H.B. 416, as amended by
Committee, will affect the power to issue bonds by the
Texas National Guard Armory Board.
The Armory Board was created by the 44th Legislature, 1935,
General Laws, Chapter 184, and codified by Vernon as Arti-
cle 589Ob.
The Act prescribes board membership; mode of qualification
and certification; the.means for the expression of its of-
ficial acts; constitutes the board "a body politi,cand cor-
porate," outlines its duties and powers, including that ,of
borrowing money, issuing and selling bonds, debentures and
other evidences of indebtedness; and prescribes f,ormanage-
ment and disposition of property acquired by the Board.
Insofar as pertinent, H.B. 416, as proposed, would work
certain changes in Section 1 of Article 5890%~. They fol-
low In resume:
(a) The board remains the same numerically but its
personnel is to be changed as vacancies occur in the current
membership.
(b) The current statute provides for a six-year
membership term, while H.B. 416 contains no specific term
of years..
(c) Article 589Ob provides for an oath of offlce;
H.B. 416 does not.
Article XVI, Sections 30 and 3Oa, Constitution of Texas,
place restrictions on terms of state offices. Section 30
Hon. Paul Brashear - page 2 (WW-62)
provides that the duration of all offices not fixed by the
Constitution shall never exceed two years and excepts the
Railroad Commission. Section 30a specifies a six-year
term for named board members and a like term for "such
boards as have been, or may hereafter be, established by
law . . ."
Generally, public offices may be classified as those civil
and military. 42 Am,Jur., Public Officers, Sec. 17. The
Supreme Court of Texas in Texas Net. Guard Armory Board v.
McGraw, 132 Tex. 613, 126 S.W. 26 627 (1939), held that
membership on the Texas National Guard Armory Board was a
military office and, therefore, the constitutional provl-
sions (Article 16, Sections 30, 30-2) are not applic8ble;
consequently, the fact that H.B. 416 imposes no fixed year-
terms on board membership has no bearing on the validity of
the organization of the Board and its power to function.
See also Ex parte Archie Dailey, 93 Tex. Cr. R. 68, 246 S.W.
91 (1922) 26 AIR 138.
The reasoning of the Court in the McGraw and Dailey cases,
supra, excludes the necessity of the prospective members
of said Board from taking the usual constitutional oath oft
office (required,by Article XVI, Section l), since that of-
fice is military and not civil by nature and therefore with-
out the purview of said constitutional proviso.
The other changes affected by H.B. 416 are minor and incon-
sequential insofar as they might have any possible bearing
on the Board's bond issuing powers.
SUMMARY
H.B. 416, as proposed, will not adversely
affect the issuance of bonds by the Texas
National Guard Armory Board.
Very truly yours,
GW-s
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman