Untitled Texas Attorney General Opinion ( 1967 )

NEY GENERAL June 16, 1967 Thomas S. Bishop Opinion No. M- 93 Major Qeneral, TexAFWG Adjutant General of Texas Re: Questions relative to the Austin, Texas construction of House Bill 108, enacted by the 60th Dear General Bishop: Legislature. In a recent letter to this office you requested an opinion In regard to the above referenced matter. We quote from your letter as follows: "1 * Does a surviving child of a guards- man, who is killed while performing State duty, commence receiving the child's compensation, authorized under Section lc .of HB 108,at the same time the surviving spouse starts receiving the $120. per month plus 12 l/2$ of the basic pay of the guardsman or Is this compensation only payable to the child In the event of the death of remarriage of the surviving spouse? n2. If a guardsman Is injured, while performing State duty and Is unaware of his entitlements under HB 108,and at a later date becomes aware of his benefits and files a claim, will his benefits commence with the date of his filing or will they commence with the date of injury?" The applicable portions of House Bill 108,Acts 60th Legislature, 1967 (amending Article 5783,Sec. 10, Vernon's Clvi Statutes) read as follows: "Section 10. DISABLEDMEN. (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 -420- I Thomas S. Bishop, page 2 (M-93) of duty while in the service of this state in case of riot, tumult, breach of the peace, re- sistance to process, Invasion, insurrection, or imminent danger thereof, or whenever called upon in aid of the civil authorities, or when partlci- pating 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 receive, or be reimbursed for, hospitalization, rehospitalization, and medl- cal and surgical care In a hospital and at his home appropriate for the treatment of such wounding, disability, injury, disease or ill- ness, and necessary transportation Incident thereto 80 long as such wounding, disability, injury, disease or illness exists, and shall re- ceive the same pay and allowance whether in money or in kind, to which he was entitled ,at the time when the injure was Incurred or the disease or illness contracted, during the period of his disability but not for more than a total f twelve (12) months after the end of his tour :f duty. “(b) A member of the Military Forces of the state who Incurs a permanent disability while performing a military duty as provided In Sub- eectlon (a) of this section is entitled to re- ceive a compensation based on a percentage of total disability. In addition to this compen- sation the disabled person shall be entitled to and shall receive or be reimbursed for hospltali- zatlon, rehospltalixatlon, and medical and surgl- cal care In a hospital or at his home as appro- priate for the treatment of such wounding, dls- ability, Injury, disease or illness, and necessary transportation incident thereto for the duration of his dlsablement. The Adjutant General of Texaa shall appoint at least five persons, Including at least one officer of the Medical Corps, to a board of officers which shall determine the percent- age of total disability and award compensation for the disability. A person who Incurs a permanent disability as provided In this subsection 3.8 en- titled to receive a compensation set by the board of officers of up to $120 per month plus 12 l/2 percent of the basic pay of the grade or rank held by that person at the time the disability was Incurred. The board of officers shall review each award of compensation annually on a date set by the Adjutant General of Texas to determine whether -421- Thomas S. Bishop, page 3 (M-93) each award of compensation should be continued, Increased, reduced, or eliminated. Compensation under this subsection may not be awarded or paid until the provisions of Subsection (a) have been complied with. "(c) If a member of the Military Forces of the state dies as a result of injuries or disease Incurred as provided In Subsection (a) of this section, his estate shall be entitled to any re- imbursement 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 ($500). His surviving spouse is entitled to receive a compensation of 120 per month lus 12 l/2 percent of the basic pzy established sor the member of State Military Forces until the surviving spouse dies or remarries. If the sur- viving spouse remarries and there are surviving children, the children will receive compensation as follows: In answer to your first question, a surviving child of a guardsman who Is survived by his spouse, and who Is killed while performing State duty, Is entitled to the compensation provided In the Act only in the event that the surviving spouse subsequently dies or remarries. In answer to your second question, the following language contained In House Bill 108 is controlling: .and shall receive the same pay and allowance whether in money or In kind, t,o which he was entitled at the time when the injury was -422- . ,J Thomas S. Bishop, page 4 (M-93) incurred or the disease or Illness contracted, during the period of his disability but not for more than a total of twelve 12) months after the end of his tour of duty." (&nphasls added.) The Injured or disabled guardsman Is entitled to re- ceive the benefits provided in the Act commencing with the date of the Injury or disability. SUMMARY Pursuant to H.B. 108, 60th Legislature, a surviving child of a guardsman who Is killed while performing State duty Is entitled to the compensation provided In the Act only In the event that the spouse of the guardsman does not survive or In the event that a spouse who does survive subsequently dies or remarries. An Injured or disabled guardsman is en- titled to receive the benefits provided In the Act commencing with the date of the injury or d,lsabllity. /7 @J$jjgg``~ Att ney G&era1 of Texas Prepared by Lewis E. Berry, Jr? Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman W. V. Geppert, Co-Chairman Kerns Taylor John Banks Roger Tyler Paul Martln STAFF LEGALASSISTANT A. J. Carubbi, Jr. -423-