         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
