CO Code § 24-31-101 (2021)
2021 Colorado Code|Title 24 - Government - State|Article 31 - Department of Law|Part 1 - Attorney General|§ 24-31-101. Powers and Duties of Attorney General

  The attorney general:   Shall act as the chief legal representative of the state and be the legal counsel and advisor of each department, division, office, board, commission, bureau, and agency of state government but shall not provide legal counsel to the legislative branch except for the state auditor in accordance with section 2-3-104.5;    Shall appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor;    Shall prosecute and defend for the state all causes in the appellate courts in which the state is a party or is interested;    Shall give his or her opinion in writing upon all questions of law submitted to the attorney general by the:   General assembly, or either the house of representatives or the senate;    Governor;    Lieutenant governor;    Secretary of state;    State treasurer;    Executive director of the department of revenue; or    Commissioner of education.       Shall have concurrent jurisdiction with the relevant district attorney over part 3 of article 120 of title 12;    May appoint deputy attorneys general and assistant attorneys general for the efficient administration and supervision of department divisions and offices specified in section 24-31-102;    May, at his or her sole discretion, appoint special assistant attorneys general to provide legal services to state agencies except as otherwise provided in section 24-31-111 (5);    Shall, at the request of the governor, secretary of state, state treasurer, executive director of the department of revenue, or commissioner of education, prosecute and defend all suits relating to matters connected with their departments;    May bring civil and criminal actions to enforce state laws, including actions brought pursuant to the "Colorado Antitrust Act of 1992" in article 4 of title 6, the "Colorado Consumer Protection Act" in article 1 of title 6, the "Unfair Practices Act" in article 2 of title 6, article 12 of title 6, and sections 6-1-110, 11-51-603.5, 24-34-505.5, and 25.5-4-306;    Shall have the powers, duties, and functions as are prescribed for heads of principal departments in the "Administrative Organization Act of 1968", article 1 of this title 24;    May make rules, pursuant to section 24-4-103, as may be necessary to carry out the duties imposed upon him or her by law;    When required, shall prepare drafts for contracts, forms, and other writings that may be required for the use of the state;    Upon request of any employee in the state personnel system, shall represent such employee in any civil action or administrative proceeding instituted against such employee, either in the employee's official or individual capacity if the action or proceeding arises out of performance of the employee's official duties as determined by the attorney general and if the action or proceeding has not been brought by the state personnel director or the appointing authority of the employee seeking dismissal or other disciplinary action; except that the attorney general shall not represent any such employee in an action brought under section 24-50.5-105;    Shall, pursuant to section 24-30-1507, represent expert witnesses and consultants described in section 24-30-1510 (3)(h); and    Shall keep in proper books a record of all official opinions and a register of all actions prosecuted or defended by him or her and of all proceedings had in relation thereto and the status of pending matters in his or her office, which books or registers the attorney general shall deliver to his or her successor. Publication of opinions or other material circulated in quantity outside the executive branch must be issued in accordance with section 24-1-136.       The general assembly hereby recognizes and reaffirms that the attorney general has all powers conferred by statute and by common law in accordance with section 2-4-211 regarding all trusts established for charitable, educational, religious, or benevolent purposes.    The attorney general may bring a civil action to enforce the provisions of section 24-31-113.    The attorney general may bring a civil action to enforce the provisions of section 24-31-307 (2) or a criminal action to enforce the provisions of section 24-31-307 (3).     