When a Colorado regulatory program's effective renewal legislation passes after the sunset repeal date but during the one-year wind-up, is the program still law?

Plain-English summary

Colorado has a sunset law that sets an automatic repeal date for many regulatory programs. The question in this opinion was technical but had real bite: when a renewal bill takes effect after the sunset repeal date, has the program already disappeared from the statute books, requiring the legislature to start over with a full re-enactment?

Attorney General Phil Weiser concluded no. § 24-34-104(2)(b) gives every sunsetting regulatory program a one-year "wind-up period" during which the program "continues to be performed" with full force. During that year the agency keeps every power it had before; licenses issued or renewed during wind-up expire when that period ends, and the statute prorates license fees. So the program has not actually expired on its sunset date, it has only entered a one-year holding pattern. The General Assembly can amend the program (including extending the sunset date) at any time during wind-up.

Applied to the immediate dispute: the Occupational Therapy Practice Act was scheduled to repeal on September 1, 2020. House Bill 20-1230, which extended the program to 2030, did not take effect until September 14, 2020. The Revisor of Statutes had taken the position that the Act expired on September 1 and HB 20-1230 was therefore reviving a dead statute, which would require full re-enactment under Colo. Const. art. V, § 24. The AG disagreed: the Act remained the law of Colorado throughout September, the renewal landed inside the wind-up period, and HB 20-1230 properly amended (rather than revived) the statute.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Colorado's sunset law, codified at § 24-34-104, attaches an automatic repeal date to many regulatory programs to force the General Assembly to reconsider them periodically. The relevant subsection here, § 24-34-104(2)(b), reads in part:

Upon repeal, an agency continues in existence, or, in the case of the repeal of a function, the function continues to be performed, until the date that is one year after the specified repeal date for the purpose of winding up affairs. During the wind-up period, the repeal does not reduce or otherwise limit the powers or authority of the agency...

That language was central to the AG's conclusion that programs subject to wind-up have not yet "expired" in any legal sense at the sunset date. They are operating under a statutorily imposed delay. The opinion contrasts this default with the Office of Public Guardianship statute (§ 13-94-111(2)), which the legislature wrote with an immediate cutoff and a discontinuation plan, proof, the AG says, that the General Assembly knows how to terminate a program without a wind-up if it wants to.

The Occupational Therapy Practice Act fact pattern arose because of pandemic-related delays. HB 20-1230 carried a "petition clause" pegging its effective date to 90 days after the General Assembly's adjournment sine die. The 2020 session originally was expected to adjourn around May 6; pandemic interruption pushed adjournment to June 15. That dragged the bill's effective date from August 6 to September 14, two weeks past the September 1 sunset.

The Revisor of Statutes and the Office of Legislative Legal Services took the alternative position that the Act had expired and would have to be reenacted in full. The AG's opinion sided with the Department of Regulatory Agencies: the program lived on under wind-up, the amendment was proper, and the Act remains the positive law of Colorado.

Common questions

Q: What does a "wind-up period" actually do?
A: § 24-34-104(2)(b) says the agency or function continues to be performed for one year after the sunset repeal date. The agency keeps all of its powers (it can still license, enforce, and discipline). The only restriction is that any license issued or renewed during the wind-up year expires when wind-up ends, with license fees prorated as the statute specifies.

Q: Why does this matter beyond occupational therapists? A: Lots of Colorado regulatory programs are on sunset cycles. The opinion's logic applies to any program where the renewal bill takes effect after the sunset date but within the one-year wind-up. The opinion holds that a renewal amendment may take effect during the one-year wind-up because the program's organic act remains in force.

Q: What's the constitutional point about Colo. Const. art. V, § 24? A: That clause says no statute can be revived, amended, or extended by reference to its title alone. To revive an expired statute you must republish the full text. The AG concluded HB 20-1230 was not a revival, because the Occupational Therapy Practice Act had not actually expired during wind-up. It was an amendment, and the bill properly published the changed sunset date at length.

