Subtitle 1. General Provisions

Chapter 1 General Provisions

Effective Dates. Acts 2015, No. 1265, § 12: Apr. 8, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is an alarming lack of transparency in the corrections system regarding information about inmates who will soon be coming up for parole and released into society; that it is vital to public safety that the public know exactly what potential threats exist from inmates in the Department of Correction who will soon be introduced back into society; and that this act is immediately necessary because the sooner inmate, parolee, and probationer information is made available to the public, the sooner the public is able to evaluate who is and who is not a threat to society. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-1-101. Recidivism reporting — Definition.

  1. As used in this section, “recidivism” means a criminal act that results in the rearrest, reconviction, or return to incarceration of a person with or without a new sentence during a three-year period following the person's release from custody.
  2. An entity that makes a recidivism report under this title shall use the definition of recidivism in this section for purposes of the recidivism report.

History. Acts 2013, No. 1030, § 2.

12-1-102. Records to be posted on a public website.

  1. Relevant research studies and reports concerning the following topics that are generated by the research divisions of the Division of Correction, the Division of Community Correction, and the Parole Board or by third-party contractors on behalf of the Division of Correction, the Division of Community Correction, and the board, when applicable, shall be posted on the Division of Correction’s, the Division of Community Correction’s, or the board's website:
    1. Population projections;
    2. Recidivism; and
    3. Evaluation of the cost-benefit of evidence-based practices of:
      1. Adult prisons;
      2. Community corrections facilities;
      3. Probation; and
      4. Parole.
  2. Data posted on the board's, the Division of Correction’s, or the Division of Community Correction’s websites under this section may be removed from the board's, the Division of Correction’s, or the Division of Community Correction’s websites after five (5) years.

History. Acts 2015, No. 1265, § 2; 2019, No. 910, § 699.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout the section.

Chapters 2-5 [Reserved.]

[Reserved.]

Subtitle 2. Law Enforcement Agencies and Programs

Chapter 6 General Provisions

Subchapter 1 — Highway Safety Program Advisory Council

12-6-101, 12-6-102. [Repealed.]

Publisher's Notes. This subchapter was repealed by Acts 1997, No. 250, § 63. The subchapter was derived from the following sources:

12-6-101. Acts 1983, No. 549, § 16; 1985, No. 143, § 1; A.S.A. 1947, § 75-2514.

12-6-102. Acts 1983, No. 549, § 16; 1985, No. 143, § 1; A.S.A. 1947, § 75-2514.

Subchapter 2 — Rape Task Force

12-6-201, 12-6-202. [Repealed.]

Publisher's Notes. This subchapter was repealed by Acts 1991, Nos. 727 and 828, § 5. The subchapter was derived from the following sources:

12-6-201. Acts 1981, No. 881, § 1; A.S.A. 1947, § 41-1818.

12-6-202. Acts 1981, No. 881, § 2; A.S.A. 1947, § 41-1819.

Subchapter 3 — Enforcement of Motor Vehicle Traffic Laws

12-6-301. Definitions.

As used in this subchapter:

  1. “Arrest quota” means any requirement regarding the number of arrests made, or the number of citations issued, by a law enforcement officer or the proportion of such arrests made and citations issued by a law enforcement officer relative to the arrests made and citations issued by another law enforcement officer or group of officers; and
  2. “Citation” means a notice to appear, notice of violation, or notice of parking violation.

History. Acts 1995, No. 952, § 1.

12-6-302. Arrest quotas prohibited.

No state or local agency employing law enforcement officers engaged in the enforcement of any motor vehicle traffic laws of this state or any local ordinance governing motor vehicle traffic may establish any policy requiring any law enforcement officer to meet an arrest quota, except as necessary to meet requirements under federal law or contracts with federal agencies.

History. Acts 1995, No. 952, § 2.

12-6-303. Use of number of arrests.

  1. No state or local agency employing law enforcement officers engaged in the enforcement of any motor vehicle traffic laws may use the number of arrests or citations issued by a law enforcement officer as the sole criterion for promotion, demotion, or dismissal, or the earning of any benefit provided by the agency.
  2. Any such arrests or citations and their ultimate dispositions may only be considered in evaluating the overall performance of a law enforcement officer.

History. Acts 1995, No. 952, § 3.

Subchapter 4 — Patrol Vehicles

12-6-401. Smoking in patrol vehicles prohibited.

Each county sheriff's office and police department of a municipality may designate a proportionate number of its patrol vehicles as “nonsmoking” vehicles and shall not allow smoking of tobacco products in those vehicles.

History. Acts 2001, No. 1392, § 1.

12-6-402. Civilian passengers.

Each law enforcement agency of the state shall establish a policy prohibiting civilian passengers in patrol vehicles unless specific written approval is given for each civilian passenger by the chief law enforcement officer or his or her designee.

History. Acts 2013, No. 1183, § 1.

Subchapter 5 — State Law Enforcement Agencies

Effective Dates. Acts 2015, No. 100, § 2: Feb. 18, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that law enforcement officers risk their lives every day in the course of their employment; that the state values the dedication and efforts of these law enforcement officers; that the safety and well-being of Arkansas citizens depend on the ability and willingness of men and women to serve in state law enforcement agencies; and that this act is immediately necessary because it is in the state's best interests to do everything possible to encourage and recognize service in state law enforcement agencies without delay. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-6-501. Award of flags — Definitions.

  1. As used in this section:
    1. “In the course of employment” means at any time when a law enforcement officer is on duty as a law enforcement officer or is performing an act ordinarily performed by a law enforcement officer although the law enforcement officer is not actually on duty at the time;
    2. “Law enforcement officer” means a public servant employed by a state law enforcement agency and vested by law with a duty to maintain order or to make arrests for offenses; and
    3. “State law enforcement agency” means a state agency that is responsible for enforcing the criminal laws, traffic laws, highway laws, or game and fish laws of this state.
    1. A state law enforcement agency may award one (1) United States flag to the family of a law enforcement officer who lost his or her life in the course of employment with the state law enforcement agency.
    2. As used in this subsection, “family” means “family” as defined in the rules or procedures of the state law enforcement agency.

History. Acts 2015, No. 100, § 1.

Subchapter 6 — Local Criminal Justice Coordinating Committees

12-6-601. Local criminal justice coordinating committees.

  1. The General Assembly finds that the investment of state or federal funding for the operation of a crisis stabilization unit under the Behavioral Health Crisis Intervention Protocol Act of 2017, § 20-47-801 et seq., necessitates efficient expenditure of the state or federal funds.
  2. The General Assembly encourages the establishment of local criminal justice coordinating committees composed of local judges, local corrections officials, the prosecuting attorney, law enforcement officials, county officials, medical professionals, and mental health professionals.
  3. A local criminal justice coordinating committee may be created under this section and shall:
    1. Periodically review data and records of local and regional detention facilities collected under § 12-12-219 and data concerning a local crisis intervention team and crisis stabilization unit, when applicable;
    2. Assist in the access and transfer of data described under subdivision (c)(1) of this section; and
    3. Recommend protocols for the efficient and effective use of local criminal justice resources, and a crisis intervention team or crisis stabilization unit, when applicable.

History. Acts 2017, No. 423, § 6.

Subchapter 7 — Law Enforcement Agencies in General

Effective Dates. Acts 2017, No. 531, § 3: Mar. 20, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that it is of public interest to protect the privacy of the family members of a deceased law enforcement officer; that currently, there are no safeguards or procedures in place to ensure that a recording that depicts the death of a law enforcement officer is released in a proper, respectful, and authorized manner; and that this act is immediately necessary because it provides a balanced procedure to achieve proper release of a video or audio recording that depicts a law enforcement officer's death while taking into account the privacy belonging to the family members of the deceased law enforcement officer. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-6-701. Confidentiality of certain law enforcement records — Definitions.

  1. As used in this section:
    1. “Access a record” means to view a photograph or video recording or to listen to an audio recording;
    2. “Custodian of the record” means a person identified by the governmental entity that possesses the record and is responsible for safeguarding and providing access to the record;
    3. “Death of a law enforcement officer” means all acts or events that caused or otherwise relate to the death of a law enforcement officer who was acting in the course of his or her official duties, including any related acts or events immediately preceding or subsequent to the acts or events that caused or otherwise relate to the death;
    4. “Family member” means a spouse, biological or adopted child, parent, or sibling of the deceased law enforcement officer;
    5. “Law enforcement officer” means a person vested by law with a duty to maintain public order and to make arrests for offenses;
      1. “Notice” means that from all the facts and circumstances known to the person at the time, the person has reason to know that the facts and circumstances exist.
      2. Notice may be communicated in person or through other means, including without limitation, by telephone, telegraph, teletype, telecopier, facsimile, or other form of wire or wireless communication, or by mail or private carrier; and
    6. “Record” means a photograph, video recording, or audio recording, including any audio or video footage captured on a body-worn camera or a dashboard camera.
    1. A record that depicts or records the death of a law enforcement officer is confidential and exempt from disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.
      1. However, a family member of the deceased law enforcement officer may access a record described in subdivision (b)(1) of this section.
      2. A minor child of a deceased law enforcement officer who is at least fourteen (14) years of age may access a record described in subdivision (b)(1) of this section if the parent or guardian of the child:
        1. Provides written consent to the custodian of the record to permit the child to access a record; and
        2. Is present to provide supervision over the child as he or she accesses a record.
    1. The custodian of a record shall not permit a person not authorized under this section to copy, disseminate, reproduce, transmit, or access a record described in subdivision (b)(1) of this section.
    2. The access to a record described in subdivision (b)(1) of this section or other handling of a record described in subdivision (b)(1) of this section shall be under the direct supervision of the custodian of the record.
    3. A person or persons designated as the custodian of a record who knowingly violates this section upon conviction is guilty of a Class D felony.
      1. A person or entity may petition a circuit court in the county where a record described in subdivision (b)(1) of this section is physically located in order to obtain access to the record.
      2. At a hearing held on a petition filed with the circuit court under subdivision (d)(1)(A) of this section seeking access to a record described in subdivision (b)(1) of this section, any review of a record described in subdivision (b)(1) of this section shall be conducted in camera.
    1. Upon a showing of good cause, a circuit court may issue an order authorizing a person or entity under subdivision (d)(1) of this section to access a record described in subdivision (b)(1) of this section and may prescribe restrictions or stipulations pertaining to the access of the record that the circuit court deems appropriate, including whether to allow for the copying or public disclosure of a record described in subdivision (b)(1) of this section.
    2. In determining good cause under subdivision (d)(2) of this section, the circuit court shall consider the following factors, along with other factors that the circuit court may deem relevant:
      1. Whether access to the record described in subdivision (b)(1) of this section is necessary for the public evaluation of a law enforcement officer's conduct during the performance of his or her official duties;
      2. Whether there is a compelling public interest in the disclosure of the record;
      3. The seriousness of the intrusion into the privacy of the deceased law enforcement officer's family members; and
      4. The availability of similar information in other forms.
      1. A custodian of a record described in subdivision (b)(1) of this section shall be given notice of:
        1. A petition filed with a circuit court to access a record described in subdivision (b)(1) of this section; and
        2. The opportunity to be present and heard at any hearing on the matter.
      2. In addition to custodian notification under subdivision (d)(4)(A) of this section, the following people shall be provided notice described in subdivisions (d)(4)(A)(i) and (d)(4)(A)(ii) of this section:
        1. The surviving spouse of the deceased law enforcement officer, if any;
        2. If the deceased law enforcement officer has no surviving spouse, the parents of the deceased law enforcement officer, if any; or
        3. If the deceased law enforcement officer has no surviving parents and no surviving spouse, the adult children of the deceased law enforcement officer.
  2. This section does not:
    1. Prohibit a judge, jury, attorney, court personnel, or other persons necessary to a criminal, civil, or administrative proceeding involving the death of a law enforcement officer from viewing a record described in subdivision (b)(1) of this section;
    2. Overturn, abrogate, or alter a court order that exists on March 20, 2017, that restricts, limits, or grants access to a record described in subdivision (b)(1) of this section;
        1. Prohibit a law enforcement agency involved in an official investigation of a death of a law enforcement officer, including without limitation, the law enforcement agency by whom the deceased law enforcement officer was employed at the time of his or her death, the Division of Arkansas State Police, and the Federal Bureau of Investigation, from obtaining a record described in subdivision (b)(1) of this section for the purpose of conducting an official investigation pertaining to the death of a law enforcement officer.
        2. However, a record used during an official investigation under subdivision (e)(3)(A)(i) of this section shall not be reproduced, transmitted, or disseminated for any purpose not authorized under this section.
        1. This section does not prohibit the law enforcement agency by whom the deceased law enforcement officer was employed from using a record described in subdivision (b)(1) of this section for law enforcement officer training or internal review.
        2. However, a record used for the purpose of law enforcement officer training or internal review under subdivision (e)(3)(B)(i) of this section shall not be reproduced, transmitted, or disseminated for any purpose not authorized under this section.
        1. This section does not prohibit the use of a record described in subdivision (b)(1) of this section for law enforcement officer training conducted by an entity authorized to conduct law enforcement training, including without limitation:
          1. The Black River Technical College Law Enforcement Training Academy;
          2. The Criminal Justice Institute;
          3. The Arkansas Law Enforcement Training Academy; or
          4. Other law enforcement officer training programs.
        2. However, a record used for law enforcement officer training purposes under subdivision (e)(3)(C)(i) of this section shall not be reproduced, transmitted, or disseminated for any purpose not authorized under this section; or
      1. Prohibit a prosecuting attorney, deputy prosecuting attorney, defense counsel pursuant to a motion of discovery, their staff, or attorneys involved in civil litigation involving the death of a law enforcement officer from accessing or copying a record described in subdivision (b)(1) of this section.
      2. A record accessed or copied under subdivision (e)(4)(A) of this section shall not be reproduced, transmitted, or disseminated for any purpose not authorized under this section.

History. Acts 2017, No. 531, § 2.

A.C.R.C. Notes. Acts 2017, No. 531, § 1, provided: “Legislative findings and determinations.

The General Assembly finds and determines that:

“(1) The nature of a profession in law enforcement is inherently dangerous, with law enforcement officers frequently facing life threatening situations;

“(2) During the course of his or her duties, a law enforcement officer routinely relies on audio and video recording devices to record his or her movements and actions;

“(3) Due to the inherently dangerous nature of a profession in law enforcement, a law enforcement officer's death that occurs in the line of duty is likely to be captured and depicted on an audio or video recording device;

“(4) Absent a compelling public interest, or the necessity to evaluate a law enforcement officer's conduct, or an official purpose such as a criminal, civil, or administrative proceeding or an official investigation into a law enforcement officer's death, the disclosure of an audio or visual depiction of the death of a law enforcement officer would have little value to the public other than to satisfy a morbid curiosity concerning the death of a law enforcement officer;

“(5) Presently, there are audio and video recordings that depict the death of a law enforcement officer available in various public forums for viewing and sharing which have the potential to encourage copycat acts of violence against law enforcement officers and to incite other acts of violence against law enforcement officers, and which also subject the surviving family members of the deceased law enforcement officer to viewing the murder or death of their family member on television, internet, social media, and other publically accessible forums — causing the surviving family members to relive the pain associated with the death and allowing the public to view and publically share with others sensitive depictions of the final moments and death of their family member — thereby invading the privacy of the deceased law enforcement officer's family; and

“(6) It is the intent of this act to:

“(A) Protect the privacy belonging to family members of a deceased law enforcement officer; and

“(B) Discourage copycat acts of violence or other similar forms of violence against law enforcement officers.”

Chapter 7 Arkansas Crime Commission

12-7-101 — 12-7-106. [Repealed.]

Publisher's Notes. This chapter was repealed by Acts 1991, No. 343, § 2. The chapter was derived from the following sources:

12-7-101. Acts 1977, No. 558, § 1; A.S.A. 1947, § 6-1301.

12-7-102. Acts 1977, No. 558, § 2; A.S.A. 1947, § 6-1302.

12-7-103. Acts 1977, No. 558, § 3; A.S.A. 1947, § 6-1303.

12-7-104. Acts 1977, No. 558, § 4; A.S.A. 1947, § 6-1304.

12-7-105. Acts 1977, No. 558, § 5; A.S.A. 1947, § 6-1305.

12-7-106. Acts 1977, No. 558, § 6; A.S.A. 1947, § 6-1306.

Acts 1991, No. 343, § 1, provided:

“The Arkansas Crime Commission created under Arkansas Code § 12-7-101 is abolished.”

Chapter 8 Division of Arkansas State Police

Subchapter 1 — General Provisions

Preambles. Acts 1973, No. 430 contained a preamble which read:

“Whereas, the Arkansas State Police currently provide supplemental police protection at the horse and dog racing tracks in this state, at University of Arkansas football games in Little Rock and Fayetteville, and a number of other state-wide events and activities, yet does not provide similar services, when requested, for many other state-wide athletic events of other state supported colleges and universities, at the State Livestock Show, or events conducted at the State Livestock Show, at the state basketball tournaments and similar events; and

“Whereas, it is essential for the protection of the public peace and safety that the State Police provide the same level of police protection for all state-wide functions….”

Effective Dates. Acts 1945, No. 231, § 28: Mar. 20, 1945. Emergency clause provided: “It having been ascertained and determined by the General Assembly that on account of the widespread disregard for the traffic laws of the state and the rules and regulations governing the same as a result of the establishment of many large war plants and military posts in the State of Arkansas, together with the enormous increase of traffic caused by the war, which has created conditions at and around such war plants and military posts creating a condition upon the highways of this state which, in order to efficiently operate the Department of Arkansas State Police, make it necessary that the same be departmentalized and organized in such manner that the personnel of said department can be assigned and directed in a more efficient manner and because of the hazards to life and limb as a result of the disregard for the laws making such conditions dangerous to the health, peace, and safety of the people of Arkansas an emergency is hereby declared to exist and this act being necessary for the preservation of the peace, health, and safety of the citizens of this state and for the traveling public, this act shall take effect and be in full force after its passage and approval.”

Acts 1949, No. 157, § 2: Feb. 23, 1949. Emergency clause provided: “It has been found by the General Assembly: (1) that highway accidents and fatalities have been and are increasing with such rapidity it is imperative that immediate action be taken to make and enforce rules or regulations having for their primary purpose a reduction of such accidents and fatalities; (2) that more effective rules and regulations can be promulgated by an enlarged Commission, the members of which are residents of and familiar with conditions in the various sections of the State; and (3) that only the provisions of this act will alleviate in part the foregoing conditions. An emergency is therefore declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall take effect and be in full force from and after its passage and approval by the Governor.”

Acts 1953, No. 74, § 3: Feb. 16, 1953. Emergency clause provided: “It is found by the General Assembly that confusion exists in connection with appointments to be made to the Arkansas Police Commission due to congressional redistricting of the state; that such confusion interferes with proper exercise and discharge of the duties of the Police Commission pertaining to traffic violations and criminal actions; and that such conditions adversely affect the public peace, health, and safety; and further that the provisions of this act will materially aid in alleviating such conditions. Therefore, an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health, and safety, shall take effect and be in full force from and after its passage and approval.”

Acts 1963, No. 133, § 2: July 1, 1963.

Acts 1968 (1st Ex. Sess.), No. 65, § 3: became law without Governor's signature, Feb. 27, 1968. Emergency clause provided: “It is hereby found and determined by the General Assembly that Section 4 (a) Act 231 of 1945 requires, as interpreted by the Supreme Court of Arkansas, that the Director of the Department of Arkansas State Police possess the qualification of 10 years of continuous residence in the State of Arkansas next preceding his appointment; and such requirement has the effect of excluding from consideration for appointment to such position, persons who because of their training and experience, are well qualified to hold the position of Director of the Department of Arkansas State Police and to carry out the duties and responsibilities imposed by law upon the said Director; and that in order for the Governor of the State of Arkansas to be able to appoint the best qualified person available for the position of Director of Arkansas State Police, it is necessary that the ten year continuous residence requirement of Act 231 of 1945 be repealed; and in order to protect the citizens of the State of Arkansas and their interest in effective and efficient law enforcement, it is necessary that this act become effective immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall become effective, and be in full force and effect, from and after its passage and approval.”

Acts 1969, No. 394, § 3: Apr. 11, 1969. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law contains no authority for the payment of per diem and mileage to members of the Arkansas Police Commission, that it is essential that provision be made for the payment of a reasonable per diem and mileage to members of the commission in order that the commission may properly carry out its functions and duties, and that this act will provide such authority. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of public peace, health, and safety shall be in effect from the date of its passage and approval.”

Acts 1975 (Extended Sess., 1976), No. 1035, § 3: Jan. 27, 1976. Emergency clause provided: “It is hereby found and determined by the Seventieth General Assembly, meeting in Extended Session, that the standardization of mileage reimbursement for members of the State's Boards and Commissions will alleviate many discrepancies and inequities in existing laws and will allow such members to receive travel reimbursement commensurate with that paid to state employees. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 45, § 15: July 1, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the agencies, departments, and programs now performed through the Department of Public Safety could more efficiently and economically perform their respective duties and responsibilities through reorganized agencies and departments operating as separate entities; that substantial savings could be made by eliminating the central services of the Department of Public Safety; and that the immediate passage of this act is necessary to provide for advance planning for more efficient administration after the close of the current fiscal biennium of the various public safety programs of this state. Therefore, an emergency is hereby declared to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after July 1, 1981.”

Acts 1981, No. 540, § 18: July 1, 1981. Emergency clause provided: “It is hereby found and determined by the Seventy-Third General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1981 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1981 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1981.”

Acts 1983, No. 537, § 12: July 1, 1983. Emergency clause provided: “It is hereby found and determined by the Seventy-Fourth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1983 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1983 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1983.”

Acts 1987, No. 862, § 3: Apr. 13, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that because of the case Ricarte v. State, CR 86-31, a question has arisen over the validity of Act 1035 of the Extended Session of 1976; that this Act is a reenactment of the former law; and that the immediate passage of this Act is necessary to clarify the state of the law on this issue. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 1037, § 16: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the Seventy-Sixth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1987 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1987 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1987.”

Acts 1989 (1st Ex. Sess.), No. 285, § 15: July 1, 1989. Emergency clause provided: “It is hereby found and determined by the Seventy-Seventh General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1989 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1989 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1989.”

Acts 1989, No. 859, § 3: July 1, 1989. Emergency clause provided: “It is hereby found and determined by the Seventy-Seventh General Assembly, that the establishment of a ‘drug abuse hotline’ to be operated by the Arkansas State Police would provide needed assistance in the fight to control the drug problem in the State of Arkansas. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1989.”

Acts 1991, No. 1099, § 25: July 1, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1991 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1991 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1991.”

Acts 1993, No. 508, § 22: July 1, 1993. Emergency clause provided: “It is hereby found and determined by the Seventy-Ninth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1993 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1993 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 1240, § 12: Apr. 9, 1997. Emergency clause provided: “It is found and determined by the General Assembly that the powers and duties of the Department of Human Services in regard to the child abuse hotline and child abuse investigations will be shifted to the Arkansas State Police, either through transfer or by contract; that such transfer or contract could occur prior to or at the beginning of the next fiscal year; and that such transfer or contract cannot occur prior to or at the beginning of the next fiscal year unless this emergency clause is adopted. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2001, No. 750, § 2: Mar. 13, 2001. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Arkansas State Police is presently without a director; that without an emergency clause this act would not be effective until ninety (90) days after the adjournment sine die of the General Assembly; that a new director should be appointed before this act would take effect without an emergency clause; and that the members of the Arkansas State Police Commission should be consulted prior to that appointment. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2001, No. 1422, § 21: July 1, 2001. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 2001 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 2001 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2001.”

Acts 2003, No. 1473, § 74: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act includes technical corrects to Act 923 of 2003 which establishes the classification and compensation levels of state employees covered by the provisions of the Uniform Classification and Compensation Act; that Act 923 of 2003 will become effective on July 1, 2003; and that to avoid confusion this act must also effective on July 1, 2003. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2003.”

Acts 2003, No. 1609, § 24: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 2003 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 2003 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2003.”

Acts 2005, No. 194, § 2: Feb. 17, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the procedure for accepting military surplus property has changed; that Arkansas law is not currently consistent with the new procedure; that this act is immediately necessary in order to process all military surplus property consistently in accordance with the new procedures. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 82, § 23: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the General Improvement Fund should no longer be utilized; that the Development and Enhancement Fund is necessary to complete unfinished state projects; and that this act is necessary to address infrastructure needs and unanticipated needs of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-8-101. Division of Arkansas State Police created.

  1. There is created the Division of Arkansas State Police for the purposes of enforcing the motor vehicle laws, traffic laws, and other state laws relating to protecting and properly maintaining the state highway system of the State of Arkansas and to render more effective the apprehension of criminals and the enforcement of criminal law.
  2. The police officers provided for in this chapter shall be known as “Arkansas State Police”.

History. Acts 1945, No. 231, § 1; A.S.A. 1947, § 42-401; Acts 2019, No. 910, § 5757.

Publisher's Notes. Acts 1945, No. 231, § 25, in part, expressly repealed Acts 1937, No. 166 and Acts 1941, Nos. 371 and 372. The section vested all powers and duties of the Superintendent of the Arkansas State Police in the Director of the Arkansas State Police and vested all duties of the Arkansas State Police Commission and the State Police Department in the Department of Arkansas State Police.

Acts 1981, No. 45, § 2, provided, in part, that the Department of Arkansas State Police and the Arkansas Police Commission, which had previously been transferred by a type 2 transfer to the Department of Public Safety (abolished by Acts 1981, No. 45, § 1) by Acts 1971, No. 38, § 14, and all of their respective functions, powers, duties, personnel, and funds would be separated from the Department of Public Safety; that the department and commission would function, operate, and perform the same powers, functions, and duties; and that the members or heads thereof would be appointed in the same manner, as if they had never been transferred to the Department of Public Safety.

The section further provided that all powers, functions, and duties added to the Police or Police Services Division of the Department of Public Safety, subsequent to the enactment of Acts 1971, No. 38, would be vested in and performed by the Department of Arkansas State Police, and that all powers, functions, and duties of the Arkansas Police Commission with respect to the Department of Arkansas State Police, and all additional powers and duties of the commission added subsequent to the enactment of Acts 1971, No. 38, which had not been repealed, would be performed by the commission in the same manner as they were performed prior to the passage of Acts 1971, No. 38.

In addition, the section provided that nothing in the act should be construed to reduce any rights which an employee of the Department of Arkansas State Police had under any civil service or merit system.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a).

12-8-102. Commission created — Members — Meetings — Elective office.

  1. The Arkansas State Police Commission is created and established.
    1. The commission shall be composed of seven (7) members to be appointed by the Governor for terms of seven (7) years, by and with the advice and consent of the Senate.
      1. Four (4) members shall be appointed from each of the four (4) congressional districts and three (3) shall be appointed from the state at large.
      2. However, no more than two (2) members shall be appointed from any congressional district.
    1. When vacancies occur in the commission, the Governor may temporarily fill the position consistent with subsection (b) of this section until the Senate is next in session.
    2. All appointments made at any time other than on the day following the expiration of a term shall be for the unexpired portion of the term.
  2. The commission shall meet and organize, electing one (1) member as chair and one (1) member as secretary.
  3. The chair shall have the power to convene the commission at such time as he or she may deem proper after due notice thereof to all the members of the commission.
  4. The commission is directed to hold a minimum of one (1) meeting per month.
  5. Except for those absences due to illness of the commissioner, failure of any commissioner to attend three (3) consecutive meetings shall constitute cause for removal from office by the Governor.
    1. A majority of the members of the commission shall constitute a quorum to transact any business properly brought before it and not inconsistent with the provisions of this chapter.
    2. A quorum may do and perform other duties as are prescribed in this chapter or that may be necessary for the proper enforcement of this chapter.
  6. Members of the commission may receive expense reimbursement and stipends in accordance with § 25-16-901 et seq.
    1. No member of the commission shall be eligible to hold or run for any elective office, either state or county, during the time he or she shall serve as a member of the commission.
    2. Any violation of subdivision (j)(1) of this section shall constitute cause for removal by the Governor.

History. Acts 1945, No. 231, §§ 2, 3; 1949, No. 157, § 1; 1953, No. 74, § 1; 1969, No. 394, § 1; 1975 (Extended Sess., 1976), No. 1035, § 1; 1981, No. 540, § 9; A.S.A. 1947, §§ 6-616, 42-402, 42-403, 42-403.1; reen. Acts 1987, No. 862, § 1; 1991, No. 1099, § 12; 1991, No. 1223, § 1; 1997, No. 250, § 64; 1999, No. 149, § 1; 2017, No. 250, § 1.

A.C.R.C. Notes. Part of this section was reenacted by Acts 1987, No. 862, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Publisher's Notes. For detachment of commission from Department of Public Safety, see Publisher's Notes to § 12-8-101.

The terms of the members of the Arkansas State Police Commission are arranged so that one (1) term expires January 14 each year.

Amendments. The 2017 amendment deleted (b)(3).

12-8-103. Commission's powers and duties — Restrictions.

  1. The Arkansas State Police Commission shall:
    1. Approve or disapprove each promotion;
    2. Approve or disapprove each demotion for nondisciplinary reasons; and
    3. Review each application for employment presented to it by the Director of the Division of Arkansas State Police for certification to the eligibility list.
    1. The commission shall hear appeals of any disciplinary action taken against a commissioned officer by the director that results in removal, suspension, discharge, demotion, or disciplinary transfer.
    2. The appeal shall be heard under § 12-8-204(c).
  2. The members of the commission are granted disciplinary authority equal to that of supervisory and administrative personnel of the Division of Arkansas State Police with respect to violations of rules committed by a division employee in the presence of a commissioner.
    1. In addition to its existing powers and duties, the commission may administer oaths and subpoena witnesses, books, records, and other documents deemed necessary for the proper investigation and performance of any powers, functions, or duties of the commission.
    2. All such subpoenas shall be issued by the chair of the commission or such other members of the commission as authorized by a majority vote of the membership of the commission.
      1. Any person failing to appear or to produce the books, records, or documents subpoenaed by the commission shall be guilty of contempt.
      2. The person shall be punished by the circuit court upon petition being filed with the circuit court by the commission in the same manner as provided by law for punishment of contempt of the circuit court.
    1. The commission shall perform the duties prescribed in this chapter.
    2. For such purposes, the commission may promulgate and enforce reasonable and necessary rules.
  3. Members of the commission shall not exercise police powers, nor shall the appointment qualify a commissioner as a law enforcement officer as defined in § 12-9-102.

History. Acts 1945, No. 231, § 2; 1949, No. 157, § 1; 1953, No. 74, § 1; 1981, No. 45, § 2; 1981, No. 540, §§ 10, 11; A.S.A. 1947, §§ 42-401.1, 42-402, 42-403.2, 42-403.3; Acts 2001, No. 1697, § 1; 2005, No. 666, § 1; 2019, No. 315, §§ 844, 845; 2019, No. 910, §§ 5758, 5759.

Amendments. The 2005 amendment substituted “shall” for “is directed to” in (a); inserted the subdivision (1) and (3) designations in (a) and made related changes; deleted “or demotion” at the end of present (a)(1); and inserted (a)(2).

The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (c); and deleted “and regulations” following “rules” in (e)(2).

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(3) and (c); and substituted “division” for “department” in (c).

Case Notes

Disciplinary Action.

While the commission's actions on review may effectively enhance a punishment ordered by the director, such action is within the bounds of the statutory authority; inherent in the authority to disapprove disciplinary action is the obvious effect of enhancing or diminishing the action taken by the director. Tuck v. Ark. State Police Comm'n, 282 Ark. 39, 665 S.W.2d 276 (1984).

The commission acted within the bounds of its statutory authority in disapproving the director's proposed disciplinary actions against officer and making a recommendation for termination. Tuck v. Ark. State Police Comm'n, 282 Ark. 39, 665 S.W.2d 276 (1984).

Employment Discrimination.

Where the evidence was overwhelming that unsuccessful applicant for a position with the Arkansas State Police had a dismal employment history and unfavorable credit history, a prima facie case of race discrimination could not stand absent evidence that the police department's personnel actions were a pretext for racial discrimination. Ward v. Ark. State Police, 539 F. Supp. 1116 (E.D. Ark. 1982), aff'd, 714 F.2d 62 (8th Cir. 1983).

Cited: Lewellen v. Raff, 649 F. Supp. 1229 (E.D. Ark. 1986).

12-8-104. Director.

      1. After conferring with the members of the Arkansas State Police Commission, the Governor shall appoint a Director of the Division of Arkansas State Police who shall be the executive and administrative head of the Division of Arkansas State Police and shall receive a salary as fixed by law.
      2. The Director of the Division of Arkansas State Police shall serve at the pleasure of the Governor.
      3. The Director of the Division of Arkansas State Police shall report to the Secretary of the Department of Public Safety.
    1. The Director of the Division of Arkansas State Police shall be of good moral character and a resident and a qualified elector of the State of Arkansas.
    2. In addition to all other qualifications contained in this section, the Director of the Division of Arkansas State Police, at the time of appointment to the position of Director of the Division of Arkansas State Police, shall either:
      1. Be a college graduate with at least a bachelor's degree in criminology, business administration, or a related field;
      2. Have graduated from a standard high school or vocational school and have eight (8) years' previous experience in law enforcement or a related field with considerable supervisory and administrative experience; or
      3. Have at least ten (10) years' experience in law enforcement.
  1. The Director of the Division of Arkansas State Police shall determine the number of other officers and patrol personnel to be employed by the Division of Arkansas State Police, and they shall be paid salaries according to rank, not exceeding the salaries provided.
  2. The Director of the Division of Arkansas State Police shall promulgate such rules as are necessary for the efficient operation of the Division of Arkansas State Police and for the enforcement of such duties as are prescribed in this chapter.
  3. The Director of the Division of Arkansas State Police shall keep the books and records of the Division of Arkansas State Police, which shall be audited as the books and accounts of other state departments.
  4. An annual report to the secretary and a biannual report to the General Assembly showing the activities, number of arrests, amounts collected by the Division of Arkansas State Police, and disposition of all cases shall be made by the Director of the Division of Arkansas State Police.
    1. The Director of the Division of Arkansas State Police shall have supervision and control for the purpose of discipline and proper management of all the members and employees of the Division of Arkansas State Police.
      1. The Director of the Division of Arkansas State Police may designate that some or all employees of the Division of Arkansas State Police be trained pursuant to a memorandum of understanding between the State of Arkansas and the United States Department of Justice or the United States Department of Homeland Security concerning the enforcement of federal immigration laws on federal and interstate highways in the State of Arkansas.
      2. The amount spent for training employees of the Division of Arkansas State Police under the memorandum of understanding between the State of Arkansas and the United States Department of Justice or the United States Department of Homeland Security shall be paid in accordance with the provisions of § 12-8-118.
      1. Upon request of the Director of State Highways and Transportation, the Director of the Division of Arkansas State Police may designate certified law enforcement officers from the Arkansas Highway Police Division of the Arkansas Department of Transportation to be trained under the terms of the memorandum of understanding described in subdivision (f)(2) of this section.
      2. The amount spent for training certified law enforcement officers from the Arkansas Highway Police Division of the Arkansas Department of Transportation shall be paid by the Arkansas Department of Transportation.
  5. The Director of the Division of Arkansas State Police may establish such divisions within the ranks of the Division of Arkansas State Police as he or she may deem necessary and proper.
  6. Whenever in the Director of the Division of Arkansas State Police's discretion the action is necessary for the efficient operation of the Division of Arkansas State Police, the Director of the Division of Arkansas State Police may:
    1. Transfer, assign, and reassign from one division to another division any member of the Division of Arkansas State Police or other employee of the Division of Arkansas State Police; or
      1. Subject to the approval of the commission, promote or demote in rank any member of the Division of Arkansas State Police.
      2. However, any demotion pursuant to subdivision (h)(2)(A) of this section shall be for nondisciplinary reasons.
  7. Due to the exacting and special duties of the Director of the Division of Arkansas State Police, he or she may draw an expense allowance in an amount not to exceed six hundred dollars ($600) per month.
    1. Subject to the provisions of subsection (f) of this section, the Director of the Division of Arkansas State Police may negotiate the terms of a memorandum of understanding between the State of Arkansas and the United States Department of Justice or the United States Department of Homeland Security concerning the enforcement of federal immigration laws.
      1. The memorandum of understanding described in subdivision (j)(1) of this section must be signed on behalf of the State of Arkansas by the Director of the Division of Arkansas State Police, the Governor, and the Director of the Division of Law Enforcement Standards and Training.
      2. Prior to the signing provided for by subdivision (j)(2)(A) of this section, the memorandum of understanding shall be reviewed by the Legislative Council.
  8. The Director of the Division of Arkansas State Police shall implement or assist other entities to develop and implement a public service campaign concerning racial profiling and may utilize brochures, flyers, or public service announcements.

History. Acts 1945, No. 231, §§ 4, 14, 21; 1968 (1st Ex. Sess.), No. 65, § 1; A.S.A. 1947, §§ 42-404, 42-414, 42-421; Acts 1987, No. 1037, § 13; 1989 (1st Ex. Sess.), No. 285, § 11; 2001, No. 750, § 1; 2001, No. 1697, § 2; 2005, No. 665, § 1; 2005, No. 907, § 1; 2005, No. 2136, § 2; 2007, No. 1048, § 1; 2011, No. 779, § 1; 2017, No. 707, § 15; 2019, No. 910, § 5760.

Amendments. The 2005 amendment by No. 665, in (h), inserted “Whenever in the director's discretion the action is necessary for the efficient operation of the department”, inserted the subdivision (1) and (2)(A) designations and made related changes, and added (2)(B).

The 2005 amendment by No. 907 substituted “Director of the Department of Arkansas State Police” for “director” and “Department of Arkansas State Police” for “department” throughout; substituted “years'” for “years of” in (a)(3)(B) and (C); inserted the subdivision (1) designation in (f); inserted (f)(2) and (f)(3); substituted “he or she” for “director” in (g); rewrote (h); substituted “he or she may” for “the director is authorized to” in (i); and added (j).

The 2005 amendment by No. 2136 added (k).

The 2007 amendment substituted “shall implement or assist other entities to develop and implement” for “may implement” in (k).

The 2011 amendment substituted “promulgate such rules” for “promote such rules and regulations” in (c).

The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” once in (f)(3)(A) and twice in (f)(3)(B); and substituted “paid” for “borne” in (f)(3)(B).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” throughout the section; inserted (a)(1)(C); substituted “secretary” for “Governor” in (e); and substituted “Director of the Division of Law Enforcement Standards and Training” for “Director of the Law Enforcement Standards and Training” in (j)(2)(A).

Case Notes

Residency Requirement.

Appointee who lived out of state seven years before his appointment was not qualified for appointment as Director of the Department of Arkansas State Police, even though he owned real estate in Arkansas during all seven years and intended to return. Hogan v. Davis, 243 Ark. 763, 422 S.W.2d 412 (1967) (decision prior to 1968 amendment).

12-8-105. Officers and members — Oath.

  1. Before entering upon their duties, all members and officers of the Division of Arkansas State Police shall take the oath as now provided by law for public officials.
  2. The Director of the Division of Arkansas State Police shall take the additional oath that he or she will not be either directly or indirectly interested in any purchase made by or for the division.
  3. Any violation of oath shall constitute perjury and upon conviction shall be punished accordingly.
  4. The oath provided for in this section shall be filed in duplicate, the original filed with the division and a copy with the Secretary of the Arkansas State Police Commission.

History. Acts 1945, No. 231, § 14; A.S.A. 1947, § 42-414; Acts 2001, No. 1697, § 3; 2019, No. 910, § 5761.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a) and (b); substituted “division” for “department” in (b) and (d); and made a stylistic change.

12-8-106. Division of Arkansas State Police — Duties and powers — Restrictions — Municipal police barred from patrolling certain highways.

    1. It shall be the duty of the Division of Arkansas State Police to:
      1. Patrol the public highways, make arrests, and enforce the laws of this state relating to motor vehicles and the use of the state highways;
      2. Establish, maintain, and enforce a towing rotation list to assist in clearing highways of motor vehicles which have been involved in accidents or abandoned;
      3. Assist in the collection of delinquent motor vehicle license taxes and the collection of gasoline and other taxes that are required by law; and
      4. Determine when, if possible, a person or persons are the cause of injury to any state highway or other state property and arrest all persons criminally responsible for injury to any state highway or other state property and bring them before the proper officer for trial.
    2. The Director of the Division of Arkansas State Police may promulgate necessary rules to carry out the purpose and intent of subdivision (a)(1)(B) of this section.
  1. The Division of Arkansas State Police shall be conservators of the peace and as such shall have the powers possessed by police officers in cities and county sheriffs in counties, except that the Division of Arkansas State Police may exercise such powers anywhere in this state.
  2. The Division of Arkansas State Police shall have the authority to establish a Crimes Against Children Division, either through transfer or by contract, to conduct child abuse investigations, to administer the Child Abuse Hotline, and, when consistent with rules promulgated by the Division of Arkansas State Police, to provide training and technical assistance to local law enforcement in conducting child abuse investigations.
  3. The police officers shall have all the power and authority of the State Fire Marshal and shall assist in making investigations of arson, § 5-38-301, and such other offenses as the director may direct and shall be subject to the call of the circuit courts of the state and the Governor.
  4. However, this chapter shall not be construed so as to take away any authority of the regularly constituted peace officers in the state, but the Division of Arkansas State Police shall cooperate with them in the enforcement of the criminal laws of the state and assist such officers either in the enforcement of the law or apprehension of criminals.
  5. Nothing in this chapter shall be construed as to authorize any officer of the Division of Arkansas State Police to serve writs unless they are specifically directed to the Division of Arkansas State Police, or an officer thereof, by the issuing authority.
  6. No officer or member of the Division of Arkansas State Police shall ever be used in performing police duties on private property in connection with any strike, lockout, or other industrial disturbance.
      1. The following law enforcement officers are prohibited from patrolling controlled-access facilities except as may be authorized by the director:
        1. A municipal police officer;
        2. An officer established under § 14-42-401 et seq. [repealed];
        3. A city marshal; and
        4. A constable.
      2. The director may withdraw any previously issued authorization to patrol controlled-access facilities.
        1. The director shall promulgate rules in accordance with the Arkansas Administrative Procedure Act, § 25-15-201 et seq., to establish criteria for granting or withdrawing authorization to patrol controlled-access facilities.
        2. In adopting the rules described in subdivision (h)(1)(C)(i) of this section, the director at a minimum shall take into consideration the following factors:
          1. Public safety;
          2. Training of the law enforcement officers;
          3. Size of the law enforcement agency;
          4. Financial impact;
          5. Abuse of police power; and
          6. The types of roadways or highways that are controlled-access facilities for purposes of this section.
    1. The following law enforcement officers may patrol any service roads that are within their jurisdiction situated adjacent to controlled-access facilities:
      1. A municipal police officer; (B) An officer established under § 14-42-401 et seq. [repealed];
    2. This subsection shall not prohibit a municipal police officer, an officer established under § 14-42-401 et seq. [repealed], a city marshal, or a constable from responding to an accident or other emergency on a controlled-access facility.

(C) A city marshal; and

(D) A constable.

History. Acts 1945, No. 231, §§ 7, 8; 1963, No. 133, § 1; A.S.A. 1947, §§ 42-407, 42-408; Acts 1987, No. 509, § 1; 1997, No. 1240, § 7; 2001, No. 254, § 1; 2001, No. 441, § 1; 2001, No. 1697, § 4; 2007, No. 371, § 1; 2011, No. 741, § 1; 2019, No. 315, §§ 846, 847; 2019, No. 910, §§ 5762-5765.

A.C.R.C. Notes. Acts 2019, No. 150, § 1, repealed § 14-42-401 et seq.

Amendments. The 2007 amendment inserted “patrolling” preceding “certain” in the section heading; added the subsection designated (h)(1)(A); substituted “controlled-access facilities” for “limited access highways” in (h)(1)(A); added (h)(1)(B) and (h)(1)(C); substituted “controlled-access facilities” for “limited access highways” in (h)(2); and substituted “controlled-access facility” for “limited access highway” in (h)(3).

The 2011 amendment substituted “The following law enforcement officers” for “Municipal police” in the introductory paragraph of (h)(1)(A); inserted (h)(1)(A)(i) through (iv); deleted “for municipal police” following “authorization” in (h)(1)(B) and (h)(1)(C)(i); substituted “law enforcement officers” for “municipal police” in (h)(1)(C)(ii) (b) ; substituted “law enforcement agency” for “municipal police force” in (h)(1)(C)(ii) (c) ; substituted “The following law enforcement officers” for “Municipal police” in the introductory paragraph of (h)(2); inserted (h)(2)(A) through (D); and inserted “an officer established under § 14-42-401 et seq., a city marshal, or a constable” in (h)(3).

The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (a)(2); and substituted “rules” for “regulations” in (c).

The 2019 amendment by No. 910, throughout the section, substituted “Division of Arkansas State Police” for “Department of Arkansas State Police”, and substituted “Division of Arkansas State Police” for “department”.

Cross References. Accident report forms for traffic accidents prepared by department, § 27-53-206.

Arkansas State Criminal Records Act, intent of, § 12-12-1502.

Authority of Medicaid Fraud Protection Unit, § 12-8-507.

Dissemination of criminal history information, § 12-12-1504.

Drivers' examinations conducted by, § 27-16-705.

Highways, roads, and streets, § 27-64-101 et seq.

Implementation of Arkansas State Criminal Records Act, § 12-12-1512.

Municipal police departments, § 14-52-101 et seq.

Reports of motor vehicle accidents made to, § 27-53-201 et seq.

Case Notes

Extraterritorial Authority.

Given that the statutory grant of authority to the state police in subsection (b) is equivalent to that possessed by municipal police officers and county sheriffs, a request for assistance by an Arkansas State Police Trooper is sufficient to give rise to extraterritorial arrest authority to a local law enforcement officer. White v. State, 41 Ark. App. 170, 850 S.W.2d 34 (1993).

City police officer lacked the authority under Arkansas law to make traffic stops and arrests on the Interstate. Nevertheless, because he had probable cause to arrest for the offense of reckless driving committed in his presence, no Fourth Amendment violation occurred, with the result that the arrestee's 42 U.S.C. § 1983 cause of action failed as a matter of law. Rose v. City of Mulberry, 533 F.3d 678 (8th Cir. 2008).

Evidence obtained in a stop of defendant's vehicle for speeding on the interstate should have been suppressed because a municipal police department did not have the authority to make a selective-traffic enforcement type of traffic stop on the interstate; Arkansas State Police Director's letter in force at the time of the stop limited the authority to general patrol purposes only. McKim v. State, 2009 Ark. App. 834 (2009).

Lieutenant did not have a letter from the director of the Arkansas State Police authorizing his activities, but he was working interdiction on the interstate to locate drugs in vehicles as a deputy sheriff commissioned by the county sheriff's department, he produced his identification card showing his commission dates, and he testified that when he discovered defendant appeared to be intoxicated, he notified another lieutenant who was specifically working driving while intoxicated investigations; there was no clear error in the trial court's finding that the lieutenant was acting on behalf of the county when he conducted the traffic stop. Batchelor v. State, 2014 Ark. App. 682, 450 S.W.3d 245 (2014).

Investigatory Stop of Automobiles.

Officer held justified in stopping vehicle to investigate reason for slow speed and to determine age of operator. Perez v. State, 260 Ark. 438, 541 S.W.2d 915 (1976).

Towing Rotation List.

Circuit court properly granted summary judgment to the Arkansas State Police (ASP) in an action by a towing company and an employee for injunctive and declaratory relief asserting that the ASP policy prohibiting individuals with felony convictions from placement on the ASP Towing Rotation List was illegal under § 17-1-103. Plaintiffs' suit was barred by sovereign immunity, because § 17-1-103 did not apply to ASP, as ASP did not deal in licensing or regulating the occupation of towing within the meaning of § 17-1-103(f), as required for § 17-1-103 to apply; thus, plaintiffs failed to demonstrate that the illegal-act exception to sovereign immunity applied. Steve's Auto Ctr. of Conway, Inc. v. Ark. State Police, 2020 Ark. 58, 592 S.W.3d 695 (2020).

12-8-107. Arrests and detentions.

  1. If any officer of the Division of Arkansas State Police delivers an arrested person to a county jail for detention, it shall be the duty of the jailer to receive the prisoner.
  2. The division officer may notify the county sheriff or prosecuting officer of the county in which the crime was committed of the arrest and detention of the prisoner and make such lawful disposition of the prisoner as the division officer is directed to do by the county sheriff or prosecuting officer.

History. Acts 1945, No. 231, § 8; A.S.A. 1947, § 42-408; Acts 2001, No. 1697, § 5; 2019, No. 910, § 5766.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a); and substituted “division officer” for “department officer” twice in (b).

12-8-108. Security of Governor, capitol building, etc.

  1. The Division of Arkansas State Police shall be responsible for the safety and security of the:
    1. Governor and his or her family;
    2. Lieutenant Governor and his or her family;
    3. Governor's Mansion and mansion grounds; and
    4. State Capitol Building and State Capitol grounds.
  2. The division is authorized to assign officers of the division in such numbers and to such locations as is necessary to carry out the responsibility imposed on the division by this section.
  3. Data, records, surveillance footage, security procedures, emergency plans, and other information compiled or possessed by the division concerning the Governor's Mansion and mansion grounds are confidential and not subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.

History. Acts 1973, No. 422, § 1; A.S.A. 1947, § 5-914.1; Acts 2017, No. 483, § 1; 2019, No. 910, § 5767.

Amendments. The 2017 amendment added (c).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in the introductory language of (a); and substituted “division” for “department” three times in (b), and in (c).

12-8-109. Police protection for statewide functions.

  1. The Division of Arkansas State Police shall provide police protection, commensurate with the available personnel and resources of the division that are not required for other activities, benefiting any statewide function or similar activities sponsored or conducted by:
    1. A state agency, board, or commission;
    2. A state-supported college or university;
    3. A private nonprofit association or organization on public property; or
    4. Statewide athletic events under the auspices of the public schools.
  2. For the purposes of this section, the statewide functions for which the division may provide police protection at the Arkansas State Fair and Livestock Showgrounds shall include the annual Arkansas State Fair and Livestock Show held at the showgrounds, and statewide athletic contests in which the public schools of this state participate which are held at the showgrounds.

History. Acts 1973, No. 430, § 1; A.S.A. 1947, § 42-407.1; Acts 2019, No. 910, § 5768.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in the introductory language of (a); and substituted “division” for “department” in the introductory language of (a), and in (b).

12-8-110. Deputizing citizens in emergency.

Any Division of Arkansas State Police officer shall have the authority in case of emergency to call upon and deputize any reputable citizen of the state for assistance whenever it is deemed necessary for the proper enforcement of the law.

History. Acts 1945, No. 231, § 13; A.S.A. 1947, § 42-413; Acts 2019, No. 910, § 5769.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police”.

Cross References. Penalty for refusing to assist law enforcement officer, § 5-54-109.

12-8-111. Cooperation among agencies.

  1. It shall be the duty of the Division of Arkansas State Police and its officers to cooperate with other law enforcement agencies of this state in the investigation and apprehension of criminals and the prevention of crime within the state and to use every means at their disposal in disseminating information that will more effectively expedite the detection of crime and the apprehension and conviction of criminals and promote the highest possible degree of efficiency in the enforcement of the criminal and traffic laws of the state.
  2. The law enforcement agencies of the state shall furnish to the division such information as they may have or shall hereafter acquire upon request of the Director of the Division of Arkansas State Police relating to crime and criminals and otherwise cooperate with the division in the enforcement of the criminal and traffic laws of this state.

History. Acts 1945, No. 231, §§ 10, 12; A.S.A. 1947, §§ 42-410, 42-412; Acts 2001, No. 1697, § 6; 2019, No. 910, § 5770.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas Police” in (a) and (b); and substituted “division” for “department” twice in (b).

Cross References. Crime prevention generally, § 12-11-101 et seq.

12-8-112. Headquarters — Identification Bureau.

  1. The Division of Arkansas State Police shall maintain headquarters and an Identification Bureau which shall be located at the State Capitol or elsewhere in Pulaski County.
  2. The division may establish district headquarters in other parts of the state if it is found to be necessary for the better enforcement of the provisions of this chapter. The Director of the Division of Arkansas State Police shall have the authority to assign the personnel for the district headquarters when designated.

History. Acts 1945, No. 231, § 11; A.S.A. 1947, § 42-411; Acts 2003, No. 1473, § 25; 2019, No. 910, § 5771.

Publisher's Notes. Acts 1961, No. 12, § 1, provided that the State Police Headquarters, in Warren, Bradley County, Arkansas, would be designated a permanent facility in the memory of the late Honorable Carroll C. Hollensworth and that the Arkansas State Police Commission should maintain it as a permanent district headquarters of the Arkansas State Police.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas Police” in (a) and in the second sentence of (b); substituted “Pulaski County” for “in the City of Little Rock” in (a); and substituted “division” for “department” in the first sentence (b).

12-8-113. Drug Abuse Enforcement Unit — Hot line.

  1. The Director of the Division of Arkansas State Police is directed to establish a Drug Abuse Enforcement Unit and assign sufficient supervisory, clerical, and enforcement personnel to carry out the duties and responsibilities of that unit as defined by the Uniform Controlled Substances Act, § 5-64-101 et seq.
    1. The unit shall operate a “drug abuse hot line” to allow citizens to use a toll-free in-watts telephone line to report to the Division of Arkansas State Police information regarding possible violations of the Uniform Controlled Substances Act, § 5-64-101 et seq., and other provisions of Arkansas law relating to unlawful use of drugs.
    2. The division shall encourage citizen involvement in combating drug-related crimes by publicizing the existence of the drug abuse hot line.

History. Acts 1975 (Extended Sess., 1976), No. 1017, § 20; A.S.A. 1947, § 42-404.1; Acts 1989, No. 859, § 1; 2019, No. 910, § 5772.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas Police” in (a) and (b)(1); and substituted “division” for “department” in (b)(2).

12-8-114. Legal counsel and advisors.

  1. The Attorney General shall be the legal representative and advisor of the Arkansas State Police Commission, the Division of Arkansas State Police, and the Director of the Division of Arkansas State Police.
  2. However, the director, with the approval of the Attorney General and Governor, may employ other counsel when in the Attorney General's and Governor's judgment it is necessary for the proper enforcement of the provisions of this chapter and the efficient operation of the division.
  3. However, this chapter shall not be construed as relieving the prosecuting attorneys from any duties imposed upon them by law.

History. Acts 1945, No. 231, § 16; A.S.A. 1947, § 42-416; Acts 2019, No. 910, § 5773.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” twice in (a); and substituted “division” for “department” in (b).

12-8-115. Physicians and surgeons.

  1. The Director of the Division of Arkansas State Police may designate one (1) physician and surgeon in each district of the state who shall be the physician and surgeon of the Division of Arkansas State Police within and for the district.
    1. The physician and surgeon shall conduct the physical examinations required by this chapter and give medical treatment to any member or officer of the division for injuries received while in the performance of official duty.
    2. The physician and surgeon shall be given honorary commissions by the director and shall serve without pay.

History. Acts 1945, No. 231, § 26; A.S.A. 1947, § 42-426; Acts 2019, No. 910, § 5774.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” twice in (a); and substituted “division” for “department” in (b)(1).

12-8-116. Motor vehicles.

    1. All automobiles, motorcycles, or other vehicles of any nature owned, used, and operated by the Division of Arkansas State Police shall be exempt from the payment of any licenses, fees, and charges required by the laws of this state for the operation of the vehicles upon the public highways of this state.
    2. The Director of the Division of Arkansas State Police and the Secretary of the Department of Finance and Administration shall adopt identification tags or other insignia which shall be attached to the vehicles by the officers, members, and employees of the division, for which tag or insignia no charge shall be made or collected.
  1. The division is granted authority to purchase used vehicles for use in confidential assignments and drug investigations.

History. Acts 1945, No. 231, § 25; 1983, No. 537, § 9; A.S.A. 1947, §§ 42-409.1, 42-425; Acts 2019, No. 910, § 5775.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(1) and (a)(2); substituted “Secretary of the Department of Finance and Administration” for “Director of the Department of Finance and Administration” in (a)(2); and substituted “division” for “Department of Arkansas State Police” in (a)(2) and (b).

12-8-117. Purchasing evidence.

Upon approval by the Chief Fiscal Officer of the State, a warrant may be drawn against the State Treasury for the amount up to but not to exceed the appropriated amount and deposited into a bank account for the purpose of purchasing evidence.

History. Acts 1981, No. 540, § 8; A.S.A. 1947, § 42-420.1.

12-8-118. Payment of salaries and expenses.

The salaries and expenses provided for in this chapter shall be paid by warrant upon a voucher properly drawn by the Director of the Division of Arkansas State Police and paid out of any funds now available for the payment of salaries and expenses of the Division of Arkansas State Police from the Division of Arkansas State Police Fund or any other fund as provided by law.

History. Acts 1945, No. 231, § 14; A.S.A. 1947, § 42-414; Acts 2019, No. 910, § 5776.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” twice and “Division of Arkansas State Police Fund” for “Department of Arkansas State Police Fund”.

Cross References. Department of Arkansas State Police Fund, § 19-6-404.

12-8-119. Police training school.

  1. The Director of the Division of Arkansas State Police may establish, maintain, and conduct a police training school and may admit to the training school police officers and judicial officers of the various political subdivisions of the State of Arkansas.
  2. The director may prescribe all rules necessary for the proper functioning and operating of the school.

History. Acts 1945, No. 231, § 17; A.S.A. 1947, § 42-417; Acts 2019, No. 315, § 848; 2019, No. 910, § 5777.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (b).

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a).

Cross References. Law Enforcement Training Academy, § 12-9-201 et seq.

12-8-120. Background investigations.

  1. The Division of Arkansas State Police is authorized to charge a fee, not to exceed twenty dollars ($20.00), for each background investigation requested of and conducted by the division.
  2. The background investigation fee shall be collected by the division and deposited into the State Treasury as special revenue to the credit of the Division of Arkansas State Police Fund.

History. Acts 1993, No. 508, § 14; 2001, No. 1697, § 7; 2019, No. 910, § 5778.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a); substituted “division” for “department” in (a) and (b); and substituted “Division of Arkansas State Police Fund” for “Department of Arkansas State Police Fund” in (b).

Cross References. Department of Arkansas State Police Fund, § 19-6-404.

12-8-121. Use of state uniform, patch, or logo prohibited.

  1. It shall be prohibited for any law enforcement agency, private security firm, corporation, partnership, or individual to wear a uniform in the same design and specific color scheme as the Division of Arkansas State Police.
  2. No law enforcement agency, private security firm, corporation, partnership, or individual may use the Arkansas State Police uniform or patch, nor may the Arkansas State Police logo or the terms “Arkansas State Police”, “Arkansas State Trooper”, or “Arkansas State Troopers” be used or otherwise displayed for the endorsement of any product, business, or purpose without the express written permission of the Director of the Division of Arkansas State Police.
  3. Nothing in this section shall prohibit uniforms or commercial concerns from reproducing these items for division use, nor the public display of the uniform, patch, or logo when it relates to official governmental business.

History. Acts 1995, No. 935, §§ 1-3; 2001, No. 1094, § 1; 2019, No. 910, § 5779.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a) and (b); and substituted “division” for “department” in (c).

12-8-122. [Repealed.]

Publisher's Notes. This section, concerning the replacement of motor vehicles by the Department of Arkansas State Police, was repealed by Acts 2003, No. 1609, § 17. The section was derived from Acts 1995, No. 1154, § 11.

12-8-123. [Repealed.]

A.C.R.C. Notes. This section was specifically repealed by Acts 2005, No. 194, § 1. Pursuant to Acts 2005, No. 1962, § 119, the amendments to this section by Acts 2005, No. 1962, § 23 are superseded by Acts 2005, No. 194, § 1.

Publisher's Notes. This section, concerning accepting surplus United States Department of Defense property, was repealed by Acts 2005, No. 194, § 1. The section was derived from the following sources: Acts 1995, No. 462, § 1; 2001, No. 1697, § 8.

12-8-124. [Repealed.]

Publisher's Notes. This section, concerning replacement of motor vehicles, was repealed by Acts 2001, No. 1422, § 16. The section was derived from Acts 1997, No. 853, § 13.

12-8-125. Small Municipality Law Enforcement Vehicle Grant Program.

  1. There is created the “Small Municipality Law Enforcement Vehicle Grant Program”, to be administered by the Division of Arkansas State Police with funding from the General Improvement Fund or its successor fund or fund accounts, including the Development and Enhancement Fund.
    1. The program may provide grants to cities of the second class as determined under § 14-37-103 or incorporated towns as determined under § 14-37-103 for the purpose of purchasing used vehicles from the Marketing and Redistribution Section within the Office of State Procurement.
    2. Vehicles purchased under subdivision (b)(1) of this section shall be used by law enforcement agencies of the city of the second class or incorporated town receiving the grant.
    1. The division shall promulgate rules necessary for the implementation of the program.
    2. The rules shall include:
      1. The procedure for making an application for a grant;
      2. The selection criteria for a grant;
      3. The limitations on use of grant money; and
      4. A procedure to provide for accountability of grant recipients.
  2. A city of the second class or incorporated town shall not be required to provide matching funds to receive a grant under this section.
  3. If the Division of Arkansas State Police awards a grant to a city of the second class or incorporated town under this section, the division shall pay the grant funds for the purchase of a used vehicle directly to the Marketing and Redistribution Section within the Office of State Procurement.
  4. Funds from a grant received under this section shall not be used to pay sales tax for a used vehicle purchased from the Marketing and Redistribution Section within the Office of State Procurement.
  5. The awarding of grants under this section is contingent on the appropriation and availability of funding for the program.

History. Acts 2011, No. 1237, § 1; 2019, No. 82, § 5; 2019, No. 910, §§ 5780-5782.

A.C.R.C. Notes. Acts 2019, No. 82, § 1, provided: “Legislative intent.

It is the intent of the General Assembly that the creation of the Development and Enhancement Fund is necessary to provide a mechanism to disburse funds for:

“(1) Various construction and improvement projects;

“(2) Unforeseen needs;

“(3) Funding deficiencies; and

“(4) The completion of projects previously funded by the General Assembly”.

Amendments. The 2019 amendment by No. 82 added “including the Development and Enhancement Fund” in (a).

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a) and (e); substituted “division” for “Department of Arkansas State Police” in (c)(1) and (e); and deleted “of the Department of Finance and Administration” at the end of (e).

Subchapter 2 — Police Officers

Cross References. Retirement of State Police, § 24-6-201 et seq.

Scholarships for children of law enforcement officers, § 6-82-501 et seq.

Effective Dates. Acts 1945, No. 231, § 28: Mar. 20, 1945. Emergency clause provided: “It having been ascertained and determined by the General Assembly that on account of the widespread disregard for the traffic laws of the state and the rules and regulations governing the same as a result of the establishment of many large war plants and military posts in the State of Arkansas, together with the enormous increase of traffic caused by the war, which has created conditions at and around such war plants and military posts creating a condition upon the highways of this state which, in order to efficiently operate the Department of Arkansas State Police, make it necessary that the same be departmentalized and organized in such manner that the personnel of said department can be assigned and directed in a more efficient manner and because of the hazards to life and limb as a result of the disregard for the laws making such conditions dangerous to the health, peace, and safety of the people of Arkansas an emergency is hereby declared to exist and this act being necessary for the preservation of the peace, health, and safety of the citizens of this state and for the traveling public, this act shall take effect and be in full force after its passage and approval.”

Acts 1959, No. 91, § 5: Feb. 24, 1959. Emergency clause provided: “It is hereby found and declared by the General Assembly of Arkansas that under the present law there is no adequate protection or compensation for the families and dependents of members of the State Police and its divisions who have lost their lives in the course of employment, and that it is urgent that such protection and compensation be provided. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1975, No. 636, § 3: July 1, 1975. Emergency clause provided: “It is hereby found and determined by the Seventieth General Assembly that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1975 is essential to the operation of the agency for which the appropriation in this act is provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1975 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after July 1, 1975.”

Acts 1981, No. 12, § 4: Feb. 2, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is currently no law specifically authorizing the State Police Commission to award a retiring officer the handgun carried by the officer during his service and there has been some concern regarding the commission's practice of making such awards; that the award of a handgun to a retiring officer is effective in maintaining good morale among the officers of the State Police and thereby promotes effective and efficient law enforcement; that this act is designed to give specific authority to the commission to make such awards and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 700, § 3: Mar. 24, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law requires the State Police Commission to hear within thirty (30) days from the date of filing an appeal, all appeals from state policemen regarding disciplinary actions taken by the Director of the State Police; that the commission meets only once a month and therefore the current law places an undue burden on the commission; and that this act is necessary to grant the commission a reasonable time within which to hear such appeals. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 951, § 5: July 1, 1985.

Acts 1993, No. 508, § 22: July 1, 1993. Emergency clause provided: “It is hereby found and determined by the Seventy-Ninth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1993 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1993 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993.”

Acts 2003, No. 1609, § 24: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 2003 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 2003 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2003.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Acts 2019, No. 1007, § 23: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one (1) year period; that the effectiveness of this Act on July 1, 2019 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the legislative session, the delay in the effective date of this Act beyond July 1, 2019 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2019”.

Case Notes

Suits Against Officers.

Members of the Arkansas State Police are state officers and therefore can be sued only in the official residence of the Arkansas State Police, which is Pulaski County. Downey v. Toler, 214 Ark. 334, 216 S.W.2d 60 (1948).

12-8-201. Members of police force — Selection.

  1. The Director of the Division of Arkansas State Police shall appoint all members of the police force, subject to approval of the Arkansas State Police Commission, and the director shall select the clerical and stenographic force of the Division of Arkansas State Police.
  2. The commission shall promulgate rules setting forth the minimum qualifications for employment as a division police officer and prescribing the manner of examination of applicants for the position.
  3. The director shall receive all applications for positions as division officers and submit them to the commission for examination as to the physical fitness and mental qualifications of the applicants and for such other examinations as provided for by the commission's rules.
  4. All applications and examinations shall be in writing and shall be kept as a permanent file by the commission for not less than five (5) years.
    1. A list containing the names of all applicants who possess the necessary qualifications as determined by the commission shall be certified to the director.
    2. From this list, the director shall make the final selection for the appointments, and any vacancy occurring in the division shall be filled from this list.

History. Acts 1945, No. 231, §§ 5, 6; A.S.A. 1947, §§ 42-405, 42-406; Acts 2001, No. 1697, § 9; 2019, No. 315, § 849; 2019, No. 910, §§ 5783, 5784.

Publisher's Notes. In addition to enacting the general and permanent provisions codified in this section, Acts 1945, No. 231, § 5, provided that all members of the Department of Arkansas State Police who held the rank of captain, lieutenant, sergeant, or patrolman on December 1, 1944, would be commissioned by the director immediately after the act became effective (March 20, 1945), with the same rank they held on December 1, 1944, and that they would have full credit under the provisions of the act pertaining to retirement and disability benefits and civil service for service performed as a member of the Arkansas State Police or Arkansas State Rangers.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (b) and (c).

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” twice in (a); and substituted “division” for “department” in (b), (c), and (e)(2).

Case Notes

Employment Discrimination.

Where unsuccessful applicant for position with Arkansas State Police had dismal employment history and unfavorable credit history, a prima facie case of race discrimination could not stand absent evidence that the police department's personnel actions were a pretext for racial discrimination. Ward v. Ark. State Police, 539 F. Supp. 1116 (E.D. Ark. 1982), aff'd, 714 F.2d 62 (8th Cir. 1983).

Cited: Seal v. Pryor, 504 F. Supp. 599 (E.D. Ark. 1980).

12-8-202. Qualifications of members.

      1. All applicants for positions as police officers of the Department of Arkansas State Police shall be citizens of the United States.
      2. However, the applicants must become citizens of the State of Arkansas in order to commence employment.
    1. Any applicant shall be employed strictly upon an efficiency basis irrespective of race, gender, religion, or political affiliation.
  1. No person shall be eligible for a position as a commissioned member of the department who:
    1. Has been convicted of a felony in any state or federal court;
    2. Is prohibited by state or federal law from possessing a weapon; or
    3. Is known to be a person of immoral character.
  2. Police officers of the department shall not be appointed as patronage or political favor.

History. Acts 1945, No. 231, § 6; A.S.A. 1947, § 42-406; Acts 1997, No. 380, § 1; 2001, No. 1697, § 10.

Case Notes

Employment Discrimination.

Where unsuccessful applicant for position with Arkansas State Police had dismal employment history and unfavorable credit history, a prima facie case of race discrimination could not stand absent evidence that the police department's personnel actions were a pretext for racial discrimination. Ward v. Ark. State Police, 539 F. Supp. 1116 (E.D. Ark. 1982), aff'd, 714 F.2d 62 (8th Cir. 1983).

Cited: Seal v. Pryor, 504 F. Supp. 599 (E.D. Ark. 1980).

12-8-203. Probationary period.

    1. Each person who is selected as a police officer of the Division of Arkansas State Police shall be a probationer for a period of eighteen (18) months from his or her date of hire.
    2. A probationer may be discharged by the Director of the Division of Arkansas State Police with the approval of the Arkansas State Police Commission with or without cause.
  1. The probationary period shall not apply to a person who has already served a probationary period.

History. Acts 1945, No. 231, § 6; 1981, No. 700, § 1; A.S.A. 1947, § 42-406; Acts 2001, No. 1697, § 11; 2003, No. 1041, § 1; 2005, No. 667, § 1; 2011, No. 14, § 1; 2019, No. 910, § 5785.

A.C.R.C. Notes. Acts 2011, No. 14, § 2, provided: “This act does not apply to a police officer of the Department of Arkansas State Police serving a probationary period on the effective date of this act.”

Amendments. The 2005 amendment inserted the subdivision (1) and (2) designations in (a); substituted “from his or her date of hire” for “after completion of the department recruit academy and prescribed field training program and” in present (a)(1); substituted “A probationer” for “during that time” in present (a)(2); and substituted “already” for “theretofore” in (b).

The 2011 amendment, in (a)(1), substituted “police officer” for “member” and “eighteen (18) months” for “one (1) year”.

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(1) and (a)(2).

Case Notes

Cited: Seal v. Pryor, 504 F. Supp. 599 (E.D. Ark. 1980).

12-8-204. Tenure — Removal, suspension, or discharge.

  1. The members of the Division of Arkansas State Police shall hold their offices until and unless removed for cause.
  2. Should the Director of the Division of Arkansas State Police deem it necessary to remove, suspend, discharge, demote, or transfer for disciplinary reasons any division officer, the director shall do so by written notice.
    1. Any division officer so removed, suspended, discharged, demoted, or transferred shall have the right of appeal to the Arkansas State Police Commission, provided that notice of the appeal shall be lodged with the commission within ten (10) days after notice to the officer of his or her discharge, removal, suspension, demotion, or disciplinary transfer.
    2. When so filed, the appeal shall be heard and determined by the commission within a reasonable time from the date the appeal is filed with the commission.
    1. Provided the appeal is perfected within thirty (30) days from the date of the final order made by the commission, an appeal may be taken to the Pulaski County Circuit Court from any order of the commission discharging, removing, suspending, demoting, or transferring for disciplinary reasons any member of the division force.
    2. The appeal shall be heard by the court without the introduction of any further testimony.

History. Acts 1945, No. 231, § 6; 1981, No. 700, § 1; A.S.A. 1947, § 42-406; Acts 2001, No. 1697, § 12; 2019, No. 910, § 5786.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a) and (b); and substituted “division” for “department” in (b), (c)(1), and (d)(1).

Case Notes

Hearing.

Where a dismissed state trooper sought an injunction to prevent the State Police Commission from barring the press from his hearing, it was actually a suit for mandamus rather than a petition for injunctive relief. Ark. State Police Comm'n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972).

The Freedom of Information Act, § 25-19-101 et seq., required that the hearing of testimony, as distinguished from a discussion or consideration by the State Police Commission, must be held in public. Ark. State Police Comm'n v. Davidson, 253 Ark. 1090, 490 S.W.2d 788 (1973).

Cited: Seal v. Pryor, 504 F. Supp. 599 (E.D. Ark. 1980).

12-8-205. Political activities.

  1. The members of the Department of Arkansas State Police shall be prohibited from engaging in any partisan political or election campaign activities during hours when they are performing work for the department.
    1. The members of the department shall not be at any time detailed to perform any work pertaining to political activities affecting either a candidate or measures.
    2. The members of the department shall not display any political banners, posters, or literature on any department or state government offices, buildings, or other facilities.
    3. Department vehicles shall not display any political bumper stickers or decals and shall not be used during or after working hours to promote or assist the political campaign of any person or political issue.
  2. The members of the department shall not be required or counseled to make, solicit, or prescribe contributions toward and for any political campaign of whatsoever nature.
  3. The members of the department may participate or assist in any political campaign of any candidate or measure so long as the participation or assistance is rendered on the member's own time and department or state government property is not involved.
  4. The members of the department shall not publicly and openly espouse the candidacy of any person or measure in their official capacity as members of the department.
  5. It is declared to be the intention of the General Assembly to encourage members of the department to participate in the election process so long as the participation occurs while they are off-duty and are on their own time.
    1. The violation of these provisions shall be sufficient for the removal of any member of the department force.
    2. However, nothing in this section shall interfere with the rights of any member of the department to vote for any candidate or upon any issues as his or her reason and conscience may dictate.

History. Acts 1945, No. 231, § 6; A.S.A. 1947, § 42-406; Acts 1997, No. 257, § 1.

Case Notes

Constitutionality.

This section is not substantially overbroad or impermissibly vague and is, therefore, constitutional on its face. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

Where the Governor had issued a directive informing state employees of their right to participate in political activities while off duty and not using state equipment, and this directive was posted in state police troop headquarters, discipline of troopers for off duty activities violated their rights guaranteed under the Due Process Clause of the Fourteenth Amendment. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

This section is not so vague that people of common intelligence must necessarily guess at its meaning; indeed, whatever problems may exist with this section, it is impractical to suggest that it fails to give adequate warning of the types of prohibited activities or the consequences for engaging in such. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

This section is not substantially overbroad or impermissibly vague and is, therefore, constitutional on its face; however, under certain circumstances, disciplinary action taken against troopers for violation of this section violated troopers' rights guaranteed under the Due Process Clause of the Fourteenth Amendment. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

In General.

Subsections (d) through (f) of this section indicate that political activity, even during off duty hours, is prohibited. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

The restrictions imposed by this section favor no particular party, group, or points of view, but apply equally to all types of political activities therein described. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

This section is penal in nature, in that it makes no provision for a trooper to be merely suspended or fined, but states that violation of the statute is sufficient for removal. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

This section serves several valid and important interests, among those being to guarantee troopers' job security, free from the vicissitudes of the election process; to avoid the appearance of political partisanship on the part of the Arkansas State Police; and to promote a harmonious working relationship between the State Police, citizens, and political officials throughout the State. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

Until now it has evidently been the judgment of Arkansas' legislature, executive, and citizens that participation in political campaigns and related activities by Arkansas State Troopers should be restricted. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

Balancing Interests.

A state trooper is often the most conspicuous representative of the state government to a large percentage of the population, particularly those residing in rural communities who may view the trooper as a symbol of stability and authority; accordingly, in balancing the interests of the plaintiffs and the interest of the State under this section, the Court found the balance weighed in favor of the State. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

Violations.

Under customary procedure, complaints alleging violations of this section would be reviewed by the State Police Director under two circumstances: one situation occurs when the troop captain determines the complaint cannot be handled at troop level; the other situation occurs when an officer is unhappy with the decision of the troop captain or the staff disciplinary board and appeals the decision directly to the director. Wicker v. Goodwin, 813 F. Supp. 676 (E.D. Ark. 1992) (decided under former version of section).

Cited: Seal v. Pryor, 504 F. Supp. 599 (E.D. Ark. 1980).

12-8-206 — 12-8-209. [Repealed.]

Publisher's Notes. Sections 12-8-206 — 12-8-208, concerning troopers first class, corporals, and state police operators, were repealed by Acts 2001, No. 1697, §§ 13-15. Section 12-8-209, concerning salaries, expenses, and allowances for police officers, was repealed by Acts 2003, No. 1609, § 21. The sections were derived from the following sources:

12-8-206. Acts 1975 (Extended Sess., 1976), No. 1017, § 13; 1985, No. 836, § 6; A.S.A. 1947, § 42-430.1; Acts 1987, No. 1037, § 9; 1989 (1st Ex. Sess.), No. 285, § 9.

12-8-207. Acts 1981, No. 540, § 17; 1985, No. 836, § 6; A.S.A. 1947, § 42-421.1; Acts 1987, No. 1037, § 9; 1989 (1st Ex. Sess.), No. 285, § 9.

12-8-208. Acts 1965, No. 29, § 1; A.S.A. 1947, § 42-433.

12-8-209. Acts 1945, No. 231, § 6; 1981, No. 540, § 7; 1985, No. 519, § 1; A.S.A. 1947, §§ 42-406, 40-406.1; Acts 1991, No. 1099, § 17; 1999, No. 1332, § 1; 1999, No. 1378, § 14; 2001, No. 1697, § 16.

12-8-210. Insurance — Medical and hospital — Definitions.

    1. The Division of Arkansas State Police shall obtain a policy or contract of medical and hospital insurance or establish a self-insurance fund in lieu thereof to provide medical and hospital insurance for all eligible employees of the division.
    2. The division shall pay all or a portion of the premium, fee, or other costs for the policy or contract or payments into a self-insurance fund from funds appropriated to the division for personal service matching or which may be specifically appropriated for that purpose.
  1. The division may provide hospitalization and medical services coverage under a group health insurance program or may in lieu thereof provide coverage for hospitalization and medical insurance services under a self-insurance program established by the division for the spouses and dependents of eligible employees of the division and pay all or a portion of the premium thereon or payments into the self-insurance fund from funds appropriated for that purpose.
  2. In the event that the division, acting pursuant to a resolution adopted by the Arkansas State Police Commission, exercises the option to establish a self-insurance program, this program shall provide hospitalization and medical services coverage for eligible employees of the division and for the spouses and dependents of eligible employees of the division as authorized in this section and shall be operated in accordance with policies, rules, procedures, and benefits prescribed by the commission.
  3. Members of the division who retire and receive retirement benefits under the State Police Retirement System after July 1, 1985, shall be eligible to participate in the group health self-insurance program established by the commission for eligible retirees and for their spouses and dependents in the same manner and under the same conditions as provided in §§ 21-5-410 and 21-5-411, which authorize retired state employees receiving retirement benefits under the Arkansas Public Employees' Retirement System to participate in the State and Public School Life and Health Insurance Program.
  4. As used in this section:
    1. “Eligible employee” means an individual who is:
      1. A full-time employee of the division as defined in the plan document for the Arkansas State Police Employee Health Plan; and
      2. Qualified to enroll in the health benefit plan offered by the division; and
    2. “Eligible retiree” means an employee who:
      1. Retires under the division's formal retirement plan;
      2. Is eligible to continue to participate in the retirement plan upon retirement as defined in the plan document for the Arkansas State Police Employee Health Plan; and
      3. Is qualified to enroll in the health benefit plan offered by the division.

History. Acts 1971, No. 243, § 1; 1975, No. 636, § 1; 1985, No. 951, §§ 1-3; A.S.A. 1947, §§ 42-434 — 42-434.2; Acts 2001, No. 1697, § 17; 2017, No. 1054, § 1.

A.C.R.C. Notes. Acts 2015, No. 870, § 19, provided:

“UNIFORM EMPLOYEE HEALTH INSURANCE PROGRAM REPORTING. The Department of Arkansas State Police shall report monthly to the Governor, the Chief Fiscal Officer of the State and to the Arkansas Legislative Council or Joint Budget Committee regarding the activity and condition for the uniformed employee health insurance plan. The report shall include, but not limited to, the beginning reserve fund balance, contributions made during the month, claims paid, and the ending fund balance of the month. In the event it is determined that the cost to adequately maintain the uniform employee health insurance plan is not feasible within the existing resources available to the department, the 90th General Assembly shall study the feasibility and desirability of discontinuing the self-insurance program and instead provide medical and hospital insurance to uniform employees through the public employees insurance program.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2016, No. 265, § 19, provided: “UNIFORM EMPLOYEE HEALTH INSURANCE PROGRAM REPORTING. The Department of Arkansas State Police shall report monthly to the Governor, the Chief Fiscal Officer of the State and to the Arkansas Legislative Council or Joint Budget Committee regarding the activity and condition for the uniformed employee health insurance plan. The report shall include, but not limited to, the beginning reserve fund balance, contributions made during the month, claims paid, and the ending fund balance of the month. In the event it is determined that the cost to adequately maintain the uniform employee health insurance plan is not feasible within the existing resources available to the department, the 90th General Assembly shall study the feasibility and desirability of discontinuing the self-insurance program and instead provide medical and hospital insurance to uniform employees through the public employees insurance program.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Acts 2017, No. 1026, § 17, provided: “UNIFORM EMPLOYEE HEALTH INSURANCE PROGRAM REPORTING. The Department of Arkansas State Police shall report monthly to the Governor, the Chief Fiscal Officer of the State and to the Arkansas Legislative Council or Joint Budget Committee regarding the activity and condition for the uniformed employee health insurance plan. The report shall include, but not limited to, the beginning reserve fund balance, contributions made during the month, claims paid, and the ending fund balance of the month. In the event it is determined that the cost to adequately maintain the uniform employee health insurance plan is not feasible within the existing resources available to the department, the 91st General Assembly shall study the feasibility and desirability of discontinuing the self-insurance program and instead provide medical and hospital insurance to uniform employees through the public employees insurance program.

“The provisions of this section shall be in effect only from July 1, 2017 through June 30, 2018.”