Source: L. 41: § 79, § 49. CSA: C. 3, § 49. CRS 53: § 3-9-1. C.R.S. 1963: § 3-9-1. L. 64: p. 119, § 15. L. 65: p. 144, § 1. L. 75: (1)(a) amended, p. 215, § 45, effective July 16. L. 77: (1)(e) added, p. 1183, § 1, effective May 26; (1)(a) and (1)(b) amended, p. 263, § 2, effective June 2. L. 79: (4) amended, p. 968, § 3, effective June 15. L. 81: (5) added, p. 1166, § 1, effective May 26; (1)(f) added, p. 671, § 3, effective July 1; (2) repealed, p. 339, § 2, effective July 1. L. 83: (1)(c) amended, p. 835, § 43, effective July 1. L. 94: (6) added, p. 565, § 11, effective April 6. L. 2004: (4.5) added, p. 620, § 2, effective July 1. L. 2006: (1)(f) amended, p. 762, § 22, effective July 1. L. 2014: (4.7) added, (HB 14-1380), ch. 376, p. 1794, § 4, effective July 1. L. 2016: (1)(a), (1)(b), (1)(c), (1)(d), (3), and (4) amended, (HB 16-1094), ch. 94, p. 263, § 1, effective August 10. L. 2019: (1)(f) amended, (HB 19-1172), ch. 136, p. 1688, § 127, effective October 1. L. 2020: (3) and (4) added, (SB 20-217), ch. 110, p. 457, § 9, effective June 19; entire section R&RE, (SB 20-063), ch. 12, p. 49, § 2, effective September 14.   Editor's note: Amendments to this section by SB 20-063 and SB 20-217 were harmonized.   Cross references: (1) For legal services provided by the office of the attorney general to the board of assessment appeals, see § 39-2-127 (3); for the salary of the attorney general, see § 24-9-101; for discretionary funds of the attorney general, see § 24-9-105; for the election of the attorney general, see § 3 of art. IV, Colo. Const., and § 1-4-204.   (2) For the legislative declaration in SB 20-217, see section 1 of chapter 110, Session Laws of Colorado 2020.   ANNOTATION   Law reviews. For article, "Administrative Law", see 59 Den. L.J. 173 (1982).   Annotator's note. The following annotations include cases decided under this section as it existed prior to its 2020 repeal and reenactment.   Executive order that directs the attorney general to prosecute certain cases remains in effect until modified, rescinded, or superseded. Because an executive order is the mandate of the office of the governor, not the individual holding the title of governor when it issues, it remains in effect until modified, rescinded, or superseded and does not expire when the issuing governor leaves office. Neither this section nor any other legal authority requires an executive order to include a temporal or spatial framework or to expire after the lapse of some undefined period deemed sufficient by a court. People v. Salgado,2019 COA 5, 444 P.3d 829.   Attorney general only has powers granted by the general assembly and common law unless the general assembly repeals a common law power. People ex rel. Tooley v. District Court, 190Colo. 486, 549 P.2d 774 (1976); People ex rel. Salazar v. Davidson, 79 P.3d 1221 (2003).   Although the constitution recognizes the attorney general as being part of the executive branch of government, § 1 of art. IV, Colo. Const., the attorney general does not have powers beyond those granted by the general assembly. People ex rel. Tooley v. District Court, 190Colo. 486, 549 P.2d 774 (1976).   No authority to prosecute criminal actions absent governor's command. In the absence of a command from the governor, the attorney general is not authorized to prosecute criminal actions. People ex rel. Tooley v. District Court, 190Colo. 486, 549 P.2d 774 (1976).   However, this section does not limit the power of the attorney general to petition for the impanelment of a state grand jury. People v. Valdez, 928 P.2d 1387 (Colo. App. 1996).   <b> Powers of attorney general are not enlarged by grand jury act. </b> The statutory powers granted to the attorney general under this section are not enlarged by the statewide grand jury act, <cite class="occo"><a href="gov.co.crs.title.13.html#t13-juriesandjurors-ar73-s13-73-101" target="_blank">§ 13-73-101</a></cite> et seq. People ex rel. Tooley v. District Court, 190Colo. 486, 549 P.2d 774 (1976).   Therefore, attorney general cannot prosecute all grand jury indictments. Neither by express provision nor by implication did the general assembly grant the attorney general the right to prosecute all indictments returned by a state grand jury. People ex rel. Tooley v. District Court, 190Colo. 486, 549 P.2d 774 (1976).   Attorney general prosecuting case is exercising district attorney's powers. When the governor requires the attorney general to prosecute a criminal case in which the state is a party, he becomes to all intents and purposes the district attorney, and may in his own name and official capacity exercise all the powers of that officer. People v. Gibson, 53Colo. 231, 125 P. 531 (1912); People ex rel. Witcher v. District Court, 190Colo. 483, 549 P.2d 778 (1976).   <b> This section and <cite class="occo"><a href="gov.co.crs.title.20.html#t20-ar01-s20-1-102" target="_blank">§ 20-1-102</a></cite> are not inconsistent. </b> This section, permitting the governor to appoint the attorney general to prosecute cases in which the state is a party or is interested, and <cite class="occo"><a href="gov.co.crs.title.20.html#t20-ar01-s20-1-102" target="_blank">§ 20-1-102</a></cite>, directing the district attorney to appear on behalf of the state or counties of his district where the state or the people thereof or any county may be a party, are not inconsistent. The specific duty imposed upon the district attorney in no way limits or excludes the general authority of the attorney general upon the same subject. People ex rel. Witcher v. District Court, 190Colo. 483, 549 P.2d 778 (1976); People v. Vickers, 199Colo. 305, 608 P.2d 808 (1980).   For history of statutes providing for prosecutions, see People v. Gibson, 53Colo. 231, 125 P. 531 (1912).   Attorney general is authorized to sue to enjoin restraint of trade. The attorney general has jurisdiction, when ordered by the governor, to institute a suit on behalf of the people to enjoin a combination in restraint of trade. Denver Jobbers' Ass'n v. People ex rel. Dickson, 21 Colo. App. 326, 122 P. 404 (1912).   He is also statutory legal advisor of the legislative and executive departments. In re Interrogatories of House, 62Colo. 188, 162 P. 1144 (1916) (decided under former law).   Including university board of regents. The attorney general is the legal adviser of the board of regents of the university, and it is his duty to institute, prosecute, and defend all suits in its behalf. People ex rel. Jerome v. Regents of State Univ., 24Colo. 175, 49 P. 286 (1897).   But he is not "ex officio" counsel for state treasurer and state officers; however, when requested to do so, it is his duty to appear for such officers in actions brought against them in their official capacity. Nance v. People ex rel. Sheedy, 25Colo. 252, 54 P. 631 (1898).   Executive order authorizing representation of state department required. In a proceeding in the county court by the department of public welfare (now department of social services) against the estate of a pensioner, the attorney general is required to obtain an executive order from the governor authorizing and directing him to represent the department; if he fails to do so, the agency is without representation in the trial court, and is without representation to sue out a writ of error in the supreme court. Dunbar v. County Court, 131Colo. 483, 283 P.2d 182 (1955) (decided under former law).   The duty of the attorney general to represent the state in civil actions extends only to situations in which the attorney general's participation is required by the governor. Bd. of Soc. Serv. v. Dept. of Soc. Serv., 902 P.2d 407 (Colo. App. 1994).   Employees of county department of social services are not entitled to representation by the attorney general because such employees are not in the state personnel system. Gilman v. State, 932 P.2d 832 (Colo. App. 1996), rev'd on other grounds, 949 P.2d 565 (Colo. 1997).   Executive order as command. An executive order may constitute the requisite express command from the governor to authorize the attorney general to bring an action on the state's behalf. State of Colo. v. ASAR Co., Inc., 616 F. Supp. 822 (D.Colo. 1985).   State did not waive sovereign immunity where record does not reveal and county does not assert that there has been a determination by the governor that there has been a failure or refusal to provide legal services. Bd. of Soc. Serv. v. Dept. of Soc. Serv., 902 P.2d 407 (Colo. App. 1994).   Presumption that attorney general is authorized to appear. Where the attorney general appears for the state treasurer in an action brought against him, he is presumed to have been authorized to do so. Nance v. People ex rel. Sheedy, 25Colo. 252, 54 P. 631 (1898).   Attorney general's permissive intervention under C.R.C.P. 24(b)(2) held improper. Gillies v. Schmidt, 38 Colo. App. 233, 556 P.2d 82 (1976); People ex rel. Brown v. District Court, 196Colo. 359, 585 P.2d 593 (1978).   The attorney general has avoided violating due process and avoided the appearance of impropriety by establishing an internal system that allows the office to act as both an advocate and an advisor to the decision-making body in the same administrative case. People ex rel. Woodard v. Brown, 770 P.2d 1373 (Colo. App. 1989), cert. denied, 783 P.2d 1223 (Colo. 1989).   Executive order is not a legislative act violating separation of powers. Because an executive order that requires the office of the attorney general to investigate and prosecute Medicaid fraud and patient abuse cases does not create any new offenses or establish penalties for any act, but instead merely instructs an executive branch agency to prosecute certain offenses already established by the general assembly, it is not a legislative act. People v. Salgado,2019 COA 5, 444 P.3d 829.