AG Opinions: from felony ordinances to ‘hold overs’ in office

By Mark Whitmore, AAC Chief Legal Counsel

AG OPINION NO. 2021-012

The AG explained the application of the principle of “hold over.” The Arkansas Constitution, Article 19, Section 5, is clear that an incumbent remains in the position until their successor is elected and qualified. The person elected to represent District 4 in the November election, now no longer desires to hold the position and refuses to take the oath of office. Thus, a vacancy is not created. Therefore, the incumbent desires to remain as the justice of the peace for District 4 until a successor is elected and qualified. The Quorum Court may not call for a special election. The incumbent is entitled to continue in office until the next general election, when a successor will presumably be elected. An office is deemed vacant when for some reason — such as death, resignation, removal, or abandonment — there is no incumbent to discharge the duties. An elective office occupied by a holdover pursuant to Ark. Const. Art. 19, § 5, cannot be considered vacant.

AG OPINION NO. 2020-043

The AG explained the application of the county judge under Arkansas law to maintain public bridges and public roads including the right of way. The county has the authority and discretion to remove vegetation within the road maintenance easement or right of way. Maintenance and removal of vegetation is necessary to avoid interference with the maintenance of the road and to maintain public safety. Where the public acquires a right of way the acquisition includes the authority to maintain the easement and the vegetation within.

AG OPINION NO. 2020-027

This AG Opinion explains some limitations on the eligibility of the homestead property tax credit under Amendment 79 of the Arkansas Constitution. The AG explained that a homestead is a dwelling of a person that is used as a principal place of residence along with the contiguous lands (excluding lands valued as agriculture, pasture or timberland). A limited liability corporation is not a natural person residing at “his” or “her” dwelling, and not entitled to a homestead credit.

AG OPINION NO. 2019-070

The request involved the construction on a privately owned multi-county corrections facility. Ark. Code 19-11-801 deals with agreements by the state and political subdivisions for professional services. The law allows counties to elect by two-thirds vote to procure other professional services such as the holding of state, city, county and federal detainees. The county attorney is the best resource for determining the lawful means of entering into contracts for regional jails in Arkansas. The Corrections Cooperative Endeavors and Private Management Act provides for an interlocal agreement between the state and counties concerning the incarceration of state and/or county inmates. Ark. Code 12-50-106 provides for contracts up to 20 years for the provision of correctional services or for the lease and use of public lands or buildings for the use in operation of correctional facilities. The law provides for counties to contract with a private entity to build and thereafter operate a corrections facility. (The first multicounty regional jail was recently created in Arkansas by virtue of the Corrections Cooperative Endeavors Management Act).

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