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. Section 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; the only difference is that licenses issued during wind-up expire when the wind-up ends. 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 Personnel Director and the agency: 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 prorated fee refunds for the post-cessation portion.

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. Without this opinion's reading, every renewal bill would need to be drafted with a buffer to avoid post-sunset effective dates, and any bill that slipped (because a session ran long, or a referendum delay happened) would force a full re-enactment.

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 suggested the cleanest fix was for the legislature to reintroduce and reenact 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

STATE OF COLORADO
DEPARTMENT OF LAW
Office of the Attorney General

FORMAL OPINION OF PHILIP J. WEISER, Attorney General
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 Act's 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.

(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. § 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. 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.

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. 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. With the actual adjournment occurring on June 15, 2020, the bill's petition clause specified that it became effective on September 14, 2020, two weeks following the existing statutory repeal date set for September 1, 2020.

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.

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. 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." 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."

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. 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. 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.").

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.

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. 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. See Colo. Const. Art. V, section 24.

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.

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.

Moreover, the fact that this amendment occurred during the prior sunset wind-up period that began September 1, 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.").

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.

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. 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.

Issued this 4th day of December, 2020.

/s/ Phillip J. Weiser
PHILIP J. WEISER
Colorado Attorney General