Q: Did the AG and the Revisor of Statutes ever resolve the disagreement? A: The opinion notes the Revisor declined to publish the as-amended text, and the General Assembly's Committee on Legal Services declined to direct her to. The AG said the legislature could eliminate confusion by reintroducing and reenacting the full text in the 2021 session, which would let the Revisor publish it without the dispute.

Citations and references

Statutes:

• § 24-34-104(2)(b), C.R.S., wind-up period for sunsetting regulatory programs
• § 24-34-104(8), C.R.S., reestablishment of an agency or function during wind-up
• § 12-270-101 et seq., C.R.S., Occupational Therapy Practice Act
• § 12-270-120, C.R.S., original 2020 sunset date for the Act
• HB 20-1230, 2020 Colo. Laws ch. 274, bill that extended the Act to 2030
• Colo. Const. art. V, § 24: no revival or amendment by title only

Cases and administrative decisions:

• People v. Terry, 791 P.2d 374 (Colo. 1990), constructions defeating obvious legislative intent should be avoided
• Director of the Div'n of Real Estate, Community Ass'n Mgr. Program v. Stiver, OAC No. RC 2018-0008 (Dec. 21, 2018), administrative law judge enforcement during wind-up

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2020/12/AG-Formal-Opinion-No-20-01.pdf

Original opinion text

PHIL WEISER
Attorney General
NATALIE HANLON LEH
Chief Deputy Attorney General
ERIC R. OLSON
Solicitor General
ERIC T. MEYER
Chief Operating Officer
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STATE OF COLORADO
DEPARTMENT OF LAW
RALPH L. CARR
COLORADO JUDICIAL CENTER
1300 Broadway, 10th Floor
Denver, Colorado 80203
Phone (720) 508-6000
Office of the Attorney General
FORMAL
OPINION
OF
PHILIP J. WEISER
Attorney General
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No. 20-01
December 4, 2020
Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies and designee of Governor Jared Polis, requested this Formal Opinion on behalf of the Governor under § 24-31-101(1)(d)(II), C.R.S. (2020). QUESTIONS PRESENTED AND SHORT ANSWERS Questions Presented. (1) When the effective date of enacted legislation to renew a regulatory program that is scheduled for sunset repeal falls on a date subsequent to the repeal date listed in the regulatory program’s organic act, but within the one-year wind-up period following that repeal date, is the enacted legislation effective as a matter of law in renewing the regulatory program? (2) Is the Occupational Therapy Practice Act at § 12-270-101, et seq., C.R.S., as amended by House Bill 20-1230, effective as a matter of law, despite having been legislatively renewed by House Bill 20-1230 which held an effective date falling after the Acts statutory sunset repeal date on September 1, 2020? Short Answers. (1) Yes. Because the provisions of § 24-34-104(2)(b), C.R.S., ensure that any regulatory program scheduled for sunset repeal shall continue for one year following the program’s scheduled sunset repeal date, that regulatory program’s organic act remains in effect as a matter of law for one year after the formal date set for sunset repeal. The General Assembly, therefore, is free to amend that organic act at any time during the one-year wind-up period without engaging in a full-text, omnibus reenactment of the entire organic act that otherwise would be required when a statute has expired and is no longer law.

