[Inclosure No. 5.] EXECUTIVE DEPARTMENT, Austin, March 17, 1864.
Major General J. BANKHEAD MAGRUDER:
SIR: I received your communication of date 14th instant, requesting me to send forward to the field the whole body of the State troops, in which request you state that Lieutenant-General Smith joins, or rather urges upon me through you. You ask that they be sent forward by companies, and that you will see that the are organized in strict conformity with the State law. In conformity with an agreement had with you, announced in General Orders, No. 13, I believe they are being reorganized. Your order and mine are both published and before the officers and troops, and are actually being executed. The regiments, battalions, and brigades, if brigades are formed, will be organized under the orders referred to, and the troops transferred to the field earlier than they can be under the suggestions made by you. Your suggestions involve a departure from those orders and the substitution of others, and might even reach a portion of the troops after they have been formed into battalions and regiments. As you propose organizing those State troops under the State law and in conformity with it, why not let the organization go on as now ordered and give it all the aid in your power, in the spirit of General Orders, No. 13, already referred to?
As they are to be organized in strict conformity with the State law by you, should I yield to your request, I respectfully submit that I can aid you in hastening the organization by co-operating under the orders already published and before referred to. As the organization is to be completed in strict conformity with the laws of the State, I suppose that the troops are to be received by you as organized and tendered by the Executive in conformity to that law. I desire that they should be organized into brigades, as the law contemplates that they should be, and so received, with their brigadier-generals in command of them. It is my duty to urge that they be so received, or at least it is my duty under the State law referred to in your letter to tender them thus organized whenever numbers justify it. I would not expect that more than on or two brigadier-generals besides General Ford would go to the field in command of the State troops, but there are two good officers who desire active service in the field.
The Executive of the State has not the power to set at defiance or disregard the laws as he pleases. It is his duty to obey them, and in this fact you will find certainly a strong reason for what I have stated. I feel it therefore to be my duty to say that it is imposed upon me as an obligation by the laws of the State to tender you, as the commander of the district, whenever the emergency justifies it, the State troops in brigades, and I hope that you can thus receive them. If I am driven from this position I must have the reasons and causes which may influence my action palpable and forcible, so as to justify me before the country. If you consent to receive the State troops in brigades you will please to state distinctly the number that you desire and define the emergency which requires their presence in the field at this time, that orders may be issued from Houston by my direction placing the brigadier-generals of the State under your command. If you decline receiving the troops in brigades,