Can the Texas National Guard use federal money to buy liability insurance for staff running a mobile recruiting shooting range, even from an out-of-state insurer?

Plain-English summary

The Adjutant General of the Texas Army National Guard wrote the Attorney General after the state comptroller refused to pay an insurance bill. The Guard runs three mobile pellet-rifle ranges, built into trailers and towed by trucks, that travel to recruiting events so guardsmen and would-be recruits can practice and show off their marksmanship. To cover the officers and employees who operate those ranges, the adjutant general bought a liability policy from Essex Insurance Company, a Delaware insurer, through a licensed Texas agent. The premium was $919.45 for one year. The federal National Guard Bureau approved the purchase, paid that exact amount to Texas, and the state deposited it with the comptroller. When the adjutant general sent the comptroller a voucher to pay the premium, the comptroller balked, for two reasons: the adjutant general had not shown he had authority to buy the insurance, and the insurer was not licensed in Texas, which the comptroller read a state statute to require.

The Attorney General concluded the adjutant general had the authority and the bill should be paid. The analysis started from two background rules. A public officer can make only those contracts the officer is authorized by law to make, and under article III, section 44 of the Texas Constitution an appropriation is valid only if it rests on preexisting law. So two things had to be true: the adjutant general needed legal authority to incur this kind of obligation, and the money had to have been appropriated. The opinion found both.

On authority, the opinion walked through the National Guard's unusual "hybrid" status. The Guard is the modern successor to the state militias, and the state units operate under state control, but the federal government funds them and regulates them heavily through the National Guard Bureau, a federal agency. The Texas Adjutant General is the head of the state's military department and, by statute, performs for the state, as nearly as practicable, the duties that the federal service secretaries perform for the Army and Air Force. Federal law gives those secretaries authority over recruiting, organizing, supplying, equipping, and training, and expressly authorizes federal funds for National Guard expenses, including the "acquisition, construction, maintenance, and equipment of shooting galleries." On top of that, a Federal-State Agreement committed the federal government to fund a Texas Guard recruiting program, and a 1986 National Guard Bureau directive specifically authorized states to obtain liability insurance for the mobile recruiting rifle ranges and to be reimbursed for it. Texas had requested and received payment under that directive. Putting the Texas Government Code, the United States Code, the agreement, and the directive together, the opinion concluded the adjutant general had authority, noting prior AG opinions that federal law can be the preexisting legal basis for a state officer's authority.

On appropriation, the opinion pointed to article V, section 22(1) of the General Appropriations Act, which appropriates all funds state agencies receive from the federal government for the purposes for which the federal payment was made. The $919.45 had already been received from the federal government and deposited with the comptroller to pay for this insurance, so it was appropriated for that purpose. Finally, the opinion dispatched the comptroller's licensing objection. The statute the comptroller relied on, article 6252-19a, requires that liability insurance be bought from a company authorized to do business in Texas, but only for liabilities arising from the use or operation of motor vehicles, trucks, tractors, power equipment, aircraft, or watercraft. The mobile shooting range is not self-propelled and does not fall into any of those categories, so the statute simply did not apply, and the out-of-state insurer was not a problem.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The appropriations provision discussed here came from a specific 1991 General Appropriations Act that has long since expired, and the cited Government Code, United States Code, and V.T.C.S. provisions have been amended and in some cases recodified since 1992, so confirm current law before relying on anything described here.

Background and statutory framework

A public officer may make only those contracts on behalf of the state that the officer is expressly or impliedly authorized by law to make. Fort Worth Cavalry Club v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935). Article III, section 44 of the Texas Constitution provides that an appropriation is valid if it is supported by preexisting law. See Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924, 929 (Tex. 1985); Austin Nat'l Bank v. Sheppard, 71 S.W.2d 242, 245 (Tex. 1934). The voucher should therefore be paid if the adjutant general had authority under preexisting law to incur the obligation and funds had been duly appropriated to pay it. The Attorney General concluded both conditions were met.

The National Guard has an "unusual 'hybrid' status as an agency with both federal and state characteristics." Johnson v. Orr, 780 F.2d 386, 388 (3d Cir. 1986). It is the modern successor to the state militias recognized in article I, section 8 of the United States Constitution. Jorden v. National Guard Bureau, 799 F.2d 99, 101 (3d Cir. 1986). The state National Guard units are agencies under state control and authority. Johnson v. Orr, id. Texas established a National Guard unit under state law. See Gov't Code §§ 431.041-.045. The federal government provides state National Guard units with funds, subject to federal rules and regulations, see 32 U.S.C. §§ 106, 107, and through this funding and regulation maintains considerable control over the standards, organization, activities, and functions of the various state units. See New Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276, 278 (3d Cir. 1982). The National Guard Bureau is a federal agency within the Departments of the Army and the Air Force responsible for liaison with the state units and for publishing National Guard regulations and administering approved policies and programs. See 10 U.S.C. § 3040; Bollen v. National Guard Bureau, 449 F. Supp. 343, 345 (W.D. Pa. 1978).

