§ 101.054.State Military Personnel

One of the chapter’s exclusions, and it has three conditions rather than one.

The chapter does not apply to a claim arising from the activities of the state military forces when on active duty under the lawful orders of competent authority.

All three must hold, and each does independent work. The claim must arise from state military activities; the forces must be on active duty; and they must be acting under lawful orders of competent authority.

So the exclusion does not cover everything a service member does. An activity outside active duty falls outside it, and so does conduct that was not under lawful orders — which is the condition doing the most work, since it excludes from the exclusion anything done without proper authorisation.

The state military forces are the Texas Military Department’s components — the Texas Army National Guard, the Texas Air National Guard, and the Texas State Guard — under state rather than federal control.

The distinction between state and federal status matters. National Guard members activated under federal authority are federal personnel, and claims arising from that service are a federal matter outside this chapter altogether.

The rationale is the ordinary one for military immunity: operational decisions made under orders, often in emergencies, are not well suited to review by a civil jury applying a negligence standard.

Texas guard units are deployed for hurricanes, floods, and border operations, so the exclusion is invoked more often than its obscurity suggests. Two neighbouring provisions cover related ground — the exception for certain governmental functions, and the discretionary powers exception.