Amendments. The 2017 amendment, in (a)(1), substituted “shall” for “is authorized and directed to” and “eligible” for uniformed”; inserted “all or a portion of” in (a)(2); in (b), substituted “may” for “is authorized to” following “The department”, “eligible employees” for “uniformed personnel”, and “pay all or a portion of” for “to pay”; in (c), deleted “therefor” following “Commission”, substituted “eligible” for “uniformed” following “coverage for”, and substituted “eligible employees” for “uniformed personnel”; in (d), substituted “eligible retirees” for “uniformed personnel”, “21-5-411” for “21-5-412”, and “State and Public School Life and Health Insurance Program” for “state employees' hospitalization and medical insurance program”; and added (e).

12-8-211. [Repealed.]

Publisher's Notes. This section, concerning liability insurance, was repealed by Acts 2003, No. 1041, § 2. The section was derived from Acts 1971, No. 332, § 1; A.S.A. 1947, § 42-435.

12-8-212. Death benefits — Definition.

      1. When any police officer of the Department of Arkansas State Police shall have lost his or her life in the course of employment, then upon satisfactory proof of that fact made to the Arkansas State Police Commission, a death benefit in the sum of twenty-five thousand dollars ($25,000) shall be paid to the spouse of the deceased officer.
      2. In case no spouse survives the officer, the death benefit shall be distributed equally among the officer's children.
    1. The sum of twenty-five thousand dollars ($25,000) shall be paid from the Department of Arkansas State Police Fund.
  1. As used in this section, “in the course of employment” means at any time when an officer is on duty as a police officer or is performing an act ordinarily performed by a police officer although the officer is not actually on duty at the time.
  2. Nothing contained in this section shall be construed to limit or extinguish the right of any officer or the officer's survivors to any other benefits provided by law.

History. Acts 1959, No. 91, §§ 1-3; A.S.A. 1947, §§ 42-427 — 42-429; Acts 2001, No. 1697, § 18.

Cross References. Department of Arkansas State Police Fund, § 19-6-404.

Payment to dependents of police officers killed in the line of duty, § 21-5-701 et seq.

Survivor's benefits for survivors of officers killed in line of duty while not member of retirement system, § 24-6-218.

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Baker, Workers' Compensation, 9 U. Ark. Little Rock L.J. 213.

12-8-213. Equipment and uniforms.

  1. Such motorcycles, automobiles, and other vehicles, equipment, and supplies as may be necessary for the proper and efficient operation of the Division of Arkansas State Police and as may be necessary for the proper enforcement of this chapter shall be furnished to the officers and patrol personnel by the division.
  2. The officers and patrol personnel shall wear and display upon their person a metal badge or other insignia as the Director of the Division of Arkansas State Police shall require, bearing the words “Arkansas State Police”.
  3. All such patrol personnel and officers shall wear such uniforms at such times and places as shall be designated and required by the director.

History. Acts 1945, No. 231, § 9; A.S.A. 1947, § 42-409; Acts 2019, No. 910, § 5787.

Amendments. The 2019 amendment, in (a), substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” and “division” for “department”; substituted “Director of the Division of Arkansas State Police” for “director of the department” in (b); and substituted “director” for “Director of the Department of Arkansas State Police” in (c).

12-8-214. Award of pistol and purchase of shotgun upon retirement or death.

  1. When a Department of Arkansas State Police officer retires from service or dies while still employed with the department, in recognition of and appreciation for the service of the retiring or deceased officer, the Arkansas State Police Commission may award the pistol carried by the officer at the time of his or her death or retirement from service to:
    1. The officer; or
    2. The officer's spouse, if the spouse is eligible under applicable state and federal laws to possess a firearm.
  2. When a department officer retires from service or dies while still employed with the department, in recognition of and appreciation for the service of the retiring or deceased officer, the commission may allow the purchase of the shotgun used by the officer while on duty at the time of his or her death or retirement from service at fair market value as determined by the commission by:
    1. The officer; or
    2. The officer's spouse, if the spouse is eligible under applicable state and federal laws to possess a firearm.

History. Acts 1981, No. 12, § 1; A.S.A. 1947, § 42-465; Acts 2003, No. 547, § 1; 2009, No. 155, § 1.

A.C.R.C. Notes. Acts 2009, No. 155, § 2, provided: “The act applies retroactively to a Department of Arkansas State Police officer who retired from service or died while employed by the department on or after January 1, 2008, but before the effective date of this act.”

Amendments. The 2009 amendment rewrote (b).

12-8-215. Additional salary payments.

  1. In the event that sufficient revenues in the judgment of the Director of the Division of Arkansas State Police exist, the Division of Arkansas State Police is authorized to make additional salary payments from such funds to those employees who have attained law enforcement certification above the basic certificate level, as defined by the Arkansas Commission on Law Enforcement Standards and Training.
  2. It is the intent of this section that such payment shall be optional, at the discretion of the director, dependent on sufficient revenues, and shall not be implemented using funds specifically set aside for other programs within the division.
    1. Employees shall be eligible for all or a portion of additional salary payments scheduled as follows:
      1. General certificate — three hundred dollars ($300) annually;
      2. Intermediate certificate — six hundred dollars ($600) annually;
      3. Advanced certificate — nine hundred dollars ($900) annually; and
      4. Senior certificate — one thousand two hundred dollars ($1,200) annually.
    2. Payment of the funds may be made monthly, quarterly, semiannually, or annually depending upon the availability of revenues and shall be restricted to the following classifications:
      1. Director of the Division of Arkansas State Police;
      2. Arkansas State Police lieutenant colonel;
      3. Arkansas State Police major;
      4. Arkansas State Police captain;
      5. Arkansas State Police lieutenant;
      6. Arkansas State Police sergeant;
      7. Arkansas State Police corporal;
      8. Arkansas State Police trooper, first class; and
      9. Arkansas State Police trooper.
  3. Payments made under this section shall be considered part of the employee's regular income and subject to all applicable withholding required by law.

History. Acts 1993, No. 508, § 15; 1995, No. 229, § 1; 2003, No. 1041, § 3; 2013, No. 143, § 1; 2019, No. 910, §§ 5788, 5789.

Amendments. The 2013 amendment deleted (c)(2)(J) and (c)(2)(K).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” twice in (a) and in (c)(2)(A); and substituted “division” for “department” in (b).

12-8-216. Salary administration grid.

  1. Should additional general revenue funds become available to the Division of Arkansas State Police, as determined by the Chief Fiscal Officer of the State, the division shall implement a salary administration grid for the following uniformed commissioned officer classifications:
  2. The salary administration grid established under this section shall set the entry pay level for each of the classifications listed in subsection (a) of this section at five percent (5%) above the entry pay level of the assigned grade under the Uniform Classification and Compensation Act, § 21-5-201 et seq.

Class Code Title Grade T001C ASP MAJOR GS14 T003C ASP CAPTAIN GS13 T007C ASP LIEUTENANT GS12 T011C ASP SERGEANT GS11 T022C ASP CORPORAL GS09 T035C ASP TROOPER 1ST CLASS GS08 T100C ASP TROOPER GS07

Click to view table.

History. Acts 2019, No. 1007, § 20.

Subchapter 3 — Division of Arkansas State Police Communications Equipment Leasing Act

Effective Dates. Acts 1985, No. 817, § 11: Apr. 4, 1985. Emergency clause provided: “The Seventy-Fifth General Assembly hereby finds and declares the present communications equipment for the department is not adequate and that there is an urgent need that modern communications equipment be acquired in order that the department may continue to carry out its law enforcement responsibilities in an effective manner. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be effective upon its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-8-301. Title.

This subchapter shall be known and may be cited as the “Division of Arkansas State Police Communications Equipment Leasing Act”.

History. Acts 1985, No. 817, § 1; A.S.A. 1947, § 42-468; Acts 2019, No. 910, § 5790.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police Communications Equipment Leasing Act” for “Department of Arkansas State Police Communications Equipment Leasing Act”.

12-8-302. Legislative findings and determinations.

  1. The General Assembly finds:
    1. That the existing communications equipment used by the Department of Arkansas State Police:
      1. Has poor radio coverage;
      2. Has the problems of public monitoring and lack of user privacy; and
      3. Is subject to unauthorized usage and interference from other parties; and
    2. That portions of the existing communications equipment are:
      1. Worn out;
      2. Obsolete and expensive to repair and maintain; and
      3. Specially designed mobile and portable units having limited utility.
  2. The General Assembly determines that adequate and modern communications equipment for the enhancement of statewide law enforcement is essential to the safety and welfare of the people of this state.
  3. It is legislatively determined that adequate and modern communications equipment needs to be acquired in order to replace the existing communications equipment and that the most feasible and least expensive way of financing the communications equipment is by authorizing a lease-purchase agreement under the authority of this subchapter.

History. Acts 1985, No. 817, § 2; A.S.A. 1947, § 42-469.

12-8-303. Definitions.

As used in this subchapter:

  1. “Acquire” means to acquire by lease, lease-purchase, or otherwise, construct, repair, alter, install, restore, or place on any land or in any building or motor vehicle any communications equipment by negotiation or bidding upon such terms and conditions as are determined by the Arkansas State Police Commission to be in the best interests of the Division of Arkansas State Police and that will most effectively serve the purposes of this subchapter;
  2. “Commission” means the Arkansas State Police Commission, which is the commission created by § 12-8-102, or any successor agency;
  3. “Communications equipment” means public safety communication equipment and systems, including buildings, structures, furnishings, and fixtures used directly for public safety purposes in connection with the operation thereof, including, but not limited to, radio broadcast and receiving, telegraph, television, teletype, microwave transmission, and similar systems of communication by voice or by conveyance of words, signals, or images by electronic or electrical means;
  4. “Cost”, as applied to communications equipment, means all costs of such equipment and, without limiting the generality of the foregoing, shall include the following:
    1. All costs of the acquisition of any such communications equipment and all costs incident or related thereto;
    2. The cost of architectural, engineering, legal, and related services, including:
      1. The cost of the preparation of plans, specifications, studies, surveys, and estimates of cost and of revenue; and
      2. All other expenses necessary or incident to planning, providing or determining the need for or the feasibility and practicability of such communications equipment; and
    3. All costs paid or incurred in connection with the financing of such communications equipment, including:
      1. Out-of-pocket expenses;
      2. The cost of financing, legal, accounting, financial advisory and consulting fees, expenses, and disbursements;
      3. The cost of any policy of insurance, letter of credit, or guaranty;
      4. The cost of printing, engraving, and reproduction services; and
      5. The cost of the initial or acceptance fee of any trustee or paying agent;
  5. [Repealed.]
  6. [Repealed.]
  7. “Lease or lease-purchase agreement” means the contract entered into by the commission to acquire the communications equipment;
  8. “Lease payments” means payments to be made by the division from pledged revenues or other legally available sources to pay costs of communications equipment; and
  9. “Pledged revenues” means all revenues authorized by § 12-8-307 to be pledged for the security and payment of the lease.

History. Acts 1985, No. 817, § 3; A.S.A. 1947, § 42-470; Acts 2019, No. 910, §§ 5791-5793.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (1); repealed former (5) and (6); and substituted “division” for “department” in (8).

12-8-304. Construction — Applicability of other acts.

    1. This subchapter shall be liberally construed to accomplish the intent and purposes of this subchapter and shall be the sole authority required for the accomplishment of these purposes.
    2. It shall not be necessary to comply with the general provisions of other laws dealing with public commodities and public facilities and their acquisition, construction, leasing, encumbering, or disposition if:
      1. The Arkansas State Police Commission shall comply with §§ 25-4-108 and 25-4-110 before acquiring any communications equipment authorized under this subchapter; and
      2. The commission submits any invitation or request for bids, quotes, or proposals and the procedures to be used in evaluating them to the State Procurement Director for review and written approval prior to any obligation being incurred by the commission or the Department of Arkansas State Police as the obligation relates to any acquisition authorized and defined by this subchapter.
  1. The enumeration of any object, purpose, power, manner, method, and thing in this subchapter shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things.
  2. To the extent that there is a conflict between the provisions of this subchapter and §§ 12-8-101 — 12-8-107, 12-8-110 — 12-8-112, 12-8-114 — 12-8-116, 12-8-118, 12-8-119, 12-8-201 — 12-8-205, 12-8-213, and 12-12-103, the provisions of this subchapter shall govern.

History. Acts 1985, No. 817, §§ 7, 10; A.S.A. 1947, §§ 42-474, 42-476; Acts 2005, No. 1962, § 24; 2011, No. 779, § 2.

Amendments. The 2005 amendment substituted “of this subchapter” for “thereof” in (a)(1); inserted “in this subchapter” in (b); in (c), deleted “This subchapter shall be the complete and sole authority for the accomplishment of the purposes hereof” at the beginning, and deleted “12-8-209 [repealed]”; and made minor stylistic changes.

The 2011 amendment substituted “§§ 25-4-108 and 25-4-110” “for §§ 25-4-107 [repealed] and 25-4-108” in (a)(2)(A).

12-8-305. Arkansas State Police Commission — Additional powers.

  1. In addition to the powers, purposes, and authorities set forth elsewhere in this subchapter or in other laws, the Arkansas State Police Commission may:
      1. Acquire, construct, repair, renovate, alter, maintain, and equip communications equipment for use by the Division of Arkansas State Police.
      2. However, the communications equipment acquired under the authority of this subchapter shall not be used for the transmission of telephonic messages which bypass the public telephone network;
    1. Contract for the lease, lease-purchase, or purchase of the communications equipment on such terms and conditions as are specified by this subchapter and approved by the Director of the Division of Arkansas State Police with the consent of the commission;
    2. Provide for the payment of the cost of acquisition from any legally available source or sources, including, without limitation, the revenues authorized by § 12-8-307, funds appropriated and made available under §§ 12-8-101 — 12-8-107, 12-8-110 — 12-8-112, 12-8-114 — 12-8-116, 12-8-118, 12-8-119, 12-8-201 — 12-8-205, 12-8-213, and 12-12-103, and funds, if any, appropriated for the communications equipment;
    3. Purchase, acquire, lease, lease-purchase, or rent, and receive bequests or donations of, or otherwise acquire, sell, trade, or barter any real, personal, or mixed property and convert such property into money or other property;
    4. Contract and be contracted with;
    5. Apply for, receive, accept, and use any moneys and property from the United States Government, any agency, any state or governmental body or political subdivision, any public or private corporation or organization of any nature, or any individual;
    6. Invest and reinvest any of its moneys in securities, obligations, banking arrangements, or investment agreements selected by the commission;
    7. Make and execute all other instruments necessary or convenient for the performance of its duties and the exercise of its powers and functions under this subchapter;
    8. In connection with the acquisition and financing of the costs of communication equipment, employ attorneys, accountants, underwriters, and financial advisors and such other advisors, consultants, and agents as may be necessary in its judgment, and fix their compensation;
    9. Procure insurance against any loss in connection with its property and other assets, in such amounts and from such insurers as it may deem advisable, including the power to pay premiums on any such insurance;
    10. Procure insurance or guaranties from any public or private entities, including any department, agency, or instrumentality of the United States and to secure payment of any lease entered into under the authority of this subchapter, including the power to pay premiums on any such insurance or guaranty;
    11. Arrange for the use of such communications equipment by any federal, state, or local governmental agency or any other person, from time to time, as any of such communications equipment is not needed by the division and collect fees and charges, as the commission determines to be reasonable, in connection with the use of any communications equipment by any other person;
    12. Cooperate with and exchange services and information with any federal, state, or local governmental agency; and
    13. Take such other action, not inconsistent with law, as may be necessary, convenient, or desirable to carry out the powers, purposes, and authorities set forth in this subchapter and carry out the intent of this subchapter.
  2. All the powers, purposes, and authorities set forth in subsection (a) of this section, except those relating to the contracting for the lease, purchase, or lease-purchase of the communications equipment, may be carried out by the division.

History. Acts 1985, No. 817, § 4; A.S.A. 1947, § 42-471; Acts 2005, No. 1962, § 25; 2019, No. 910, §§ 5794-5797.

Amendments. The 2005 amendment deleted “12-8-209 [repealed]” in (a)(3).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(1)(A) and (a)(2); and substituted “division” for “department” in (a)(12) and (b).

12-8-306. Submission of contracts and proposals.

The Arkansas State Police Commission shall submit any contract, agreement, or proposal, as authorized by this subchapter, to the Legislative Council prior to any obligation being incurred by the commission for the Legislative Council's advice and counsel.

History. Acts 1985, No. 817, § 6; A.S.A. 1947, § 42-473; Acts 2005, No. 1962, § 26.

Amendments. The 2005 amendment deleted “Arkansas Communications Study Committee and to the” preceding the first occurrence of “Legislative Council,” and substituted “the Legislative Council's” for “their.”

12-8-307. Lease fund — Pledged revenues.

    1. The lease payments and other costs relating to the communications equipment shall be secured solely by a lien on and pledge of all revenues derived from the following fees and charges fixed and imposed by § 27-16-801, or pursuant to any subsequent similar laws, which are confirmed, ratified, fixed, and imposed, and which are as follows:
      1. An operator's or a motorcycle driver's license for two (2) years — six dollars ($6.00);
      2. A chauffeur's license for two (2) years — ten dollars ($10.00);
      3. A motor scooter license for not more than two (2) years — two dollars ($2.00);
      4. An operator's license or a motorcycle driver's license for four (4) years — twelve dollars ($12.00); and
      5. A chauffeur's license for four (4) years — twenty dollars ($20.00).
    2. The pledging of such revenues, collectively the “pledged revenues”, is authorized.
  1. On the first day of the month next succeeding the execution of any leasing agreement authorized by this subchapter, all pledged revenues are specifically declared to be cash funds restricted in their use and dedicated to be used solely as authorized in this subchapter.
    1. On the first day of the month next succeeding the execution of the lease authorized by this subchapter and so long as lease payments remain to be paid, the pledged revenues shall not be deposited into the State Treasury and shall not be subject to legislative appropriation.
    2. The pledged revenues shall be deposited into a bank or banks selected by the Division of Arkansas State Police, as and when received by the Commissioner of Motor Vehicles, the Office of Motor Vehicle, the Division of Arkansas State Police, the Arkansas State Police Commission, the Secretary of the Department of Finance and Administration, or any other state agency.
    3. The pledged revenues shall be deposited to the credit of a fund created and designated as the “Division of Arkansas State Police Communications Equipment Lease Fund”, referred to in this subchapter as the lease fund.
  2. So long as there are remaining any lease payments to be made, the General Assembly may eliminate or change the driver's license fees referred to as pledged revenues within this section, under § 27-16-801, or any subsequent similar law, but only on condition that there is always maintained in effect and made available for the payment of lease payments sources of revenue which produce revenues at least sufficient in amount to provide for the payment when due of the lease payments.

History. Acts 1985, No. 817, § 5; A.S.A. 1947, § 42-472; Acts 2019, No. 910, § 3374.

Amendments. The 2019 amendment, in (c)(2), substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” twice, and substituted “Secretary” for “Director”; and substituted “Division of Arkansas State Police Communications Equipment Lease Fund” for “Department of Arkansas State Police Communications Equipment Lease Fund” in (c)(3).

12-8-308. Lease fund — Payment of costs — Tax exemption.

    1. Payments to cover the costs under the lease agreement shall be paid from the Department of Arkansas State Police Communications Equipment Lease Fund on a monthly basis.
    2. If and so long as all payments to cover the costs under the lease agreement are properly made on the last day of each fiscal quarter, the pledged revenues remaining in the Department of Arkansas State Police Communications Equipment Lease Fund in excess of a reserve of thirty percent (30%) of a fiscal quarter's requirements shall be withdrawn from the lease fund and deposited into the State Treasury as special revenues to the credit of the Department of Arkansas State Police Fund.
  1. So long as any lease payments remain to be paid, all moneys in the Department of Arkansas State Police Communications Equipment Lease Fund shall be used solely for the payment of the lease payments, and other costs in connection with the lease, with the maintenance of necessary funds and reserves, except that the lease may provide for the withdrawal, for other lawful purposes, of surplus moneys, as defined in the lease.
  2. The interest portion of any costs of acquiring communications equipment authorized by this subchapter shall be exempt from state, county, and municipal income, inheritance, and estate taxes.

History. Acts 1985, No. 817, §§ 5, 8; A.S.A. 1947, §§ 42-472, 42-475.

Cross References. Department of Arkansas State Police Fund, § 19-6-404.

12-8-309. Lease fund — Investments.

Nothing in §§ 12-8-30712-8-310 is intended to prohibit the Department of Arkansas State Police from investing moneys deposited into the Department of Arkansas State Police Communications Equipment Lease Fund, as provided in this subchapter.

History. Acts 1985, No. 817, § 5; A.S.A. 1947, § 42-472.

12-8-310. Lease fund — Expiration of provisions.

  1. The provisions of §§ 12-8-307 — 12-8-309 shall expire upon payment of the final costs authorized under the lease agreements mentioned in this subchapter.
  2. Any balances remaining in the Department of Arkansas State Police Communications Equipment Lease Fund shall be deposited into the State Treasury to the credit of the Department of Arkansas State Police Fund as a nonrevenue receipt.

History. Acts 1985, No. 817, § 5; A.S.A. 1947, § 42-472.

A.C.R.C. Notes. Acts 2015, No. 870, § 21, provided:

“ARKANSAS WIRELESS INFORMATION NETWORK. Once the requirements of Arkansas Code § 12-8-310 are satisfied, the second two million dollars ($2,000,000) deposited into the Department of Arkansas State Police Fund generated by Arkansas Code § 27-16-801(a) shall be used for the operations, maintenance, equipment and various system requirements and expenses of the Department of Arkansas State Police — Arkansas Wireless Information Network.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2016, No. 265, § 21, provided: “ARKANSAS WIRELESS INFORMATION NETWORK. Once the requirements of Arkansas Code § 12-8-310 are satisfied, the second two million dollars ($2,000,000) deposited into the Department of Arkansas State Police Fund generated by Arkansas Code § 27-16-801(a) shall be used for the operations, maintenance, equipment and various system requirements and expenses of the Department of Arkansas State Police — Arkansas Wireless Information Network.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Subchapter 4 — Arkansas Speed Trap Law

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-8-401. Title.

This subchapter may be known as and cited as the “Arkansas Speed Trap Law”.

History. Acts 1995, No. 855, § 1.

12-8-402. Definitions.

As used in this subchapter:

  1. “Abusing police power” means exercising police power to enforce criminal and traffic laws for the principal purpose of raising revenue for an affected municipality and not for the purpose of public safety and welfare;
  2. “Affected highway” means any highway which is part of the state highway system;
  3. “Affected municipality” means a city of the first class, a city of the second class, or an incorporated town through which passes an affected highway;
  4. “Enterprise fund” means a proprietary fund type used to report an activity for which a fee is charged to external users for goods or services;
  5. “Fiduciary fund” means a fund type used to report assets held in a trustee or agency capacity and which cannot be used to support an affected municipality's own programs; and
    1. “Revenue” means moneys resulting from fines and costs from traffic offense citations written by or arrests made by an affected municipality's law enforcement agency or moneys resulting from ancillary actions related to the enforcement of a traffic offense, including failure to appear and failure to pay, if the traffic offense is a:
      1. Misdemeanor;
      2. Violation of state law; or
      3. Violation of a local ordinance.
    2. “Revenue” does not include moneys received by an affected municipality and remitted to another governmental entity.

History. Acts 1995, No. 855, § 2; 1997, No. 211, § 1; 2019, No. 364, § 1.

Amendments. The 2019 amendment, in (1), substituted “means exercising” for “means the exercise of”, and substituted “an affected municipality” for “the municipality”; in (3), inserted “first class, a city of the”, and inserted “an”; added (4) through (6); and made stylistic changes.

12-8-403. Inquiry to determine abuse.

    1. Upon the request of the prosecuting attorney of a judicial district in which an affected municipality is located, the Director of the Division of Arkansas State Police may investigate and determine whether the affected municipality is abusing police power by conducting an unlawful speed trap.
      1. The investigation shall require the affected municipality to submit a certified record of all fines, costs, citations, and municipal expenditures, as well as the percentage of speeding citations that are written for persons speeding ten miles per hour (10 m.p.h.) or less than the posted speed limit.
      2. The records required under subdivision (a)(2)(A) of this section may encompass a reasonable time period as requested by the Division of Arkansas State Police but shall contain at least ninety (90) days' worth of documentation.
        1. The affected municipality shall submit the requested records within thirty (30) days, unless an extension for submission is approved by the director, and shall cooperate with all other aspects of the investigation.
        2. Failure to comply with a requirement of this section shall result in automatic sanctions.
  1. It is presumed that the affected municipality is abusing police power by conducting an unlawful speed trap upon a finding by the director that:
    1. The amount of revenue for the affected municipality exceeded thirty percent (30%) of the affected municipality's total expenditures, less capital expenditures, water department expenditures, sewer department expenditures, fiduciary fund expenditures, enterprise fund expenditures, and debt service, in the preceding year; or
    2. More than fifty percent (50%) of the summons written for the traffic offense of speeding that is a misdemeanor, a violation of state law, or a violation of a local ordinance in the affected municipality are written for speed limit violations that are ten miles per hour (10 m.p.h.) or less than the posted speed limit.

History. Acts 1995, No. 855, § 3; 1997, No. 842, § 1; 2001, No. 1425, § 1; 2019, No. 364, § 2; 2019, No. 910, §§ 5798, 5799.

Amendments. The 2019 amendment by No. 364, in (a)(1), substituted “may investigate and determine whether the affected municipality” for “is authorized to investigate and determine whether any municipality”, and added “by conducting an unlawful speed trap”; in (a)(2)(A), substituted “speeding citations” for “citations”, inserted “persons speeding”, and added “limit”; rewrote (a)(2)(B); inserted “by the director” in (a)(2)(C)(i); in the introductory language of (b), inserted “by conducting an unlawful speed trap”, and inserted “by the director”; in (b)(1), substituted “for the affected municipality exceeded” for “produced by fines and costs from traffic offenses that are misdemeanors or violations of state law or local ordinance for which citations are written by the police department of the affected municipality occurring on the affected highways exceeds” and inserted “water department expenditures, sewer department expenditures, fiduciary fund expenditures, enterprise fund expenditures”; inserted “speed” following “posted” in (b)(2); and made stylistic changes.

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(1) and (a)(2)(B).

12-8-404. Sanctions.

    1. Upon the completion of an inquiry, the Director of the Division of Arkansas State Police shall forward all information to the prosecuting attorney of the affected municipality, who will make the determination as to whether the municipality has abused its police power.
    2. The prosecuting attorney shall have the power to issue the following sanctions:
      1. Order that a municipality abusing police power cease patrolling any or all affected highways; or
      2. Order that all or any part of future fines and court costs received from traffic law violations or misdemeanor cases where the location of the offense is an affected highway be paid over to a county fund for the maintenance and operation of the public schools located in the county in which the municipality is located.
  1. Any violation of the sanction ordered under subdivision (a)(2)(A) of this section by any police officer shall constitute a Class A misdemeanor for each citation or summons issued or misdemeanor arrest made in violation of the prosecuting attorney's order.

History. Acts 1995, No. 855, §§ 4, 5; 1997, No. 842, § 2; 2001, No. 1425, § 2; 2005, No. 1962, § 27; 2019, No. 910, § 5800.

Amendments. The 2005 amendment substituted “prosecuting attorney's” for “director's” in (b).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(1).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-8-405. Required audit inquiry.

An audit of an affected municipality under § 10-4-412 or § 14-58-101 shall include an inquiry to determine whether the affected municipality is potentially abusing police power.

History. Acts 2019, No. 364, § 3.

Subchapter 5 — Crimes Against Children Division

Cross References. Child Abuse Hotline, § 12-18-301 et seq.

Child Maltreatment Act, § 12-18-101 et seq.

Preambles. Acts 2005, No. 1176 contained a preamble which read:

“WHEREAS, the Arkansas Child Maltreatment Act, Arkansas Code § 12-12-501 et seq., is the law that allows doctors and hospital staff to report child abuse and neglect to the Arkansas State Police Child Abuse Hotline; and

“WHEREAS, the Arkansas State Police Child Abuse Hotline is a twenty-four-hour toll-free service that triggers the initiation of an investigation of child maltreatment; and

“WHEREAS, currently, the Arkansas State Police Child Abuse Hotline will not accept reports related to newborn children being born with an illegal substance present in their system as a result of the pregnant mother's use before birth of an illegal substance or with a health problem as a result of the pregnant mother's use before birth of an illegal substance; and

“WHEREAS, in order for the newborn child to be protected by the Arkansas Child Maltreatment Act and receive services, the Arkansas State Police Child Abuse Hotline must accept reports of this nature; and

“WHEREAS, this act is necessary to clarify the law so that the Arkansas State Police Child Abuse Hotline can accept reports of this nature and so that the newborn children can be provided services to protect their health and safety.

“NOW THEREFORE, …”

Effective Dates. Acts 1997, No. 1240, § 12: Apr. 9, 1997. Emergency clause provided: “It is found and determined by the General Assembly that the powers and duties of the Department of Human Services in regard to the child abuse hotline and child abuse investigations will be shifted to the Arkansas State Police, either through transfer or by contract; that such transfer or contract could occur prior to or at the beginning of the next fiscal year; and that such transfer or contract cannot occur prior to or at the beginning of the next fiscal year unless this emergency clause is adopted. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2005, No. 1176, § 6: Mar. 24, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that, currently, the Arkansas State Police Child Abuse Hotline will not accept reports related to newborn children being born with an illegal substance present in their blood or urine as a result of the pregnant mother's use before birth of an illegal substance or with a health problem as a result of the pregnant mother's use before birth of an illegal substance; that in order for the newborn child to be protected by the Arkansas Child Maltreatment Act and receive services, the Arkansas State Police Child Abuse Hotline must accept reports of this nature; and that this act is immediately necessary to clarify the law so that the Arkansas State Police Child Abuse Hotline can accept reports of this nature and so that the newborn children can be provided services to protect their health and safety. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-8-501. Legislative intent.

  1. The General Assembly recognizes that:
    1. The state has a responsibility to provide competent and thorough child abuse investigations which are sensitive to the needs of children and families;
    2. It is difficult for caseworkers with the Department of Human Services, which is currently charged with the responsibilities of investigating child abuse and providing services to children and families, to separate their dual roles as investigators and service providers;
    3. Many studies show that child abuse investigations are compromised when these very different functions are not separated; and
    4. Child abuse is a crime and suspected child abuse should be investigated with due diligence by trained law enforcement officers.
  2. Therefore, it is declared to be the intent of this General Assembly to authorize the Department of Arkansas State Police to:
    1. Create a Crimes Against Children Division, either through transfer or by contract;
    2. Conduct investigations into severe child abuse as defined by interagency agreement; and
    3. Administer the Child Abuse Hotline.

History. Acts 1997, No. 1240, § 1; 2001, No. 441, § 2.

12-8-502. Transfer of powers and duties — Sections of unit — Sharing of information.

  1. When the powers and duties of the Department of Human Services in regard to the Child Abuse Hotline and child abuse investigations are transferred to the Department of Arkansas State Police or when the Department of Human Services and the Department of Arkansas State Police contract for the administration of the Child Abuse Hotline or for the Department of Arkansas State Police to conduct child abuse investigations, or both, the Department of Arkansas State Police shall establish a Crimes Against Children Division.
  2. The division shall consist of two (2) sections:
      1. The Investigation Section, which shall be staffed with civilian personnel and shall be responsible for the investigation of allegations of child abuse in accordance with the Child Maltreatment Act, § 12-18-101 et seq.
      2. Unless the case involves alleged severe maltreatment, if at any point during the investigation of alleged child maltreatment the information gathered becomes sufficient for a possible criminal prosecution, then the case shall be referred for further investigation to the appropriate law enforcement agency.
      3. The Investigation Section shall complete an investigation of all cases assigned to the Investigation Section and refer the case to a local law enforcement agency or a prosecuting attorney for possible criminal prosecution; and
    1. The Child Abuse Hotline Section, which shall administer twenty-four-hour toll-free inward wide-area telephone services (INWATS) to report to the Department of Arkansas State Police information regarding possible incidents of child abuse.
    1. The division shall develop and maintain statewide statistics regarding the incidence of child abuse.
    2. Each county and city law enforcement agency conducting child abuse investigations through referral from the Child Abuse Hotline shall report the status and disposition of these investigations to the division on a monthly basis.
    1. If the powers and duties of the Department of Human Services in regard to the Child Abuse Hotline and child abuse investigations are transferred to the Department of Arkansas State Police, the division and the Department of Human Services shall enter into a memorandum of understanding that shall include provisions that address the sharing of information reported to the Child Abuse Hotline with the Department of Human Services when such information is necessary for the division to provide appropriate service delivery to children and families.
    2. If the Department of Human Services and the Department of Arkansas State Police contract for the administration of the Child Abuse Hotline or for the Department of Arkansas State Police to conduct child abuse investigations, or both, the contract shall include provisions that address the sharing of information reported to the Child Abuse Hotline with the Department of Human Services when such information is necessary for the division to provide appropriate service delivery to children and families.

History. Acts 1997, No. 1240, § 2; 2001, No. 441, § 3; 2005, No. 1466, § 1; 2007, No. 703, § 7; 2009, No. 758, § 19.

A.C.R.C. Notes. Acts 2009, No. 758, § 29, provided:

“Contingent Effectiveness. This act shall not become effective unless an act of the Eighty-Seventh General Assembly repealing the Arkansas Child Maltreatment Act, § 12-12-501 et seq., and enacting a new Child Maltreatment Act, § 12-18-101 et seq., becomes effective.”

The contingency in Acts 2009, No. 758, § 29, was met by Acts 2009, No. 749.

Amendments. The 2005 amendment rewrote (b).

The 2007 amendment, in (b)(1)(B), added “Unless the case involves alleged severe maltreatment” and inserted “alleged child maltreatment”; added (b)(1)(C); and made related changes.

The 2009 amendment substituted “Child Maltreatment Act, § 12-18-101 et seq.” for “Arkansas Child Maltreatment Act, § 12-12-501 et seq.” in (b)(1)(A).

12-8-503. Transfer of powers and duties — Executive orders — Contracts.

    1. The Governor shall issue an executive order transferring the powers and duties of the Department of Human Services in regard to the Child Abuse Hotline to the Department of Arkansas State Police by a type 2 transfer as defined in § 25-2-105 or the Department of Human Services and the Department of Arkansas State Police shall enter into a contract for the administration of the Child Abuse Hotline in accordance with this subchapter.
    2. Personnel transferred with the Child Abuse Hotline shall be required to meet employment standards and policies established by the Department of Arkansas State Police in order to retain their employment.
    1. The Governor shall issue an executive order transferring the powers and duties of the Department of Human Services in regard to child abuse investigations to the Department of Arkansas State Police by a type 2 transfer as defined in § 25-2-105 or the Department of Human Services and the Department of Arkansas State Police shall enter into a contract for the Department of Arkansas State Police to conduct child abuse investigations in accordance with this subchapter.
    2. Personnel transferred in regard to child abuse investigations shall be required to meet employment standards and policies established by the Department of Arkansas State Police in order to retain their employment.

History. Acts 1997, No. 1240, § 3.

12-8-504. Transition plan — Continuous service.

  1. If a transfer of child abuse investigations occurs, any and all statutory authority, powers, duties, functions, records, authorized positions, property, unexpended balances of appropriations, allocations, or other funds of the Division of Children and Family Services of the Department of Human Services for the purposes of child abuse investigations to be transferred to the Department of Arkansas State Police shall be transferred only after the development of a transition plan that will ensure the efficient and effective transfer of the powers and duties of the Department of Human Services to the Department of Arkansas State Police so that there is continuous service delivery to and protection of the children of the State of Arkansas.
  2. If the Department of Human Services and the Department of Arkansas State Police enter into a contract for the Department of Arkansas State Police to conduct child abuse investigations, the contract shall include a transition plan that ensures continuous service delivery to and protection of the children of the State of Arkansas.
  3. The Department of Human Services and the Department of Arkansas State Police shall submit for review any transition plan developed under this section to the House Subcommittee on Children and Youth of the House Committee on Aging, Children and Youth, Legislative and Military Affairs and the Senate Interim Committee on Children and Youth.

History. Acts 1997, No. 1240, § 4; 2005, No. 1466, § 2.

Amendments. The 2005 amendment substituted “prosecuting attorney's” for “director's” in (b).

12-8-505. Child abuse hotline and investigations.

The Child Abuse Hotline and child abuse investigations referred to in this subchapter shall be operated and conducted in accordance with the Child Maltreatment Act, § 12-18-101 et seq.

History. Acts 1997, No. 1240, § 5; 2009, No. 758, § 20.

A.C.R.C. Notes. Acts 2009, No. 758, § 29, provided:

“Contingent Effectiveness. This act shall not become effective unless an act of the Eighty-Seventh General Assembly repealing the Arkansas Child Maltreatment Act, § 12-12-501 et seq., and enacting a new Child Maltreatment Act, § 12-18-101 et seq., becomes effective.”

The contingency in Acts 2009, No. 758, § 29, was met by Acts 2009, No. 749.

Amendments. The 2009 amendment substituted “the Child Maltreatment Act, § 12-18-101 et seq.” for “§ 12-12-501 et seq.”

12-8-506. [Repealed.]

Publisher's Notes. This section, concerning oversight, was repealed by Acts 2017, No. 713, § 3. The section was derived from Acts 1997, No. 1240, § 6; 2005, No. 1466, § 3.

12-8-507. Abuse of patients receiving Medicaid.

Nothing contained in this subchapter shall limit or impair in any way the authority of the Medicaid Fraud Control Unit within the Attorney General's office from investigating or referring for prosecution complaints of abuse and neglect of patients of healthcare facilities which receive Medicaid funds.

History. Acts 1997, No. 1240, § 8.

12-8-508. Provision of information and assistance.

Notwithstanding a rule to the contrary, upon request of a member of the General Assembly or legislative staff or upon request of a legislative committee, the Crimes Against Children Division of the Division of Arkansas State Police shall immediately provide information requested with respect to child welfare as contemplated under the Arkansas Child Welfare Public Accountability Act, § 9-32-201 et seq.

History. Acts 2001, No. 1727, § 6; 2005, No. 1466, § 4; 2019, No. 315, § 850.

Amendments. The 2005 amendment substituted “Crimes Against Children Division” for “Family Protection Unit.”

The 2019 amendment deleted “or regulation” following “rule”.

12-8-509. Additional reporting required.

  1. The state agency or entity responsible for administering the twenty-four-hour toll-free Child Abuse Hotline or investigating an incident of neglect as defined under § 12-18-103(14)(B) shall:
    1. Develop and maintain statewide statistics of the incidents of neglect reported or investigated under § 12-18-103(14)(B);
      1. Annually report no later than October 1 to the following:
        1. The Senate Interim Committee on Children and Youth;
        2. The House Committee on Aging, Children and Youth, Legislative and Military Affairs;
        3. The Senate Committee on Public Health, Welfare, and Labor; and
        4. The House Committee on Public Health, Welfare, and Labor.
      2. The annual report under this section shall include all findings and statistics regarding incidents of neglect reported or investigated under § 12-18-103(14)(B), including, but not limited to, the following information:
        1. The age of the mother;
        2. The type of illegal substance to which the newborn child was exposed prenatally;
        3. The estimated gestational age of the newborn child at the time of birth; and
        4. The newborn child's health problems; and
      1. Notify each mandatory reporter who makes a call to the Child Abuse Hotline if the mandatory reporter's call is not accepted or is screened out on a subsequent Child Abuse Hotline supervisor review.
      2. The notification required under subdivision (a)(3)(A) of this section shall be made within forty-eight (48) hours, excluding weekends and holidays, after a mandatory reporter makes a call to the Child Abuse Hotline that is not accepted or is screened out on a subsequent Child Abuse Hotline supervisor review.
  2. If more than one (1) state agency or entity is responsible for administering the twenty-four-hour toll-free Child Abuse Hotline or investigating an incident of neglect as defined under § 12-18-103(14)(B), then the reporting under this section shall be a collaborative effort by all state agencies or entities involved.

History. Acts 2005, No. 1176, § 4; 2007, No. 703, § 8; 2009, No. 758, § 21.

A.C.R.C. Notes. Acts 2009, No. 758, § 29, provided:

“Contingent Effectiveness. This act shall not become effective unless an act of the Eighty-Seventh General Assembly repealing the Arkansas Child Maltreatment Act, § 12-12-501 et seq., and enacting a new Child Maltreatment Act, § 12-18-101 et seq., becomes effective.”

The contingency in Acts 2009, No. 758, § 29, was met by Acts 2009, No. 749.

Publisher's Notes. Acts 2005, No. 1176, § 1, provided:

“This act shall be known and may be cited as ‘Garrett's Law: To Provide Services to a Newborn Child Born with an Illegal Substance Present in the Child's System.’”

Amendments. The 2007 amendment added (a)(3) and made related changes.

The 2009 amendment substituted “§ 12-18-103(13)(B)” for “§ 12-12-503(12)(B)” in the introductory language of (a), (a)(1), (a)(2)(B), and (b).

Cross References. Garrett's Law reports, § 12-18-305.

Subchapter 6 — Division of Arkansas State Police Headquarters Facilities and Equipment Financing Act

A.C.R.C. Notes. Acts 2015, No. 856, § 1, provided:

“Legislative intent — Repeal of Acts 1997, No. 1057.

“(a)(1) It is the intent of the General Assembly to update the Department of Arkansas State Police Headquarters Facility and Wireless Data Equipment Financing Act as established by uncodified Acts 1997, No. 1057, by repealing Acts 1997, No. 1057, and enacting this act.

“(2) It is not the intent of the General Assembly to:

“(A) Affect any bonds issued under Acts 1997, No. 1057; or

“(B) Allow the existence of bonds issued under Acts 1997, No. 1057, to impair the effectiveness of this act or the authority given under this act.

“(b) Acts 1997, No. 1057, is repealed.”

Effective Dates. Acts 2015, No. 856, § 10: Mar. 31, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that certain driver license fees are needed to provide vital services to the Department of Arkansas State Police; that this act will allow the use of those fees; and that this act is immediately necessary to provide a source of revenues to the department. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-8-601. Title.

This subchapter shall be known and may be cited as the “Division of Arkansas State Police Headquarters Facilities and Equipment Financing Act”.

History. Acts 2015, No. 856, § 2; 2019, No. 910, § 5801.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police Headquarters Facilities and Equipment Financing Act” for “Department of Arkansas State Police Headquarters Facilities and Equipment Financing Act”.

12-8-602. Legislative findings.

The General Assembly finds that:

  1. The Division of Arkansas State Police is faced daily with:
    1. Maintaining the most efficient and secure methods of transmitting and processing information between officers in the field and headquarters;
    2. The need to maintain and develop the most efficient means of allocating division personnel and other resources, particularly in emergency circumstances; and
    3. The need to design, construct, and maintain facilities from which the division's personnel and resources may be stationed and deployed;
  2. There is a need to continuously improve, upgrade, expand, and maintain the division's headquarters facilities and communication and information technology systems and equipment to support the police force and its mission to protect and serve the citizens of the state;
  3. A designated method of financing is necessary to enable the division to obtain and maintain communication and information technology equipment and headquarters facilities;
  4. The use of tax-exempt revenue bonds to finance communication and information technology equipment and headquarters facilities has proven to be an economical and cost-efficient method for financing equipment and facilities for the division;
  5. Certain driver's license fees have been pledged and utilized by the Department of Arkansas State Police or the Division of Arkansas State Police since 1997 to finance equipment and facilities for the department or division;
  6. These driver's license fees should continue to be designated as a source of funding to be utilized and pledged by the division to finance or purchase communication and information technology equipment and headquarters facilities;
  7. Communication and information technology equipment and headquarters facilities are needed to maintain modern law enforcement and are, therefore, essential to the safety and welfare of the people of the state; and
  8. The most feasible and least expensive way of providing a designated source for financing the acquisition and construction of headquarters facilities and communication and information technology equipment is to authorize the use of revenue bonds and designate certain driver license fees to be utilized and pledged for that purpose.

History. Acts 2015, No. 856, § 2; 2019, No. 910, § 5802.

Amendments. The 2019 amendment substituted “division” for “department” and made similar changes throughout the section; substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in the introductory language of (1); and, in (5), substituted “Department of Arkansas State Police or Division of Arkansas State Police” for “department” and added “or division” at the end.

12-8-603. Definitions.

As used in this subchapter:

  1. “Acquire” means to acquire by purchase or otherwise, construct, repair, alter, install, restore, or place on land or in a building or motor vehicle by negotiation or bidding on terms and conditions that:
    1. Are determined by the Arkansas State Police Commission to be in the best interests of the Division of Arkansas State Police; and
    2. Will most effectively serve the purposes of this subchapter;
  2. “Communication and information technology equipment” means:
    1. Wireless data and related technologies equipment, including without limitation workstations, modems, and other vehicle-based equipment, network controllers, computer-aided dispatch equipment, central information services sites with related server computers and controllers, software and information support;
    2. Furnishings and fixtures used in connection with the operation of equipment described in subdivision (2)(A) of this section; and
    3. Other equipment, property, and items determined by the commission to be necessary to accomplish the purpose of this subchapter;
  3. “Cost” means the costs related to a headquarters facility or communication and information technology equipment, including without limitation the following:
    1. The costs of the acquisition of communication and information technology equipment and the related costs, including without limitation engineering, architectural, consulting, and related services;
    2. The cost of acquiring an interest in real estate for the location of a headquarters facility that provides necessary or recommended access or buffer zones or that facilitates the delivery of utility services and the related costs, including without limitation engineering, architectural, consulting, and related services;
    3. The cost of the preparation of plans, specifications, studies, surveys, and estimates of cost and revenues;
    4. Other expenses necessary or incident to planning, providing, or determining the need for or the feasibility of the headquarters facility or communication and information technology equipment;
    5. The costs of related software for the operation and support of the communication and information technology equipment;
    6. The costs of database development and other information sources and the training required for the efficient use of communication and information technology equipment; and
    7. The costs paid or incurred in connection with the issuance of bonds by the Arkansas Development Finance Authority to finance the acquisition, development, upgrade, improvement, or expansion of a headquarters facility or communication and information technology equipment;
  4. “Debt service payment” means a payment to be made by the division from pledged revenues or other legally available sources to secure and provide for payments due on any bonds or other obligations issued by the authority to accomplish the purposes of this subchapter;
  5. “Financing documents” means a note and mortgage, loan agreement, lease purchase agreement, trust indenture, and related documents executed in connection with the issuance of bonds by the authority to finance headquarters facilities or communication and information technology equipment;
  6. “Headquarters facility” means part or all of one (1) or more items or properties used by the division to accomplish or facilitate its purposes, including without limitation:
    1. Land, buildings, fixtures, infrastructure, improvements, furniture, equipment, software, and personal property necessary or convenient to the land, buildings, fixtures, infrastructure, improvements, furniture, equipment, and software; and
    2. Engineering, design, construction, or architectural plans related to a property used by the division;
  7. “Pledged revenues” means the fees generated under § 27-16-801(a) and § 27-23-118(a)(3) that may be pledged for the security and payment of debt service payments under this subchapter; and
  8. “Purchase agreement” means an agreement entered into by the commission with a vendor to acquire a headquarters facility or communication and information technology equipment.

History. Acts 2015, No. 856, § 2; 2019, No. 910, §§ 5803, 5804.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (1)(A); and substituted “division” for “department” in the introductory language of (6) and in (6)(B).

12-8-604. Pledge of revenues.

The fees generated under § 27-16-801(a) and § 27-23-118(a)(3) shall be:

  1. Pledged to meet obligations authorized under this subchapter; and
  2. Used by the Division of Arkansas State Police as provided in this subchapter.

History. Acts 2015, No. 856, § 2; 2019, No. 910, § 5805.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (2).

12-8-605. Arkansas State Police Commission — Powers.

The Arkansas State Police Commission may:

  1. Acquire, construct, repair, renovate, alter, maintain, and equip headquarters facilities and communication and information technology equipment;
  2. Contract to acquire headquarters facilities and communication and information technology equipment on the terms and conditions specified by this subchapter and approved by the Director of the Division of Arkansas State Police with the consent of the commission;
  3. Provide for the payment of the costs associated with the acquisition of headquarters facilities and communication and information technology equipment from any legally available source, including without limitation pledged revenues and funds appropriated and made available under § 12-8-101 et seq.;
  4. Enter into financing documents and agreements with the Arkansas Development Finance Authority that are necessary and appropriate to secure obligations issued by the authority that will facilitate the acquisition of the headquarters facilities and communication and information technology equipment; and
  5. Take other action, not inconsistent with law, that may be necessary, convenient, or desirable to carry out the powers, purposes, and authority stated in this subchapter or to carry out the intent of this subchapter.

History. Acts 2015, No. 856, § 2; 2019, No. 910, § 5806.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (2).

12-8-606. Use of pledged revenues.

    1. The debt service payments and other costs relating to a headquarters facility or communication and information technology equipment shall be secured by a lien on and pledge of the pledged revenues.
    2. To the extent that pledged revenues are not required to make debt service payments, the pledged revenues shall be released to the Division of Arkansas State Police to provide operating funds as described in this section.
    1. All pledged revenues are cash funds restricted in their use and dedicated and to be used solely as provided in this subchapter.
    2. When pledged revenues are received by the Commissioner of Motor Vehicles, the Office of Motor Vehicle, the Division of Arkansas State Police, the Arkansas State Police Commission, the Department of Finance and Administration, or any other state agency, the pledged revenues shall be deposited as cash funds into a bank selected by the Division of Arkansas State Police to the credit of the Division of Arkansas State Police Financing Fund.
    1. On the date that the Arkansas Development Finance Authority issues bonds under this subchapter and the Arkansas Development Finance Authority Act, § 15-5-101 et seq., §§ 15-5-201 — 15-5-211, 15-5-213, and 15-5-301 — 15-5-316, any revenues in the Division of Arkansas State Police Financing Fund shall be pledged revenues.
    2. Debt service payments shall be paid from the Division of Arkansas State Police Financing Fund as stated in the financing documents.
      1. If all debt service payments have been properly made on the last day of each fiscal quarter, the pledged revenues remaining in the Division of Arkansas State Police Financing Fund shall be withdrawn from the Division of Arkansas State Police Financing Fund and deposited into the State Treasury as special revenues to the credit of the Division of Arkansas State Police Fund.
      2. However, if any debt service payments remain to be paid under this subchapter, all moneys in the Division of Arkansas State Police Financing Fund shall continue to be pledged to the debt service payments and other costs in connection with the bonds and the maintenance of reserves, notwithstanding the right of the Division of Arkansas State Police to withdraw funds on the last day of each fiscal quarter if debt service payments are current.
  1. If any debt service payments remain to be made, the General Assembly may modify or change the pledged revenues only if there are always maintained in effect and made available for the payment of debt service payments sources of revenue comparable in amount and time of receipt that produce revenues sufficient to provide for and secure debt service payments when due.

History. Acts 2015, No. 856, § 2; 2019, No. 910, § 5807.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” and made similar changes throughout the section.

12-8-607. Division of Arkansas State Police Financing Fund.

  1. There is created the Division of Arkansas State Police Financing Fund.
  2. The fund is a cash fund of the Division of Arkansas State Police and shall be used as provided in this subchapter.

History. Acts 2015, No. 856, § 2; 2019, No. 910, § 5808.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police Financing Fund” for “Department of Arkansas State Police Financing Fund” in the section heading and in (a); and substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (b).

12-8-608. Sunset.

This subchapter shall expire twenty (20) years from March 31, 2015.

History. Acts 2015, No. 856, § 2.

Chapter 9 Law Enforcement Officer Training and Standards

Research References

ALR.

Right of incarcerated mother to retain custody of infant in penal institution. 14 A.L.R.4th 748.

State regulation of conjugal or overnight familial visits in penal or correctional institutions. 29 A.L.R.4th 1216.

U. Ark. Little Rock L.J.

Survey, Criminal Procedure, 13 U. Ark. Little Rock L.J. 349.

Case Notes

Cited: Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991).

Subchapter 1 — Commission on Standards and Training

Effective Dates. Acts 1975, No. 452, § 13: Jan. 1, 1976.

Acts 1979, No. 642, § 3: Mar. 28, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present law relating to minimum standards for law enforcement officers a temporary or probationary employment may not be extended beyond one year; that this has created a serious hardship in some instances and it is urgent that some provision be made for permitting the extension of such temporary or probationary employment beyond one year in unusual circumstances and that this act is designed to accomplish this purpose. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 45, § 15: July 1, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the agencies, departments, and programs now performed through the Department of Public Safety could more efficiently and economically perform their respective duties and responsibilities through reorganized agencies and departments operating as separate entities; that substantial savings could be made by eliminating the central services of the Department of Public Safety; and that the immediate passage of this act is necessary to provide for advance planning for more efficient administration after the close of the current fiscal biennium of the various public safety programs of this state. Therefore, an emergency is hereby declared to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after July 1, 1981.”

Acts 1981, No. 427, § 8: July 1, 1981. Emergency clause provided: “It is hereby found and determined by the Seventy-Third General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1981 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1981 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1981.”

Acts 1983, No. 89, § 6: July 1, 1983. Emergency clause provided: “It is hereby found and determined by the Seventy-Fourth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1983 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1983 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1983.”

Acts 1983, Nos. 131 and 135, § 6: Feb. 10, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that state boards and commissions exist for the singular purpose of protecting the public health and welfare; that citizens over 60 years of age represent a significant percentage of the population; that it is necessary and proper that the older population be represented on such boards and commissions; that the operations of the boards and commissions have a profound effect on the daily lives of older Arkansans; and that the public voice of older citizens should not be muted as questions coming before such bodies. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 763, § 3: Mar. 24, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is confusion over the authority of municipal inspectors to issue citations for the violation of municipal codes, ordinances, and regulations. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 905, § 3: Mar. 28, 1983. Emergency clause provided: “With knowledge that there are law enforcement officers presently appointed or employed in this state who have been convicted of felony offenses and that there is ambiguity in the law with respect to what constitutes a conviction, and that the law enforcement officer is in a high position of public trust, and that this act is necessary for the protection of the public peace, health, and safety, this act shall be in full force and effect from and after its passage and approval.”

Acts 1989 (3rd Ex. Sess.), No. 44, § 5: Nov. 8, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that actions by law enforcement officers are being held invalid merely because the law enforcement officers fail to meet all law enforcement standards; that as a result, prosecution of many criminals is being thwarted; that criminals should not go unpunished merely because a law enforcement officer fails to meet all standards prescribed by the State; that this Act eliminates the language which invalidates action taken by such law enforcement officers; and that this Act should go into effect immediately in order to protect the safety and welfare of the citizens of this State. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 179, § 38: Feb. 17, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 10 of the First Extraordinary Session of 1995 abolished the Joint Interim Committee on Public Health, Welfare, and Labor and in its place established the House Interim Committee and Senate Interim Committee on Public Health, Welfare, and Labor; that various sections of the Arkansas Code refer to the Joint Interim Committee on Public Health, Welfare, and Labor and should be corrected to refer to the House and Senate Interim Committees on Public Health, Welfare, and Labor; that this act so provides; and that this act should go into effect immediately in order to make the laws compatible as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 1203, § 8: Apr. 8, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Arkansas Police Corps Program and Police Corps Scholarship Program, which are operated in large part under federal grants, do not conform with federal requirements and that failure to take immediate appropriate action could work irreparable harm upon the proper administration and provision of these programs. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1999, No. 1022, § 13: July 1, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1999 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1999 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1999.”

Acts 1999, No. 1247, § 5: Apr. 8, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that it is essential to the effective and efficient administration and enforcement of parking ordinances in municipalities that such municipalities be permitted to employ enforcement personnel who do not meet the certification requirements of the Arkansas Commission on Law Enforcement Standards or to contract for such services by noncertified enforcement personnel; that this act is designed to permit municipalities to employ or contract for the services and should be given effect immediately to enable municipalities to provide for the proper enforcement of such ordinances. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 509, § 2: Mar. 18, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the current law enforcement training standards do not require adequate training concerning sexual assault; that this bill requires such additional training; and that this bill is immediately necessary in order to provide the necessary training to our law enforcement officers as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2018, No. 202, § 12: July 1, 2018.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Case Notes

Applicability.

Since this subchapter applies only to appointed officers, constables, as officers “elected by a vote of the people,” are not subject to its provisions. Credit v. State, 25 Ark. App. 309, 758 S.W.2d 10 (1988).

12-9-101. Legislative determinations.

The General Assembly finds and determines that:

  1. The administration of criminal justice is of statewide concern and that law enforcement is important to the health, safety, and welfare of the people of this state;
  2. The state has a responsibility to ensure effective law enforcement by establishing minimum selection, training, and educational requirements for law enforcement officers and also to encourage advanced in-service training programs; and
  3. It is in the public interest that minimum levels of education and training be developed and made available to persons seeking to become law enforcement officers and to persons presently serving as law enforcement officers.

History. Acts 1975, No. 452, § 1; A.S.A. 1947, § 42-1001n.

Case Notes

Cited: City of Little Rock v. Tibbett, 301 Ark. 376, 784 S.W.2d 163 (1990); Johnson v. City of Kensett, 301 Ark. 592, 787 S.W.2d 651 (1990); Renshaw v. State, 303 Ark. 244, 795 S.W.2d 925 (1990); City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992).

12-9-102. Definitions.

As used in this subchapter:

  1. “Law enforcement agency” means:
    1. A private college or university law enforcement agency as described in § 12-20-101 et seq.;
    2. The Division of Law Enforcement Standards and Training and the Black River Technical College Law Enforcement Training Academy as designated under § 12-9-210; and
    3. Any other entity designated by law as a law enforcement agency;
  2. “Law enforcement officer” means an appointed law enforcement officer who is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic, or highway laws of this state, excluding only those officers who are elected by a vote of the people; and
  3. “Political subdivision” means any county, municipality, township, or other specific local unit of general government.

History. Acts 1975, No. 452, § 2; A.S.A. 1947, § 42-1001; Acts 1989, No. 25, § 2; 2017, No. 497, § 2; 2019, No. 910, § 5809.

Amendments. The 2017 amendment deleted former (1); added present (1); and made a stylistic change.

The 2019 amendment substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training” in (1)(B).

Cross References. Railroad police, § 23-12-701 et seq.

Case Notes

Law Enforcement Officer.

An appointed chief of police is a law enforcement officer, within the statutory definition, because he is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic, or highway laws of this state. Allen v. Titsworth, 279 Ark. 138, 649 S.W.2d 185 (1983).

The mere fact that employees of a police department are uniformed and wear badges does not automatically convert them into law enforcement officers. City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992).

Cited: Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987); Credit v. State, 25 Ark. App. 309, 758 S.W.2d 10 (1988).

12-9-103. Commission created — Members — Meetings — Director.

  1. The members of the Arkansas Commission on Law Enforcement Standards and Training shall consist of ten (10) members, to be appointed by the Governor with the advice and approval of the Senate.
      1. Two (2) members of the commission shall be chiefs of police of municipalities in Arkansas, two (2) members of the commission shall be county sheriffs of counties in this state, one (1) member shall be an officer of the Division of Arkansas State Police, two (2) members shall be appointed to represent the public, one (1) member shall be an educator in the field of criminal justice, and one (1) member shall represent the Arkansas Municipal Police Association.
      2. Each congressional district of the state shall be represented on the commission, with the remaining members to be appointed from the state at large.
      1. One (1) member shall not be actively engaged in or retired from law enforcement.
      2. The member under subdivision (b)(2)(A) of this section shall be:
        1. At least sixty (60) years of age and shall represent the elderly;
        2. Appointed from the state at large subject to confirmation by the Senate; and
        3. A full voting member.
  2. Members shall be appointed for terms of seven (7) years or until their successors are appointed and qualified.
  3. If a vacancy occurs on the commission due to death, resignation, or for other reason, the vacancy shall be filled by appointment by the Governor, in the same manner as provided for the initial appointment for the position, for the remainder of the unexpired portion of the term thereof.
  4. Members of the commission shall serve without compensation but may receive expense reimbursement in accordance with § 25-16-901 et seq.
  5. The commission shall meet at such times as may be provided by the rules of the commission, or upon call of the chair, or upon written request of any four (4) members.
    1. Upon recommendation of the commission, the Governor shall appoint the Director of the Division of Law Enforcement Standards and Training, who shall perform such duties as may be directed by the commission and who shall serve at the pleasure of the Governor.
    2. The director shall report to the Secretary of the Department of Public Safety.

History. Acts 1981, No. 45, § 7; 1983, No. 131, §§ 1-3, 5; 1983, No. 135, §§ 1-3, 5; A.S.A. 1947, §§ 6-623 — 6-626, 42-701.1; Acts 1993, No. 109, § 1; 1997, No. 250, § 65; 2009, No. 205, § 1; 2011, No. 283, § 1; 2017, No. 250, § 2; 2017, No. 497, § 3; 2019, No. 910, §§ 5810, 5811.

Publisher's Notes. In addition to enacting the general and permanent provisions codified in this section, Acts 1981, No. 45, § 7, abolished the Executive Commission on Law Enforcement Standards, which was created by Acts 1975, No. 452, § 5, and transferred all its powers, functions, duties, personnel, and funds to the Arkansas Commission on Law Enforcement Standards and Training.

It further provided that the act should not be construed so as to reduce any right which an employee of the Executive Commission on Law Enforcement Standards would have under any civil service or merit system.

The terms of the members of the Arkansas Commission on Law Enforcement Training and Standards, other than the representative of the elderly, are arranged so that one (1) term expires on January 14 of each year.

Amendments. The 2009 amendment substituted “ten (10)” for “nine (9)” in (a); in (b), inserted “one (1) member shall be an officer of the Department of Arkansas State Police” in (b)(1)(A), inserted “under subdivision (b)(2)(A) of this section” in (b)(2)(B); and made related and stylistic changes.

The 2011 amendment, in (b)(3), inserted “or his or her designee” and deleted “during his or her term of office as president of the association, and his or her successors shall likewise serve as full voting members of the commission” at the end; and deleted “Except for the president of the Arkansas Municipal Police Association” at the beginning of (c).

The 2017 amendment by No. 250 substituted “At least sixty (60)” for “Sixty (60)” in (b)(2)(B)(i).

The 2017 amendment by No. 497 inserted “members of the” in (a); in (b)(1)(A), inserted “and one (1) member shall represent the Arkansas Municipal Police Association”; substituted “At least sixty (60)” for “Sixty (60)” in (b)(2)(B)(i); and deleted (b)(3).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (b)(1)(A); and redesignated (g) as (g)(1), substituted “Director of the Division of Law Enforcement Standards and Training” for “Director of Law Enforcement Standards and Training” in (g)(1), and added (g)(2).

Case Notes

Cited: Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987).

12-9-104. Commission's powers generally.

In addition to powers conferred upon the Arkansas Commission on Law Enforcement Standards and Training elsewhere in this subchapter, the commission may:

    1. Promulgate rules for the administration of this subchapter.
    2. The rules promulgated by the commission shall not go into full force and effect until the commission seeks the advice of the Legislative Council and the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor or appropriate subcommittees of the Legislative Council and the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor;
  1. Require the submission of reports and information by police departments within this state;
    1. Establish minimum selection and training standards for admission to employment as a law enforcement officer or as a private college or university law enforcement officer.
    2. The minimum selection and training standards may take into account different requirements for urban and rural areas, full-time and part-time employment, and specialized police personnel;
  2. Establish minimum curriculum requirements for preparatory, in-service, and advanced courses and programs of schools operated by or for the state and political subdivisions for the specific purpose of training recruits as law enforcement officers;
  3. Consult and cooperate with counties, municipalities, agencies of this state, other governmental agencies, and with universities, colleges, junior colleges, community colleges, and other institutions or organizations concerning the development of police training schools and programs or courses of instruction;
  4. Approve institutions and facilities to be used by or for the state or any political subdivision of the state for the specific purpose of training law enforcement officers and recruits;
  5. Adopt rules and minimum standards for schools, including without limitation:
    1. The curriculum for:
      1. Probationary police officers, which shall be offered by all certified schools, including without limitation courses on:
        1. Accident investigation;
        2. Arrest;
        3. Civil rights;
        4. Court testimonies;
        5. Criminal law;
        6. Firearms training;
        7. First aid;
        8. Handling of juvenile offenders;
        9. Human relations;
        10. Law of criminal procedure;
        11. Law of evidence;
        12. Physical training;
        13. Race relations and sensitivity;
        14. Recognition of mental conditions that require immediate assistance and methods to safeguard and provide assistance to a person in need of mental treatment;
        15. Reports;
        16. Search and seizure;
        17. Statements;
        18. Techniques of obtaining physical evidence;
        19. Traffic control; and
        20. Vehicle and traffic law; and
      2. Certified police officers, including without limitation refresher and in-service training in:
        1. Any of the courses listed in subdivision (7)(A)(i) of this section;
        2. Advanced courses in any of the subjects listed in subdivision (7)(A)(i) of this section;
        3. Training for supervisory personnel; and
        4. Specialized training in subjects and fields to be selected by the commission;
    2. Minimum courses of study, attendance requirements, and equipment requirements;
    3. Minimum requirements for instructors; and
    4. Minimum basic training requirements that a probationary police officer must satisfactorily complete before being eligible for certification as a law enforcement officer;
  6. Make and encourage studies of any aspect of police administration;
  7. Conduct and stimulate research by public and private agencies designed to improve police administration and law enforcement;
  8. Make recommendations concerning matters within its purview pursuant to this subchapter;
  9. Make evaluations as may be necessary to determine if governmental units are complying with this subchapter;
  10. Adopt and amend bylaws, consistent with law, for the commission's internal management and control;
  11. Enter into contracts or do such things as may be necessary and incidental to the administration of this subchapter;
  12. Facilitate training of certified law enforcement officers pursuant to a memorandum of understanding between the State of Arkansas and the United States Department of Justice or the United States Department of Homeland Security concerning the enforcement of federal immigration laws;
  13. In consultation with the Arkansas Association of Chiefs of Police, develop and implement suggested selection and training requirements and nonmandatory basic and advanced levels of certification for chiefs of police;
  14. In consultation with the Arkansas Sheriffs' Association, develop and implement suggested training requirements and nonmandatory basic and advanced levels of certification for county sheriffs;
  15. Adopt rules to implement §§ 14-15-309 and 19-6-821; and
  16. Impose administrative penalties against a law enforcement agency or governmental entity for violations of commission rules as permitted under § 12-9-120.

History. Acts 1975, No. 452, § 6; 1981, No. 427, § 4; 1983, No. 89, § 3; A.S.A. 1947, §§ 42-701.2, 42-1005; Acts 1993, No. 110, § 1; 1997, No. 179, § 8; 2005, No. 907, § 2; 2009, No. 793, § 1; 2013, No. 168, § 1; 2013, No. 227, § 1; 2013, No. 551, § 2; 2017, No. 497, § 4.

Amendments. The 2005 amendment added (14) and made related changes.

The 2009 amendment added (15) and (16).

The 2013 amendment by No. 168 added (17).

The 2013 amendment by No. 227 added “or as a private college or university law enforcement officer” at the end of (3)(A)(i).

The 2013 amendment by No. 551 deleted “and regulations” following “rules” in (1)(A) and (1)(B); inserted “minimum selection and training” in (3)(A)(ii); substituted “training recruits as” for “training recruits for” in (4); rewrote the introductory language of (7) and the introductory language of (7)(A)(i) and (ii); deleted “the provisions of” preceding “this subchapter” in (11); substituted “the commission's” for “its” in (12); deleted “United States” preceding “Department of Homeland Security” in (14); added (17) (now (18)); and made stylistic changes.

The 2017 amendment redesignated former (3)(A)(i) and (ii) as (3)(A) and (3)(B); deleted former (3)(B); substituted “Certified” for “Permanent” in the introductory language of (7)(A)(ii); substituted “certification” for “permanent employment” in (7)(D); deleted former (17); redesignated former (18) as (17); substituted “19-6-821” for “19-6-819” in (17); and added present (18).

Case Notes

Cited: Gilbert v. City of Little Rock, 544 F. Supp. 1231 (E.D. Ark. 1982); Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987).

12-9-105. Employees.

The Division of Law Enforcement Standards and Training may employ such employees as are necessary to efficiently and effectively carry out this subchapter and as may be authorized by appropriations of the General Assembly.

History. Acts 1975, No. 452, § 7; A.S.A. 1947, § 42-1006; Acts 2011, No. 779, § 3; 2019, No. 910, § 5812.

Amendments. The 2011 amendment deleted “biennial” preceding “appropriations”.

The 2019 amendment substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training”.

Case Notes

Cited: Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987).

12-9-106. Selection and training requirements — Exceptions.

    1. The Arkansas Commission on Law Enforcement Standards and Training shall provide by rule that a person shall not be appointed as a law enforcement officer, except on a temporary basis not to exceed nine (9) months, unless the person has satisfactorily completed a program of police training at a school approved by the commission.
    2. If the executive body of the commission determines that extraordinary circumstances exist, the commission may approve an extension of temporary employment.
    1. In addition to the requirements of subsection (a) of this section and § 12-9-104(7), the commission, by rules, shall fix such other qualifications as it deems necessary.
    2. However, no person who pleads or is found guilty of a felony shall be eligible to be appointed or certified as a law enforcement officer.
  1. The commission shall issue a certificate evidencing satisfaction of the requirements of subsections (a) and (b) of this section to any applicant who presents such evidence as may be required by its rules of satisfactory completion of a program or course of instruction in this or another state conforming to the content and quality required by the commission for approved education and training.
  2. Nothing in this section shall be construed to preclude any employing agency from establishing qualifications and standards for hiring, training, compensating, or promoting law enforcement officers that exceed those set by the commission.
    1. Law enforcement officers already serving under full-time permanent appointment on December 31, 1977, shall not be required to meet the requirements of subsections (a) and (b) of this section as a condition of tenure or continued employment, nor shall failure of any such law enforcement officer to fulfill the requirements make him or her ineligible.
    2. Law enforcement officers employed prior to January 1, 1976, may continue their employment and participate in training programs on a voluntary or assigned basis, but failure to meet standards shall not be grounds for their dismissal or termination of employment. Subsequent termination of employment, whether voluntary or involuntary, shall not result in revocation of this exclusion status but such officers shall have the same powers, privileges, and rights and shall be subject to the same rules and restrictions as are applicable to officers whose certification is based on formal training.
    3. Personnel of law enforcement agencies whose status as to coverage under this subchapter is questionable on December 31, 1977, but who are subsequently determined to be subject thereto, shall have an effective date of compliance enforcement as set by the commission, and personnel employed prior to that date shall be excluded from mandatory compliance therewith.

History. Acts 1975, No. 452, § 8; 1979, No. 642, § 1; 1983, No. 905, § 1; A.S.A. 1947, § 42-1007; Acts 1999, No. 1472, § 1; 2009, No. 793, § 2; 2013, No. 1061, § 1; 2017, No. 497, § 5; 2019, No. 315, §§ 851, 852.

Amendments. The 2009 amendment, in (a)(1), substituted “rule” for “regulation” and inserted “or probationary”; subdivided (a)(2); inserted “or background investigation” in (a)(2)(A); and in (a)(2)(B), inserted “If the executive body of the commission determines under subdivision (a)(2)(A) of this section that extraordinary circumstances exist” and substituted “temporary or probationary employment” for “probation”; and made related and minor stylistic changes.

The 2013 amendment deleted “or probationary” following “temporary” throughout (a).

The 2017 amendment, in (a)(1), substituted “nine (9) months” for “one (1) year” and deleted “preparatory” preceding “program”; deleted former (a)(2)(A) and redesignated former (a)(2)(B) as (a)(2); in (a)(2), deleted “under subdivision (a)(2)(A) of this section” following “determines” and “for no more than an eight-month period” at the end.

The 2019 amendment substituted “rule” for “rules and regulations” in (b)(1); and deleted “and regulations” following “rules” in (c).

Cross References. County sheriff as law enforcement officer, § 12-9-112.

Case Notes

Constitutionality.

While § 12-9-108 does not itemize the standards required, the standards are not unconstitutionally vague because they are either set out under this section in particular or as part of the commission rules. McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991).

Bond.

There is no requirement under this section that officers be bonded in order to lawfully execute their duties. Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989).

Grandfather Clause.

Where a supervising officer testified he had been employed continuously as a full-time police officer for the past fourteen years at various police departments, and on cross-examination stated there had been one interval of three weeks between the time he worked for two cities, but was not asked whether he was on some type of leave during this period, it could not be said that his testimony that he had been continuously employed as a policeman was in error. King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991).

Supreme Court did not need to determine whether the trial court was clearly erroneous in finding of fact that the personnel file belonging to the arresting auxiliary officer's supervising officer contained a diploma and physical report as required under minimum standards set by the Commission on Law Enforcement Standards and Training, because, even if it did not, the supervising officer was grandfathered in by subdivision (e)(1). King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991).

Cited: Smith v. State, 278 Ark. 462, 648 S.W.2d 792 (1983); Karr v. Townsend, 606 F. Supp. 1121 (W.D. Ark. 1985); Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987); Pipes v. State, 22 Ark. App. 235, 738 S.W.2d 423 (1987); Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989); Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991); City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992).

12-9-107. Training programs.

    1. For the purpose of this subchapter, the Division of Law Enforcement Standards and Training may cooperate with federal, state, and local law enforcement agencies in establishing and conducting instruction and training programs for law enforcement officers of this state, its counties, and municipalities.
    2. Cooperation under subdivision (a)(1) of this section may include without limitation the use of any training facility, equipment, or personnel to conduct training or provide services for any law enforcement or public safety purpose.
  1. The division shall establish and maintain police training programs through such agencies and institutions as the division may deem appropriate to carry out the intent of this subchapter.
  2. The division shall work with each state agency and political subdivision that adheres to the selection and training standards established by the division to provide allowable tuition, living, and training expenses incurred by the officers in attendance at approved training programs.
    1. It is the intent of this subchapter that the expenses of attending the approved training programs established under subsection (c) of this section shall be furnished by the state through the division or any other manner that may be prescribed by the division, and no cost or charge shall be made to any local political subdivision for the actual cost of the training.
    2. The state shall not be liable for the travel cost or any salary in connection with attending any training program.
    3. The division may accept reimbursement from any public or private entity for the use of its training facilities, equipment, or personnel during the providing of services.
  3. The expenses of attending training provided pursuant to a memorandum of understanding between the State of Arkansas and the United States Department of Justice or the United States Department of Homeland Security shall be paid in accordance with the provisions of § 12-8-104.
  4. The division shall administer the training and certification program for court security officers under the Arkansas Court Security Act, § 16-10-1001 et seq.
    1. Persons such as doctors, nurses, firefighters, first responders, or other medical personnel, persons engaged in homeland security, or persons otherwise engaged in assisting in the protection of public welfare and safety who are not law enforcement personnel may attend training or receive instruction at the invitation of the division.
    2. The division may assess a fee on a person invited to attend training or receive instruction under this subsection to reimburse the division for costs associated with the training or instruction under this subsection.

History. Acts 1975, No. 452, § 9; A.S.A. 1947, § 42-1008; Acts 1997, No. 1203, § 4; 2005, No. 907, § 3; 2007, No. 576, § 2; 2011, No. 188, § 1; 2017, No. 497, § 6; 2019, No. 910, § 5813.

A.C.R.C. Notes. Acts 2007, No. 576, § 3, provided:

“The General Assembly recommends:

“(1) That the Supreme Court develop a comprehensive policy on security and emergency preparedness for the judicial branch of the government;

“(2) That the Supreme Court establish standards for every county for the development of a local security and emergency preparedness plan for circuit courts in the county and establish standards for every city in which a district court is located for the development of a local security and emergency preparedness plan for district courts in the city; and

“(3)(A) That the Supreme Court create a Security and Emergency Preparedness Advisory Committee.

“(B) The committee should be inclusive of judges, law enforcement officers, sheriffs, city and county executive officers, emergency preparedness officials, legislators, and others involved in providing security to the courts.

“(C) Legislative representation on the committee should be appointed by the Speaker of the House of Representatives and the President Pro Tempore of the Senate.”

Amendments. The 2005 amendment added (e).

The 2007 amendment added (f).

The 2011 amendment redesignated former (a) as present (a)(1) and added (a)(2); substituted “Arkansas Law Enforcement Training Academy” for “law enforcement training academy” in (d)(1); and added (d)(3), (g)(1) and (g)(2).

The 2017 amendment deleted “including provision for training participants under twenty-one (21) years of age in the Arkansas Police Corps Scholarship Program” at the end of (b).

The 2019 amendment substituted “division” for “commission” throughout the section; substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training” in (a)(1); and substituted “division” for “Arkansas Law Enforcement Training Academy” in (d)(1).

Case Notes

Cited: Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987).

12-9-108. Failure to meet qualifications — Effect — Exemptions.

    1. Actions taken by law enforcement officers who do not meet all of the standards and qualifications set forth in this subchapter or made by the Arkansas Commission on Law Enforcement Standards and Training shall not be held invalid merely because of the failure to meet the standards and qualifications.
      1. The Director of Law Enforcement Standards and Training may temporarily suspend a law enforcement officer's ability to act as a law enforcement officer for failure to meet the standards or qualifications under this subchapter until the failure is corrected or pending review by the commission.
      2. Notification of a suspension under subdivision (a)(2)(A) of this section shall be made in a timely manner to the administrator of the law enforcement agency by which the law enforcement officer is employed.
    1. Nothing in this subchapter or any requirements made by the commission shall prevent any action by a private citizen that is now authorized by law.
    2. No provision of this subchapter shall affect the deputizing of a private citizen by a law enforcement officer in a time of a disaster or emergency.
    3. Nothing in this subchapter or any other law shall prohibit inspectors and code enforcement officers of cities, towns, or counties from issuing citations for the violation of municipal or county codes, ordinances, or regulations that they are charged by their city, town, or county with the duty of enforcing.
      1. Cities of the first class, cities of the second class, and incorporated towns are authorized to employ persons or to contract with private or public corporations, associations, or other entities, whether charitable, nonprofit, or for profit, that employ persons who do not meet certification requirements prescribed by the commission to enforce and execute any or all provisions of a municipal parking enforcement ordinance, including, but not limited to, the issuance of citations, the collection of fines, and any other parking enforcement process or procedure as may be established by ordinance of the municipality.
      2. Persons employed under this subdivision (b)(4) shall not carry firearms nor take any other official law enforcing action except that enumerated in subdivision (b)(4)(A) of this section.

History. Acts 1975, No. 452, § 10; 1983, No. 763, § 1; 1985, No. 580, §§ 1, 2; A.S.A. 1947, §§ 19-4912, 19-4913, 42-1009; Acts 1989 (3rd Ex. Sess.), No. 44, § 1; 1999, No. 1247, § 1; 2009, No. 204, § 1; 2017, No. 497, § 7.

Publisher's Notes. Acts 1989 (3rd Ex. Sess.), No. 44, § 2, provided:

“It is hereby the intent of the General Assembly by amending the minimum standards for law enforcement officials, ab initio, that actions taken by law enforcement officers that are pending before any Court, Grand Jury, Department, Officer, Agency, Regulatory Body, Legislative Committee, or other authority of the United States, a State, or a Politicial Subdivision shall not be held invalid merely because of the failure to meet the standards and qualifications.”

Amendments. The 2009 amendment inserted “or counties” once and “or county” twice in (b)(3), and made related changes.

The 2017 amendment redesignated former (a) as (a)(1); and added (a)(2).

Research References

U. Ark. Little Rock L.J.

Survey, Criminal Law, 12 U. Ark. Little Rock L.J. 617.

Case Notes

Note. Some cases noted below were decided under former version of this section before the 1989 amendment.

Constitutionality.

The retroactive application of Acts 1989, No. 44, which amended subsection (a) to provide that action taken by non-qualified officers “shall not be held invalid”, does not violate the ex post facto clause because: 1) it does not punish as a crime an act previously committed, which was innocent when done; 2) it does not make more burdensome the punishment for a crime, after its commission; 3) it does not alter a legal rule of evidence to receive less or different testimony than was required at the time of the commission of the offense; and 4) it does not deprive a defendant of any defense available according to at the time when the act was committed. Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991); Mitchell v. State, 306 Ark. 383, 814 S.W.2d 904 (1991).

While this section does not itemize the standards required, the standards are not unconstitutionally vague because they are either set out under § 12-9-106 in particular or as part of the commission rules. McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991).

The retroactive application of Acts 1989, No. 44 was not prohibited by the ex post facto clauses of our federal and state constitutions where defendant was arrested on February 11, 1989, and his motion to dismiss was denied on August 17, 1989, but the trial was held on October 16, 1990, and judgment was entered on October 22, 1990; therefore, the case was pending when Acts 1989, No. 44 was enacted. Ellis v. State, 306 Ark. 461, 816 S.W.2d 164 (1991).

Construction.

This section deals with standards for employment. It does not deal with police conduct. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

Subsection (a) applies to “all of the standards,” leaving no room for an interpretation that makes a distinction between employment standards and training standards. Harshaw v. State, 313 Ark. 51, 852 S.W.2d 318 (1993).

Purpose.

The goal of this section and the goal of the exclusionary rule are different. The goal of this section is to compel police department administrators to check the backgrounds of those seeking to become officers, and to hire only psychologically qualified persons to serve as policemen, whereas, the exclusionary rule is designed to deter unlawful police conduct and compels respect for the Fourth Amendment by removing the incentive to disregard it. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990); Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991).

Applicability.

Application of section, as amended in 1989, to a case pending at the time of the amendment, was not a violation of the prohibition against ex post facto laws. Harbour v. State, 305 Ark. 316, 807 S.W.2d 663 (1991).

It was proper to apply this section as amended by Acts 1989, No. 44, which removed the strictures previously invalidating actions taken by officers not meeting the commission's qualifications, to cases pending at the time Act 44 was enacted. Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991).

Actions by Others.

This section provides that action taken by an unqualified person “shall be held as invalid.” It does not indicate that actions taken by others should be held invalid or that an exclusionary rule should be applied. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

Authority to Arrest.