The Texas Adjutant General is the head of the military department of the state and its military forces, including the Texas National Guard. Gov't Code § 431.022; see also id. § 431.001(3), (4). The duties of the adjutant general include performing "for the state as near as practicable the duties that pertain to the chiefs of staff of the army and air force and the secretaries of the military services, under regulations and customs of the United States armed forces." Id. § 431.029(2). Federal law provides that the Secretaries of the Army and the Air Force are responsible for, and have the authority necessary to conduct, all the affairs of their respective departments, including recruiting, organizing, supplying, equipping, and training service persons. 10 U.S.C. §§ 3013(b)(1)-(8) (Secretary of the Army); 8012(b)(1)-(8) (Secretary of the Air Force); see also Attorney General Opinion JM-885 (1988). The Texas Adjutant General therefore enjoys the same authority and responsibilities with respect to the Texas National Guard. Gov't Code § 431.029(2). Federal law expressly authorizes the use of appropriated federal funds to pay the expenses of the National Guard Bureau, including the "acquisition, construction, maintenance, and equipment of shooting galleries." 32 U.S.C. §§ 106, 107(a)(6).

Pursuant to a Federal-State Agreement between the United States National Guard Bureau and the State of Texas, Texas agreed to conduct a federally financed National Guard recruiting and retention program, with all approved costs furnished by the federal government. In a National Guard Bureau directive dated August 21, 1986, the Bureau authorized state units to obtain liability insurance covering personal injury and property damage resulting from the use of the mobile recruiting pellet-rifle ranges, and authorized payment or reimbursement to the states for the cost. The Texas National Guard requested payment, the Bureau approved it in a memorandum dated June 27, 1991, and the state was paid. On the basis of the Government Code, the United States Code, the Federal-State Agreement, and the Bureau directive, the Attorney General concluded the adjutant general had authority to obtain the insurance. See generally Attorney General Opinion H-1186 (1978) (federal law may be the preexisting legal basis for a state officer's authority).

On appropriation, article V, section 22(1) of the General Appropriations Act provides: "All funds received from the United States government by state agencies and institutions named in this Act are hereby appropriated to such agencies for the purposes for which the federal grant, allocation, aid, payment or reimbursement was made." H.B. 1, Acts 1991, 72d Leg., 1st C.S., ch. 19, at 365, 1022. Funds totaling $919.45 had already been received from the federal government and deposited with the comptroller for the purpose of paying for the liability insurance; under section 22(1), that sum was appropriated for that purpose.

Finally, the comptroller had also refused the voucher because the insurer, Essex Insurance Company, was not licensed in Texas and so, the comptroller concluded, was not authorized to transact business in Texas as required by article 6252-19a, V.T.C.S. Article 6252-19a authorizes departments or agencies of the state to insure their officers and employees from liability arising from the use or operation of automobiles, trucks, tractors, power equipment, aircraft, or watercraft, but provides that such insurance "shall be provided by a liability insurance company or companies authorized to transact business in the State of Texas." V.T.C.S. art. 6252-19a, § 1. The statute applies only to insurance obtained for liabilities arising from the use or operation of motor vehicles, power equipment, aircraft, or watercraft. The mobile shooting range is not self-propelled and does not meet any of the other article 6252-19a categories, so the statute does not apply.

Common questions

Could Texas use federal money to pay this insurance premium?
Yes. The opinion concluded the $919.45 had already been received from the federal government and deposited with the comptroller to pay for this insurance, and article V, section 22(1) of the 1991 General Appropriations Act appropriated federal funds received by state agencies for the purposes the federal payment was made.

Where did the adjutant general's authority to buy the insurance come from?
From a combination of Texas statute (which makes the adjutant general's duties parallel those of the federal service secretaries), federal law authorizing Guard funding and shooting-gallery expenses, a Federal-State Agreement, and a 1986 National Guard Bureau directive that specifically authorized states to obtain this liability insurance and be reimbursed.

Why didn't the rule requiring a Texas-licensed insurer block the purchase?
Because that rule, in article 6252-19a, applies only to insurance covering liabilities from motor vehicles, power equipment, aircraft, or watercraft. The opinion noted the mobile shooting range is not self-propelled and fits none of those categories, so the statute did not apply and the out-of-state insurer was acceptable.

Did the National Guard's federal-state status matter?
Yes. The opinion explained the Guard is a hybrid agency: the state units are under state control but are federally funded and regulated, which is why both Texas law and federal law fed into the authority analysis.