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(2) Yes. The Occupational Therapy Practice Act, as amended by House Bill 20- 1230 is the effective law of the State because the General Assembly enacted amendments to the Act with an effective date within the one-year wind-up period following the scheduled sunset repeal date of September 1, 2020. Therefore, the version of the Act reflecting the amendments enacted by House Bill 20-1230, now 2020 Colo. Laws ch. 274, is the positive law of Colorado. FACTUAL BACKGROUND The Occupational Therapy Practice Act (“the Act”), first enacted in 2008, was amended in 2013 to continue the regulatory program which defines the practice of occupational therapy and requires licensure for occupational therapists and occupational therapy assistants, through 2020. See 2013 Colo. Laws ch. 411, § 1 (SB 13-180). The Act set a sunset date for the program to repeal as of September 1, 2020. Id; § 12-270-120, C.R.S. On January 31, 2020, House Bill 20-1230 (“HB 20-1230”) was introduced to extend the Act for ten years. See HB 20-1230, §§ 1, 2.1 As introduced, the bill included a petition clause making the measure effective ninety days following adjournment sine die of the 2020 regular session of the General Assembly, unless subject to a referendum petition. Therefore, absent a referendum, HB 20-1230 had a presumptive effective date of August 6, 2020, based on an assumed adjournment date of May 6, 2020. See id. § 16. However, while HB 20-1230 was pending before the General Assembly, the legislature temporarily adjourned in light of the COVID-19 pandemic. The General Assembly did not resume the regular session until two months later, on May 27, 2020. During this time, the bill remained pending before the legislature. Ultimately, the bill received full approval by the House of Representatives and Senate, and the Governor signed the bill into law on July 11, 2020. The General Assembly adjourned sine die on June 15, 2020, some forty days later than the previously anticipated adjournment date of May 6, 2020. Despite the fact that the anticipated adjournment date had shifted well past May 6, 2020, the text of HB 20-1230 continued to carry the original petition clause language specifying the measure’s implementation ninety days following the legislature’s adjournment sine die. With the actual adjournment occurring on June 15, 2020, the bill’s petition clause specified that it became effective on September 14, 1 Available at https://leg.colorado.gov/sites/default/files/documents/2020A/bills/2020a_1230_01.pdf.

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2020—two weeks following the existing statutory repeal date set for September 1, 2020.2 The questions presented to the Attorney General stem from whether the September 1, 2020, repeal date fully extinguished the Occupational Therapy Act from state law because HB 20-1230 had not formally taken effect—and thereby had not extended the September 1, 2020, repeal date—until September 14, 2020. ANALYSIS I. A Regulatory Program with a Statutorily Required Sunset Repeal Date Does Not Repeal From Law Until One Year After the Specified Repeal Date. Under C.R.S. § 24-34-104(2)(b), when a regulatory licensing function is scheduled for a sunset repeal, that function nevertheless “continues to be performed” for one year after the repeal date. This requirement is referred to in the Colorado Revised Statutes as the regulatory “wind-up” period: (b) Upon repeal, an agency continues in existence, or, in the case of the repeal of a function, the function continues to be performed, until the date that is one year after the specified repeal date for the purpose of winding up affairs. During the wind-up period, the repeal does not reduce or otherwise limit the powers or authority of the agency; except that a license issued or renewed during the wind-up period expires at the end of the period and original license and renewal fees are prorated accordingly. Upon the expiration of one year after the repeal, the agency shall cease all activities or, in the case of the repeal of a function, the function must cease. When a license issued or renewed before repeal is scheduled to expire after the cessation of activities, the license expires at the end of the wind-up period, and the agency shall refund the portion of the license fee paid that is attributable to the period following the cessation of activities. Any criminal penalty for engaging in a profession or activity without being licensed is not enforceable with respect to activities that occur after an agency has ceased its activities pursuant to this section. 2 Correspondence to the Colorado Department of Regulatory Agencies from the bill drafter with the Office of Legislative Legal Services (“OLLS”) indicates that the failure to correct the petition clause language in the bill was an unintentional oversight during the legislative process, rather than an intentional decision by the bill’s prime sponsors. However, for purposes of this Formal Opinion, the question of intent is immaterial; the analysis presented here does not depend on whether or not the oversight was inadvertent or deliberate.