Section 16-81-106 and this section are repugnant in that § 16-81-106 provides that only certified law enforcement officers have the authority to make arrests, while this section provides that it does not matter whether officers are certified in order to make a valid arrest; however, that limited difference did not repeal the authority of law enforcement officers to make arrests, and a law officer who is vested with the authority to make arrests can issue citations. McDaniel v. State, 309 Ark. 20, 826 S.W.2d 286 (1992).

Bond.

There is no requirement under this section that officers be bonded in order to lawfully execute their duties. Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989).

Competency as Witness.

Law enforcement officers are not disqualified as witnesses based on whether they have met the criteria set forth by regulations promulgated by the Arkansas Commission on Law Enforcement Standards and Training. A person is presumed to be competent to be a witness. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).

Date of Compliance.

Subsection (a) does not invalidate any action taken by a police officer if the officer was not hired in compliance with the minimum standards set by the commission, as such an interpretation would place police departments in the impossible position of never being able to rectify an erroneous hiring practice from previous years. Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990).

While deputy had not met commission standards when he was hired in 1982 because the results of the federal fingerprint search were not placed in his file as required by regulation of the commission, that deficiency was corrected by 1984 and from that point on, deputy was in compliance with the commission's standards. Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990).

Exclusionary Rule.

After the 1989 amendment to subsection (a) of this section, the exclusionary rule no longer applied in cases involving officers who were not qualified. Harshaw v. State, 313 Ark. 51, 852 S.W.2d 318 (1993).

Failure to Be Certified.

Chief of police who was not certified during part of tenure could not validly act as law enforcement officer during that period; however, where he was validly employed by the city, his salary was reasonable, and he acted in good faith, the city was not entitled to a refund of the compensation paid him during the period of noncertification. Allen v. Titsworth, 279 Ark. 138, 649 S.W.2d 185 (1983).

The exclusionary rule should not be applied in a situation involving both qualified and unqualified officers; thus, where several law enforcement officials participated in defendant's arrest and at least one of them was properly qualified to so participate there was a valid arrest. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

Invalid Arrest.

Defendant's conviction was not overturned where arrest was invalid because arresting deputy had not completed the training required by § 12-9-106, because an invalid arrest may call for the suppression of a confession or other evidence, but it does not entitle the defendant to be discharged from responsibility for the offense. Pipes v. State, 22 Ark. App. 235, 738 S.W.2d 423 (1987).

Arrests of the defendants were not invalidated merely because the arresting officers' file failed to contain the specified medical forms required by the commission. Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991).

Police Misconduct.

Where none of the five arresting officers met the minimum employment standards established by the Arkansas Commission on Law Enforcement Standards and Training the exclusionary rule need not be applied where there is no police misconduct. State v. Henry, 304 Ark. 339, 802 S.W.2d 448 (1991).

Proof of Compliance.

Where the trial court denied the defendant's request to examine the arresting officers' personnel files but then held the officers to be properly qualified, there was no prejudice to defendant, and thus no grounds for reversal, since the officer's compliance or noncompliance with the standards was established through testimony. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

Prosecutor's Information.

Where arresting officer's psychological report did not contain recommendations pursuant to Commission on Law Enforcement Standards and Training regulations, his arrest of defendant was invalid. Freeman v. City of DeWitt, 301 Ark. 581, 787 S.W.2d 658 (1990).

Since a fingerprint check to disclose any criminal record pursuant to minimum standards for employment or appointment is mandatory rather than directory and the arresting officer's fingerprint check was completed but lost and he was hired “in the dark,” his arrest of defendant was invalid. Johnson v. City of Kensett, 301 Ark. 592, 787 S.W.2d 651 (1990).

Where the charges asserted against the defendant were by prosecutor's information and not an officer's citation, and even though the officer had made an initial arrest of the defendant on another minor traffic offense, the validity of the charging instrument and the exclusionary rule were not involved. Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990).

Valid Arrest.

Pursuant to subsection (a), arrest by campus patrolman was not invalid although the patrolman's FBI fingerprint check had not been completed, and he had therefore not satisfied the minimum law enforcement standards when he arrested the defendant. Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991).

Cited: Smith v. State, 278 Ark. 462, 648 S.W.2d 792 (1983); Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987); Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990); Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990); King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991); Whitaker v. State, 37 Ark. App. 112, 825 S.W.2d 827 (1992).

12-9-109. Legal counsel.

The Attorney General shall serve as legal counsel to the Arkansas Commission on Law Enforcement Standards and Training, but he or she may designate one (1) or more members of his or her staff to provide legal service to the commission.

History. Acts 1975, No. 452, § 3; A.S.A. 1947, § 42-1002.

12-9-110. Training of civilians to file parking violations and traffic accident reports.

  1. The Arkansas Commission on Law Enforcement Standards and Training shall by rule establish the qualifications including minimum training standards for persons performing law enforcement-related duties pursuant to this section within cities of the first class and within other areas of the State of Arkansas for cadets that are appointed by the Director of the Division of Arkansas State Police.
  2. Municipal police departments of cities of the first class and the Division of Arkansas State Police may employ persons who do not meet certification requirements prescribed by the commission, and the persons may:
    1. Issue citations for parking violations occurring within their respective jurisdictions; and
    2. Prepare traffic accident reports and issue any related traffic citations.
  3. Persons employed under this section shall not carry firearms or take any other official law enforcement action except as prescribed by this section.
    1. Persons performing law enforcement duties pursuant to this section shall complete all training and meet all minimum standards prescribed by the commission for the exercise of that authority.
    2. However, the division and cities of the first class may establish more stringent training requirements.

History. Acts 1995, No. 910, § 1; 2001, No. 250, § 1; 2003, No. 1111, § 1; 2007, No. 137, § 1; 2019, No. 315, § 853; 2019, No. 910, §§ 5814-5816.

Publisher's Notes. Former § 12-9-110, concerning the Advisory Board on Law Enforcement Standards and Training, was repealed by Acts 1989, No. 25 § 3. The former section was derived from Acts 1975, No. 452, §§ 3, 4; 1981, No. 45, § 7; A.S.A. 1947, §§ 42-701.1, 42-1002, 42-1003.

Amendments. The 2007 amendment, in (b), substituted “Municipal police departments of cities” for “Cities” and Arkansas Commission on Law Enforcement Standards and Training” for “commission”; and added “and issue any related traffic citations” at the end of (b)(2).

The 2019 amendment by No. 315 substituted “rule” for “regulation” in (a).

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a) and (b); and “division” for “department” in (d)(2).

12-9-111. Uniforms.

  1. The Arkansas Commission on Law Enforcement Standards and Training is exempt from § 19-6-109(c) for the purpose of buying uniforms for students and law enforcement officers employed by the Division of Law Enforcement Standards and Training.
  2. The amount spent for the purchase of uniforms under subsection (a) of this section in any one (1) year is limited to forty thousand dollars ($40,000).

History. Acts 1999, No. 1022, § 7; 2017, No. 497, § 8; 2018, No. 202, § 9; 2019, No. 910, § 5817.

Amendments. The 2017 amendment added “and law enforcement officers employed by the commission” at the end of (a).

The 2018 amendment, in (a), deleted “After seeking prior review by the Legislative Council or Joint Budget Committee and approval by the Chief Fiscal Officer of the State” from the beginning and substituted “is” for “shall be”; and, in (b), inserted “under subsection (a) of this section” and substituted “is” for “shall be”.

The 2019 amendment substituted “Division of Law Enforcement Standards and Training” for “commission” in (a).

Effective Dates. Acts 2018, No. 202, § 12: July 1, 2018.

12-9-112. County sheriff as law enforcement officer.

A former county sheriff of a county who has served as county sheriff within that county for at least eight (8) years and who meets all minimum hiring standards prescribed by the Arkansas Commission on Law Enforcement Standards and Training is qualified to be employed as a law enforcement officer with a municipality, county, or state board.

History. Acts 1999, No. 1472, § 2; 2015, No. 1045, § 1.

Amendments. The 2015 amendment substituted “eight (8) years” for “ten (10) years”, inserted “and who meets all minimum hiring standards prescribed by the Arkansas Commission on Law Enforcement Standards and Training”, substituted “is qualified” for “shall be deemed qualified”, and substituted “with a municipality, county, or state board” for “for any municipality located within that county, notwithstanding any law or regulation to the contrary”.

Cross References. Selection and training requirements — Exceptions, § 12-9-106.

12-9-113. Domestic violence training.

    1. In accordance with the certification requirements of the Arkansas Commission on Law Enforcement Standards and Training for law enforcement officers, all new law enforcement officers in the State of Arkansas shall complete at least twenty (20) hours of training in domestic violence and twenty (20) hours of training in child abuse.
    2. Practicum training will also be sufficient for this requirement.
  1. Pertaining to domestic abuse, the topics that shall be covered are:
    1. The dynamics of domestic abuse;
    2. The Domestic Abuse Act of 1991, § 9-15-101 et seq.;
    3. Domestic abuse victim interview techniques;
    4. Supportive services available; and
    5. Pro-arrest guidelines and drawbacks of dual arrest and practices to promote the safety of officers.
  2. Pertaining to child abuse victim interview techniques, the topics that shall be covered are:
    1. Current law, including the Child Maltreatment Act, § 12-18-101 et seq., and the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.;
    2. Child sexual abuse; and
    3. Physical and behavioral indicators.

History. Acts 2001, No. 1452, § 1; 2009, No. 758, § 22.

A.C.R.C. Notes. As enacted, subdivision (a)(1) contained the phrase “effective September 1, 2001” immediately preceding “all new law enforcement officers.”

Acts 2009, No. 758, § 29, provided:

“Contingent Effectiveness. This act shall not become effective unless an act of the Eighty-Seventh General Assembly repealing the Arkansas Child Maltreatment Act, § 12-12-501 et seq., and enacting a new Child Maltreatment Act, § 12-18-101 et seq., becomes effective.”

The contingency in Acts 2009, No. 758, § 29, was met by Acts 2009, No. 749.

Amendments. The 2009 amendment substituted “Child Maltreatment Act, § 12-18-101 et seq.” for “Arkansas Child Maltreatment Act, § 12-12-501 et seq.” in (c)(1).

12-9-114. Training concerning sexual assaults.

    1. The Arkansas Commission on Law Enforcement Standards and Training shall require all law enforcement officers to complete a minimum of twenty (20) hours of training concerning sexual assaults as a part of the basic police training course curriculum.
    2. Practicum training will be sufficient for this requirement.
  1. At a minimum, the training shall cover the following topics:
    1. The dynamics of sexual assault;
    2. The laws concerning sexual assault;
    3. Sexual assault victim interview techniques; and
    4. Support services available to sexual assault victims.

History. Acts 2003, No. 509, § 1.

Cross References. Sexual offenses, § 5-14-101 et seq.

Case Notes

Scope of Duty to Train.

This section did not impose a duty on a county to train its officers not to sexually assault detainees. First, the statute did not create a duty for the county to train its officers on the laws concerning sexual assault and instead mandated that the subject be included in basic training, and second, even if the statute did imply that the county had a duty to ensure its officers were trained on the laws concerning sexual assault, that obligation did not require that the county train its officers not to violate those laws, nor did it require that officers be trained on which violations constituted felonies. Parrish v. Ball, 594 F.3d 993 (8th Cir. 2010).

12-9-115. Training for constables.

After consultation with the Arkansas Constables Association, Inc., the Division of Law Enforcement Standards and Training shall develop and certify a training course of one hundred ten (110) hours to one hundred sixty (160) hours for constables in accordance with § 14-14-1314.

History. Acts 2007, No. 841, § 3; 2017, No. 497, § 9; 2019, No. 910, § 5818.

Amendments. The 2017 amendment inserted “and certify”, substituted “one hundred ten (110)” for “one hundred twenty (120)”, and substituted “for constables in accordance with § 14-14-1314” for “for certifying new constables”.

The 2019 amendment substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training”.

Cross References. Access to criminal history records, § 12-12-211.

Constable training requirements and uniform requirements, § 14-14-1314.

12-9-116. Persons with disabilities training.

    1. In accordance with the certification requirements of the Arkansas Commission on Law Enforcement Standards and Training for law enforcement officers, all law enforcement officers in the state shall complete additional continuing education and training as needed relating to persons with disabilities in a law enforcement context.
    2. Practicum training shall also be sufficient for the requirement under subdivision (a)(1) of this section.
  1. Training under subsection (a) of this section shall include without limitation:
    1. The dynamics of relating to a person with a disability;
    2. Interview techniques;
    3. Available supportive services; and
    4. Pro-arrest guidelines and drawbacks of dual arrest and practices to promote the safety of law enforcement officers.

History. Acts 2011, No. 1199, § 1.

12-9-117. Award of pistol upon retirement or death of a certified law enforcement officer employed by the division.

  1. When a certified law enforcement officer employed by the Division of Law Enforcement Standards and Training or a state-funded law enforcement training academy retires from service or dies while still employed with the division or the state-funded law enforcement training academy, in recognition of and appreciation for the service of the retiring or deceased certified law enforcement officer, the division or the state-funded law enforcement training academy may award the pistol carried by the certified law enforcement officer at the time of his or her death or retirement from service to:
    1. The certified law enforcement officer; or
    2. The certified law enforcement officer's spouse if the spouse is eligible under applicable state and federal laws to possess a firearm.
    1. A certified law enforcement officer employed by the division or a state-funded law enforcement training academy may retain his or her pistol he or she carried at the time of his or her retirement from service.
    2. If the certified law enforcement officer dies while he or she is employed by the division or a state-funded law enforcement training academy, his or her spouse may receive or retain the pistol carried by the certified law enforcement officer at the time of his or her death, if the spouse is eligible under applicable state and federal laws to possess a firearm.

History. Acts 2015, No. 391, § 1; 2017, No. 183, § 1; 2017, No. 845, § 1; 2019, No. 910, § 5819.

A.C.R.C. Notes. Acts 2015, No. 391, § 2, provided: “Applicability. This act applies to a certified law enforcement officer who retired or died on or after January 1, 2014.”

Pursuant to Acts 2017, No. 845, § 6, this section is set out as amended by Acts 2017, No. 183, § 1. Acts 2017, No. 845, § 1, would have repealed subsection (b) of this section.

Acts 2017, No. 845, § 6, provided: “CONSTRUCTION AND LEGISLATIVE INTENT.

It is the intent of the General Assembly that:

“(1) The enactment and adoption of this act shall not expressly or impliedly repeal an act passed during the regular session of the Ninety-First General Assembly;

“(2) To the extent that a conflict exists between an act of the regular session of the Ninety-First General Assembly and this act:

“(A) The act of the regular session of the Ninety-First General Assembly shall be treated as a subsequent act passed by the General Assembly for the purpose of:

“(i) Giving the act of the regular session of the Ninety-First General Assembly its full force and effect; and

“(ii) Amending or repealing the appropriate parts of the Arkansas Code of 1987; and

“(B) Section 1-2-107 shall not apply; and

“(3) This act shall make only technical, not substantive, changes to the Arkansas Code of 1987.”

Amendments. The 2017 amendment by No. 183 inserted “or a state-funded law enforcement training academy” and similar language throughout the section.

The 2017 amendment by No. 845 deleted the (a) designation and deleted (b).

The 2019 amendment substituted “division” for “commission” in the section heading and throughout the section; and substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training” in the introductory language of (a).

12-9-118. New or inactive law enforcement agency — Approval by commission required — Definition.

  1. As used in this section, “inactive law enforcement agency” means a law enforcement agency that existed and operated under a state law or local ordinance in the past but that currently does not exist or has not operated for at least one (1) year.
  2. The chief executive officer of an entity authorized by law to create a new law enforcement agency or reactivate an inactive law enforcement agency shall appear before the Arkansas Commission on Law Enforcement Standards and Training to request the creation of the new law enforcement agency or reactivation of the inactive law enforcement agency and present the law and documentation regarding:
    1. The funding mechanism, funding source or sources, and current budget proposal for the law enforcement agency;
    2. The proposed or enacted law enforcement agency policies, including without limitation policies regarding:
      1. Use of force;
      2. Vehicle pursuit;
      3. Professional conduct of law enforcement officers to be employed by the law enforcement agency; and
      4. Biased-based policing;
    3. The administrative structure and organizational chart of the law enforcement agency; and
    4. Any other information or documentation required by the commission.
  3. After the appearance and presentation under subsection (b) of this section, the commission shall approve or disapprove the request to create the new law enforcement agency or reactivate the inactive law enforcement agency.

History. Acts 2017, No. 378, § 1; 2019, No. 151, § 1.

Amendments. The 2019 amendment inserted “state law or” in (a); and, in the introductory language of (b), substituted “by law” for “by ordinance” and “the law and” for “the ordinance and”.

12-9-119. Behavioral health crisis intervention training.

    1. In accordance with the certification requirements of the Arkansas Commission on Law Enforcement Standards and Training for law enforcement officers, a law enforcement officer enrolled in a commission-certified basic police training academy shall complete at least sixteen (16) hours of training relating to behavioral health crisis intervention in a law enforcement context.
    2. Practicum training is sufficient for the requirement under subdivision (a)(1) of this section.
  1. Training under subsection (a) of this section shall include without limitation:
    1. The dynamics of relating to an individual:
      1. With a behavioral health impairment as defined in § 20-47-803;
      2. Who has demonstrated a substantial likelihood of committing bodily harm against himself or herself;
      3. Who has demonstrated a substantial likelihood of committing bodily harm against another person; or
      4. Who is under the influence of alcohol or a controlled substance to the extent that the individual's judgment and decision-making process is impaired;
    2. Available mental health service providers and support services;
    3. The voluntary and involuntary commitment process;
    4. Law enforcement interaction with hospitals, mental health professionals, the judiciary, and the mental health services community; and
    5. Practices to promote the safety of law enforcement officers and the public.
  2. The commission shall certify:
    1. Specialized training for qualified law enforcement officers of at least eight (8) hours; and
      1. Crisis intervention team training of at least forty (40) hours taught over five (5) consecutive days.
      2. Crisis intervention team training under subdivision (c)(2)(A) of this section shall emphasize understanding of behavioral impairments and mental illnesses and shall incorporate the development of communication skills, practical experience, and role-playing.
      3. Participants in the crisis intervention team training under subdivision (c)(2)(A) of this section shall be introduced to mental health professionals, consumers, and family members in both the classroom and through onsite visits.
    1. A local law enforcement agency, including a county sheriff's office, but not a municipal law enforcement agency that employs less than ten (10) full-time law enforcement officers, shall employ at least one (1) law enforcement officer who has completed within eighteen (18) months of August 1, 2017, the crisis intervention team training as described under subdivision (c)(2) of this section.
    2. A local law enforcement agency, including a county sheriff's office, is encouraged to:
      1. Have at least twenty percent (20%) of the certified law enforcement officers that it employs complete the crisis intervention team training offered under subdivision (c)(2) of this section;
      2. Develop and implement a model policy addressing law enforcement response to persons affected by a behavioral impairment; and
      3. Establish a clearly defined and sustainable partnership with one (1) or more community mental health organizations.
  3. All training required under this section and the curriculum for the training shall be developed by the Division of Law Enforcement Standards and Training, in collaboration with the Criminal Justice Institute.

History. Acts 2017, No. 423, § 7; 2019, No. 910, § 5820.

Amendments. The 2019 amendment substituted “Division of Law Enforcement Standards and Training” for “commission” in (e).

12-9-120. Imposition of administrative penalties.

  1. When determining the amount of an administrative penalty assessed against a law enforcement agency or governmental entity under subsection (b) of this section for violation of a rule of the Arkansas Commission on Law Enforcement Standards and Training, the commission shall consider:
    1. The seriousness of the violation;
    2. The law enforcement agency's or governmental entity's history of violations;
    3. The amount the commission believes is necessary to deter future similar violations;
    4. Efforts made by the law enforcement agency or governmental entity to correct the violation, including the immediacy and degree of corrective action; and
    5. Any other consideration that the commission believes important.
    1. An administrative penalty may be assessed under this section in the following amounts:
      1. For appointing a person who does not meet minimum standards as a law enforcement officer, an administrative penalty of no more than one thousand dollars ($1,000); and
      2. For failing to timely submit any required appointment or separation documents, an administrative penalty of no more than three hundred fifty dollars ($350).
    2. The administrative penalties authorized under this subsection may be assessed on a per-day basis, with each day considered a separate violation.
  2. The presence of mitigating factors does not require the commission to dismiss a violation of commission rules.
    1. The Director of Law Enforcement Standards and Training may enter into an agreed-upon order concerning administrative penalties under this section with a law enforcement agency or governmental entity, subject to final approval of the commission.
    2. The agreed-upon order under subdivision (d)(1) of this section may be in an amount that differs from the amounts in subdivision (b)(1) of this section.
    1. The commission shall provide written notice to a law enforcement agency or governmental entity of an alleged violation of a rule, and the law enforcement agency or governmental entity shall respond in writing within thirty (30) days of receipt of the written notice.
    2. A law enforcement agency's or governmental entity's failure to respond within thirty (30) days of the written notice under subdivision (e)(1) of this section may result in the entry of a default order of assessment of an administrative penalty.
  3. A law enforcement agency or governmental entity may request a hearing before the commission to contest the allegations set forth in the written notice under subsection (e) of this section within thirty (30) days of receipt of the written notice.

History. Acts 2017, No. 497, § 10.

12-9-121. Additional salary payment.

    1. The Division of Law Enforcement Standards and Training may make additional salary payments from available funds to employees of the division who have attained law enforcement certification above the basic certificate level, as defined by the Division of Law Enforcement Standards and Training.
    2. The award of an additional salary payment under this section is contingent upon the:
      1. Existence of sufficient funding independent of funding specifically set aside for other programs within the division; and
      2. Discretion of the Director of the Division of Law Enforcement Standards and Training in coordination with the Secretary of the Department of Public Safety.
    1. Eligible employees of the division may be paid up to the following annual amounts for the respective certifications:
      1. General certificate — three hundred dollars ($300);
      2. Intermediate certificate — six hundred dollars ($600);
      3. Advanced certificate — nine hundred dollars ($900); and
      4. Senior certificate — one thousand two hundred dollars ($1,200).
    2. Payment of the additional salary amounts may be made monthly, quarterly, semiannually, or annually depending upon the availability of funding and is restricted to full-time law enforcement officers employed by the division.
  1. Additional salary payments made under this section are considered part of the employee's regular income and subject to all applicable withholding required by law.

History. Acts 2017, No. 631, § 1; 2019, No. 910, § 5821.

Amendments. The 2019 amendment, in (a)(1), substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training” near the beginning, substituted “employees of the division” for “employees of the commission”, and substituted “Division of Law Enforcement Standards and Training” for “commission” at the end; substituted “division” for “commission” in (a)(2)(A); rewrote (a)(2)(B); and substituted “division” for “commission” in the introductory language of (b)(1) and in (b)(2).

12-9-122. Controlled substance overdose identification training — Definition.

  1. As used in this section, “naloxone” means a drug that is an analgesic antagonist used in the reversal of acute respiratory depression caused by opioid use.
    1. The Arkansas Commission on Law Enforcement Standards and Training in conjunction with the Arkansas Drug Director and the Criminal Justice Institute shall develop a curriculum for law enforcement training relating to identifying the signs that a person is experiencing an overdose of a controlled substance and the ways in which a law enforcement officer can safely assist the person who has overdosed.
    2. A curriculum that is developed under subdivision (b)(1) of this section and certified by the commission shall be delivered to a student attending a basic law enforcement training course certified by the commission.
  2. Training under subsection (b) of this section shall include without limitation:
    1. The signs and symptoms of an overdose associated with the use of a controlled substance, including opioids;
    2. First-responder treatment and triage for a controlled substance overdose situation;
    3. First-responder safety considerations in a potential or actual controlled substance overdose situation; and
    4. An overview of the role of naloxone in certain opioid overdose situations.
  3. All law enforcement agencies are encouraged to develop a naloxone program by seeking assistance from the Arkansas Drug Director's office or the Criminal Justice Institute, or both.

History. Acts 2019, No. 646, § 1.

12-9-123. Missing and unidentified persons training.

    1. In accordance with the certification requirements of the Arkansas Commission on Law Enforcement Standards and Training, all law enforcement officers in the state shall complete training related to the investigation of unidentified and missing persons.
    2. Practicum training shall also be sufficient for the requirement under subdivision (a)(1) of this section.
  1. Training under subsection (a) of this section may include training conducted in conjunction with resources available through the National Missing and Unidentified Persons System.

History. Acts 2019, No. 920, § 1.

Subchapter 2 — Law Enforcement Training Academy

Cross References. Police training school, § 12-8-119.

Effective Dates. Acts 1969, No. 608, § 10: Apr. 21, 1969. Emergency clause provided: “It is hereby found and determined that the Sixty-Seventh General Assembly has, by a vote of two-thirds of the members elected to both Houses, voted to extend the regular session of the Sixty-Seventh General Assembly, as authorized in the Constitution; that under the provisions of Const., Amend. 7, enactments of the General Assembly that do not have an emergency clause do not become effective until ninety (90) days after the date of final adjournment of the General Assembly; that the extended session of the General Assembly may not adjourn in time for this act to take effect prior to July 1, 1969, thereby depriving the agency for which funds are appropriated herein of necessary operating funds to commence the next fiscal biennium; and in order that the appropriation made herein may be available on July 1, 1969, the General Assembly hereby determines that the immediate passage of this act is necessary for the maintenance and operation of the essential governmental services. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval, provided that the appropriation authorized herein shall not be available until July 1, 1969.”

Acts 1979, No. 147, § 3: Feb. 19, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the extent of the law enforcement authority of teaching and instruction personnel at the Arkansas Law Enforcement Training Academy is not clear under the present law; that it is essential that such personnel have broad law enforcement authority with respect to the control and protection of academy property and personnel both on and off the premises of the academy, and broad authority to cooperate with, assist and support local law enforcement officers in performing law enforcement functions; and that this act is designed to specifically give such personnel law enforcement authority and should be given effect at the earliest possible date to enable such personnel to more effectively and efficiently carry out their responsibilities. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 2003, No. 1051, § 2: Apr. 3, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that full-time law enforcement instructors at Black River Technical College Law Enforcement Training Academy need access to restricted law enforcement training classes and material to ensure current skills are maintained while instructing law enforcement personnel in basic police training and other law enforcement training courses; that a delay in the implementation of this act will hamper the state's ability to provide training and certification of an adequate number of law enforcement officers; and that this act is immediately necessary because the state needs to ensure that law enforcement personnel are trained and certified in sufficient time to provide for the public safety of the citizens of the state. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2005, No. 1330, § 2: Mar. 29, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that full-time law enforcement instructors at the Arkansas Police Corps Training Program at the University of Arkansas at Little Rock need access to restricted law enforcement training classes and material to ensure that current skills are maintained while instructing law enforcement personnel in basic police training and other law enforcement training courses; and that a delay in the implementation of this act will hamper the state's ability to provide training and certification of an adequate number of law enforcement officers. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-9-201. Establishment.

There is established the Arkansas Law Enforcement Training Academy for the training and instruction of state, county, municipal, and other law enforcement officers.

History. Acts 1963, No. 526, § 1; 1965, No. 172, § 1; A.S.A. 1947, § 42-701.

Publisher's Notes. Acts 1981, No. 45, § 7, provided, in part, that the Arkansas Law Enforcement Training Academy, which was transferred by a type 4 transfer to the Department of Public Safety pursuant to Acts 1971, No. 38, § 14 [repealed], would be detached from that department and transferred to the Arkansas Commission on Law Enforcement Standards and Training, which commission would succeed to all powers, functions, and duties of the Arkansas Law Enforcement Training Academy and the Arkansas Law Enforcement Training Academy Board. It further provided that all the property, equipment, personnel, and funds of the Law Enforcement Training Academy Division of the Department of Public Safety (abolished by Acts 1981, No. 45, § 1) would be transferred to, and thereafter administered by, the Arkansas Commission on Law Enforcement Standards and Training and that the act should not be construed so as to reduce any right which an employee of the Law Enforcement Training Academy would have under any civil service or merit system.

12-9-202. Location of academy.

The Arkansas Law Enforcement Training Academy shall be located at a place which, in the opinion of the Director of the Division of Law Enforcement Standards and Training, will serve the best interests of the state in the carrying out of the intent and purposes of this subchapter.

History. Acts 1963, No. 526, § 3; 1965, No. 172, § 2; A.S.A. 1947, § 42-703; Acts 2019, No. 910, § 5822.

Amendments. The 2019 amendment substituted “Director of the Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training”.

12-9-203. Acceptance of gifts, grants, etc. — Disposition.

  1. The Division of Law Enforcement Standards and Training may accept gifts, grants, donations, equipment and materials, and bequests of money or gratuities donated by private persons or corporations.
  2. All moneys received under subsection (a) of this section shall be deposited into the Arkansas Law Enforcement Training Academy Cash Fund.

History. Acts 1969, No. 608, § 7; 2017, No. 497, § 11; 2019, No. 910, § 5823.

Amendments. The 2017 amendment substituted “The Arkansas Commission on Law Enforcement Standards and Training may” for “The Arkansas Law Enforcement Training Academy is granted authority to” in (a); and, in (b), substituted “All moneys received under subsection (a) of this section” for “All such money so received” and “Arkansas Law Enforcement Training Academy Cash Fund” for “State Treasury to the credit of the Miscellaneous Agencies Fund Account of the State General Government Fund”.

The 2019 amendment substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training” in (a).

12-9-204. Arkansas Commission on Law Enforcement Standards and Training — Law enforcement powers.

  1. The following persons are classified and designated as law enforcement officers after meeting minimum qualifications for law enforcement officers' certification as established by the Arkansas Commission on Law Enforcement Standards and Training:
    1. The Director of the Division of Law Enforcement Standards and Training;
    2. Employees of the Division of Law Enforcement Standards and Training appointed by the Director of the Division of Law Enforcement Standards and Training as law enforcement officers;
    3. The Director of the Black River Technical College Law Enforcement Training Academy; and
    4. Instructors of the Black River Technical College Law Enforcement Training Academy.
    1. The personnel described in subsection (a) of this section have all authority and functions of other law enforcement officers in the State of Arkansas.
    2. The personnel described in subsection (a) of this section have general law enforcement authority to cooperate with, assist, and support local law enforcement officers in all law enforcement activities and functions.
  2. The personnel described in subsection (a) of this section shall:
    1. Be credited with service toward maintaining and increasing certification levels for time employed at the Arkansas Commission on Law Enforcement Standards and Training or the division and the Black River Technical College Law Enforcement Training Academy; and
    2. Receive credit for years of law enforcement service for time employed at the commission or the division, the Arkansas Police Corps Program at the University of Arkansas at Little Rock, or the Black River Technical College Law Enforcement Training Academy upon employment as law enforcement officers elsewhere in the State of Arkansas.
  3. The personnel described in subsection (a) of this section:
    1. Are not qualified to enroll in a different retirement system because of their classification and designation as law enforcement officers; and
    2. Shall not qualify for any benefit enhancement other than that available under their current retirement system.

History. Acts 1979, No. 147, § 1; A.S.A. 1947, § 42-708; Acts 1995, No. 365, § 1; 2003, No. 1051, § 1; 2005, No. 1330, § 1; 2017, No. 497, § 12; 2019, No. 910, §§ 5824, 5825.

Amendments. The 2005 amendment inserted “the Arkansas Police Corps Training Program at the University of Arkansas at Little Rock” in (a), (c)(2) and (d).

The 2017 amendment substituted “Arkansas Commission on Law Enforcement Standards and Training” for “Academy instructors” in the section heading; rewrote (a); substituted “described in subsection (a) of this section have” for “shall have and exercise” in (b)(1); substituted “described in subsection (a) of this section” for “shall” in (b)(2); inserted “described in subsection (a) of this section” in the introductory language of (c); substituted “commission” for “Arkansas Law Enforcement Training Academy” in (c)(1) and (c)(2); and rewrote (d).

The 2019 amendment substituted “Director of the Division of Law Enforcement Standards and Training” for “Director of Law Enforcement Standards and Training” in (a)(1); rewrote (a)(2); and substituted “Arkansas Commission on Law Enforcement Standards and Training or the division” for “commission” in (c)(1); and inserted “or the division” in (c)(2).

12-9-205. [Repealed.]

Publisher's Notes. This section, concerning approval of applications, was repealed by Acts 2017, No. 497, § 13. The section was derived from Acts 1963, No. 526, § 2; A.S.A. 1947, § 42-702.

12-9-206. Expenses furnished by academy — Exceptions.

  1. The Arkansas Law Enforcement Training Academy shall furnish, without cost to applicants, the necessary food, lodging, laundry, and other necessary expenses while attending the academy.
    1. However, the salary of applicants and the necessary transportation cost in traveling to and from the academy shall be paid by the municipality or county in which employed.
    2. The travel expenses of a constable in attending the academy may be paid by the county.

History. Acts 1963, No. 526, § 5; A.S.A. 1947, § 42-705; Acts 2011, No. 561, § 1.

Amendments. The 2011 amendment substituted “may” for “shall” in (b)(2).

12-9-207. Newly elected or unopposed candidates for county sheriff.

  1. A newly elected county sheriff or unopposed candidate for the position of county sheriff may attend a state-funded law enforcement training academy for purposes of training and instruction.
  2. The county in which the newly elected county sheriff or unopposed candidate for the position of county sheriff is to be employed shall pay any necessary transportation costs in traveling to and from the state-funded law enforcement training academy.

History. Acts 1975, No. 183, §§ 1, 2; A.S.A. 1947, §§ 42-706, 42-707; Acts 2017, No. 183, § 2.

Amendments. The 2017 amendment rewrote the section.

12-9-208. State Capitol Police — Training course.

All members of the State Capitol Police shall satisfactorily complete the training course for law enforcement officers at the Arkansas Law Enforcement Training Academy within nine (9) months of their hire date or any extension granted by the Arkansas Commission on Law Enforcement Standards and Training.

History. Acts 1987, No. 468, § 1; 2017, No. 497, § 14.

Amendments. The 2017 amendment substituted “nine (9)” for “twelve (12)” preceding “months” and added “or any extension granted by the Arkansas Commission on Law Enforcement Standards and Training”.

Cross References. Secretary of State, powers and duties generally, § 25-16-403.

12-9-209. Reimbursement for training costs.

    1. If a county, city, town, or state agency pays the cost or expenses for training a law enforcement officer at a state-funded law enforcement training academy and another county, city, town, or state agency employs that law enforcement officer within eighteen (18) months after completion of the training in a position requiring a certificate of training from the state-funded law enforcement training academy, the county, city, town, or state agency so employing the law enforcement officer, at the time of employing the law enforcement officer, shall reimburse the county, city, town, or state agency for all or a portion of the expenses incurred by the county, city, town, or state agency for the training of the law enforcement officer at the state-funded law enforcement training academy, unless the law enforcement officer has been terminated by the county, city, town, or state agency that paid the costs or expenses of training, in which case no reimbursement is required from the county, city, town, or state agency hiring the law enforcement officer.
    2. Reimbursement may be sought only from the first county, city, town, or state agency that employed the law enforcement officer after the county, city, town, or state agency paid the costs or expenses of training.
    3. Reimbursement shall include any salary, travel expenses, food, lodging, or other costs required to be paid by the county, city, town, or state agency, as follows:
      1. If the person is employed within two (2) months after completion of the training, the employing agency shall reimburse the total cost of the training;
      2. If the person is employed more than two (2) months but not more than six (6) months after completion of the training, the employing agency shall reimburse eighty percent (80%) of the cost of the training;
      3. If the person is employed more than six (6) months but not more than ten (10) months after completion of the training, the employing agency shall reimburse sixty percent (60%) of the cost of the training;
      4. If the person is employed more than ten (10) months but not more than fourteen (14) months after completion of the training, the employing agency shall reimburse forty percent (40%) of the cost of the training; or
      5. If the person is employed more than fourteen (14) months but not more than eighteen (18) months after completion of the training, the employing agency shall reimburse twenty percent (20%) of the cost of the training.
    1. If any county, city, town, or state agency which employs an officer whose training expense was paid by another county, city, town, or state agency fails to make reimbursement for the expenses as required in subsection (a) of this section, the county, city, town, or state agency entitled to reimbursement shall notify the Treasurer of State.
    2. The Treasurer of State shall then withhold the amount of the reimbursement due for training the officer from the county or municipal aid of the employing county, city, town, or state agency or from funds appropriated to the employing state agency and shall remit the amount to the county, city, town, or state agency which is entitled to the reimbursement under the provisions of this section.

History. Acts 1987, No. 880, §§ 1, 2; 1993, No. 191, § 1; 2017, No. 183, § 3; 2019, No. 151, § 2.

Amendments. The 2017 amendment rewrote (a)(1) and (a)(2).

The 2019 amendment deleted “Counties, cities, etc.” from the beginning of the section heading; inserted “or state agency” throughout the section; and made stylistic changes.

12-9-210. Designated law enforcement agencies.

The Division of Law Enforcement Standards and Training and the Black River Technical College Law Enforcement Training Academy are designated as law enforcement agencies.

History. Acts 2011, No. 272, § 1; 2017, No. 497, § 15; 2019, No. 910, § 5826.

Amendments. The 2017 amendment deleted the (a) designation; substituted “The Arkansas Commission on Law Enforcement Standards and Training” for “The Arkansas Law Enforcement Training Academy”; and deleted former (b).

The 2019 amendment substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training”.

12-9-211. Private college or university law enforcement officers.

  1. A law enforcement officer for a private college or university is permitted to attend the Arkansas Law Enforcement Training Academy for training and instruction.
  2. The private college or university for which the law enforcement officer is employed shall:
    1. Pay any necessary transportation cost in traveling to and from the academy; and
    2. Reimburse the Division of Law Enforcement Standards and Training for any cost associated with the private college or university law enforcement officer's training or instruction at the academy.

History. Acts 2013, No. 227, § 2; 2019, No. 910, § 5827.

Amendments. The 2019 amendment substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training” in (b)(2).

Cross References. Law enforcement agencies for private colleges and universities, § 12-20-101 et seq.

Subchapter 3 — Auxiliary Law Enforcement Officers

Effective Dates. Acts 1983, No. 757, § 11: Mar. 24, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the use and authority of persons appointed by the law enforcement agency director, chief, or sheriff and who are known by such terms as voluntary, auxiliary, reserves, voluntary officers, mounted patrol, etc., are important to the health, safety, and welfare of the people of this state. There is no statutory authority to regulate the appointment and training, the supervision or the authority of the auxiliary law enforcement officer. Therefore, an emergency is declared to exist and this act being necessary for the protection of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 275, § 3: Mar. 17, 1987. Emergency clause provided: “Whereas, Section 8 of Act 757 of 1983 as presently written is in conflict with other state laws which provide tort immunity for Arkansas local governments and their employees, volunteer firemen and auxiliary police and this act will conform to other existing laws and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1994 (2nd Ex. Sess.), No. 12, § 6: Aug. 22, 1994. Emergency clause provided: “It is hereby found and determined by the General Assembly that under present law auxiliary law enforcement officers may not receive compensation for their services; that this restriction is unreasonable and makes it impossible for political subdivisions to engage the services of such officers; that in some rural areas, there is a severe shortage of law enforcement officers and some political subdivisions in such areas are desirous of engaging the services of auxiliary law enforcement officers to perform certain specific functions; that this act is designed to remove the restriction on compensation of auxiliary law enforcement officers to enable local political subdivisions to engage the services of such officers and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

12-9-301. Definitions.

As used in this subchapter:

  1. “Auxiliary law enforcement officer” means a person who meets the minimum standards and training requirements prescribed for auxiliary law enforcement officers by law and rules, and who is appointed by a political subdivision or a law enforcement agency as a reserve officer, but does not include any law enforcement officer or deputy county sheriff employed by a planned community property owners' association;
  2. “Commission” means the Arkansas Commission on Law Enforcement Standards and Training as established by § 12-9-103;
  3. “Direct supervision” means having a designated on-duty, full-time certified law enforcement officer responsible for the direction, conduct, and performance of the auxiliary law enforcement officer when that auxiliary law enforcement officer is working an assigned duty, but does not mean that the full-time certified law enforcement officer must be in the physical presence of the auxiliary law enforcement officer when the auxiliary law enforcement officer is working an assigned duty;
  4. “Honorary police officer” means any person having no law enforcement authority except as a private citizen;
  5. “Law enforcement agency” means any police force or organization whose primary responsibility as established by statute or ordinance is the enforcement of the criminal, traffic, or highway laws of this state;
  6. “Law enforcement officer” means any appointed law enforcement officer or county sheriff who is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic, or highway laws of this state;
  7. “Part-time law enforcement officer” means, as applied to employment and training requirements, a law enforcement officer who works twenty-four (24) hours per week or less and receives a salary from the employing law enforcement agency; and
  8. “Political subdivision” means any county, municipality, township, or other specific local unit of general government.

History. Acts 1983, No. 757, § 1; A.S.A. 1947, § 42-1401; Acts 1994 (2nd Ex. Sess.), No. 12, § 1; 2017, No. 497, § 16; 2019, No. 151, § 3.

Amendments. The 2017 amendment, in (1), substituted “auxiliary law enforcement officers” for “such officers” and “rules” for “regulations”, deleted “volunteer officer, or mounted patrol” following “reserve officer”, and inserted “law enforcement” following “but does not include any”.

The 2019 amendment substituted “a law enforcement officer who works twenty-four (24) hours per week or less and receives” for “any officer working less than twenty (20) hours per week and receiving” in (7).

Research References

Ark. L. Rev.

Thomas Christoph Keller, Comment: ABC's and AR-15's: Arming Arkansas's Teachers, 67 Ark. L. Rev. 687 (2014).

Case Notes

Direct Supervision.

The physical presence of a supervising officer is not required at the scene of an arrest made by an auxiliary officer. McAfee v. State, 290 Ark. 446, 720 S.W.2d 307 (1986); Turnbull v. State, 22 Ark. App. 18, 731 S.W.2d 794 (1987).

Direct supervision of an auxiliary law enforcement officer can be provided by radio contact. Turnbull v. State, 22 Ark. App. 18, 731 S.W.2d 794 (1987).

Auxiliary officer was acting under the direct supervision of his supervisor even though the superior was not on duty, where both the officer and his superior were aware of each other's whereabouts at the time of an arrest, and the officer, pursuant to his superior's instructions, phoned the superior from the police station and received further instructions from the superior as to how he should proceed in handling the situation. Martindill v. State, 40 Ark. App. 16, 839 S.W.2d 545 (1992).

12-9-302. Arkansas Commission on Law Enforcement Standards and Training — Powers and duties.

In addition to the powers conferred upon the Arkansas Commission on Law Enforcement Standards and Training in §§ 12-9-10412-9-107, the commission shall have power to:

  1. Promulgate rules for the administration of this subchapter;
  2. Require the submission of reports and information by law enforcement agencies within this state;
    1. Establish minimum selection and training standards for admission to appointment as an auxiliary law enforcement officer. The standards may take into account different requirements for urban and rural areas.
    2. However, the minimum selection and training standards for admission to appointment may not exceed those required for part-time law enforcement officers;
  3. Establish minimum curriculum requirements for preparatory, in-service, and advanced courses and programs of schools operated by and for the training of auxiliary law enforcement officers;
  4. Consult and cooperate with counties, municipalities, agencies of this state, other governmental agencies, and with universities, colleges, junior colleges, community colleges, and other institutions or organizations concerning the development of police training schools and programs or courses of instruction;
  5. Approve institutions and facilities to be used by or for the state or any political subdivision thereof for the specific purpose of training law enforcement officers and recruits;
  6. Exclude auxiliary law enforcement officers from the full-time basic training classes sponsored and supported by the commission;
  7. Adopt rules and minimum standards for such schools which shall include, but not be limited to, establishing minimum:
    1. Basic training requirements which an auxiliary law enforcement officer must satisfactorily complete before being eligible for appointment;
    2. Course attendance and equipment requirements; and
    3. Requirements for instructors;
  8. Conduct review of agency records to assist any department head in complying with the provisions of this subchapter;
  9. Adopt and amend bylaws, consistent with law, for its internal management and control; and
  10. Enter into contracts or do such things as may be necessary and incidental to the administration of this subchapter.

History. Acts 1983, No. 757, § 2; A.S.A. 1947, § 42-1402; Acts 2017, No. 497, § 17; 2019, No. 315, § 854.

Amendments. The 2017 amendment, in (7), inserted “the full-time basic” and substituted “commission” for “Arkansas Law Enforcement Training Academy”.

The 2019 amendment deleted “and regulations” following “rules” in (1).

12-9-303. Authority of officers.

  1. An auxiliary law enforcement officer shall have the authority of a police officer as set forth by statutes of this state when the auxiliary law enforcement officer is performing an assigned duty and is under the direct supervision of a full-time certified law enforcement officer.
  2. When not performing an assigned duty and when not working under the direct supervision of a full-time certified law enforcement officer, an auxiliary law enforcement officer shall have no authority other than that of a private citizen.
  3. An auxiliary law enforcement officer, when not working under the direct supervision of a full-time certified law enforcement officer, may perform tasks such as traffic direction, parade functions, etc., that are clearly not law enforcement functions and are assigned by the law enforcement agency.
  4. Nothing in this subchapter shall be construed as defining an auxiliary law enforcement officer as a full-time certified law enforcement officer, a part-time certified law enforcement officer, or a specialized certified officer as defined by §§ 12-9-101, 12-9-102, 12-9-104 — 12-9-109, and the Arkansas Commission on Law Enforcement Standards and Training.

History. Acts 1983, No. 757, § 5; A.S.A. 1947, § 42-1405.

Research References

Ark. L. Rev.

Thomas Christoph Keller, Comment: ABC's and AR-15's: Arming Arkansas's Teachers, 67 Ark. L. Rev. 687 (2014).

Case Notes

Auxiliary Officer.

The physical presence of a supervising officer is not required at the scene of an arrest made by an auxiliary officer. McAfee v. State, 290 Ark. 446, 720 S.W.2d 307 (1986); Turnbull v. State, 22 Ark. App. 18, 731 S.W.2d 794 (1987).

The presence of a second officer, who was a full-time, certified officer, did not make the arrest by the auxiliary law enforcement officer lawful. McAfee v. State, 290 Ark. 446, 720 S.W.2d 307 (1986).

To require that the designated supervising officer be speaking to the auxiliary officer during the arrest process would constitute an unreasonable interpretation of subsection (a) of this section. McAfee v. State, 290 Ark. 446, 720 S.W.2d 307 (1986).

Direct Supervision.

Auxiliary officer was acting under the direct supervision of his supervisor even though the superior was not on duty, where both the officer and his superior were aware of each other's whereabouts at the time of the arrest, and the officer phoned the superior from the police station and received further instructions from the superior as to how he should proceed in handling the situation. Martindill v. State, 40 Ark. App. 16, 839 S.W.2d 545 (1992).

On Duty.

Neither subsection (a) nor (b) contains language that requires that the auxiliary officer be “on duty” before he or she could be authorized and activated to perform law enforcement functions. Martin v. State, 327 Ark. 38, 936 S.W.2d 75 (1997).

Unsupervised Deputies.

Where defendant was arrested and issued citation for a misdemeanor by two unsupervised auxiliary deputies, defendant could not be tried or convicted of the offense because unsupervised auxiliary deputies lacked authority to lawfully charge defendant with a misdemeanor offense. Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985).

Cited: King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991); Jones v. Parrish, 330 Ark. 521, 954 S.W.2d 934 (1997).

12-9-304. Appointment and training requirements.

    1. A person shall not function as an auxiliary law enforcement officer until the minimum standards for appointment and training requirements have been completed.
    2. An auxiliary law enforcement officer who has not met the minimum standards for appointment and training requirements shall have no law enforcement authority except that which is authorized for a private citizen.
  1. All persons who are serving as auxiliary law enforcement officers prior to March 24, 1983, are exempt from meeting the appointment requirements.
  2. The training requirements for auxiliary law enforcement officers shall be established by the Arkansas Commission on Law Enforcement Standards and Training, and the basic training course shall not exceed the part-time law enforcement officers' training requirements.
  3. Honorary police officers are exempt from the provisions of this subchapter.
  4. The commission may issue a certificate evidencing satisfactory completion of the requirements of this subchapter when evidence is submitted by the law enforcement agency director, chief, or county sheriff that the auxiliary law enforcement officer has met the training and selection requirements.
    1. The appointing law enforcement agency shall provide not less than one hundred ten (110) hours of commission-approved law enforcement training, which shall include a firearms qualification course equivalent to the firearms qualification requirements for a full-time law enforcement officer, and an auxiliary law enforcement officer shall not bear a firearm until having successfully completed the commission-approved law enforcement training.
    2. An auxiliary law enforcement officer is not required to requalify for firearms qualification beyond what a full-time law enforcement officer is required to complete for requalification for the purposes of carrying a concealed handgun while the auxiliary law enforcement officer remains appointed as an auxiliary law enforcement officer.
  5. Nothing in this section shall be construed to preclude any law enforcement agency from establishing qualifications and standards for appointing and training of auxiliary law enforcement officers that exceed those set by this subchapter or by the commission.
  6. Any auxiliary law enforcement officer failing to meet the training requirements as set forth in this subchapter shall lose his or her appointment as auxiliary law enforcement officer and shall not be reappointed until training requirements have been met.
  7. No person may be appointed or serve as an auxiliary law enforcement officer if the person has been convicted by a state or by the federal government of a crime, the punishment for which could have been imprisonment in a federal penitentiary or a state prison.
  8. Every person appointed or serving as an auxiliary law enforcement officer shall be a citizen of the United States and shall be at least twenty-one (21) years of age.

History. Acts 1983, No. 757, § 4; A.S.A. 1947, § 42-1404; Acts 2017, No. 497, § 18; 2017, No. 957, § 3; 2019, No. 151, § 4.

Amendments. The 2017 amendment by No. 497, in (f) [now (f)(1)], substituted “The appointing law enforcement agency shall provide” for “It shall be the responsibility of the appointing law enforcement agency to provide or have provided”, substituted “one hundred ten (110)” for “one hundred (100)”, inserted “commission-approved law enforcement” preceding the last occurrence of “training”, and made stylistic changes.

The 2017 amendment by No. 957 redesignated former (f) as (f)(1) and added (f)(2).

The 2019 amendment substituted “A person shall not function” for “No person shall be appointed” in (a)(1); and, in (a)(2), substituted “An” for “Any” and “the minimum standards for appointment and training” for “these”.

12-9-305. Failure to meet standards — Actions by private citizens.

  1. An auxiliary law enforcement officer who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a law enforcement officer and any action taken shall be held as invalid.
    1. Nothing in this subchapter or any requirement made by the commission shall prevent any action by a private citizen that is now authorized by law.
    2. No provision of this subchapter shall affect the deputizing of a private citizen by a law enforcement officer in a time of a disaster or emergency.

History. Acts 1983, No. 757, § 3; A.S.A. 1947, § 42-1403.

Case Notes

Unsupervised Deputies.

Where defendant was arrested and issued a citation for a misdemeanor by two unsupervised auxiliary deputies, defendant could not be tried or convicted of the offense because unsupervised auxiliary deputies lacked authority to lawfully charge defendant with a misdemeanor offense. Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985).

Cited: Pipes v. State, 22 Ark. App. 235, 738 S.W.2d 423 (1987).

12-9-306. Number restricted.

    1. A political subdivision may appoint auxiliary law enforcement officers equal to the larger number of:
      1. Two (2) auxiliary law enforcement officers for each full-time certified law enforcement officer employed by the appointing law enforcement agency; or
      2. One (1) auxiliary law enforcement officer for each one thousand (1,000) persons in the political subdivision as determined by the latest official census.
      1. However, if due to special or unusual problems or circumstances, any political subdivision has a need for a greater number of auxiliary law enforcement officers than is authorized in subdivision (a)(1)(A) or subdivision (a)(1)(B) of this section, the political subdivision may make a request to the Arkansas Commission on Law Enforcement Standards and Training for the additional auxiliary law enforcement officers.
      2. Each request under subdivision (a)(2)(A) of this section shall state the special or unusual problems involved which justify the request, the number of additional auxiliary law enforcement officers requested, and such other information as the commission may require.
      3. If the commission finds that the public interest will best be served by allowing the political subdivision to appoint the additional auxiliary law enforcement officers requested, the commission may grant the request under subdivision (a)(2)(A) of this section.
  1. Honorary police officers without law enforcement authority are not restricted in number by this section.
  2. The limitation concerning the number of auxiliary law enforcement officers allowed to be appointed by a law enforcement agency under this section does not apply to additional auxiliary law enforcement officers appointed by political subdivisions to serve as school resource officers or search and rescue officers.

History. Acts 1983, No. 757, § 6; A.S.A. 1947, § 42-1406; Acts 2013, No. 705, § 1; 2017, No. 497, § 19.

Amendments. The 2013 amendment rewrote the introductory language of (a)(1); in (a)(1)(A), substituted “Two (2)“ for “One (1)” and substituted “officers” for “officer”; and added (c).

The 2017 amendment, in (a)(1), deleted the former first sentence, substituted “A political” for “Further, the political”, and substituted “appoint auxiliary” for “appoint more auxiliary”; inserted “under subdivision (a)(2)(A) of this section” in (a)(2)(B) and (C); and made stylistic changes.

12-9-307. Benefits.

  1. The auxiliary law enforcement officer or the governing political subdivision may elect to join the workers' compensation system for the benefit of the auxiliary law enforcement officer, and the auxiliary law enforcement officer may receive benefits therefrom as provided by statutes.
  2. The political subdivision may elect to provide liability insurance, uniforms, and such other equipment as may be necessary to perform the assigned tasks, and these provisions shall not be considered as salary or wages.
  3. An auxiliary law enforcement officer may receive such compensation, per diem, expenses, or other allowances for his or her services, for such purposes as transporting juveniles, as may be agreed to by the appointing authority.

History. Acts 1983, No. 757, § 7; A.S.A. 1947, § 42-1407; Acts 1994 (2nd Ex. Sess.), No. 12, § 2; 2019, No. 151, § 5.

Amendments. The 2019 amendment deleted former (b) and redesignated former (c) and (d) as present (b) and (c).

12-9-308. Liability of law enforcement agency and political subdivision.

The law enforcement agency director, chief, or county sheriff and the political subdivision appointing the auxiliary law enforcement officer shall not be held either civilly or criminally liable or in any other manner for the actions of an auxiliary law enforcement officer.

History. Acts 1983, No. 757, § 8; A.S.A. 1947, § 42-1408; Acts 1987, No. 275, § 1.

Research References

U. Ark. Little Rock L.J.

Survey — Torts, 10 U. Ark. Little Rock L.J. 609.

Subchapter 4 — Radar Instructors and Operators

Effective Dates. Acts 1983, No. 672, § 7: Mar. 22, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that no required minimum standards for training and certification of police traffic radar instructors or operators exists, and that properly trained and certified police officers are important to the health, safety, and welfare of the people of this state. There is no statutory authority to regulate the use of police traffic radar for law enforcement purposes. Therefore, an emergency is declared to exist and this act being necessary for the protection of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 115, § 3: Feb. 15, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 672 of 1983 empowered the Governor's Commission on Law Enforcement Standards and Training to establish minimum standards for radar instructors and operators; that the act's definition of police traffic radar has resulted in adverse rulings against the state by our courts; that this act redefines the term in a manner that will better enable the commission to implement the act; and that this act is immediately necessary to cure the defective definition. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

12-9-401. Definitions.

As used in this subchapter:

  1. “Full-time law enforcement officer” means any county sheriff, or any other law enforcement officer employed by a law enforcement agency who works more than twenty-four (24) hours per week and receives a salary from the law enforcement agency;
  2. “Law enforcement agency” means any police force or organization whose primary responsibility as established by statute or ordinance is the enforcement of the criminal, traffic, or highway laws of this state;
  3. “Law enforcement officer” means any appointed law enforcement officer or county sheriff who is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic, or highway laws of this state;
  4. “Part-time law enforcement officer” means a law enforcement officer who works twenty-four (24) hours per week or less and receives a salary from the employing law enforcement agency;
  5. “Police traffic radar” means any speed measurement device utilizing the Doppler principle or an infrared light system to measure the speed of motor vehicles; and
  6. “Political subdivision” means any county, municipality, township, or other specific local unit of general government.

History. Acts 1983, No. 672, § 1; 1985, No. 115, § 1; A.S.A. 1947, § 42-1010; Acts 1991, No. 374, § 1; 1993, No. 63, § 1; 1997, No. 1105, § 1; 2017, No. 497, § 20; 2019, No. 151, § 6.

Amendments. The 2017 amendment, in (2), substituted “and receives a salary from the law enforcement agency” for “or any part-time law enforcement officer employed by a law enforcement agency who has met the selection and training requirements for full-time certified officers”.

The 2019 amendment deleted former (1) and redesignated the remaining subdivisions accordingly; in (1), inserted “any other law enforcement”, and substituted “more than twenty-four (24) hours” for “forty (40) or more hours”; and, in (4), substituted “a law enforcement officer who works twenty-four (24) hours per week or less and receives” for “any officer working less than twenty (20) hours per week and receiving”.

12-9-402. Powers and duties of the commission.

In addition to the powers conferred upon the Arkansas Commission on Law Enforcement Standards and Training in §§ 12-9-10412-9-107, the commission shall have power to:

  1. Promulgate rules for the administration of this subchapter;
  2. Require the submission of reports and information by law enforcement agencies within this state;
  3. Establish minimum selection and training standards for appointment as a police traffic radar operator and police traffic radar instructor. The standards may take into account different requirements for urban and rural areas;
  4. Establish minimum curriculum requirements for the basic radar operator's course, the basic radar instructor's course, and the refresher courses for the radar operators and the radar instructors;
  5. Consult and cooperate with counties, municipalities, agencies of this state, other governmental agencies, and with universities, colleges, junior colleges, community colleges, and other institutions or organizations concerning the development of police traffic radar training schools and programs or courses of instruction;
  6. Approve institutions and facilities to be used by or for the state or any political subdivision thereof for the specific purpose of training radar operators and radar instructors;
  7. Exclude honorary law enforcement officers from training classes sponsored and supported by the Arkansas Law Enforcement Training Academy for the training of radar operators and radar instructors;
  8. Adopt rules and minimum standards for such schools and courses which shall include, but not be limited to, establishing minimum:
    1. Basic training requirements which police radar operators and police radar instructors are required to satisfactorily complete before being eligible for radar certification;
    2. Course attendance and equipment requirements; and
    3. Requirements for instructors;
  9. Conduct review of agency records to assist any department head in complying with the provisions of this subchapter;
  10. Adopt and amend bylaws, consistent with law, for its internal management and control; and
  11. Enter into contracts or do such things as may be necessary and incidental to the administration of this subchapter.

History. Acts 1983, No. 672, § 2; A.S.A. 1947, § 42-1011; Acts 2011, No. 1240, § 2; 2017, No. 497, § 21; 2019, No. 315, § 855.

Amendments. The 2011 amendment deleted “auxiliary law enforcement officers” following “Exclude” in (7).

The 2017 amendment deleted “part-time law enforcement officers and” following “Exclude” in (7); and, in (8)(A), deleted “and refresher” following “Basic” and substituted “are required to” for “must”.

The 2019 amendment deleted “and regulations” following “rules” in (1).

12-9-403. Appointment and training.

  1. A person shall not be appointed as a police traffic radar operator or police traffic radar instructor until the minimum standards for training requirements have been completed.
  2. The training requirements for police traffic radar operators or police traffic radar instructors shall be established by the Arkansas Commission on Law Enforcement Standards and Training.
  3. The commission shall issue a certificate evidencing a law enforcement officer's certification to operate a police traffic radar after evidence is submitted by the law enforcement agency director, chief, or county sheriff that the police traffic radar operator has met the training requirements.
  4. This section does not preclude any law enforcement agency from establishing qualifications and standards for appointing and training of police traffic radar operators and police traffic radar instructors that exceed those set by this subchapter or by the commission.
  5. A police traffic radar operator or police traffic radar instructor failing to meet the training requirements as set forth in this subchapter shall lose his or her authority to operate a police traffic radar for enforcement purposes.
  6. A law enforcement officer shall complete the commission-required training for law enforcement officer certification before being eligible for certification as a police traffic radar operator.
  7. Only a full-time law enforcement officer, part-time law enforcement officer, or an auxiliary law enforcement officer appointed as a reserve law enforcement officer as defined by commission rule is eligible for certification as a police traffic radar operator.

History. Acts 1983, No. 672, § 4; A.S.A. 1947, § 42-1013; Acts 1997, No. 734, § 1; 2005, No. 1962, § 28; 2011, No. 1240, § 3; 2019, No. 151, § 7.

Amendments. The 2005 amendment deleted former (b) and redesignated the remaining subsections accordingly; substituted “Arkansas Commission on Law Enforcement Standards and Training” for “commission” in present (b); and substituted “shall complete” for “must have completed” in present (f).

The 2011 amendment, in (g), inserted “or an auxiliary law enforcement officer appointed as a reserve law enforcement officer” and substituted “rule is” for “regulation, will be”.

The 2019 amendment in (c), substituted “shall” for “may” and “a law enforcement officer’s certification to operate a police traffic radar after” for “satisfactory completion of the requirements of this subchapter when”; substituted “This section does not” for “Nothing in this section shall be construed to” in (d); inserted the second occurrence of “law enforcement” in (f); substituted “part-time law enforcement officer” for “part-time I law enforcement officer, part-time II law enforcement officer” in (g); and made stylistic changes.

Case Notes

Cited: Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985).

12-9-404. Failure to meet standards.

A police traffic radar operator who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police traffic radar operator and any action taken shall be held as invalid.

History. Acts 1983, No. 672, § 3; A.S.A. 1947, § 42-1012.

Subchapter 5 — Management Training and Education

Publisher's Notes. Acts 1993, No. 1111, § 7, provided:

“Nothing in this act shall be construed to develop or provide basic skills mandated training presently carried out by Arkansas Law Enforcement Training Academy.”

Effective Dates. Acts 1993, No. 1111, § 11: July 1, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that heads of law enforcement organizations are finding it increasingly difficult to maintain their expertise in new and innovative management techniques and technologies related to law enforcement management and administrative and operational areas. It is imperative that the leaders and management staff of law enforcement receive continuing education to enhance and improve their level of expertise and maintain professionalism. Funds for this type of education are not available from other sources. Therefore in order to meet this need, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from July 1, 1993.”

Acts 1994 (2nd Ex. Sess.), No. 35, § 12: Aug. 25, 1994. Emergency clause provided: “It is hereby found and determined by the Seventy-Ninth General Assembly meeting in Second Extraordinary Session, that the passage of this Act is of critical importance in the provision of needed resources to overcome severe public information and service deficiencies in such areas as criminal justice instruction, crime intervention services, and research activities. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 1035, § 8: July 1, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the effectiveness of this act on July 1, 1997, is essential to the efficient transfer of the Criminal Justice Institute to the University of Arkansas as a division thereof, and that in the event of the extension of the Regular Session, any delay in the effective date of this act beyond July 1, 1997, could work irreparable harm upon the proper administration of the Criminal Justice Institute and provision of its services to Arkansas law enforcement and national law enforcement. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after July 1, 1997.”

12-9-501. Legislative determination.

  1. The Criminal Justice Institute, an educational entity, was created for the purpose of providing management education and training, technical assistance, practical research and evaluation, a clearinghouse, and computer and forensic education and training for Arkansas law enforcement and national law enforcement.
  2. The initiatives developed by the Criminal Justice Institute are applicable on a national level, and this application for conceptualization and practice will be through the National Center for Rural Law Enforcement.
    1. The General Assembly recognizes the importance of providing management, education, and training to law enforcement and, through the initiatives developed by the Criminal Justice Institute, the citizens of the State of Arkansas will be better served.
    2. These initiatives further the enhancement of the workforce through the developmental process of continuing education by which skills are upgraded and capabilities increased.
    3. This process will assist law enforcement ability to adapt to an ever-changing environment.
    1. The General Assembly further recognizes that:
      1. Law enforcement plays a significant role in preventing and responding to acts of violence, terrorism, and natural disasters that occur on public school campuses; and
      2. Matters of public school campus safety require specialized education and training for law enforcement officers, school resource officers, and other school personnel who respond to incidents on school campuses:
        1. To develop and maintain strong partnerships between school personnel and law enforcement in preventing and responding to acts of violence, terrorism, and natural disaster that occur on public school campuses; and
        2. For law enforcement officers to operate effectively in a school setting.
    2. Initiatives of the Criminal Justice Institute for specialized education and training on public school campus safety will enhance citizen cooperation and understanding of law enforcement in these areas and other issues of crime and violence against school children.

History. Acts 1993, No. 1111, § 1; 1997, No. 1035, § 1; 2013, No. 484, § 4.

A.C.R.C. Notes. Acts 2013, No. 484, § 1, provided: “LEGISLATIVE FINDINGS. The General Assembly finds that:

“(1) Crime and violence remain issues in Arkansas public schools and nationwide;

“(2) The citizens of Arkansas have twice experienced the tragedy of a school shooting:

“(A) In 1997 when two (2) Stamps High School students were shot and wounded by sniper fire from a fellow student; and

“(B) In 1998 when four (4) students and one (1) teacher were killed at Westside Middle School in Jonesboro and nine (9) more students and one (1) teacher were wounded;

“(3) In 2007, the National Center for Education Statistics reported that an average of nine and one-tenths percent (9.1%) of Arkansas's public high school students had been threatened or injured with a weapon on school property, compared to the national average of seven and eight-tenths percent (7.8%); and

“(4) With the increasing levels of crime and violence in our schools, school administrators and personnel must be prepared for more than the academic challenges of teaching students. They must also:

“(A) Develop and maintain a strong partnership with law enforcement; and

“(B) Be trained to recognize and assume their roles and responsibilities for preventing and responding to acts of violence, terrorism, natural disaster, and other crimes impacting the school environment.”

Amendments. The 2013 amendment added (d).

12-9-502. Administration and approval.

    1. The Criminal Justice Institute of the University of Arkansas at Little Rock has served as the coordinator and manager of all supervision, management, and executive education and training for law enforcement officers in the State of Arkansas.
    2. Effective July 1, 1997, to accomplish its broader scope and mission, the institute and its functions, budget, personnel, equipment, all funds, and existing contracts and agreements, including those made at the behest of the institute, shall be transferred in their entirety from the University of Arkansas at Little Rock to the University of Arkansas to better serve the citizens of the State of Arkansas.
      1. In its association with the University of Arkansas as a division thereof, the Director of the Criminal Justice Institute shall be appointed by and report to the President of the University of Arkansas.
      2. The president shall seek the advice and counsel of the Criminal Justice Institute Advisory Board for Law Enforcement Management Training and Education in the appointment of the director.
    1. In the administration of the institute, efforts shall be made to maintain personnel salary levels at a competitive level to permit recruitment of the best qualified candidates.

History. Acts 1993, No. 1111, § 3; 1997, No. 1035, § 2.

12-9-503. Criminal Justice Institute Advisory Board.

  1. There is established the Criminal Justice Institute Advisory Board for Law Enforcement Management Training and Education.
    1. The board shall have sixteen (16) members.
        1. The board shall consist of the following representatives:
          1. Two (2) representatives from the Arkansas Municipal Police Association;
          2. Two (2) representatives from the Arkansas Association of Chiefs of Police;
          3. Two (2) representatives from the Arkansas Sheriffs' Association; and
          4. Two (2) faculty members or administrators from institutions of higher education.
        2. The eight (8) members of the board in subdivision (b)(2)(A)(i) of this section shall be appointed by the Governor.
        3. Terms of the eight (8) members appointed pursuant to subdivision (b)(2)(A)(ii) of this section shall be four (4) years in length.
      1. Other members of the board shall be:
        1. The Special Agent in Charge of the Arkansas office of the Federal Bureau of Investigation or his or her designee;
        2. The President of the Arkansas Sheriffs' Association;
        3. The President of the Arkansas Association of Chiefs of Police;
        4. The Executive Director of the Arkansas Municipal Police Association;
        5. The Director of the Criminal Justice Institute;
        6. The Director of Legislative and Governmental Affairs of the Arkansas State Police Association;
        7. A citizen at large nominated by the Director of the Criminal Justice Institute; and
        8. The President of the University of Arkansas or his or her designee.
        1. Terms of the members serving pursuant to subdivision (b)(2)(B) of this section shall be five (5) years in length, and the terms shall be staggered so that, insofar as is possible, an equal number of members shall rotate each year.
        2. However, the term of a member who serves by virtue of the office he or she holds shall run so long as the member holds the office.

History. Acts 1993, No. 1111, § 2; 1997, No. 1035, § 3; 2005, No. 1962, § 29.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1111, § 2, subdivision (a)(2) of this section ended “effective July 1, 1993.”

Publisher's Notes. Acts 1993, No. 1111, § 2, provided, in part, terms of the members of the Criminal Justice Institute Advisory Board for Law Enforcement Management Training and Education would be 4 years with an initial drawing of lots establishing the staggering of terms.

Amendments. The 2005 amendment deleted former (b); redesignated former (a)(2) and (a)(3) as present (b)(1) and (b)(2); substituted “members appointed pursuant to subdivision (b)(2)(A)(ii)” for “association and institution representatives” in present (b)(2)(A)(iii); in present (b)(2)(C)(i), deleted “of office” following “Terms” and inserted “serving pursuant to subdivision (b)(2)(B)”; and made minor punctuation changes.

12-9-504. Evaluation.

In order to ensure quality control, provide for efficient use of available resources, and minimize duplication of effort, the Criminal Justice Institute shall be the clearinghouse to determine the qualifications of instructors, both academic and practitioner, and to certify all programs of instruction pursuant to this subchapter.

History. Acts 1993, No. 1111, § 4.

12-9-505. Certification and accreditation program.

The Criminal Justice Institute shall develop a certification and accreditation program for all law enforcement supervisors, managers, and heads of police departments and law enforcement agencies.

History. Acts 1993, No. 1111, § 5.

12-9-506. Compensation.

In order to ensure the best available training, education, and programs, the Criminal Justice Institute is authorized to pay honoraria to state, county, and municipal employees upon approval of their supervisors and within their line item salary maximum limits.

History. Acts 1993, No. 1111, § 6.

12-9-507. Staffing procedure.

The Criminal Justice Institute shall submit to the Joint Budget Committee a yearly report reflecting hiring and participation.

History. Acts 1994 (2nd Ex. Sess.), No. 35, § 5; 1997, No. 1035, § 4.

12-9-508. National Center for Rural Law Enforcement Advisory Board.

  1. There is established the National Center for Rural Law Enforcement Advisory Board to address policy issues, provide guidance, and further develop national initiatives.
  2. The members of the board shall be appointed by the Director of the Criminal Justice Institute and approved by the President of the University of Arkansas and shall include:
    1. The President of the University of Arkansas or his or her designee;
    2. The Director of the Criminal Justice Institute;
    3. A member of the House of Representatives;
    4. A member of the Senate;
    5. Two (2) executives with law enforcement experience;
    6. A national-level executive with law enforcement experience;
    7. A prominent academician; and
    8. A nationally prominent citizen.

History. Acts 2005, No. 1962, § 30.

Subchapter 6 — Law Enforcement Officer Employment, Appointment, or Separation

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-9-601. Definitions.

As used in this subchapter:

  1. “Commission” means the Arkansas Commission on Law Enforcement Standards and Training; and
  2. “Employing agency” means any state agency or any county, municipality, or other political subdivision of the state, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as law enforcement officers.

History. Acts 1997, No. 949, § 1.

12-9-602. Notice of employment, appointment, or separation — Response by the law enforcement officer — Duty of division.

    1. An employing agency shall immediately notify the Division of Law Enforcement Standards and Training, in a manner adopted by the division, of the employment or appointment, or separation from employment or appointment, of any law enforcement officer.
    2. Separation from employment or appointment includes any firing, termination, resignation, retirement, or voluntary or involuntary extended leave of absence of any law enforcement officer.
    3. A submission to the division related to the employment or appointment, or separation from employment or appointment, of a law enforcement officer is subject to the provisions of § 5-53-103 concerning false swearing.
    1. In a case of separation from employment or appointment, the employing agency shall notify the division in a manner adopted by the division, setting forth in detail the facts and reasons for the separation.
    2. In a case of a separation from employment or appointment for one (1) of the following reasons, the notice shall state that:
      1. The law enforcement officer was separated for his or her failure to meet the minimum qualifications for employment or appointment as a law enforcement officer;
      2. The law enforcement officer was dismissed for a violation of state or federal law;
      3. The law enforcement officer was dismissed for a violation of the regulations of the law enforcement agency; or
      4. The law enforcement officer resigned while he or she was the subject of a pending internal investigation.
    3. Any law enforcement officer who has separated from employment or appointment shall be permitted to respond to the separation, in writing, to the division, setting forth the facts and reasons for the separation as he or she understands them.
    1. Before employing or appointing a law enforcement officer, a subsequent employing agency shall contact the division to inquire as to the facts and reasons a law enforcement officer became separated from any previous employing agency.
    2. The division shall provide subsequent employing agencies with all information in the division's possession resulting from the requirements of subsection (b) of this section.
    1. An administrator of an employing agency who discloses information under this section is immune from civil liability for such disclosure or its consequences.
    2. An employing agency is not civilly liable for disclosure of information under this subchapter or performing any other duties under this subchapter.
    1. The division and its employees who disclose information under this section are immune from civil liability for such disclosure or its consequences.
    2. The division and its employees are not civilly liable for:
      1. Disclosure of information under this subchapter; or
      2. Performing any other duties under this subchapter.

History. Acts 1997, No. 949, § 1; 1999, No. 949, § 1; 2019, No. 151, § 8; 2019, No. 910, §§ 5828-5832.

A.C.R.C. Notes. Acts 2019, No. 151, § 8, used “commission” when adding the new language of present subdivisions (a)(3), (b)(1), and (c)(2) of this section. However, pursuant to the amendments made to this section by Acts 2019, No. 910, §§ 5828-5832, and pursuant to the authority of § 25-43-109 and Acts 2019, No. 910, § 6343, the Arkansas Code Revision Commission has changed “commission” to “division” in these subdivisions.

Acts 2019, No. 910, § 5828, changed “commission” to “division” in former subdivision (a)(1)(B) of this section. However, Acts 2019, No. 151, § 8, specifically repealed this subdivision.

Acts 2019, No. 910, § 5829, changed “commission” to “division” in the phrase “execute and maintain an affidavit-of-separation form adopted by the commission” in former subdivision (b)(1)(A) of this section. However, Acts 2019, No. 151, § 8, specifically repealed this phrase.

Acts 2019, No. 910, § 5829, changed “commission” to “division” in former subdivision (b)(1)(B) of this section. However, Acts 2019, No. 151, § 8, specifically repealed this subdivision.

Amendments. The 2019 amendment by No. 151 deleted (a)(1)(B) and redesignated former (a)(1)(A) as (a)(1); substituted “in a manner” for “in writing, or on a form” in (a)(1); added (a)(3); deleted (b)(1)(B) and (b)(1)(C) and redesignated former (b)(1)(A) as (b)(1); substituted “notify the commission in a manner” for “execute and maintain an affidavit-of-separation form” in (b)(1); substituted “shall” for “must” in (b)(3) and (c)(1); rewrote (c)(2); substituted “are not” for “shall not be” in the introductory language of (e)(2); and made stylistic changes.

The 2019 amendment by No. 910 substituted “division” for “commission” and made similar changes throughout the section; and substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training” in (a)(1)(A).

12-9-603. Certification review.

When an employing agency reports that a law enforcement officer was separated from employment or appointment for one (1) or more of the reasons specified in § 12-9-602(b)(2), the Arkansas Commission on Law Enforcement Standards and Training shall review the certification of the law enforcement officer, the law enforcement officer's eligibility for certification, and the law enforcement officer's ability to act as a law enforcement officer, to determine whether to suspend or revoke the law enforcement officer's:

  1. Certification;
  2. Eligibility for certification; or
  3. Ability to act as a law enforcement officer.

History. Acts 1997, No. 949, § 1; 2019, No. 151, § 9.

Amendments. The 2019 amendment rewrote the section.

Chapter 10 Communications Systems

Subchapter 1 — General Provisions

[Reserved.]

Subchapter 2 — Statewide Radio Communications System

Effective Dates. Acts 1979, No. 520, § 9: Mar. 21, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that a problem of crisis proportion exists on the misuse of radio frequencies assigned to Arkansas law enforcement officers. Therefore, an emergency is hereby declared to exist and this act, being immediately necessary for the preservation of the public peace, health, and safety of the citizens of Arkansas shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-10-201. Definitions.

As used in this subchapter:

  1. “Assigned county frequency” means a frequency assigned to a specific county sheriff's office for carrying on day-to-day operations within the county. This frequency is allocated for use by the specific county-based stations and mobile units which are participating in the statewide communications system;
  2. “High band communication system” means frequencies assigned to larger municipal police departments and the county sheriffs' offices of Pulaski County, Garland County, and Sebastian County. The high band communication system frequencies shall be between one hundred fifty megahertz (150 MHz) and one hundred seventy-five megahertz (175 MHz);
  3. “Law enforcement agency” means the county sheriff's department, municipal police department, or city marshal;
  4. “Statewide base-to-base frequency” means a common statewide frequency for carrying on routine business between agencies located in different counties. This frequency is allocated for base station use only. Mobile units are not allowed to operate on this frequency. The statewide base-to-base frequency shall be thirty-seven and two tenths megahertz (37.20 MHz); and
  5. “Statewide emergency frequency” means a common statewide frequency for use in an emergency situation between law enforcement agencies. This frequency is allocated for use by all participating agency-based stations and mobile units. The statewide emergency frequency shall be thirty-seven and twenty-four hundredths megahertz (37.24 MHz).

History. Acts 1979, No. 520, § 1; A.S.A. 1947, § 42-1101.

12-10-202. Transmissions by unauthorized persons — Penalty.

  1. It shall be unlawful to transmit over a frequency assigned to a law enforcement agency or department unless it has been approved by the agency or department head or his or her designee.
  2. Violation of this or any other portion of this subchapter shall constitute a Class A misdemeanor.

History. Acts 1979, No. 520, § 8; A.S.A. 1947, § 42-1108; Acts 1987, No. 251, § 1.

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-10-203. Policy committee.

  1. A seven-member policy committee composed of two (2) representatives each from the Arkansas Sheriffs' Association, the Arkansas Association of Chiefs of Police, and the Arkansas Law Enforcement Officers Association and one (1) representative from the Division of Arkansas State Police will be responsible for policy making and for policing a statewide communication system.
  2. Members of the policy committee will be appointed by the presidents of the respective law enforcement associations and the Director of the Division of Arkansas State Police.

History. Acts 1979, No. 520, § 6; A.S.A. 1947, § 42-1106; Acts 2019, No. 910, § 5833.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a) and (b).

12-10-204. Special conditions for use of statewide emergency frequency.

The following constitute conditions whereby the emergency frequency can be used if assistance from other counties or the Department of Arkansas State Police is needed:

  1. A potential life or death situation such as:
    1. A serious traffic accident involving personal injury;
    2. Major danger to life from chemicals, explosives, gas, or nuclear or other hazardous material; or
    3. Implementing rescue efforts;
  2. A felony in progress or pursuing a felon or suspected felon;
  3. A civil disorder;
  4. A natural disaster;
  5. Emergency access to the nearest national crime information center or criminal justice information system computer terminal involving information as needed for subdivision (2) of this section; or
  6. A mobile unit traveling outside its assigned county for conducting official business with law enforcement agencies in that jurisdiction.

History. Acts 1979, No. 520, § 4; A.S.A. 1947, § 42-1104.

12-10-205. Frequency allocation.

  1. The assigned county operating frequency will be used for:
    1. Base-to-mobile and mobile-to-mobile unit transmissions within each county;
    2. Base-to-base radio transmissions within those counties which have more than one (1) base station operating on the county frequency;
    3. Emergency transmission using a 10-33 code within each county when assistance from other counties or the Department of Arkansas State Police is not needed; and
      1. With permission of the county sheriffs concerned, adjacent counties may allow each other's mobile units to install, receive, and transmit crystals and operate, when necessary, on each other's assigned county operating frequency.
      2. In lieu of the preceding, adjacent county law enforcement mobile units may install receivers or scanners on each other's assigned county frequency in order to have cross band communication capability with each other.
  2. The statewide base-to-base frequency, thirty-seven and two tenths megahertz (37.20 MHz), will be used for:
    1. All routine base-to-base law enforcement radio transmissions between city and county and law enforcement agencies located in different counties. It can also be used for a base-to-base radio transmission in the same county when necessary; and
    2. Routine access to the nearest state police district headquarters and the nearest national crime information center or criminal justice information system computer terminal.
    1. The statewide emergency frequency, thirty-seven and twenty-four hundredths megahertz (37.24 MHz), will be used under special conditions found in § 12-10-204 and when radio contact between various law enforcement base stations or mobile units is mandatory for the preservation of peace or the protection of life and property.
    2. The statewide emergency frequency may be used by law enforcement agencies within their assigned jurisdiction in the event of a breakdown on the county operating frequency or the statewide base-to-base frequency, only as an interim measure in lieu of the assigned county operating frequency or the statewide base-to-base frequency, if all three (3) of the following conditions are met:
      1. The breakdown has occurred on a base station. Mobile unit breakdowns on the county frequency will not be cause for use of the emergency frequency;
      2. Maximum efforts are exerted in getting the broken-down base station back on the air; and
      3. All surrounding counties are to be advised as to why the emergency frequency is being used in lieu of the county operating frequency or statewide base-to-base frequency and an approximate time as to when this condition will be corrected.

History. Acts 1979, No. 520, § 2; A.S.A. 1947, § 42-1102.

12-10-206. Assigned county operating frequency.

