© 2007-2008 Arkansas Legislative Digest, Inc.
Attorney General Opinions Issued through 2/1/2008
2007-260McDaniel1/28/2008
Transportation (Towing; Abandoned Vehicle Disposition). Question: When a person, firm, organization or other entity engaged in the towing or storage of vehicles in the State of Arkansas, pursuant to A.C.A. 27-50-1201, disposes of an abandoned vehicle as defined in A.C.A. 27-50-1202, is the disposition or sale of the abandoned vehicle controlled by A.C.A. 18-45-202 or A.C.A. 27-50-1208?
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Requested by:Glenda Butler, Chairperson, Arkansas Towing and Recovery Board, Searcy
Opinion: A.C.A. 27-50-1208 will control over any contrary provisions set forth in A.C.A. 18-45-202.
Author:Jack Druff- See Full Opinion
2007-280McDaniel1/28/2008
Insurance (Insurance Agents; Compensation Limits). Question: What is the scope of the phrase, "direct and indirect successors in interests," as it appears in A.C.A. 23-87-117, regarding compensation limits for writing credit life and credit disability insurance and the grandfather clause contained in that provision?
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Requested by:Keven Anderson, State Representative, Rogers
Opinion: The question of whether a particular person or entity is a "direct or indirect successor in interest" is one of fact not capable of resolution in the limited format of an Attorney General's opinion. The Arkansas Insurance Commissioner is charged with enforcement of the applicable subchapter and appears to have a long-standing interpretation as to the meaning of the term in the context described. That interpretation will be upheld unless "clearly wrong."
Author: Elana C. Wills- See Full Opinion
2007-301McDaniel1/28/2008
Taxation (County Road Tax; City’s Share of Funds) – Municipalities – Counties – Highways. Question: 1) Is the City of Bella Vista entitled to one-half of county road tax fund levied in late 2006 and collected within the city during the year 2007? 2) Does the county's refusal to perform any roadwork within or provide road tax funds to the City of Bella Vista violate the constitution or laws of the state?
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Requested by:Donna Hutchinson, State Representative, Bella Vista
Opinion: 1) This is not entirely clear, but the plain language of A.C.A. 26-79-104 appears to entitle the City of Bella Vista to one-half of the county road tax revenues that were collected after the City's incorporation upon property located within the City's corporate limits. Ark. const. amend. 61; See 26-79-101; 14-14-904. 2) There is no general requirement that the County must perform roadwork within the City. To the contrary, the care and supervision of the City's streets is confided to the city council. See A.C.A. 14-301-101(1)
Author: Beth Walker - See Full Opinion
2007-304McDaniel1/28/2008
Counties (CountyJail; Administration Fee). Question: 1) Are counties that do not maintain or operate a county jail or regional detention facility required to reserve the booking and administration fees assessed pursuant to A.C.A. 12-41-505 until such time as the county may maintain or operate a county jail or regional detention facility? 2) Is such a county authorized to enter into an agreement with another detention facility designating that facility as a "regional detention facility" within the meaning of A.C.A. 12-41-505, and appropriate all or part of the county's booking and administrative fees to the maintenance and operation of that facility, with the same applied to the county's financial obligations for its prisoners housed at that facility?
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Requested by: Thomas Deen, Prosecuting Attorney, Monticello
Opinion: 1) Yes. The county must reserve the booking and administration fee until such time as it maintains or operates a county jail, or undertakes to create a regional detention facility. 2) No. A county that does not maintain or operate either a county jail or a regional detention facility may not use the fee under A.C.A. 12-41-505 to pay other detention facilities to house the county's prisoners. Had the legislature intended to authorize application of the fee simply to help defray the cost of incarcerating county prisoners, it could easily have done so, as it did with respect to the additional fine authorized under A.C.A. § 16-17-129
Author: Beth Walker - See Full Opinion
2007-305McDaniel1/28/2008
Higher Education (Campus Police; Confiscated Property). Question: How may the University legally dispose of personal property and cash seized by campus police during the investigation and/or prosecution of a crime?