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§ 24-34-104(2)(b), C.R.S. (emphasis added).
Under the plain language of § 24-34-104(2)(b), the regulatory regime— including all statutory functions, licenses issued, enforcement activities, and fees— remains in full force during the “wind-up” period. Id. During this wind-up period, the licensing program’s powers are “not reduc[ed] or otherwise limited” in any way other than that “a license issued or renewed during the wind-up period expires at the end of the period.” Id. Indeed, the statute itself makes clear that the cessation of a regulation program does not occur until “the expiration of one year after the repeal.” Id. Nothing in the language of the “wind-up” statute requires, or even contemplates, that the statutory provisions controlling a licensing program should disappear immediately upon the sunset date. To the contrary, the statute clearly calls for the regulatory function to continue without interruption until the one-year anniversary of the sunset date. See id. In other words, § 24-34-104(2)(b) imposes a statutory delay on a repeal date imposed elsewhere in statute. Therefore, a “repealed” licensing program does not cease, and is not actually removed from law, until one year following the stated repeal date. This understanding of the meaning of a sunset “repeal” for a regulatory program has been confirmed through various decisions of administrative law judges who have enforced the regulatory requirements of a “repealed” program even after the program’s sunset date because the provisions of § 24-34-104(2)(b), C.R.S., specify that the regulatory program “continues to be performed” in full for the duration of the one-year wind-up period. See, e.g., Director of the Div’n of Real Estate, Community Ass’n Mgr. Program v. Stiver, OAC No. RC 2018-0008 (Dec. 21, 2018) (“Though the
[community association manager (“CAM”)] licensing law is repealed, the CAM Program continues in existence for one year after repeal. . . . During the wind-up period, the Director retains authority to enforce the CAM licensing law. . . . [T]he repeal of the CAM licensing law does not prevent the Director from pursuing the present action or imposing discipline if a violation of the licensing law is proven.”). The plain language of § 24-34-104(2)(b), C.R.S., states that a regulatory program that is in its sunset repeal wind-up period has not actually expired. The statutory provisions of that regulatory program’s organic act remain in force. The actual expiration of the regulatory program does not occur until one year after the sunset date set in the statute, that is, following the completion of the one-year wind- up period. See § 24-34-104(2)(b), C.R.S.3 3 In contrast to the mechanics of a sunset repeal specified in § 24-34-104(2)(b), C.R.S., the General Assembly clearly has the power to create – and has in the past previously created – mechanisms for an immediate repeal of a program or agency without any post-sunset wind-up period. Thus, for example, the repeal language for the Office Public Guardianship establishes that the article creating

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To argue the contrary—that a sunset program’s organic statute expires from law on its exact repeal date—directly contradicts the statutory command of § 24-34- 104(2)(b), C.R.S.. State law expressly provides that the wind-up period continues a program beyond its statutory repeal date, with only one limitation in authority—that licenses issued or renewed during the wind-up period expire at the end of that period. Holding that a regulatory program which has met its repeal date should see its entire organic statute removed from the positive law of Colorado on the date of repeal would necessarily mean that the entire regulatory scheme cannot be implemented during the one-year wind-up period. However, § 24-34-104(2)(b), C.R.S., directs precisely the opposite, requiring that such regulatory schemes shall continue for one full year. People v. Terry, 791 P.2d 374, 376 (Colo. 1990) (“Constructions that defeat the obvious legislative intent should be avoided.”); Finally, because a regulatory program that is in its wind-up period continues to have a fully enforceable, valid organic act that remains the law for one year following the statutory sunset date, the General Assembly may take action during that wind-up period to amend that law as it may with any other law. In this context, a legislative amendment during a statute’s wind-up period to amend the statutory repeal date would fully comply with the provisions of the Colorado Constitution if the text of the statutory section containing the repeal date is “published at length” in the amendment, thus showing how that repeal date is to be amended by the new measure. See Colo. Const. Art. V, section 24 (“No law shall be revived, or amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.”). In this context, a regulatory statute that is in its one-year sunset wind-up period has not expired, or otherwise ceased, and it therefore need not be “revived.” Rather, a regulatory program in its sunset wind-up period may be “amended” by the General Assembly by revising the date set for the sunset of the statute through an amendment that publishes both the current repeal date and the new amended repeal date as enacted by the legislature. In so doing, the amendment conforms to the requirements of Article V, section 24 of the state constitution. the agency “is repealed, effective December 31, 2023,” with the following arrangement for how the office should wind up its affairs: “If the general assembly has adjourned the legislative session beginning in January of 2023 sine die without enacting legislation to continue or expand the office, the office shall implement its discontinuation plan developed pursuant to section 13-94-105 and wind-up its affairs prior to the repeal of this article 94.” § 13-94-111(2), C.R.S. This formulation demonstrates, first, that the General Assembly knows how to terminate an agency as of a specified repeal date with no post-termination continuation of the agency, and further, that the provisions § 24-34-104(2)(b) are entirely different and call for a very different one-year continuation of a regulatory program following a sunset date.