The following counties shall be assigned the following frequencies:

  1. Thirty-seven and four hundredths megahertz (37.04 MHz): Calhoun, Chicot, Clark, Faulkner, Fulton, Little River, Monroe, Newton, Poinsett, and Scott;
  2. Thirty-seven and six hundredths megahertz (37.06 MHz): Ashley, Benton, Cleburne, Columbia, Cross, Jefferson, Howard, Logan, Marion, and Randolph;
  3. Thirty-seven and eight hundredths megahertz (37.08 MHz): Baxter, Clay, Drew, Lonoke, Ouachita, Sevier, and Yell;
  4. Thirty-seven and twelve hundredths megahertz (37.12 MHz): Craighead, Dallas, Desha, Madison, Polk, Prairie, and Stone;
  5. Thirty-seven and fourteen hundredths megahertz (37.14 MHz): Carroll, Hot Spring, Lawrence, Lee, Lincoln, and Van Buren;
  6. Thirty-seven and sixteen hundredths megahertz (37.16 MHz): Arkansas, Boone, Crittenden, Nevada, Perry, and Sharp;
  7. Thirty-seven and twenty-eight hundredths megahertz (37.28 MHz): Grant, Greene, Johnson, Lafayette, Montgomery, Phillips, and White;
  8. Thirty-seven and thirty-two hundredths megahertz (37.32 MHz): Cleveland, Conway, Franklin, Independence, Pike, and St. Francis;
  9. Thirty-seven and thirty-six hundredths megahertz (37.36 MHz): Bradley, Crawford, Izard, Mississippi, Pope, Saline, and Woodruff;
  10. Thirty-seven and four tenths megahertz (37.40 MHz): Jackson, Hempstead, Searcy, and Union; and
  11. Thirty-seven and forty-two hundredths megahertz (37.42 MHz): Sebastian.

History. Acts 1979, No. 520, § 3; A.S.A. 1947, § 42-1103.

12-10-207. Interfacing the Department of Arkansas State Police Communications System.

In order to interface the separate Department of Arkansas State Police communications system with that of the statewide law enforcement communications system:

  1. All municipal and county law enforcement agencies should install receivers on the frequency of the district of the Department of Arkansas State Police in which their county or city is located, at their base stations and in their vehicles so that effective cross banding of communications with the department can be accomplished when necessary;
  2. All department district headquarters will monitor the statewide base-to-base frequency, thirty-seven and two tenths megahertz (37.20 MHz), and the statewide emergency frequency, thirty-seven and twenty-four hundredths megahertz (37.24 MHz), and respond to calls by transmitting on the frequency of the district of the department in which their county or city is located, which will be monitored by local law enforcement agencies;
  3. All department mobile units will have the capability to monitor the emergency frequency, thirty-seven and twenty-four hundredths megahertz (37.24 MHz), and respond to calls by transmitting on the frequency of the district of the department in which their county or city is located, which will be monitored by local law enforcement agencies; and
  4. With the permission of the department, counties may, at their own expense, place complete mobile radios with the assigned county frequency in department vehicles.

History. Acts 1979, No. 520, § 5; A.S.A. 1947, § 42-1105.

12-10-208. Official transmissions only.

  1. All radio transmissions should be used for conducting official law enforcement business only and should be as clear and concise as possible.
  2. Standard “ten signals” and the phonetic alphabet are recommended for use by all participating agencies.

History. Acts 1979, No. 520, § 7; A.S.A. 1947, § 42-1107.

Subchapter 3 — Arkansas Public Safety Communications and Next Generation 911 Act of 2019

A.C.R.C. Notes. Acts 2012, No. 213, § 11, provided: “ENHANCED 9-1-1 SYSTEM.

Funds appropriated in Section 9 of this Act are to be allocated to support the deployment of a hosted supplemental 9-1-1 database service in Arkansas. This supplemental database should allow for Arkansans to provide information to 9-1-1 to be used in emergency scenarios. This database service should:

“a) Collect a variety of formatted data relevant to 9-1-1 and first responder needs. Among other items, this information should include photographs of the citizen, physical descriptions, medical information, household data, and emergency contacts.

“b) Allow for information to be entered by Arkansans via a secure website where they can elect to provide as little or as much information as they choose.

“c) Automatically display data provided by Arkansas to 9-1-1 call takers for all types of phones (Landline, Mobile, VoIP) when a call is placed to 9-1-1 from a registered and confirmed phone number.

“d) Support the delivery of citizen information via a secure internet connection to all PSAPs within Arkansas.

“e) Service should work across all 9-1-1 call taking equipment in Arkansas and allow for the easy transfer of information into Computer Aided Dispatch (CAD) or Records Management Systems (RMS).

“f) Data should be made available at a city, county, state, or national level to help protect Arkansans wherever they are.

“g) Data should be made available to first responders.

“h) Be designed to work in today's environment or future i3-based systems.

“i) Demonstrate the ability to assist Arkansans with functional needs such as the deaf and hard of hearing, families with autism, physical and mental disabilities, and special rescue needs.”

Acts 2019, No. 660, § 1, provided: “Title. This act shall be known and may be cited as the ‘Public Safety Act of 2019’”.

Acts 2019, No. 660, § 2, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) The State of Arkansas recognizes that maintaining the public's safety is a sacred trust of the government;

“(2) The citizens of Arkansas depend on state government to provide for public welfare and safety; and

“(3) To ensure public welfare and safety, it is important and worthy to achieve the following public safety priorities:

“(A) Developing a next generation 911 system;

“(B) Replacing the Arkansas Emergency Telephone Services Board with the Arkansas 911 Board; and

“(C) Providing upgrades and maintenance funding for the Arkansas Wireless Information Network.

“(b) It is the intent of the General Assembly to simplify and update charges paid by telecommunication subscribers to provide the best public safety communications and services possible to all Arkansas and first responders by:

“(1) Developing a next generation 911 system;

“(2) Replacing the Arkansas Emergency Telephone Services Board with the Arkansas 911 Board; and

“(3) Providing upgrades and maintenance funding for the Arkansas Wireless Information Network”.

Cross References. Public utilities and carriers, § 23-1-101 et seq.

Effective Dates. Acts 1985, No. 683, § 12: Mar. 27, 1985. Emergency clause provided: “It has been found and declared by the General Assembly of the State of Arkansas that there is an immediate need for designation of the 9-1-1 Emergency Telephone Number and creation of 9-1-1 Public Safety Communications Centers in order to enable response of emergency services which protect life and property to be accessed in a prompt and simplified manner and that enactment of this bill will hasten the availability of these services. Therefore an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall take effect from and after the date of its approval.”

Acts 1991, No. 1196, § 9: July 1, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1991 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1991 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act, being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1991.”

Acts 1995, No. 627, § 5: Mar. 14, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that political subdivisions with less than fifteen thousand (15,000) population are not able to provide a 911 service under the current restrictions on emergency telephone service charges; that this act grants greater flexibility to those political subdivisions; and that this act should go into effect as soon as possible in order to help provide 911 service to the portions of this state which do not now have the capability of financing the same. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 106, § 5: Feb. 6, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that political subdivisions with less than twenty-five thousand (25,000) population are not able to provide a 911 service under the current restrictions on emergency telephone service charges; that this act grants greater flexibility to those political subdivisions; and that this act should go into effect as soon as possible in order to help provide 911 service to the portions of this state which do not now have the capability of financing the same. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 952, § 6: Mar. 31, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that political subdivisions with less than twenty-seven thousand five hundred population are not able to provide a 911 service under the current restrictions on emergency telephone service charges; that this act grants greater flexibility to those political subdivisions; and that this act should go into effect as soon as possible in order to help provide 911 service to the portions of this state which do not now have the capability of financing the same. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1999, No. 46, § 5: Feb. 11, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that there is an immediate need for the proportionate and speedy disbursement of funds to public safety answering point (PSAP) administrators; that such proportionate disbursement of funds will better enable PSAP administrators to ensure that CMRS calls are properly answered and disposed of; that this act will better enable a prompt response to 911 service calls resulting in the protection of life and property; that until this act goes into effect the citizens of this State will be denied the protection better afforded by it. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2001, No. 907, § 3: amendment effective by its own terms on Aug. 1, 2002.

Acts 2003, No. 1792, § 2: Apr. 22, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that existing CMRS emergency telephone service charges collected are insufficient to allow some political subdivisions serving as default public safety answering points or experiencing high volumes of commuter traffic to recover their costs incurred in properly answering 911 emergency calls and that this act is immediately necessary to ensure adequate 911 emergency service continues to be provided. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2007, No. 582, § 3: Mar. 28, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that declining landline 911 surcharges have caused an immediate loss of revenues for public safety answering points and additional revenues are vital to the continuing operations of those public safety answering points. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2009, No. 1480, § 117: July 31, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act makes various revisions to Arkansas election laws that are designed to improve the administration of elections and special elections and that these revisions should be implemented as soon as possible so that the citizens of this state may benefit from improved election procedures. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2013, No. 623, § 8: Jan. 1, 2014. Effective date clause provided: “This act is effective on and after January 1, 2014.”

Acts 2017, No. 574, § 2: July 1, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are currently more than one hundred twenty (120) public safety answering points in the state; that many of these public safety answering points are in close proximity to others, creating a duplication of services and errors in 911 service; and that this act is necessary to save taxpayer money and create more efficient government services. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2017.”

Acts 2019, No. 660, § 11: Oct. 1, 2019. Effective date clause provided: “Sections 4 and 8 of this act are effective on and after October 1, 2019”.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-10-301. Title.

This subchapter shall be known and may be cited as the “Arkansas Public Safety Communications and Next Generation 911 Act of 2019”.

History. Acts 1985, No. 683, § 1; A.S.A. 1947, § 73-1822; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment inserted “shall be known and” and “and Next Generation 911” and substituted “2019” for “1985”.

12-10-302. Legislative findings, policy, and purpose.

  1. It has been determined to be in the public interest to shorten the time and simplify the method required for a citizen to request and receive emergency aid.
  2. The provision of a single, primary three-digit emergency number through which fire suppression, rescue, disaster and major emergency, emergency medical, and law enforcement services may be quickly and efficiently obtained will provide a significant contribution to response by simplifying notification of these emergency service responders. A simplified means of procuring these emergency services will result in saving of life, a reduction in the destruction of property, quicker apprehension of criminals, and ultimately the saving of moneys.
  3. Establishment of a uniform emergency telephone number is a matter of concern to all citizens.
  4. The emergency number 911 has been made available at the national level for implementation throughout the United States and Canada.
  5. It is found and declared necessary to:
    1. Establish the National Emergency Number 911 (nine, one, one) as the primary emergency telephone number for use in participating political subdivisions of the State of Arkansas;
    2. Authorize each chief executive to direct establishment and operation of public safety answering points in their political subdivisions and to designate the location of a public safety answering point and agency which is to operate the center. As both are elected positions, a county judge must obtain concurrence of the county sheriff;
    3. Encourage the political subdivisions to implement public safety answering points; and
    4. Provide a method of funding for the political subdivisions, subject to the jurisdiction of the Arkansas 911 Board, which will allow them to implement, operate, and maintain a public safety answering point.

History. Acts 1985, No. 683, § 2; A.S.A. 1947, § 73-1823; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment substituted “public safety answering points” for “911 public safety communications center” in (e)(2) and (e)(3); substituted “public safety answering point” for “911 public safety communications center” in (e)(2); and, in (e)(4), inserted “subject to the jurisdiction of the Arkansas 911 Board” and substituted “answering point” for “communications center”.

Case Notes

Cited: West Wash. County Emergency Medical Servs. v. Washington County, 967 F.2d 1252 (8th Cir. 1992).

12-10-303. Definitions.

As used in this subchapter:

  1. “Access line” means a communications line or device that has the capacity to access the public switched network;
  2. “Automatic location identification” means an enhanced 911 service capability that enables the automatic display of information defining the geographical location of the telephone used to place the 911 call;
  3. “Automatic number identification” means an enhanced 911 service capability that enables the automatic display of the ten-digit number used to place a 911 call from a wire line, wireless, voice over internet protocol, or any nontraditional phone service;
  4. “Basic 911 system” means a system by which the various emergency functions provided by public safety agencies within each political subdivision may be accessed utilizing the three-digit number 911, but no available options are included in the system;
  5. “Chief executive” means the Governor, county judges, mayors, city managers, or city administrators of incorporated places, and is synonymous with head of government, dependent on the level and form of government;
  6. “CMRS connection” means each account or number assigned to a CMRS customer;
    1. “Commercial mobile radio service” or “CMRS” means commercial mobile service under §§ 3(33) and 332(d), Telecommunications Act of 1996, 47 U.S.C. § 151 et seq., Federal Communications Commission rules, and the Omnibus Budget Reconciliation Act of 1993.
    2. “Commercial mobile radio service” or “CMRS” includes any wireless or two-way communication device that has the capability of connecting to a public safety answering point;
  7. “Dispatch center” means a public or private agency that dispatches public or private safety agencies but does not operate a public safety answering point;
  8. “Enhanced 911 network features” means those features of selective routing that have the capability of automatic number and location identification;
    1. “Enhanced 911 system” means enhanced 911 service, which is a telephone exchange communications service consisting of telephone network features and public safety answering points designated by the chief executive that enables users of the public telephone system to access a public safety answering point by dialing the digits “911”.
    2. The enhanced 911 system directs 911 calls to appropriate public safety answering points by selective routing based on the geographical location from which the call originated and provides the capability for automatic number identification and automatic location identification;
    1. “ESINet” means a managed internet protocol network that is used for emergency services communications that can be shared by all public safety agencies and that provides the internet protocol transport infrastructure upon which independent application platforms and core services can be deployed, including without limitation those services necessary for providing next generation 911 services.
    2. “ESINet” is the designation for the network, but not the services on the network;
  9. “Exchange access facilities” means all lines provided by the service supplier for the provision of local exchange service;
  10. “Geographic information system” means a system for capturing, storing, displaying, analyzing, and managing data and associated attributes which are spatially referenced;
  11. “Governing authority” means county quorum courts and governing bodies of municipalities;
  12. “Next generation 911” means a secure, internet protocol-based, open standards system, composed of hardware, software, data, and operation policies and procedures, that:
    1. Provides standardized interfaces from emergency call and message services to support emergency communications;
    2. Processes all types of emergency calls, including voice, text, data, and multimedia information;
    3. Acquires and integrates additional emergency call data useful to call routing and handling;
    4. Delivers the emergency calls, messages, and data to the appropriate public safety answering point and other appropriate emergency entities based on the location of the caller;
    5. Supports data, video, and other communications needs for coordinated incident response and management; and
    6. Interoperates with services and networks used by first responders to facilitate emergency response;
  13. “Nontraditional phone service” means any service that:
    1. Enables real-time voice communications from the user's location to customer premise equipment;
    2. Permits users to receive calls that originate on the public switched telephone network or to terminate calls to the public switched telephone network; and
    3. Has the capability of placing a 911 call;
  14. “Nontraditional phone service connection” means each account or number assigned to a nontraditional phone service customer;
    1. “Operating agency” means the public safety agency authorized and designated by the chief executive of the political subdivision to operate a public safety answering point.
    2. Operating agencies are limited to offices of emergency services, fire departments, and law enforcement agencies of the political subdivisions;
  15. “Prepaid wireless telecommunications service” means a prepaid wireless calling service as defined in § 26-52-314;
  16. “Private safety agency” means any entity, except a public safety agency, providing emergency fire, ambulance, or emergency medical services;
  17. “Public safety agency” means an agency of the State of Arkansas or a functional division of a political subdivision that provides firefighting, rescue, natural, or human-caused disaster or major emergency response, law enforcement, and ambulance or emergency medical services;
  18. “Public safety answering point” means the location at which all 911 communications are initially answered that is operated on a twenty-four-hour basis by an operating agency and dispatches two (2) or more public safety agencies;
  19. “Public safety officers” means specified personnel of public safety agencies;
  20. “Readiness costs” means equipment and payroll costs associated with equipment, call takers, and dispatchers on standby waiting for 911 calls;
  21. “Selective routing” means the method employed to direct 911 calls to the appropriate public safety answering point based on the geographical location from which the call originated;
  22. “Service supplier” means any person, company, or corporation, public or private, providing exchange telephone service, nontraditional phone service, voice over internet protocol service, or CMRS service throughout the political subdivision;
  23. “Service user” means any person, company, corporation, business, association, or party not exempt from county or municipal taxes or utility franchise assessments that is provided landline telephone service, CMRS service, voice over internet protocol service, or any nontraditional phone service with the capability of placing a 911 call in the political subdivision;
  24. “Short message service” means a service typically provided by mobile carriers that sends short messages to an endpoint;
    1. “Tariff rate” means the rate or rates billed by a service supplier as stated in the service supplier's tariffs, price lists, customer contracts, or other methods of publishing service offerings that represent the service supplier's recurring charges for exchange access facilities, exclusive of all:
      1. Taxes;
      2. Fees;
      3. Licenses; or
      4. Similar charges whatsoever.
    2. The tariff rate per county may include extended service area charges only if an emergency telephone service charge has been levied in a county and a resolution of intent has been passed by a county's quorum court that defines tariff rate as being inclusive of extended service area charges;
  25. “Telecommunicator” means a person employed by a public safety answering point or an emergency medical dispatcher service provider, or both, who is qualified to answer incoming emergency telephone calls or provide for the appropriate emergency response, or both, either directly or through communication with the appropriate public safety answering point;
  26. “Voice over internet protocol connection” means each account or number assigned to a voice over internet protocol customer;
  27. “Voice over internet protocol service” means any service that:
    1. Enables real-time voice communications;
    2. Requires a broadband connection from the user's location;
    3. Requires internet protocol compatible customer premise equipment;
    4. Permits users to receive calls that originate on the public switched telephone network or to terminate calls to the public switched telephone network; and
    5. Has the capability of placing a 911 call; and
  28. “Wireless telecommunications service provider” means a provider of commercial mobile radio services:
    1. As defined in 47 U.S.C. § 332(b), as it existed on January 1, 2006, including all broadband personal communications services, wireless radio telephone services, geographic-area-specialized and enhanced-specialized mobile radio services, and incumbent, wide area, specialized mobile radio licensees that offer real-time, two-way voice service interconnected with the public switched telephone network; and
    2. That either:
      1. Is doing business in the State of Arkansas; or
      2. May connect with a public safety answering point.

History. Acts 1985, No. 683, § 3; A.S.A. 1947, § 73-1824; Acts 1997, No. 810, § 1; 2003, No. 668, § 1; 2007, No. 582, § 1; 2009, No. 1221, § 1; 2013, No. 623, §§ 1, 2; 2015, No. 919, § 1; 2019, No. 660, § 3.

Amendments. The 2007 amendment added the subdivision designations; in (2), substituted “ten-digit” for “seven-digit” and added “from a wire line, wireless, voice over internet protocol, or any non-traditional phone service”; substituted “Arkansas” for “CMRS” in (4); inserted present (14), (15), and (17) and redesignated the remaining subsections accordingly; in (24), substituted “landline telephone service, CMRS service, voice over internet protocol service, or any non-traditional phone service with the capability of placing a 911 call” for “telephone service or” and made a related change; and added (26), (27) and (28).

The 2009 amendment added present (22).

The 2013 amendment rewrote (17); and substituted “price lists, customer service contracts, or other methods of publishing service offerings that represent” for “and approved by the Arkansas Public Service Commission, which represents” in (26)(A) [now (27)(A)].

The 2015 amendment inserted the definition of “Secondary public safety answering point”.

The 2019 amendment rewrote the section.

U.S. Code. The federal definition of commercial mobile service referred to in subdivision (7)(A) of this section is codified as 47 U.S.C. § 332(d), and the definition of mobile service is codified as 47 U.S.C. § 153(33).

12-10-304. Public safety answering points.

    1. The chief executive of a political subdivision may:
      1. Designate the public safety answering point of another political subdivision to serve his or her political subdivision as a public safety answering point only; or
      2. Retain a dispatch center to serve both public safety answering point and dispatch functions.
    2. A designation under subdivision (a)(1) of this section shall be in the form of a written mutual aid agreement between the political subdivisions, with approval from the Arkansas 911 Board, and shall include that a fair share of funding shall be contributed by the political subdivision being served to the political subdivision operating the public safety answering point.
    3. Moneys necessary for the fair share of funding may be generated:
      1. As authorized in this subchapter;
      2. By funds received by or allocated by the Arkansas 911 Board; and
      3. By any other funds available to the political subdivision unless the use of the funds for 911 services is prohibited by law.
    4. If a designation under subdivision (a)(1) of this section and a mutual aid agreement are made, an additional public safety answering point shall not be created without termination of the mutual aid agreement.
  1. A public safety answering point established under this subchapter may serve the jurisdiction of more than one (1) public agency of the political subdivision or, through mutual aid agreements, more than one (1) political subdivision.
  2. This subchapter does not prohibit or discourage in any manner the formation of multiagency or multijurisdictional public safety answering points.
  3. The chief executive of a political subdivision may contract with a private entity to operate a public safety answering point under rules established by the Arkansas 911 Board.

History. Acts 1985, No. 683, §§ 2, 4, 7; A.S.A. 1947, §§ 73-1823, 73-1825, 73-1828; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment substituted “Public safety answering points” for “911 communication centers — Creation” in the section heading, and rewrote the section.

12-10-305. Arkansas 911 Board.

    1. There is created the Arkansas 911 Board to consist of the following members:
      1. The Director of the Division of Emergency Management or his or her designee;
      2. The Auditor of State or his or her designee;
      3. The State Geographic Information Officer of the Arkansas Geographic Information Systems Office or his or her designee;
      4. One (1) county judge appointed by the Association of Arkansas Counties;
      5. One (1) mayor appointed by the Arkansas Municipal League;
      6. One (1) 911 coordinator, director, or telecommunicator appointed by the Speaker of the House of Representatives;
      7. One (1) 911 coordinator, director, or telecommunicator appointed by the President Pro Tempore of the Senate;
      8. One (1) police chief appointed by the Arkansas Association of Chiefs of Police; and
      9. The following members to be appointed by the Governor:
        1. One (1) Emergency Management Director of a political subdivision;
        2. One (1) sheriff;
        3. One (1) representative of emergency medical services; and
        4. One (1) fire chief.
      1. The members under subdivisions (a)(1)(G), (a)(1)(I)(i), (a)(1)(I)(iii), and (a)(1)(I)(iv) of this section shall serve a term of two (2) years.
      2. The members under subdivisions (a)(1)(D), (a)(1)(E), (a)(1)(F), (a)(1)(H), and (a)(1)(I)(ii) of this section shall serve a term of four (4) years.
    2. Vacancies shall be filled in the same manner as the original appointment and each member shall serve until a qualified successor is appointed.
    3. The Director of the Division of Emergency Management shall serve as the chair and call the first meeting no later than thirty (30) days after the appointment of the majority of the members of the Arkansas 911 Board.
    4. The Arkansas 911 Board shall establish bylaws.
  1. The duties of the Arkansas 911 Board shall include without limitation:
      1. Developing a plan no later than January 1, 2022, to provide funding for no more than seventy-seven (77) public safety answering points to operate in the state.
      2. If the Arkansas 911 Board determines it is necessary, the Arkansas 911 Board may provide funding for more or fewer than seventy-seven (77) public safety answering points with a two-thirds (2/3) vote of the Arkansas 911 Board;
    1. Within one (1) year of July 24, 2019, promulgating rules necessary to:
      1. Establish guidelines for Arkansas public safety answering points in accordance with the Association of Public-Safety Communications Officials International, Inc. and the National Emergency Number Association;
      2. Create standards for public safety answering point interoperability between counties and states; and
      3. Assist all public safety answering points in implementing a next generation 911 system in the State of Arkansas;
    2. Receiving and reviewing all 911 certifications submitted by public safety answering points in accordance with standards developed by the Arkansas 911 Board;
    3. Auditing any money expended by a political subdivision for the operation of a service supplier;
      1. Providing an annual report to the Governor and the Legislative Council.
      2. The report shall include a review and assessment of sustainability and the feasibility of further reduction of the required number of public safety answering points resulting from the standardization of operational processes and training and the implementation of next generation 911 service;
    4. Establishing and maintaining an interest-bearing account into which shall be deposited revenues transferred to the Arkansas 911 Board from the Arkansas Public Safety Trust Fund and the Arkansas Emergency Telephone Services Board; and
    5. Managing and disbursing the funds from the interest-bearing account described in subdivision (b)(6) of this section.
  2. The Arkansas 911 Board shall have all powers necessary to fulfill the duties of the Arkansas 911 Board, including without limitation power to enter, assign, and assume contracts.
  3. The Arkansas 911 Board shall disburse from the interest-bearing account described in subdivision (b)(6) of this section in the following manner:
      1. Not less than eighty-three and seventy-five hundredths percent (83.75%) of the total monthly revenues shall be distributed on a population basis to each political subdivision operating a public safety answering point that has the capability of receiving 911 calls on dedicated 911 trunk lines for expenses incurred for answering, routing, and proper disposition of 911 calls, including payroll costs, readiness costs, and training costs associated with wireless, voice over internet protocol, and nontraditional 911 calls.
      2. In determining the population basis for distribution of funds, the Arkansas 911 Board shall determine, based on the latest federal decennial census, the population of:
        1. All unincorporated areas of counties operating a public safety answering point that has the capacity to receive commercial mobile radio service, voice over internet protocol service, or nontraditional 911 calls on dedicated 911 trunk lines; and
        2. All incorporated areas of counties operating a public safety answering point that has the capacity to receive commercial mobile radio service, voice over protocol service, or nontraditional 911 calls on dedicated 911 trunk lines;
      1. Not more than fifteen percent (15%) of the total monthly revenues may be used:
        1. To purchase a statewide infrastructure for next generation 911, including without limitation ESINet, connectivity costs, and next generation 911 components and equipment; and
        2. By public safety answering points for upgrading, purchasing, programming, installing, and maintaining necessary data, basic 911 geographic information system mapping, hardware, and software, including any network elements required to supply enhanced 911 phase II cellular, voice over internet protocol, and other nontraditional telephone services, in connection with compliance with Federal Communications Commission requirements.
        1. A political subdivision operating a public safety answering point shall present invoices to the Arkansas 911 Board in connection with any request for reimbursement under subdivision (d)(2)(A)(ii) of this section.
        2. A request for reimbursement shall be approved by a majority vote of the Arkansas 911 Board.
      2. Any invoices presented to the Arkansas 911 Board for reimbursements of costs not described by subdivision (d)(2)(B)(ii) of this section may be approved only by a majority vote of the Arkansas 911 Board;
    1. Not more than one and twenty-five hundredths (1.25%) of the monthly revenues may be used by the Arkansas 911 Board to compensate the independent auditor and for administrative expenses, staff, and consulting services; and
    2. All interest received shall be disbursed as prescribed in this subsection.
  4. The Arkansas 911 Board may:
    1. Withhold for no less than six (6) months any additional revenue generated by the public safety charge and the prepaid public safety charge under this subchapter; and
    2. Calculate a monthly payment amount based on the prior calendar year certifications and remit that amount to the eligible governing body on a monthly basis.
    1. All cities and counties operating a public safety answering point shall submit to the Arkansas 911 Board no later than April 1 of each calendar year the following information in the form of a report:
      1. An explanation and accounting of the funds received by the city or county and expenditures of the funds received for the previous calendar year, along with a copy of the budget for the previous calendar year and a copy of the year-end appropriation and expenditure analysis of any participating or supporting counties, cities, or agencies;
      2. Any information requested by the Arkansas 911 Board concerning local public safety answering point operations, facilities, equipment, personnel, network, interoperability, call volume, telecommunicator training, and supervisor training;
      3. A copy of all documents reflecting 911 funds received for the previous calendar year, including without limitation wireless, wireline, general revenues, sales taxes, and other sources used by the city or county for 911 services; and
      4. The name of each telecommunicator, the telecommunicator's date of hire, the telecommunicator's date of termination, if applicable, and approved courses by the Arkansas Commission on Law Enforcement Standards and Training completed by the telecommunicator, including without limitation “train the trainer” courses.
    2. The chief executive for each public safety answering point shall gather the information necessary for the report under subdivision (f)(1) of this section and provide the report and a copy of the certification of the public safety answering point to the Arkansas 911 Board and to the county intergovernmental coordination council for use in conducting the annual review of services under § 14-27-104.
  5. The Arkansas 911 Board may withhold all or part of the disbursement to a public safety answering point if the report of an auditor or the Arkansas 911 Board otherwise confirms that the public safety answering point improperly used funds disbursed by the Arkansas 911 Board for purposes other than those authorized by § 12-10-323.
    1. Each county shall complete locatable address conversion of 911 physical address, assignment, and mapping within the county and certify to the Arkansas 911 Board that the locatable address conversion is completed no later than the last business day of February 2020.
    2. Failure to comply with this section may result in the Arkansas 911 Board's withholding funds from the public safety answering point.
  6. The Arkansas 911 Board may contract for 911 services in the implementation of the next generation 911.
    1. The Director of the Division of Emergency Management may:
      1. Enter, assign, assume, and execute contract extensions that would otherwise lapse during the transition period between the Arkansas Emergency Telephone Services Board and the Arkansas 911 Board; and
      2. Work with the Arkansas Emergency Telephone Services Board to ensure a smooth transition between the Arkansas Emergency Telephone Services Board and the Arkansas 911 Board.
    2. The Arkansas Emergency Telephone Services Board shall continue to receive and disburse funds and continue operations up to the last business day of December 2019.
    3. All emergency telephone service charges collected but not yet disbursed, other moneys, and any remaining balance in the interest-bearing account of the Arkansas Emergency Telephone Services Board shall be transferred to the Arkansas 911 Board by the last business day of December 2019.

History. Acts 2019, No. 660, § 3.

Publisher's Notes. Former § 12-10-305 is now codified as amended as § 12-10-304(a)-(c).

12-10-306. Communications personnel.

The staff and supervisors of a public safety answering point or dispatch center shall be:

    1. Paid employees, either sworn officers or civilians, of the operating agency designated by the chief executive of the political subdivisions.
    2. Personnel other than law enforcement or fire officers shall be considered public safety officers for the purposes of public safety communications or engaging by contract with the operating agency;
  1. Required to submit to criminal background checks for security clearances before accessing files available through the Arkansas Crime Information Center if the public safety answering point or dispatch center is charged with information service functions for criminal justice agencies of the political subdivision;
  2. Trained in operation of 911 system equipment and other training as necessary to operate a public safety answering point or dispatch center, or both;
  3. Subject to the authority of the affiliated agency and the chief executive of the political subdivision through the public safety answering point or dispatch center; and
    1. Required to immediately release without the consent or approval of any supervisor or other entity any information in their custody or control to a prosecuting attorney if requested by a subpoena issued by a prosecutor, grand jury, or any court for use in the prosecution or the investigation of any criminal or suspected criminal activity.
    2. The staff or supervisor of a public safety answering point or dispatch center, or both, an operating agency, and the service supplier are not liable in any civil action as a result of complying with a subpoena as required in subdivision (5)(A) of this section.

History. Acts 1985, No. 683, § 8; A.S.A. 1947, § 73-1829; Acts 2007, No. 651, § 1; 2009, No. 165, § 1; 2019, No. 660, § 3.

A.C.R.C. Notes. The repeal set out under § 12-10-306 in Acts 2019, No. 660, § 3, has been codified at § 12-10-307 to better reflect the provisions deleted and retained by Acts 2019, No. 660.

Amendments. The 2007 amendment added (a)(5).

The 2009 amendment inserted “911” in (a)(5)(B), and made a minor stylistic change.

The 2019 amendment substituted “Communications personnel” for “Public safety communications personnel” in the section heading, and rewrote the section.

12-10-307. [Repealed.]

A.C.R.C. Notes. The repeal set out under § 12-10-306 in Acts 2019, No. 660, § 3, has been codified at § 12-10-307 to better reflect the provisions deleted and retained by Acts 2019, No. 660.

Publisher's Notes. This section, concerning transmission of requests, was repealed by Acts 2019, No. 660, § 3, effective July 24, 2019. The section was derived from Acts 1985, No. 683, § 7; A.S.A. 1947, § 73-1828. For current law, see § 12-10-308(a).

12-10-308. Response to requests for emergency response inside and outside jurisdiction.

  1. A public safety answering point shall be capable of transmitting requests for law enforcement, firefighting, disaster, or major emergency response, emergency medical or ambulance services, or other emergency services to a public or private agency where the services are available to the political subdivision in the public safety answering point's jurisdiction.
  2. A public safety answering point or dispatch center, or both, which receives a request for emergency response outside its jurisdiction shall promptly forward the request to the public safety answering point or public safety agency responsible for that geographical area.
  3. Any emergency unit dispatched to a location outside its jurisdiction in response to such a request shall render service to the requesting party until relieved by the public safety agency responsible for that geographical area.
  4. Political subdivisions may enter into mutual aid agreements to carry out the provisions of this section.

History. Acts 1985, No. 683, § 7; A.S.A. 1947, § 73-1828; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment added (a) and redesignated the remaining subsections accordingly; and substituted “public safety answering point or dispatch center, or both” for “911 public safety communications center” in (b).

12-10-309. Requests from the hearing and speech impaired.

Each public safety answering point or dispatch center shall be equipped with a system for the processing of requests from the hearing and speech impaired for emergency response.

History. Acts 1985, No. 683, § 7; A.S.A. 1947, § 73-1828; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment substituted “public safety answering point or dispatch center” for “911 public safety communications center”.

12-10-310. Records of calls.

  1. The public safety answering point shall develop and maintain a system for recording 911 calls received at the public safety answering point.
  2. A dispatch center shall develop and maintain a system that has been approved by the Arkansas 911 Board for recording 911 calls transferred from a public safety answering point.
  3. All information contained with or attached to a 911 call, including without limitation short message service, text, video, and photographs, shall be retained.
  4. The records shall be retained for a period of at least one hundred eighty (180) days from the date of the call and shall include the following information:
    1. Date and time the call was received;
    2. The nature of the problem; and
    3. Action taken by the telecommunicators.

History. Acts 1985, No. 683, § 7; A.S.A. 1947, § 73-1828; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment in (a), substituted “public safety answering point” for “911 public safety communications center” and deleted the second sentence; inserted (b) and (c); redesignated former (b) as (d); substituted “one hundred eighty (180) days” for “thirty one (31) days” in the introductory language of (d); and substituted “telecommunicators” for “911 public safety communications center personnel” in (d)(3).

12-10-311, 12-10-312. [Repealed.]

Publisher's Notes. These sections, concerning methods of response and restricted use of 911, were repealed by Acts 2019, No. 660, § 3, effective July 24, 2019. The sections were derived from:

12-10-311. Acts 1985, No. 683, § 7; A.S.A. 1947, § 73-1828.

12-10-312. Acts 1985, No. 683, § 9; A.S.A. 1947, § 73-1830; Acts 2005, No. 1962, § 31.

For current law comparable to former § 12-10-312, see § 12-10-313(a).

12-10-313. Restrictions and nonemergency telephone number.

  1. The telephone number 911 is restricted to emergency calls that may result in dispatch of the appropriate response service for fire suppression and rescue, emergency medical services or ambulance, hazardous material incidents, disaster or major emergency occurrences, and law enforcement activities.
  2. Any person calling the telephone number 911 for the purpose of making a false alarm or complaint or reporting false information that could result in the emergency dispatch of any public safety agency upon conviction is guilty of a Class A misdemeanor.
  3. Each public safety answering point and dispatch center will maintain a published nonemergency telephone number, and nonemergency calls should be received on that number.
  4. Transfers of calls from 911 trunks to nonemergency numbers are discouraged because that ties up 911 trunks and may interfere with true emergency calls.

History. Acts 1985, No. 683, § 9; A.S.A. 1947, § 73-1830; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment added “Restrictions and” in the section heading; added (a) and (b); redesignated former (a) and (b) as (c) and (d); substituted “public safety answering point and dispatch center” for “911 public safety communications center” in (c); and deleted former (c).

12-10-314. Connection of network to automatic alarms, etc., prohibited.

No person shall connect to a service supplier's network any automatic alarm or other automatic alerting devices which cause the number 911 to be automatically dialed and provide a prerecorded message in order to directly access the services which may be obtained through a public safety answering point.

History. Acts 1985, No. 683, § 9; A.S.A. 1947, § 73-1830; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment substituted “public safety answering point” for “911 public safety communications center”.

12-10-315. [Repealed.]

Publisher's Notes. This section, concerning the penalty for a false alarm, complaint, or information, was repealed by Acts 2019, No. 660, § 3, effective July 24, 2019. The section was derived from Acts 1985, No. 683, § 10; A.S.A. 1947, § 73-1831. For current law, see § 12-10-313(b).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-10-316. Public safety answering points — Access to information.

  1. A public safety answering point and dispatch center designated by the chief executive of the political subdivision may be considered an element in the communications network connecting state, county, and local authorities to a centralized state depository of information in order to serve the public safety and criminal justice community.
  2. A public safety answering point and dispatch center is restricted in that it may access files in the centralized state depository of information only for the purpose of providing information to:
    1. An end user as authorized by state law; and
    2. An authorized recipient of the contents of those files, in the absence of serving as an information service agency.
  3. The designation of the public safety answering point as an information provider to an authorized recipient and an agency of a political subdivision shall be made by the chief executive of each political subdivision.

History. Acts 1985, No. 683, § 7; A.S.A. 1947, § 73-1828; Acts 2005, No. 1962, § 32; 2019, No. 660, § 3.

Amendments. The 2005 amendment inserted the (1), (1)(A), (1)(B) and (2) designations in (b) and made related changes; in present (b)(1), deleted “these” preceding “files” and inserted “in the centralized state depository of information”; in present (b)(2), added “The 911 public safely communication centers” and substituted “shall” for “will” and “have” for “be authorized”; and made minor stylistic changes.

The 2019 amendment substituted “Public safety answering points” for “911 centers” in the section heading; substituted “public safety answering point and dispatch center” for “911 public safety communications center” in (a) and in the introductory language of (b); redesignated (b)(1) as (b); redesignated (b)(1)(A) and (b)(1)(B) as (b)(1) and (b)(2), respectively; deleted former (b)(2); and inserted “of the public safety answering point” in (c).

12-10-317. Public safety answering point — Operation — Rights, duties, liabilities, etc., of service providers.

    1. Each service provider shall forward to any public safety answering point equipped for enhanced 911 service the telephone number and street address of any telephone used to place a 911 call.
    2. Subscriber information provided in accordance with this subsection shall be used only for the purpose of responding to requests for emergency service response from public or private safety agencies, for the investigation of false or intentionally misleading reports of incidents requiring emergency service response, or for other lawful purposes.
    3. A service provider, agents of a service provider, political subdivision, or officials or employees of a political subdivision are not liable to any person who uses the enhanced 911 service established under this subchapter for release of the information specified in this section or for failure of equipment or procedure in connection with enhanced 911 service or basic 911 service.
    1. The public safety answering point and dispatch center shall be notified in advance by an authorized service provider representative of any routine maintenance work to be performed that may affect the 911 system's reliability or capacity.
    2. The work shall be performed during the public safety answering point's off-peak hours.

History. Acts 1985, No. 683, § 7; A.S.A. 1947, § 73-1828; Acts 2019, No. 660, § 3.

Amendments. The 2019 amendment substituted “Public safety answering point” for “911 center” in the section heading; inserted the first occurrence of “response” in (a)(2); in (a)(3), substituted “A service” for “No service” and substituted “are not liable” for “shall be liable”; redesignated (b) as (b)(1) and (b)(2); in (b)(1), substituted “public safety answering point and dispatch center” for “911 public safety communications center”, and “system’s” for “system”; substituted “point’s” for “point” in (b)(2); and made stylistic changes.

12-10-318. Emergency telephone service charges — Imposition — Liability — Public safety charge.

      1. When so authorized by a majority of the persons voting within the political subdivision in accordance with the law, the governing authority of each political subdivision may levy an emergency telephone service charge in the amount assessed by the political subdivision on a per-access-line basis as of January 1, 1997, or the amount up to five percent (5%) of the tariff rate, except that any political subdivision with a population of less than twenty-seven thousand five hundred (27,500) according to the 1990 Federal Decennial Census may, by a majority vote of the electors voting on the issue, levy an emergency telephone charge in an amount assessed by the political subdivision on a per-access-line basis as of January 1, 1997, or an amount up to twelve percent (12%) of the tariff rate.
      2. The governing authority of a political subdivision that has been authorized under subdivision (a)(1)(A) of this section to levy an emergency telephone service charge in an amount up to twelve percent (12%) of the tariff rate may decrease the percentage rate to not less than four percent (4%) of the tariff rate for those telephone service users that are served by a telephone company with fewer than two hundred (200) access lines in this state as of the date of the election conducted under subdivision (a)(1)(A) of this section.
    1. Upon its own initiative, the governing authority of the political subdivision may call such a special election to be held in accordance with § 7-11-201 et seq.
      1. There is levied a commercial mobile radio service public safety charge in an amount of one dollar and thirty cents ($1.30) per month per commercial mobile radio service connection that has a place of primary use within the State of Arkansas.
      2. There is levied a voice over internet protocol public safety charge in an amount of one dollar and thirty cents ($1.30) per month per voice over internet protocol connection that has a place of primary use within the State of Arkansas.
      3. There is levied a nontraditional telephone public safety charge in an amount of one dollar and thirty cents ($1.30) per month per nontraditional service connection that has a place of primary use within the State of Arkansas.
      4. The service charge levied in subdivision (b)(1)(A) of this section and collected by commercial mobile radio service providers that provide mobile telecommunications services as defined by the Mobile Telecommunications Sourcing Act, Pub. L. No. 106-252, as in effect on January 1, 2001, shall be collected pursuant to the Mobile Telecommunications Sourcing Act, Pub. L. No. 106-252.
      1. The service charges collected under subdivisions (b)(1)(A)-(C) of this section shall be remitted to the Arkansas Emergency Telephone Services Board within thirty (30) days after the end of the month in which the fees are collected.
        1. After September 30, 2019, the public safety charge collected under subdivisions (b)(1)(A)-(C) of this section shall be remitted to the Arkansas Public Safety Trust Fund.
        2. Due to the confidential and proprietary nature of the information submitted by commercial mobile radio service providers, the information shall be retained by the independent auditor in confidence, shall be subject to review only by the Auditor of State, and shall not be subject to the Freedom of Information Act of 1967, § 25-19-101 et seq., nor released to any third party.
        3. The information collected by the independent auditor shall be released only in aggregate amounts that do not identify or allow identification of numbers of subscribers or revenues attributable to an individual commercial mobile radio service provider.
  1. In order to provide additional funding for the public safety answering point, the political subdivision may receive and appropriate any federal, state, county, or municipal funds, as well as funds from a private source, and may expend the funds for the purposes of this subchapter.
  2. The public safety charge shall:
    1. Appear as a single line item on a subscriber's bill;
    2. Not be assessed upon more than two hundred (200):
      1. Exchange access facilities per person per location; or
      2. Voice over internet protocol connections per person per location; and
    3. Not be subject to any state or local tax or franchisee fee.
    1. To verify the accuracy of the monthly remittances that a service supplier makes to the Arkansas Public Safety Trust Fund, a service supplier shall provide copies of required federal filings at least biannually to the Division of Emergency Management.
    2. No later than thirty (30) days following the filing of the required federal telecommunications reports, a service supplier shall provide a copy of the federal filing, and the Federal Communications Commission Form 477 or its equivalent, including the number of access lines used by the service supplier in the state.
      1. Due to the proprietary nature of the information in the reports required in subdivision (e)(1) of this section which, if disclosed, would provide a competitive advantage for other service suppliers, the reports shall be confidential and only subject to review by:
        1. The Director of the Division of Emergency Management; and
        2. The designee of the Arkansas 911 Board.
      2. However, audit reports may be released that contain only aggregate numbers and do not disclose proprietary information including numbers or revenue attributable to an individual service supplier.
  3. This section does not prohibit a service supplier from billing, collecting, or retaining an additional amount to reimburse the service supplier for enabling and providing 911, enhanced 911, and next generation 911 services and capabilities in the network and for the facilities and associated equipment.
    1. To avoid an overlap in the assessment of the old and new charges for subscribers for every service supplier obligated to pay the public safety charge, a transition to the payment of the public safety charge shall occur.
      1. The assessment of charges before October 1, 2019, shall continue through September 30, 2019, and be remitted in the same manner to the same entity as previously prescribed under this section before October 1, 2019.
      2. Any unpaid assessments for the time period up to and including September 30, 2019, shall remain due and payable under the terms and processes that are or were in place at the time.
    2. Beginning on October 1, 2019, a service supplier is subject to the public safety charges assessed as described in this section.
      1. After October 1, 2019, a service supplier shall remit all assessments of the public safety charge for a calendar month by the fifteenth business day of the following month to the Arkansas Public Safety Trust Fund.
      2. The Arkansas Public Safety Trust Fund shall provide disbursements as provided by § 19-5-1152.
  4. To provide additional funding for the public safety answering point, the political subdivision may:
    1. Receive and appropriate any federal, state, county, or municipal funds and funds from a private source; and
    2. Expend the funds described in subdivision (h)(1) of this section to operate and maintain a public safety answering point.
    1. Notwithstanding any other provision of the law, in no event shall any commercial mobile radio, voice over internet protocol service, or nontraditional service provider, or its officers, employees, assigns, or agents be liable for civil damages or criminal liability in connection with the development, design, installation, operation, maintenance, performance, or provision of a 911 service.
    2. Nor shall any commercial mobile radio, voice over internet protocol, or nontraditional service provider, its officers, employees, assigns, or agents be liable for civil damages or be criminally liable in connection with the release of subscriber information to any governmental entity as required under the provisions of this subchapter.

History. Acts 1985, No. 683, § 5; A.S.A. 1947, § 73-1826; Acts 1995, No. 627, § 1; 1997, No. 106, § 1; 1997, No. 810, § 2; 1997, No. 952, § 1; 1999, No. 46, § 1; 2001, No. 907, § 3; 2003, No. 111, § 1; 2003, No. 1792, § 1; 2005, No. 1997, § 1; 2005, No. 2145, § 16; 2007, No. 582, § 2; 2007, No. 1049, § 33; 2009, No. 1221, § 2; 2009, No. 1480, § 48; 2011, No. 640, § 1; 2013, No. 623, §§ 3-5; 2013, No. 1170, § 1; 2015, No. 919, § 2; 2019, No. 660, § 4; 2019, No. 910, §§ 5834, 5835.

A.C.R.C. Notes. Pursuant to § 1-2-207, subdivision (a)(2) of this section is set out as amended by Acts 2007, No. 1049, § 33. Acts 2007, No 582, § 2 amended former subdivision (a)(2)(B)(i) to read as follows:

“The special election shall occur on the second Tuesday of any month unless the second Tuesday of the month is a legal holiday in which event the special election shall be held on the third Tuesday of the month.”

As enacted by Acts 2009, No. 1221, § 2, the last sentence of subdivision (c)(2)(b)(ii) (a) of this section reads: “The board shall report to Legislative Council in the event the sum held under this subdivision becomes less than three million five hundred dollars ($3,500,000).” The omission of “thousand” appears to be a typographical error.

Acts 2019, No. 910, §§ 5834 and 5835 amended former subdivisions (c)(1)(D) and (c)(2)(B)(i) (b) of this section to replace “Arkansas Department” with “Division” and “Arkansas Commission on” with “Division of”. However, Acts 2019, No 660, § 4 specifically repealed these subdivisions.

Amendments. The 2005 amendment by No. 1997, in (b)(1)(A), substituted “forty cents (40¢)” for “fifty cents (50¢),” “place of primary use” for “billing address,” and deleted “or with respect to which the mobile identification number for the commercial mobile radio service connection contains an area code assigned to Arkansas by the North American Numbering Plan Administrator” at the end; rewrote (b)(1)(B)(i); in (b)(1)(B)(ii), deleted “approved by the voters and” preceding “implemented,” and substituted “forty cents (40¢)” for “fifty cents (50¢)”; in (b)(1)(C), deleted “and (B)” following “(b)(1)(A),” and inserted “less administrative fees under subdivision (b)(3) of this section”; deleted “approved by the voters and” preceding “implemented” in (b)(1)(E); deleted (b)(2)(B)(ii) and redesignated the remaining subdivisions accordingly; in present (b)(2)(B)(ii), substituted “less than forty-nine percent (49%)” for “more than thirty-eight percent (38%)” and inserted “and remitted” following “collected”; in present (b)(2)(B)(ii), substituted “more than forty-nine percent (49%)” for “less than fifty-eight percent (58%),” inserted “and remitted” following “collected,” deleted “and the commercial mobile radio service providers licensed to do business in Arkansas” following “public safety answering points” and inserted “basic 911 mapping”; in (b)(2)(B)(ii) (c) , substituted “Not more than one percent (1%)” for “Up to three percent (3%)”; added (b)(2)(B)(ii) (e) ; and, in present (b)(2)(B)(iv), deleted “and commercial mobile radio service providers” and substituted “subdivision (b)(1)(A)” for “subdivisions (b)(1)(A) and (B).”

The 2005 amendment by No. 2145 added (a)(2)(B).

The 2009 amendment by No. 1221 substituted “sixty-five cents (65¢)” for “fifty cents (50¢)” in (b)(1)(A)(i), (b)(1)(A)(ii) (b) , (b)(1)(B)(i), (b)(1)(B)(ii) (a) , (b)(1)(C), and (b)(1)(D); in (c)(2)(B)(i), substituted “eighty-three and five-tenths percent (83.5%)” for “forty-nine percent (49%)” and inserted “readiness costs”; in (c)(2)(B)(ii) (a) , substituted “fifteen percent (15%)” for “forty-nine percent (49%)” and inserted the last sentence; inserted “and maintaining” in (c)(2)(B)(ii) (b) ; substituted “five-tenths percent (0.5%)” for “one percent (1%)” in (c)(2)(B)(iii); in (c)(2)(B)(v) (a) , substituted “April 1” for “March 1” and inserted “along with a copy ... counties, cities, or agencies”; inserted (c)(2)(B)(v) (b)(2) and redesignated the existing text of (c)(2)(B)(v) (b) accordingly; and made related changes.

The 2009 amendment by No. 1480 substituted “§ 7-11-201 et seq.” for “§ 7-5-103(b)” in (a)(2).

The 2011 amendment inserted (c)(2)(B)(i) (b) ; inserted “(c)(2)(B)(ii) (a) ” in (c)(2)(B)(ii) (a) ; and substituted “rules” for “regulations” in (c)(2)(C)(i).

The 2013 amendment by No. 623 deleted former (b)(1)(B) and redesignated the remaining subdivisions accordingly; in (b)(1)(D), deleted “Except for prepaid wireless telephone service” from the beginning, deleted “and any additional amounts implemented under subdivision (b)(1)(B) of this section” preceding “and collected”, and inserted “Pub. L. No. 106-252”; substituted “shall” for “will” in (c)(2)(A); substituted “interest-bearing account established under subdivision (c)(2)(A)” for “the account levied under subdivision (b)(1)(A)” in (c)(2)(B); inserted “and prepaid wireless E911 charges under § 12-10-326” in (c)(2)(A), (c)(2)(B)(i) (a) , (c)(2)(B)(ii) (a) , (c)(2)(B)(iii), and (c)(2)(D); and inserted “from service charges” in (c)(2)(D).

The 2013 amendment by No. 1170 added (c)(1)(D) through (c)(1)(F).

The 2015 amendment substituted “two hundred thousand dollars ($200,000)” for “one hundred twenty thousand dollars ($120,000)” in (c)(2)(B)(i) (b) ; redesignated (c)(2)(B)(v) (a) as (c)(2)(B)(v) (a)(1) and inserted designation (A) in that subdivision; added (c)(2)(B)(v) (a)(1)(B) ; substituted “operating a public safety answering point or a secondary public safety answering point” for “receiving funds under this section” in the introductory language of (c)(2)(B)(v) (a)(1) ; added (c)(2)(B)(v) (a)(2) through (4) ; inserted (c)(2)(B)(v) (b) and (c) and redesignated the remaining subdivisions of (c)(2)(B)(v) accordingly; and substituted “under” for “to ensure that the funds have been properly utilized according to” in present (c)(2)(B)(v) (d)(1)

The 2019 amendment by No. 660 rewrote the section.

The 2019 amendment by No. 910 substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (c)(1)(D); and substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training” in (c)(2)(B)(i) (b)

U.S. Code. The Mobile Telecommunications Sourcing Act, Pub. L. No. 106-252, is codified as 4 U.S.C. § 116 et seq.

Cross References. Optional provision of database to vendors, § 23-17-413.

Effective Dates. Acts 2019, No. 660, § 11: Oct. 1, 2019. Effective date clause provided: “Sections 4 and 8 of this act are effective on and after October 1, 2019”.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Tax Law, 24 U. Ark. Little Rock L. Rev. 613.

12-10-319, 12-10-320. [Repealed.]

Publisher's Notes. These sections, concerning reduction and suspension of emergency telephone service charges, and duties, rights, and liability of service supplier in relation to emergency telephone service charges, were repealed by Acts 2019, No. 660, § 5, effective July 24, 2019. The sections were derived from:

12-10-319. Acts 1985, No. 683, § 5; A.S.A. 1947, § 73-1826.

12-10-320. Acts 1985, No. 683, § 5; A.S.A. 1947, § 73-1826.

12-10-321. Public safety answering points — Bonds.

  1. The governing authority of the political subdivision shall have power to incur debt and issue bonds with approval from the Arkansas 911 Board for 911 systems and public safety answering point implementation and future major capital items.
  2. The bonds shall be negotiable instruments and shall be solely the obligations of each political subdivision and not of the State of Arkansas.
  3. The bonds and income thereof shall be exempt from all taxation in the State of Arkansas.
  4. The bonds shall not be general obligations but shall be special obligations payable from all or a specified portion of the income revenues and receipts of the political subdivision and designated by the political subdivision to be dedicated for the local 911 system and public safety answering point.
    1. The bonds shall be authorized and issued by ordinance of the governing authority of each political subdivision.
    2. The bonds shall:
      1. Be of such series as the ordinance provides;
      2. Mature on such date or dates not exceeding thirty (30) years from date of the bonds as the ordinance provides;
      3. Bear interest at such rate or rates as the ordinance provides;
      4. Be in such denominations as the ordinance provides;
      5. Be in such form either coupon or fully registered without coupon as the ordinance provides;
      6. Carry such registration and exchangeability privileges as the ordinance provides;
      7. Be payable in such medium of payment and at such place or places within or without the state as the ordinance provides;
      8. Be subject to such terms of redemption as the ordinance provides;
      9. Be sold at public or private sale as the ordinance provides; and
      10. Be entitled to such priorities on the income, revenues, and receipts generated by the emergency telephone service charge as the ordinance provides.
  5. The ordinance may provide for the execution of a trust indenture or other agreement with a bank or trust company located within or without the state to set forth the undertakings of the political subdivision.
  6. The ordinance or such agreement may include provisions for the custody and investment of the proceeds of the bonds and for the deposits and handling of income, revenues, and receipts for the purpose of payment and security of the bonds and for other purposes.
  7. The Arkansas 911 Board may cooperate and contract with the Arkansas Development Finance Authority to provide for the payment of the principal of, premium if any, interest on, and trustee's and paying agent's fees in connection with bonds issued to finance the acquisition, construction, and operation of the next generation 911 infrastructure for the purposes of establishing a statewide ESINet as required by this subchapter with the review of the General Assembly.

History. Acts 1985, No. 683, § 5; A.S.A. 1947, § 73-1826; Acts 2019, No. 660, § 6.

Amendments. The 2019 amendment substituted “Public safety answer points” for “911 centers” in the section heading; in (a), inserted “with approval from the Arkansas 911 Board” and substituted “public safety answering point” for “911 public safety communications center”; rewrote (d); and added (h).

12-10-322. Direct access to 911 services required for multiline telephone systems.

  1. A covered multiline telephone system shall allow, as a default setting, any station equipped with dialing facilities to directly initiate a 911 call without requiring a user to dial any other digit, code, prefix, suffix, or trunk access code.
  2. A business service user that owns or controls a multiline telephone system or an equivalent system that uses voice over internet protocol enabled service and provides outbound dialing capacity or access shall configure the multiline telephone system or equivalent system to allow a person initiating a 911 call on the multiline telephone system to directly access 911 service by dialing the digits “911” without an additional digit, code, prefix, suffix, or trunk access code.
  3. A public or private entity that installs or operates a multiline telephone system shall ensure that the multiline telephone system is connected to allow a person initiating a 911 call on the multiline telephone system to directly access 911 service by dialing the digits “911” without an additional digit, code, prefix, suffix, or trunk access code.

History. Acts 1985, No. 683, § 5; A.S.A. 1947, § 73-1826; Acts 2019, No. 660, § 6.

Publisher's Notes. For current provisions concerning the former subject matter of this section before the 2019 amendment, see § 12-10-318(c).

Amendments. The 2019 amendment substituted “Direct access to 911 services required for multiline telephone systems” for “911 centers — Federal, state, local, etc. funds” in the section heading, and rewrote the section.

12-10-323. Authorized expenditures of revenues.

    1. Revenue generated under §§ 12-10-318 and 12-10-326 and transferred from the Arkansas Emergency Telephone Services Board or the Arkansas Public Safety Trust Fund to the Arkansas 911 Board shall be used only for reasonably necessary costs that enhance, operate, and maintain 911 service in the State of Arkansas under the direction of the Arkansas 911 Board.
    2. Reasonably necessary costs shall be determined by the Arkansas 911 Board and include the following:
      1. The engineering, installation, and recurring costs necessary to implement, operate, and maintain a 911 telephone system;
      2. The costs necessary for forwarding and transfer capabilities of calls from the public safety answering point to dispatch centers or to other public safety answering points;
      3. Engineering, construction, lease, or purchase costs to lease, purchase, build, remodel, or refurbish a public safety answering point and for necessary emergency and uninterruptable power supplies for the public safety answering point;
      4. Personnel costs, including salary and benefits, of each position charged with supervision and operation of the public safety answering point and system;
      5. Purchase, lease, operation, and maintenance of consoles, telephone and communications equipment owned or operated by the political subdivisions and physically located within and for the use of the public safety answering point, and radio or microwave towers and equipment with lines that terminate in the public safety answering point;
      6. Purchase, lease, operation, and maintenance of computers, data processing equipment, associated equipment, and leased audio or data lines assigned to and operated by the public safety answering point for the purposes of coordinating or forwarding calls, dispatch, or recordkeeping of 911 calls;
      7. Supplies, equipment, public safety answering point personnel training, vehicles, and vehicle maintenance, if such items are solely and directly related to and incurred by the political subdivision in mapping, addressing, and readdressing for the operation of the public safety answering point; and
      8. Training costs and all costs related to training under this subchapter.
    3. This subsection does not authorize a political subdivision to purchase emergency response vehicles, law enforcement vehicles, or other political subdivision vehicles from such funds.
  1. Expenditure of revenue distributed by the Arkansas 911 Board for purposes not identified in this section is prohibited.
  2. Failure to comply with this section may result in the Arkansas 911 Board's withholding funds from the public safety answering point's quarterly funding distribution.
  3. Appropriations of funds from any source other than §§ 12-10-318, 12-10-321, and 12-10-326 may be expended for any purpose and may supplement the authorized expenditures of this section and may fund other activities of the public safety answering point not associated with the provision of emergency services.

History. Acts 1985, No. 683, § 6; A.S.A. 1947, § 73-1827; Acts 1989, No. 524, § 1; 1991, No. 1196, § 5; 1997, No. 952, § 2; 2003, No. 176, § 1; 2011, No. 640, § 2; 2019, No. 660, § 6.

Amendments. The 2011 amendment substituted “coordinating or forwarding calls” for “coordinating, forwarding of calls” in (a)(1)(F); and added (a)(1)(H).

The 2019 amendment rewrote the section.

12-10-324. Response to call — Entrance procedures.

When responding to a 911 emergency call received at a public safety answering point, public safety officers of public safety agencies may use reasonable and necessary means to enter any dwelling, dwelling unit, or other structure without the express permission of the owner when:

  1. The dwelling or structure is believed to be the geographical location of the telephone used to place the 911 emergency call as determined by an automatic locator or number identifier; and
  2. Only after reasonable efforts have been made to arouse and alert any inhabitants or occupants of their presence and the officers have reason to believe that circumstances exist which pose a clear threat to the health of any person or they have reason to believe there may be a person in need of emergency medical attention present in the dwelling or structure who is unable to respond to their efforts.

History. Acts 1993, No. 1032, § 1.

12-10-325. Training standards.

    1. A public safety agency, a public safety answering point, or a dispatch center may provide training opportunities for public safety answering point and dispatch center personnel through the Division of Law Enforcement Standards and Training and the Arkansas Law Enforcement Training Academy.
    2. The division shall develop training standards for telecommunicators, dispatchers, supervisors, and instructors in Arkansas in consultation with the Association of Public-Safety Communications Officials International, Inc., and the Arkansas 911 Board and submit the training standards to the Arkansas Commission on Law Enforcement Standards and Training for approval.
      1. Training for instructors may include without limitation instructor development, course development, leadership development, and other appropriate 911 instructor training.
      2. Training for telecommunicators, dispatchers, and supervisors may include without limitation:
        1. Call taking;
        2. Customer service;
        3. Stress management;
        4. Mapping;
        5. Call processing;
        6. Telecommunication and radio equipment training;
        7. Training with devices for the deaf;
        8. Autism;
        9. National Incident Management System training;
        10. Incident Command System training;
        11. National Center for Missing and Exploited Children training;
        12. National Emergency Number Association training;
        13. Association of Public-Safety Communications Officials International, Inc., training; and
        14. Other appropriate 911 dispatcher and supervisor training.
    3. An entity that provides training under subdivision (a)(1) of this section shall:
      1. Retain training records created under this section; and
      2. Deliver an annual report to the Arkansas 911 Board of training provided by the entity to verify the dispatcher and supervisor training reported as completed by each public safety answering point annually under § 12-10-318.
    1. A private safety agency may attend training or receive instruction at the invitation of the division.
    2. The division may assess a fee on a private safety agency invited to attend training or receive instruction under this subsection to reimburse the division for costs associated with the training or instruction.
    1. All public safety answering points shall have at least sixty percent (60%) of telecommunicators working in the public safety answering point trained.
    2. All telecommunicators working at a public safety answering point who have worked as a telecommunicator for one (1) year or longer shall be trained.

History. Acts 2011, No. 640, § 3; 2015, No. 919, § 3; 2019, No. 660, § 7; 2019, No. 910, §§ 5836, 5837.

Amendments. The 2015 amendment substituted the second occurrence of “communications” for “communication” in (a)(1); inserted “supervisors” in (a)(2) and “and supervisors” in the introductory language of (a)(3)(B); in (a)(3)(B), added roman numeral designations and inserted (a)(3)(B)(ix) through (xiii); inserted “and supervisor” in (a)(3)(B)(xiv); in (a)(4), substituted “shall” for “may”, inserted designation (A), and added (B); and rewrote (b).

The 2019 amendment by No. 660 rewrote (a); added (c); and made stylistic changes.

The 2019 amendment by No. 910 substituted “Division of Law Enforcement Standards and Training” for “Arkansas Commission on Law Enforcement Standards and Training and the Arkansas Law Enforcement Training Academy” in (a)(1), and substituted “division” for “Arkansas Law Enforcement Training Academy” in (a)(2); and substituted “division” for “commission” throughout (b).

12-10-326. Prepaid wireless public safety charge — Definitions.

  1. As used in this section:
    1. “Consumer” means a person who purchases prepaid wireless telecommunications service in a retail transaction;
    2. “Occurring in this state” means a retail transaction that is:
      1. Conducted in person by a consumer at a business location of a seller in this state;
      2. Treated as occurring in this state for purposes of the gross receipts tax provided under § 26-52-521(b); or
      3. Taxable under § 26-53-106;
    3. “Prepaid wireless public safety charge” means the charge for prepaid wireless telecommunications service that is required to be collected by a seller from a consumer under subsection (b) of this section;
      1. “Prepaid wireless service” means any prepaid wireless service sold to consumers in the state.
      2. “Prepaid wireless service” includes without limitation:
        1. Prepaid wireless cards;
        2. Telephones or other devices that are loaded with prepaid wireless minutes; and
        3. Any transaction that reloads a prepaid wireless card or a telephone or other device with prepaid wireless minutes;
    4. “Provider” means a person that provides prepaid wireless telecommunications service under a license issued by the Federal Communications Commission;
      1. “Retail transaction” means each purchase of prepaid wireless telecommunications service from a seller for any purpose other than resale.
        1. “Retail transaction” includes a separate purchase of prepaid wireless telecommunications service that is paid contemporaneously with another purchase of prepaid wireless telecommunications service if separately stated on an invoice, receipt, or similar document provided by the seller to the consumer at the time of sale.
        2. “Retail transaction” includes a recharge as defined in § 26-52-314 of prepaid wireless telecommunications service;
    5. “Seller” means a person who sells prepaid wireless telecommunications service to another person; and
    6. “Wireless telecommunications service” means a commercial mobile radio service as defined under § 12-10-303.
    1. For each retail transaction occurring in this state, a seller of prepaid wireless services shall collect from the consumer a public safety charge equal to ten percent (10%) of the value of the prepaid wireless service.
      1. The amount of the prepaid wireless public safety charge shall be stated separately on an invoice, receipt, or similar document that is provided to the consumer at the time of sale by the seller or otherwise disclosed to the consumer.
      2. If the amount of the prepaid wireless public safety charge is stated separately on an invoice, receipt, or similar document provided to the consumer at the time of sale by the seller, the amount of the prepaid wireless public safety charge shall not be included in the base for measuring any tax, fee, surcharge, or other charge that is imposed by the state, a political subdivision of the state, or an intergovernmental agency.
        1. To ensure there is no overlap of the E911 charge previously assessed under this section before October 1, 2019, and the new public safety charge assessed under subdivision (b)(1) of this section, a seller shall continue to collect the public safety charge in effect one (1) day before October 1, 2019, through September 30, 2019.
        2. The funds collected through September 30, 2019, shall be remitted according to the same terms and process as previously remitted under this section before October 1, 2019.
      3. On and after October 1, 2019, a seller shall begin collecting the public safety charge under subdivision (b)(1) of this section and shall remit the funds as prescribed in subsection (c) of this section.
    1. A seller shall electronically report and pay one hundred percent (100%) of the prepaid wireless public safety charge plus any penalties and interest due to the Secretary of the Department of Finance and Administration in the same manner and at the same time as the gross receipts tax under the Arkansas Gross Receipts Act of 1941, § 26-52-101 et seq.
    2. A seller that meets the prompt payment requirements of § 26-52-503 may deduct and retain two percent (2%) of the prepaid wireless public safety charge.
    1. The Arkansas Tax Procedure Act, § 26-18-101 et seq., applies to a prepaid wireless public safety charge.
    2. If the Department of Finance and Administration becomes aware of any seller who is not collecting and remitting the public safety charge, the department shall provide notice of the requirements under this section and the associated penalties for failure to pay the charge.
  2. The department shall pay all remitted prepaid wireless public safety funds to the Arkansas Public Safety Trust Fund on or before the fifteenth business day of December 2019 and on or before the fifteenth business day of each month thereafter.
  3. A provider or seller is not liable for damages to a person resulting from or incurred in connection with:
    1. Providing or failing to provide 911 service;
    2. Identifying or failing to identify the telephone number, address, location, or name associated with a person or device that is accessing or attempting to access 911 service; or
    3. Providing lawful assistance to a federal, state, or local investigator or law enforcement officer conducting a lawful investigation or other law enforcement activity.
  4. A provider or seller is not liable for civil damages or criminal liability in connection with:
    1. The development, design, installation, operation, maintenance, performance, or provision of 911 service; or
    2. The release of subscriber information to a governmental entity as required by this subchapter.
    1. The prepaid wireless public safety charge imposed by this section shall be the only E911 funding obligation imposed for prepaid wireless telecommunications service in this state.
    2. Except for the prepaid wireless public safety charge imposed under this section, no other tax, fee, surcharge, or other charge shall be imposed upon prepaid wireless telecommunication services by the state, a political subdivision of the state, or an intergovernmental agency for the purpose of implementing and supporting emergency telephone services.

History. Acts 2013, No. 623, § 6; 2019, No. 660, § 8; 2019, No. 910, § 3375.

Amendments. The 2019 amendment by No. 660 substituted “public safety charge” for “E911 service charges” in the section heading, and rewrote the section.

The 2019 amendment by No. 910 substituted “Secretary” for “Director” in (d)(1).

Effective Dates. Acts 2019, No. 660, § 11: Oct. 1, 2019. Effective date clause provided: “Sections 4 and 8 of this act are effective on and after October 1, 2019”.

12-10-327. Restriction on creation of public safety answering point.

A new public safety answering point shall not be established unless the new public safety answering point is established as a result of:

  1. Consolidation with an existing public safety answering point; or
  2. Replacement of an existing public safety answering point.

History. Acts 2017, No. 574, § 1; 2019, No. 660, § 9.

Amendments. The 2019 amendment deleted “until July 1, 2020” following “established” in the introductory language.

12-10-328. 911 addressing authority — Data maintenance.

  1. A chief executive shall designate a 911 addressing authority that shall create and maintain street centerline and address point data in a geographic information system format.
  2. The street centerline and address point data created under subsection (a) of this section shall:
    1. Be compatible with the standard database requirements and best practices developed by the Arkansas Geographic Information Systems Office as part of the Arkansas Master Address Program; and
    2. Be transmitted to the office by a method and with a frequency agreed upon by the office and the 911 addressing authority designated under subsection (a) of this section.

History. Acts 2017, No. 663, § 1.

Chapter 11 Prevention of Public Offenses

Cross References. State police, criminal investigation and prevention of crime, § 12-8-101 et seq.

12-11-101. Preventive measures.

The commission of public offenses may be prevented by proceedings:

  1. For suppressing riots and resistance to lawful authority;
  2. For requiring security to keep the peace or for good behavior; and
  3. For arresting and confining insane, drunken, and disorderly persons.

History. Crim. Code, § 9; C. & M. Dig., § 3323; Pope's Dig., § 4171; A.S.A. 1947, § 42-201.

Case Notes

Riot.

City chief of police had right to arrest plaintiffs under this section where they were in fact members of an unlawful or riotous assembly. Pritchard v. Downie, 216 F. Supp. 621 (E.D. Ark. 1963), aff'd, 326 F.2d 323 (8th Cir. 1964).

12-11-102. Unlawful assembly of twenty or more persons.

  1. When persons to the number of twenty (20) or more are unlawfully or riotously assembled in a city or town, the county sheriff of the county, his or her deputies, and the other peace officers and magistrates of the city or town, together with the mayor or other chief officer of the city or town, must go among the persons assembled or as near them as possible and in the name of the state command them to disperse.
  2. If the persons assembled do not immediately disperse, the magistrates and officers must arrest them or cause them to be arrested so that they may be punished according to law, and the magistrates and officers may command to their aid all persons present or in the county.
  3. If the persons commanded to aid the magistrates and officers neglect to do so without just cause, they shall be treated as a part of the rioters and punished accordingly.
  4. If a magistrate or officer named in this section, having notice of an unlawful or riotous assembly, neglects to proceed to the place of assembly, or as near as he or she can with safety, and exercise the authority invested in him or her to suppress the assembly and arrest the offenders, then the magistrate or officer is guilty of a misdemeanor.

History. Crim. Code, §§ 366-369; C. & M. Dig., §§ 3328-3331; Pope's Dig., §§ 4176-4179; A.S.A. 1947, §§ 42-206 — 42-209.

Publisher's Notes. This section, or portions thereof, may have been impliedly repealed by § 5-71-206.

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

Misdemeanors, § 5-1-107.

Case Notes

Failure to Disperse.

Plaintiffs were not falsely arrested or imprisoned where police officers were following their duty to arrest them as members of an unlawful and riotous assembly upon their failure to disperse upon command. Pritchard v. Downie, 216 F. Supp. 621 (E.D. Ark. 1963), aff'd, 326 F.2d 323 (8th Cir. 1964).

Neglect of Duty.

Jury instruction that if peace officers “neglected, failed or refused” to arrest members of lynch mob the jury should find the officers guilty of neglect of duty was not open to a general objection on the ground that it made the defendants liable whether they were able to make the arrests or not. Pennewell v. State, 105 Ark. 32, 150 S.W. 114 (1912).

Right to Arrest.

City chief of police was peace officer with right to arrest plaintiffs under this section where they were in fact members of an unlawful or riotous assembly. Pritchard v. Downie, 216 F. Supp. 621 (E.D. Ark. 1963), aff'd, 326 F.2d 323 (8th Cir. 1964).

Cited: Chapman v. State, 257 Ark. 415, 516 S.W.2d 598 (1974).

12-11-103. Unlawful assembly of three or more persons.

  1. When three (3) or more persons shall be riotously, unlawfully, or tumultuously assembled, it shall be the duty of any judge, justice of the peace, county sheriff, county coroner, or constable who shall have knowledge or be informed thereof to make a proclamation among the persons so assembled, or as near them as he or she can safely come, charging and commanding them immediately to disperse themselves and peaceably to depart to their habitations or lawful business.
  2. If upon the proclamation being made, the persons so assembled shall not immediately disperse and depart as commanded or if they shall resist the officer or prevent the making of the proclamation, then the officer shall command those present, and the power of the county if necessary, and shall disperse the unlawful assembly, arrest the offenders, and take them before some judicial officer, to be dealt with according to law.

History. Rev. Stat., ch. 44, div. 8, art. 1, §§ 2, 3; C. & M. Dig., §§ 3324, 3325; Pope's Dig., §§ 4172, 4173; A.S.A. 1947, §§ 42-211, 42-212.

Publisher's Notes. This section, or portions thereof, may have been impliedly repealed by § 5-71-206.

Case Notes

Cited: Pritchard v. Downie, 216 F. Supp. 621 (E.D. Ark. 1963); Chapman v. State, 257 Ark. 415, 516 S.W.2d 598 (1974).

12-11-104. Resistance to authority.

  1. When a county sheriff or other public officer authorized to execute process finds or has reason to believe that resistance will be made to the execution of the process, the county sheriff or public officer may command as many inhabitants of his or her county as he or she may think proper, and any military companies in his or her county, armed and equipped, to assist him or her in overcoming the resistance and in arresting and confining the resisters and their aiders and abettors to be punished according to law.
  2. The county sheriff or public officer shall report to the court from which the process issued the names of the resisters and their aiders and abettors so that they may be punished for contempt.
  3. Every person commanded by a county sheriff or public officer to assist him or her in the execution of process, who without lawful cause refuses or neglects to obey the command, is guilty of a Class A misdemeanor and contempt of the court from which the process issued.

History. Crim. Code, §§ 362-364; C. & M. Dig., §§ 3333-3335; Pope’s Dig., §§ 4181-4183; A.S.A. 1947, §§ 42-202 — 42-204; Acts 2005, No. 1994, § 198.

Amendments. The 2005 amendment deleted “male” preceding “inhabitants” in (a); and, in (c), inserted “Class A” preceding “misdemeanor.”

Cross References. Deputizing citizens by state police, § 12-8-110.

Procedures of arrest, § 16-81-107.

Refusing to assist officer, § 5-54-109.

Case Notes

Constitutionality.

This section was neither void on its face nor unconstitutional as applied to defendants convicted for refusing to assist police officer in effecting a misdemeanor arrest pursuant to a warrant. Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973).

In General.

This section is an extension of the common law concept of posse comitatus, if not merely a codification thereof. Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973).

Officer's Discretion.

The standards for action for a public officer in commanding assistance in overcoming resistance to the execution of process is adequately prescribed in this section; the exercise of discretion by the officer is in keeping with the history of posse comitatus and is necessary for its effective and appropriate use, although discretion cannot be exercised arbitrarily. Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973).

Passive Resistance.

For the purposes of this section, resistance need not be by active means. Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973).

Cited: State v. Moore, 76 Ark. 197, 88 S.W. 881 (1905); Brock v. Eubanks, 102 Ark. App. 165, 288 S.W.3d 272 (2008).

12-11-105. [Repealed.]

Publisher's Notes. This section, concerning security to keep the peace for good behavior, was repealed by Acts 1991, No. 266, § 13. The section was derived from Crim. Code, §§ 371-375; C. & M. Dig., §§ 3337-3344; Pope's Dig., §§ 4185-4192; A.S.A. 1947, §§ 42-215 — 42-219.

12-11-106 — 12-11-109. [Repealed.]

Publisher's Notes. These sections, concerning discharge or further requirement of security, security by recognizance, security after commitment, and breaches of bond, were repealed by Acts 2011, No. 779, § 4. The sections were derived from the following sources:

12-11-106. Crim. Code, §§ 376, 378, 379; C. & M. Dig., §§ 3345-3348; Pope's Dig., §§ 4193-4196; A.S.A. 1947, §§ 42-220 — 42-222.

12-11-107. Crim. Code, § 382; C. & M. Dig., § 3349; Pope's Dig., § 4197; A.S.A. 1947, § 42-223.

12-11-108. Crim. Code, § 377; C. & M. Dig., § 3350; Pope's Dig., § 4198; A.S.A. 1947, § 42-224.

12-11-109. Crim. Code, §§ 380, 381; C. & M. Dig., §§ 3351, 3352; Pope's Dig., §§ 4199, 4200; A.S.A. 1947, §§ 42-225, 42-226.

12-11-110. [Repealed.]

Publisher's Notes. This section, concerning drunken, insane, and disorderly persons, was repealed by Acts 2017, No. 423, § 8. The section was derived from Crim. Code, §§ 383-385, 387; C. & M. Dig., §§ 3353-3357; Pope's Dig., §§ 4201-4205; A.S.A. 1947, §§ 42-227 — 42-230; Acts 2011, No. 779, § 5.

Chapter 12 Crime Reporting and Investigations

Cross References. Law enforcement officers, immunity from civil liability, § 23-60-111.

Subchapter 1 — General Provisions

A.C.R.C. Notes. Acts 2015, No. 1168, § 1, provided:

“(a) As used in this section:

“(1) ‘Healthcare provider’ means an individual or facility that provides a medical-legal examination;

“(2) ‘Law enforcement agency’ means a police force or organization whose primary responsibility as established by statute or ordinance is the enforcement of the criminal laws, traffic laws, or highway laws of this state;

“(3) ‘Medical-legal examination’ means health care delivered to a possible victim of a sex crime, with an emphasis on the gathering and preserving of evidence for the purpose of prosecution;

“(4) ‘Sex crime’ means an offense described in § 5-14-101 et seq. or § 5-26-202;

“(5) ‘Sexual assault collection kit’ means a human biological specimen or specimens collected during a medical-legal examination from the alleged victim of a sex crime; and

“(6) ‘Untested sexual assault collection kit’ means a sexual assault collection kit that has not been submitted to the State Crime Laboratory or a similar qualified laboratory for either a serology or DNA test.

“(b)(1) The State Crime Laboratory shall develop a:

“(A) Sexual assault evidence inventory audit document for a law enforcement agency; and

“(B) Sexual assault evidence inventory audit document for a healthcare provider.

“(2)(A) The sexual assault evidence inventory audit document for a law enforcement agency and the sexual assault evidence inventory audit document for a healthcare provider shall be reviewed and updated periodically.

“(B) The updated sexual assault evidence inventory audit document for a law enforcement agency and the sexual assault evidence inventory audit document for a healthcare provider may be set forth in rules promulgated by the State Crime Laboratory under the Arkansas Administrative Procedure Act, § 25-15-201 et seq.

“(c) Before December 31 of each year, a law enforcement agency that maintains, stores, or preserves sexual assault evidence shall conduct an audit of all untested sexual assault collection kits and any associated evidence being stored by the law enforcement agency and report the information to the State Crime Laboratory, using the sexual assault evidence inventory audit document for a law enforcement agency.

“(d) Before December 31 of each year, each healthcare provider charged with performing medical-legal examinations shall conduct an audit of all untested sexual assault collection kits being stored by the healthcare provider and report the information to the State Crime Laboratory, using the sexual assault evidence inventory audit document for a healthcare provider.

“(e) The State Crime Laboratory may communicate with a healthcare provider or a law enforcement agency for the purpose of coordinating testing and other appropriate handling of sexual assault collection kits.

“(f) Except as set forth in subsection (g) of this section, information reported to the State Crime Laboratory under this section, as well as information compiled or accumulated by a healthcare provider or law enforcement agency for the purpose of audits required by this section, is confidential and not subject to discovery under the Arkansas Rules of Civil Procedure or the Freedom of Information Act of 1967, § 25-19-101 et seq.

“(g) On or before each February 1, the State Crime Laboratory shall prepare and transmit to the President Pro Tempore of the Senate and the Speaker of the House of Representatives a report containing:

“(1) A compilation of the data submitted by law enforcement agencies and healthcare providers under this section, with the data reported in the aggregate; and

“(2) A plan to address any backlog of untested sexual assault collection kits.

“(h) This section does not remove confidentiality protection for an alleged victim of a sexual assault or other sex crime otherwise provided under Arkansas or federal laws, rules, or regulations.

“(i) A medical-legal examination continues to be subject to § 12-12-402 or other applicable law.”

Cross References. Arrest and custody, § 16-81-102 et seq.

Effective Dates. Acts 1945, No. 231, § 28: Mar. 30, 1945. Emergency clause provided: “It having been ascertained and determined by the General Assembly that on account of the widespread disregard for the traffic laws of the state and the rules and regulations governing the same as a result of the establishment of many large war plants and military posts in the State of Arkansas, together with the enormous increase of traffic caused by the war, which has created conditions at and around such war plants and military posts creating a condition upon the highways of this state which, in order to efficiently operate the Department of Arkansas State Police, make it necessary that the same be departmentalized and organized in such manner that the personnel of said department can be assigned and directed in a more efficient manner and because of the hazards to life and limb as a result of the disregard for the laws making such conditions dangerous to the health, peace, and safety of the people of Arkansas an emergency is hereby declared to exist and this act being necessary for the preservation of the peace, health, and safety of the citizens of this state and for the traveling public, this act shall take effect and be in full force after its passage and approval.”