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Requested by:Robert Potts, Chancellor, ArkansasStateUniversity, Jonesboro
Opinion: Several different statutes address the disposition of seized property. A university or "institutional law enforcement officer" is apparently included in the definition of an "officer" for purposes of seizing property under the Arkansas Rules of Criminal Procedure. The applicable statutes governing the disposition of seized property, however, do not expressly mention or take account of the fact that a university police department may be the seizing agency. Although such officers may be included in the broad language of particular subchapters governing forfeiture of property, legislative clarification may be needed to address the issue. The University should consult with its appointed legal counsel for advice concerning this issue.
Author: Elana C. Wills - See Full Opinion
2007-318McDaniel1/28/2008
Municipalities (Appointments; Restrictions Set by Ordinance). Question: 1) Are provisions of Jonesboro City Ordinance No. 3663 of 2006 legal since Sec. 3 of the ordinance states that "two (2) members of the Municipal Airport Commission shall be members of the governing body. . ." and Sec.6 states that "two (2) members of the Solid Waste Authority shall be members of the governing body . . ."? 2) Can the city council restrict the mayor's appointment power as provided by A.C.A. Secs. 14-359-101 et seq. and 8-6-701 et seq.?
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Requested by:Ray Kidd, State Representative, Jonesboro
Opinion:1) No. To the extent the relevant ordinance requires the appointment of city council members to the Airport Commission and Solid Waste Authority without express statutory authorization, it is contrary to ACA 14-42-107(a)(2), which provides that “[n]o alderman or council member shall be appointed to any municipal office, except in cases provided for in §§ 14-36-101 et seq. - 14-61-101 et seq., during the time for which he or she may have been elected.” 2) Municipalities may not pass ordinances contrary to the laws of the state. The Attorney General is uncertain as to whether the question actually refers to a “regional solid waste management board” under A.C.A. § 8-6-703, or whether perhaps some other law, such as A.C.A. §§ 14-233-101 to 122, is actually the applicable subchapter.
Author: Elana C. Wills - See Full Opinion
2008-010McDaniel1/25/2008
FOIA (Highway Police; Investigative Report) Question: Is the decision of the custodian of records to withhold release of all investigative reports and any documentation of the final administrative resolution of a complaint lodged by Mr. Wyrick's client consistent with provisions of the Freedom of Information Act (FOIA)?
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Requested by: Kelvin Wyrick, Attorney, Texarkana
Opinion: Yes, assuming that there has been no suspension or termination of the subject of the records, or that any one of the other prerequisites for the release of these records has not been met.
Author: Joel DiPippa- See Full Opinion
2008-011McDaniel2/1/2008
Initiatives (Severance Tax; Natural Gas Production) – Taxation – Gas/Timber/Oil. Question: Request for certification of the popular name and ballot title of a proposed initiated act to increase the severance tax on natural gas production to seven percent.
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Requested by:Sheffield Nelson, Attorney, Little Rock
Opinion: Rejected due to ambiguities in both the ballot title and the text of the proposed act. The proposed act does not make clear that the initial distribution of additional tax revenues for purposes of higher education requires a specific appropriation by the legislature in the usual manner.
Author: Dustin McDaniel - See Full Opinion
2008-017McDaniel1/30/2008
Constitutional Amendments (Term Limits; CountySheriff) – Public Officials – Counties – Law Enforcement. Question: Request for certification of the popular name ("Four Year Terms for CountySheriffs") and ballot title of a proposed constitutional amendment to increase the term of office of county sheriff from the current two-year term to a four-year term.
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Requested by: Chuck Lange, Director, Arkansas Sheriff’s Association, Little Rock
Opinion: Approved as submitted.
Author: Dustin McDaniel - See Full Opinion
The Interim Service(1)October 3, 2018