Untitled Texas Attorney General Opinion ( 1940 )

THEA~JTORNEY GENERAL OFTEXAS Honorable J. J. Brown, Director Vocational Rehabilitation Division and Crippled Children's Work State Board'for Vocational Education Austin, Texas Dear Mr. Brown: Opinion No. O-2771 Re: Authority ~of the Vocational Rehabllltatlon Division of the State Department of Rducatlon to purchase braces directly without a previous contract by the Board of Control. We have your request of September 20, 1940, as fol- lows: "We request your opinion asto whether or not it is legal for the Vocational Re- habilitation Division of the State Department of Education to purchase braces directly from the companies manufacturing the appliances rather than under contracts awarded by the State Board of Control to the.company present- ing the lowest bid under the competitive bid- ding plan." It IS the opinion of this department that your ques- tion should be answered In the affirmative. The prlnclples announced In our opinion No. O-2612 control the answer to your question. In that oplnlon we dis- cussed the relative rights of the Board of Control and the State Board of Vocational IEducatIonwith respect to purchases and more especially with respect to the power of the Board of Control to approve claims for payment, saying: "If the items of purchase In the present case were such as that the pu.rchaseshould have been made upon competltfve bids, then the Board of Control would have no authorfty to approve the audit for payment. If, on'~theother hand, the items were of such nature as that the Board could have purchased them without competitive bids, Honorable J, J. Brown, page 2 o-2771 then~the Board in Its discretion would have the authority to approve the claim the ef- fect of which approval would In our opinion be a substantial compliance with the statutes of purchase and would en'cftlethe claim to be passed for a warrant of payment." We further said, "In this connection we are of.the opinion that if these items of equlpment or 'supplleswere of such~nature as that competitive bids would be Impossible the law would have no application to such a case. It does not require an Impossible thing." From what you say in your letter of request, --land your statement comports with common understanding; --'a br~ace for a crippled child.is not such a thing as is contemplate& by our statutes calling for competitive bidsin 'purchasingsup- plies for an institution. ~A brace is not a commodity carrid in stocks from which a purchase may be qulcklg made, like a hat or a pair of shoes, for the simple reason that a brace for a crippled child is a specialty and must be precisely fitted to the particular need and condition of the injured'or abnor- inallimb. It Is of a kind with the fitting of glasses or the setting of a broken limb inplaster. The purchase of such' brace is not in its nature a commercial purchase from a store or dealer; It is in the nature of a servlce'ln ~connectlon with the treatment of the broken, deformed or maladjusted~ I' limb. -It is as much a'service as is the surgeon's operation; indeed, it Is a species of mechanical operation. Every such case presents an individual situation and must be'treated~ac- cordlngly; so that, In our opinion, the purchase of a brace~"~ does not fall within the scope of the statutes requiring com- petitive bids by the Board of Control. If we are mistaken in this, we are further of the opinion that the statutes themselves, when liberally or even reasonably construed, compel the same conclusion, House Bill No. 502, passed at the Regular Session of the 44th Leglslature (General Laws, 44th Leg.. p0 328) pro- vides: "At the discretion of the State Depart- ment of Rdtacation,transportation, appliances, braces and material necessary in the proper handling of crippled children may be In part OP entirely provided.. Honorable J. JT.Brown, page 3 o-2771 "The Rehabilitation Division of the Sta,teDepartment of Education is directed to provrde in Rules and Regulations, the necessary detafls for the conduct of this work, Fnaccordance with the purposes of this Act; which shall permit as far as possible, the free choice of patients fn their selection of physicians and hospftals, and shall arrange with hospitals, brace de- partmentsand-other services providing for cr-fppledchildren's work, compensation for such services9 provided that such"fees or charges shall not exceed the average mini- mum charges for the same services rendered to average ward patients in the hospitals approved for purpose of this Act -- such Rules and Regulations shall be approved by the State Department of Education." You are respectfully advised as herein above answered. Yours very truly ATTORNEY GENERAL OF TEXAS By s/Ocle Speer 0ci.eSpeer Assfstant OS :LW:wc APPROVED SEP 30, 1940 s/Gerald C, Mann ATTORNEY GENERAL OF TEEAS Approved Opinion Committee By s/BwB Chafrman