Acts 2007, No. 262, § 2: Mar. 9, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Arkansas Constitution does not provide for electronic transfer of pawn records, that law enforcement agencies across the state require timely reporting of pawn records, and that this act is immediately necessary to aid pawnbrokers in providing critical information on a daily basis to law enforcement when it comes to property crimes and crimes against people. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-12-101. [Repealed.]

Publisher's Notes. This section, concerning fingerprinting of individuals arrested for criminal offenses, was repealed by Acts 1997, No. 826, § 1. The section was derived from Acts 1991, No. 1015, §§ 1, 2. For current law, see §§ 12-12-1005(c) and 12-12-1006.

Former § 12-12-101, concerning the fingerprinting of individuals arrested for criminal offenses — submission to state bureau, was repealed by Acts 1991, No. 1015, § 5. The former section was derived from Acts 1985, No. 1038, § 1; A.S.A. 1947, § 43-437.

12-12-102. Authority to investigate and arrest in contiguous county.

Upon receiving permission from the proper county sheriff, any law enforcement officer, acting within the official scope of his or her duty, may investigate and arrest any person violating any provision of the Uniform Controlled Substances Act, § 5-64-101 et seq., in any county contiguous to the county in which the county sheriff or law enforcement officer is employed.

History. Acts 1985, No. 675, § 1; A.S.A. 1947, § 82-2625.2.

Publisher's Notes. Acts 1985, No. 675, § 1, is also codified as § 5-64-705.

12-12-103. Pawnshop records — Penalty.

  1. A pawnshop or pawnbroker doing business in the State of Arkansas shall keep a record showing in detail all property pawned or purchased with the pawnshop or pawnbroker.
  2. The records required under subsection (a) of this section shall include:
    1. A detailed record of each transaction, including the type of identification displayed by the person from whom the property was received;
    2. The name, address, race, sex, height, weight, and date of birth of the person from whom the property was received;
    3. The driver's license number, personal identification number issued under § 27-16-805, or the number from another form of photographic identification of the person from whom the property was received; and
    4. A description of each item pawned or purchased, including without limitation the identifying numbers or serial numbers.
      1. One (1) copy of the records required under subsection (a) of this section shall be maintained on file with the pawnshop or pawnbroker for a period of three (3) years.
      2. The Director of the Division of Arkansas State Police, a member of the Division of Arkansas State Police, a county sheriff or deputy of the county, or a police officer of the municipality in which the pawnshop or pawnbroker is located shall have access to the records at any reasonable time.
    1. The director, the county sheriff, or the chief of police in the county or municipality in which the pawnshop or pawnbroker is located may require a report of transactions for a period of time that he or she deems necessary for the efficient enforcement of the criminal laws or to aid in criminal investigations.
    1. The failure of a pawnbroker or an owner or operator of a pawnshop to comply with a provision of this section is a violation punishable by a fine of not more than one thousand dollars ($1,000).
    2. Each day a pawnbroker or owner or operator of a pawnshop fails to comply with this section is a separate offense.
    1. Pawnshops and pawnbrokers shall:
      1. Keep the records required by this section in a designated electronic format; and
      2. Daily upload the records in the designated electronic format to:
        1. A centralized secure tracking system and internet website designated by the chief law enforcement officer of a county, city, or local government; or
        2. A different centralized secure tracking system and internet website other than the centralized secure tracking system and internet website designated under subdivision (e)(1)(B)(i) of this section if designated by county or municipal ordinance.
    2. The electronic records submitted under this subsection shall be used for the sole purpose of investigating crimes. Pawnshops, pawnbrokers, and pawn customers shall not be required to incur any costs or increased fees as a result of the city, county, or state collecting and processing records required by this section electronically.

History. Acts 1945, No. 231, § 18; 1975, No. 880, § 1; 1985, No. 544, § 1; A.S.A. 1947, § 42-418; Acts 1991, No. 471, § 1; 1995, No. 965, § 1; 2005, No. 1994, § 75; 2007, No. 262, § 1; 2013, No. 404, § 1; 2013, No. 1293, § 1; 2019, No. 910, § 5838.

Amendments. The 2005 amendment substituted “violation” for “misdemeanor” in (d)(1).

The 2013 amendment by No. 404 rewrote (a); redesignated (b)(1) as (b); deleted “and every” following “each” in (b)(A) (now (b)(1)); substituted “another” for “some other” in (b)(C) (now (b)(3)); rewrote (b)(D) (now (b)(4)); deleted former (b)(2); and rewrote (c)(2), (d), and (e).

The 2013 amendment by No. 1293 redesignated former (b)(A) through (D) as (b)(1) through (4); deleted the (b)(4)(i) designation; and deleted (b)(4)(ii).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” twice in (c)(1)(B).

Research References

Ark. L. Rev.

Nickles and Adams, Pawnbrokers, Police, and Property Rights — A Proposed Constitutional Balance, 47 Ark. L. Rev. 793.

Case Notes

Cited: Landers v. Jameson, 355 Ark. 163, 132 S.W.3d 741 (2003).

12-12-104. Physical evidence in sex offense or violent offense prosecutions — Retention and disposition — Definitions.

  1. In a prosecution for a sex offense or a violent offense, the law enforcement agency shall preserve, subject to a continuous chain of custody, any physical evidence secured in relation to a trial and sufficient official documentation to locate that evidence.
    1. After a trial resulting in conviction, the evidence shall be impounded and securely retained by a law enforcement agency.
    2. Retention shall be the greater of:
      1. Permanent following any conviction for a violent offense;
      2. For twenty-five (25) years following any conviction for a sex offense; and
      3. For seven (7) years following any conviction for any other felony for which the defendant's genetic profile may be taken by a law enforcement agency and submitted for comparison to the State DNA Data Base for unsolved offenses.
  2. After a conviction is entered, the prosecuting attorney or law enforcement agency having custody of the evidence may petition the court with notice to the defendant for entry of an order allowing disposition of the evidence if, after a hearing and a reasonable period of time in which to respond, the court determines by a preponderance of the evidence that:
    1. The evidence has no significant value for forensic analysis and must be returned to its rightful owner; or
    2. The evidence has no significant value for forensic analysis and is of a size, bulk, or physical character not usually retained by the law enforcement agency and cannot practicably be retained by the agency.
  3. The court may order the disposition of the evidence if the defendant is allowed the opportunity to take reasonable measures to remove or preserve portions of the evidence in question for future testing.
    1. It is unlawful for any person to purposely fail to comply with the provisions of this section.
    2. A person who violates this section is guilty of a Class A misdemeanor.
  4. As used in this section:
    1. “Law enforcement agency” means any police force or organization whose primary responsibility as established by statute or ordinance is the enforcement of the criminal laws, traffic laws, or highway laws of this state;
    2. “Sex offense” means:
      1. Rape, § 5-14-103;
      2. Sexual indecency with a child, § 5-14-110;
      3. Sexual assault in the first degree, § 5-14-124;
      4. Sexual assault in the second degree, § 5-14-125;
      5. Sexual assault in the third degree, § 5-14-126;
      6. Sexual assault in the fourth degree, § 5-14-127;
      7. Incest, § 5-26-202;
      8. Engaging children in sexually explicit conduct for use in visual or print medium, § 5-27-303;
      9. Transportation of minors for prohibited sexual conduct, § 5-27-305;
      10. Employing or consenting to use of child in sexual performance, § 5-27-402;
      11. Producing, directing, or promoting a sexual performance by a child, § 5-27-403;
      12. Computer child pornography, § 5-27-603;
      13. Computer exploitation of a child in the first degree, § 5-27-605(a);
      14. Promoting prostitution in the first degree, § 5-70-104;
      15. Stalking, § 5-71-229;
      16. An attempt, solicitation, or conspiracy to commit any of the offenses enumerated in this subdivision (f)(2);
      17. A violation of any former law of this state that is substantially equivalent to any of the offenses enumerated in this subdivision (f)(2); or
      18. Sexual extortion, § 5-14-113; and
    3. “Violent offense” means:
      1. Capital murder, § 5-10-101, murder in the first degree, § 5-10-102, or murder in the second degree, § 5-10-103;
      2. Manslaughter, § 5-10-104;
      3. Kidnapping, § 5-11-102;
      4. False imprisonment in the first degree, § 5-11-103;
      5. Permanent detention or restraint, § 5-11-106;
      6. Robbery, § 5-12-102;
      7. Aggravated robbery, § 5-12-103;
      8. Battery in the first degree, § 5-13-201;
      9. Battery in the second degree, § 5-13-202;
      10. Aggravated assault, § 5-13-204;
      11. Terroristic threatening in the first degree, § 5-13-301;
      12. Domestic battering in the first degree, § 5-26-303, domestic battering in the second degree, § 5-26-304, and domestic battering in the third degree, § 5-26-305;
      13. Aggravated assault on family or household member, § 5-26-306;
      14. Engaging in a continuing criminal gang, organization, or enterprise, § 5-74-104;
      15. An attempt, solicitation, or conspiracy to commit any of the offenses enumerated in this subdivision (f)(3);
      16. A violation of any former law of this state that is substantially equivalent to any of the offenses enumerated in this subdivision (f)(3); or
      17. Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony.

History. Acts 2001, No. 1780, § 11; 2011, No. 779, § 6; 2017, No. 367, § 11; 2017, No. 664, § 6.

A.C.R.C. Notes. Acts 2001, No. 1780, § 1, provided:

“The General Assembly finds that the mission of the criminal justice system is to punish the guilty and to exonerate the innocent. The General Assembly further finds that Arkansas laws and procedures should be changed in order to accommodate the advent of new technologies enhancing the ability to analyze scientific evidence.”

Amendments. The 2011 amendment rewrote (f)(2) and (f)(3).

The 2017 amendment by No. 367 added (f)(3)(Q).

The 2017 amendment by No. 664 added (f)(2)(R).

Cross References. Appeals — New scientific evidence, § 16-112-201 et seq.

Fines, § 5-4-201.

Imprisonment, § 5-4-401.

Petition, § 16-112-103.

Statute of limitations, § 5-1-109.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

12-12-105. Controlled substance laboratory seizure reports.

  1. Each state and local law enforcement agency shall electronically file a report on the form provided and required by the El Paso Intelligence Center of the United States Drug Enforcement Administration with the Arkansas Crime Information Center within ten (10) days of the agency's seizure of:
    1. Drug paraphernalia or drug precursors that could be utilized in the manufacture of a controlled substance; or
    2. Any laboratory reasonably believed to:
      1. Have been utilized in the illegal manufacture of a controlled substance;
      2. Be currently utilized in the illegal manufacture of a controlled substance; or
      3. Be intended for utilization in the illegal manufacture of a controlled substance.
  2. The report described in subsection (a) of this section shall be on the form provided and required by the El Paso Intelligence Center of the United States Drug Enforcement Administration and shall contain any additional information required by the Arkansas Drug Director.
    1. The Arkansas Crime Information Center shall forward the report described in subsection (a) of this section to the El Paso Intelligence Center of the United States Drug Enforcement Administration and other law enforcement or criminal justice agencies designated by the Arkansas Drug Director.
    2. The Arkansas Drug Director shall promulgate rules regarding the distribution of the reports and statistics generated in accordance with the requirements of this section.
    1. The Director of the State Crime Laboratory shall catalogue the number of controlled substance laboratories reported to the State Crime Laboratory through evidence submission.
    2. For each reported controlled substance laboratory, the Director of the State Crime Laboratory shall record the:
      1. Judicial district where the controlled substance laboratory was located;
      2. Date of seizure of the controlled substance laboratory; and
      3. Name of the seizing law enforcement agency.
    1. On March 31, June 30, September 30, and December 31 of each year after August 12, 2005, the Arkansas Drug Director shall compare the number of reports made to him or her under subsection (a) of this section with the number of reports made to the State Crime Laboratory under subsection (d) of this section.
    2. Any discrepancy in the number of reports described in subdivision (e)(1) of this section shall be recorded by the Arkansas Drug Director.
    3. The Arkansas Drug Director shall request completion of a reporting form by any law enforcement agency in the state that has failed to comply with a requirement of subsection (a) of this section.
  3. The failure of any law enforcement agency to comply with a requirement of this section may be considered by a state board or agency as a factor for the withholding of awards or grant moneys or other funds that relate to controlled substance enforcement.

History. Acts 2005, No. 1873, § 1; 2019, No. 910, § 5839.

A.C.R.C. Notes. As enacted by Acts 2005, No. 1873, § 1, subdivision (e)(1) read “… after the effective date of this section …”.

Amendments. The 2019 amendment substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” in (d)(1) and the introductory language of (d)(2).

12-12-106. Investigations of an alleged sex offense.

  1. A law enforcement officer, prosecuting attorney, or other government official shall not ask or require an adult victim of an alleged sex offense, a youth victim of an alleged sex offense, or a child victim of an alleged sex offense to submit to a polygraph examination or an examination of any other truth-telling device as a condition of proceeding with the investigation of an alleged sex offense.
  2. The refusal of a victim of an alleged sex offense to submit to an examination described in subsection (a) of this section shall not prevent the investigation, charging, or prosecution of the alleged sex offense.

History. Acts 2007, No. 676, § 3.

12-12-107. Adult abuse and domestic violence reporting — Definitions.

  1. As used in this section:
    1. “Adult” means an individual eighteen (18) years of age or older who is not a maltreated adult under the Adult and Long-Term Care Facility Resident Maltreatment Act, § 12-12-1701 et seq.; and
    2. “Health care provider” means a person, corporation, facility, or institution licensed, certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession.
  2. A health care provider may report to a law enforcement agency an injury to an adult that the health care provider has reason to believe is the result of a battery or other physically abusive conduct, including physical injuries resulting from domestic violence, if the:
    1. Injured adult agrees; or
    2. Health care provider determines that the report is necessary to prevent serious harm to the injured adult.
  3. A health care provider that makes a report under subdivision (b)(2) of this section shall promptly inform the injured adult that the report has been or will be made.
  4. A report under this section shall state the name of the injured adult and the character and extent of the adult's injuries.
  5. A report under this section shall be made to one (1) or more of the following law enforcement agencies:
    1. The county sheriff;
    2. Within a city of the first class, the municipal law enforcement agency; or
    3. The Department of Arkansas State Police.
  6. A health care provider making or deciding not to make a report in good faith under this section is immune from criminal or civil liability for making or deciding not to make the report.

History. Acts 2011, No. 1004, § 1.

12-12-108. Domestic violence investigation.

  1. When a law enforcement agency responds to a report of domestic violence, the first law enforcement officer to interview a victim of domestic violence shall assess the potential for danger by asking a series of questions provided on a lethality assessment form.
  2. The lethality assessment form shall be completed with the following information from the victim:
    1. Whether the offender ever used a weapon against the victim or threatened the victim with a weapon;
    2. Whether the offender threatened to kill the victim or victim's children;
    3. Whether the victim believes the offender will try to kill him or her;
    4. Whether the offender ever tried to choke the victim;
    5. Whether the offender is violently or constantly jealous;
    6. Whether the offender controls most of the victim's daily activities;
    7. The victim's current living situation and if he or she has recently left or separated from the offender after living together or being married;
    8. The victim's employment status;
    9. Whether the offender has ever attempted suicide to the best of the victim's knowledge;
    10. Whether the victim has a child that the offender believes is not the offender's biological child;
    11. Whether the offender follows, spies on, or leaves threatening messages for the victim; and
    12. Any other pertinent information, including any other conditions or circumstances that concern the victim regarding his or her safety.
  3. Based on the results of the lethality assessment under this section, the law enforcement officer compiling the information required by this section from the victim may refer the victim to an available shelter or domestic violence intervention program and shall comply with § 16-90-1107.

History. Acts 2015, No. 877, § 1.

Publisher's Notes. For codification of Acts 2015, No. 163, § 1, see § 14-1-102.

12-12-109. Domestic violence investigation — Victimless prosecution.

  1. A law enforcement agency that investigates a complaint or accusation of domestic violence shall do so in a manner that allows the prosecuting attorney to prosecute the offense if the prosecuting attorney has probable cause an offense was committed and achieve a guilty verdict based on evidence independent of the testimony of the victim of the offense.
  2. Compliance with this section may be achieved through the collection of evidence, including without limitation:
    1. Witness statements;
    2. Properly obtained statements from the alleged offender;
    3. Medical records;
    4. Photographs or other media;
    5. Other physical evidence; and
    6. Statements from the victim that are exclusions or exceptions to Rule 802 of the Arkansas Rules of Evidence.

History. Acts 2015, No. 876, § 1.

12-12-110. Missing or unidentified persons — Definitions.

  1. As used in this section:
    1. “Missing person” means a person, including a child under eighteen (18) years of age, reported to a law enforcement agency as missing and unaccounted for from expected and normal activities; and
    2. “Unidentified person” means a person living or deceased who is unidentified after all available methods used to identify a person have been exhausted, including a decedent released to the State Crime Laboratory in which the identity of the decedent cannot be established to the satisfaction of the State Medical Examiner.
    1. To the extent that this section is not duplicative with § 12-12-205, the actions under this section shall be undertaken by the law enforcement agency with jurisdiction in the event of a report of a missing person or unidentified person.
    2. Entry of missing person or unidentified person information into the National Missing and Unidentified Persons System does not relieve the obligations of a law enforcement agency under § 12-12-205.
  2. A law enforcement agency shall input the following data, if available for an unidentified person, into the National Missing and Unidentified Persons System:
    1. Copies of fingerprints on standardized fingerprint cards measuring eight inches by eight inches (8" x 8") or the equivalent digital image, including partial prints of any fingers;
    2. Forensic dental report or radiology imaging;
    3. Detailed personal descriptions;
    4. Deoxyribonucleic acid (DNA) information;
    5. Radiology imaging and medical data; and
    6. All other identifying data, including date and place of death.
  3. When a missing person or unidentified person report is received, a law enforcement agency shall initiate the following procedures within thirty (30) days of receiving the missing person or unidentified person report:
    1. Submit the missing person or unidentified person case to the National Missing and Unidentified Persons System and to any database of missing persons or unidentified persons currently required by the law enforcement agency, providing all appropriate data;
      1. Locate and obtain biometric records, including medical and dental records, medical and dental X-rays, or other medical imaging, and enter those records into the National Missing and Unidentified Persons System.
      2. Records described under subdivision (d)(2)(A) of this section are considered confidential and shall not be released to the public;
      1. Utilize the National Missing and Unidentified Persons System's family reference sample submission kits and obtain voluntary DNA samples from appropriate family members to submit to the laboratory for DNA testing and to an institution of higher education that specializes in DNA identification for a full genetic profile, including testing of mitochondrial DNA, short tandem repeats on the Y-chromosome, and nuclear analyses, to be documented in the National Missing and Unidentified Persons System missing persons or unidentified persons file, and submitted to the Federal Bureau of Investigation's National DNA Index System using the Combined DNA Index System.
      2. If necessary, the law enforcement agency may request assistance in obtaining family reference DNA samples; and
    2. Attempt to locate any fingerprints from available resources and submit the fingerprints to the National Missing and Unidentified Persons System.
    1. A law enforcement agency shall not require a delay before accepting or investigating a report of a missing person when reliable information has been provided to the law enforcement agency that the person is missing.
    2. A law enforcement agency shall not mandate the appearance of a next of kin before initiating a missing persons investigation.
    1. If a law enforcement agency receives a report of a missing person from another law enforcement agency or from a medical examiner, the law enforcement agency shall maintain a record of the case file.
    2. The information contained in a report of a missing person from another law enforcement agency or from a medical examiner shall be available to a law enforcement agency attempting to identify unidentified persons.
    1. A law enforcement agency shall not establish or maintain a policy that requires the observance of a waiting period before accepting and investigating a report of a missing child.
    2. Upon receipt of a report of a missing child, a law enforcement agency shall enter the child into the National Missing and Unidentified Persons System.
  4. When a person previously reported missing has been found or when an unidentified person has been identified, the reporting law enforcement agency or the Division of Arkansas State Police shall report to the National Missing and Unidentified Persons System.
  5. This section does not prohibit a law enforcement agency from maintaining case files related to missing persons or unidentified bodies.

History. Acts 2019, No. 920, § 2.

Cross References. Missing and unidentified persons training, § 12-9-123.

Subchapter 2 — Arkansas Crime Information Center

Preambles. Acts 1971, No. 286 contained a preamble which read:

“Whereas, proper law enforcement, improved public safety and effective administration of justice requires complete and timely information on crime, highway safety problems and the Criminal Justice System; and

“Whereas, advances in computer and related communications technology now make it both practical and feasible to obtain such data more rapidly and in greater detail than heretofore possible; and

“Whereas, State resources and Federal funds are now at work in the development of a comprehensive computer-based Criminal Justice and Highway Safety Information System for Arkansas; and

“Whereas, installation of such a system will help apprehend criminals, improve the efficiency of criminal justice agencies, and ultimately help reduce crime; and

“Whereas, statistics are needed to aid in determining the cause and amount of crime in this State, to form a basis for the study of crime, police methods, court procedure, highway safety problems, penal problems and to plan effective programs for combating crime; and

“Whereas, a Supervisory Board working closely with criminal justice agencies is needed to administer and control the use and operation of the system; and

“Whereas, it is the intent of the Legislature to safeguard all persons from the misuse of criminal records by any person or agency and to provide adequate safeguards and limitations on the use of all criminal history records….”

Effective Dates. Acts 1971, No. 286, § 11: July 1, 1971.

Acts 1975, No. 742, § 17: July 1, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly, that the maintenance of an adequate Criminal Justice and Highway Safety Information System is essential to law enforcement in this state, and that the establishment of said program in the Department of Public Safety is necessary to enable proper coordination and maximum use of the services of the program, and that the immediate passage of this act is necessary in order that this transfer may be made and be effective by July 1, 1975, in the event of an extension of this regular session of the General Assembly. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after July 1, 1975.”

Acts 1979, No. 124, § 3: July 1, 1979.

Acts 1981, No. 612, § 3: Mar. 23, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the authority of the Arkansas Crime Information Center to collect and maintain this information is essential for law enforcement in this state, and is necessary for the most efficient use of the computerized system of the Arkansas Crime Information Center. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 214, § 6: July 1, 1983. Emergency clause provided: “It is hereby found and determined by the Seventy-Fourth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1983 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1983 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1983.”

Acts 1983, No. 282, § 3: Feb. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the authority of the Arkansas Crime Information Center to collect and maintain this information is essential for law enforcement and other criminal justice agencies in this state, and is necessary for the most efficient use of the computerized system of the Arkansas Crime Information Center. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1994 (2nd Ex. Sess.), Nos. 37 and 38, § 7: Aug. 25, 1994. Emergency clause provided: “It is hereby found and determined by the General Assembly that serious criminal offenses committed by juveniles have increased to an alarming level and that it will help to deal with these serious juvenile crimes by authorizing the Arkansas Crime Information Center to accumulate juvenile arrest information for those allegations and adjudications of dependency for which the Arkansas Juvenile Code authorizes fingerprints to be taken and maintained, and it will assist in juvenile crime prevention to allow the dissemination of conviction information to nongovernmental entities authorized by federal law; that this act so provides; and this act should go into effect immediately in order to provide additional tools for dealing with juvenile crime as soon as possible. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 995, § 8: Oct. 1, 1995.

Acts 1997, No. 243, § 5: Feb. 24, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that, as future officers of the court, it is necessary to assure applicants for admission to the bar of Arkansas are free of criminal records, and that giving the Arkansas State Board of Law Examiners access to the records of the Arkansas Crime Information Center provides another tool with which to verify information received on applications. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto. ”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 911, § 16: July 1, 1997. Emergency clause provided: “It is hereby found and determined by the Eighty-First General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1997 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1997 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997.”

Acts 1997, No. 1354, § 51: Apr. 14, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act affects the method of selection of alternate members of the Legislative Council and Legislative Joint Auditing Committee and that this act is immediately necessary for proper continuity and efficiency in State government. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1999, No. 1109, § 5: Apr. 5, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that due to critical changes being made by the Federal Bureau of Investigation in the National Crime Information System, and because those changes will have a major impact on law enforcement agencies in Arkansas, and to prepare for those changes, the Arkansas Crime Information Center is required to implement new equipment and systems by July 1, 1999. The Arkansas Crime Information Center must immediately revise its reimbursement procedures in order to finance the required changes. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 998, § 4: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the lack of compliance with the motor vehicle liability insurance law is epidemic in this state; that the owners of motor vehicles that have not complied with mandatory insurance requirements increase the potential financial catastrophe to others involved in accidents with them; that this act is designed and intended to provide enforcement provisions and to ensure increased compliance with the motor vehicle liability insurance law of this state; and that the enactment of new and enhanced penalties and requirements will increase compliance with the motor vehicle liability insurance law. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2003.”

Acts 2003, No. 1031, § 7: Apr. 2, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the ‘Task Force to Study the Disparity in Sentencing for Persons Convicted of Non-violent Crimes’ has found that it appears that some Arkansas citizens do not receive equitable sentences under the law; that it is necessary to compile statistical sentencing information in order to determine if disparities exist; and that this act is immediately necessary to allow the compiling of the needed statistical information in the first quarter of 2003. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2007, No. 463, § 6: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that federal law prohibits the sale of firearms to persons who have been committed to a mental institution; that it is the intent of this act to require the submission of information to create a confidential database that may only be used for firearm sales or transactions; and that this act is necessary because possession of a firearm by a person that is suicidal, homicidal, or gravely disabled poses an critical threat of harm to the citizens of this state. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2007.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-12-201. Creation — Director.

  1. There is created the Arkansas Crime Information Center, under the supervision of the Supervisory Board for the Arkansas Crime Information Center established by this subchapter.
  2. This center shall consist of the Director of the Arkansas Crime Information Center and such other staff of the Department of Public Safety under the general supervision of the director as may be necessary to administer the services of this subchapter, subject to the approval of funds authorized by the General Assembly.
  3. The board shall name the director in consultation with the Secretary of the Department of Public Safety.

History. Acts 1971, No. 286, § 1; 1975, No. 742, § 1; A.S.A. 1947, § 5-1101; Acts 2019, No. 910, § 5840.

Publisher's Notes. The Criminal Justice and Highway Safety Information Center was established under the supervision of a supervisory board and the former Department of Administration by Acts 1971, No. 286, § 1.

Acts 1975, No. 742, §§ 11-14, transferred the center and its functions, equipment, and personnel to the Department of Public Safety (abolished by Acts 1981, No. 45, § 1). Section 12 further provided that all of the center's personnel would be granted tenure rights on or after July 1, 1975, and that all position, grade, step, and anniversary dates, as established under the state's compensation plan, would remain as assigned to the position of each employee on or after that date, or as provided by the new compensation plan.

Acts 1979, No. 375, § 1, provided that the Criminal Justice and Highway Safety Information Center would thereafter be known as, and all its functions, powers, and duties would be performed by, the Arkansas Crime Information Center.

Acts 1981, No. 45, § 8, provided, in part, that the Arkansas Crime Information Center and all of its powers, functions, duties, personnel, and funds would be separated from the Department of Public Safety (abolished by Acts 1981, No. 45, § 1) and established as an independent agency of the state government, to function in the same manner as if it had never been located within the Department of Public Safety (abolished by Acts 1981, No. 45, § 1). It further provided that nothing in the act should be construed to reduce any right which an employee of the Arkansas Crime Information Center had under any civil service or merit system.

Amendments. The 2019 amendment, in (b), substituted “the Director of the Arkansas Crime Information Center” for “a director” and inserted “of the Department of Public Safety”; and substituted “in consultation with the Secretary of the Department of Public Safety” for “of the center” in (c).

12-12-202. Supervisory board — Members — Meetings.

  1. There is created a Supervisory Board for the Arkansas Crime Information Center.
  2. The board shall consist of fourteen (14) members:
    1. The Attorney General or one (1) of his or her assistants;
    2. The Chief Justice of the Supreme Court or his or her designated agent;
    3. A member designated by the Arkansas Prosecuting Attorneys Association;
    4. A member designated by the Arkansas Sheriffs' Association;
    5. A member designated by the Arkansas Association of Municipal Judges;
    6. A member designated by the President of the Arkansas Bar Association who is regularly engaged in criminal defense work;
    7. Two (2) citizens of the State of Arkansas, to be appointed by the Governor;
    8. A member designated by the Arkansas Municipal Police Association;
    9. The Director of the Division of Correction or his or her designated agent;
    10. A member designated by the Arkansas Association of Chiefs of Police;
    11. A member designated by the Association of Arkansas Counties;
    12. The Director of the Division of Arkansas State Police or his or her designated agent; and
    13. The Governor or a member of the Governor's staff designated by the Governor.
  3. No member shall continue to serve on the board when the member no longer officially represents the function for which the member was appointed, except the citizens appointed by the Governor, who shall serve for a period of four (4) years.
  4. The board, for cause, may remove any board member and shall notify the Governor of the removal and the reason therefor.
    1. The members of the board may receive expense reimbursement and stipends in accordance with § 25-16-901 et seq.
    2. The board members shall receive no other compensation, expense reimbursement, or in-lieu-of payments except as provided in this subsection.
  5. The board shall meet at such times and places as it shall deem appropriate.
  6. A majority of the board shall constitute a quorum for transacting any business of the board.

History. Acts 1971, No. 286, §§ 3-5; 1975, No. 742, §§ 3-5; 1977, No. 542, § 1; A.S.A. 1947, §§ 5-1103 — 5-1105; Acts 1995, No. 1214, § 1; 1997, No. 250, § 66; 1997, No. 1354, § 30; 2001, No. 1288, §§ 3, 4; 2019, No. 910, §§ 5841, 5842.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (b)(9), and substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (b)(12).

12-12-203. Supervisory board — Duties.

  1. The duties and responsibilities of the Supervisory Board for the Arkansas Crime Information Center are to:
    1. Maintain and operate the Arkansas Crime Information Center;
    2. Provide that the information obtained by this subchapter shall be restricted to the items specified in this subchapter and so administer the center so as not to accumulate any information or distribute any information that is not specifically approved in this subchapter;
    3. Provide for adequate security safeguards to ensure that the data available through this system are used only by properly authorized persons and agencies;
    4. Provide for uniform reporting and tracking systems to report data authorized by this subchapter. Standard forms and procedures for reporting authorized data under this subchapter shall be prescribed by the board;
    5. Establish such rules and policies as may be necessary for the efficient and effective use and operation of the center under the limitations imposed by the terms of this subchapter;
    6. Provide for the reporting of authorized information under the limitations of this subchapter to the United States Department of Justice under its national system of crime reporting; and
    7. Provide for research and development activities that will encourage the application of advanced technology, including the development of prototype systems and procedures, the development of plans for the implementing of these prototypes, and the development of technological expertise which can provide assistance in the application of technology in record and communication systems in Arkansas.
  2. The board shall establish its own rules for performance of the responsibilities charged to the board in this subchapter.

History. Acts 1971, No. 286, §§ 3, 5; 1975, No. 742, §§ 3, 5; A.S.A. 1947, §§ 5-1103, 5-1105; Acts 2019, No. 315, §§ 856, 857.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a)(5); and deleted “and regulations” following “rules” in (b).

Cross References. Arkansas State Criminal Records Act, intent of, § 12-12-1502.

Dissemination of criminal history information, § 12-12-1504.

Implementation of Arkansas State Criminal Records Act, § 12-12-1512.

Release of criminal history information, authorization of, § 12-12-1507.

Unrestricted information, records, immunity from civil liability, § 12-12-1506.

12-12-204. [Repealed.]

Publisher's Notes. This section, concerning the Arkansas Crime Prevention Office Act, was repealed by Acts 2013, No. 1277, § 1. The section was derived from Acts 1985, No. 402, §§ 1-3; A.S.A. 1947, §§ 5-1121 — 5-1123.

12-12-205. Missing Persons Information Clearinghouse — Definitions.

  1. There is created a Missing Persons Information Clearinghouse within the Arkansas Crime Information Center.
  2. The clearinghouse shall be administered by the Director of the Arkansas Crime Information Center.
  3. The clearinghouse shall:
    1. Establish a computerized system to communicate information on:
      1. Persons reported to be missing; and
      2. Unidentified deceased persons;
    2. Interface with the National Crime Information Center for the exchange of information on:
      1. Missing persons; and
      2. Unidentified deceased persons;
    3. Establish educational services and publications deemed appropriate to aid in dealing with missing persons;
    4. Be authorized to issue rules and procedures for the orderly collection and entry of information on missing persons and unidentified deceased persons, as well as rules governing access to information on missing persons and unidentified deceased persons;
    5. Annually compile and make available statistical information on the number of missing persons and unidentified deceased persons entered into the computerized system of the clearinghouse and, where available, information on the number located; and
    6. Release information upon request to any court in a pending custody proceeding when the court needs information concerning whether a child has been reported as missing.
    1. Upon receiving notice of a missing child, a law enforcement agency shall complete a missing person report and immediately enter identifying and descriptive information about the missing child into the computerized system of the clearinghouse.
        1. Upon receiving notice of a missing adult, a law enforcement agency shall complete a missing person report and immediately enter identifying and descriptive information about the missing adult into the computerized system of the clearinghouse, provided the entering agency has signed documentation from a family member, friend, or other authoritative source, including a signed report by an investigating official when other documentation is not reasonably attainable, stating the conditions under which the person is declared missing.
        2. Such documentation will aid in the protection of the individual's right of privacy.
      1. Missing adults shall be entered based on categories established by the Federal Bureau of Investigation, and the categories may include disability, endangered, involuntary, or catastrophe victim.
    2. It shall be the duty of the initial investigating law enforcement agency to immediately cancel the computer entry when the missing child or missing adult is located or returned.
    3. No law enforcement agency shall delay an investigation or entry of missing persons information based on an agency rule or policy which specifies an automatic waiting period.
  4. A person shall be deemed guilty of a Class A misdemeanor who knowingly makes to a law enforcement agency:
    1. A false report of a missing person; or
    2. A false statement in any missing person report.
  5. When the unidentified body of a deceased individual is found, the law enforcement agency receiving the report shall immediately enter identifying and descriptive information about the unidentified body into the computerized system of the clearinghouse according to standards established by the center and the Federal Bureau of Investigation.
  6. When an individual is found whose identity is unknown and cannot be readily determined, the law enforcement agency receiving the report shall immediately enter identifying and descriptive information about the individual into the computerized system of the clearinghouse according to standards established by the center and the Federal Bureau of Investigation.
  7. As used in this section:
    1. “Missing adult” means any person:
      1. Who is eighteen (18) years of age or older;
      2. Whose residence is in Arkansas or is believed to be in Arkansas; and
      3. Who has been reported to a law enforcement agency as missing under circumstances indicating that:
        1. The individual has a physical or mental disability as evidenced by written documentation;
        2. The individual is missing under circumstances indicating that the disappearance was not voluntary;
        3. The individual is missing under circumstances indicating that the individual's safety may be in danger; or
        4. The individual is missing as a result of a natural or intentionally caused catastrophe;
    2. “Missing child” means any person:
      1. Who is under eighteen (18) years of age;
      2. Whose residence is in Arkansas or is believed to be in Arkansas;
      3. Whose location is unknown or who has been taken, enticed, or kept from any person entitled by law or a court decree or order to the right of custody; and
      4. Who has been reported as missing to a law enforcement agency; and
    3. “Missing person report” means a report prepared on a form designated by the center for use by law enforcement agencies to record missing persons information.
  8. The Attorney General shall require each law enforcement agency to comply with the mandatory entry provisions found in subdivisions (d)(1) and (2) of this section and in subsections (f) and (g) of this section and may seek writs of mandamus or other appropriate remedies to enforce this section.
  9. Missing person entries and unidentified deceased person entries, regardless of age, shall remain in the computerized system of the clearinghouse indefinitely or until the missing person is located or returns or positive identification is obtained and the investigation is completed and closed.
  10. The clearinghouse may assist in:
    1. Public notification;
    2. Providing informational resources to families of missing persons; and
    3. Constructing and distributing missing person flyers.

History. Acts 1985, No. 764, §§ 1-4; A.S.A. 1947, §§ 5-1124 — 5-1127; Acts 1987, No. 485, § 1; 1987, No. 486, § 1; 2001, No. 80, § 1; 2019, No. 315, § 858.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (c)(4).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-12-206. Data processing — Supervision.

  1. All data files and computer programs making up the Arkansas Crime Information System, in accordance with this subchapter, shall be under the control and jurisdiction of the Supervisory Board for the Arkansas Crime Information Center.
  2. The Director of the Arkansas Crime Information Center and the board shall make arrangements for the continued use of existing state computer facilities, computer systems and programming personnel, and communications networks whenever feasible and practical.

History. Acts 1971, No. 286, § 6; 1975, No. 742, § 6; A.S.A. 1947, § 5-1106.

12-12-207. Maintenance and operation of information system.

  1. The Arkansas Crime Information Center shall be responsible for providing for the maintenance and operation of the computer-based Arkansas Crime Information System.
  2. The use of the system is restricted to serving the informational needs of governmental criminal justice agencies and others specifically authorized by law through a communications network connecting local, county, state, and federal authorities to a centralized state repository of information.
  3. The Supervisory Board for the Arkansas Crime Information Center shall approve the creation and maintenance of each file in the system, establish the entry criteria and quality control standards for each file, and conduct an annual review of the appropriateness and effectiveness of all files and services provided by the center.
    1. The center shall collect data and compile statistics on the nature and extent of crime problems in Arkansas and compile other data related to planning for and operating criminal justice agencies.
    2. The data collected under this subsection shall include the address where a criminal offense occurred.
    3. The center shall also periodically publish statistics and report such information to the Governor, the General Assembly, and the general public.
  4. The center shall be authorized to design and administer uniform record systems, uniform crime reporting systems, and other programs to be used by criminal justice agencies to improve the administration of justice in Arkansas.

History. Acts 1971, No. 286, §§ 2, 9; 1975, No. 742, § 2; 1981, No. 612, § 1; 1983, No. 282, § 1; A.S.A. 1947, §§ 5-1102, 5-1102.3, 5-1109, 5-1117; Acts 1993, No. 535, § 6; 1993, No. 551, § 6; 1994 (2nd Ex. Sess.), No. 37, § 1; 1994 (2nd Ex. Sess.), No. 38, § 1; 1995, No. 498, § 1; 2019, No. 766, § 1.

Amendments. The 2019 amendment inserted (d)(2) and redesignated former (d)(2) as (d)(3).

12-12-208. Coordination with national crime control information systems.

    1. The Arkansas Crime Information Center shall be the central access and control agency for Arkansas's input, retrieval, and exchange of criminal justice information in the National Crime Information Center or its successor, and the National Law Enforcement Telecommunications System or its successor.
    2. The Arkansas Crime Information Center shall be responsible for the coordination of all Arkansas user agencies with the National Crime Information Center and the National Law Enforcement Telecommunications System.
  1. The Director of the Arkansas Crime Information Center or his or her designee shall serve as the National Crime Information Center control terminal officer and the National Law Enforcement Telecommunications System representative.

History. Acts 1979, No. 124, §§ 1, 2; A.S.A. 1947, §§ 5-1102.1, 5-1102.2.

12-12-209. Duty to furnish data.

    1. It shall be the duty of all county sheriffs, chiefs of police, city marshals, correction officials, prosecuting attorneys, court clerks, and other state, county, and local officials and agencies so directed to furnish the Arkansas Crime Information Center all data required by this subchapter.
    2. Upon filing of an order under § 5-2-310(b) or an order of commitment entered pursuant to § 5-2-314(b), § 20-47-214, or § 20-47-215 with a circuit clerk or a probate clerk, the circuit clerk or probate clerk shall submit a copy of the order of commitment to the center.
  1. The data shall be furnished to the center in a manner prescribed by the Supervisory Board for the Arkansas Crime Information Center.
  2. A county sheriff, chief of police, city marshal, correction official, prosecuting attorney, court clerk, or other state, county, or local official who knowingly fails to comply with this subchapter or any rule issued by the board carrying out this subchapter upon conviction is guilty of a violation and shall be punished by a fine not exceeding five hundred dollars ($500).

History. Acts 1971, No. 286, § 7; 1975, No. 742, §§ 7, 8; A.S.A. 1947, §§ 5-1107, 5-1111; 2007, No. 463, § 3; 2009, No. 165, § 2.

Amendments. The 2007 amendment added (a)(2).

The 2009 amendment, in (c), substituted “knowingly fails” for “shall willfully fail,” substituted “rule” for “regulation,” substituted “upon conviction is” for “shall be found,” substituted “violation and” for “misdemeanor and upon conviction,” and made minor stylistic changes.

12-12-210. Special information services agents.

  1. To ensure the accuracy, timeliness, and completeness of all records and information as prescribed by this subchapter, the Director of the Arkansas Crime Information Center shall appoint special information services agents.
  2. After proper and sufficient security clearances and training, the agents shall be commissioned to do monitoring and auditing of all records and information as defined by this subchapter and such other duties as may be prescribed by the Supervisory Board for the Arkansas Crime Information Center.

History. Acts 1975, No. 742, § 10; A.S.A. 1947, § 5-1112.

12-12-211. Access to records.

    1. The Arkansas Crime Information Center shall make criminal history records on persons available in accordance with §§ 12-12-1008 — 12-12-1011.
    2. Release of other noncriminal history records shall be in accordance with policies and rules established by the Supervisory Board for the Arkansas Crime Information Center.
    1. The Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration shall be considered a criminal justice agency solely for the purpose of securing information from the center regarding the address or whereabouts of any deserting parent from whom the office is charged with collecting child support.
    2. Any information received by the Crime Victims Reparations Board through the office of the Attorney General obtained from the center pursuant to § 16-90-712 shall not be available for examination except by the affected claimant or his or her duly authorized representative.
      1. It shall be unlawful for any person to disclose information obtained under this subsection except:
        1. For the purpose of performing the duties of the:
          1. Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration; or
          2. Crime Victims Reparations Board; or
        2. Upon court order.
      2. Upon conviction, any person violating subdivision (b)(3)(A) of this section shall be guilty of a Class A misdemeanor.
    1. Except as provided in subdivision (c)(2) of this section, an elected law enforcement officer of a political subdivision of this state shall not be allowed access to information from the center unless either the elected law enforcement officer or a law enforcement officer within his or her department has successfully completed the preparatory program of police training required by the Arkansas Commission on Law Enforcement Standards and Training for certification of law enforcement officers.
    2. A constable shall have access to information from the center if the commission certifies that the constable has completed the course required by § 14-14-1314.
    1. The State Board of Law Examiners shall be deemed to be a regulatory agency having specific statutory access to the records of the center as provided by subsection (a) of this section.
    2. In that capacity, the State Board of Law Examiners shall require each applicant for admission to the Bar of Arkansas to be fingerprinted.
    3. The center is authorized to accept fingerprints or other information provided to it by the State Board of Law Examiners and is further authorized to release to the State Board of Law Examiners any requested information, including state, multistate, and Federal Bureau of Investigation criminal history records, as they may relate to applicants for admission to the bar.
  1. The center shall provide access to the insurance verification database that contains the information provided to the Department of Finance and Administration or to a vendor designated by the department under § 27-22-107 to law enforcement officers during the course of traffic stops.

History. Acts 1971, No. 286, § 2; 1975, No. 742, § 2; 1981, No. 902, §§ 1, 2; A.S.A. 1947, §§ 5-1102, 5-1118, 5-1119; Acts 1993, No. 605, § 1; 1995, No. 1184, § 29; 1997, No. 243, § 1; 1997, No. 826, § 2; 1999, No. 1224, § 1; 2003, No. 998, § 3; 2007, No. 841, § 1; 2009, No. 476, § 1; 2019, No. 315, § 859.

Amendments. The 2007 amendment substituted “Board for” for “Board of” in (a)(2); and in (c), added “Except as provided in subdivision (c)(2) of this section” in present (c)(1), added (c)(2), and made related changes.

The 2009 amendment inserted “or to a vendor designated by the Department of Finance and Administration” in (e).

The 2019 amendment substituted “rules” for “regulations” in (a)(2).

Cross References. Constable training requirements and uniform requirements, § 14-14-1314.

Fines, § 5-4-201.

Imprisonment, § 5-4-401.

Training for constables, § 12-9-115.

12-12-212. Release or disclosure to unauthorized person — Penalty.

  1. A person is guilty of a Class A misdemeanor upon conviction if the person knowingly:
    1. Accesses information or obtains information collected and maintained under this subchapter for a purpose not specified by this subchapter; or
    2. Releases or discloses information maintained under this subchapter to another person who lacks authority to receive the information.
  2. A person is guilty of a Class D felony upon conviction if the person violates subsection (a) of this section for the purpose of:
    1. Furthering the commission of a misdemeanor offense or felony offense by the person or another person;
    2. Enhancing or assisting a person's position in a legal proceeding in this state or influencing the outcome of a legal proceeding in this state for the benefit of the person or a member of the person's family;
    3. Causing a pecuniary or professional gain for the person or a member of the person's family; or
    4. Political purposes for the person or a member of the person's family.

History. Acts 1971, No. 286, § 10; 1975, No. 742, § 9; A.S.A. 1947, § 5-1110; Acts 1997, No. 826, § 3; 2011, No. 779, § 7; 2011, No. 1224, § 1; 2017, No. 250, § 3; 2017, No. 845, § 2.

A.C.R.C. Notes. Pursuant to § 1-2-207(b) and Acts 2011, No. 779, § 25, the amendments to this section by Acts 2011, No. 779, § 7 are superseded by the amendments to this section by Acts 2011, No. 1224, § 1.

Acts 2011, No. 1224, § 3, provided:

“The provisions of this act shall not be retroactive.”

Amendments. The 2011 amendment by No. 779 substituted “knowingly releases or discloses” for “shall release or disclose” and “upon conviction is guilty” for “shall be deemed guilty”.

The 2011 amendment by No. 1224 rewrote the section.

The 2017 amendment by No. 250 added “knowingly” at the end of the introductory language in (a); in (a)(1), substituted “Accesses” for “Knowingly accesses”; and, in (a)(2), substituted “Releases” for “Knowingly releases”.

The 2017 amendment by No. 845 added “knowingly” at the end of the introductory language in (a); in (a)(1), substituted “Accesses” for “Knowingly accesses” and deleted “willfully” preceding “obtains”; and substituted “Releases” for “Knowingly releases” in (a)(2).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-12-213. Invasion of privacy prohibited.

Nothing in this subchapter shall be construed to give authority to any person, agency, corporation, or other legal entity to invade the privacy of any citizen as defined by the General Assembly or the courts other than to the extent provided in this subchapter.

History. Acts 1971, No. 286, § 8; A.S.A. 1947, § 5-1108.

12-12-214. Fees from localities — Disposition.

  1. The Arkansas Crime Information Center is authorized to charge fees to other governmental units in order to reimburse the center for expenditures made on behalf of the other governmental units.
      1. The fees shall be categorized as either service fees or system enhancement fees.
      2. However, specified portions of a single fee may be divided between such categories.
      1. The service fees are to be deposited into the Crime Information System Fund in the State Treasury as a refund to expenditures.
        1. System enhancement fees shall be restricted in their use and dedicated solely to financing the acquisition, installation, enhancement, and maintenance of equipment required for the center's operation, including any additions, extensions, and improvements thereto.
        2. The center may pledge and use system enhancement fees for the repayment of obligations of the center to the Arkansas Development Finance Authority or other appropriate financing entity.

History. Acts 1983, No. 214, § 3; A.S.A. 1947, § 5-1120; Acts 1999, No. 1109, § 1.

Publisher's Notes. Acts 1975, No. 742 provided that all funds in the Criminal Justice and Highway Safety Information Center Fund, as established by Acts 1973, No. 750, should remain in that fund for the continued use of the Criminal Justice and Highway Safety Information Center after July 9, 1975.

12-12-215. Registry of orders of protection.

  1. In addition to other duties as provided, the Arkansas Crime Information Center shall maintain a registry of all orders of protection and temporary orders of protection issued by a court of this state or registered in this state.
    1. Upon receipt of an authorized order of protection, temporary order of protection, or any modification or cancellation of such orders, a court clerk shall immediately forward a copy to the county sheriff of the county for service.
    2. The county sheriff shall immediately enter or cause to be entered such orders and any subsequent modifications or cancellations into the center system.
    3. If the county sheriff does not have a center terminal and entries are made by another agency that does have a center terminal, that agency shall make such entries immediately upon receipt of information from the county sheriff.
    4. Only orders which are consistent with § 9-15-302(b) may be entered into the center system.
  2. Information contained in the registry shall be determined by the Supervisory Board for the Arkansas Crime Information Center. Orders of protection and temporary orders of protection required to be entered into the center system shall include, at a minimum, the full name and date of birth of the subject of the order for proper identification.
  3. Information contained in the registry shall be deemed confidential and shall be available at all times only to courts, law enforcement, and prosecuting attorneys.

History. Acts 1995, No. 995, § 1.

12-12-216. Carry forward.

  1. At the close of each fiscal year, the Director of the Arkansas Crime Information Center shall certify to the Chief Fiscal Officer of the State the amount, if any, of unexpended moneys and appropriations in the Crime Information System Fund or its successor resulting from the reimbursement to the Arkansas Crime Information Center by municipal, county, state, or federal governments for teleprocessing services.
    1. Any balance of such moneys and appropriations shall be carried forward and made available for the maintenance, operation, improvement, and other necessary expenditures in providing teleprocessing services to such municipal, county, state, and federal agencies served by the center.
    2. The total amount that is carried forward under this section shall be reported in the budget manuals that are presented to the Legislative Council and Joint Budget Committee during the presession budget hearings.

History. Acts 1997, No. 911, § 9; 2011, No. 779, § 8.

Amendments. The 2011 amendment substituted “budget hearings” for “budget hearings which are held in the fall of each even-numbered year” in (b)(2).

12-12-217. Annual report.

  1. On July 31 of each year the Arkansas Crime Information Center shall submit an annual report to the Legislative Council showing the number of persons arrested for each criminal offense classification, comparing the state and each individual reporting agency.
  2. The report shall include a breakdown by race of all persons arrested in each criminal offense classification.

History. Acts 2003, No. 1031, § 2; 2011, No. 779, § 9.

A.C.R.C. Notes. Acts 2003, No. 1031, § 1, provided:

“Intent.

(a) Ethnic minorities appear to be over represented in the population of persons who are involved in the criminal justice system, charged as defendants, convicted, and incarcerated throughout the United States criminal justice systems.

“(b) It is the responsibility of criminal justice agencies and the courts in the State of Arkansas to ensure that all actions taken are based upon reasons other than the race of the defendant.

“(c) In order to allow the General Assembly to conduct a thorough review of the Arkansas criminal justice process, information on actions taken by criminal justice agencies and the courts must be reported in a timely, uniform, and consistent manner.”

As originally enacted by Acts 2003, No. 1031, § 2, subsection (a) began:

“Beginning July 31, 2003, and,”

Amendments. The 2011 amendment deleted “and the Commission on Disparity in Sentencing” following “Legislative Council” in (a).

12-12-218. Registry of certain court orders — Definition.

  1. As used in this section, “center system” means the registry of all court orders issued under §§ 5-2-310(b), 5-2-314(b), 20-47-214, and 20-47-215 maintained by the Arkansas Crime Information Center under this section.
    1. The Arkansas Crime Information Center shall maintain the center system as provided under this section.
    2. Only orders that are consistent with § 5-2-310(b), § 5-2-314(b), § 20-47-214, or § 20-47-215 shall be entered into the center system.
  2. Information contained in the center system shall be determined by the Supervisory Board for the Arkansas Crime Information Center and shall include, at a minimum, the person's name and date of birth.
  3. Information contained in the center system is not disclosable under applicable state or federal law and shall be available at all times only to courts, law enforcement personnel, and prosecuting attorneys.

History. Acts 2013, No. 470, § 1.

12-12-219. Records of local and regional detention facilities.

    1. The Arkansas Crime Information Center shall permit and encourage the entry of data by a local or regional detention facility, such as a county jail, into a database maintained by the center and accessible by an entity as determined by the Supervisory Board for the Arkansas Crime Information Center.
    2. Data provided by a regional detention facility shall facilitate analysis of inmate populations in local detention facilities, including, but not limited to:
      1. Local or regional detention facility inmate population, including the number of inmates currently housed over the recognized maximum capacity of the local or regional detention facility; and
      2. The types and number of offenses for which the inmates are being housed in the local or regional detention facility.
  1. The types of data entered into a database under this section may include:
    1. Information concerning the inmates admitted to and released from the local or regional detention facility, including without limitation:
      1. The state identification number of the inmate;
      2. The offenses the inmates committed or were accused of committing; and
      3. The dates the inmates were both taken into custody and released;
      1. A record of any mental health screening of an inmate administered by a law enforcement agency or healthcare facility.
      2. The results of a mental health screening administered by a law enforcement agency or healthcare facility may be entered into the database as permitted by state or federal law; and
    2. Any other data that that would be of assistance to a law enforcement agency, state agency, legislative committee, academic researcher, or other entity permitted to access the data.
  2. The center shall promulgate rules necessary to implement this section.

History. Acts 2017, No. 423, § 9.

Subchapter 3 — State Crime Laboratory

Effective Dates. Acts 1975, No. 350, § 7: July 1, 1975. Emergency clause provided: “It is hereby found and determined by the Seventieth General Assembly that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this act on July 1, 1975 is essential to the operations of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1975 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1975.”

Acts 1975, No. 736, § 3: Apr. 3, 1975. Emergency clause provided: “It has been found and it is hereby declared by the Seventieth General Assembly that officials of the Arkansas Department of Correction do not have the authority to carry out their responsibilities in regard to death occurring to people under their jurisdiction. Therefore, an emergency is declared to exist and this act, being immediately necessary for the preservation of the public peace, health, and safety and to insure the proper administration of justice shall be in full force and effect upon its passage and approval.”

Acts 1979, No. 864, § 24: Apr. 11, 1979. Emergency clause provided: “It is hereby found and determined by the Seventy-Second General Assembly that criminal activity continues to exist in the State of Arkansas, and the law enforcement agencies and the criminal justice system has a need for medical and scientific assistance from a consolidated State Crime Laboratory. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 984, § 3: became law without Governor's signature, Apr. 8, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the State Medical Examiner should have the authority to remove suitable pituitary glands during the course of an autopsy and donate the same to the Arkansas Dwarf Association for the extraction of hormones needed by dwarfs; and that this act is immediately necessary to provide such authority. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 216, § 3: Feb. 28, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law places a duty on certain persons to notify the sheriff and State Medical Examiner of the death of another by violence or a death under unusual circumstances; that the imposition of a penalty for failure to make such notice is necessary to insure proper reporting; and that this act is immediately necessary to assure that deaths occurring on or after the passage of this act are properly reported. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 644, § 7: July 1, 1985. Emergency clause provided: “It is hereby found and determined by the Seventy-Fifth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1985 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1985 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1985.”

Acts 1993, No. 177, § 5: Feb. 19, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that legislation has been proposed for immediate enactment to provide that the State Crime Laboratory shall perform post mortem examinations instead of autopsies; that the present law amended by this act requires whomever performs an autopsy to sign the death certificate; and whereas this law should be changed to post mortem examinations instead of autopsies; and whereas the legislation changing the State Crime Laboratory's duties to make post mortem examinations in lieu of autopsies will go into effect effective as soon as enacted; it is necessary that this act also go into effect as soon as enacted. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 178, § 5: Feb. 19, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that the State Crime Laboratory is now required to perform autopsies in certain circumstances; that the Crime Laboratory should be required to conduct postmortem examinations in lieu of autopsies; that changing the requirements will grant necessary relief to the Crime Laboratory from its overwhelming workload; and that this act should go into effect immediately in order to provide that relief as soon as possible. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, Nos. 1063 and 1246, § 5: Apr. 12, 1993, Apr. 20, 1993, respectively. Emergency clause provided: “It is hereby found and determined by the General Assembly that the return transportation of bodies for which postmortem examination has been requested and completed is not the function of the State Crime Laboratory, and that such responsibility places an undue hardship on the resources available to the State Crime Laboratory and its personnel. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 1151, § 11: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2001, No. 1642, § 7: Apr. 16, 2001. Emergency clause provided: “It is hereby found and determined by the Eighty-third General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that due to the extraordinary increase in the number of illicit drug laboratory and criminal drug related cases filed throughout the state additional state resources are needed to examine and identify evidence turned over to the State Crime Laboratory; that constructing and equipping regional crime laboratories will provide the most efficient and effective method of meeting these demands; and that the effectiveness of this Act on the date of its passage and approval is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond the date of its passage and approval could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after the date of its passage and approval. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2007, No. 69, § 2: Feb. 8, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that families of firefighters and police officers, or other persons with a similar eligibility under the two (2) acts specified in subdivision (c)(1)(B) of this section who have died as a result of performing emergency services for their communities have not received timely access to awards programs that would assist the families in their time of crisis; and that those families are suffering unnecessarily, because the awards have not been readily available. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2007, No. 839, § 10: Apr. 3, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the donation of parts of human bodies provides a significant source for protecting the health and safety of the citizens of Arkansas; and that continuous advances in the technology of human transplants and the inherent limitations incident to transplantation from dead bodies require that this act become effective immediately. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2017, No. 147, § 5: Feb. 7, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that current law that generally applies to medical schools only references the University of Arkansas for Medical Sciences; that the establishment of additional medical schools in this state requires clarification that these laws apply to any medical schools in this state; and that this act is immediately necessary to ensure that the additional medical schools and their faculty can operate fully and efficiently to protect the well-being of Arkansans. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Case Notes

Evidence of Death.

There may be sufficient evidence of death, even in the absence of evidence of results of an autopsy or a medical doctor's opinion as to the cause of death. Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975).

Cited: Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983).

12-12-301. Establishment.

  1. There is established a State Crime Laboratory.
  2. The laboratory shall offer services to law enforcement in:
    1. Forensic pathology;
    2. Toxicology;
    3. Physical evidence analysis;
    4. DNA analysis;
    5. Drug analysis;
    6. Latent fingerprint identification;
    7. Firearms and toolmarks analysis;
    8. Digital evidence analysis; and
    9. Other such areas as the State Crime Laboratory Board deems necessary and appropriate.

History. Acts 1977, No. 517, § 1; 1979, No. 864, § 1; A.S.A. 1947, § 42-1201; Acts 2019, No. 636, § 1.

Publisher's Notes. Acts 1979, No. 864, § 1, provided, in part, that the office of the state medical examiner; the firearms and toolmarks identification, latent fingerprints, and questioned documents examination functions of the Arkansas State Police; and the Drug Analysis Laboratory of the State Health Department were transferred to and merged into the State Crime Laboratory.

Acts 1981, No. 45, § 6, provided that the State Crime Laboratory, which was located within the Department of Public Safety (abolished by Acts 1981, No. 45, § 1), and all its powers, functions, duties, personnel, and funds would be detached from that department and that the State Crime Laboratory would be operated as an independent state agency.

The section further provided that the members of the State Crime Laboratory Board and the officers and personnel of the State Crime Laboratory, including its head, would continue to be appointed in the same manner as then provided by law.

The section further provided that nothing in the act should be construed to reduce any right which an employee of the State Crime Laboratory had under any civil service or merit system.

Amendments. The 2019 amendment rewrote (b).

12-12-302. Board created — Members — Meetings.

    1. There is created a State Crime Laboratory Board.
      1. The members of the board shall be appointed by the Governor and confirmed by the Senate.
      2. However, a vacancy may be temporarily filled by the Governor until the Senate shall next meet.
  1. The members appointed by the Governor shall be composed of:
    1. One (1) member of the active judiciary;
    2. One (1) practicing member of the legal profession;
    3. One (1) active county sheriff;
    4. One (1) active chief of police;
    5. One (1) active prosecuting attorney;
    6. Two (2) physicians engaged in the active practice of private or academic medicine; and
    7. One (1) member at large from the state.
    1. Appointments to the board shall be for a term of seven (7) years.
      1. All appointments made at any time other than the day following the expiration of a term shall be made for the unexpired portion of the term.
      2. If, however, the Governor shall not make an appointment by January 15 of the year in which the term expires, that member shall continue to serve until he or she is reappointed or a successor is appointed, and the term of that member shall run for seven (7) years from January 15 in the year the term expired rather than for seven (7) years from the date of actual appointment.
    1. The board shall meet and elect one (1) of its members as chair and one (1) as vice chair.
    2. The chair shall have the power to call meetings of the board upon due notice of the meeting to all members of the board.
  2. A majority of the members of the board shall constitute a quorum to transact the business of the board.
  3. The board shall meet a minimum of one (1) time every three (3) months. Failure of any appointee to attend three (3) consecutive meetings shall constitute cause for removal from the board by the Governor.
  4. Members of the board may receive expense reimbursement and stipends in accordance with § 25-16-901 et seq. The sums shall be paid from the appropriated maintenance and general operations funds of the State Crime Laboratory.

History. Acts 1991, No. 383, § 2; 1997, No. 250, § 67; 2011, No. 219, § 1.

Publisher's Notes. Former § 12-12-302, concerning the creation of the State Crime Laboratory Board, was repealed by Acts 1991, No. 383, § 1. The former section was derived from Acts 1977, No. 517, § 2; 1979, No. 864, §§ 2-4; A.S.A. 1947, §§ 42-1203, 42-1205, 42-1206.

Acts 1991, No. 383, § 1, provided, in part, that the State Crime Laboratory Board created under former § 12-12-302 and the State Medical Examiner Commission created under former § 12-12-306 are abolished and the terms of their members shall expire on July 15, 1991. Section 1 also provided that the powers and duties of the former State Crime Laboratory Board and the former State Medical Examiner are transferred to a new board created under present § 12-12-302 known as the State Crime Laboratory Board.

Amendments. The 2011 amendment deleted “to be composed of eight (8) members” at the end of (a)(1); in (a)(2)(A), deleted the first sentence and substituted “The members of the board” for “the remaining seven (7) members of the board”; and substituted “Two (2) physicians” for “One (1) physician” in (b)(6).

12-12-303. Board's powers and duties generally.

  1. The State Crime Laboratory Board shall promulgate such policies and rules as shall be necessary to carry out the intent and purpose of this subchapter along with the specific duties and responsibilities set out in this subchapter.
  2. The board is authorized to accept gifts, grants, or funds from persons, associations, corporations, foundations, and federal or state governmental agencies and to use the gifts, grants, or funds for purposes of carrying out this subchapter or for any other purposes not inconsistent with the purposes and intent of this subchapter which may be authorized by the board.
  3. The board is further authorized by this subchapter to enter into contracts, not inconsistent with law, and to do such things as it may deem necessary or appropriate to properly carry out the purposes and intent of this subchapter.

History. Acts 1979, No. 864, §§ 4, 21; A.S.A. 1947, §§ 42-1206, 42-1223; Acts 2019, No. 315, § 860.

Amendments. The 2019 amendment substituted “policies and rules” for “policies, rules, and regulations” in (a).

12-12-304. Director of the State Crime Laboratory.

    1. The State Crime Laboratory shall be headed by a director who shall be appointed by the Governor and who shall serve at the pleasure of the Governor.
    2. The director shall report to the Secretary of the Department of Public Safety.
  1. The director may delegate specific duties to competent and qualified associates, assistants, and deputies who may act for the director within the scope of the authority granted him or her, subject, however, to such rules as may be prescribed by the State Crime Laboratory Board.
  2. The board shall prescribe the duties, responsibilities, compensation, and qualifications for the director.

History. Acts 1979, No. 864, §§ 5, 6; A.S.A. 1947, §§ 42-1207, 42-1208; Acts 2019, No. 315, § 861; 2019, No. 910, § 5843.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (b).

The 2019 amendment by No. 910 substituted “Director of the State Crime Laboratory” for “Executive director” in the section heading; redesignated (a) as (a)(1); in (a)(1), substituted “a director” for “an executive director” and added “and who shall serve at the pleasure of the Governor”; added (a)(2); substituted “director” for “executive director” in (b) and (c); and made a stylistic change.

12-12-305. Housing and equipment — Functions.

  1. There shall be established under the supervision of the Director of the State Crime Laboratory a central office and laboratory facility sufficient and adequate to house the various functions of the State Crime Laboratory as set out in this subchapter and as may be necessary and proper for the laboratory to perform in carrying out its official duties and functions as provided by law.
  2. The laboratory shall have the equipment and personnel necessary to respond to the needs of all law enforcement agencies in the State of Arkansas with respect to the following functions:
    1. Forensic toxicology, including without limitation chemical testing and analysis of body fluids and the performance of procedures to determine the presence and significance of toxic agents both in the investigation of death cases authorized by this subchapter and in other appropriate cases;
    2. Criminalistics, including without limitation chemical testing of trace evidence, physical and microscopic analysis of evidence, latent fingerprint identification and classification, firearms and toolmarks identification, serology, DNA analysis, DNA database administration, and computer forensic analysis;
    3. Drug analysis, including without limitation analyzing and identifying substances suspected as being controlled, illicit, or contraband drugs;
    4. Pathology and biology, including the investigation and determination of the cause and manner of deaths that become subject to the jurisdiction of the State Medical Examiner under § 12-12-318 and the general application of the medical sciences to assist the criminal justice system in the State of Arkansas; and
    5. Any other laboratory divisions, sections, or functions that, in the opinion of the State Crime Laboratory Board, may serve the needs of law enforcement in the State of Arkansas for laboratory analysis.

History. Acts 1979, No. 864, §§ 7, 8; A.S.A. 1947, §§ 42-1209, 42-1210; 2013, No. 323, § 1; 2019, No. 910, § 5844.

Amendments. The 2013 amendment substituted “including without limitation” for “which shall include, but is not limited to” throughout (b); in (b)(2), deleted “questioned document examination and classification” preceding “latent fingerprint” and substituted “serology, DNA analysis, DNA database administration, and computer forensic analysis” for “and analysis, and, serology”; in (b)(4), substituted “including the investigation and determination” for “which shall include investigating and making a determination”, substituted “under” for “as set out in”, and deleted “shall include” preceding “the general”.

The 2019 amendment substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” in (a).

12-12-306. State Medical Examiner.

  1. The Director of the State Crime Laboratory shall appoint and employ a State Medical Examiner with the approval of the State Crime Laboratory Board and in consultation with the Secretary of the Department of Public Safety.
  2. The director may remove the examiner only for cause and with the approval of the board.

History. Acts 1991, No. 383, § 3; 2011, No. 775, § 1; 2019, No. 910, § 5845.

Publisher's Notes. Former § 12-12-306, concerning the State Medical Examiner Commission, was repealed by Acts 1991, No. 383, § 1. The former section was derived from Acts 1969, No. 321, §§ 1, 3; A.S.A. 1947, §§ 42-611, 42-613.

Acts 1991, No. 383, § 1, provided, in part, that the State Crime Laboratory Board created under former § 12-12-302 and the State Medical Examiner Commission created under former § 12-12-306 are abolished and the terms of their members shall expire on July 15, 1991. Section 1 also provided that the powers and duties of the former State Crime Laboratory Board and the former State Medical Examiner are transferred to a new board created under present § 12-12-302 known as the State Crime Laboratory Board.

Amendments. The 2011 amendment, in (a), substituted “Executive Director of the State Crime Laboratory” for “State Crime Laboratory Board” and added “with the approval of the State Crime Laboratory Board”; and, in (b), substituted “executive director” for “board” and added “and with the approval of the board”.

The 2019 amendment, in (a), substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” and added “and in consultation with the Secretary of the Department of Public Safety”; and substituted “director” for “executive director” in (b).

12-12-307. Medical examiners — Qualifications — Duties.

    1. The State Medical Examiner as well as associate medical examiners shall:
      1. Be citizens of the United States;
      2. Be physicians or surgeons with a doctor of medicine degree who have been licensed or who are eligible to be licensed to practice medicine in the State of Arkansas;
      3. Have a minimum of three (3) years postgraduate training in human pathology as recognized by the American Medical Association; and
      4. Have had at least one (1) year of experience in medical-legal practice.
    2. The State Medical Examiner shall also be board certified or eligible for board certification as recognized by the American Board of Pathology in Forensic Pathology.
  1. In addition to the duties prescribed in this subchapter, the State Medical Examiner and his or her associates may teach in the medical school, conduct classes for law enforcement officers and officials, lecture, do research, and engage in such activities as shall be deemed appropriate by the State Crime Laboratory Board.

History. Acts 1979, No. 864, § 9; A.S.A. 1947, § 42-1211.

12-12-308. Medical examiners — Professional liability insurance.

  1. The State Crime Laboratory shall obtain a policy of professional liability insurance in the amount of no less than four hundred thousand dollars ($400,000) to indemnify any person or persons injured by the State Medical Examiner or his or her associates in the performance of their duties under this subchapter.
  2. The premium for the policy of insurance shall be paid from funds appropriated by the General Assembly for the maintenance and general operations of the State Crime Laboratory.

History. Acts 1979, No. 864, § 19; A.S.A. 1947, § 42-1221.

12-12-309. Utilization of outside personnel.

  1. The State Crime Laboratory Board may authorize the Director of the State Crime Laboratory to contract with a medical school in this state accredited by an accrediting agency recognized by the United States Department of Education or approved by the Arkansas Higher Education Coordinating Board to seek accreditation by an accrediting agency recognized by the United States Department of Education, or with other persons or institutions, to obtain services with which to perform the duties set forth in this subchapter.
  2. The participation of a medical school’s faculty or of any other person or institution in carrying out the provisions of this subchapter shall in no way affect tenure or any other status with the medical school or institution.

History. Acts 1979, No. 864, § 5; A.S.A. 1947, § 42-1207; Acts 2017, No. 147, § 2; 2019, No. 910, § 5846.

Amendments. The 2017 amendment, in (a), substituted “may” for “is empowered to” and “a medical school in this state accredited by an accrediting agency recognized by the United States Department of Education or approved by the Arkansas Higher Education Coordinating Board to seek accreditation by an accrediting agency recognized by the United States Department of Education” for “the University of Arkansas for Medical Sciences, University of Arkansas for Medical Sciences Medical Center”; and, in (b), substituted “a medical school’s” for “the University of Arkansas for Medical Sciences”, inserted the first occurrence of “or institution”, and substituted “the medical school or institution” for “any such institution or agency”.

The 2019 amendment substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” in (a).

12-12-310. Reimbursement for use of outside faculty.

  1. The State Crime Laboratory shall reimburse the Graduate Institute of Technology and a medical school in this state accredited by an accrediting agency recognized by the United States Department of Education or approved by the Arkansas Higher Education Coordinating Board to seek accreditation by an accrediting agency recognized by the United States Department of Education for the use of personnel from the institute and the medical school in performing services for the laboratory.
  2. The participation of a medical school’s faculty and institute faculty in carrying out the provisions of this subchapter shall in no way affect their tenure with the medical school and institute.

History. Acts 1977, No. 517, § 3; A.S.A. 1947, § 42-1204; Acts 2017, No. 147, § 2.

Amendments. The 2017 amendment rewrote (a); and, in (b), substituted “a medical school’s” for “center” and “the medical school and institute” for “their institution”.

12-12-311. Cooperation by others required — Tort immunity.

    1. All law enforcement officers and other state, county, and city officials, as well as private citizens, shall fully cooperate with the staff of the State Crime Laboratory in making any investigation provided for or authorized in this subchapter.
      1. The prosecuting attorney for each judicial district shall provide the laboratory each month with a list of cases having been adjudicated through plea negotiations and which require no further laboratory analysis.
      2. The monthly list shall contain the laboratory case number and will be used by the laboratory for the purpose of returning evidence on which analysis is no longer necessary, thus reducing the backlog of cases found on the evidence shelves at the laboratory.
    2. Nothing in this subchapter shall impair the authority of the prosecuting attorney to require further analysis of evidence in any case having been adjudicated through plea negotiations.
      1. Upon completion of all requested analysis of submitted evidence by the laboratory, the evidence shall be returned to the submitting agency within thirty (30) days.
      2. The submitting agency shall maintain and store evidence until released by a court of competent jurisdiction or the prosecuting attorney.
  1. Any physician or other person in attendance or present at the death of a person, or any hospital, if death occurs therein and results from such conditions and circumstances as set out in § 12-12-315, shall promptly notify the chief law enforcement official of the county or municipality which shall have jurisdiction and the laboratory of the death and shall assist in making available dead bodies and related evidence as may be requested by the Director of the State Crime Laboratory or his or her staff or by the law enforcement agency conducting the investigation.
  2. Any physician, surgeon, dentist, hospital, or other supplier of healthcare services shall cooperate and make available to the director or his or her staff the records, reports, charts, specimens, or X-rays of the deceased as may be requested where death occurs and an investigation is being conducted under the provisions of this subchapter.
  3. No person, institution, or office in this state which shall make available information or material under this section shall be liable for violating any criminal law of this state, nor shall any person, institution, or office be held liable in tort for compliance with this section.

History. Acts 1979, No. 864, § 12; A.S.A. 1947, § 42-1214; Acts 1999, No. 767, § 1; 2019, No. 910, § 5847.

Amendments. The 2019 amendment substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” in (b); and substituted “director” for “executive director” in (c).

12-12-312. Records confidential and privileged — Exception — Release.

        1. The records, files, and information kept, obtained, or retained by the State Crime Laboratory under this subchapter are privileged and confidential.
        2. However, the laboratory shall grant access to records pertaining to a defendant's criminal case to the following persons:
          1. The defendant;
          2. The public defender or other attorney of record for the defendant; and
          3. The prosecuting attorney or deputy prosecuting attorney having jurisdiction over the criminal case.
        3. The records, files, and information shall not be released to a person or entity other than those listed in subdivision (a)(1)(A)(ii) of this section except at the direction of a court of competent jurisdiction or the prosecuting attorney having criminal jurisdiction over the case.
        4. In cases in which the cause and manner of death are not criminal in nature, the laboratory may communicate without prior authorization required under subdivision (a)(1)(A)(iii) of this section with the decedent's next of kin or the next of kin's designee, including without limitation:
          1. Parents;
          2. Grandparents;
          3. Siblings;
          4. Spouses;
          5. Adult children; or
          6. Legal guardians.
        1. This section does not diminish the right of a defendant, his or her attorney, or an attorney who has provided a signed release from the defendant to full access to all records pertaining to the case.
        2. Promptly after discovering any evidence in a defendant's case that is kept, obtained, or retained by the laboratory and which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the defendant's punishment, the prosecuting attorney with jurisdiction over the case shall disclose the existence of the evidence to the defendant or his or her attorney.
      1. The Department of Health may access autopsy records, files, and information under this subchapter for the purpose of implementing the quality improvement provisions of the Trauma System Act, § 20-13-801 et seq., and the rules adopted by the State Board of Health under the Trauma System Act, § 20-13-801 et seq.
    1. However, a full report of the facts developed by the State Medical Examiner or his or her assistants shall be promptly filed with the law enforcement agencies, county coroner, and prosecuting attorney of the jurisdiction in which the death occurred.
  1. The State Crime Laboratory Board shall promulgate rules not contrary to law regarding the release of reports and information by the staff of the laboratory.
  2. All records, files, and information obtained or developed by the laboratory pertaining to a capital offense committed by a defendant who is subsequently sentenced to death for the commission of the capital offense shall be preserved and retained until the defendant's execution.

History. Acts 1969, No. 321, § 11; 1979, No. 864, § 16; A.S.A. 1947, §§ 42-621, 42-1218; Acts 1993, No. 1304, § 1; 1999, No. 519, § 1; 2001, No. 211, § 1; 2001, No. 917, § 1; 2011, No. 892, § 1; 2013, No. 298, § 1; 2015, No. 1040, § 1; 2019, No. 1001, § 1.

Amendments. The 2011 amendment added “that is kept, obtained, or retained by the laboratory” in (a)(1)(B)(ii); and added (a)(1)(B)(iii).

The 2013 amendment added (a)(1)(A)(iii).

The 2015 amendment rewrote (a)(1)(B)(ii); redesignated former (a)(1)(B)(iii) as (a)(1)(C); deleted “and regulations” following “rules” in (b); and substituted “the capital offense” for “that offense” in (c).

The 2019 amendment rewrote (a)(1)(A); and substituted “his or her attorney, or an attorney who has provided a signed release from the defendant” for “or his or her attorney” in (a)(1)(B)(i).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

Case Notes

Photocopying Costs.

Petitioner failed to show he had a right to copies of a report on latent fingerprint analysis, because indigency alone did not entitle a petitioner to free photocopying, and the petitioner had not fully established that the document that he sought existed or if it did exist, that it was not furnished to his counsel at trial. Hill v. State, 2012 Ark. 309 (2012).

12-12-313. Records as evidence — Analyst's testimony.

  1. The records and reports of autopsies, evidence analyses, drug analyses, and any investigations made by the State Crime Laboratory under the authority of this subchapter shall be received as competent evidence as to the matters contained therein in the courts of this state subject to the applicable rules of criminal procedure or civil procedure when duly attested to by the Director of the State Crime Laboratory or his or her assistants, associates, or deputies.
  2. This section does not abrogate a defendant's right of cross-examination if notice of intention to cross-examine is given before the date of a hearing or trial pursuant to the applicable rules of criminal procedure or civil procedure.
  3. The testimony of the appropriate analyst may be compelled by the issuance of a proper subpoena, in which case the records and reports shall be admissible through the analyst who shall be subject to cross-examination by the defendant or his or her counsel, either in person or via two-way closed-circuit or satellite-transmitted television pursuant to subsection (e) of this section.
    1. All records and reports of an evidence analysis of the laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the analyst who performed the analysis.
    2. The defendant shall give at least ten (10) days' notice prior to the proceedings that he or she requests the presence of the analyst of the laboratory who performed the analysis for the purpose of cross-examination.
    3. Nothing in this subsection shall be construed to abrogate the defendant's right to cross-examine.
  4. Except trials in which the defendant is charged with capital murder, § 5-10-101, or murder in the first degree, § 5-10-102, in all criminal trials upon motion of the prosecutor the court may allow the prosecutor to present the testimony of the appropriate analyst by contemporaneous transmission from a laboratory facility via two-way closed-circuit or satellite-transmitted television which shall allow the examination and cross-examination of the analyst to proceed as though the analyst were testifying in the courtroom:
    1. After notice to the defendant;
    2. Upon proper showing of good cause and sufficient safeguards to satisfy all state and federal constitutional requirements of oath, confrontation, cross-examination, and observation of the witness's demeanor and testimony by the defendant, the court, and the jury; and
    3. Absent a showing of prejudice by the defendant.

History. Acts 1979, No. 864, § 18; A.S.A. 1947, § 42-1220; Acts 1989, No. 889, §§ 1, 2; 1999, No. 565, § 1; 2013, No. 297, § 1; 2019, No. 910, § 5848.

Amendments. The 2013 amendment inserted “or civil procedure” in (a) and (b).

The 2019 amendment substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” in (a).

Research References

ALR.

Application of Crawford Confrontation Clause Rule to Autopsy Testimony and Related Documents, 18 A.L.R.7th Art. 6 (2018).

U. Ark. Little Rock L.J.

Survey, Criminal Law, 12 U. Ark. Little Rock L.J. 617.

Case Notes

Purpose.

The purpose of this section is to remove reports, as described in subdivision (d)(1), from exclusion under the hearsay rule and make them admissible when certain requirements designed to establish their trustworthiness have been met. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992); Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996).

The purpose of this section is to remove reports from exclusion under the hearsay rule, not to require that they always be admitted for any reason. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Applicability.

This section does not apply when the serologist who compiled the report testifies in person. Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995).

Compliance.

The prosecution may introduce a drug analysis report through the testimony of a chemist who had not personally performed the test, if the report contains an attestation by the chemist who is purported to have performed the test; there is no notarization requirement. Willis v. State, 309 Ark. 328, 829 S.W.2d 417 (1992).

Contents of Report.

Hearsay statements contained in a serologist's report were not admissible and the names of suspects listed on the document would not be admitted unless there was some evidence to connect the suspects with the crimes; evidence that a third party may have committed the crime is inadmissible unless it points directly to the guilt of the third party. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Crime Lab Report.

If a chemist's crime lab report fails to meet the prerequisites of this section, it is considered inadmissible hearsay under Evid. Rule 803(8)(iii); however, even when the state's report meets the statutory requirements and where the state intends to introduce the report as an exception to the hearsay rule, a defendant may, under subdivision (d)(2) of this section, still require the chemist's presence for the purpose of cross-examination, if the defendant requests the chemist's presence at least ten days prior to trial. Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993).

A facsimile copy of the crime lab report that contained the analyst's attestation, rather than the copy itself, held admissible. Ingram v. State, 48 Ark. App. 105, 891 S.W.2d 805 (1995).

State presented substantial evidence through testimony from a forensic chemist from the state crime laboratory, although he did not perform the lab analysis for a substance obtained from a controlled buy involving defendant, and the lab report indicated that the substance contained methamphetamine, to show that the substance sold by defendant was a controlled substance. Jackson v. State, 2011 Ark. App. 528, 385 S.W.3d 394 (2011).

Cross-Examination.

While the procedural rule requiring pretrial notice of demand for the right of cross-examination of a laboratory employee is generally a reasonable one, there can be no reasonable basis for enforcing such a rule where it is not possible for the accused to comply. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992).

If, because this section does not contain a reasonable procedure for asserting the right of confrontation of laboratory employees, the trial has begun, the assertion of that right when it does arise is all that is required of the accused and casts upon the state the burden of either producing the witness for cross-examination or requesting a continuance in order to produce him. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992).

Trial court did not err in refusing to allow defendant the opportunity to question crime lab personnel after he had properly demanded to do so as it was a felony to sell counterfeit drug substances; defendant had committed an offense punishable by incarceration and was subject to a revocation of his probation, whether or not the substances found in the two baggies were narcotics, thus, the crime lab personnel's testimony was not necessary to prove the prosecution's case. Roston v. State, 362 Ark. 408, 208 S.W.3d 759 (2005).

“Duly Attested.”

The General Assembly intended for the phrase “duly attested to” to require more than the mere signature of the person or chemist who performed that analysis. Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1991); Willis v. State, 309 Ark. 328, 829 S.W.2d 417 (1992).