Citations

• V.T.C.S. art. 6252-19a, § 1
• Tex. Const. art. III, § 44
• Government Code §§ 431.041-.045, 431.022, 431.001(3), (4), 431.029(2)
• 32 U.S.C. §§ 106, 107, 107(a)(6); 10 U.S.C. §§ 3040, 3013(b)(1)-(8), 8012(b)(1)-(8)
• General Appropriations Act, art. V, § 22(1) (H.B. 1, Acts 1991, 72d Leg., 1st C.S., ch. 19, at 365, 1022)
• Fort Worth Cavalry Club v. Sheppard, 83 S.W.2d 660 (Tex. 1935); Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924 (Tex. 1985); Austin Nat'l Bank v. Sheppard, 71 S.W.2d 242 (Tex. 1934)
• Johnson v. Orr, 780 F.2d 386 (3d Cir. 1986); Jorden v. National Guard Bureau, 799 F.2d 99 (3d Cir. 1986); New Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276 (3d Cir. 1982); Bollen v. National Guard Bureau, 449 F. Supp. 343 (W.D. Pa. 1978)
• Attorney General Opinions JM-885 (1988), H-1186 (1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0148
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0148.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 10, 1992

Major General William C. Wilson
Adjutant General
Texas Army National Guard
P. O. Box 5218
Austin, Texas 78763-5218

Opinion No. DM-148

Re: Authority of the Texas National Guard to obtain liability insurance with federal funds to cover National Guard officers and employees who operate a mobile shooting range for recruitment purposes (RQ-167)

Dear Major General Wilson:

You asked for the attorney general's opinion concerning whether the Texas National Guard is authorized to purchase liability insurance, with funds furnished by the federal government, to cover National Guard officers and employees who operate a mobile shooting range for recruitment purposes. We conclude that the Texas National Guard does have such authority.

You advise that this issue arises in the following context: The Texas Adjutant General's Department has three mobile pellet rifle ranges that are used by the adjutant general during National Guard recruiting activities; these mobile ranges are intended to give national guardsmen and potential recruits an opportunity to practice and demonstrate their marksmanship. The mobile ranges are installed in trailers and must be pulled by trucks. The adjutant general obtained liability insurance to cover the officers and employees of the adjutant general that operate the mobile rifle range. The insurance was placed with Essex Insurance Company, of Wilmington, Delaware, through a licensed Texas insurance agent. The premium for this insurance is $919.45 for the period from June 1, 1991, through June 1, 1992. The federal National Guard Bureau approved the purchase of the liability insurance and has paid the state of Texas $919.45 to obtain the liability insurance; this sum has been deposited with the Texas Comptroller of Public Accounts.

The adjutant general submitted a purchase voucher to the Comptroller of Public Accounts in July 1991, requesting that the comptroller issue a warrant for $919.45 payable to the insurance agent to pay the premium. The comptroller advised the adjutant general that the voucher could not be paid because the adjutant general did not adequately demonstrate that he had authority to obtain the liability insurance. Because the insurer was not licensed to transact business in Texas, the comptroller also concluded that the insurer was not a "liability insurance company or companies authorized to transact business in the state of Texas [as required by article 6252-19a, V.T.C.S.]," and therefore the comptroller could not pay the voucher. As a result of the foregoing, the premium has not been paid.

A public officer may make only those contracts on behalf of the state that the officer is expressly or impliedly authorized by law to make. Fort Worth Cavalry Club v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935). Article III, section 44 of the Texas Constitution provides that an appropriation is valid if it is supported by pre-existing law. See Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924, 929 (Tex. 1985); Austin Nat'l Bank v. Sheppard, 71 S.W.2d 242, 245 (Tex. 1934). Therefore, the voucher presented to the comptroller should be paid if: 1) the adjutant general had authority pursuant to preexisting law to incur the type of obligation at issue, and 2) funds have been duly appropriated to pay the obligation. We conclude that both of these conditions have been met.

The National Guard has an "unusual 'hybrid' status as an agency with both federal and state characteristics." Johnson v. Orr, 780 F.2d 386, 388 (3d Cir. 1986) (citation omitted). The National Guard is the modern successor to the state militias recognized in article I, section 8 of the United States Constitution. Jorden v. National Guard Bureau, 799 F.2d 99, 101 (3d Cir. 1986). The state National Guard units are agencies under state control and authority. Johnson v. Orr, id. Pursuant to Texas law, the state of Texas has established a National Guard unit. See Gov't Code §§ 431.041-.045. The federal government provides state National Guard units with funds, subject to federal rules and regulations. See 32 U.S.C. §§ 106, 107. Through this funding and regulation process, the federal government maintains considerable control over the standards, organization, activities, and functions of the various state National Guard units. See New Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276, 278 (3d Cir. 1982). The National Guard Bureau is a federal agency within the Departments of the Army and the Air Force with responsibility for maintaining liaison between the Departments of the Army and the Air Force and the various state National Guard units, as well as publishing National Guard regulations and implementing and administering approved National Guard policies and programs. See 10 U.S.C. § 3040; Bollen v. National Guard Bureau, 449 F. Supp. 343, 345 (W.D. Pa. 1978).

