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ARIZONA STATE SENATE
Fifty-Seventh Legislature, Second Regular Session
attorney general; legal counsel; exemption
Purpose
Allows the Department of Child Safety (DCS) to employ legal counsel or make expenditures or incur indebtedness for legal services. Requires the Attorney General (AG), in any dependency, severance, guardianship or adoption proceeding where there is an allegation of DCS misconduct, to represent the state's interest, and not DCS, as a client.
Background
The AG serves as the chief legal officer of the state and must: 1) be the legal advisor of state departments and render legal services as the departments require; 2) approve long-range plans for developing departmental programs, and coordinate the legal services required by other departments or state agencies; 3) represent school districts and school district governing boards in any lawsuit involving a conflict of interest with other county offices; and 4) represent political subdivisions, school districts and municipalities in suits to enforce state or federal statutes pertaining to antitrust, restraint of trade or price-fixing activities or conspiracies, if the AG notifies, in writing, the political subdivisions, school districts and municipalities of the AG's intention to bring any such action on their behalf. The AG may compromise or settle any action or claim by or against the state or any department, board or agency of the state.
With certain exceptions, statute prohibits state agencies from employing
legal counsel or making expenditures or incurring indebtedness for legal
services. The AG and the following entities are exempt from the prohibition: 1)
the Director of the Arizona Department of Water Resources; 2) the Residential
Utility Consumer Office; 3) the Industrial Commission of Arizona; 4) the
Arizona Board of Regents; 5) the Office of the Auditor General; 6) the
Corporation Commissioners and the Arizona Corporation Commission, other than
the Securities Division;
7) the Office of the Governor; 8) the Constitutional Defense Council; 9) the
Office of the State Treasurer; 10) the Arizona Commerce Authority; and 11) the
Water Infrastructure Finance Authority. If the AG determines that the AG is
disqualified from providing judicial or quasi-judicial legal representation or
legal services on behalf of any state agency in relation to any matter, the AG
must give written notification to the state agency affected. Upon receipt of
written notification from the AG that the AG is disqualified from providing
judicial or quasi-judicial legal representation or legal services in relation
to any particular manner, the state agency may make expenditures and incur
indebtedness to employ attorneys to provide the representation or services (A.R.S. § 41-192).
The Joint Legislative Budget Committee fiscal note estimates that H.B. 4049 will generate costs in certain cases when the AG represents the state's interest in court, which may result in DCS employing legal counsel, but the frequency cannot be determined in advance (JLBC Fiscal Note).
Provisions
1. Allows DCS to employ legal counsel or make expenditures or incur indebtedness for legal services.
2. Requires the AG or any appointed counsel, notwithstanding any other law, to represent the state's interests in lawful compliance and the integrity of proceedings and not DCS as a client in any dependency, severance, guardianship or adoption proceeding in which a party, the court or an oversight entity raises a credible allegation that DCS or a DCS agent has:
a) failed to comply with a court order or statutory requirements for child safety;
b) made a material misrepresentation to the court;
c) presented incomplete, misleading or false evidence; or
d) engaged in retaliation, gross negligence or willful misconduct.
3. Requires the AG or any appointed counsel, in any proceeding representing the state's interest, to conduct an independent review of the record and advise the court of the AG's or appointed counsel's legal assessment regarding statutory compliance evidentiary integrity and the appropriateness of DCS's recommendation, including any material disagreement with the position of DCS.
4. Determines that the AG or any appointed counsel is not subject to direction, retaliation or any adverse employment action by DCS for taking a position inconsistent with DCS recommendations in matters representing the state's interest.
5. Makes technical changes.
6. Becomes effective on the general effective date.
House Action
GOV 2/19/26 DPA 4-2-0-1
3rd Read 3/2/26 31-25-3-0-1
Prepared by Senate Research
March 20, 2026
AN/ci