Where the chemist's report is stamped a certified copy and notarized the duly attested requirement is not fulfilled. Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1991).

Attestation contained on the face of chemist's report held sufficient. Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996).

Indicia of Truthfulness.

Some indicia of truthfulness must attend a chemist report's admissibility when it is introduced into a criminal proceeding as competent evidence. That assurance of truthfulness can best be given by the one who performed the test and made the analysis as is provided by subdivision (d)(1) of this section. Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1991).

Noncompliance.

It was error for the trial court to admit into evidence a chemical analysis report which did not conform to the requirements of subdivision (d)(1) of this section; however, when considering the report and other evidence presented by the state, sufficient evidence existed to support the conviction or count in issue and it was therefore proper to remand on that count for possible retrial rather than dismiss the count. Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1991).

Admission of crime laboratory chemist's report, over defendant's objection and without permitting defendant to cross-examine laboratory employees, contributed to defendant's conviction of delivery of a controlled substance, and since its admission was not harmless beyond a reasonable doubt, defendant's conviction was reversed and remanded. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992).

Right of Confrontation.

Because this section does not contain a reasonable procedure for asserting the right of confrontation when that right arises after the trial has begun, the assertion of that right when it does arise is all that is required of the accused and casts upon the state the burden of either producing the witness for cross-examination or requesting a continuance in order to produce him. Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993).

The state has the burden of producing the chemist or obtaining a continuance when the state has caused the defendant to be unable to comply with this section's ten-day notice prerequisite; however, defendant is required to inform the state that he desires to have the analyst present at trial so the state will know it has the burden to produce the analyst as a witness. Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993).

The defendant failed to show that he was deprived of his right of confrontation when the physician who actually performed an autopsy on the murder victim could not appear at trial and another physician from the laboratory testified in his place since he failed to show that he was prejudiced by the absence of the former physician. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999).

Although defendant argued that the introduction of a crime laboratory report without the chemist being available for cross-examination violated his right to confront the witnesses against him, defendant failed to give the required notice requesting the analyst's presence. Defendant cited no authority for his argument that he was excused from the notice requirement because the analyst, who was on maternity leave and was not called as a witness by the prosecution, appeared on the prosecution's witness list. Jones v. State, 2011 Ark. App. 683 (2011).

Even though the trial court violated defendant's right to confrontation under the Sixth Amendment by allowing a substitute analyst to testify regarding the results of a DNA test performed by another analyst, the error was harmless beyond a reasonable doubt; the victim's vivid description of being raped repeatedly and painfully by defendant constituted sufficient evidence to sustain his convictions of rape and second-degree sexual assault. Alejandro-Alvarez v. State, 2019 Ark. App. 450, 587 S.W.3d 269 (2019).

Waiver.

If the defendant does not give the statutory notice prior to the proceedings that he wants the person who performed the analysis to be present for cross-examination, the right of confrontation is waived. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990).

Cited: Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).

12-12-314. Fees — Disposition.

  1. The State Crime Laboratory shall charge certain fees in an amount to be determined by the State Crime Laboratory Board, but subject to the limitations set forth in this section for certain records, reports, and consultations by laboratory physicians and analysts, and expert witness testimony provided in the trial of civil lawsuits, as follows:
    1. A fee shall be charged for records and reports of the laboratory in a reasonable amount to be set by the board when the request for the report shall be from an entity other than a law enforcement or criminal justice system agency;
      1. A fee shall be charged in an amount to be set by the board for consultations, scientific or medical research, depositions, expert witness testimony, and travel to and from courts.
      2. The fees under subdivision (a)(2)(A) of this section shall be at a rate not to exceed two hundred twenty-five dollars ($225) per hour or one thousand eight hundred dollars ($1,800) per day and shall be levied against the requesting individual, agency, or organization for work done in civil cases in which laboratory personnel involvement results from the performance of duties and responsibilities under this subchapter; and
    2. A charge of up to three thousand dollars ($3,000) for each autopsy requested by non-law enforcement officials.
  2. At no time shall any fee be levied or charge made to or against any law enforcement agency of the State of Arkansas for work performed under the provisions of this subchapter.
    1. All fees collected by the laboratory for copies of the following shall be deposited as a refund to expenditures:
      1. Autopsy reports;
      2. Autopsies requested by the Federal Aviation Administration, the Federal Bureau of Prisons, or the Department of Health for sudden infant death syndrome cases; and
      3. Expenses paid employees for testimony as expert witnesses.
    2. Other moneys derived from the charges provided for and authorized by this section shall be deposited into the State Treasury to the credit of the Miscellaneous Agencies Fund Account of the State General Government Fund.

History. Acts 1975, No. 350, § 4; 1979, No. 864, § 22; 1985, No. 644, § 4; A.S.A. 1947, §§ 42-1224, 42-1225; Acts 1995, No. 1189, § 1; 2011, No. 775, § 2; 2013, No. 296, § 1; 2013, No. 1129, § 1.

Amendments. The 2011 amendment, in (a)(2)(B), inserted “under subdivision (a)(2)(A) of this section”, substituted “two hundred twenty-five dollars ($225)” for “seventy-five dollars ($75.00)”, and substituted “one thousand eight hundred dollars ($1,800)” for “six hundred dollars ($600)”; and substituted “three thousand dollars ($3,000)” for “one thousand dollars ($1,000)” in (a)(3).

The 2013 amendment by No. 296 rewrote (c)(1).

The 2013 amendment by No. 1129 inserted “an entity” in (a)(1).

12-12-315. Notification of certain deaths.

    1. The county coroner, prosecuting attorney, and either the county sheriff or the chief of police of the municipality in which the death of a human being occurs shall be promptly notified by any physician, law enforcement officer, undertaker or embalmer, jailer, or coroner or by any other person present or with knowledge of the death if:
      1. The death appears to be caused by violence or appears to be the result of a homicide or a suicide or to be accidental;
      2. The death appears to be the result of the presence of drugs or poisons in the body;
      3. The death appears to be a result of a motor vehicle accident, or the body was found in or near a roadway or railroad;
      4. The death appears to be a result of a motor vehicle accident and there is no obvious trauma to the body;
      5. The death occurs while the person is in a state mental institution or hospital and there is no previous medical history to explain the death, or while the person is in police custody or jail other than a jail operated by the Division of Correction;
      6. The death appears to be the result of a fire or an explosion;
      7. The death of a minor child appears to indicate child abuse prior to death;
      8. Human skeletal remains are recovered or an unidentified deceased person is discovered;
      9. Postmortem decomposition exists to the extent that an external examination of the corpse cannot rule out injury, or in which the circumstances of death cannot rule out the commission of a crime;
      10. The death appears to be the result of drowning;
      11. The death is of an infant or a minor child under eighteen (18) years of age;
      12. The manner of death appears to be other than natural;
      13. The death is sudden and unexplained;
      14. The death occurs at a work site;
      15. The death is due to a criminal abortion;
      16. The death is of a person where a physician was not in attendance within thirty-six (36) hours preceding death, or, in prediagnosed terminal or bedfast cases, within thirty (30) days;
      17. A person is admitted to a hospital emergency room unconscious and is unresponsive, with cardiopulmonary resuscitative measures being performed, and dies within twenty-four (24) hours of admission without regaining consciousness or responsiveness, unless a physician was in attendance within thirty-six (36) hours preceding presentation to the hospital, or, in cases in which the decedent had a prediagnosed terminal or bedfast condition, unless a physician was in attendance within thirty (30) days preceding presentation to the hospital;
      18. The death occurs in the home; or
        1. The death poses a potential threat to public health or safety.
        2. Upon receiving notice of a death that poses a potential threat to public health or safety, the county coroner shall immediately notify the Department of Health.
    2. Nothing in this section shall be construed to require an investigation, autopsy, or inquest in any case in which death occurred without medical attendance solely because the deceased was under treatment by prayer or spiritual means in accordance with the tenets and practices of a well-recognized church or religious denomination.
  1. With regard to any death in a correctional facility, the county coroner and the State Medical Examiner shall be notified, and when previous medical history does not exist to explain the death, the Division of Arkansas State Police shall be notified.
  2. A violation of the provisions of this section is a Class A misdemeanor.

History. Acts 1969, No. 321, § 5; 1973, No. 509, § 1; 1979, No. 864, § 10; 1985, No. 216, § 1; A.S.A. 1947, §§ 42-615, 42-1212; Acts 1993, No. 1302, § 1; 1995, No. 311, § 2; 2001, No. 80, § 2; 2007, No. 194, § 1; 2007, No. 594, § 1; 2009, No. 165, § 3; 2009, No. 1286, § 1; 2019, No. 910, §§ 700, 701.

A.C.R.C. Notes. Acts 2001, No. 80, § 2, stated that “Arkansas Code 12-12-315(a) is amended to read as follows:” and then set out only subdivision (a)(1) of the section. As subdivision (a)(2) was neither contained in nor deleted from (a) as set out in Acts 2001, No. 80, the act was interpreted as amending subdivision (a)(1) only.

Amendments. The 2007 amendment by No. 194 substituted “under eighteen (18) years of age” for “in cases in which there is no previous medical history to explain the death” in (a)(1)(K).

The 2007 amendment by No. 594 added (a)(1)(S) and made related changes.

The 2009 amendment by No. 165 substituted “Department of Health” for “Department of Human Services” in (a)(1)(S)(ii), and made a minor punctuation change.

The 2009 amendment by No. 1286 rewrote the introductory language of (a)(1); substituted “or jail other than a jail operated by the Department of Correction” for “a jail or a penal institution” in (a)(1)(E); added (b); and redesignated former (b) as (c).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a)(1)(E); and substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (b).

Cross References. Coroner may collect and secure decedent's prescription medication, § 14-15-306.

Coroner's investigation, § 14-15-302.

Fines, § 5-4-201.

Imprisonment, § 5-4-401.

Case Notes

Purpose.

The purpose of this section is to create a scientific and uniform method of investigating violent and unusual deaths. Stewart v. State, 257 Ark. 753, 519 S.W.2d 733, cert. denied, 423 U.S. 859, 96 S. Ct. 113, 46 L. Ed. 2d 86 (1975).

Authority to Conduct Autopsy.

Notification provisions of this section did not establish exclusive authority to conduct autopsies so as to prohibit an experienced pathologist who was not a qualified medical examiner from performing autopsy and then testifying. Stewart v. State, 257 Ark. 753, 519 S.W.2d 733, cert. denied, 423 U.S. 859, 96 S. Ct. 113, 46 L. Ed. 2d 86 (1975).

Cited: Bramlett v. Hobbs, 2015 Ark. 146, 463 S.W.3d 283 (2015).

12-12-316. Transportation of corpses.

  1. The State Crime Laboratory is authorized to transport bodies of persons whose death is subject to the provisions of this subchapter to an appropriate place for autopsy or for any other scientific tests.
      1. The bodies of such deceased persons shall be returned to the county from which they were brought by or at the expense of the laboratory only if the State Medical Examiner determines that the cause of death was not suicide, accidental, or from natural causes.
      2. In cases in which the examiner determines that the cause of death was suicide, accidental, or from natural causes, the expense of transporting and returning the bodies of such deceased persons shall be borne by whomever requests the laboratory to examine the cause of death, except for cases referred under the provisions of § 12-12-315(a)(2).
      3. A body may be transported when authorized by the prosecuting attorney, circuit court, county sheriff, or chief of police, or upon the request of the next of kin of the deceased or the persons who may be responsible for burial, to a place other than the county of origin.
    1. The laboratory shall not, however, be required to provide actual transportation or the cost of transportation in excess of what would be required to return the body to the county of origin.
  2. The laboratory shall provide transportation or shall bear the cost of transportation at the option of the Director of the State Crime Laboratory, but in no case shall the cost of transportation of dead bodies subject to the provisions of this subchapter be borne by the laboratory without the prior approval and authorization of the director or his or her staff.

History. Acts 1979, No. 864, § 13; A.S.A. 1947, § 42-1215; Acts 1993, No. 1063, § 1; 1993, No. 1246, § 1; 2019, No. 910, § 5849.

Amendments. The 2019 amendment, in (c), substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” and “director” for “executive director”.

Cross References. Transportation of the dead, § 20-7-115.

12-12-317. Death certificates.

  1. Except as provided under subsection (b) of this section, the certificate of death of a person whose death is investigated under this subchapter shall be made by the State Medical Examiner or by his or her designee or by the county coroner, whoever conducted the investigation.
  2. The examiner or his or her designee shall make and sign a certificate of death if:
      1. The examiner or his or her designee performs a postmortem examination.
      2. The person who performs the postmortem examination shall make and sign the certificate of death; or
      1. The certificate of death is for a person executed for a capital offense.
      2. The examiner or his or her designee shall list on the certificate of death of a person executed for a capital offense the:
        1. Manner of death as “Pursuant to a judicial sentence of death — Execution”; and
        2. Cause of death as “electrocution” or “lethal injection”, as applicable.
  3. When a petition is filed with a court of competent jurisdiction to change the cause or manner of death listed on a certificate of death which has been signed by the examiner or by his or her designee, the State Crime Laboratory shall be notified of such petition, and the examiner or his or her designee shall be allowed to hear testimony presented by the petitioner and shall be given an opportunity to present evidence to the court to support the original ruling of the examiner or his or her designee who signed the certificate of death.

History. Acts 1979, No. 864, § 17; A.S.A. 1947, § 42-1219; Acts 1993, No. 177, § 1; 1995, No. 201, § 1; 2017, No. 417, § 1.

Amendments. The 2017 amendment, added “Except as provided under subsection (b) of this section” in (a); rewrote (b); in (c), substituted “certificate of death” for “death certificate” following “listed”, substituted “designee” for “assistant” preceding “who signed”, and added “of death” at the end; and made stylistic changes.

12-12-318. Examinations, investigations, and postmortem examinations — Authorization and restrictions.

    1. When death occurs in such a manner or under such circumstances as described in § 12-12-315, the State Crime Laboratory shall have the power and authority to perform such functions and duties as may be provided by this subchapter.
      1. The laboratory shall make examinations, investigations, or perform postmortem examinations to determine the cause of death as the Director of the State Crime Laboratory or his or her staff deems necessary or as may be requested by the:
        1. County coroner of the county in which death occurs or is discovered;
        2. Prosecuting attorney of the jurisdiction in which death occurs or is discovered;
        3. County sheriff of the county in which death occurs or is discovered;
        4. Chief of police of the city in which death occurs or is discovered;
        5. Board of Corrections or its designee, or the Director of the Division of Correction or his or her designee if the person was in the care, custody, or control of the Division of Correction at the time of death; or
        6. Director of the Division of Arkansas State Police or his or her designee.
      2. Deputies of elected officers enumerated in subdivision (a)(2)(A) of this section shall have no authority to request a postmortem examination by the laboratory.
    1. In cases of sudden death in children between the ages of one (1) year and six (6) years with no previous major medical health problems, the State Medical Examiner, on a case-by-case basis, may delegate authority to the Arkansas Children's Hospital to perform postmortem examinations to determine the cause of death.
      1. Should any such postmortem examination determine that death occurred from foul play or a criminal act, the hospital will immediately notify the chief law enforcement officer of the jurisdiction in which the death occurred and the examiner.
      2. In addition, the examiner will be responsible for developing guidelines to assure that proper evidentiary procedures are followed.
    2. For purposes of this section, the hospital's staff pediatric pathologist, meeting the criteria prescribed in § 12-12-307, shall be considered assistant medical examiner and, notwithstanding any other provisions in this section, may perform postmortem examinations as directed by a duly constituted authority.
  1. Postmortem examinations or investigations authorized in this section may be conducted without consent of any person.
  2. The Director of the State Crime Laboratory and his or her staff shall not, as a part of their official duties, perform any postmortem examination at the request of any private citizen or any public official other than those enumerated in this section.
  3. The provisions of this section shall supersede any and all other laws relating to the power and authority of the Director of the State Crime Laboratory or his or her staff, including the examiner, to conduct examinations, investigations, or postmortem examinations.
    1. The Director of the State Crime Laboratory shall have the final authority on any ruling of manner of death which may become a matter of dispute between those persons authorized by this section to request a post-mortem examination as described in § 12-12-315 and the examiner or his or her associates.
    2. The Director of the State Crime Laboratory shall use any and all material accumulated by the laboratory, interview all parties necessary, and consult with any medical authority necessary for him or her to make his or her decision as to the manner of death, and his or her ruling shall be final and binding as that ruling affects any documents generated and signed by any employee of the laboratory relating to manner of death.
    3. This subsection and the director's decision in no way affects or prohibits any person or agency to seek any other relief that may be available through legal channels.

History. Acts 1969, No. 321, § 6; 1973, No. 509, § 2; 1975, No. 736, § 1; 1979, No. 864, § 11; 1981, No. 65, § 1; 1985, No. 644, § 3; A.S.A. 1947, §§ 42-616, 42-1213; Acts 1993, No. 178, § 1; 1995, No. 1151, § 5; 1997, No. 422, § 1; 2019, No. 910, §§ 5850-5852.

Amendments. The 2019 amendment substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” in the introductory language of (a)(2)(A); substituted “Division of Correction” for “Department of Correction” twice in (a)(2)(A)(v); substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(2)(A)(vi); and substituted “Director of the State Crime Laboratory” for “executive director” in (d), (e), (f)(1), and (f)(2).

Case Notes

Violations.

No violation of this section occurred where the deputy coroner observed the deceased at the crime scene, notified the State Crime Lab and took the body to the crime lab in a coroner's van, since the county coroner also went to the crime scene, observed the body, and ordered it photographed and sent to the crime lab. Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993).

12-12-319. Embalming corpse subject to examination, investigation, or autopsy — Penalty.

  1. It shall be unlawful to embalm a dead body when the body is subject to examination by the State Medical Examiner or his or her associates, assistants, or deputies as provided for in this subchapter, unless authorized by the examiner or his or her associates, assistants, or deputies or unless authorized by the prosecuting attorney of the jurisdiction in which the death occurs to so embalm.
  2. When a body subject to examination by the examiner or his or her associates has been embalmed without authorization by or prior notice to the examiner or his or her associates, assistants, or deputies as provided for in this subchapter, the Director of the State Crime Laboratory may, at his or her discretion, require an order from the circuit court of the jurisdiction in which death occurred before proceeding with his or her duties and responsibilities under this subchapter.
  3. Persons violating the provisions of this section shall be deemed guilty of a Class C misdemeanor.

History. Acts 1979, No. 864, § 14; A.S.A. 1947, § 42-1216; Acts 2019, No. 910, § 5853.

Amendments. The 2019 amendment substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” in (b).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-12-320. Autopsies — Removal of pituitary gland.

  1. The State Medical Examiner and his or her assistants may remove the pituitary gland during the course of an autopsy and donate the pituitary gland to an appropriate organization.
  2. However, the pituitary gland shall not be removed under the authority of this section if the next of kin or the person having the right to control the disposition of the decedent's remains objects.

History. Acts 1981, No. 984, § 1; A.S.A. 1947, § 42-1213.2; Acts 2011, No. 779, § 10.

Amendments. The 2011 amendment substituted “an appropriate organization” for “the Arkansas Dwarf Association” in (a).

12-12-321. Autopsies — Exhumed bodies.

  1. Where death occurs under such circumstances as are set forth in § 12-12-315 and where a body has been buried without proper certification of death, it shall be the duty of the chief law enforcement official of the county or municipality in which death occurred or in which the body is buried or the State Medical Examiner, his or her associates, assistants, or deputies to notify the prosecuting attorney of the jurisdiction in which death occurred and the body is buried.
  2. The prosecuting attorney shall thereupon present the facts to the circuit court of the county, and the court may, by written order, require that the body be exhumed and an autopsy be performed by the State Crime Laboratory or its designee.
  3. A full and complete report of the facts developed by the autopsy shall be furnished to the court and the prosecuting attorney in timely fashion.
  4. The cost of the exhumation and for transportation to and from the place of autopsy shall be borne by the county in which the death occurred.

History. Acts 1979, No. 864, § 15; A.S.A. 1947, § 42-1217.

Research References

ALR.

Civil liability in conjunction with autopsy. 97 A.L.R.5th 419.

Case Notes

Grounds for Exhuming Body.

Evidence held sufficient to justify trial court's order to exhume body and secure autopsy. Donaldson v. Holcomb, 239 Ark. 958, 396 S.W.2d 281 (1965) (decision under prior law).

12-12-322. Hazardous duty pay.

    1. The State Crime Laboratory is authorized to provide special compensation to certain employees for each full pay period of eighty (80) hours worked in a job which requires contact at crime scenes, emergency sites, or other sites where exposure to potentially hazardous substances is possible.
    2. It is recognized that many substances which may be encountered may create harmful health effects from either short-term or long-term exposure.
    3. This special pay is to compensate the employees for the increased risk of personal injury.
    4. The rate of pay will be one and one-half (1.5) times the regular authorized hourly pay or hourly rate of pay and will be paid only for the time while at the site of a clandestine laboratory.
    5. Payment will be controlled by the Director of the State Crime Laboratory.
  1. The rate of pay for individuals who work less than a full pay period of eighty (80) hours or transfer to other work areas not defined in subsection (a) of this section, or both, will not receive any enhanced rate of pay for that or subsequent pay periods.
  2. This section covers employees who respond to clandestine laboratory sites for the purpose of assisting and dismantling of such laboratory sites and is limited to those employees in the position of:
  3. A monthly report shall be made to the Legislative Council describing all payments made to employees under the provisions of this section.

Class Code Title (1) B048 Chief Forensic Chemist; (2) Y023 Crime Lab Instrumentation Engineer, when performing the duties of a Forensic Chemist; (3) B057 Forensic Chemist; and (4) N336 Latent Prints Examiner.

Click to view table.

History. Acts 1995, No. 1151, § 4; 1997, No. 254, [§ 1]; 2019, No. 910, § 5854.

A.C.R.C. Notes. Acts 1997, No. 254, did not contain a section heading.

Amendments. The 2019 amendment substituted “Director of the State Crime Laboratory” for “Executive Director of the State Crime Laboratory” in (a)(5).

12-12-323. Crime Lab Equipment Fund.

  1. There is created the Crime Lab Equipment Fund on the books of the Auditor of State, the Treasurer of State, and the Chief Fiscal Officer of the State.
  2. The moneys in the fund shall be used by the State Crime Laboratory only for:
    1. The purchase of equipment;
    2. Operating expenses;
    3. Constructing and equipping regional crime laboratories; and
    4. The personal services and operating expenses of regional crime laboratories.

History. Acts 1999, No. 1120, § 3; 2001, No. 1066, § 1; 2001, No. 1642, § 3.

Publisher's Notes. Acts 1999, No. 1120, § 1, provided:

“Legislative intent. As stated in the comment to section 505 of the Uniform Controlled Substances Act, ‘Effective law enforcement demands that there be a means of confiscating the vehicles and instrumentalities used by drug traffickers in committing violations under this act. The reasoning is to prevent their use in the commission of subsequent offenses involving transportation or concealment of controlled substances and to deprive the drug trafficker of needed mobility.’ The General Assembly recognizes the importance of asset forfeiture as a means to confront drug trafficking. However, the General Assembly also recognizes that under the system that existed prior to the enactment of this act, the lack of uniformity and accountability in forfeiture procedures across the state has undermined confidence in the system. As the United States Supreme Court has stated, ‘Forfeiture provisions are powerful weapons in the war on crime; like any such weapons, their impact can be devastating when used unjustly.’ In order to alleviate the problems resulting from the lack of uniformity and accountability, the General Assembly has determined that time limits for initiating forfeiture proceedings and stricter controls over forfeited property will help alleviate such problems while strengthening forfeiture as a vital weapon against drug trafficking. Specifically, it is the intent of § 5-64-505(a) that there be no forfeitures based solely upon a misdemeanor possession of a controlled substance. However, if the prosecuting attorney can prove that other evidence exists to establish a basis for forfeiture, the property may be forfeited. It is the intent of § 5-64-505(d) to reduce the conflict between state and federal authorities over seizures executed by state law enforcement officers. It is the intent of § 5-64-505(h) to allow law enforcement agencies and drug task forces to maintain forfeited property for official use, provided that the final order disposing of such property defines the legal entity that is responsible for such property. Section 5-64-505(i)(1)(D) governs those situations in which a seizure results in the forfeiture of money and or property in excess of two hundred fifty thousand dollars ($250,000). It is the specific intent of the General Assembly that forfeiture proceedings not be structured in such a way as to defeat the General Assembly's intent that money or property in excess of two hundred fifty thousand dollars ($250,000) be transferred to the Special State Assets Forfeiture Fund. It is determined that such fund can best be used to combat drug trafficking statewide.”

12-12-324. Testing by State Crime Laboratory.

  1. A firearm used in the commission of a crime that comes into the custody of a law enforcement agency in this state may be delivered to the State Crime Laboratory within thirty (30) calendar days for forensic testing for firearms meeting the caliber and type determined by the Director of the State Crime Laboratory.
      1. The laboratory may conduct forensic tests on all firearms received and input the resulting data into the National Integrated Ballistics Information Network of the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives.
      2. The forensic tests may include without limitation firing of the firearm and electronic imaging of the bullets and casings.
    1. The laboratory shall coordinate with all participating agencies when investigations require the use of the National Integrated Ballistics Information Network computer database.
    2. The laboratory shall provide written analysis reports and experts for testimony when feasible.
    3. After completion of the forensic testing, the firearm shall be returned to the law enforcement agency that submitted the firearm for forensic testing.
    4. When the law enforcement agency regains possession of the firearm and after final adjudication, the law enforcement agency shall immediately notify the owner, unless the owner is prohibited by law from possessing the firearm, that the owner may regain possession of the firearm at the offices of the law enforcement agency.
  2. A law enforcement agency in this state may request the assistance of the Division of Arkansas State Police in tracing a firearm.
  3. A firearm seized by the Arkansas State Game and Fish Commission for violation of a commission rule is exempt from this section.
  4. The State Crime Laboratory Board may adopt rules for the implementation of this section, including without limitation rules regarding forensic testing of a firearm and procedures for submission of a firearm.

History. Acts 1999, No. 1558, §§ 1, 2; 2001, No. 788, § 1; 2005, No. 1257, § 1; 2019, No. 315, § 862; 2019, No. 910, § 5855; 2019, No. 1010, § 1.

Amendments. The 2005 amendment redesignated former (a)(1)(A) and (B) as present (a)(1) and (a)(2); substituted “used in the commission of a crime that” for “which” in present (a)(1); deleted former (a)(2); substituted “laboratory may” for “laboratory shall” in (b)(1)(A); in (b)(1)(B), substituted “tests may” for “tests shall” and “electronic imaging of” for “photographing”; deleted former (b)(5) and (d); redesignated former (b)(6) and (e) as present (b)(5) and (d); substituted “Department of Arkansas State Police” for “department” in (c); and added present (e).

The 2019 amendment by No. 315 substituted “rule” for “regulation” in (d).

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (c).

The 2019 amendment by No. 1010 rewrote (a), (b), and (e).

12-12-325. [Repealed.]

Publisher's Notes. This section, concerning autopsies and anatomical gifts, was repealed by Acts 2007, No. 839, § 3. The section was derived from Acts 2005, No. 1782, § 1.

12-12-326. Autopsies — Line-of-duty death — Definitions.

  1. As used in this section:
    1. “Eligible person” means a person with an eligibility similar to a firefighter or police officer under the Public Safety Officers' Benefits Act of 1976 or the Hometown Heroes Survivors Benefits Act of 2003, 42 U.S.C. § 3796 et seq., as appropriate;
    2. “Firefighter” means any member of a fire department or fire fighting unit of the Arkansas Forestry Commission, any city of the first class or city of the second class, any town, or any unincorporated rural area of this state, who actively engages in the fighting of fires on either a regular or voluntary basis; and
    3. “Police officer” means any law enforcement officer engaged in official duty who is:
      1. A member of:
        1. Any regular or auxiliary police force on a full-time or part-time basis; or
        2. The Division of Arkansas State Police; or
      2. A sheriff or deputy sheriff of any county.
  2. A coroner or a supervisor of a firefighter, police officer, or eligible person shall promptly notify the State Medical Examiner if the firefighter, police officer, or eligible person dies in the line of duty as a result of injuries sustained in the line of duty or within twenty-four (24) hours after participating in an emergency situation.
      1. The examiner may conduct an autopsy on any firefighter, police officer, or eligible person who dies in the line of duty as a result of injuries sustained in the line of duty or within twenty-four (24) hours after participating in an emergency situation.
      2. The autopsy shall be sufficient to determine eligibility for benefits under the Public Safety Officers' Benefits Act of 1976 or the Hometown Heroes Survivors Benefits Act of 2003, 42 U.S.C. § 3796 et seq., as appropriate.
      3. A report of the autopsy shall be provided to the firefighter's or police officer's commanding officer or the supervisor of the eligible person.
      1. If the firefighter, police officer, or eligible person has agreed in writing to allow an autopsy under this section, that directive shall be followed unless the firefighter's, police officer's, or eligible person's spouse dictates otherwise after being notified of the prospective autopsy.
      2. If the firefighter, police officer, or eligible person has not agreed in writing to allow an autopsy under this section, the firefighter's, police officer's, or eligible person's spouse may decide whether or not an autopsy will be performed.
      3. If the firefighter's, police officer's, or eligible person's spouse chooses not to allow the autopsy:
        1. No autopsy may be performed; and
        2. The body of the firefighter, police officer, or eligible person shall be released to the next of kin.
      1. If the examiner does not perform an autopsy under this section, he or she shall provide to the firefighter's or police officer's commanding officer or the supervisor of the eligible person written notice stating the reason why an autopsy was not performed.
      2. The written notice under subdivision (c)(3)(A) of this section shall include a toxicology report.

History. Acts 2007, No. 69, § 1; 2009, No. 165, § 4; 2019, No. 910, § 5856.

Amendments. The 2009 amendment substituted “eligible person” for “other person with a similar eligibility under the two (2) acts specified in subdivision (c)(1)(B) of this section” or similar language throughout the section; inserted (a)(1) and redesignated the remaining subdivisions accordingly; substituted “written notice under subdivision (c)(3)(A) of this section” for “letter” in (c)(3)(B); and made numerous minor stylistic changes.

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(3)(A)(ii).

Subchapter 4 — Sexual Assault — Medical-Legal Examinations

Effective Dates. Acts 1983, No. 403, § 10: Mar. 13, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law regarding the providing of emergency medical treatment, and payment therefor, to victims of sexual assault are unclear and in need of immediate clarification in order to maintain the financial integrity of the program, and that this act is immediately necessary to accomplish the same. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 396, § 10: Mar. 7, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain provisions of previous enactments of the General Assembly providing for reparations to crime victims failed to provide sufficient assessments to adequately fund the Crime Victims Reparations Fund and that it is therefore necessary to increase the amounts assessed to compensate and assist victims of criminal acts who suffer personal injury or death. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-12-401. Definitions.

As used in this subchapter:

    1. “Appropriate emergency medical-legal examinations” means health care delivered with emphasis on the collection of evidence for the purpose of prosecution.
    2. It shall include, but not be limited to, the appropriate components contained in an evidence collection kit for sexual assault examination distributed by the Forensic DNA Section of the State Crime Laboratory;
  1. “Licensed health care provider” means a person licensed in a healthcare field who conducts medical-legal examinations;
  2. “Medical facility” means any healthcare provider that is currently licensed by the Department of Health and providing emergency services; and
  3. “Victim” means any person who has been a victim of any alleged sexual assault or incest as defined by § 5-14-101 et seq. and § 5-26-202.

History. Acts 1983, No. 403, §§ 1-3; A.S.A. 1947, §§ 41-1820 — 41-1822; Acts 1991, No. 612, § 1; 2001, No. 993, § 1; 2003, No. 1390, § 3.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

12-12-402. Procedures governing medical treatment.

  1. All medical facilities or licensed healthcare providers conducting medical-legal examinations in Arkansas shall adhere to the procedures set forth in this section in the event that a person presents himself or herself or is presented for treatment as a victim of rape, attempted rape, any other type of sexual assault, or incest.
      1. Any adult victim presented for medical treatment shall make the decision of whether or not the incident will be reported to a law enforcement agency.
      2. No medical facility or licensed healthcare provider may require an adult victim to report the incident in order to receive medical treatment.
        1. Evidence will be collected only with the permission of the victim.
        2. However, permission shall not be required when the victim is unconscious, mentally incapable of consent, or intoxicated.
      1. Should an adult victim wish to report the incident to a law enforcement agency, the appropriate law enforcement agencies shall be contacted by the medical facility or licensed healthcare provider or the victim's designee.
        1. The victim shall be given a medical screening examination by a qualified medical person as provided under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, as in effect on January 1, 2001, if the victim arrives at the emergency department of a hospital, and the person shall be examined and treated and any injuries requiring medical attention will be treated in the standard manner.
        2. A medical-legal examination shall be conducted and specimens shall be collected for evidence.
      2. If a law enforcement agency has been contacted and with the permission of the victim, the evidence shall be turned over to the law enforcement officers when they arrive to assume responsibility for investigation of the incident.
    1. Any victim under eighteen (18) years of age shall be examined and treated, and any injuries requiring medical attention shall be treated in the standard manner.
    2. A medical-legal examination shall be performed, and specimens shall be collected for evidence.
    3. The reporting medical facility or licensed healthcare provider shall follow the procedures set forth in Subchapter 4 of the Child Maltreatment Act, § 12-18-101 et seq., regarding the reporting of injuries to victims under eighteen (18) years of age.
    4. The evidence shall be turned over to the law enforcement officers when they arrive to assume responsibility for investigation of the incident.
  2. Reimbursement for the medical-legal examinations shall be available to the medical facility or licensed healthcare provider pursuant to the procedures set forth in § 12-12-403.
  3. A medical facility or licensed healthcare provider shall not transfer the victim to another medical facility unless:
    1. The victim or a parent or guardian of a victim under eighteen (18) years of age requests the transfer, or a physician or other qualified medical personnel when a physician is not available has signed a certification that the benefits to the victim's health would outweigh the risks to the victim's health as a result of the transfer; and
    2. The transferring medical facility or licensed healthcare provider provides all necessary medical records and ensures that appropriate transportation is available.

History. Acts 1985, No. 400, §§ 1, 2; 1985, No. 838, §§ 1, 2; A.S.A. 1947, §§ 41-1828, 41-1829; Acts 1991, No. 612, § 2; 2001, No. 993, § 2; 2009, No. 758, § 23; 2017, No. 250, § 4; 2017, No. 845, § 3.

A.C.R.C. Notes. Acts 2009, No. 758, § 29, provided:

“Contingent Effectiveness. This act shall not become effective unless an act of the Eighty-Seventh General Assembly repealing the Arkansas Child Maltreatment Act, § 12-12-501 et seq., and enacting a new Child Maltreatment Act, § 12-18-101 et seq., becomes effective.”

The contingency in Acts 2009, No. 758, § 29, was met by Acts 2009, No. 749.

Amendments. The 2009 amendment substituted “Subchapter 4 of the Child Maltreatment Act, § 12-18-101 et seq.” for “§ 12-12-507” in (c)(3).

The 2017 amendment by No. 250 redesignated (e)(1)(A) and (B) as (e)(1); substituted “victim's health” for “patient's health” twice in (e)(1); and substituted “healthcare” for “health care” in (e)(2).

The 2017 amendment by No. 845 substituted “A medical facility or licensed healthcare provider shall not transfer the victim” for “The victim shall not be transferred” in the introductory language of (e); redesignated (e)(1)(A) and (B) as (e)(1); substituted “victim's health” for “patient's health” twice in (e)(1); and substituted “healthcare” for “health care” in (e)(2).

12-12-403. Examinations and treatment — Payment.

  1. All licensed emergency departments shall provide prompt, appropriate emergency medical-legal examinations for sexual assault victims.
      1. All victims shall be exempted from the payment of expenses incurred as a result of receiving a medical-legal examination if the victim receives the medical-legal examination within ninety-six (96) hours of the attack.
      2. However, the time limitation of ninety-six (96) hours may be waived if the victim is a minor or if the Crime Victims Reparations Board finds that good cause exists for the failure to provide the medical-legal examination within the required time.
      1. This subsection does not require a victim of sexual assault to participate in the criminal justice system or to cooperate with law enforcement in order to be provided with a forensic medical exam or reimbursement for charges incurred on account of a forensic medical exam, or both.
      2. Subdivision (b)(2)(A) of this section does not preclude a report of suspected abuse or neglect as permitted or required by the Child Maltreatment Act, § 12-18-101 et seq.
    1. A medical facility or licensed healthcare provider that performs a medical-legal examination shall submit a sexual assault reimbursement form, an itemized statement that meets the requirements of 45 C.F.R. § 164.512(d), as it existed on January 2, 2001, directly to the board for payment.
    2. The medical facility or licensed healthcare provider shall not submit any remaining balance after reimbursement by the board to the victim.
    3. Acceptance of payment of the expenses of the medical-legal examination by the board shall be considered payment in full and bars any legal action for collection.

History. Acts 1983, No. 403, §§ 4, 5; A.S.A. 1947, §§ 41-1823, 41-1824; Acts 1991, No. 396, § 8; 2001, No. 993, § 3; 2007, No. 676, § 4; 2009, No. 758, § 24; 2017, No. 920, § 1.

A.C.R.C. Notes. Acts 2009, No. 758, § 29, provided:

“Contingent Effectiveness. This act shall not become effective unless an act of the Eighty-Seventh General Assembly repealing the Arkansas Child Maltreatment Act, § 12-12-501 et seq., and enacting a new Child Maltreatment Act, § 12-18-101 et seq., becomes effective.”

The contingency in Acts 2009, No. 758, § 29, was met by Acts 2009, No. 749.

Amendments. The 2007 amendment redesignated former (b) as present (b)(1)(A); deleted “following conditions are met” following “provided the” in (b)(1)(A); deleted former (b)(1); deleted the former (b)(2)(A) designation; added present (b)(2); and made minor punctuation and stylistic changes.

The 2009 amendment substituted “Child Maltreatment Act, § 12-18-101 et seq.” for “Arkansas Child Maltreatment Act, § 12-12-501 et seq.” in (b)(2)(B).

The 2017 amendment, in (b)(1)(A), substituted “if the victim receives” for “provided the victim must receive” and “ninety-six (96)” for “seventy-two (72)” preceding “hours”; and, in (b)(1)(B), substituted “time limitation of ninety-six (96) hours” for “seventy-two-hour time limitation” and “medical-legal examination” for “exam”.

Case Notes

Cited: Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986).

12-12-404. Reimbursement of medical facility — Rules.

  1. The Crime Victims Reparations Board may reimburse any medical facility or licensed healthcare provider that provides the services outlined in this subchapter for the reasonable cost for such services.
  2. The board is empowered to prescribe minimum standards and rules necessary to implement this subchapter. These shall include, but not be limited to, a cost ceiling for each claim and the determination of reasonable cost.

History. Acts 1983, No. 403, § 6; A.S.A. 1947, § 41-1825; Acts 1991, No. 396, § 1; 2001, No. 993, § 4; 2019, No. 315, § 863.

Amendments. The 2019 amendment substituted “standards and rules” for “standards, rules, and regulations” in the first sentence of (b).

12-12-405. License suspension or revocation.

Noncompliance with the provisions of this subchapter is grounds for licensure suspension or revocation pursuant to the provisions of § 20-9-215 or any other provisions governing the licensure of medical facilities or healthcare providers.

History. Acts 1991, No. 612, § 3; 2001, No. 993, § 5.

12-12-406. Sexual assault collection kits — Submission for testing — Definitions.

  1. As used in this section:
    1. “Anonymous kit” means a sexual assault collection kit that is collected from a possible victim of a sexual assault who has not decided whether to report the sexual assault to a law enforcement agency;
    2. “Healthcare provider” means a person or facility that provides a medical-legal examination;
    3. “Law enforcement agency” means a police force or organization whose primary responsibility as established by statute or ordinance is the enforcement of the criminal laws, traffic laws, or highway laws of this state;
    4. “Medical-legal examination” means health care delivered to a possible victim of a sexual assault, with an emphasis on the gathering and preserving of evidence for the purpose of serving criminal justice;
    5. “Sexual assault” means an offense described in § 5-14-101 et seq. or § 5-26-202; and
    6. “Sexual assault collection kit” means a human biological specimen or specimens collected during a medical-legal examination from the alleged victim of a sexual assault.
    1. A healthcare provider that has collected required victim information as part of a medical-legal examination shall enter the required victim information into a sexual assault collection kit tracking system of the State Crime Laboratory before transferring the sexual assault collection kit to a law enforcement agency with jurisdiction.
    2. The system described in subdivision (b)(1) of this section shall provide secure electronic access that allows a law enforcement agency, a healthcare provider, the laboratory, and a victim to access tracking information.
    3. A sexual assault collection kit collected by a healthcare provider shall be taken into custody by a law enforcement agency as soon as possible and within three (3) business days of notice from the healthcare provider.
    1. A law enforcement agency that receives a sexual assault collection kit from a healthcare provider shall enter all necessary information into the system described in subdivision (b)(1) of this section.
    2. A law enforcement agency that receives a sexual assault collection kit from a healthcare provider that relates to a report of a sexual assault that occurred outside of the jurisdiction of the law enforcement agency shall have the sexual assault collection kit delivered to the law enforcement agency having jurisdiction within ten (10) days of learning that the other law enforcement agency has jurisdiction.
  2. A sexual assault collection kit shall be submitted to the laboratory by the receiving law enforcement agency as soon as possible, but no later than fifteen (15) days after receipt of the sexual assault collection kit.
    1. A law enforcement agency is not required to submit an anonymous kit to the laboratory if the victim does not affirmatively request submission.
    2. If a victim chooses to provide a personal statement about the sexual assault to a law enforcement agency at any time after initially declining to provide a personal statement, the anonymous kit shall be delivered to the laboratory as soon as possible, but no later than fifteen (15) days after the victim chooses to provide a personal statement to the law enforcement agency.
  3. If available, a suspect standard or a consensual partner elimination standard shall be submitted to the laboratory:
    1. With the sexual assault collection kit, if available, at the time the sexual assault collection kit is submitted; or
    2. As soon as possible, but no later than fifteen (15) days from the date the sexual assault collection kit was obtained by the law enforcement agency, if the suspect standard or consensual partner elimination standard is not obtained until after the sexual assault collection kit is submitted.
    1. Starting July 1, 2019, the laboratory shall test all sexual assault collection kits that are received from a law enforcement agency with the goal of developing autosomal DNA profiles that are eligible for entry into the Combined DNA Index System.
    2. Sexual assault collection kits shall be tested by the laboratory and the tests completed within sixty (60) days of receipt from the law enforcement agency.
    3. The ability of the laboratory to complete all tests within sixty (60) days of receipt may be dependent upon the following factors:
      1. The number of sexual assault collection kits that the laboratory receives;
      2. The technology and improved testing methods available;
      3. The establishment of a fully trained and dedicated staff to meet the caseload; and
      4. The number of lab requests received relating to other crime categories.
    4. Failure to meet a deadline established under this subsection or administrative rule is not a basis for dismissal of a criminal action or a bar to the admissibility of the evidence in a criminal action.

History. Acts 2019, No. 839, § 1.

Subchapter 5 — Child Abuse Reporting

Publisher's Notes. Former subchapter 5, concerning the reporting of child abuse, was repealed by Acts 1991, No. 1208, § 17. The former subchapter was derived from the following sources:

12-12-501. Acts 1975, No. 397, § 1; A.S.A. 1947, § 42-807n.

12-12-502. Acts 1975, No. 397, § 2; 1979, No. 624, § 1; 1981, No. 907, § 1; 1985, No. 1033, § 1; A.S.A. 1947, § 42-807.

12-12-503. Acts 1975, No. 397, § 11; 1985, No. 1033, § 4; A.S.A. 1947, § 42-816.

12-12-504. Acts 1975, No. 397, § 3; A.S.A. 1947, § 42-808; Acts 1988 (4th Ex. Sess.), No. 5, § 4; 1988 (4th Ex. Sess.), No. 15, § 4.

12-12-505. Acts 1975, No. 397, § 4; A.S.A. 1947, § 42-809.

12-12-506. Acts 1975, No. 397, § 5; A.S.A. 1947, § 42-810.

12-12-507. Acts 1975, No. 397, §§ 2, 7; 1979, No. 624, §§ 1, 2; 1981, No. 907, § 1; 1985, No. 407, §§ 1, 2; 1985, No. 1033, §§ 1, 2; A.S.A. 1947, §§ 42-807, 42-812; Acts 1989, No. 824, § 1.

12-12-508. Acts 1975, No. 397, § 8; 1979, No. 624, § 3; 1985, No. 1033, § 3; A.S.A. 1947, § 42-813; Acts 1987, No. 1036, §§ 1, 2.

12-12-509. Acts 1975, No. 397, § 6; A.S.A. 1947, § 42-811.

12-12-510. Acts 1975, No. 397, § 9; A.S.A. 1947, § 42-814; Acts 1987, No. 1036, § 3.

12-12-511. Acts 1975, No. 397, § 10; 1979, No. 75, § 1; A.S.A. 1947, § 42-815; Acts 1989, No. 421, § 1.

12-12-512. Acts 1975, No. 397, § 12; 1985, No. 425, § 1; 1985, No. 672, § 1; A.S.A. 1947, § 42-817.

12-12-513. Acts 1975, No. 397, § 12; 1985, No. 425, § 1; 1985, No. 672, § 1; A.S.A. 1947, § 42-817.

12-12-514. Acts 1975, No. 397, § 13; A.S.A. 1947, § 42-818; Acts 1989, No. 687, § 1.

12-12-515. Acts 1975, No. 397, § 13; 1979, No. 624, § 4; 1985, No. 1033, § 5; A.S.A. 1947, §§ 42-818, 42-819; Acts 1987, No. 1036, §§ 6, 7; 1989, No. 28, § 1.

12-12-516. Acts 1975, No. 397, § 13; A.S.A. 1947, § 42-818; Acts 1987, No. 1036, §§ 4, 5, 7; 1989, No. 863, § 1.

12-12-517. Acts 1975, No. 397, § 13; A.S.A. 1947, § 42-818.

12-12-501 — 12-12-519. [Repealed.]

A.C.R.C. Notes. Section 12-12-504 was amended by Acts 2009, No. 165, § 5, to clarify the culpable mental state required to commit the criminal offenses and to clarify the criminal offenses. However, § 12-12-504 was also specifically repealed by Acts 2009, No. 749, § 2.

Section 12-12-505 was amended by Acts 2009, No. 954, § 1, to amend the procedure for removing an offender's name from the statewide central registry for cases involving allegations of child maltreatment. However, § 12-12-505 was also specifically repealed by Acts 2009, No. 749, § 2, and a new section concerning removal of names from the Child Maltreatment Central Registry, § 12-18-908, was enacted by Acts 2009, No. 749, § 1. Section 12-18-908 includes similar provisions to the amendments to § 12-12-505 that were made by Acts 2009, No. 954, § 1.

Section 12-12-507 was amended by Acts 2009, No. 629, § 1, to expand the list of mandated reporters of child maltreatment. However, § 12-12-507 was also specifically repealed by Acts 2009, No. 749, § 2, and a new section concerning mandated reporters of child maltreatment, § 12-18-402, was enacted by Acts 2009, No. 749, § 1. Section 12-18-402 was subsequently amended by Acts 2009, No. 1409, § 1, to include the amendments to § 12-12-507 that were made by Acts 2009, No. 629, § 1.

Publisher's Notes. This subchapter was repealed by Acts 2009, No. 749, § 2. The subchapter was derived from the following sources:

12-12-501. Acts 1991, No. 1208, § 1; 2001, No. 1210, § 1; 2003, No. 758, § 1.

12-12-502. Acts 1991, No. 1208, § 14; 1997, No. 1234, § 1.

12-12-503. Acts 1991, No. 1208, § 2; 1993, No. 1126, §§ 3-5; 1995, No. 804, § 2; 1995, No. 1341, §§ 1-3; 1997, No. 1334, § 1; 1999, No. 36, § 1; 1999, No. 1340, §§ 22-25, 34, 36; 2001, No. 1210, § 2; 2003, No. 175, § 1; 2003, No. 758, § 2; 2005, No. 1176, § 2; 2005, No. 1706, § 1; 2007, No. 284, § 1; 2007, No. 586, § 1.

12-12-504. Acts 1991, No. 1208, § 12; 1995, No. 1341, § 4; 1997, No. 1351, § 1; 2007, No. 586, § 2.

12-12-505. Acts 1991, No. 1208, §§ 8, 9; 1993, No. 1088, § 1; 1995, No. 1341, § 5; 1997, No. 1334, § 2; 2001, No. 1210, § 3; 2001, No. 1434, § 1; 2003, No. 758, §§ 3, 4; 2005, No. 1706, § 2.

12-12-506. Acts 1991, No. 1208, § 9; 1992 (1st Ex. Sess.), No. 49, § 2; 1995, No. 1341, § 6; 1997, No. 1334, § 3; 1999, No. 1222, §§ 4, 5; 1999, No. 1340, §§ 26, 27; 2001, No. 1210, § 4; 2003, No. 758, §§ 5, 6; 2005, No. 1706, §§ 3-5; 2007, No. 586, § 3.

12-12-507. Acts 1991, No. 1208, §§ 3, 4; 1993, No. 1126, § 6; 1995, No. 1341, §§ 7, 8; 1999, No. 214, § 1; 2001, No. 1210, § 5; 2001, No. 1236, § 1; 2003, No. 758, §§ 7-9; 2003, No. 1039, § 1; 2005, No. 912, § 1; 2005, No. 1176, § 5; 2005, No. 1706, §§ 6-8; 2007, No. 284, § 2; 2007, No. 586, §§ 4, 5; 2007, No. 703, §§ 9, 10, 11.

12-12-508. Acts 1991, No. 1208, § 3; 1997, No. 535, § 1; 1999, No. 1340, § 28; 2001, No. 1210, § 6; 2007, No. 586, § 6.

12-12-509. Acts 1991, No. 1208, § 4; 1995, No. 1341, § 9; 1997, No. 535, § 2; 1997, No. 1334, § 4; 1999, No. 626, § 1; 2001, No. 1210, § 7; 2003, No. 175, § 2; 2003, No. 758, § 10; 2005, No. 1466, § 5; 2005, No. 1706, §§ 9, 10; 2007, No. 284, § 3; 2007, No. 586, § 7.

12-12-510. Acts 1991, No. 1208, § 4; 1993, No. 1126, § 7; 1997, No. 1334, § 5; 1999, No. 1340, § 29; 2003, No. 758, §§ 11, 12; 2005, No. 1706, §§ 11, 12; 2007, No. 586, § 8.

12-12-511. Acts 1991, No. 1208, § 4; 1995, No. 1341, § 10; 1997, No. 1334, § 6; 2001, No. 1210, § 8.

12-12-512. Acts 1991, No. 1208, §§ 5, 7; 1993, No. 1126, § 8; 1995, No. 804, § 3; 1995, No. 1341, § 11; 1997, No. 1334, § 7; 1999, No. 1340, § 30; 2001, No. 1210, § 9; 2003, No. 758, §§ 13, 14; 2005, No. 132, § 1; 2005, No. 172, §§ 1, 2; 2005, No. 1706, § 13; 2007, No. 161, §§ 1, 2; 2007, No. 284, § 4; 2007, No. 586, § 9.

12-12-513. Acts 1991, No. 1208, § 7; 2001, No. 1210, § 10.

12-12-514. Acts 1991, No. 1208, § 6; 1995, No. 1341, § 12; 1997, No. 1334, § 8; 2001, No. 1210, § 11; 2003, No. 758, § 15.

12-12-515. Acts 1991, No. 1208, § 9; 1992 (1st Ex. Sess.), No. 49, § 1; 1995, No. 1341, § 13; 1997, No. 1334, § 9; 2001, No. 1210, § 12; 2003, No. 758, § 16.

12-12-516. Acts 1991, No. 1208, § 10; 1999, No. 1340, § 31; 2001, No. 1210, § 13; 2003, No. 758, § 17; 2003, No. 1166, § 32; 2005, No. 1706, § 14; 2007, No. 586, § 10; 2007, No. 703, § 12.

12-12-517. Acts 1991, No. 1208, § 11; 2005, No. 1706, § 15.

12-12-518. Acts 1991, No. 1208, § 13; 2001, No. 1210, § 14; 2003, No. 1039, § 2.

12-12-519. Acts 2001, No. 1210, § 15.

For current law, see the Child Maltreatment Act, § 12-18-101 et seq.

Subchapter 6 — Knife and Gunshot Wound Reporting

Effective Dates. Acts 1949, No. 258, § 4: approved Mar. 8, 1949. Emergency clause provided: “It having been ascertained that immediate report of knife and gunshot injury would curtail crime and assist peace officers in performance of their duties, and being necessary for the health, peace, and safety of the public, an emergency is hereby declared, and this act shall be in full force and effect from and after its passage.”

12-12-601. Penalty.

Any person violating any provision of this subchapter shall be guilty of a violation and shall be fined in any amount not less than ten dollars ($10.00) nor more than one hundred dollars ($100).

History. Acts 1949, No. 258, § 3; A.S.A. 1947, § 42-503; Acts 2005, No. 1994, § 76.

Amendments. The 2005 amendment substituted “violation” for “misdemeanor.”

12-12-602. Report of treatment required.

  1. All physicians, surgeons, hospitals, druggists, or other persons or entities that render first aid treatment to a person shall report as provided in subsection (b) of this section if they treat or receive in the hospital a case of a:
    1. Knife or gunshot wound when the knife or gunshot wound appears to have been intentionally inflicted; or
    2. Burn wound that could reasonably be connected to criminal activity that is:
      1. A second or third degree burn to five percent (5%) or more of a person's body; or
      2. A burn to a person's upper respiratory tract or laryngeal edema due to the inhalation of super-heated air.
  2. The reporting requirements of this subchapter are satisfied if:
    1. The report is made to the county sheriff;
    2. Within a city of the first class, the report is made to the municipal law enforcement agency; or
    3. The report is made under subdivision (a)(2) of this section to the local fire marshal, fire chief, assistant fire chief, or an officer of the fire department having jurisdiction.
  3. A physician, surgeon, hospital, druggist, or other person or entity required to report under this section that, in good faith, makes a report under this section has immunity from any civil or criminal liability that might otherwise be incurred or imposed with respect to the making of a report under this section.

History. Acts 1949, No. 258, § 1; A.S.A. 1947, § 42-501; Acts 2005, No. 1962, § 33; 2011, No. 270, § 1.

Amendments. The 2005 amendment, in (a), deleted “whether public or private, and all” preceding “druggists,” substituted “persons or entities” for “persons,” and “render” for “might be called upon to render,” inserted “to the office of the sheriff of the county,” substituted “when the” for “which” and deleted “to the office of the sheriff of the county or to one of his or her regular commissioned deputies” at the end.

The 2011 amendment subdivided (a) into (a)(1) and (a)(2); in the introductory paragraph of (a), inserted “to a person” and substituted “as provided in subsection (b) of this section if they treat or receive in the hospital a case of a” for “to the office of the county sheriff of the county all cases of”; substituted “wound when the knife or gunshot wound appears” for “wounds treated by them or received in the hospital when the wounds appear” in (a)(1); added (a)(2); rewrote (b); and added (c).

Research References

U. Ark. Little Rock L. Rev.

Breanna Trombley, Note: Criminal Law — No Stitches for Snitches: The Need for a Duty-to-Report Law in Arkansas, 34 U. Ark. Little Rock L. Rev. 813 (2012).

Case Notes

Cited: Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982).

12-12-603. Contents and time of report.

  1. The report shall be made immediately upon the nature of the injury being ascertained, shall be by telephone if possible and practicable, otherwise by writing, and shall contain the name, age, sex, race, and location of the person so injured, together with names of persons bringing the patient in for treatment, if any.
  2. A written report under this subchapter shall not be in compliance unless speedier means of transmitting the notice are not available, are impractical, or are incapable of reaching an officer.

History. Acts 1949, No. 258, § 2; A.S.A. 1947, § 42-502.

Subchapter 7 — Psychological Stress Tests

Effective Dates. Acts 1975, No. 342, § 5: became law without Governor's signature, Mar. 10, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that existing law regulating the use and operation of devices or instruments designed to test or question individuals for the purpose of verifying the truth of statement is unduly restrictive and works a great hardship on the law enforcement agencies of this state; that the immediate passage of this act is necessary to promote and encourage the more efficient enforcement of the criminal laws of this State; therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

12-12-701. Authorization.

Notwithstanding the provisions of the Polygraph Examiners Licensing Act, § 17-39-101 et seq., all law enforcement agencies in this state are authorized to use a psychological stress evaluation instrument to test or question individuals for the purpose of determining and verifying the truth of statements.

History. Acts 1975, No. 342, § 1; A.S.A. 1947, § 42-901.

Case Notes

Admissibility as Evidence.

Testimony of unlicensed state police employee administering polygraph test held inadmissible. Holcomb v. State, 268 Ark. 138, 594 S.W.2d 22 (1980).

12-12-702. Warnings.

Prior to administering any psychological evaluation tests, the person to whom the test is administered must be warned prior to any questioning that:

  1. He or she has a right to remain silent;
  2. Anything he or she says can be used against him or her in a court of law;
  3. He or she has the right to the presence of an attorney; and
  4. If he or she cannot afford an attorney, one may be appointed for him or her prior to his or her questioning if he or she so desires.

History. Acts 1975, No. 342, § 2; A.S.A. 1947, § 42-902.

12-12-703. Minors.

No psychological stress evaluation shall be given to any person under eighteen (18) years of age without first having received written authorization from the parent or guardian of the individual.

History. Acts 1975, No. 342, § 4; A.S.A. 1947, § 42-904.

Case Notes

Cited: Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

12-12-704. Results inadmissible.

The results of any such examination as provided in this subchapter shall be inadmissible in all courts in this state.

History. Acts 1975, No. 342, § 3; A.S.A. 1947, § 42-903.

Case Notes

Opinion Testimony.

Long-standing rule prohibiting the admission of polygraph results properly applied where, had the trial judge allowed polygraph expert to offer his opinion that the defendant's answers were not deceptive, the state would have offered the opinion of detective that the defendant's answers were deceptive, and this would have created the very situation which the legislature and the courts have sought to avoid: the likelihood of credibility determinations being made by reference to the unreliable results of a polygraph examination. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

Reference to Polygraph Test.

Any reference at trial to a polygraph test, in the absence of an agreement or other justifiable circumstances, ordinarily constitutes prejudicial error. Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989).

While neither the results of a lie detector examination nor testimony that indirectly or inferentially apprises a jury of the results of a lie detector examination are admissible, the fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences that might be raised as to the result are not prejudicial. Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990).

A witness's veracity can not be bolstered or discredited by proof of his taking or refusing a lie detector test, and evidence of a witness's willingness or reluctance to be examined is also prejudicial and inadmissible to prove consciousness of innocence or of guilt. Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990).

The district court's finding that there was no agreement between defendant's counsel and the prosecutor that a polygraph test result would be admissible was not clearly erroneous; having failed to obtain an oral agreement from the prosecutor, defendant's counsel cannot be criticized for failing to reduce that agreement to writing, and without an agreement of any kind, the polygraph test results were clearly inadmissible. Houston v. Lockhart, 9 F.3d 62 (8th Cir. 1993).

Trial court properly denied defendant's motion for mistrial after a witness mentioned defendant's having missed an appointment for a polygraph exam; the appellate court held that defendant had not met his burden of showing the jury was prejudiced by the referral to the missed polygraph exam and, even if prejudice could be presumed, any error caused was harmless in view of the overwhelming evidence of defendant's guilt. Peters v. State, 357 Ark. 297, 166 S.W.3d 34 (2004).

In a rape case, although the prohibition on the introduction of polygraph results in this section extended to the willingness or reluctance to be examined as evidence of consciousness of innocence or guilt, the state was not prohibited from introducing a redacted portion of an interview where defendant discussed taking the test; moreover, there was no requirement that the entire statement should have been admitted under Arkansas case law or Ark. R. Evid. 106. Rollins v. State, 362 Ark. 279, 208 S.W.3d 215 (2005).

Motion for a mistrial was properly denied based on a reference to a polygraph test as the state did not elicit the comment about the polygraph, and nothing indicated what the results were. Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006).

Stipulation by Parties.

The trial court properly excluded evidence of an accomplice's polygraph examination absent a written stipulation between the parties. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985).

Polygraph tests are admissible only if both parties agree in writing to the admission. Houston v. Lockhart, 958 F.2d 826 (8th Cir. 1992).

The prosecution was under no obligation to make a written stipulation agreeing to the admission of polygraph tests results, regardless of any alleged oral agreement it may have made before the defendant took the tests. Houston v. Lockhart, 958 F.2d 826 (8th Cir. 1992).

The Arkansas Supreme Court has not interpreted this section literally; rather, test results are admissible if both parties enter into a written stipulation agreeing on their admissibility. Houston v. Lockhart, 982 F.2d 1246 (8th Cir. 1993).

An oral agreement to admit polygraph test results would be unenforceable. Houston v. Lockhart, 982 F.2d 1246 (8th Cir. 1993).

Cited: Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987); Porter v. Ark. Dep't of Human Servs., 2011 Ark. App. 342 (2011); Nelson v. State, 2013 Ark. App. 421 (2013).

Subchapter 8 — Missing Children

12-12-801. Report of missing child — Notation on records.

  1. When either a law enforcement officer or the Attorney General is notified by the parents, guardian, or other person having custody of a child that the child is missing, the law enforcement officer or the Attorney General shall:
    1. Ensure that the missing child information is entered into the Missing Persons Information Clearinghouse within the Arkansas Crime Information Center under § 12-12-205 and the National Crime Information Center; and
    2. Within five (5) business days after being notified by the parents, guardian, or other person having custody of the child, inform by certified mail, return receipt requested, the Division of Vital Records of the Department of Health and the superintendent or school administrator of the school where the child was attending that the child has been reported as missing.
  2. The division shall enter on or attach to the child's birth certificate a notice that the child has been reported missing. The school the child was attending shall make or attach the same notation on the child's school records.

History. Acts 1987, No. 164, § 1; 1993, No. 116, § 1; 2011, No. 598, § 1.

Amendments. The 2011 amendment subdivided part of (a); inserted (a)(1); in (a)(2), substituted “notified by the parents, guardian, or other person having custody of the child” for “so notified” and inserted “or school administrator”; and inserted “the child was attending” in (b).

12-12-802. Request for birth certificate — Notification of law enforcement officer or Attorney General.

  1. When the Division of Vital Records of the Department of Health receives a request for the birth certificate of a child who has been reported missing pursuant to this subchapter, the division shall within five (5) business days after receipt of the inquiry notify the law enforcement officer or the Attorney General, whoever initiated the report to the division, and furnish the name, address, and telephone number, if known, of the person making the inquiry.
  2. The notice to the law enforcement officer or the Attorney General shall be by certified mail, return receipt requested.

History. Acts 1987, No. 164, § 1; 1993, No. 116, § 2.

12-12-803. Request for school records — Notification of law enforcement officer or Attorney General.

  1. When a school receives a request for the records of a child who has been reported missing, the school shall, within five (5) business days, excluding days when the school is closed, after receipt of the inquiry, notify the law enforcement officer or the Attorney General and furnish the name, address, and telephone number, if known, of the person making the inquiry.
  2. The notice shall be by certified mail, return receipt requested.
  3. Any felony-homicide offense under § 5-10-101, § 5-10-102, or § 5-10-104 if the underlying felony is an offense listed in this subdivision (13)(A)(i);
  4. Sexually grooming a child, § 5-27-307;
  5. Trafficking of persons under § 5-18-103(a)(4);
  6. Patronizing a victim of human trafficking, § 5-18-104; and
  7. Sexual extortion, § 5-14-113;
    1. Which is similar to any of the offenses enumerated in subdivision (13)(A)(i) of this section;
    2. When the adjudication of guilt requires registration under sex offender registration laws of another state or jurisdiction; or
    3. If the conviction was for a violation of:
      1. A video;
      2. A photograph;
      3. A blog post;
      4. A podcast;
      5. A transmission or message; or
      6. An email.
      7. YouTube; or
      8. Any other similar format, program, application, or internet service; and
      1. A screen name;
      2. A user identification; or
      3. A user name.

History. Acts 1987, No. 164, § 1; 1993, No. 116, § 3.

Subchapter 9 — Sex Offender Registration Act of 1997

Publisher's Notes. Former subchapter 9, concerning the Habitual Child Sex Offender Registration Act, was repealed by Acts 1997, No. 989, § 23. The former subchapter was derived from the following sources:

12-12-901. Acts 1987, No. 587, § 1.

12-12-902. Acts 1987, No. 587, § 2.

12-12-903. Acts 1987, No. 587, § 10.

12-12-904. Acts 1987, No. 587, §§ 3, 6.

12-12-905. Acts 1987, No. 587, §§ 4, 5.

12-12-906. Acts 1987, No. 587, § 7.

12-12-907. Acts 1987, No. 587, § 8.

12-12-908. Acts 1987, No. 587, § 7.

12-12-909. Acts 1987, No. 587, § 9.

Cross References. Juvenile sex offender assessment and registration, § 9-27-356.

Restrictions on registered sex offenders, §§ 5-14-1285-14-134.

Status as a registered sex offender, § 12-12-1513.

Effective Dates. Acts 1999, No. 1353, § 20: July 1, 1999, and Sept. 1, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly, that the need to register sex or child offenders or sexually violent predators is necessary to ensure the safety of the citizens of Arkansas. Currently, some sex or child offenders or sexually violent predators do not fall within the provisions of the current law and are therefore not required to be registered. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on September 1, 1999. Section 15 and Section 17 of this act shall become effective on July 1, 1999.”

Acts 2006 (1st Ex. Sess.), No. 4, § 11: Apr. 7, 2006. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the need to register sex offenders and update the registration files of sex offenders is necessary to ensure the safety of the citizens of the State of Arkansas; that the provisions of this act will improve the process of registering sex offenders and updating the registration files of sex offenders; and that this act is immediately necessary because of the public risk posed by sex offenders. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2007, No. 394, § 11: Mar. 21, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the need to register and verify registration of sex offenders and sexually violent predators is necessary to ensure the safety of the citizens of the State of Arkansas; that the provisions of this act will improve the process of registering and verifying the registration of sex offenders and sexually violent predators; and that this act is necessary because of the public risk posed by sex offenders and sexually violent predators. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-12-901. Title.

This subchapter shall be known and may be cited as the “Sex Offender Registration Act of 1997”.

History. Acts 1997, No. 989, § 1; 2001, No. 1743, § 1.

Research References

ALR.

State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities as Applied to Juvenile Offenders — Duty to Register, Requirements for Registration, and Procedural Matters. 38 A.L.R.6th 1.

State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities as Applied to Juvenile Offenders — Expungement, Stay or Deferral, Exceptions, Exemptions, and Waiver. 39 A.L.R.6th 577.

Court's Duty to Advise Sex Offender as to Sex Offender Registration Consequences or Other Restrictions Arising from Plea of Guilty, or to Determine that Offender Is Advised Thereof. 41 A.L.R.6th 141.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 6 A.L.R. Fed. 2d 619 (2004), to Sex Offender Registration Statutes. 51 A.L.R.6th 139.

Validity and Applicability of State Requirement That Person Convicted or Indicted of Sex Offenses Be Subject to Electronic Location Monitoring, Including Use of Satellite or Global Positioning System. 57 A.L.R.6th 1.

Validity of State Sex Offender Registration Laws Under Ex Post Facto Prohibitions. 63 A.L.R.6th 351.

Validity, Construction and Application of State Sex Offender Registration Statutes Concerning Level of Classification — General Principles, Evidentiary Matters, and Assistance of Counsel. 64 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Initial Classification Determination. 65 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Claims for Downward Departure. 66 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Claims Challenging Upward Departure. 67 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Statutes Prohibiting Use of Computers and Internet as Conditions of Probation or Sentence. 89 A.L.R.6th 261.

Validity of State Sex Offender Registration Laws Under Equal Protection Guarantees. 93 A.L.R.6th 1.

Validity, Construction, and Application of Federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901 et seq., its Enforcement Provision, 18 U.S.C. § 2250, and Associated Regulations. 30 A.L.R. Fed. 2d 213.

Ark. L. Rev.

Loe, Arkansas Sexual Offender Registration and Notification Laws: An Ex Post Facto Violation? Ark. Code Ann. §§ 12-12-90112-12-920 and Snyder v. State of Arkansas, 53 Ark. L. Rev. 175.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

Case Notes

Constitutionality.

The Sex and Child Offender Registration Act of 1997, §§ 12-12-90112-12-920, is essentially regulatory and non-punitive in nature; therefore, it cannot be considered a violation of the ex post facto clauses of the United States or Arkansas Constitutions. Kellar v. Fayetteville Police Dep't, 339 Ark. 274, 5 S.W.3d 402 (1999).

In General.

Where defendant was convicted of a sex offense and registered as a sex offender in another state, and while living in Arkansas for five years he was convicted of breaking and entering and felony theft of property and was given suspended sentences, but all the while he failed to register as a sex offender as required by § 12-12-905(a)(2) of the Sex Offender Registration Act, § 12-12-901 et seq., his failure to register or report a change of address was a Class D felony, and the state met its burden of proving by a preponderance of the evidence that defendant violated a condition of his suspended sentences. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002).

Reduction of sex offender's risk assessment was appropriate pursuant to the Sex Offender Registration Act of 1997, § 12-12-901 et seq., because defendant's answers during his assessment interview appeared to have been consistent with documents assembled for the interview; additionally, no incidents were cited where defendant's answers differed from documents assembled for the interview. Ark. Dep't of Corr. Sex Offender Screening & Risk Assessment v. Claybaugh, 93 Ark. App. 11, 216 S.W.3d 134 (2005).

Applicability.

Sentencing court had authority to order the registration of a defendant as a sexual offender because the defendant's crime of public sexual indecency was classified as a sexual offense, under § 5-14-111, and because § 12-12-903(13)(B)(ii) did not restrict the sentencing court's authority to order registration for a person's conviction as a sex offender for a sexual offense neither enumerated in § 12-12-903(13)(A)(i) nor included under the provisions of § 12-12-903(13)(B)(ii). Fountain v. State, 103 Ark. App. 15, 285 S.W.3d 706 (2008).

Illustrative Cases.

Appellant failed to state a claim for habeas corpus relief, because the trial court had to enter an amended judgment requiring him to register as a child or sexual offender under the Arkansas Sex Offender Registration Act of 1997, § 12-12-901 et seq., when he entered a plea of guilty to false imprisonment, theft of property, and domestic battery committed in the presence of a child. Justus v. Hobbs, 2013 Ark. 149 (2013).

Sentence.

Circuit court did not err in revoking the suspended sentence defendant received for failure to comply with the reporting requirements of the Sex Offender Registration Act of 1997, § 12-12-901 et seq., because the circuit court's finding that defendant failed to report his address was not clearly erroneous; defendant's parole officer visited the location on consecutive days and did not see defendant there. Wicks v. State, 2010 Ark. App. 499, 375 S.W.3d 769 (2010).

Circuit court did not err by denying defendant's motion to dismiss the state's petition to revoke the suspended sentence he received for failure to comply with the reporting requirements of the Sex Offender Registration Act of 1997, § 12-12-901 et seq., because defendant did not receive an illegal sentence; by pleading guilty, defendant admitted that he was required to register as a sex offender under the Act by virtue of his conviction for rape in California, and that defendant could have asserted a defense to the charge did not call into question the circuit court's authority to preside over the criminal matter, to accept his plea of guilty, and to sentence appellant accordingly. Wicks v. State, 2010 Ark. App. 499, 375 S.W.3d 769 (2010).

Circuit court did not have jurisdiction to entertain defendant's motion to dismiss the state's petition to revoke the suspended sentence he received for failure to comply with the reporting requirements of the Sex Offender Registration Act of 1997, § 12-12-901 et seq., because defendant failed to pursue postconviction relief under Ark. R. Crim. P. 37.1 within ninety days of the date of the entry of judgment; thus, he was barred from challenging his plea and conviction during a revocation proceeding. Wicks v. State, 2010 Ark. App. 499, 375 S.W.3d 769 (2010).

Cited: Morrison v. State, 2009 Ark. App. 681, 374 S.W.3d 8 (2009).

12-12-902. Legislative findings.

The General Assembly finds that sex offenders pose a high risk of reoffending after release from custody, that protecting the public from sex offenders is a primary governmental interest, that the privacy interest of persons adjudicated guilty of sex offenses is less important than the government's interest in public safety, and that the release of certain information about sex offenders to criminal justice agencies and the general public will assist in protecting the public safety.

History. Acts 1997, No. 989, § 2.

Case Notes

Constitutionality.

Assessment requirement for one who is acquitted of a sex offense by reason of mental disease or defect is rationally related to the State's high and legitimate interest in protecting society from repeat sex offenders. Ark. Dep't of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007).

Cited: Ark. Dep't of Corr. Sex Offender Screening & Risk Assessment v. Claybaugh, 93 Ark. App. 11, 216 S.W.3d 134 (2005); Weems v. Little Rock Police Dep't, 453 F.3d 1010 (8th Cir. 2006).

12-12-903. Definitions.

As used in this subchapter:

  1. “Adjudication of guilt” or other words of similar import mean a:
    1. Plea of guilty;
    2. Plea of nolo contendere;
    3. Negotiated plea;
    4. Finding of guilt by a judge; or
    5. Finding of guilt by a jury;
    1. “Administration of criminal justice” means performing functions of investigation, apprehension, detention, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders.
    2. “Administration of criminal justice” also includes criminal identification activities and the collection, maintenance, and dissemination of criminal justice information;
  2. “Aggravated sex offense” means an offense in the Arkansas Code substantially equivalent to “aggravated sexual abuse” as defined in 18 U.S.C. § 2241 as it existed on March 1, 2003, which principally encompasses:
    1. Causing another person to engage in a sexual act:
      1. By using force against that other person; or
      2. By threatening or placing or attempting to threaten or place that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;
    2. Knowingly:
      1. Rendering another person unconscious and then engaging in a sexual act with that other person; or
      2. Administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or similar substance and thereby:
        1. Substantially impairing the ability of that other person to appraise or control conduct; and
        2. Engaging or attempting to engage in a sexual act with that other person; or
    3. Crossing a state line with intent to:
      1. Engage or attempt to engage in a sexual act with a person who has not attained twelve (12) years of age;
      2. Knowingly engage or attempt to engage in a sexual act with another person who has not attained twelve (12) years of age; or
      3. Knowingly engage or attempt to engage in a sexual act under the circumstances described in subdivisions (3)(A) and (B) of this section with another person who has attained twelve (12) years of age but has not attained sixteen (16) years of age and is at least four (4) years younger than the alleged offender;
  3. “Change of address” or other words of similar import mean a change of residence or a change for more than thirty (30) days of temporary domicile, change of location of employment, education or training, or any other change that alters where a sex offender regularly spends a substantial amount of time;
  4. “Criminal justice agency” means a government agency or any subunit thereof which is authorized by law to perform the administration of criminal justice and which allocates more than one-half (½) of its annual budget to the administration of criminal justice;
  5. “Local law enforcement agency having jurisdiction” means the:
    1. Chief law enforcement officer of the municipality in which a sex offender:
      1. Resides or expects to reside;
      2. Is employed; or
      3. Is attending an institution of training or education; or
    2. County sheriff, if:
      1. The municipality does not have a chief law enforcement officer; or
      2. A sex offender resides or expects to reside, is employed, or is attending an institution of training or education in an unincorporated area of a county;
  6. “Mental abnormality” means a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminally sexual acts to a degree that makes the person a menace to the health and safety of other persons;
  7. “Personality disorder” means an enduring pattern of inner experience and behavior that:
    1. Deviates markedly from the expectation of the person's culture;
    2. Is pervasive and inflexible across a broad range of personal and social situations;
    3. Leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning;
    4. Is stable over time;
    5. Has its onset in adolescence or early adulthood;
    6. Is not better accounted for as a manifestation or consequence of another mental disorder; and
    7. Is not due to the direct physiological effects of a substance or a general medical condition;
  8. “Predatory” describes an act directed at a stranger or a person with whom a relationship has been established or promoted for the primary purpose of victimization of that person or individuals over whom that person has control;
    1. “Residency” means the place where a person lives notwithstanding that there may be an intent to move or return at some future date to another place.
    2. “Residency” also includes:
      1. A place of employment;
      2. A place of training;
      3. A place of education; or
      4. A temporary residence or domicile in which a person resides for an aggregate of five (5) or more consecutive days during a calendar year;
  9. “Sentencing court” means the judge of the court that sentenced the sex offender for the sex offense;
    1. “Sex offender” means a person who is adjudicated guilty of a sex offense or acquitted on the grounds of mental disease or defect of a sex offense.
    2. Unless otherwise specified, “sex offender” includes those individuals classified by the court as a sexually dangerous person;
    1. “Sex offense” includes, but is not limited to:
      1. The following offenses:
        1. Rape, § 5-14-103;
        2. Sexual indecency with a child, § 5-14-110;
        3. Sexual assault in the first degree, § 5-14-124;
        4. Sexual assault in the second degree, § 5-14-125;
        5. Sexual assault in the third degree, § 5-14-126;
        6. Sexual assault in the fourth degree, § 5-14-127;
        7. Incest, § 5-26-202;
        8. Engaging children in sexually explicit conduct for use in visual or print medium, § 5-27-303;
        9. Transportation of minors for prohibited sexual conduct, § 5-27-305;
        10. Employing or consenting to the use of a child in a sexual performance, § 5-27-402;
        11. Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child, § 5-27-304;
        12. Producing, directing, or promoting a sexual performance by a child, § 5-27-403;
        13. Promoting prostitution in the first degree, § 5-70-104;
        14. Stalking, § 5-71-229, when ordered by the sentencing court to register as a sex offender;
        15. Indecent exposure, § 5-14-112, if a felony level offense;
        16. Exposing another person to human immunodeficiency virus, § 5-14-123, when ordered by the sentencing court to register as a sex offender;
        17. Kidnapping pursuant to § 5-11-102(a), when the victim is a minor and the offender is not the parent of the victim;
        18. False imprisonment in the first degree and false imprisonment in the second degree, §§ 5-11-103 and 5-11-104, when the victim is a minor and the offender is not the parent of the victim;
        19. Permitting abuse of a minor, § 5-27-221, if the abuse of the minor consisted of sexual intercourse, deviant sexual activity, or sexual contact;
        20. Computer child pornography, § 5-27-603;
        21. Computer exploitation of a child, § 5-27-605;
        22. Permanent detention or restraint, § 5-11-106, when the offender is not the parent of the victim;
        23. Distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child, § 5-27-602;
        24. Internet stalking of a child, § 5-27-306;
        25. Crime of video voyeurism, § 5-16-101, if a felony level offense;
        26. Voyeurism, § 5-16-102, if a felony level offense;
      2. An attempt, solicitation, or conspiracy to commit any of the offenses enumerated in subdivision (13)(A)(i) of this section;
      3. An adjudication of guilt for an offense of the law of another state:
        1. Which is similar to any of the offenses enumerated in subdivision (13)(A)(i) of this section; or
        2. When that adjudication of guilt requires registration under another state's sex offender registration laws;
      4. A violation of any former law of this state that is substantially equivalent to any of the offenses enumerated in this subdivision (13)(A);
      5. An adjudication of guilt for an offense in any federal court, the District of Columbia, a United States territory, a federally recognized Indian tribe, or for a military offense:

(a) 18 U.S.C. § 2252C;

(b) 18 U.S.C. § 2424; or

(c) 18 U.S.C. § 2425; or

(vi) An adjudication of guilt for an offense requiring registration under the laws of Canada, the United Kingdom, Australia, New Zealand, or any other foreign country where an independent judiciary enforces a right to a fair trial during the year in which the conviction occurred.

(B)(i) The sentencing court has the authority to order the registration of any offender shown in court to have attempted to commit or to have committed a sex offense even though the offense is not enumerated in subdivision (13)(A)(i) of this section.

(ii) This authority applies to sex offenses enacted, renamed, or amended at a later date by the General Assembly unless the General Assembly expresses its intent not to consider the offense to be a true sex offense for the purposes of this subchapter;

(14)(A) “Sexually dangerous person” means a person who has been adjudicated guilty or acquitted on the grounds of mental disease or defect of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

(B) A person previously classified as a sexually violent predator is now considered a sexually dangerous person;

(15) “Sexually violent offense” means any state, federal, tribal, or military offense which includes a sexual act as defined in 18 U.S.C. §§ 2241 and 2242 as they existed on March 1, 2003, with another person if the offense is nonconsensual regardless of the age of the victim;

(16)(A) “Social media account” means a personal account with an electronic medium or service in which a user may create, share, or access user-generated content, including without limitation:

(B) “Social media account” includes without limitation an account established with:

(i) Facebook;

(ii) Twitter;

(iii) LinkedIn;

(iv) MySpace;

(v) Instagram;

(vi) Snapchat;

(17) “Social media account information” means information concerning a social media account, including without limitation:

History. Acts 1997, No. 989, § 3; 1999, No. 1353, § 1; 2001, No. 1496, § 3; 2001, No. 1743, § 2; 2003, No. 1390, § 4; 2003 (2nd Ex. Sess.), No. 21, §§ 1-3; 2007, No. 210, § 1; 2007, No. 394, § 2; 2009, No. 165, § 6; 2013, No. 172, § 1; 2013, No. 505, §§ 1, 2; 2013, No. 508, § 1; 2013, No. 1114, § 3; 2015, No. 357, § 1; 2015, No. 1285, § 1; 2017, No. 664, § 7; 2017, No. 916, § 1.

Amendments. The 2009 amendment, in (12)(A)(i), deleted “in the first degree” at the end of (u), deleted (x), which read: “Computer child pornography, § 5-27-603,” deleted (y), which read: “Computer exploitation of a child, § 5-27-605,” redesignated the remaining subdivisions accordingly, and substituted “this subdivision (12)(A)(i)” for “subdivisions (12)(A)(i)(a)-(y) of this section” in (aa).