The Texas Adjutant General is the head of the military department of the state and its military forces, including the Texas National Guard. Gov't Code § 431.022; see also id. § 431.001(3), (4). The duties of the adjutant general include performing "for the state as near as practicable the duties that pertain to the chiefs of staff of the army and air force and the secretaries of the military services, under regulations and customs of the United States armed forces." Id. § 431.029(2). Federal law provides that the Secretaries of the Army and the Air Force are responsible for, and have the authority necessary to conduct, all the affairs of their respective departments, including recruiting, organizing, supplying, equipping, and training service persons within their respective departments. 10 U.S.C. §§ 3013(b)(1)-(8) (Secretary of the Army); 8012(b)(1)-(8) (Secretary of the Air Force); see also Attorney General Opinion JM-885 (1988). Therefore, the Texas Adjutant General enjoys the same authority and responsibilities with respect to the Texas National Guard. Gov't Code § 431.029(2). Federal law expressly authorizes the use of appropriated federal funds to pay the expenses of the National Guard Bureau, including the "acquisition, construction, maintenance, and equipment of shooting galleries." 32 U.S.C. §§ 106, 107(a)(6).

Pursuant to a Federal-State Agreement between the United States National Guard Bureau and the State of Texas, the State of Texas has agreed to conduct a National Guard recruiting and retention program in Texas financed by the federal government. The agreement provides that all approved costs in the implementation of this program shall be furnished by the federal government. In a National Guard Bureau directive dated August 21, 1986, the National Guard Bureau authorized state National Guard units to obtain liability insurance to cover personal injury and property damage resulting from the use of the mobile recruiting pellet rifle ranges. This directive also authorized payment or reimbursement to the states for the costs of obtaining such insurance. Pursuant to this directive, the Texas National Guard requested payment from the National Guard Bureau for obtaining such liability insurance. This request was approved by the National Guard Bureau in a memorandum dated June 27, 1991, and the state of Texas has been paid. On the basis of the Texas Government Code, the United States Code, the Federal-State Agreement, and the directive of the National Guard Bureau, we conclude that the Texas Adjutant General had authority to obtain the liability insurance to cover the National Guard officers and employees that operate the mobile recruiting pellet rifle ranges. See generally Attorney General Opinion H-1186 (1978) (federal law may be the pre-existing legal basis for a state officer's authority).

Article V, section 22(1) of the current General Appropriations Act provides: "All funds received from the United States government by state agencies and institutions named in this Act are hereby appropriated to such agencies for the purposes for which the federal grant, allocation, aid, payment or reimbursement was made." H.B. 1, Acts 1991, 72d Leg., 1st C.S., ch. 19, at 365, 1022 of Aug. 30, 1991, Vernon's Sess. Law Serv. 365, 1022. Funds totaling $919.45 have already been received from the federal government and deposited with the comptroller for the purpose of paying for the liability insurance; pursuant to section 22(1) this sum is appropriated for paying for the liability insurance.

The comptroller also refused to pay the requested voucher because the insurer, Essex Insurance Company, is not licensed in Texas, and therefore the comptroller concluded that Essex was not authorized to transact business in Texas as required by article 6252-19a, V.T.C.S. Article 6252-19a authorizes the departments or agencies of the state to insure its officers and employees from liability "arising from the use or operation of automobiles, trucks, tractors, power equipment, aircraft, or watercraft, but such insurance shall be provided by a liability insurance company or companies authorized to transact business in the State of Texas." V.T.C.S. art. 6252-19a, § 1. This statute applies only to insurance obtained for liabilities arising from the use or operation of motor vehicles, power equipment, aircraft, or watercraft. Id. The mobile shooting range is not self-propelled, it does not meet any of the other article 6252-19a categories, and thus the statute does not apply.

                               SUMMARY

          The adjutant general, as chief of the Texas National Guard, has authority to obtain liability insurance, with federal funds, to cover National Guard officers and employees who operate a mobile shooting range for recruitment purposes. The funds to pay the insurance premium are appropriated by article V, section 22(1) of the current General Appropriations Act.

          Article 6252-19a, V.T.C.S., which requires that the state obtain liability insurance from a company authorized to transact business in Texas, applies only to liability insurance obtained to cover liabilities arising from the use or operation of motor vehicles, power equipment, aircraft, and watercraft, and thus is not applicable in this case.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Geoffrey Hennessey
Assistant Attorney General