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II. The Sunset Repeal Date of the Occupational Therapy Practice Act Has Been Properly Amended to Extend the Program to September 1, 2030. The statutory provisions of the Occupational Therapy Practice Act as enacted in 2013 specified that the program would enter its one-year sunset repeal wind-up period on September 1, 2020. See 2013 Colo. Laws ch. 411, § 1. Under the provisions of HB 20-1230, the Act’s repeal date was amended to establish a new date for the start of a new one-year sunset wind-up period beginning on September 1, 2030. See 2020 Colo. Laws ch. 274, § 1. This amendment conformed to the requirements of the state constitution in that the legislative measure “published at length” the text of § 12-270-120, C.R.S., showing a strike-through of the 2020 date and the insertion of the 2030 date. See id. Moreover, the fact that this amendment occurred during the prior sunset wind-up period that began September 1, 2020—as a result of the petition clause in House Bill 20-1230 that caused the measure to go into effect on September 14, 2020— is immaterial in light of the provision of § 24-34-104(8), C.R.S., which specifies that the General Assembly may reestablish a regulatory program during its wind-up period. See § 24-34-104(8), C.R.S. (“If an agency or function repeals pursuant to the provisions of this section and the [G]eneral [A]ssembly reestablishes the agency or function during the wind-up period with substantially the same powers, duties, and functions, the agency or function continues.”). This language makes clear that a regulatory program which is amended during its wind-up period so as to shift the program’s repeal date out to a later date will continue “with substantially the same powers, duties, and functions.” Id. In this context, the Occupational Therapy Practice Act has been amended through HB 20-1230 so as to continue the program with substantially the same powers, duties, and functions except as otherwise amended through the additional provisions of the 2020 bill. Thus, the positive law of Colorado as it exists today is that the Act remains in force, as amended by House Bill 20-1230, through the start of a new sunset repeal wind-up period beginning September 1, 2030.4 4 It bears noting that the Revisor of Statutes and the OLLS, when evaluating the same legal questions as addressed by this Formal Opinion, reached an alternative conclusion, determining that the Occupational Therapy Practice Act is no longer the positive law of Colorado. Furthermore, the General Assembly’s Committee on Legal Services, at its meeting on October 27, 2020, declined to exercise its discretion to direct the Revisor of Statutes to “clarify existing laws . . . as the committee directs,” thereby continuing to exclude the as-amended text of the Occupational Therapy Practice Act from the printing of the state’s positive law. § 2-3-703, C.R.S. While the Revisor’s decision concerning the publishing of the Colorado Revised Statutes is within her statutory authority, this Formal Opinion concludes that the Occupational Therapy Practice Act, as amended by House Bill 20-1230, remains fully in effect regardless of whether the as-amended text of the Act is formally published. Nevertheless, the importance of a complete and accurate record of all fully enacted laws within the

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Issued this 4th day of December, 2020.
/s/ Phillip J. Weiser
PHILIP J. WEISER
Colorado Attorney General
published Colorado Revised Statutes is of high importance—for both the public, and, particularly, the regulated profession. Therefore, while the position of the Attorney General is that the as-amended Act remains in force today, the Attorney General notes that the General Assembly would eliminate any confusion by reintroducing and reenacting the full text of the as-amended Act via a new bill during the 2021 regular session of the General Assembly. Such action would serve as the basis, under the Revisor’s legal interpretation, for a full printing of the Act in the printed volume of Title 12 of the Colorado Revised Statutes, thereby ending the present quandary in which an effective law remains absent from the State’s published statutes.