The 2013 amendment by No. 172 rewrote (10)(B).

The 2013 amendment by No. 505 substituted “a ‘sexually dangerous person’” for “‘sexually violent predators’” in (13) (now (12)); redesignated former (15) as (15)(A) (now (14)(A)); substituted “dangerous person” for “violent predator” in (15)(A) (now (14)(A)); and added (15)(B) (now (14)(B)).

The 2013 amendment by No. 508 rewrote (12)(A)(iii) (now (13)(A)(iii)); and added (12)(A)(v) and (12)(A)(vi) (now (13)(A)(v) and (vi)).

The 2013 amendment by No. 1114 added (12)(A)(i) (bb) (now (13)(A)(i) (bb)

The 2015 amendment by No. 357 added (12)(A)(i) (cc) and (dd) (now (13)(A)(i) (cc) and (dd)

The 2015 amendment by No. 1285 rewrote (12)(A)(i) (s) (now (13)(A)(i) (s)

The 2017 amendment by No. 664 added (13)(A)(i) (ee)

The 2017 amendment by No. 916 added (16) (“Social media account”) and (17) (“Social media account information”).

Research References

ALR.

Validity, Construction, and Application of State Statute Including “Sexually Motivated Offenses” Within Definition of Sex Offense for Purposes of Sentencing or Classification of Defendant as Sex Offender. 30 A.L.R.6th 373.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

Case Notes

Applicability.

Sentencing court had authority to order the registration of a defendant as a sexual offender because the defendant's crime of public sexual indecency was classified as a sexual offense, under § 5-14-111, and because subdivision (13)(B)(ii) of this section did not restrict the sentencing court's authority to order registration for a person's conviction as a sex offender for a sexual offense neither enumerated in subdivision (13)(A)(i) of this section nor included under the provisions of subdivision (13)(B)(ii). Fountain v. State, 103 Ark. App. 15, 285 S.W.3d 706 (2008).

Giving effect to subdivisions (13)(A) and (13)(B) of this section, subdivision (13)(B)(ii) does not restrict a sentencing court's authority to order registration for a person's conviction as a sex offender for a sexual offense neither enumerated in subdivision (13)(A)(i) nor included under the provisions of subdivision (13)(B)(ii). Fountain v. State, 103 Ark. App. 15, 285 S.W.3d 706 (2008).

Adjudication of Guilt.

Defendant could not be certified as an habitual child sex offender since his prior juvenile delinquency adjudication could not be considered a prior conviction under the 1987 version of this subchapter. Snyder v. State, 332 Ark. 279, 965 S.W.2d 121 (1998).

Aggravated Sex Offense.

Defendant's second-degree sexual abuse conviction under former § 5-14-109 did not require defendant's lifetime sex offender registration; the crime was not substantially equivalent to aggravated sexual abuse under 18 U.S.C. § 2241, since second-degree sexual abuse did not require the use of force and required only sexual contact, while aggravated sexual abuse under the federal statute required a sexual act, as defined in 18 U.S.C. § 2246(2)(D). Myers v. State, 2017 Ark. App. 617, 535 S.W.3d 301 (2017).

Change of Address.

Evidence was sufficient to convict defendant of failure to comply with registration requirements under the Sex Offender Registration Act based on his failure to report a change of address because defendant, who registered as a homeless resident of Marion County, was required to wear an electronic ankle monitor with a GPS tracking system; with the use of the GPS technology, the State introduced documentation that defendant had not been in his usual overnight location in Marion County, or any other location in Marion County, for a period of 13 consecutive days; and, contrary to defendant's argument, the evidence established more than a mere temporary relocation to Boone County to periodically recharge his electronic ankle monitor. Wilson v. State, 2016 Ark. App. 164, 485 S.W.3d 698 (2016).

Construction with Other Law.

Section § 12-12-909 requires sex offenders to report changes in employment 10 days before they occur and this section provides sex offenders with an affirmative defense if they notify authorities no later than five days after changing employment; reading the two statutes together makes it clear that a defendant must notify authorities 10 days prior to changing employment, absent an affirmative defense, and since the loss of employment constitutes a change, § 12-12-904 and this section do not allow a 30-day grace period for reporting a change in employment. Mashburn v. State, 87 Ark. App. 89, 189 S.W.3d 73 (2004).

Definition of “residency” for purposes of registration in this section appears in a different chapter of the Arkansas Code than the residency restriction in § 5-14-128(a), and the definition does not by its terms apply to the criminal statute that makes it unlawful for a sex offender “to reside” within 2000 feet of a school or daycare facility. Weems v. Little Rock Police Dep't, 453 F.3d 1010 (8th Cir. 2006), cert. denied, 550 U.S. 917, 127 S. Ct. 2128, 167 L. Ed. 2d 862 (2007).

Illustrative Cases.

Where the Sex Offender Screening and Risk Assessment Committee found that appellant was convicted of two separate sexual assaults on two separate women, admitted that he had been involved in forced sex acts, could not stand rejection, thought about raping, and said that raping made him feel better, there was substantial evidence to support the Committee's assessment of appellant as a level four offender. Because the Committee determined the presence of a mental abnormality or personality disorder by virtue of its review and assessment of appellant as a level four offender, the Committee complied with the provisions of this section. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6 (2009).

Permitting Abuse of a Minor.

Circuit court did not err in finding that it was required to order defendant to register as a sex offender because she pleaded guilty to permitting abuse of a minor, which was listed as a sex offense in the sex offender statute, and defendant failed to obtain a ruling from the circuit court on her overbreadth arguments. Pedraza v. State, 2015 Ark. App. 205, 465 S.W.3d 426 (2015) (decided under previous version of statute).

Postconviction Relief Denied.

Denial of postconviction relief under Ark. R. Crim. P. 37.1 was proper, because correction of the judgment to reflect the requirements of the Sex Offender Registration Act of 1997 (SORA), § 12-12-901 et seq., did not demonstrate error so fundamental as to render the judgment void and subject to collateral attack pursuant to Ark. R. Crim. P. 37.1; since the petitioner pled guilty to false imprisonment in the first degree of a minor victim, which was a designated crime at the time he was sentenced pursuant to subdivision (13)(A)(i) (r) of this section, he was subject to SORA requirements regardless of whether it was reflected on the original judgment. Justus v. State, 2012 Ark. 91 (2012).

Appellant failed to state a claim for habeas corpus relief, because the trial court had to enter an amended judgment requiring him to register as a child or sexual offender under this section when he entered a plea of guilty to false imprisonment, theft of property, and domestic battery committed in the presence of a child. Justus v. Hobbs, 2013 Ark. 149 (2013).

Sex Offense.

Under subdivision (13)(A)(iii) of this section, once the State showed that defendant had been convicted of a sex offense requiring him to register as a sex offender in North Carolina, the State did not also have to show that the North Carolina offenses were similar to offenses requiring registration in Arkansas in order to support a conviction for failure to register; the statute reads in the disjunctive. Martin v. State, 2018 Ark. App. 143, 545 S.W.3d 785 (2018).

Stalking.

Defendant was required to register as a sex offender where a trial court specifically found him guilty of stalking and ordered the registration. Brawner v. State, 2013 Ark. App. 413, 428 S.W.3d 600 (2013).

Cited: Fleming v. State, 2014 Ark. App. 235 (2014).

12-12-904. Failure to comply with registration and reporting requirements — Refusal to cooperate with assessment process.

      1. A person is guilty of a Class C felony who:
        1. Fails to register or verify registration as required under this subchapter;
        2. Fails to report in person a change of address, employment, education, or training as required under this subchapter;
        3. Refuses to cooperate with the assessment process as required under this subchapter; or
        4. Files false paperwork or documentation regarding verification, change of information, or petitions to be removed from the Arkansas Sex Offender Registry.
        1. Upon conviction, a sex offender who fails or refuses to provide any information necessary to update his or her registration file as required by § 12-12-906(b)(2) is guilty of a Class C felony.
        2. If a sex offender fails or refuses to provide any information necessary to update his or her registration file as required by § 12-12-906(b)(2), as soon as administratively feasible the Division of Correction, the Division of Community Correction, the Arkansas State Hospital, or the Department of Human Services shall contact the local law enforcement agency having jurisdiction to report the violation of subdivision (a)(1)(B)(i) of this section.
    1. It is an affirmative defense to prosecution if the person:
      1. Delayed reporting a change in address because of:
        1. An eviction;
        2. A natural disaster; or
        3. Any other unforeseen circumstance; and
      2. Provided the new address to the local law enforcement agency having jurisdiction in person no later than five (5) business days after the person establishes residency.
  1. Any agency or official subject to reporting requirements under this subchapter that knowingly fails to comply with the reporting requirements under this subchapter is guilty of a Class B misdemeanor.

History. Acts 1997, No. 989, § 11; 1999, No. 1353, § 2; 2001, No. 1743, § 3; 2006 (1st Ex. Sess.), No. 4, § 1; 2007, No. 394, § 3; 2013, No. 172, § 2; 2015, No. 358, § 1; 2017, No. 916, § 2; 2019, No. 910, § 702.

Amendments. The 2013 amendment added (a)(1)(A)(iv).

The 2015 amendment substituted “local law enforcement agency having jurisdiction” for “Arkansas Crime Information Center” in (a)(2)(B).

The 2017 amendment inserted “in person” in (a)(1)(A)(ii); and substituted “in person” for “in writing” in (a)(2)(B).

The 2019 amendment, in (a)(1)(B)(ii), substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction”.

Cross References. Fines, 5-4-201.

Imprisonment, 5-4-401.

Research References

ALR.

Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Failure to Register as Required Under Sex Offender or Other Criminal Registration Statutes. 33 A.L.R.6th 91.

Validity of State Sex Offender Registration Laws Under Ex Post Facto Prohibitions. 63 A.L.R.6th 351.

Validity, Construction and Application of State Sex Offender Registration Statutes Concerning Level of Classification — General Principles, Evidentiary Matters, and Assistance of Counsel. 64 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Claims for Downward Departure. 66 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Claims Challenging Upward Departure. 67 A.L.R.6th 1.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

Case Notes

In General.

Where defendant was convicted of a sex offense and registered as a sex offender in another state, and while living in Arkansas for five years he was convicted of breaking and entering and felony theft of property and was given suspended sentences, but all the while he failed to register as a sex offender as required by § 12-12-905(a)(2) of the Sex Offender Registration Act, § 12-12-901 et seq., his failure to register or report a change of address was a Class D felony, and the state met its burden of proving by a preponderance of the evidence that defendant violated a condition of his suspended sentences. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002).

Defendant's conviction under subdivision (a)(1) of this section was affirmed because defendant had previously been ordered to register as a sex offender in Louisiana, and his failure to do so in Arkansas was sufficient to support his conviction. Flowers v. State, 92 Ark. App. 337, 213 S.W.3d 648 (2005).

Because the failure to register as a sex offender was a strict liability offense under § 12-12-901 et seq. and the state proved that defendant was required to register but failed to do so, the trial court did not err by denying defendant's motion for a directed verdict. Adkins v. State, 371 Ark. 159, 264 S.W.3d 523 (2007).

Trial court did not utilize defendant's failure to register as a sex and child offender as an additional ground to support the revocation of his suspended sentence because the trial court merely entered a judgment declaring defendant guilty of that charge and pronounced a prison sentence on the registration violation for which he was originally given a suspended sentence; imposition of the sentence was separate and apart from the revocation and was well within the discretion of the trial court. Lowe v. State, 2010 Ark. App. 284 (2010).

Construction with Other Law.

Section § 12-12-909 requires sex offenders to report changes in employment 10 days before they occur and this section provides sex offenders with an affirmative defense if they notify authorities no later than five days after changing employment; reading the two statutes together makes it clear that a defendant must notify authorities 10 days prior to changing employment, absent an affirmative defense, and since the loss of employment constitutes a change, this section and § 12-12-903 do not allow a 30-day grace period for reporting a change in employment. Mashburn v. State, 87 Ark. App. 89, 189 S.W.3d 73 (2004).

Trial court did not clearly err in finding that defendant made no effort to comply with sexual-offender registration requirements. Therefore, the trial court properly revoked defendant's suspended sentence. Muldrew v. State, 2012 Ark. App. 568 (2012).

Evidence.

Defendant's conviction for failure to register as a sex offender, or failure to report a change of address, in violation of this section was appropriate because the evidence supported a legitimate inference that he lied when he claimed to continue to live at a residence. The only evidence offered on his behalf was the allegation that he continued to live at the residence without furniture or water, while he allowed the grass to become overgrown. Morrison v. State, 2009 Ark. App. 681, 374 S.W.3d 8 (2009).

Probation of defendant, a registered sex offender, was properly revoked for failing to comply with sex offender registration and reporting requirements, as required by this section, because defendant admitted that he was told that he could not live at a residential care facility which abutted a daycare but he did not move or provide another address for sex offender registry. Gray v. State, 2010 Ark. App. 159 (2010).

During defendant's trial for failure to register as a sex offender, the admission of a judgment and commitment order from a 2004 conviction on a charge of failure to register as a sex offender was neither prejudicial nor probative because the offense was a strict-liability offense; at worst, the evidence could be viewed as irrelevant or cumulative. Reed v. State, 2012 Ark. App. 225 (2012).

Defendant's convictions for failure to comply with registration and reporting requirements applicable to sex offenders and for residing within 2000 feet of a daycare facility as a level 4 sex offender were proper where the evidence supported a finding that he resided in a particular trailer that was shown to be within 2000 feet of a daycare facility because: (1) there was evidence that the trailer's previous resident had moved out approximately two months earlier and that the utilities for the trailer had been reestablished in defendant's name; (2) men's clothing and toiletries were found in the trailer, as were prescription-medication bottles bearing defendant's name; (3) the owner of the trailer admitted that defendant had approached him three times about renting the trailer; (4) defendant's father admitted that defendant had intended to move to the trailer; and (5) defendant had a key to the trailer when arrested. Although defendant argued he was only in the trailer to do repair work, no evidence of repair work was observed in the trailer. Green v. State, 2013 Ark. App. 63 (2013).

Substantial evidence demonstrated that defendant had failed to register his correct address where the testimony showed that he had provided an address that did not exist. Morrow v. State, 2014 Ark. 510, 452 S.W.3d 90 (2014).

Evidence was sufficient to support a conviction for failing to register as a sex offender because defendant had been advised of his obligation to register, had been informed on how to register, and had been reporting for over 4 years. Despite defendant's excuses for failing to register after his release from jail, the State was not required to prove that defendant failed to register with any particular culpable mental state. Fleming v. State, 2014 Ark. App. 235 (2014).

Evidence was sufficient to convict defendant of failure to comply with registration requirements under the Sex Offender Registration Act based on his failure to report a change of address because defendant, who registered as a homeless resident of Marion County, was required to wear an electronic ankle monitor with a GPS tracking system; with the use of the GPS technology, the State introduced documentation that defendant had not been in his usual overnight location in Marion County, or any other location in Marion County, for a period of 13 consecutive days; and, contrary to defendant's argument, the evidence established more than a mere temporary relocation to Boone County to periodically recharge his electronic ankle monitor. Wilson v. State, 2016 Ark. App. 164, 485 S.W.3d 698 (2016).

Failure to Register or Report Found.

Circuit court did not err in finding that defendant violated the terms and conditions of his suspended imposition of sentence by committing the new offense of failing to register as a sex offender after he was released from incarceration; although defendant objected to the Arkansas Crime Information Center documents when the documents were introduced, he did not raise the Confrontation Clause basis for objection until after the evidence had been introduced and the State had rested its case and therefore that argument was waived. Allen v. State, 2020 Ark. App. 84, 596 S.W.3d 518 (2020).

Interpretation.

Sex Offender Screening and Risk Assessment Committee's assessment of a sex offender as a level four offender based on convictions which occurred before the effective date of the Sex Offender Registration Act (SORA) did not violate the ex post facto prohibitions of U.S. Const., Art. 1, § 10 and Ark. Const., Art. 2, § 17. Despite subdivision (a)(1) of this section, which sets forth criminal sanctions for a sex offender's failure to report, the SORA is not a form of punishment; therefore, the Supreme Court of Arkansas holds that it cannot be considered a violation of the ex post facto clauses of the United States and Arkansas Constitutions. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6 (2009).

Circuit court did not err in denying defendant's motion to dismiss the charges under this section where defendant had knowledge that he was required to register as a sex offender, and the statute had remained substantively unchanged since case law concluding that the statute was one of strict liability had been decided. Morrow v. State, 2014 Ark. 510, 452 S.W.3d 90 (2014).

12-12-905. Applicability.

  1. The registration or registration verification requirements of this subchapter apply to a person who:
    1. Is adjudicated guilty on or after August 1, 1997, of a sex offense, aggravated sex offense, or sexually violent offense;
    2. Is serving a sentence of incarceration, probation, parole, or other form of community supervision as a result of an adjudication of guilt on or after August 1, 1997, for a sex offense, aggravated sex offense, or sexually violent offense;
    3. Is acquitted on or after August 1, 1997, on the grounds of mental disease or defect for a sex offense, aggravated sex offense, or sexually violent offense;
    4. Is serving a commitment as a result of an acquittal on or after August 1, 1997, on the grounds of mental disease or defect for a sex offense, aggravated sex offense, or sexually violent offense; or
    5. Was required to be registered under the Habitual Child Sex Offender Registration Act, former § 12-12-901 et seq.
  2. A person who has been adjudicated guilty of a sex offense and whose record of conviction will be expunged under the provisions of §§ 16-93-301 — 16-93-303 is not relieved of the duty to register or verify registration.
    1. If the underlying conviction of the registrant is reversed, vacated, or set aside or if the registrant is pardoned, the registrant is relieved from the duty to register or verify registration.
    2. Registration or registration verification shall cease upon the receipt and verification by the Arkansas Crime Information Center of documentation from the:
      1. Court verifying the fact that the conviction has been reversed, vacated, or set aside; or
      2. Governor's office that the Governor has pardoned the registrant.

History. Acts 1997, No. 989, § 4; 1999, No. 1353, § 3; 2001, No. 1743, § 4; 2003, No. 1265, § 2; 2006 (1st Ex. Sess.), No. 4, § 2; 2007, No. 394, § 4.

A.C.R.C. Notes. The Habitual Child Sex Offender Registration Act, former § 12-12-901 et seq., referred to in subdivision (a)(5) of this section, was derived from Acts 1987, No. 587, §§ 1-10, which was subsequently repealed by Acts 1997, No. 989, § 23.

Amendments. The 2007 amendment substituted “registration verification” for “reregistration” or “reregister” throughout the section.

Research References

ALR.

Validity, Construction, and Application of State Statutory Requirement that Person Convicted of Sexual Offense in Other Jurisdiction Register or Be Classified as Sexual Offender in Forum State. 34 A.L.R.6th 171.

Case Notes

In General.

Where defendant was convicted of a sex offense and registered as a sex offender in another state, and while living in Arkansas for five years he was convicted of breaking and entering and felony theft of property and was given suspended sentences, but all the while he failed to register as a sex offender as required by subdivision (a)(2) of this section in the Sex Offender Registration Act, § 12-12-901 et seq., his failure to register or report a change of address was a Class D felony, and the state met its burden of proving by a preponderance of the evidence that defendant violated a condition of his suspended sentences. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002).

Sentencing court had authority to order the registration of a defendant as a sexual offender because the defendant had been adjudicated guilty of public sexual indecency, under § 5-14-111, on or after August 1, 1997, and because § 12-12-903(13)(B)(ii) did not restrict the sentencing court's authority to order registration for a person's conviction as a sex offender for a sexual offense neither enumerated in § 12-12-903(13)(A)(i) nor included under the provisions of § 12-12-903(13)(B)(ii). Fountain v. State, 103 Ark. App. 15, 285 S.W.3d 706 (2008).

Defendant was properly convicted of knowingly failing to register as a sex offender under 18 U.S.C. § 2250 because he was subject to the registration requirements under Haw. Rev. Stat. § 846E-2(a) upon his Hawaii sex offense conviction and he had a duty to re-register when he re-entered Arkansas pursuant to this section and § 12-12-906. United States v. Brewer, 628 F.3d 975 (8th Cir. 2010), cert. denied, 565 U.S. 829, 132 S. Ct. 126, 181 L. Ed. 2d 48 (2011).

Circuit court properly denied defendant's motion to dismiss related to his conviction under § 12-12-904 for failure to comply with sex offender reporting requirements where defendant, who had been convicted of rape in 1993 and was imprisoned before the Sex Offender Registration Act of 1997 was enacted, argued that the 1993 order did not impose a registration requirement, as required by § 12-12-906. Defendant was found guilty of committing a registerable sex offense, he was in prison on August 1, 1997, which according to this section and judicial interpretation, meant that the registration and verification requirements applied to him, and there was no legislative directive to apply the § 12-12-906 requirement retroactively. Williams v. State, 2017 Ark. App. 526, 532 S.W.3d 614 (2017).

Trial court, upon resentencing, properly ordered defendant to register as a sex offender because, by pleading guilty to distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, defendant was ineligible for any sentence under the First Offender Act and was required by law to comply with the statutory sex-offender-registration requirements. Wilson v. State, 2019 Ark. App. 116 (2019).

Stalking.

Defendant was required to register as a sex offender where a trial court specifically found him guilty of stalking and ordered the registration. Brawner v. State, 2013 Ark. App. 413, 428 S.W.3d 600 (2013).

Cited: Hammock v. State, 2009 Ark. App. 414, 322 S.W.3d 22 (2009).

12-12-906. Duty to register or verify registration generally — Review of requirements with offenders.

        1. At the time of adjudication of guilt, the sentencing court shall enter on the judgment and commitment or judgment and disposition form that the offender is required to register as a sex offender and shall indicate whether the:
          1. Offense is an aggravated sex offense;
          2. Sex offender has been adjudicated guilty of a prior sex offense under a separate case number; or
          3. Sex offender has been classified as a sexually dangerous person.
        2. If the sentencing court finds the offender is required to register as a sex offender, then at the time of adjudication of guilt the sentencing court shall require the sex offender to complete the sex offender registration form prepared by the Director of the Arkansas Crime Information Center pursuant to § 12-12-908 and shall forward the completed sex offender registration form to the Arkansas Crime Information Center.
        3. A sex offender is not required to register as a sex offender under this subchapter if the:
          1. Victim was under eighteen (18) years of age and the sex offender was no more than three (3) years older than the victim at the time of the sex offense;
          2. Court determines that there was no evidence of force, compulsion, threat, or intimidation in the commission of the sex offense; and
          3. Court does not otherwise order registration under § 12-12-903(13)(B)(i).
        1. The Division of Correction shall ensure that a sex offender received for incarceration has completed the sex offender registration form.
        2. If the Division of Correction cannot confirm that the sex offender has completed the sex offender registration form, the Division of Correction shall require the sex offender to complete the sex offender registration form upon intake, release, or discharge.
        1. The Division of Community Correction shall ensure that a sex offender placed on probation or another form of community supervision has completed the sex offender registration form.
        2. If the Division of Community Correction cannot confirm that the sex offender has completed the sex offender registration form, the Division of Community Correction shall require the sex offender to complete the sex offender registration form upon intake, release, or discharge.
        1. The Arkansas State Hospital shall ensure that the sex offender registration form has been completed for any sex offender found not guilty by reason of insanity and shall arrange an evaluation by Community Notification Assessment.
        2. If the Arkansas State Hospital cannot confirm that the sex offender has completed the sex offender registration form, the Arkansas State Hospital shall ensure that the sex offender registration form is completed for the sex offender upon intake, release, or discharge.
      1. A sex offender who moves to or returns to this state from another jurisdiction and who would be required to register as a sex offender in the jurisdiction in which he or she was adjudicated guilty or delinquent of a sex offense shall register with the local law enforcement agency having jurisdiction in person within five (5) calendar days after the sex offender moves to a municipality or county of this state.
        1. Any person living in this state who would be required to register as a sex offender in the jurisdiction in which he or she was adjudicated guilty or delinquent of a sex offense shall register as a sex offender in this state whether living, working, or attending school or other training in Arkansas.
        2. A nonresident worker or student who enters the state shall register in compliance with the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, as it existed on January 1, 2007.
      2. A sex offender sentenced and required to register outside of Arkansas shall:
          1. Submit to assessment by Community Notification Assessment if he or she is at least eighteen (18) years of age at the time he or she enters this state to live, work, or attend school.
          2. If he or she is under eighteen (18) years of age at the time he or she enters this state to live, work, or attend school, he or she shall submit to assessment by the University of Arkansas for Medical Sciences Family Treatment Program or other agency or entity authorized to conduct juvenile sex offender assessments;
        1. Provide a deoxyribonucleic acid (DNA) sample if a sample is not already accessible to the State Crime Laboratory; and
          1. Pay the mandatory fee of two hundred fifty dollars ($250) to be deposited into the DNA Detection Fund established by § 12-12-1119 within ninety (90) days from the date of registration.
          2. Failure to pay the fee required under subdivision (a)(2)(C)(iii)(a) of this section is a Class A misdemeanor.
    1. The registration file of a sex offender who is confined in a correctional facility or serving a commitment following acquittal on the grounds of mental disease or defect shall be inactive until the registration file is updated by the department responsible for supervision of the sex offender.
    2. Immediately prior to the release or discharge of a sex offender or immediately following a sex offender's escape or his or her absconding from supervision, the Division of Correction, the Division of Community Correction, the Arkansas State Hospital, or the Department of Human Services shall update the registration file of the sex offender who is to be released or discharged or who has escaped or has absconded from supervision.
      1. When registering a sex offender as provided in subsection (a) of this section, the sentencing court, the Division of Correction, the Division of Community Correction, the Arkansas State Hospital, the Department of Human Services, or the local law enforcement agency having jurisdiction shall:
        1. Inform the sex offender of the duty to submit to assessment and to register and obtain the information required for registration as described in § 12-12-908;
        2. Inform the sex offender that if the sex offender changes residency within the state, the sex offender shall give the new address and place of employment, education, higher education, or training to the center in writing no later than five (5) calendar days before the sex offender establishes residency or is temporarily domiciled at the new address;
          1. Inform the sex offender that if the sex offender changes residency to another state or enters another state to work or attend school, the sex offender must also register in that state regardless of permanent residency.
          2. The sex offender shall register the new address and place of employment, education, higher education, or training with the center and with a designated law enforcement agency in the new state in person not later than five (5) calendar days after the sex offender establishes residency or is temporarily domiciled in the new state;
        3. Obtain fingerprints, palm prints, and a photograph of the sex offender if these have not already been obtained in connection with the offense that triggered registration;
        4. Obtain a deoxyribonucleic acid (DNA) sample if one has not already been provided;
        5. Require the sex offender to complete the entire registration process, including, but not limited to, requiring the sex offender to read and sign a form stating that the duty of the sex offender to register under this subchapter has been explained;
        6. Inform the sex offender that if the sex offender's address changes within the state or to another state due to an eviction, natural disaster, or any other unforeseen circumstance, the sex offender shall give the new address to the local law enforcement agency having jurisdiction in person no later than five (5) calendar days after the sex offender establishes residency;
        7. Inform a sex offender who has been granted probation that failure to comply with the provisions of this subchapter may be grounds for revocation of the sex offender's probation; and
        8. Inform a sex offender subject to lifetime registration under § 12-12-919 of the duty to:
          1. Verify registration and obtain the information required for registration verification as described in subsections (g) and (h) of this section; and
          2. Ensure that the information required for reregistration verification under subsections (g) and (h) of this section is provided to the local law enforcement agency having jurisdiction.
        1. Any offender required to register as a sex offender must provide a deoxyribonucleic acid (DNA) sample, that is, a blood sample or saliva sample, upon registering if a sample has not already been provided to the State Crime Laboratory.
        2. Any offender required to register as a sex offender who is entering the State of Arkansas must provide a deoxyribonucleic acid (DNA) sample, that is, a blood sample or saliva sample, upon registration and must pay the mandatory fee of two hundred fifty dollars ($250) to be deposited into the DNA Detection Fund established by § 12-12-1119.
    1. When updating the registration file of a sex offender, the Division of Correction, the Division of Community Correction, the Arkansas State Hospital, or the Department of Human Services shall:
      1. Review with the sex offender the duty to register and obtain current information required for registration as described in § 12-12-908;
      2. Review with the sex offender the requirement that if the sex offender changes address within the state, the sex offender shall give the new address to the local law enforcement agency having jurisdiction in person no later than five (5) calendar days before the sex offender establishes residency or is temporarily domiciled at the new address;
      3. Review with the sex offender the requirement that if the sex offender changes address to another state, the sex offender shall register the new address with the local law enforcement agency having jurisdiction in person and with a designated law enforcement agency in the new state in person not later than five (5) calendar days after the sex offender establishes residency or is temporarily domiciled in the new state if the new state has a registration requirement;
      4. Require the sex offender to read and sign a form stating that the duty of the sex offender to register under this subchapter has been reviewed;
      5. Inform the sex offender that if the sex offender's address changes within the state or to another state due to an eviction, natural disaster, or any other unforeseen circumstance, the sex offender shall give the new address to the local law enforcement agency having jurisdiction in person no later than five (5) calendar days after the sex offender establishes residency;
      6. Review with the sex offender the consequences of failure to provide any information required by subdivision (b)(2) of this section;
      7. Inform a sex offender subject to lifetime registration under § 12-12-919 of the duty to:
        1. Verify registration and report the information required for registration verification as described in subsections (g) and (h) of this section; and
        2. Ensure that the information required for registration verification under subsections (g) and (h) of this section is provided in person to the local law enforcement agency having jurisdiction; and
      8. Review with a sex offender subject to lifetime registration under § 12-12-919 the consequences of failure to verify registration under § 12-12-904.
  1. When registering or updating the registration file of a sexually dangerous person, in addition to the requirements of subdivision (c)(1) or subdivision (c)(2) of this section, the sentencing court, the Division of Correction, the Division of Community Correction, the Arkansas State Hospital, the Department of Human Services, or the local law enforcement agency having jurisdiction shall obtain documentation of any treatment received for the mental abnormality or personality disorder of the sexually dangerous person.
  2. Any sex offender working, enrolled, or volunteering in a public or private elementary, secondary or postsecondary school, or institution of training shall notify the local law enforcement agency having jurisdiction in person of that status and shall register in person with the local law enforcement agency having jurisdiction over that campus.
    1. A sex offender required to register under this subchapter shall not change his or her name unless the change is:
      1. Incident to a change in the marital status of the sex offender; or
      2. Necessary to effect the exercise of the religion of the sex offender.
    2. The change in the sex offender's name shall be reported to the local law enforcement agency having jurisdiction in person within five (5) calendar days after the change in name.
    3. A violation of this subsection is a Class C felony.
    1. Except as provided in subsection (h) of this section, a sex offender subject to lifetime registration under § 12-12-919 shall report in person every six (6) months after registration to the local law enforcement agency having jurisdiction to verify registration.
      1. The local law enforcement agency having jurisdiction may determine the appropriate times and days for in-person reporting by the sex offender, and the determination shall be consistent with the reporting requirements of subdivision (g)(1) of this section.
        1. If the day a sex offender is scheduled to report under this section passes before the day a local law enforcement agency having jurisdiction has determined as appropriate, the sex offender shall not be considered out of compliance if he or she reports at the next date set by the local law enforcement agency having jurisdiction.
        2. If a local law enforcement agency having jurisdiction sets specific times and days for reporting then the local law enforcement agency having jurisdiction shall have the appropriate staff available at those times and days for a sex offender to report under this section.
    2. Registration verification shall include reporting in person any change to the following information concerning the sex offender:
      1. Name;
      2. Social Security number;
      3. Age;
      4. Race;
      5. Gender;
      6. Date of birth;
      7. Height;
      8. Weight;
      9. Hair and eye color;
        1. Address of any permanent residence and address of any current temporary residence within this state or out of this state, including a rural route address and a post office box.
        2. A post office box shall not be provided in lieu of a physical residential address;
      10. Date and place of any employment or volunteer work;
      11. Vehicle make, model, color, and license tag number that the sex offender owns, operates, or to which he or she has access;
        1. Fingerprints.
        2. If the local law enforcement agency having jurisdiction cannot confirm that the sex offender's fingerprints are contained in the automated fingerprint identification system, the local law enforcement agency having jurisdiction shall:
          1. Take the sex offender's fingerprints in person at an office of the local law enforcement agency having jurisdiction; and
          2. Submit the fingerprints to the center and to the Division of Arkansas State Police.
        3. If the local law enforcement agency having jurisdiction cannot confirm that the sex offender's palm prints are contained in the automated palm print identification system, the local law enforcement agency having jurisdiction shall:
          1. Take the sex offender's palm prints in person at an office of the local law enforcement agency having jurisdiction; and
          2. Submit the palm prints to the center and to the Division of Arkansas State Police;
        1. Photograph.
        2. The local law enforcement agency having jurisdiction shall take a photograph of the sex offender at each registration verification in person at an office of the local law enforcement agency having jurisdiction and submit the photograph to the center;
      12. All computers or other devices with internet capability to which the sex offender has access;
      13. All email addresses used by the sex offender;
        1. Passport.
        2. The local law enforcement agency having jurisdiction shall obtain a copy of any passport issued to the person by any country in the sex offender's name in person at an office of the local law enforcement agency having jurisdiction at each registration verification and submit the copy of any passport to the center;
        1. Immigration documentation.
        2. The local law enforcement agency having jurisdiction shall obtain a copy of any immigration documents issued to the sex offender by any country in person at an office of the local law enforcement agency having jurisdiction at each registration verification and submit a copy of the documents to the center;
        1. Professional licenses and permits.
        2. The local law enforcement agency having jurisdiction shall obtain a copy of any federal, state, or local professional license or permit issued to the sex offender in person at an office of the local law enforcement agency having jurisdiction at each registration verification and submit a copy of the documents to the center; and
      14. All social media account information.
    3. If the sex offender is enrolled or employed at an institution of higher education in this state, the sex offender shall also report in person to the local law enforcement agency having jurisdiction:
      1. The name and address of each institution of higher education where he or she is enrolled or employed, including each campus attended;
      2. The county where each campus is located; and
      3. His or her enrollment or employment status.
    4. If the place of residence of the sex offender is a motor vehicle, trailer, mobile home, modular home, or manufactured home, the sex offender shall report in person the following information concerning the motor vehicle, trailer, mobile home, modular home, or manufactured home:
      1. Vehicle identification number;
      2. License tag number;
      3. Registration number; and
      4. A description, including color scheme.
    5. If the place of residence of the sex offender is a vessel, live-aboard vessel, or houseboat, the sex offender shall report in person the following information concerning the vessel, live-aboard vessel, or houseboat:
      1. Hull identification number;
      2. Manufacturer's serial number;
      3. Name;
      4. Registration number; and
      5. A description, including color scheme.
    6. If a person who is required to register as a sex offender owns an aircraft, the person shall provide in person the following information concerning the aircraft:
      1. The aircraft registration number;
      2. The manufacturer and model of the aircraft; and
      3. A description of the color scheme of the aircraft.
    1. A sexually dangerous person subject to lifetime registration under § 12-12-919 shall report in person every ninety (90) days after registration to the local law enforcement agency having jurisdiction to verify registration.
      1. The local law enforcement agency having jurisdiction may determine the appropriate times and days for in-person reporting by the sexually dangerous person, and the determination shall be consistent with the reporting requirements of subdivision (h)(1) of this section.
        1. If the day a sex offender is scheduled to report under this section passes before the day a local law enforcement agency having jurisdiction has determined as appropriate, the sex offender shall not be considered out of compliance if he or she reports at the next date set by the local law enforcement agency having jurisdiction.
        2. If a local law enforcement agency having jurisdiction sets specific times and days for reporting then the local law enforcement agency having jurisdiction shall have the appropriate staff available at those times and days for a sex offender to report under this section.
    2. Registration verification shall include reporting in person any change to the following information concerning the sexually dangerous person:
      1. Name;
      2. Social Security number;
      3. Age;
      4. Race;
      5. Gender;
      6. Date of birth;
      7. Height;
      8. Weight;
      9. Hair and eye color;
        1. Address of any permanent residence and address of any current temporary residence within this state or out of this state, including a rural route address and a post office box.
        2. A post office box shall not be provided in lieu of a physical residential address;
      10. Date and place of any employment or volunteer work;
      11. Vehicle make, model, color, and license tag number that the sexually dangerous person owns, operates, or to which he or she has access;
        1. Fingerprints.
        2. If the local law enforcement agency having jurisdiction cannot confirm that the sexually dangerous person's fingerprints are contained in the automated fingerprint identification system, the local law enforcement agency having jurisdiction shall:
          1. Take the sexually dangerous person's fingerprints in person at an office of the law enforcement agency having jurisdiction; and
          2. Submit the fingerprints to the center and to the Division of Arkansas State Police.
        3. If the local law enforcement agency having jurisdiction cannot confirm that the sexually dangerous person's palm prints are contained in the automated palm print identification system, the local law enforcement agency having jurisdiction shall:
          1. Take the sexually dangerous person's palm prints in person at an office of the law enforcement agency having jurisdiction; and
          2. Submit the palm prints to the center and to the Division of Arkansas State Police;
        1. Photograph.
        2. The local law enforcement agency having jurisdiction shall take a photograph of the sexually dangerous person at each registration verification in person at an office of the law enforcement agency having jurisdiction and submit the photograph to the center;
      12. All computers or other devices with internet capability to which the sex offender has access;
      13. All email addresses used by the sex offender;
        1. Passport.
        2. The local law enforcement agency having jurisdiction shall obtain a copy of any passport issued to the sexually dangerous person by any country in the sexually dangerous person's name in person at an office of the law enforcement agency having jurisdiction at each registration verification and submit the copy of any passport to the center;
        1. Immigration documentation.
        2. The local law enforcement agency having jurisdiction shall obtain a copy of any immigration documents issued to the sexually dangerous person by any country in person at an office of the law enforcement agency having jurisdiction at each registration verification and submit a copy of the documents to the center;
        1. Professional licenses and permits.
        2. The local law enforcement agency having jurisdiction shall obtain a copy of any federal, state, or local professional license or permit issued to the sexually dangerous person in person at an office of the law enforcement agency having jurisdiction at each registration verification and submit a copy of the documents to the center; and
      14. All social media account information.
    3. If the sexually dangerous person is enrolled or employed at an institution of higher education in this state, the sexually dangerous person shall also report in person to the local law enforcement agency having jurisdiction:
      1. The name and address of each institution of higher education where he or she is enrolled or employed, including each campus attended;
      2. The county where each campus is located; and
      3. His or her enrollment or employment status.
    4. If the place of residence of the sexually dangerous person is a motor vehicle, trailer, mobile home, modular home, or manufactured home, the sexually dangerous person shall report in person the following information concerning the motor vehicle, trailer, mobile home, modular home, or manufactured home:
      1. Vehicle identification number;
      2. License tag number;
      3. Registration number; and
      4. A description, including color scheme.
    5. If the place of residence of the sexually dangerous person is a vessel, live-aboard vessel, or houseboat, the sexually dangerous person shall report in person the following information concerning the vessel, live-aboard vessel, or houseboat:
      1. Hull identification number;
      2. Manufacturer's serial number;
      3. Name;
      4. Registration number; and
      5. A description, including color scheme.
    6. If a sexually dangerous person who is required to register as a sexually dangerous person owns an aircraft, the sexually dangerous person shall report in person the following information concerning the aircraft:
      1. The aircraft registration number;
      2. The manufacturer and model of the aircraft; and
      3. A description of the color scheme of the aircraft.
  3. After verifying the registration of a sex offender under subsection (g) of this section or a sexually dangerous person under subsection (h) of this section, the local law enforcement agency having jurisdiction shall file the verification with the center in accordance with § 12-12-909.

History. Acts 1997, No. 989, § 5; 1999, No. 1353, § 4; 2001, No. 202, §§ 1-3; 2001, No. 1089, § 1; 2001, No. 1743, § 5; 2003, No. 1185, § 18; 2003, No. 1265, § 4[3]; 2003 (2nd Ex. Sess.), No. 21, § 4; 2005, No. 1962, § 34; 2006 (1st Ex. Sess.), No. 4, § 3; 2007, No. 394, § 5; 2011, No. 143, §§ 1, 2; 2011, No. 1009, § 1; 2013, No. 172, § 3; 2013, No. 505, §§ 3-7; 2013, No. 508, §§ 2-8; 2013, No. 1129, §§ 2, 3; 2015, No. 358, §§ 2-7; 2017, No. 916, § 3; 2019, No. 262, §§ 1-3; 2019, No. 587, § 1; 2019, No. 910, §§ 703-711.

A.C.R.C. Notes. Pursuant to § 1-2-207, the amendment of subdivision (a) by Acts 2001, No. 202, § 1 is deemed to be superseded by its amendment by Acts 2001, No. 1743, § 5. Acts 2001, No. 202, § 1 amended (a)(1) to read as follows:

“(a)(1)(A) At the time of an offender's adjudication of guilt, the sentencing court shall require the offender to complete the sex offender registration form in the format prepared by the Director of the Arkansas Crime Information Center pursuant to § 12-12-908.

“(B)(1) For offenders who are sentenced to a term of incarceration in the Department of Correction, it shall be the responsibility of the Department of Correction to assure that those offenders complete the sex offender registration form.

“(2) For offenders who are adjudicated guilty but are not sentenced to a term of incarceration in the Department of Correction, it shall be the responsibility of the Department of Community Correction to assure that those offenders complete the sex offender registration form.”

Acts 2003, No. 1265 did not contain a Section 3.

As enacted, Acts 2011, No. 143, contained two sections designated as § 1.

Amendments. The 2005 amendment substituted “42 U.S.C. § 14071 et seq. and 64 Fed. Reg. 572 et seq., as they existed on March 1, 2003” for “64 Fed. Reg. 585 2d as it existed on March 1, 2003” in (a)(2)(B)(ii).

The 2006 (1st Ex. Sess.) amendment rewrote this section.

The 2011 amendment by No. 143 deleted “beginning April 7, 2006” following “of this section” in (g)(1); inserted (O) through (Q) in (g)(3) and (h)(3); inserted “of higher education where he or she is enrolled or employed” in (g)(4)(A) and (h)(4)(A); and deleted “Beginning on March 21, 2007” at the beginning of (h)(1).

The 2011 amendment by No. 1009 added (a)(2)(C)(iii) (b) ; and added “within ninety (90) days from the date of registration” to the end of (a)(2)(C)(iii) (a)

The 2013 amendment by No. 172 rewrote (a)(2)(A); inserted “or delinquent” in (a)(2)(B)(i); inserted “the Adam Walsh Child Protection and Safety Act of 2006” in (a)(2)(B)(ii); and rewrote (a)(2)(C)(i).

The 2013 amendment by No. 505 substituted “dangerous person” or “dangerous person's” for “violent predator” throughout the section; substituted “Community Notification Assessment” for “Sex Offender Screening and Risk Assessment” in (a)(1)(D)(i) and (a)(2)(C)(i).

The 2013 amendment by No. 508 inserted “palm prints” following “fingerprints” in (c)(1)(A)(iv) and added (g)(3)(M)(iii), (g)(3)(R)-(g)(3)(T) and (g)(7).

The 2013 amendment by No. 1129 substituted “ninety (90) days” for “three (3) months” in (h)(1); and, in (i), deleted “Within three (3) days” from the beginning and substituted “file the verification with the center in accordance with § 12-12-909” for “report by written or electronic means all information obtained from or provided by the sex offender or sexually violent predator to the center.”

The 2015 amendment substituted “local law enforcement agency having jurisdiction” for “center” in (c)(1)(A)(vii), (c)(2)(B), (c)(2)(C), and (c)(2)(E), and in (e) following “notify the”; substituted “under” for “pursuant to” in (f)(1); substituted “local law enforcement agency having jurisdiction” for “Director of the Arkansas Crime Information Center” in (f)(2); and added “or volunteer work” in (g)(3)(K) and (h)(3)(K).

The 2017 amendment inserted “in person” and “in-person” throughout the section except in (h)(1); substituted “in person” for “in writing” in (c)(1)(A)(vii), (c)(2)(B), and (c)(2)(E); inserted “in person at an office of the law enforcement agency having jurisdiction” throughout (g); redesignated former (g)(2) as (g)(2)(A); added (g)(2)(B); deleted former (g)(3)(Q); redesignated former (g)(3)(R)-(T) as (g)(3)(Q)-(S); added present (g)(3)(T); inserted “in person at an office of the law enforcement agency” throughout (h); redesignated former (h)(2) as (h)(2)(A); added (h)(2)(B); deleted former (h)(3)(Q); redesignated former (h)(3)(R)-(T) as (h)(3)(Q)-(S); added present (h)(3)(T); substituted “sexually dangerous person shall report in person” for “person shall provide” in (h)(7); and made a stylistic change.

The 2019 amendment by No. 262 substituted “five (5) calendar days” for “seven (7) calendar days” in (a)(2)(A); rewrote (c)(1) and (c)(2); and substituted “five (5) calendar days” for “ten (10) calendar days” in (f)(2).

The 2019 amendment by No. 587 added (a)(1)(A)(iii).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction”, “Division of Community Correction” for “Department of Community Correction”, and “Division of Arkansas State Police” for ”Department of Arkansas State Police” throughout the section.

U.S. Code. The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, referred to in this section, is codified in part as 42 U.S.C. § 16901 et seq.

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

Research References

ALR.

Validity, Construction, and Application of State Statute Including “Sexually Motivated Offenses” Within Definition of Sex Offense for Purposes of Sentencing or Classification of Defendant as Sex Offender. 30 A.L.R.6th 373.

Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Failure to Register as Required Under Sex Offender or Other Criminal Registration Statutes. 33 A.L.R.6th 91.

Validity, Construction, and Application of State Statutory Requirement that Person Convicted of Sexual Offense in Other Jurisdiction Register or Be Classified as Sexual Offender in Forum State. 34 A.L.R.6th 171.

Validity of State Sex Offender Registration Laws Under Ex Post Facto Prohibitions. 63 A.L.R.6th 351.

Validity, Construction and Application of State Sex Offender Registration Statutes Concerning Level of Classification — General Principles, Evidentiary Matters, and Assistance of Counsel. 64 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Claims for Downward Departure. 66 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Claims Challenging Upward Departure. 67 A.L.R.6th 1.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

Case Notes

Postconviction Relief Denied.

Denial of postconviction relief under Ark. R. Crim. P. 37.1 was proper, because correction of the judgment to reflect the requirements of the Sex Offender Registration Act of 1997 (SORA), § 12-12-901 et seq., did not demonstrate error so fundamental as to render the judgment void and subject to collateral attack pursuant to Ark. R. Crim. P. 37.1; since the petitioner pled guilty to false imprisonment in the first degree of a minor victim, which was a designated crime at the time he was sentenced pursuant to § 12-12-903(13)(A)(i) (r) , he was subject to SORA requirements regardless of whether it was reflected on the original judgment. Justus v. State, 2012 Ark. 91 (2012).

Appellant failed to state a claim for habeas corpus relief, because the trial court was required by subsection (a) of this section to enter an amended judgment ordering him to register as a child or sexual offender when he entered a plea of guilty to false imprisonment, theft of property, and domestic battery committed in the presence of a child. Justus v. Hobbs, 2013 Ark. 149 (2013).

Requirement to Register.

Defendant's conviction in the state of Washington required that he register as a sex offender, therefore, under subdivision (a)(2)(B)(i) of this section, he was also required to register as a sex offender in Arkansas. Hammock v. State, 2009 Ark. App. 414, 322 S.W.3d 22 (2009).

Defendant was properly convicted of knowingly failing to register as a sex offender under 18 U.S.C. § 2250 because he was subject to the registration requirements under Haw. Rev. Stat. § 846E-2(a) upon his Hawaii sex offense conviction and he had a duty to re-register when he re-entered Arkansas pursuant to § 12-12-905 and this section. United States v. Brewer, 628 F.3d 975 (8th Cir. 2010), cert. denied, 565 U.S. 829, 132 S. Ct. 126, 181 L. Ed. 2d 48 (2011).

Evidence was sufficient to support a conviction for failing to register as a sex offender because defendant had been advised of his obligation to register, had been informed on how to register, and had been reporting for over 4 years. Despite defendant's excuses for failing to register after his release from jail, the State was not required to prove that defendant failed to register with any particular culpable mental state. Fleming v. State, 2014 Ark. App. 235 (2014).

Circuit court properly denied defendant's motion to dismiss related to his conviction under § 12-12-904 for failure to comply with sex offender reporting requirements where defendant, who had been convicted of rape in 1993 and was imprisoned before the Sex Offender Registration Act of 1997 was enacted, argued that the 1993 order did not impose a registration requirement, as required by this section. Defendant was found guilty of committing a registerable sex offense, he was in prison on August 1, 1997, which according to § 12-12-905 and judicial interpretation, meant that the registration and verification requirements applied to him, and there was no legislative directive to apply the requirement in this section retroactively. Williams v. State, 2017 Ark. App. 526, 532 S.W.3d 614 (2017).

Sufficient evidence existed to support defendant's conviction for failing to register as a sex offender after he failed to verify his address. Defendant had been convicted of sex offenses requiring him to register in North Carolina, which under § 12-12-903(13)(A)(iii) required him to register and verify his information in Arkansas; further, by signing an acknowledgement form that he was required to register, he had agreed to appear in person on a date certain to verify his information, but failed to do so. Martin v. State, 2018 Ark. App. 143, 545 S.W.3d 785 (2018).

Under § 12-12-903(13)(A)(iii), once the State showed that defendant had been convicted of a sex offense requiring him to register as a sex offender in North Carolina, the State did not also have to show that the North Carolina offenses were similar to offenses requiring registration in Arkansas in order to support a conviction for failure to register; the statute reads in the disjunctive. Martin v. State, 2018 Ark. App. 143, 545 S.W.3d 785 (2018).

Sentence.

Circuit court did not err by denying defendant's motion to dismiss the state's petition to revoke the suspended sentence he received for failure to comply with the reporting requirements of the Sex Offender Registration Act of 1997, § 12-12-901 et seq., because defendant did not receive an illegal sentence; by pleading guilty, defendant admitted that he was required to register as a sex offender under the Act by virtue of his conviction for rape in California, and that defendant could have asserted a defense to the charge did not call into question the circuit court's authority to preside over the criminal matter, to accept his plea of guilty, and to sentence appellant accordingly. Wicks v. State, 2010 Ark. App. 499, 375 S.W.3d 769 (2010).

Strict Liability Offense.

Because the failure to register as a sex offender was a strict liability offense under § 12-12-901 et seq. and the state proved that defendant was required to register but failed to do so, the trial court did not err by denying defendant's motion for a directed verdict. Adkins v. State, 371 Ark. 159, 264 S.W.3d 523 (2007).

12-12-907. Report to Arkansas Crime Information Center — Report to law enforcement agency.

    1. Within three (3) days after registering or updating the registration file of a sex offender, the Division of Correction, the Division of Community Correction, the Department of Human Services, the sentencing court, or the local law enforcement agency having jurisdiction shall report, by electronic means, all information obtained from the sex offender and regarding the sex offender to the Arkansas Crime Information Center.
    2. The center shall immediately enter the information into its record system for maintenance in a central registry and notify the local law enforcement agency having jurisdiction.
    3. The center will share information with the National Sex Offender Public Website.
      1. No later than five (5) calendar days after release from incarceration or after the date of sentencing, a sex offender shall report in person to the local law enforcement agency having jurisdiction and update the information in the registration file.
      2. If the sex offender is not already registered, the local law enforcement agency having jurisdiction shall register the sex offender in accordance with this subchapter.
    1. Within three (3) days after registering a sex offender or receiving updated registry information on a sex offender, the local law enforcement agency having jurisdiction shall report, by electronic means, all information obtained from the sex offender to the center.
    2. The local law enforcement agency having jurisdiction shall verify the address of a sexually dangerous person on a quarterly basis and the address of all other sex offenders on a semiannual basis.
    3. The center shall have access to the offender tracking systems of the Division of Correction and the Division of Community Correction to confirm the location of registrants.

History. Acts 1997, No. 989, § 6; 1999, No. 1353, § 5; 2001, No. 1743, § 6; 2013, No. 505, § 8; 2013, No. 508, § 9; 2015, No. 358, § 8; 2017, No. 916, § 4; 2019, No. 262, §§ 4-6; 2019, No. 910, §§ 712, 713.

Amendments. The 2013 amendment by No. 505 substituted “a sexually dangerous person” for “sexually violent predators” in (b)(3).

The 2013 amendment by No. 508 substituted “National Sex Offender Public Registry” for “National Sex Offender Registry” in (a)(3).

The 2015 amendment substituted “local law enforcement agency having jurisdiction” for “center” in (b)(3).

The 2017 amendment inserted “in person” in (b)(1)(A).

The 2019 amendment by No. 262 deleted “written or” preceding “electronic” in (a)(1) and (b)(2); and substituted “five (5) calendar days” for “ten (10) days” in (b)(1)(A).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a)(1) and (b)(4).

Case Notes

Failure to Report Found.

Circuit court did not err in finding that defendant violated the terms and conditions of his suspended imposition of sentence by committing the new offense of failing to register as a sex offender after he was released from incarceration; although defendant objected to the Arkansas Crime Information Center documents when the documents were introduced, he did not raise the Confrontation Clause basis for objection until after the evidence had been introduced and the State had rested its case and therefore that argument was waived. Allen v. State, 2020 Ark. App. 84, 596 S.W.3d 518 (2020).

Strict Liability Offense.

Because the failure to register as a sex offender was a strict liability offense under § 12-12-901 et seq. and the state proved that defendant was required to register but failed to do so, the trial court did not err by denying defendant's motion for a directed verdict. Adkins v. State, 371 Ark. 159, 264 S.W.3d 523 (2007).

Cited: Fleming v. State, 2014 Ark. App. 235 (2014).

12-12-908. Registration format — Requirements.

  1. The Director of the Arkansas Crime Information Center shall prepare the format for registration as required in subsection (b) of this section and shall provide instructions for registration to each organized full-time municipal police department, county sheriff's office, the Division of Correction, the Division of Community Correction, the Department of Human Services, and the Administrative Office of the Courts.
  2. The registration file required by this subchapter shall include:
    1. The sex offender's full name and all aliases that the sex offender has used or under which the sex offender has been known;
    2. Date of birth;
    3. Sex;
    4. Race;
    5. Height;
    6. Weight;
    7. Hair and eye color;
    8. Address of any temporary residence;
    9. Anticipated address of legal residence;
    10. Driver's license number or state identification number, if available;
    11. Social Security number;
    12. Place of employment, education, or training;
    13. Photograph, if not already obtained;
    14. Fingerprints, if not already obtained;
    15. Date of arrest, arresting agency, offense for which convicted or acquitted, and arrest tracking number for each adjudication of guilt or acquittal on the grounds of mental disease or defect;
    16. A brief description of the crime or crimes for which registration is required;
    17. The registration status of the sex offender as a sexually dangerous person, aggravated sex offender, or sex offender;
    18. A statement in writing signed by the sex offender acknowledging that the sex offender has been advised of the duty to register imposed by this subchapter;
    19. All computers or other devices with internet capability to which the sex offender has access;
    20. All email addresses used by the sex offender;
    21. Any other information that the center deems necessary, including without limitation:
      1. Criminal and corrections records;
      2. Nonprivileged personnel records;
      3. Treatment and abuse registry records; and
      4. Evidentiary genetic markers; and
    22. All social media account information.
  3. Certain information such as Social Security number, driver's license number, employer, email addresses, user names, screen names, or instant message names, information that may lead to identification of the victim, and other similar information may be excluded from the information that is released during the course of notification.

History. Acts 1997, No. 989, § 7; 1999, No. 1353, § 6; 2001, No. 1743, § 7; 2011, No. 143, § 1[3]; 2013, No. 505, § 9; 2017, No. 916, § 5; 2019, No. 910, § 714.

A.C.R.C. Notes. As enacted by Acts 1997, No. 989, § 7, subsection (a) began:

“Within sixty (60) days after August 1, 1997…”

As enacted, Acts 2011, No. 143, contained two sections designated as § 1.

Amendments. The 2011 amendment inserted (b)(19) through (21) and redesignated the remaining subdivisions accordingly; and, in (c), inserted “email addresses, user names, screen names, or instant message names” and substituted “other similar information” for “the like”.

The 2013 amendment substituted “dangerous person” for “violent predator” in (b)(17).

The 2017 amendment deleted former (b)(21); redesignated former (b)(22) as (b)(21); and added present (b)(22).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a).

12-12-909. Verification form — Change of address.

    1. A sex offender required to register under this subchapter shall verify registration in person every six (6) months after the sex offender's initial registration date during the period of time in which the sex offender is required to register.
        1. The verification shall be done in person at a local law enforcement agency having jurisdiction at which time the sex offender shall sign and date a Sex Offender Acknowledgment Form and a law enforcement officer shall also witness and sign the Sex Offender Acknowledgment Form.
        2. The Sex Offender Acknowledgment Form shall state the date of verification as well as a date that the sex offender is required to return in person to a specific local law enforcement agency having jurisdiction to verify his or her address.
      1. The Sex Offender Acknowledgement Form shall be uniform and created by the Arkansas Crime Information Center.
      2. The local law enforcement agency having jurisdiction shall file the verification of registration electronically with the center through a system provided by the center.
    2. If the sex offender changes his or her address without notice, notification shall be sent to law enforcement and supervising parole or probation authorities, and notice may be posted on the internet until proper reporting is again established or the sex offender is incarcerated.
    3. Subdivision (a)(1) of this section applies to a sex offender required to register as a sexually dangerous person, except that the sexually dangerous person shall verify the registration in person every ninety (90) days after the date of the initial release or commencement of parole.
    4. Subdivision (a)(1) of this section applies to a sex offender required to register under this subchapter who claims to be homeless except that a sex offender claiming to be homeless shall verify the registration in person every thirty (30) days during the period of time in which the sex offender is required to register under this subchapter and claims to be homeless.
      1. Before a change of address within the state, a sex offender shall report the change of address to the local law enforcement agency having jurisdiction in person no later than five (5) calendar days before the sex offender establishes residency or is temporarily domiciled at the new address.
      2. The sex offender shall report to the local law enforcement agency having jurisdiction of the new address in person within five (5) calendar days after relocating to the new address.
      3. Upon receipt of a report of a change of address as described in subdivision (b)(1)(A) of this section, the local law enforcement agency having jurisdiction shall report the change of address to the center.
      4. Other than a change of address as provided in subdivision (b)(1)(A) of this section, a sex offender shall report a change of any other information required to be reported at registration under § 12-12-908 or required to be reported at the time of verification under § 12-12-906 to the local law enforcement agency having jurisdiction in person within five (5) calendar days of the change.
    1. When a change of address within the state is reported to the center, the center shall immediately report the change of address to the local law enforcement agency having jurisdiction where the sex offender expects to reside.
    1. Before a change of address to another state, a sex offender shall register the new address with the local law enforcement agency having jurisdiction in person and with a designated law enforcement agency in the state to which the sex offender moves in person not later than five (5) calendar days before the sex offender establishes residency or is temporarily domiciled in the new state if the new state has a registration requirement.
    2. When a change of address to another state is reported to the center, the center shall immediately notify the law enforcement agency with which the sex offender must register in the new state if the new state has a registration requirement.
  1. The center shall require a sex offender to report any change of information through the local law enforcement agency having jurisdiction.

History. Acts 1997, No. 989, § 8; 2001, No. 1743, § 8; 2007, No. 394, § 6; 2011, No. 64, § 1; 2013, No. 505, § 10; 2015, No. 358, § 9; 2017, No. 916, § 6; 2019, No. 262, §§ 7-10.

Amendments. The 2007 amendment inserted “by certified mail” in (a)(1)(A)(i).

The 2011 amendment rewrote (a); added (b)(1)(B) (now (b)(1)(C)); substituted “local law enforcement having jurisdiction” for “the center” in (b)(1)(A); and, in (c)(1), substituted “sex offender” for “person” and “the sex offender” for “such person”.

The 2013 amendment substituted “dangerous person” for “violent predator” in (a)(5).

The 2015 amendment added (a)(6); inserted present (b)(1)(B); redesignated former (b)(1)(B) as (b)(1)(C); added (b)(1)(D); substituted “local law enforcement agency having jurisdiction” for “center” in (c)(1); and, in (d), substituted “shall” for “may”, “any” for “a”, and “information” for “address”.

The 2017 amendment substituted “sex offender” for “person” and “person’s” throughout (a); in (a)(1), substituted “under this subchapter” for “as a sex offender” and inserted “in person”; in (a)(2)(A)(i), substituted “and” for “in which” preceding “a law enforcement officer” and inserted “the Sex Offender Acknowledgment Form”; deleted “certain” following “date” in (a)(2)(A)(ii); inserted “in person” in (a)(3)(D), (a)(5), and (a)(6); inserted the second occurrence of “sexually dangerous” in (a)(5); in (a)(6), substituted “under this subchapter” for “as a sex offender” twice and deleted “a person required to register as” following “homeless except that”; and inserted “in person” throughout (b) and (c).

The 2019 amendment added “through a system provided by the center” in (a)(2)(C); deleted former (a)(3) through (a)(6) and redesignated the remaining subdivisions accordingly; deleted “or fails to return the verification form if he or she is allowed to do so by mail” following “without notice” in (a)(3); substituted “five (5) calendar days” for “ten (10) days” in (b)(1)(A), (b)(1)(D), and (c)(1); substituted “five (5) calendar days” for “three (3) days” in (b)(1)(B); and substituted “residency” for “residence” in (c)(1).

Case Notes

Construction with Other Law.

This section requires sex offenders to report changes in employment 10 days before they occur and § 12-12-904 provides sex offenders with an affirmative defense if they notify authorities no later than five days after changing employment; reading the two statutes together makes it clear that a defendant must notify authorities 10 days prior to changing employment, absent an affirmative defense, and since the loss of employment constitutes a change, §§ 12-12-904 and 12-12-903 do not allow a 30-day grace period for reporting a change in employment. Mashburn v. State, 87 Ark. App. 89, 189 S.W.3d 73 (2004).

Cited: Fleming v. State, 2014 Ark. App. 235 (2014).

12-12-910. Fine.

  1. The sentencing court shall assess at the time of sentencing a mandatory fine of two hundred fifty dollars ($250) on any person who is required to register under this subchapter.
    1. A person who relocates to this state and was convicted of an offense in another state that requires registration in this state shall pay a fee of two hundred fifty dollars ($250) within ninety (90) days from the date of registration.
      1. A person who fails to pay the fee required under subdivision (b)(1) of this section upon conviction is guilty of a Class A misdemeanor.
      2. The person required to register has an affirmative defense to failure to pay a fee if he or she shows that his or her failure to pay the fee was not attributable to a:
        1. Purposeful refusal to obey the sentence of the court; or
        2. Failure on the defendant's part to make a good faith effort to obtain the funds required for payment.
    1. The fine provided in subsection (a) of this section and collected in circuit court, district court, or city court shall be remitted by the tenth day of each month to the Administration of Justice Funds Section of the Office of Administrative Services of the Department of Finance and Administration on a form provided by that office for deposit into the Sex and Child Offenders Registration Fund as established by § 12-12-911.
    2. The fee provided in subsection (b) of this section shall be collected by the law enforcement agency having jurisdiction over the person's sex offender verification and shall be remitted by the tenth day of each month to the Administration of Justice Funds Section of the Office of Administrative Services of the Department of Finance and Administration on a form provided by that office for deposit into the Sex and Child Offenders Registration Fund as established by § 12-12-911.

History. Acts 1997, No. 989, § 9; 2003, No. 1765, § 4; 2011, No. 812, § 1; 2013, No. 42, § 1.

Amendments. The 2011 amendment deleted “Unless finding that undue hardship would result” at the beginning of (a).

The 2013 amendment inserted present (b) and redesignated former (b) as (c)(1); and added (c)(2).

12-12-911. Sex and Child Offenders Registration Fund.

  1. There is established on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State a fund to be known as the “Sex and Child Offenders Registration Fund”.
    1. This fund shall consist of special revenues collected pursuant to § 12-12-910, there to be used equally by the Arkansas Crime Information Center and the Division of Correction for the administration of this subchapter.
    2. Any unexpended balance of this fund shall be carried forward and made available for the same purpose.

History. Acts 1997, No. 989, § 10; 1999, No. 1353, § 7; 2003 (2nd Ex. Sess.), No. 21, § 5; 2019, No. 910, § 715.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (b)(1).

12-12-912. Arrests for violations.

  1. In order for a sex offender to be charged with the commission of a violation of this subchapter so that an arrest warrant may be issued, the local law enforcement agency having jurisdiction shall notify the prosecutor when the local law enforcement agency having jurisdiction has reasonable grounds for believing that a sex offender is not registered, has not reported a change of address or change of any other information required to be provided by the sex offender, or has not verified the sex offender's address in violation of this subchapter.
  2. The address of a sex offender as listed in the sex offender's registration file shall determine which local law enforcement agency has jurisdiction.
  3. A law enforcement officer shall arrest a sex offender when a warrant has been issued for the sex offender's arrest, the law enforcement officer has probable cause to believe that a sex offender has committed an offense under this subchapter, or the law enforcement officer has reasonable grounds for believing that a sex offender is not registered or has not reported a change of address or change of any other information required to be provided by the sex offender in violation of this subchapter.

History. Acts 1997, No. 989, § 12; 2001, No. 1743, § 9; 2015, No. 358, § 10; 2017, No. 916, § 7.

Amendments. The 2015 amendment, in (a), substituted “may” for “shall” preceding “be issued”, deleted “it shall be the duty of” preceding “the local law”, substituted “shall” for “to” preceding “notify”, and inserted “or change of any other information required to be provided by the sex offender”; and inserted “or change of any other information required to be provided by the sex offender” in (c).

The 2017 amendment, in (c), inserted “the law enforcement officer has probably cause to believe that a sex offender has committed an offense under this subchapter” and “law enforcement” following “or the”.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

12-12-913. Disclosure.

    1. Registration records maintained pursuant to this subchapter shall be open to any criminal justice agency in this state, the United States, or any other state.
    2. Registration records may also be open to government agencies authorized by law to conduct confidential background checks.
    3. Registration records shall be open to the Division of Medical Services of the Department of Human Services for Medicaid provider applicants under § 12-12-927.
  1. In accordance with guidelines promulgated by the Sex Offender Assessment Committee, local law enforcement agencies having jurisdiction shall disclose relevant and necessary information regarding sex offenders to the public when the disclosure of such information is necessary for public protection.
      1. The Sex Offender Assessment Committee shall promulgate guidelines and procedures for the disclosure of relevant and necessary information regarding sex offenders to the public when the release of the information is necessary for public protection.
      2. In developing the guidelines and procedures, the Sex Offender Assessment Committee shall consult with persons who, by experience or training, have a personal interest or professional expertise in law enforcement, crime prevention, victim advocacy, criminology, psychology, parole, public education, and community relations.
      1. The guidelines and procedures shall identify factors relevant to a sex offender's future dangerousness and likelihood of reoffense or threat to the community.
      2. The guidelines and procedures shall also address the extent of the information to be disclosed and the scope of the community to whom disclosure shall be made as these factors relate to the:
        1. Level of the sex offender's dangerousness;
        2. Sex offender's pattern of offending behavior; and
        3. Need of community members for information to enhance their individual and collective safety.
    1. The Sex Offender Assessment Committee shall submit the proposed guidelines and procedures to the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor for their review and shall report to the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor every six (6) months on the implementation of this section.
    1. A local law enforcement agency having jurisdiction that decides to disclose information pursuant to this section shall make a good faith effort to notify the public and residents at least fourteen (14) days before a sex offender is released or placed into the community.
    2. If a change occurs in a sex offender's release plan, this notification provision shall not require an extension of the release date.
    3. In conjunction with the notice provided under § 12-12-914, the Division of Correction and the Department of Human Services shall make available to a local law enforcement agency having jurisdiction all information that the Division of Correction and the Department of Human Services have concerning the sex offender, including information on risk factors in the sex offender's history.
    1. A local law enforcement agency having jurisdiction that decides to disclose information under this section shall make a good faith effort to conceal the identity of the victim or victims of the sex offender's offense.
    2. Except as provided in subsection (j) of this section, information under this section is not subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.
  2. A local law enforcement agency having jurisdiction may continue to disclose information on a sex offender under this section for as long as the sex offender is required to be registered under this subchapter.
    1. The State Board of Education and the Career Education and Workforce Development Board shall promulgate guidelines for the disclosure to students and parents of information regarding a sex offender when such information is released to a local school district or institution of vocational training by a local law enforcement agency having jurisdiction.
    2. The Arkansas Higher Education Coordinating Board shall promulgate guidelines for the disclosure to students of information regarding a sex offender when information regarding a sex offender is released to an institution of higher education by a local law enforcement agency having jurisdiction.
    3. In accordance with guidelines promulgated by the State Board of Education, the board of directors of a local school district or institution of vocational training shall adopt a written policy regarding the distribution to students and parents of information regarding a sex offender.
    4. In accordance with guidelines promulgated by the Arkansas Higher Education Coordinating Board, the board of directors of an institution of higher education shall adopt a written policy regarding the distribution to students of information regarding a sex offender.
  3. Nothing in this section shall prevent a law enforcement officer from notifying members of the public about a person who may pose a danger to the public for a reason that is not enumerated in this subchapter.
  4. The medical records or treatment evaluations of a sex offender or sexually dangerous person are not subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.
      1. The following information concerning a sex offender registered under this subchapter who is classified as a Level 3 or Level 4 offender by the Community Notification Assessment shall be made public:
        1. The sex offender's complete name, as well as any alias;
        2. The sex offender's date of birth;
        3. Any sex offense to which the sex offender has pleaded guilty or nolo contendere or of which the sex offender has been found guilty by a court of competent jurisdiction;
        4. The street name and block number, county, city, and zip code where the sex offender resides;
        5. The sex offender's race and gender;
        6. The date of the last address verification of the sex offender provided to the Arkansas Crime Information Center;
        7. The most recent photograph of the sex offender that has been submitted to the center;
        8. The sex offender's parole or probation office;
        9. The street name and block number, county, city, and zip code where the sex offender is employed;
        10. Any institution of higher education in which the sex offender is enrolled;
        11. The vehicle identification number and license plate number of any vehicle the sex offender owns or operates; and
        12. A physical description of the sex offender.
      2. If a sex offender registered under this subchapter was eighteen (18) years of age or older at the time of the commission of the sex offense that required registration under this subchapter and the victim of the sex offense was fourteen (14) years of age or younger and the sex offender is classified as a Level 2 offender by the Community Notification Assessment, the following information concerning the registered sex offender shall be made public:
        1. The sex offender's complete name, as well as any alias;
        2. The sex offender's date of birth;
        3. Any sex offense to which the sex offender has pleaded guilty or nolo contendere or of which the sex offender has been found guilty by a court of competent jurisdiction;
        4. The street name and block number, county, city, and zip code where the sex offender resides;
        5. The sex offender's race and gender;
        6. The date of the last address verification of the sex offender provided to the center;
        7. The most recent photograph of the sex offender that has been submitted to the center;
        8. The sex offender's parole or probation office;
        9. The street name and block number, county, city, and zip code where the sex offender is employed;
        10. Any institution of higher education in which the sex offender is enrolled;
        11. The vehicle identification number and license plate number of any vehicle the sex offender owns or operates; and
        12. A physical description of the sex offender.
      3. The center shall prepare and place the information described in subdivisions (j)(1)(A) and (B) of this section on the internet home page of the State of Arkansas.
    1. The center may promulgate any rules necessary to implement and administer this subsection.
  5. This subchapter shall not be interpreted to prohibit the posting on the internet or by other appropriate means of offender fact sheets or the physical description of the sex offender for those sex offenders who are determined to be:
    1. High-risk or sexually dangerous persons, risk Level 3 and Level 4; or
    2. In noncompliance with the requirements of registration under rules promulgated by the Sex Offender Assessment Committee.

History. Acts 1997, No. 989, § 13; 1999, No. 1353, § 8; 2001, No. 1743, § 10; 2003, No. 330, §§ 1, 2; 2003 (2nd Ex. Sess.), No. 21, § 6; 2005, No. 1962, § 35; 2007, No. 147, § 1; 2007, No. 394, § 7; 2009, No. 165, § 7; 2013, No. 505, §§ 11–14; 2013, No. 508, §§ 10, 11; 2013, No. 1504, § 1; 2017, No. 916, §§ 8, 9; 2019, No. 315, § 864; 2019, No. 910, § 716.

A.C.R.C. Notes. As enacted by Acts 2003, No. 330, § 2, subsection (j) began:

“Beginning on September 1, 2003.”

As enacted by Acts 2003, No. 330, § 2, subdivision (j)(1)(B) ended with:

“before January 1, 2004”.

Amendments. The 2005 amendment inserted “for reasons” in (h).

The 2009 amendment deleted (j)(1)(C)(ii).

The 2013 amendment by No. 505 substituted “dangerous person” for “violent predator” in (i); substituted “Community Notification Assessment” for “Sex Offender Screening and Risk Assessment” in (j)(1)(A) and (j)(1)(B); and substituted “dangerous persons” for “violent predators” in (k)(1).

The 2013 amendment by No. 508 added (j)(1)(A)(ix) through (j)(1)(A)(xi) and (j)(1)(B)(ix) through (j)(1)(B)(xi).

The 2013 amendment by No. 1504 added (a)(3).

The 2017 amendment substituted “a sex offender registered under this subchapter” for “a registered sex offender” in the introductory language of (j)(1)(A) and the introductory language of (j)(1)(B); added (j)(1)(A)(xii); deleted “registered” preceding “sex offender” and “sex offender's” in the introductory language of (j)(1)(B) and throughout (j)(1)(B)(i) through (j)(1)(B)(viii); added (j)(1)(B)(xii); and, in (k), substituted “This subchapter shall not” for “Nothing in this subchapter shall” and inserted “or the physical description of the sex offender”.

The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (k)(2).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” twice in (d)(3).

Cross References. Registered offender living near school, public park, youth center, or daycare prohibited, § 5-14-128.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Law Enforcement and Emergency Management, Sex Offender Registration, 26 U. Ark. Little Rock L. Rev. 427.

Case Notes

Sufficiency of Evidence.

Under this section and §§ 12-12-917 and 12-12-922, the evidence supported the sex offender's Level 2 assessment where his victim was outside the home and a Level 1 assessment only required notification inside the home and to local law enforcement, which was insufficient; the offender also indicated refusal to participate in sex-offender treatment. Gwaltney v. Sex Offender Assessment Comm., 2009 Ark. App. 668 (2009).

Circuit court's reduction of defendant's sex-offender notification level from Level 2 to Level 1 was reversed, because the agency decision setting notification at a Level 2 was supported by substantial evidence where the victim was outside defendant's home. State Sex Offender Risk Assessment Comm. v. Wallace, 2013 Ark. App. 654 (2013).

Cited: Ark. Dep't of Corr. Sex Offender Screening & Risk Assessment v. Claybaugh, 93 Ark. App. 11, 216 S.W.3d 134 (2005); Burchette v. Sex Offender Screening & Risk Assessment Comm., 374 Ark. 467, 288 S.W.3d 614 (2008); Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6 (2009).

12-12-914. Notice of release.

    1. The Division of Correction shall provide notice by written or electronic means to the Arkansas Crime Information Center of the anticipated release from incarceration in a county or state penal institution of a person serving a sentence for a sex offense.
    2. The Department of Human Services shall provide notice by written or electronic means to the center of the anticipated release from incarceration of a person committed following an acquittal on the grounds of mental disease or defect for a sex offense.
      1. If available, the notice required in subsection (a) of this section shall be provided to the center ninety (90) days before the offender's anticipated release.
      2. However, a good faith effort shall be made to provide the notice at least thirty (30) days before release.
    1. The notice shall include the person's name, identifying factors, offense history, and anticipated future residence.
  1. Upon receipt of notice, the center shall provide notice by written or electronic means to:
    1. The local law enforcement agency having jurisdiction; and
    2. Other state and local law enforcement agencies as appropriate for public safety.
    1. Where possible, victim notification pursuant to this subchapter shall be accomplished by means of the computerized victim notification system established under § 12-12-1201 et seq.
    2. If notification cannot be made throughout the system established under § 12-12-1201 et seq., the Division of Correction shall provide the notification to the victim.

History. Acts 1997, No. 989, § 14; 1999, No. 1353, § 9; 2001, No. 1743, § 11; 2019, No. 910, §§ 717, 718.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a)(1) and (d)(2).

12-12-915. Authority — Rules.

  1. The Division of Correction, the Division of Community Correction, the Department of Human Services, the Administrative Office of the Courts, and the Arkansas Crime Information Center shall promulgate rules to establish procedures for:
    1. Notifying the sex offender of the obligation to register pursuant to this subchapter; and
    2. Registering the sex offender.
    1. The Division of Community Correction shall monitor an adult sex offender under its supervisory authority who is subject to electronic monitoring under § 12-12-923.
    2. The Department of Human Services shall monitor an adult or juvenile sex offender under its supervisory authority who is subject to electronic monitoring under § 12-12-923.
    1. The Division of Community Correction shall promulgate rules to establish procedures for monitoring an adult sex offender under its supervisory authority who is subject to electronic monitoring under § 12-12-923.
    2. The Department of Human Services shall promulgate rules to establish procedures for monitoring an adult or juvenile sex offender under its supervisory authority who is subject to electronic monitoring under § 12-12-923.

History. Acts 1997, No. 989, § 15; 2003 (2nd Ex. Sess.), No. 21, § 7; 2006 (1st Ex. Sess.), No. 4, § 4; 2007, No. 394, § 8; 2019, No. 910, § 719.

Amendments. The 2007 amendment added (b)(1) designation; in (b)(1), deleted “Department of Correction, the” preceding “Department”, substituted “shall” for “and the Department of Health and Human Services may”, substituted “an adult” for “a”, inserted “under its supervisory authority who is”; added (b)(2) and made a minor punctuation change; in (c)(1), substituted “an adult” for “a” and inserted “under its supervisory authority who is”; and rewrote (c)(2).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in the introductory language of (a); and substituted “Division of Community Correction” for “Department of Community Correction” in the introductory language of (a), and in (b)(1) and (c)(1).

12-12-916. Publication and notice of obligation to register.

The Office of Driver Services of the Department of Finance and Administration shall provide notice of the obligation to register pursuant to this subchapter in connection with each driver's license issued pursuant to § 27-16-801 and each identification card issued pursuant to § 27-16-805.

History. Acts 1997, No. 989, § 16.

A.C.R.C. Notes. As enacted by Acts 1997, No. 989, § 16, this section contained a subsection (a) that read:

“The Arkansas Crime Information Center shall cause notice of the obligation to register to be published in a manner reasonably calculated to reach the general public within thirty (30) days after the effective date of this act [August 1, 1997].”

12-12-917. Evaluation protocol — Sexually dangerous persons — Juveniles adjudicated delinquent — Examiners.

    1. The Sex Offender Assessment Committee shall develop an evaluation protocol for preparing reports to assist courts in making determinations whether or not a person adjudicated guilty of a sex offense should be considered a sexually dangerous person for purposes of this subchapter.
    2. The committee shall also establish qualifications for examiners and qualify examiners to prepare reports in accordance with the evaluation protocol.
    1. The committee shall cause an assessment to be conducted on a case-by-case basis of the public risk posed by a sex offender or sexually dangerous person:
      1. Who is required to register under § 12-12-905 after August 1, 1997; and
      2. For whom the Arkansas Crime Information Center has no record of an assessment's being done and a risk level established subsequent to August 1, 1997.
        1. An adult offender convicted of an offense described in 42 U.S.C. § 14071 et seq., as it existed on March 1, 2003, Pub. L. No. 109-248, as it existed on January 1, 2007, or § 12-12-903(13) shall be assessed.
          1. Subject to subdivision (c)(1) of this section, the prosecuting attorney and any law enforcement agency shall furnish the file relating to the offender to Community Notification Assessment at the Division of Correction within thirty (30) days of an offender's adjudication of guilt.
            1. The prosecuting attorney shall make a copy of any relevant records concerning the offender and shall forward the copied relevant records to Community Notification Assessment within thirty (30) days of the adjudication.
            2. The relevant records include, but are not limited to:
              1. Arrest reports;
              2. Incident reports;
              3. Offender statements;
              4. Judgment and disposition forms;
              5. Medical records;
              6. Witness statements; and
              7. Any record considered relevant by the prosecuting attorney.
              8. All psychological evaluations and psychiatric hospital reports;
              9. Sex offender or sexually dangerous person treatment program reports;
              10. Juvenile court records;
              11. Victim impact statements;
              12. Investigation reports to the Child Abuse Hotline, the Division of Children and Family Services of the Department of Human Services, and any entity contracting with the Department of Human Services for investigation or treatment of sexual or physical abuse or domestic violence; and
              13. Statements of medical providers treating victims of sex offenses indicating the extent of injury to the victim.
      1. A sex offender sentenced to life, life without parole, or death shall be assessed only if the sex offender is being considered for release.
    2. A sex offender currently in the state who has not been assessed and classified shall be identified by the center.
      1. If a sex offender fails to appear for assessment, is aggressive, threatening, or disruptive to the point that Community Notification Assessment staff cannot proceed with the assessment process, or voluntarily terminates the assessment process after having been advised of the potential consequences:
        1. The sex offender shall be classified as a risk Level 3 or referred to the Sex Offender Assessment Committee as a risk Level 4; and
        2. The parole or probation officer, if applicable, shall be notified.
      2. A sex offender has immunity for a statement made by him or her in the course of assessment with respect to prior conduct under the immunity provisions of § 16-43-601 et seq.
      3. Assessment personnel shall report ongoing child maltreatment as required under the Child Maltreatment Act, § 12-18-101 et seq.
    1. To the extent permissible and under the procedures established by state rules and federal regulations, public agencies shall provide the committee access to all relevant records and information in the possession of public agencies or any private entity contracting with a public agency relating to the sex offender or sexually dangerous person under review.
    2. The records and information include, but are not limited to:
      1. Police reports;
      2. Statements of probable cause;
      3. Presentence investigations and reports;
      4. Complete judgments and sentences;
      5. Current classification referrals;
      6. Criminal history summaries;
      7. Violation and disciplinary reports;
    1. Records and information obtained under this section shall not be subject to the Freedom of Information Act of 1967, § 25-19-101 et seq., unless otherwise authorized by law.
        1. The sex offender or sexually dangerous person shall have access to records and information generated and maintained by the committee.
        2. These records shall include any reports of the assessment and the tape of the interview but do not include restricted source documents of commercial psychological tests or working notes of staff.
        1. Unless otherwise ordered by a court of competent jurisdiction, records and information generated by other agencies and obtained under this section shall not be available to the sex offender or sexually dangerous person except through the agency or individual having primary custody of the records.
        2. Upon request, the sex offender shall be given a list of the records or information obtained.
      1. If the record or information generated contains the address of a victim or a person who has made a statement adverse to the sex offender or sexually dangerous person, the address shall be redacted and the sex offender or sexually dangerous person shall have access to records and information other than the identity and address.
  1. In classifying the sex offender into a risk level for the purposes of public notification under § 12-12-913, the committee, through its staff, shall review each sex offender or sexually dangerous person under its authority:
    1. Prior to the sex offender's release for confinement in a correctional facility;
    2. Prior to the release of a person who has been committed following an acquittal on the grounds of mental disease or defect;
    3. At the start of a sex offender's suspended imposition of sentence; or
    4. At the start of a sex offender's probation period.
      1. The committee shall issue the offender fact sheet to the local law enforcement agency having jurisdiction.
      2. The offender fact sheet is provided to assist the local law enforcement agency having jurisdiction in its task of community notification.
    1. The committee shall provide the Parole Board with copies of the offender fact sheet on inmates of the Division of Correction.
    2. The committee shall provide the Division of Community Correction with copies of the offender fact sheet on any sex offender under the Division of Community Correction's supervision.
        1. The offender fact sheet shall be prepared on a standard form for ease of transmission and communication.
        2. The offender fact sheet shall be on an internet-based application accessible to law enforcement, state boards, and licensing agencies.
        3. The offender fact sheet of a sexually dangerous person or a sex offender found by the center to be in violation of the registration requirement shall be made available to the general public unless the release of the offender fact sheet, in the opinion of the committee based on a risk assessment, places an innocent individual at risk.
      1. The standard form shall include, but not be limited to:
        1. Registration information as required in § 12-12-908;
        2. Risk level;
        3. Date of deoxyribonucleic acid (DNA) sample;
        4. Psychological factors likely to affect sexual control;
        5. Victim age and gender preference;
        6. Treatment history and recommendations; and
        7. Other relevant information deemed necessary by the committee or by professional staff performing sex offender assessments.
      1. The committee shall ensure that the notice is complete in its entirety.
      2. A law enforcement officer shall notify the center if a sex offender has moved or is otherwise in violation of a registration requirement.
      1. All material used in the assessment shall be kept on file in its original form for one (1) year.
      2. After one (1) year the file may be stored electronically.
    1. In cooperation with the committee, the Division of Correction shall promulgate rules to establish the review process for assessment determinations.
      1. The sex offender or sexually dangerous person may request an administrative review of the assigned risk level under the conditions stated and following the procedures indicated under § 12-12-922.
      2. The sex offender shall be notified of these rights and procedures in the documentation sent with the notification of risk level.
      1. A sex offender or sexually dangerous person may request the committee to reassess the assigned risk level of the sex offender or sexually dangerous person after five (5) years have elapsed since initial risk assessment by the committee and may renew that request one (1) time every five (5) years.
      2. In the request for reassessment, the sex offender or sexually dangerous person shall list the facts and circumstances that demonstrate that the sex offender no longer poses the same degree of risk to the community.
      1. A local law enforcement agency having jurisdiction, the Division of Community Correction, or the Parole Board may request the committee to reassess a sex offender's assigned risk level at any time.
      2. In the request for reassessment, the local law enforcement agency having jurisdiction, the Division of Community Correction, or the Parole Board shall list the facts and circumstances that prompted the requested reassessment.
    1. The committee shall also take into consideration any subsequent criminal act by the sex offender or sexually dangerous person during a reassessment.

History. Acts 1997, No. 989, § 17; 1999, No. 1353, §§ 10, 11; 2001, No. 1743, § 12; 2003 (2nd Ex. Sess.), No. 21, § 8; 2005, No. 1962, §§ 36, 37; 2006 (1st Ex. Sess.), No. 4, § 5; 2007, No. 394, § 9; 2009, No. 758, § 25; 2013, No. 505, § 15; 2019, No. 315, §§ 865, 866; 2019, No. 910, §§ 720-723.

A.C.R.C. Notes. Pursuant to § 1-2-207, this section is set out above as amended by Acts 1999, No. 1353, § 10. This section was also amended by Acts 1999, No. 1353, § 11 to read as follows:

“The Sex Offenders Assessment Committee shall develop an evaluation protocol for preparing reports to assist courts in making determinations whether or not a person adjudicated guilty of a sexually violent offense should be considered a sexually violent predator for purposes of this subchapter. The committee shall also establish qualifications for and qualify examiners to prepare reports in accordance with the evaluation protocol.”

Acts 2009, No. 758, § 29, provided:

“Contingent Effectiveness. This act shall not become effective unless an act of the Eighty-Seventh General Assembly repealing the Arkansas Child Maltreatment Act, § 12-12-501 et seq., and enacting a new Child Maltreatment Act, § 12-18-101 et seq., becomes effective.”

The contingency in Acts 2009, No. 758, § 29, was met by Acts 2009, No. 749.

Amendments. The 2005 amendment, in (b)(4)(A), substituted “state” for “community” and “center” for “Arkansas Crime Information Center”; and, in (b)(4)(B)(ii)(b ), substituted “A sex offender shall have immunity for a statement” for “Statements,” “him or her” for “a sex offender,” and deleted “shall be deemed to have been given use immunity” preceding “under the immunity provisions.”

The 2006 (1st Ex. Sess.) amendment rewrote (b).

The 2009 amendment substituted “Child Maltreatment Act, § 12-18-101 et seq.” for “Arkansas Child Maltreatment Act, § 12-12-501 et seq.” in (b)(4)(C).

The 2013 amendment substituted “dangerous persons” for “violent predators” in the section heading; substituted “dangerous person” for “violent predator” and “Community Notification Assessment” for “Sex Offender Screening and Risk Assessment” throughout the section; substituted “dangerous person or” for “violent predator and” in (f)(4)(A)(iii); rewrote (h)(1)(A); and inserted “or sexually dangerous person” in (h)(1)(B).

The 2019 amendment by 315 inserted “rules” in (c)(1); and deleted “and regulations” following “rules” in (g)(1).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout the section.

Research References

ALR.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Initial Classification Determination. 65 A.L.R.6th 1.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

Case Notes

Authority to Request Reassessment.

Circuit court properly affirmed the Sex Offender Assessment Committee's reassessment of defendant's community-notification status; while the county deputy prosecuting attorney was not authorized to request risk-level reassessment, defendant failed to raise the issue before the Committee. Sarna v. Ark. Dep't of Corr. Sex Offender Comm., 2017 Ark. App. 684, 537 S.W.3d 312 (2017).

Due Process.

Under the flexible Mathews factors, the procedural avenues afforded by the Sex Offender Registration Act, § 12-12-901 et seq., were constitutionally adequate and provided notice to offenders of the risk assessment process and a meaningful opportunity to be heard; the Registration Act provides for an adversarial judicial review of the Sex Offender Assessment Committee's administrative review decision, with the full procedural guarantees set forth in the Arkansas Administrative Procedure Act, and it was unlikely that a right to counsel or to confront witnesses at the initial assessment stage would have appreciably reduced the risk of an erroneous determination. Weems v. Little Rock Police Dep't, 453 F.3d 1010 (8th Cir. 2006), cert. denied, 550 U.S. 917, 127 S. Ct. 2128, 167 L. Ed. 2d 862 (2007).

Regardless of the reason one was required to register as a sex offender, the procedures afforded by the Sex Offender Registration Act, § 12-12-901 et seq., were the same; those procedures comported with procedural due-process requirements. Ark. Dep't of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007).

Alleged sex offender's due process rights under the United States and Arkansas Constitutions were not violated by a determination that he was a Level 3 offender because he had a meaningful opportunity to be heard through a face-to-face interview and review by a sex offender assessment committee. A second face-to-face interview was not required. Burchette v. Sex Offender Screening & Risk Assessment Comm., 374 Ark. 467, 288 S.W.3d 614 (2008).

Substantial Evidence.

Where the Sex Offender Screening and Risk Assessment Committee specifically found that the documents it received pursuant to subsection (c) of this section reflected appellant was convicted of two separate sexual assaults on two separate women, admitted that he had been involved in forced sex acts, could not stand rejection, thought about raping, and said that raping made him feel better, there was substantial evidence to support the Committee's assessment of appellant as a level four offender. The Committee did not improperly base appellant's classification upon his demeanor. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6 (2009).

Under this section and §§ 12-12-913 and 12-12-922, the evidence supported the sex offender's Level 2 assessment where his victim was outside the home and a Level 1 assessment only required notification inside the home and to local law enforcement, which was insufficient; the offender also indicated refusal to participate in sex-offender treatment. Gwaltney v. Sex Offender Assessment Comm., 2009 Ark. App. 668 (2009).

Cited: Ark. Dep't of Corr. Sex Offender Screening & Risk Assessment v. Claybaugh, 93 Ark. App. 11, 216 S.W.3d 134 (2005).

12-12-918. Classification as sexually dangerous person.

    1. In order to classify a person as a sexually dangerous person, a prosecutor may allege on the face of an information that the prosecutor is seeking a determination that the defendant is a sexually dangerous person.
      1. If the defendant is adjudicated guilty, the court shall enter an order directing an examiner qualified by the Sex Offender Assessment Committee to issue a report to the sentencing court that recommends whether or not the defendant should be classified as a sexually dangerous person.
      2. Copies of the report shall be forwarded immediately to the prosecutor and to the defense attorney.
      3. The report shall not be admissible for purposes of sentencing.
    2. After sentencing, the court shall make a determination regarding the defendant's status as a sexually dangerous person.
    1. In order for the examiner qualified by the committee to prepare the report:
      1. The defendant may be sent for evaluation to a facility designated by the Division of Correction; or
      2. The committee may elect to send an examiner to the local or regional detention facility.
    2. The cost of the evaluation shall be paid by the Division of Correction.
    1. Should evidence be found in the course of any assessment conducted by the committee that a defendant appears to meet the criteria for being classified as a sexually dangerous person, the committee shall bring this information to the attention of the prosecutor, who will determine whether to file a petition with the court for the defendant to be classified as a sexually dangerous person.
    2. The sentencing court shall retain jurisdiction to determine whether a defendant is a sexually dangerous person for one (1) year after sentencing or for so long as the defendant remains incarcerated for the sex offense.
    1. The judgment and commitment order should state whether the offense qualifies as an aggravated sex offense.
    2. Should the aggravated sex offense box not be checked on the commitment order, the court will be contacted by the committee and asked to furnish a written determination as to whether the offense qualifies as an aggravated sex offense.

History. Acts 1997, No. 989, § 18; 1999, No. 1353, § 12; 2001, No. 1743, § 13; 2003 (2nd Ex. Sess.), No. 21, § 9; 2013, No. 505, § 16; 2019, No. 910, §§ 724, 725.

Amendments. The 2013 amendment substituted “dangerous person” for “violent predator” throughout the section.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (b)(1)(A) and (b)(2).

Case Notes

Applicability.

Sex Offender Assessment Committee did not exceed its authority in assessing defendant as a Level 4 sex offender where this section had not been enacted at the time of his rape conviction, and thus the court presiding over his conviction in 1992 could not have made a designation under this section. Also, § 12-12-922 alternatively gives the Committee authority to conduct its own assessment as to whether a defendant is a sexually dangerous person. Dillard v. Sex Offender Assessment Comm., 2016 Ark. App. 147, 485 S.W.3d 701 (2016).

Cited: Green v. State, 2013 Ark. App. 63 (2013).

12-12-919. Termination of obligation to register.

  1. Lifetime registration is required for a sex offender who:
    1. Was found to have committed an aggravated sex offense;
    2. Was determined by the court to be or assessed as a Level 4 sexually dangerous person;
    3. Has pleaded guilty or nolo contendere to or been found guilty of a second or subsequent sex offense under a separate case number, not multiple counts on the same charge;
    4. Was convicted of rape by forcible compulsion, § 5-14-103(a)(1), or other substantially similar offense in another jurisdiction; or
    5. Has pleaded guilty or nolo contendere to or been found guilty of failing to comply with registration and reporting requirements under § 12-12-904 three (3) or more times.
        1. (a) Any other sex offender required to register under this subchapter may apply for an order terminating the obligation to register to the sentencing court fifteen (15) years after the date the sex offender first registered in Arkansas.
        2. After fifteen (15) years of having been registered as a sex offender in Arkansas, a sex offender sentenced in another state but permanently residing in Arkansas may apply for an order terminating the obligation to register in the circuit court of the county in which the sex offender resides or has last resided within this state.
        1. The court shall hold a hearing on the application at which the applicant and any interested persons may present witnesses and other evidence.
        2. No less than twenty (20) days before the date of the hearing on the application, a copy of the application for termination of the obligation to register shall be served on:
          1. The prosecutor of the county in which the adjudication of guilt triggering registration was obtained if the sex offender was convicted in this state; or
          2. The prosecutor of the county where a sex offender resides if the sex offender was convicted in another state.
        3. A copy also shall be served to the Arkansas Sex Offender Registry in the Arkansas Crime Information Center and to Community Notification Assessment at least twenty (20) days before the hearing.
      1. If the sex offender has not been assessed in the five (5) years before making a request to terminate the obligation to register under this section, the prosecuting attorney may request a reassessment and an order terminating the obligation to register shall not be granted without a reassessment.
    1. The court shall grant an order terminating the obligation to register upon proof by a preponderance of the evidence that:
      1. The applicant, for a period of fifteen (15) years after the applicant was released from prison or other institution or placed on parole, supervised release, or probation has not been adjudicated guilty of a sex offense; and
      2. The applicant is not likely to pose a threat to the safety of others.
      1. A sex offender required to register as a result of a conviction for permitting the physical abuse of a minor under § 5-27-221 may apply for termination of the obligation to register at any time after July 22, 2015.
      2. The court shall grant an order under this subdivision (b)(3) terminating the obligation to register upon proof by a preponderance of the evidence that the facts underlying the offense for which the sex offender is required to register no longer support a requirement to register.
  2. If a court denies a petition to terminate the obligation to register under this section, the sex offender may not file a new petition to terminate the obligation to register under this section before three (3) years from the date the order denying the previous petition was filed.
  3. The center shall remove a sex offender from the registry upon receipt by the center of adequate proof that the sex offender has died.

(b) If the sex offender was incarcerated in a correctional facility, the date the sex offender first registered in Arkansas is the date the sex offender registered upon his or her release from the correctional facility.

History. Acts 1997, No. 989, § 19; 1999, No. 1353, § 13; 2001, No. 1743, § 14; 2003 (2nd Ex. Sess.), No. 21, § 10; 2013, No. 172, § 4; 2013, No. 505, § 17; 2013, No. 1248, § 1; 2015, No. 358, § 11; 2015, No. 1285, § 2; 2017, No. 382, § 1; 2017, No. 538, § 1; 2019, No. 800, § 1.

Amendments. The 2013 amendment by No. 172 substituted “apply” for “make application” and “make an application” in (b)(1)(A)(i) and (b)(1)(A)(ii); and rewrote (b)(1)(B)(ii).

The 2013 amendment by No. 505 substituted “dangerous person” for “violent predator” in (a)(2).

The 2013 amendment by No. 1248 inserted “who” at the end of the introductory language of (a); substituted “Was found” for “Found” in (a)(1); in (a)(2), substituted “Was determined” for “Determined” and “to be or assessed as a Level 4 sexually” for “to be a sexually”; and substituted “Has pleaded guilty or nolo contendere to or been found guilty of” for “Found to have been adjudicated guilty of” in (a)(3).

The 2015 amendment by No. 358 added (c).

The 2015 amendment by No. 1285 added (b)(3).

The 2017 amendment by No. 382 added (d).

The 2017 amendment by No. 538 added (a)(4).

The 2019 amendment added (a)(5); rewrote (b)(1)(A); added (b)(1)(C); and substituted “three (3) years” for “one (1) year” in (c).

Case Notes

Constitutionality.

Subdivision (a)(3) of this section, requiring lifetime registration as applied to petitioner, did not violate his equal protection rights as there was a rational basis for treating sex offenders convicted under more than one case number differently than those convicted under a single case number. Individuals convicted of a subsequent sex offense under a second case number have committed more than one sex crime, and the General Assembly could have concluded that those individuals are more likely to reoffend; and the underinclusiveness of a particular provision does not make the provision unconstitutional. Ray v. State, 2017 Ark. App. 574, 533 S.W.3d 587 (2017).

There was no merit to petitioner's ex post facto claims where he offered no explanation as to how the 2001 amendment to this section, which added the lifetime registration provisions, rendered the registration requirement punitive in nature. Ray v. State, 2017 Ark. App. 574, 533 S.W.3d 587 (2017).

That the prosecutor or court may chose to combine multiple charges under one case number for some sex offenders and not others does not render subdivision (a)(3) of this section unconstitutional. Wyly v. State, 2018 Ark. App. 505, 559 S.W.3d 326 (2018).

Subdivision (a)(3) of this section, as applied to appellant, did not violate due process. While appellant contended that application of the 2001 statutory provision requiring lifetime registration to the guilty pleas he made on the same day in 2000 to two offenses with different case numbers removed his right to petition the court to end his registration requirement, the 2001 provision did not impose a new legal consequence that violated due process. The registration requirement was in effect when appellant was convicted, and removal of the requirement was never guaranteed. Wyly v. State, 2018 Ark. App. 505, 559 S.W.3d 326 (2018).

Construction.

There is no requirement in this section that an applicant admit guilt. State v. Khabeer, 2014 Ark. 107 (2014).

Evidence.

Circuit court did not clearly err under subdivision (b)(2)(B) of this section in terminating appellee's obligation to register as a sex offender on the ground that he was not likely to pose a threat to the safety of others because he had been released from prison for over 15 years and he had not committed a sexual offense in the past 15 years. State v. Miller, 2013 Ark. 329 (2013).

Circuit court, which granted appellee's motion under this section to terminate his obligation to register as a sex offender, did not clearly err in concluding that appellee had proved by a preponderance of the evidence that appellee was not likely to pose a threat to the safety of others. State v. Khabeer, 2014 Ark. 107 (2014).

Petition to terminate defendant's obligation to report as a sex offender in Arkansas was denied because he failed to prove that he was no longer a safety threat; an offender profile report showed that defendant had engaged in sexual conduct with his daughter for many years and was good at hiding things. Moreover, he had a lengthy history of inappropriate sexual behaviors with a strong addictive element, he went back to engaging in certain behaviors after his release from prison, and he had a “true” finding regarding allegations of molesting his granddaughter in 2008. Stow v. State, 2016 Ark. App. 84, 482 S.W.3d 752 (2016).

Lifetime Registration.

Subdivision (a)(3) of this section, enacted in 2001, required lifetime sex offender registration for appellant, who had pled guilty on the same day in 2000 to a second sex offense involving a second victim under a separate case number. The Court of Appeals was not convinced that the statutory provision was meant to apply only to an offender who committed a second offense after having been convicted of a first offense; instead, the application of the provision to appellant fulfilled the legislative intent to protect the public from sex offenders who have been deemed more likely to reoffend because they have committed more than one offense and were prosecuted under different case numbers. Wyly v. State, 2018 Ark. App. 505, 559 S.W.3d 326 (2018).

Registration Requirements.

As the Arkansas Code Revision Commission substantively altered Acts 2003 (2nd Ex. Sess.), No. 21 in its codification of subdivision (b)(2)(A) of this section, in a manner that changed its meaning, a probationer may apply to terminate his or her obligation to register as a sex offender 15 years after being placed on probation. Further, the probationer is entitled to relief upon a showing by a preponderance of the evidence that he or she has not been adjudicated of a sex offense during that 15-year period and he or she is not likely to pose a threat to the safety of others. Harrell v. State, 2012 Ark. 421 (2012).

Defendant's second-degree sexual abuse conviction under former § 5-14-109 did not require defendant's lifetime sex offender registration; the crime was not substantially equivalent to aggravated sexual abuse under 18 U.S.C. § 2241, since second-degree sexual abuse did not require the use of force and required only sexual contact, while aggravated sexual abuse under the federal statute required a sexual act, as defined in 18 U.S.C. § 2246(2)(D). Myers v. State, 2017 Ark. App. 617, 535 S.W.3d 301 (2017).

12-12-920. Immunity from civil liability.

  1. Public officials, public employees, and public agencies are immune from civil liability for good faith conduct under this subchapter.
  2. Nothing in this subchapter shall be deemed to impose any liability upon or to give rise to a cause of action against any public official, public employee, or public agency for any discretionary decision to release relevant and necessary information, unless it is shown that the public official, public employee, or public agency acted with gross negligence or in bad faith.
  3. The provisions of this section shall also apply to persons or organizations assisting a public official, public employee, or public agency in performing official duties upon a written request to assist them by the public official, public employee, or public agency.

History. Acts 1997, No. 989, § 20; 1999, No. 1353, § 14.

12-12-921. Sex Offender Assessment Committee.

  1. The Sex Offender Assessment Committee shall consist of nine (9) members as follows:
    1. The Governor shall appoint, subject to confirmation by the Senate:
      1. One (1) member who is a criminal defense attorney;
      2. One (1) member who is a prosecuting attorney;
      3. One (1) member who is a licensed mental health professional and has demonstrated expertise in the treatment of sex offenders;
      4. One (1) member who is a victims' rights advocate;
      5. One (1) member who is a law enforcement officer; and
      6. One (1) member with expertise in juvenile justice or treatment;
    2. The Director of the Department of Correction or the director's designee;
    3. The Director of the Department of Community Correction or the director's designee; and
    4. The Director of the Arkansas Crime Information Center or the director's designee.
    1. Members appointed by the Governor shall be for four-year staggered terms to be assigned by lot at the first meeting.
    2. If a vacancy of one (1) of the members appointed by the Governor occurs for any reason other than expiration of a regular term, the vacancy shall be filled for the unexpired portion of the term by appointment of the Governor.
    3. A member of the committee appointed by the Governor may be removed by the Governor for neglect of duty or malfeasance in office.
    4. A member shall be considered active unless his or her resignation has been submitted or requested by the Governor or he or she has more than two (2) unexcused absences from meetings in a twelve-month period and this fact has been reported to the Governor's office.
  2. The members of the committee shall elect annually a chair and a vice chair from their membership.
  3. The Director of the Department of Correction or the director's designee shall serve as the executive secretary.
    1. A majority of the members of the committee shall constitute a quorum for the transaction of business.
    2. The committee shall meet at least quarterly.
    3. A special meeting may be called by the chair or as provided by the rules adopted by the committee.
  4. The executive secretary of the committee shall keep full and true records of all committee proceedings and preserve all books, documents, and papers relating to the business of the committee.
  5. The meetings shall be open to the public except when the committee is discussing, deliberating, or voting on an individual case.
    1. The committee shall report in writing to the Governor and to the Legislative Council by July 31 of each year.
    2. The report shall contain:
      1. A summary of the proceedings of the committee during the preceding fiscal year;
      2. A detailed and itemized statement of all revenue and of all expenditures made by or on behalf of the committee;
      3. Other information deemed necessary or useful; and
      4. Any additional information that may be requested by the Governor and the Legislative Council.

History. Acts 2003 (2nd Ex. Sess.), No. 21, § 11; 2005, No. 1962, § 38.

Amendments. The 2005 amendment inserted “criminal” preceding “defense attorney” in (a)(1)(A).

12-12-922. Alternative procedure for sexually dangerous person evaluations — Administrative review of assigned risk level.

    1. The alternative procedure under this section may be used for sexually dangerous person evaluations if information that was not available to the court at the time of trial emerges in the course of a sex offender evaluation.
      1. Examiners qualified by the Sex Offender Assessment Committee shall include in the assessment of any sex offender convicted of a sex offense a review as to whether the frequency, repetition over time, severity of trauma to the victim, or established pattern of predatory behaviors suggests that the sex offender is likely to engage in future predatory sexual offenses.
      2. If a mental abnormality or personality disorder is suspected, a licensed psychologist or psychiatrist qualified by the committee may conduct further assessment to determine the presence or absence of a mental abnormality or personality disorder.
      3. If further assessment under subdivision (a)(2)(B) of this section is conducted by a licensed psychologist or psychiatrist qualified by the committee, the report of the further assessment shall be presented to the committee.
      1. A sex offender may challenge an assigned risk level by submitting a written request for an administrative review.
      2. As part of the request for an administrative review, the sex offender may request in writing copies of all documents generated by the examiners, a listing by document name and source of all documents that may be available from other agencies having custody of those documents, and a copy of the tape of the interview.
    1. The request for an administrative review shall be made in accordance with instructions provided on the risk level notification and within fifteen (15) days of receipt of the advisement of risk level notification to the sex offender by certified mail and first-class mail.
      1. The basis of the request for administrative review shall be clearly stated and any documentary evidence attached.
      2. The basis for administrative review is:
        1. The rules and procedures were not properly followed in reaching a decision on the risk level of the sex offender;
        2. Documents or information not available at the time of assessment have a bearing on the risk that the sex offender poses to the community; or
        3. The assessment is not supported by substantial evidence.
    2. Unless a request for an administrative review is received by the committee within twenty (20) days of postmark of the advisement of risk level notification sent to the sex offender sent by certified mail and first-class mail or delivered by personal service, an offender fact sheet shall be made available to law enforcement so that community notification may commence. Receipt of the advisement of risk level notification will be presumed within five (5) days of postmark of the advisement of risk level notification by both certified mail and first-class mail.
    3. If a request for an administrative review is received by the committee, the local law enforcement agency having jurisdiction may make community notification at the level upon which administrative review has been requested.
      1. A member of the committee shall conduct the review and respond within thirty (30) days of receiving a request for an administrative review.
      2. If additional time is needed to obtain facts, the committee shall notify the sex offender requesting the review.
        1. The findings of the administrative review shall be sent to the sex offender by certified mail. Community notification at the risk level assigned in the administrative review shall commence five (5) calendar days after the postmark of the advisement of the findings of the administrative review.
        2. Upon receipt of the findings, the sex offender has thirty (30) days to file a petition under the Arkansas Administrative Procedure Act, § 25-15-201 et seq., for judicial review in the Pulaski County Circuit Court or in the circuit court of the county where the sex offender resides or does business.
      1. The circuit court shall refuse to hear any appeal of an assigned risk level by a sex offender unless the circuit court finds that the administrative remedies available to the sex offender under this subsection have been exhausted.
        1. A copy of the petition for judicial review shall be served on the executive secretary of the committee in accordance with the Arkansas Rules of Civil Procedure.
        2. When the petition for judicial review has been served on the executive secretary of the committee, a record of the committee's findings and copies of all records in its possession shall be furnished by the committee to the circuit court within thirty (30) days of service.
      1. The committee may ask the circuit court to seal statements of victims, medical records, and other items that could place third parties at risk of harm.
    4. A ruling by the circuit court on the petition for judicial review is considered a final judgment.

History. Acts 2003 (2nd Ex. Sess.), No. 21, § 12; 2005, No. 1962, § 39; 2006 (1st Ex. Sess.), No. 4, § 6; 2007, No. 394, § 10; 2011, No. 286, § 1; 2013, No. 505, §§ 18, 19; 2013, No. 1129, § 4.

Amendments. The 2005 amendment made a stylistic change in (a)(1); deleted “After the effective date of this section” at the beginning of (a)(2)(A); and substituted “shall be” for “is” in (b)(1)(B).

The 2006 (1st Ex. Sess.) amendment rewrote (b).

The 2011 amendment, in (b)(5), substituted “the local enforcement agency having jurisdiction” for “law enforcement” and “at the level upon which” for “only at the level immediately below the level upon which”.

The 2013 amendment by No. 505 substituted “dangerous person” for “violent predator” in the section heading, and in (a)(1).

The 2013 amendment by No. 1129 inserted “administrative” in (b)(5).

Case Notes

Due Process.

Alleged sex offender's due process rights under the United States and Arkansas Constitutions were not violated by a determination that he was a Level 3 offender because he had a meaningful opportunity to be heard through a face-to-face interview and review by a sex offender assessment committee. A second face-to-face interview was not required. Burchette v. Sex Offender Screening & Risk Assessment Comm., 374 Ark. 467, 288 S.W.3d 614 (2008).

Final Judgment.

After an appeal of a sex offender adjudication was dismissed on the ground that it could not be concluded that appellant had received notice of the Arkansas Department of Correction Sex Offender Screening and Risk Assessment Committee's (SOSRA's) final decision, the court denied SOSRA's petition for rehearing because subdivisions (b)(6)(A) and (b)(7)(A) of this section required SOSRA to send “findings” to appellant, which proscription was consistent with the requirements of the Arkansas Administrative Procedure Act, § 25-15-212(a). Munson v. Ark. Dep't of Corr. Sex Offender Screening, 369 Ark. 290, 253 S.W.3d 901 (2007).

Procedure.

Trial court erred in dismissing as untimely appellant's petition for judicial review of an assessment declaring appellant to be a sex offender where the record did not contain any evidence that letters from the Arkansas Department of Correction Sex Offender Screening and Risk Assessment Committee were sent to appellant by certified mail, as required by subdivision (b)(7)(A)(i) of this section. Without proof that the letters were properly sent, it could not be said that either letter constituted a final decision under § 25-15-212(b). Munson v. Ark. Dep't of Corr. Sex Offender Screening, 369 Ark. 290, 253 S.W.3d 901 (2007).

Where the Sex Offender Screening and Risk Assessment Committee found that appellant was convicted of two separate sexual assaults on two separate women, admitted that he had been involved in forced sex acts, could not stand rejection, thought about raping, and said that raping made him feel better, there was substantial evidence to support the Committee's assessment of appellant as a level four offender. Because the Committee determined the presence of a mental abnormality or personality disorder by virtue of its review and assessment of appellant as a level four offender, the Committee complied with the provisions of subdivision (a)(2)(C) of this section. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, 307 S.W.3d 6 (2009).

Under §§ 12-12-913 and 12-12-917, and this section, the evidence supported the sex offender's Level 2 assessment where his victim was outside the home and a Level 1 assessment only required notification inside the home and to local law enforcement, which was insufficient; the offender also indicated refusal to participate in sex-offender treatment. Gwaltney v. Sex Offender Assessment Comm., 2009 Ark. App. 668 (2009).

This section gave the Sex Offender Assessment Committee authority to conduct its own assessment as to whether defendant was a sexually dangerous person. Dillard v. Sex Offender Assessment Comm., 2016 Ark. App. 147, 485 S.W.3d 701 (2016).

12-12-923. Electronic monitoring of sex offenders.

    1. Upon release from incarceration, a sex offender determined to be a sexually dangerous person whose crime was committed after April 7, 2006, is subject to electronic monitoring for a period of not less than ten (10) years from the date of the sex offender's release.
    2. Within three (3) days after release from incarceration, a sex offender subject to electronic monitoring under subdivision (a)(1) of this section shall:
      1. Report to the agency responsible under § 12-12-915 for supervising the sex offender; and
      2. Submit to the placement of electronic monitoring equipment upon his or her body.
  1. The agency responsible under § 12-12-915 for supervising the sex offender subject to electronic monitoring shall:
    1. Use a system that actively monitors and identifies the sex offender's location and timely reports or records his or her presence near or within a crime scene or in a prohibited area or his or her departure from specified geographic limitations; and
    2. Contact the local law enforcement agency having jurisdiction as soon as administratively feasible if the sex offender is in a prohibited area.
      1. Unless a sex offender subject to electronic monitoring is indigent, he or she is required to reimburse the supervising agency a reasonable fee to defray the supervision costs.
          1. A sex offender who claims to be indigent shall provide a completed certificate of indigency to the supervising agency.
          2. The supervising agency may at any time review and redetermine whether a sex offender is indigent.
        1. The certificate of indigency shall:
          1. Be in a form approved by the supervising agency;
          2. Be executed under oath by the sex offender; and
          3. State in bold print that a false statement is punishable as a Class D felony.
      1. The supervising agency shall determine the amount to be paid by a sex offender based on his or her financial means and ability to pay.
      2. However, the amount under subdivision (c)(2)(A) of this section shall not exceed fifteen dollars ($15.00) per day.
  2. A sex offender subject to electronic monitoring who violates subdivision (a)(2) of this section upon conviction is guilty of a Class C felony.
    1. A person who knowingly alters, tampers with, damages, or destroys any electronic monitoring equipment worn by a sexually dangerous person under this section upon conviction is guilty of a Class C felony.
    2. Subdivision (e)(1) of this section does not apply to the owner of the electronic monitoring equipment or an agent of the owner performing ordinary maintenance or repairs to the electronic monitoring equipment.

History. Acts 2006 (1st Ex. Sess.), No. 4, § 7; 2013, No. 505, §§ 20, 21.

Amendments. The 2013 amendment substituted “dangerous person” for “violent predator” in (a)(1); and substituted “dangerous person under” for “violent predator pursuant to” in (e)(1).

Research References

ALR.

Validity and Applicability of State Requirement That Person Convicted or Indicted of Sex Offenses Be Subject to Electronic Location Monitoring, Including Use of Satellite or Global Positioning System. 57 A.L.R.6th 1.

12-12-924. Disclosure and notification concerning out-of-state sex offenders moving into Arkansas.

  1. A local law enforcement agency having jurisdiction where an out-of-state sex offender is moving or has moved may make immediate disclosure of the sex offender's registration in another state before the completion of a sex offender assessment assigning a community notification risk level.
  2. A local law enforcement agency having jurisdiction where an out-of-state individual is moving or has moved who has been convicted of an offense that would require registration as a sex offender in Arkansas may make immediate notification appropriate for public safety before the completion of a sex offender assessment assigning a community notification risk level.

History. Acts 2011, No. 100, § 1.

12-12-925. Travel outside of the United States.

  1. A sex offender who is required to register under this subchapter must report in person at least twenty-one (21) days before traveling outside of the United States to the local law enforcement agency having jurisdiction that he or she intends to travel outside of the United States.
  2. The sex offender making the report in person under this section must also report in person to the local law enforcement agency having jurisdiction:
    1. The dates of travel; and
    2. The foreign country, colony, territory, or possessions that the sex offender will visit.
    1. A local law enforcement agency having jurisdiction receiving a report under this section shall immediately report the information to the Arkansas Crime Information Center.
    2. Upon receiving information from a local law enforcement agency having jurisdiction under this section, the center shall immediately report the information to the National Sex Offender Public Website and to the United States Marshals Service.

History. Acts 2013, No. 508, § 12; 2017, No. 916, § 10.

Amendments. The 2017 amendment, in (a), substituted “A sex offender who is required to register” for “A person who is required to register as a sex offender” and inserted “in person”; in the introductory language of (b), substituted “The sex offender” for “the person” and inserted “in person” twice; and substituted “sex offender” for “person” in (b)(2).

12-12-926. Release of motor vehicle records by the Department of Finance and Administration.

  1. The Department of Finance and Administration may release to a law enforcement officer or agency information contained in a person's motor vehicle record if:
    1. The information is required for the law enforcement officer or agency to comply with this subchapter; and
    2. The use of the information by the law enforcement officer or agency is related to public safety.
  2. A law enforcement officer or agency that obtains a record from the department as provided in subsection (a) of this section may publicly disclose information contained in a person's motor vehicle record if the disclosure of the information is:
    1. Required by this subchapter; and
    2. Related to public safety.
  3. This section does not authorize a law enforcement officer or agency to publicly disclose the following information obtained from a motor vehicle record:
    1. A person's Social Security number; or
    2. A person's medical or disability information.

History. Acts 2013, No. 508, § 13.

12-12-927. Medicaid services by sex offender prohibited.

If a court has entered an order requiring a person to register as a sex offender or if the person is listed in the Federal Bureau of Investigation's National Sex Offender Registry, the United States Department of Justice Dru Sjodin National Sex Offender Public Website, or both, the person shall not provide goods or services under the Arkansas Medicaid Program.

History. Acts 2013, No. 1504, § 2.

Cross References. Status as a registered sex offender, § 12-12-1513.

12-12-928. Prohibition against recording a person under 14 years of age — Notification.

A person required to register as a sex offender under this subchapter and who has been assessed as a Level 3 or Level 4 sex offender shall be notified at his or her assessment that he or she is prohibited from recording a person under fourteen (14) years of age under § 5-14-137.

History. Acts 2019, No. 621, § 3.

12-12-929. Registered offender prohibited from holding position of public trust — Definition.

  1. As used in this section, “position of public trust” means a position that:
    1. Is in a public agency that provides public safety services, including without limitation a fire department, law enforcement agency, or emergency medical services agency; and
    2. As part of the ordinary course of the duties of the position, requires a person holding the position to have direct physical contact with or come within the immediate vicinity of a member of the public outside of the building in which the public agency is located.
  2. A sex offender who is required to register under the Sex Offender Registration Act of 1997, § 12-12-901 et seq., and who has been assessed as a Level 2, Level 3, or Level 4 offender may not hold a position of public trust.

History. Acts 2019, No. 987, § 1.

Subchapter 10 — Criminal History Information and Reporting Standards

A.C.R.C. Notes. Acts 2009, No. 974, § 1, provided: “This act shall be known and may be cited as ‘Juli's Law’.”

Effective Dates. Acts 1994 (2nd Ex. Sess.), Nos. 37 and 38, § 7: Aug. 25, 1994. Emergency clause provided: “It is hereby found and determined by the General Assembly that serious criminal offenses committed by juveniles have increased to an alarming level and that it will help to deal with these serious juvenile crimes by authorizing the Arkansas Crime Information Center to accumulate juvenile arrest information for those allegations and adjudications of dependency for which the Arkansas Juvenile Code authorizes fingerprints to be taken and maintained, and it will assist in juvenile crime prevention to allow the dissemination of conviction information to nongovernmental entities authorized by federal law; that this act so provides; and this act should go into effect immediately in order to provide additional tools for dealing with juvenile crime as soon as possible. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 447, § 5: Mar. 12, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the Arkansas Crime Information Center requires additional funds on July 1, 1997, to operate the automated criminal history system; that the system must be operated efficiently to support the State Police and local law enforcement entities in their efforts; that the agency does not currently have the funds and staff necessary to carry out the mandates of the Legislature; that the acquisition of the State Police Automated Fingerprint Identification System was funded by means other than those provided in Arkansas Code 12-12-1012(b)(1); and that operation of the Automated Findgerprint System by the State Police has caused an increase in the operating costs of the Arkansas Crime Information Center. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 1102, § 9: July 1, 1997. Emergency clause provided: “It is hereby found and determined by the Eighty-First General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1997 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1997 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997.”

Acts 2005, No. 1573, § 6: Apr. 5, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the dissemination of complete, accurate, and timely criminal history information is necessary for the protection of the people of the State of Arkansas; and that this act is needed to provide necessary access to criminal history information. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2009, No. 762, § 12: Sept. 1, 2009. Effective date clause provided: “This act shall be effective September 1, 2009.”

Acts 2011, No. 699, § 2: Mar. 24, 2011. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that Juli's law is intended to protect Arkansans from heinous crimes; that rape is a heinous crime that can occur at any time; that the protections under Juli's Law will be enhanced by the addition of rape as a reportable crime; and because no time should be lost in providing this protection to the people of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2013, No. 1460, § 17: Jan. 1, 2014. Effective date clause provided: “This act becomes effective on and after January 1, 2014.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-12-1001. Definitions.

As used in this subchapter:

    1. “Administration of criminal justice” means performing functions of investigation, apprehension, detention, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders.
    2. “Administration of criminal justice” also includes criminal identification activities and the collection, maintenance, and dissemination of criminal justice information;
  1. “Arrest tracking number” means a unique number assigned to an arrestee at the time of each arrest that is used to link that arrest to the final disposition of that charge;
  2. “Central repository” means the Arkansas Crime Information Center, which is authorized to collect, maintain, and disseminate criminal history information;
  3. “CODIS” means the Federal Bureau of Investigation Laboratory's Combined DNA Index System that allows the storage and exchange of DNA records submitted by federal forensic laboratories, state forensic laboratories, and local forensic laboratories;
  4. “Conviction information” means criminal history information disclosing that a person has pleaded guilty or nolo contendere to, or was found guilty of, a criminal offense in a court of law, together with sentencing information;
    1. “Criminal history information” means a record compiled by a central repository or the Identification Bureau of the Department of Arkansas State Police on an individual consisting of names and identification data, notations of arrests, detentions, indictments, informations, or other formal criminal charges. This record also includes any dispositions of the charges, as well as notations on correctional supervision and release.
    2. “Criminal history information” does not include fingerprint records on individuals not involved in the criminal justice system or driver history records;
  5. “Criminal history information system” means the equipment, procedures, agreements, and organizations thereof, for the compilation, processing, preservation, and dissemination of criminal history information;
  6. “Criminal justice agency” means a government agency or any subunit of a government agency that is authorized by law to perform the administration of criminal justice and that allocates more than one-half (1/2) its annual budget to the administration of criminal justice;
  7. “Criminal justice official” means an employee of a criminal justice agency performing the administration of criminal justice;
    1. “Disposition” means information describing the outcome of any criminal charges, including notations that law enforcement officials have elected not to refer the matter to a prosecutor, that a prosecutor has elected not to commence criminal proceedings, or that proceedings have been indefinitely postponed.
    2. “Disposition” also includes acquittals, dismissals, probations, charges pending due to mental disease or defect, guilty pleas, nolle prosequi, nolo contendere pleas, findings of guilt, youthful offender determinations, first offender programs, pardons, commuted sentences, mistrials in which the defendant is discharged, executive clemencies, paroles, releases from correctional supervision, or deaths;
  8. “Dissemination” means disclosing criminal history information or the absence of criminal history information to any person or organization outside the agency possessing the criminal history information;
  9. “DNA” means deoxyribonucleic acid that is located in the cells of an individual, provides an individual's personal genetic blueprint, and encodes genetic information that is the basis of human heredity and forensic identification;
    1. “DNA record” means DNA identification information stored in the State DNA Data Base or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results.
    2. The DNA record is the result obtained from the DNA typing tests.
    3. The DNA record is composed of the characteristics of a DNA sample that are of value in establishing the identity of individuals.
    4. The results of all DNA identification tests on an individual's DNA sample also are collectively referred to as the DNA profile of an individual;
  10. “DNA sample” means a blood, saliva, or tissue sample provided by any individual as required by this subchapter or submitted to the State Crime Laboratory for analysis or storage, or both;
  11. “Identification Bureau” means the Identification Bureau of the Department of Arkansas State Police, which may maintain fingerprint card files and other identification information on individuals;
    1. “Juvenile aftercare and custody information” means information maintained by the Division of Youth Services of the Department of Human Services regarding the status of a juvenile committed to or otherwise placed in the custody of the division from the date of commitment until the juvenile is released from aftercare or custody, whichever is later.
    2. “Juvenile aftercare and custody information” may include the name, address, and phone number of a contact person or an entity responsible for the juvenile;
  12. “Nonconviction information” means arrest information without disposition if an interval of one (1) year has elapsed from the date of arrest and no active prosecution of the charge is pending, as well as all acquittals and all dismissals;
  13. “Pending information” means criminal history information in some stage of active prosecution or processing; and
  14. “Sealed record” means a record that was sealed under the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401 et seq.

History. Acts 1993, No. 1109, § 1; 2001, No. 1048, § 1; 2005, No. 1962, § 40; 2009, No. 974, § 2; 2013, No. 1460, § 3.

Amendments. The 2005 amendment inserted present (2), and redesignated the remaining subsections accordingly.

The 2009 amendment inserted present (4) and (12) through (15); deleted former (11); redesignated the remaining subdivisions accordingly; and made minor stylistic changes throughout.

The 2013 amendment, in (15) (now (19)), substituted “Sealed” for “Expunged” and “sealed under the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401” for “expunged under § 16-90-901”.

12-12-1002. Penalties.

  1. Upon conviction, any criminal justice agency or official subject to fingerprinting or reporting requirements under this subchapter that knowingly fails to comply with the fingerprinting or reporting requirements is guilty of a Class B misdemeanor.
  2. A person is guilty of a Class A misdemeanor upon conviction if the person knowingly:
    1. Accesses information or obtains information collected and maintained under this subchapter for a purpose not specified by this subchapter; or
    2. Releases or discloses information maintained under this subchapter to another person who lacks authority to receive the information.
  3. A person is guilty of a Class D felony upon conviction if the person violates subsection (a) of this section for the purpose of:
    1. Furthering the commission of a misdemeanor offense or felony offense by the person or another person;
    2. Enhancing or assisting a person's position in a legal proceeding in this state or influencing the outcome of a legal proceeding in this state for the benefit of the person or a member of the person's family;
    3. Causing a pecuniary or professional gain for the person or a member of the person's family; or
    4. Political purposes for the person or a member of the person's family.
  4. A person convicted of violating subsection (c) of this section is subject to an additional fine of not more than five hundred thousand dollars ($500,000).

History. Acts 1993, No. 1109, § 15; 2009, No. 974, § 3; 2011, No. 1224, § 2; 2017, No. 250, § 5; 2017, No. 845, § 4.

A.C.R.C. Notes. Acts 2011, No. 1224, § 3, provided:

“The provisions of this act shall not be retroactive.”

Amendments. The 2009 amendment inserted “Upon conviction” in (a); added the (b)(1) designation; in (b)(1), substituted “Upon conviction, any” for “Every” and inserted “collected and maintained under this subchapter”; added (b)(2); and made related and minor stylistic changes.

The 2011 amendment rewrote (b)(1); inserted (b)(2) and (c); redesignated former (b)(2) as present (d); and substituted “subsection (c)” for “subdivision (b)(1)” in (d).

The 2017 amendment by No. 250 added “knowingly” at the end of the introductory language of (b); substituted “Accesses” for “Knowingly accesses” in (b)(1); and substituted “Releases” for “Knowingly releases” in (b)(2).

The 2017 amendment by No. 845 substituted “the fingerprinting or” for “such” following “comply with” in (a); added “knowingly” at the end of the introductory language of (b); in (b)(1), substituted “Accesses” for “Knowingly accesses” and deleted “willfully” preceding “obtains”; and substituted “Releases” for “Knowingly releases” in (b)(2).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-12-1003. Scope.

  1. This subchapter governs the:
    1. Collection, maintenance, and dissemination of criminal history information on identifiable individuals charged with or pleading guilty or nolo contendere to, or being found guilty of, criminal offenses under the laws of the State of Arkansas; and
    2. Dissemination of juvenile aftercare and custody information.
    1. Except as provided in subdivision (b)(2) of this section, the Arkansas Crime Information Center may issue rules and implement this subchapter.
    2. The State Crime Laboratory may promulgate rules to implement the provisions of this subchapter relating to the collection, maintenance, dissemination, removal, or destruction of DNA samples or DNA records.
  2. The reporting requirements of this subchapter apply to prosecuting attorneys, judges, and law enforcement, court, probation, correction, and parole officials within the limits defined in §§ 12-12-1006 and 12-12-1007.
  3. This subchapter does not apply to records of traffic offenses, including misdemeanor offenses of driving while intoxicated, maintained by the Department of Finance and Administration.
  4. Criminal history information collected and maintained by the center is not considered public record information within the intent and meaning of the Freedom of Information Act of 1967, § 25-19-101 et seq.

History. Acts 1993, No. 1109, § 2; 2001, No. 1048, § 2; 2009, No. 974, § 4.

Amendments. The 2009 amendment added the (b)(1) designation; rewrote (b)(1); and added (b)(2).

12-12-1004. Completeness and accuracy.

  1. The Arkansas Crime Information Center and the State Crime Laboratory shall implement procedures that will, to the maximum extent feasible, ensure the completeness and accuracy of all criminal history information in this state.
  2. All criminal justice agencies and criminal justice officials shall maintain complete and accurate records, as may be appropriate to their area of operation, and shall report information from the records as required in §§ 12-12-1006 and 12-12-1007.
  3. The center shall maintain all information reported under this subchapter in a complete and permanent manner to ensure that records are not altered, unlawfully purged, or otherwise lost.
  4. The State Crime Laboratory shall maintain all DNA samples or DNA records obtained under this subchapter in a complete and permanent manner to ensure that DNA samples or DNA records are not altered, unlawfully purged, or lost.

History. Acts 1993, No. 1109, § 3; 2009, No. 974, § 5.

Amendments. The 2009 amendment inserted “and the State Crime Laboratory” in (a); inserted “criminal justice” preceding “officials” in (b); inserted “unlawfully” preceding “purged” in (c); added (d); and made minor stylistic changes in (b) and (c).

12-12-1005. Identification Bureau.

  1. The Identification Bureau of the Department of Arkansas State Police shall collect and maintain fingerprint identification records required to be reported by this subchapter.
  2. The Identification Bureau of the Department of Arkansas State Police shall provide arrest and identification information for inclusion in the computerized criminal history file, as specified by the Arkansas Crime Information Center.
    1. Arkansas shall be a single-source state for the submission of fingerprint cards or fingerprint images to the Federal Bureau of Investigation.
    2. All fingerprint cards or fingerprint images, under the provisions of this subchapter, shall be submitted by Arkansas law enforcement agencies to the Identification Bureau of the Department of Arkansas State Police.

History. Acts 1993, No. 1109, § 4; 1997, No. 826, § 4.

Cross References. Release of criminal history information, authorization of, § 12-12-1507.

Unrestricted information, records, immunity from civil liability, § 12-12-1506.

12-12-1006. Fingerprinting, DNA sample collection, and photographing.

      1. Immediately following an arrest for an offense, a law enforcement official at the receiving criminal detention facility shall take, or cause to be taken, the fingerprints and a photograph of the arrested person if the offense is a felony or a Class A misdemeanor.
      2. A law enforcement official at the receiving criminal detention facility shall not take fingerprints of the arrested person if:
        1. The arrest was for a probation violation; and
        2. The arrested person's fingerprints are already possessed by the Identification Bureau of the Department of Arkansas State Police.
    1. In addition to the requirements of subdivision (a)(1) of this section, a law enforcement official at the receiving criminal detention facility shall take, or cause to be taken, a DNA sample of a person arrested for any felony offense.
    1. When the first appearance of a defendant in court is caused by a citation or summons for an offense, a law enforcement official at the receiving criminal detention facility shall take, or cause to be taken, the fingerprints and a photograph of the arrested person when the offense is a felony or a Class A misdemeanor.
    2. In addition to the requirements of subdivision (b)(1) of this section, if the first appearance of a defendant in court is caused by a citation or summons for a felony offense enumerated in subdivision (a)(2) of this section, the court immediately shall order and a law enforcement officer shall take or cause to be taken a DNA sample of the arrested person.
    1. When felony or Class A misdemeanor charges are brought against a person already in the custody of a law enforcement agency or correctional agency and the charges are separate from the charges for which the person was previously arrested or confined, the law enforcement agency or the correctional agency shall again take the fingerprints and photograph of the person in connection with the new charges.
    2. In addition to the requirements of subdivision (c)(1) of this section, when a felony charge enumerated in subdivision (a)(2) of this section is brought against a person already in the custody of a law enforcement agency or a correctional agency and the felony charge is separate from the charge or charges for which the person was previously arrested or confined, the law enforcement agency or the correctional agency shall take or cause to be taken a DNA sample of the person in connection with the new felony charge unless the law enforcement agency or the correctional agency can verify that the person's DNA record is stored in the State DNA Data Base or CODIS.
    1. When a defendant pleads guilty or nolo contendere to or is found guilty of any felony or Class A misdemeanor charge, the court shall order that the defendant be immediately fingerprinted and photographed by the appropriate law enforcement official.
    2. In addition to the requirements of subdivision (d)(1) of this section, if a defendant pleads guilty or nolo contendere to or is found guilty of a felony charge enumerated in subdivision (a)(2) of this section, the court shall order that the defendant provide a DNA sample to the appropriate law enforcement official unless the appropriate law enforcement official can verify that the defendant's DNA record is stored in the State DNA Data Base or CODIS.
    1. Fingerprints or photographs taken after arrest or court appearance under subsections (a) and (b) of this section or taken from persons already in custody under subsection (c) of this section shall be forwarded to the Identification Bureau of the Department of Arkansas State Police within forty-eight (48) hours after the arrest or court appearance.
    2. Fingerprints or photographs taken under subsection (d) of this section shall be forwarded to the Identification Bureau by the fingerprinting official within five (5) working days after the plea or finding of guilt.
  1. Fingerprint cards or fingerprint images may be retained by the Identification Bureau, and criminal history information may be retained by the central repository for any criminal offense.
    1. A DNA sample provided under this section shall be delivered to the State Crime Laboratory by a law enforcement officer at the law enforcement agency that took the sample in accordance with rules promulgated by the State Crime Laboratory.
    2. A DNA sample taken under this section shall be retained in the State DNA Data Bank established under § 12-12-1106.
  2. A DNA sample provided under this section shall be taken in accordance with rules promulgated by the State Crime Laboratory in consultation with the Department of Arkansas State Police and the Department of Health.
  3. Refusal to be fingerprinted or photographed or refusal to provide a DNA sample as required by this subchapter is a Class B misdemeanor.
    1. A person authorized by this section to take a DNA sample is not criminally liable for taking a DNA sample under this subchapter if he or she takes the DNA sample in good faith and uses reasonable force.
    2. A person authorized by this section to take a DNA sample is not civilly liable for taking a DNA sample if the person acted in good faith, in a reasonable manner, using reasonable force, and according to generally accepted medical and other professional practices.
    1. An authorized law enforcement agency or an authorized correctional agency may employ reasonable force if an individual refuses to submit to a taking of a DNA sample authorized under this subchapter.
    2. An employee of an authorized law enforcement agency or an authorized correctional agency is not criminally or civilly liable for the use of reasonable force described in subdivision (k)(1) of this section.
  4. A person less than eighteen (18) years of age is exempt from all provisions of this section regarding the collection of a DNA sample unless that person is charged by the prosecuting attorney as an adult in circuit court or pleads guilty or nolo contendere to or is found guilty of a felony offense in circuit court.

History. Acts 1993, No. 1109, § 5; 1997, No. 826, § 5; 1997, No. 1231, § 1; 2001, No. 177, § 2; 2001, No. 1712, § 2; 2009, No. 974, § 6; 2011, No. 699, § 1; 2015, No. 543, § 1; 2015, No. 954, § 1.

Amendments. The 2009 amendment rewrote the section.

The 2011 amendment inserted (a)(2)(D) and redesignated the remaining subdivisions accordingly.

The 2015 amendment by No. 543 added “any felony offense” at the end of (a)(2); and deleted (a)(2)(A) through (F).

The 2015 amendment by No. 954 redesignated former (a)(1) as (a)(1)(A); and added (a)(1)(B).

Cross References. Fines, § 5-4-201.

Fingerprinting and photographing, § 9-27-320.

Imprisonment, § 5-4-401.

12-12-1007. Reporting requirements.

  1. Certain events occurring during the course of a criminal prosecution must be reported for inclusion in a criminal history record. The following events shall be reportable events:
    1. An arrest;
    2. The release of a person after arrest without the filing of a charge;
    3. A decision by a prosecutor not to commence criminal proceedings or to defer or indefinitely postpone prosecution;
    4. An indictment or criminal information or other statement of charges;
    5. The dismissal of an indictment or criminal information, or of any of the charges set out in such indictment or criminal information;
    6. An acquittal, finding of guilt, or other court disposition at or following trial, including dispositions of probationary status;
    7. The terms and conditions of a sentence;
    8. A commitment to a state or local correctional facility;
    9. A commitment to a hospital or other facility as not being criminally responsible or as incompetent to stand trial;
    10. The entry of an appeal to an appellate court;
    11. The judgment of an appellate court;
    12. A pardon, reprieve, commutation, or other change in sentence; and
    13. Other events occurring during the course of the criminal proceedings determined to be reportable.
  2. A reportable event specified in subsection (a) of this section shall be reported by those criminal justice officials or agencies directly responsible for the reportable action, event, or decision.
  3. The form and content of reported information and the method of reporting shall be specified by the Arkansas Crime Information Center and the Administrative Office of the Courts.
  4. Criminal justice agencies shall report criminal history information, whether directly or indirectly, manually or by means of an automated system in accordance with the following provisions:
    1. Information pertaining to the release of a person arrested without the filing of charges as required in subdivision (a)(2) of this section, or to a decision by the prosecutor not to commence criminal proceedings or to defer or postpone prosecution indefinitely as required by subdivision (a)(3) of this section shall be reported within five (5) working days; and
    2. Information pertaining to any other reportable events specified in subdivisions (a)(4)-(13) of this section shall be reported at least monthly.
    1. It shall be the duty of law enforcement officials, prosecuting attorneys, court clerks, and judges to report the arrest tracking number of each defendant in accordance with procedures established by the center.
      1. The arrest tracking number shall be filed with the court clerk at the time an indictment, information, or charge is filed.
      2. In cases in which the defendant has not been arrested at the time of an indictment, information, or charge, the arrest tracking number shall be filed with the court clerk immediately after there is an arrest.
    2. The arrest tracking number shall be in the court's case file before a trial commences or a judgment is entered.

History. Acts 1993, No. 1109, § 6; 1994 (2nd Ex. Sess.), No. 37, § 2; 1994 (2nd Ex. Sess.), No. 38, § 2; 2005, No. 1962, § 41.

Amendments. The 2005 amendment deleted former (e)(1) and redesignated the remaining subdivisions accordingly; and substituted “in which” for “where” in present (e)(2)(B).

Cross References. Disposition of criminal data to the central repository, § 12-12-1505.

12-12-1008. Dissemination for criminal justice purposes.

  1. Pending information, conviction information, and nonconviction information available through the Arkansas Crime Information Center, plus information obtained through the Interstate Identification Index or from another state's record system and juvenile aftercare and custody information, shall be disseminated to criminal justice agencies and officials for the administration of criminal justice.
  2. A criminal justice agency shall query the center to obtain the latest updated information prior to disseminating criminal history information, unless the criminal justice agency knows that the center does not maintain the criminal history information or is incapable of responding within the necessary time period.
  3. If a criminal justice agency disseminates criminal history information received from the center to another criminal justice agency, the disseminating criminal justice agency shall maintain for at least one (1) year a dissemination log recording the identity of the record subject, the agencies or persons to whom the criminal history information was disseminated, and the date it was provided.
  4. A sealed record shall be made available to criminal justice agencies for criminal justice purposes as other laws permit.
  5. A DNA sample or DNA record obtained under this subchapter shall be disseminated only to criminal justice agencies and criminal justice officials for the administration of criminal justice.

History. Acts 1993, No. 1109, § 7; 2001, No. 1048, § 3; 2009, No. 974, § 7; 2013, No. 1460, § 4.

Amendments. The 2009 amendment added (e).

The 2013 amendment substituted “A sealed record” for “Expunged records” in (d).

Case Notes

Dissemination Allowed In Certain Circumstances.

Physical destruction of records is not contemplated by Arkansas law; therefore, summary judgment was properly granted to the Arkansas Crime Information Center (ACIC) and other parties in an action alleging a violation of an arrestee's civil rights because there was no requirement that the ACIC physically destroy expunged records under former § 16-90-901(a)(2), and dissemination of the expunged records was allowed to criminal justice agencies for criminal justice purposes under this section. Jones v. Huckabee, 369 Ark. 42, 250 S.W.3d 241 (2007).

Sovereign Immunity.

Constable's suit against Arkansas Crime Information Center (ACIC) was barred under doctrine of sovereign immunity because § 12-12-201 et seq. did not require a law enforcement officer to be provided with a specific type of access to information, such as via radio transmission; the constable had no clear and legal right to transmit information to, and receive information from, the ACIC system in the most rapid manner available. Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005).

12-12-1009. Dissemination of conviction information for noncriminal justice purposes.

  1. Conviction information shall be made available for the following noncriminal justice purposes:
    1. To any local, state, or federal governmental agency that requests the conviction information for the enforcement of a local, state, or federal law;
    2. To any entity authorized either by the subject of the record in writing or by state or federal law to receive the conviction information; and
    3. To any federal agency or central repository in another state requesting the conviction information for a purpose authorized by law.
  2. Conviction information disseminated for noncriminal justice purposes under this subchapter shall be used only for the purposes for which it was made available and may not be redisseminated.
  3. Nonconviction information shall not be available under the provisions of this subchapter for noncriminal justice purposes.
  4. No agency or individual shall confirm the existence or nonexistence of criminal history information to any person or organization that would not be eligible to receive the criminal history information pursuant to this subchapter.
  5. A local agency may release its own agency records according to its own policy.
  6. The Department of Arkansas State Police Automated Fingerprint Identification System may access and use the National Fingerprint File and Interstate Identification Index as provided by the Federal Bureau of Investigation when the Arkansas Code authorizes a fingerprint-based Federal Bureau of Investigation check for a noncriminal justice purpose and a positive identification based on fingerprints is made.
  7. A DNA sample or DNA record obtained under this subchapter is not available under this subchapter for noncriminal justice purposes.

History. Acts 1993, No. 1109, § 8; 1994 (2nd Ex. Sess.), No. 37, § 3; 1994 (2nd Ex. Sess.), No. 38, § 3; 2005, No. 2213, § 1; 2009, No. 168, § 1; 2009, No. 974, § 8.

Amendments. The 2005 amendment deleted “nongovernmental” preceding “agency” in (a)(2).

The 2009 amendment by No. 168 added (f).

The 2009 amendment by No. 974 added (g).

Case Notes

Sovereign Immunity.

Constable's suit against Arkansas Crime Information Center (ACIC) was barred under doctrine of sovereign immunity because § 12-12-201 et seq. did not require a law enforcement officer to be provided with a specific type of access to information, such as via radio transmission; the constable had no clear and legal right to transmit information to, and receive information from, the ACIC system in the most rapid manner available. Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005).

12-12-1010. Dissemination of criminal history information for other purposes.

    1. Criminal history information shall be made available to the Governor for purposes of carrying out the Governor's constitutional authority involving pardons, executive clemencies, extraditions, or other duties specifically authorized by law.
    2. Criminal history information may be made available to:
      1. Persons performing research related to the administration of criminal justice, subject to conditions approved by the central repository or the Identification Bureau of the Division of Arkansas State Police to assure the security of the information and the privacy of individuals to whom the criminal history information relates; and
      2. Private contractors housing state inmates for a governmental criminal justice agency under a specific agreement approved by the Arkansas Crime Information Center that limits the use of the criminal history information to the purposes for which given to ensure the security and confidentiality of the criminal history information.
    1. Criminal history information shall be made available according to the National Crime Prevention and Privacy Compact, 42 U.S.C. § 14616, as it existed on January 1, 2001.
      1. The General Assembly approves and ratifies the National Crime Prevention and Privacy Compact, 42 U.S.C. § 14616, as it existed on January 1, 2001.
      2. The Director of the Arkansas Crime Information Center shall execute, administer, and implement the compact on behalf of the state and may adopt necessary rules and procedures for the national exchange of criminal history information for noncriminal justice purposes.
      3. Ratification of the compact does not affect the obligations and responsibilities of the center regarding the dissemination of criminal history information within Arkansas.
    1. Criminal history information may be requested by a noncriminal justice agency and shall be made available after a review and express approval of dissemination by the director.
    2. Requests for criminal history information by a noncriminal justice agency shall be made to the director and shall include:
      1. The specific criminal history information being requested;
      2. A list of all persons who will have access to the criminal history information;
      3. A detailed description of how the criminal history information will be used and protected; and
      4. A named temporary custodian of the criminal history information received.
    3. Criminal history information that is requested under this subsection is limited to criminal history information pertaining to criminal offenses that occurred in Arkansas.

History. Acts 1993, No. 1109, § 9; 1999, No. 1330, § 1; 2001, No. 329, § 1; 2019, No. 315, § 867; 2019, No. 519, § 1; 2019, No. 910, § 5857.

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “rules” in (b)(2)(B).

The 2019 amendment by No. 519 inserted “of criminal history information” in the section heading; substituted “Private contractors housing state inmates for a governmental criminal justice agency under a specific agreement” for “Private contractors providing penitentiary services to a governmental criminal justice agency pursuant to a specific agreement” in (a)(2)(B); deleted “the provisions of” following “according to” in (b)(1); deleted “and the compact shall remain in effect until legislation is enacted renouncing the compact” following “2001” in (b)(2)(A); deleted “the repository of criminal history records” following “Center” in (b)(2)(B); substituted “information” for “records” in (b)(2)(B) and (b)(2)(C); added (c); and made stylistic changes.

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(2)(A).

U.S. Code. The National Crime Prevention and Privacy Compact, 42 U.S.C. § 14616, referred to in this section, is currently codified at 34 U.S.C. § 40316.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

12-12-1011. Dissemination limited.

  1. Release of criminal history information for noncriminal justice purposes shall be made only by the Identification Bureau of the Department of Arkansas State Police or the central repository, under the limitations contained in § 12-12-1009, and such compiled records will not be released or disclosed for noncriminal justice purposes by other agencies in the state.
  2. Intelligence and investigative files maintained by law enforcement agencies shall be kept separated from criminal history information and shall not be subject to dissemination under the provisions of this subchapter.

History. Acts 1993, No. 1109, § 10.

12-12-1012. Fees for noncriminal justice record searches.

      1. A fee may be charged for providing criminal history information for noncriminal justice purposes.
      2. However, the fee for providing criminal history information may be waived at the request of a:
        1. Local school district, for providing criminal history information concerning a volunteer in a public school program; or
          1. Nonprofit organization whose purpose is to serve juveniles, for providing criminal history information concerning volunteers to the nonprofit organization.
          2. This exemption shall not be applicable to a child care facility whose owner, operator, or employees are required under § 20-78-606 to apply to the Identification Bureau of the Department of Arkansas State Police for a criminal records check.
      1. The amount of the fee for electronic Internet submission will be determined jointly by the bureau and the central repository and shall not exceed twenty dollars ($20.00), exclusive of any third-party electronic processing fee charges.
      2. Effective July 1, 2005, the amount of the fee for providing information by means other than the Internet shall be determined jointly by the bureau and the central repository and shall not exceed thirty dollars ($30.00).
    1. There is created on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State the State Police Equipment Fund.
    2. Except as provided in subdivision (b)(3) of this section, all fees collected pursuant to this section shall be deposited into the State Treasury as special revenue and credited:
      1. Fifty percent (50%) to the Crime Information System Fund, there to be used for the continued operation and expansion of the automated criminal history system; and
      2. Fifty percent (50%) to the State Police Equipment Fund, there to be used for the continued operation and expansion of the automated fingerprint identification system.
    3. Fees collected under subdivision (a)(2)(B) of this section shall be deposited into the State Treasury as special revenue as follows:
      1. Ten dollars ($10.00) of each fee collected shall be credited to the Crime Information System Fund; and
      2. The portion of a collected fee that exceeds ten dollars ($10.00) shall be credited to the State Police Equipment Fund.
      1. Special revenues deposited into the Crime Information System Fund and the State Police Equipment Fund may be used for personal services and operating expenses as provided by law and for conducting criminal background checks for noncriminal justice purposes.
      2. The special revenues unused at the end of any fiscal year shall be carried forward.

History. Acts 1993, No. 1109, § 11; 1995, No. 847, § 1; 1997, No. 447, § 1; 1997, No. 1102, § 3; 2005, No. 1573, § 1; 2005, No. 1962, § 42; 2009, No. 762, § 1.

Amendments. The 2005 amendment by No. 1573 redesignated former (a)(2) and (b)(2) as present (a)(2)(A) and (b)(2)(A); in (a)(2)(A), substituted “the fee for electronic Internet submission” for “such fee” and added “exclusive of any third-party electronic processing fee charges”; added (a)(2)(B) and (b)(2)(B); inserted “Except as provided in subdivision (b)(2) of this section” in (b)(1); and, in (b)(2)(A), substituted “Fees collected under subdivision (a)(2)(A) of this section shall” for “Effective July 1, 1997, such fees collected shall then” and “identification” for “indentification.”

The 2005 amendment by No. 1962, in (b)(1), deleted “All fees shall be deposited immediately in the State Treasury as special revenue to the credit of the State Police Equipment fund” from the beginning and substituted “a State Police Equipment Fund” for “there to be used for the acquisition of an automated fingerprint identification system”; rewrote (b)(2); and made minor stylistic changes throughout.

The 2009 amendment substituted “§ 20-78-606” for “§ 20-78-601 et seq.” in (b).

Cross References. State Police Equipment Fund, § 19-6-474.

12-12-1013. Right of review and challenge.

    1. A person, upon positive verification of his or her identity, may review criminal history information pertaining to the person compiled and maintained by the Identification Bureau of the Department of Arkansas State Police or the central repository and may challenge the completeness or accuracy of the criminal history information.
      1. The criminal history information may be reviewed only by the person or the person's attorney or other designee authorized in writing by the subject.
      2. A copy of criminal history information maintained in the Arkansas Crime Information Center on the person may be made available to the person or the person's attorney or other designee authorized in writing by the person.
      3. A request for a copy of any criminal history information maintained in the National Crime Information Center shall be addressed to the Federal Bureau of Investigation.
  1. If the person, after appropriate review, believes that the criminal history information is incorrect or incomplete in any way, he or she may request an examination and correction of the criminal history information by the agency responsible for the criminal history information.
    1. If it is determined as a result of the challenge that the criminal history information is inaccurate, incomplete, or improperly maintained, the criminal history information shall be appropriately corrected.
    2. Immediately after correction under subdivision (c)(1) of this section, the agency responsible for the criminal history information shall notify every agency or person known to have received the criminal history information within the previous one-year period and provide the agency or person with corrected criminal history information.
    3. A person whose criminal history information has been corrected may ascertain the names of those agencies or individuals known to have received the previously incorrect criminal history information.
      1. Criminal history information that was recorded before August 13, 1993, is subject to the right of review and challenge in accordance with this section.
      2. However, the duty of an agency in searching for criminal history information under subdivision (d)(1)(A) of this section is to make a reasonable search for criminal history information.
    1. An agency does not have a duty under subdivision (d)(1)(A) of this section to provide access to that segment of criminal history information that cannot be located after a reasonable search.
  2. The right of a person to review his or her criminal history information shall not be used by a prospective employer or another person as a means to circumvent procedures or fees for accessing records for noncriminal justice purposes.

History. Acts 1993, No. 1109, § 12; 1997, No. 826, § 6; 2009, No. 974, § 9.

Amendments. The 2009 amendment substituted “person” for “subject” and “criminal history information” for “record” and variants throughout; rewrote (d)(1)(B); and made minor stylistic changes.

Cross References. Right of review and challenge, § 12-12-1509.

12-12-1014. Security of criminal history information.

  1. The Arkansas Crime Information Center shall be authorized to develop standards and implement procedures that will, to the maximum extent feasible, ensure the security and confidentiality of criminal history records.
  2. The center shall be authorized to inspect the criminal history records maintained by criminal justice agencies, to evaluate security procedures, and to issue reports on compliance with security standards.

History. Acts 1993, No. 1109, § 13.

12-12-1015. Audit of criminal history records.

  1. The Arkansas Crime Information Center shall be authorized to develop standards and implement a program of audits of all criminal justice agencies that establish, maintain, report, or disseminate criminal history records, to ensure compliance with all provisions of this subchapter.
  2. Audit procedures pertaining to the courts shall be coordinated and implemented through the Administrative Office of the Courts.

History. Acts 1993, No. 1109, § 14.

12-12-1016. Powers and duties of State Crime Laboratory.

In addition to any other power or duty conferred by this subchapter, the State Crime Laboratory shall expand the:

  1. State DNA Data Base established under § 12-12-1105 to store and maintain DNA records generated under this subchapter; and
  2. State DNA Data Bank established under § 12-12-1106 to retain DNA samples provided under this subchapter.

History. Acts 2009, No. 974, § 10.

12-12-1017. Procedures for conduct, disposition, and use of DNA analysis.

    1. The State Crime Laboratory shall promulgate rules governing the procedures to be used in the submission, identification, analysis, storage, and disposition of DNA samples and typing results of DNA samples submitted under this subchapter.
    2. The procedures described in subdivision (a)(1) of this section shall include quality assurance guidelines to ensure that DNA identification records meet standards for laboratories that submit DNA records to the State DNA Data Base.
  1. The typing results of DNA samples shall be securely stored in the State DNA Data Base, and records of testing shall be retained on file with the State Crime Laboratory.
    1. Except as provided in § 12-12-1018, the tests to be performed on each DNA sample shall be used only for law enforcement identification purposes, including the identification of missing persons, and to assist in the recovery or identification of human remains from disasters.
    2. The results of the DNA analysis conducted under this subchapter from a person adjudicated delinquent may be used for any law enforcement agency identification purpose, including adult prosecution.
    3. The detention, arrest, or conviction of a person based on a State DNA Data Base match or State DNA Data Base information is not invalidated if the DNA sample was obtained or placed in the State DNA Data Base by mistake.
    1. The State Crime Laboratory may contract with a third party for purposes of carrying out any function of this subchapter.
    2. Any third party contracting to carry out a function of this subchapter is subject to any restriction and requirement of this subchapter that apply to the State Crime Laboratory as well as any additional restriction imposed by the State Crime Laboratory.

History. Acts 2009, No. 974, § 10.

12-12-1018. Receipt and analysis of DNA samples — Availability of information.

  1. The State Crime Laboratory shall:
    1. Receive, store, and perform analyses on DNA samples or contract for DNA typing analysis with a qualified DNA laboratory that meets guidelines as established by the State Crime Laboratory;
    2. Classify and file the DNA record of identification characteristic profiles of DNA samples submitted under this subchapter; and
    3. Make information available from the State DNA Data Base as provided in this section.
  2. The results of the DNA profile of individuals in the State DNA Data Base shall be made available:
    1. To a criminal justice agency or to an approved crime laboratory that serves a criminal justice agency; or
    2. To a criminal justice official upon written or electronic request from the criminal justice official and in furtherance of an official investigation of a criminal offense.
  3. The State Crime Laboratory shall promulgate rules governing the methods of obtaining information from the State DNA Data Base and CODIS and procedures for verification of the identity and authority of the requester.
  4. The State Crime Laboratory may create a separate population database composed of DNA samples obtained under this subchapter after all personal identification is removed.

History. Acts 2009, No. 974, § 10.

12-12-1019. Removal and destruction of the DNA record and DNA sample.

  1. Any person whose DNA record is included in the State DNA Data Base and whose DNA sample is stored in the State DNA Data Bank as authorized by this subchapter may apply to the State Crime Laboratory for removal and destruction of the DNA record and DNA sample if the arrest that led to the inclusion of the DNA record and DNA sample:
    1. Resulted in a charge that has been resolved by:
      1. An acquittal;
      2. A dismissal;
      3. A nolle prosequi;
      4. A successful completion of a preprosecution diversion program or a conditional discharge;
      5. A conviction of a Class B misdemeanor or Class C misdemeanor; or
      6. A reversal of the conviction that led to the inclusion of the DNA record and DNA sample; or
    2. Has not resulted in a charge within one (1) year of the date of the arrest.
  2. Except as provided in subsection (c) of this section, the State Crime Laboratory shall remove and destroy a person's DNA record and DNA sample by purging the DNA record and other identifiable information from the State DNA Data Base and the DNA sample stored in the State DNA Data Bank when the person provides the State Crime Laboratory with:
    1. A written request for removal and destruction of the DNA record and DNA sample;
    2. A court order for removal and destruction of the DNA record and DNA sample; and
    3. Either of the following:
      1. A certified copy of:
        1. An order of acquittal;
        2. An order of dismissal;
        3. An order nolle prosequi;
        4. Documentation reflecting a successful completion of a preprosecution diversion program or a conditional discharge;
        5. A judgment of conviction of a Class B misdemeanor or Class C misdemeanor; or
        6. A court order that reverses the conviction that led to the inclusion of the DNA record and DNA sample; or
      2. A court order stating that a charge arising out of the person's arrest has not been filed within one (1) year of the date of the arrest.
  3. The State Crime Laboratory shall not remove or destroy a person's DNA record or DNA sample under subsection (b) of this section if the person had a prior felony or Class A misdemeanor conviction or a pending charge for which collection of a DNA sample is authorized under Arkansas law.
  4. When the State Crime Laboratory removes and destroys a person's DNA record and DNA sample under subsection (b) of this section, the State Crime Laboratory shall request that the person's DNA record be purged from the National DNA Index System.

History. Acts 2009, No. 974, § 10; 2015, No. 543, § 2.

Amendments. The 2015 amendment added present (a)(1)(F); added present (b)(1) and redesignated the remaining subdivisions accordingly; and added present (b)(3)(A)(vi).

Subchapter 11 — State Convicted Offender DNA Data Base Act

Publisher's Notes. Former subchapter 11, concerning a deoxyribonucleic acid (DNA) database, was repealed by Acts 1997, No. 737, § 23. The subchapter was derived from the following sources:

12-12-1101. Acts 1995, No. 922, § 1.

12-12-1102. Acts 1995, No. 922, § 1.

12-12-1103. Acts 1995, No. 922, § 2.

12-12-1104. Acts 1995, No. 922, § 3.

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-12-1101. Title.

This subchapter shall be known and may be cited as the “State Convicted Offender DNA Data Base Act”.

History. Acts 1997, No. 737, § 1; 2003, No. 1470, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Law Enforcement and Emergency Management, DNA Detection of Sexual and Violent Offenders Act, 26 U. Ark. Little Rock L. Rev. 431.

Case Notes

Cited: Haynes v. State, 354 Ark. 514, 127 S.W.3d 456 (2003); Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005).

12-12-1102. Purpose.

The General Assembly finds and declares that:

  1. DNA data banks are an important tool in:
    1. Criminal investigations;
    2. The exclusion of individuals who are the subjects of criminal investigations or prosecutions; and
    3. Deterring and detecting recidivist acts;
  2. Several states have enacted laws requiring persons convicted of certain crimes, especially sexual offenses, to provide genetic samples for DNA profiling;
  3. Moreover, it is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification and detection of individuals in criminal investigations; and
  4. It is therefore in the best interest of the State of Arkansas to establish a DNA data base and a DNA data bank containing DNA samples submitted by individuals convicted of sex offenses and violent offenses.

History. Acts 1997, No. 737, § 2.

Case Notes

Evidence.

Unlike the situation in a prior case, the state presented proof that defendant's un-degraded DNA was on a ski mask, found with a pair of gloves, 129 feet from the back door of the house where the rape occurred, and the victim testified that the attacker wore a ski mask and gloves, and that the mask and gloves shown to the victim by police looked like the ones the victim saw on the victim's attacker, and in conjunction with defendant's inconsistent defense theories, the evidence was sufficient to sustain defendant's conviction. Haynes v. State, 354 Ark. 514, 127 S.W.3d 456 (2003), cert. denied, 541 U.S. 1047, 124 S. Ct. 2168, 158 L. Ed. 2d 740 (2004).

12-12-1103. Definitions.

As used in this subchapter:

  1. “Adjudication of guilt” and words of similar import mean a plea of guilty, a plea of nolo contendere, a negotiated plea, a finding of guilt by a judge, or a finding of guilt by a jury;
  2. “Administration of criminal justice” means:
    1. Performing functions of investigation, apprehension, detention, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders;
    2. Performing criminal identification activities; and
    3. Collecting, maintaining, and disseminating justice information;
    1. “CODIS” means the Federal Bureau of Investigation's national DNA identification index system that allows the storage and exchange of DNA records submitted by state and local forensic laboratories.
    2. CODIS is derived from Combined DNA Index System;
  3. “Criminal justice agency” means a government agency, or any subunit thereof, which is authorized by law to perform the administration of criminal justice and which allocates more than one-half (½) its annual budget to the administration of criminal justice;
    1. “DNA” means deoxyribonucleic acid.
      1. DNA is located in the cells and provides an individual's personal genetic blueprint.
      2. DNA encodes genetic information that is the basis of human heredity and forensic identification;
    1. “DNA record” means deoxyribonucleic acid (DNA) identification information stored in the State DNA Data Base or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of deoxyribonucleic acid (DNA) test results.
    2. The DNA record is the result obtained from the DNA typing tests.
    3. The DNA record is composed of the characteristics of a DNA sample which are of value in establishing the identity of individuals.
    4. The results of all DNA identification tests on an individual's DNA sample are also collectively referred to as the DNA profile of an individual;
  4. “DNA sample” means a blood or tissue sample provided by any person with respect to offenses covered by this subchapter or submitted to the State Crime Laboratory for analysis or storage or both;
  5. “FBI” means the Federal Bureau of Investigation;
  6. “Qualifying offense” means any felony offense as defined in the Arkansas Criminal Code or a sexual offense classified as a misdemeanor as defined by the Arkansas Criminal Code or a repeat offense as defined in this section; and
  7. “Repeat offense” means a second or subsequent adjudication of guilt in a separate criminal action for the commission of any misdemeanor or felony offense involving violence as set forth in Arkansas law, the law of another state, federal law, or military law.

History. Acts 1997, No. 737, § 3; 2003, No. 1087, § 12; 2003, No. 1390, § 5; 2003, No. 1470, § 2; 2005, No. 1962, § 43.

A.C.R.C. Notes. Pursuant to § 1-2-207, this section is set out above as amended by Acts 2003, No. 1470.

Subdivision (10) of this section was also amended by Acts 2003, No. 1087, which added two subdivisions to read as follows:

“(xviii) Computer child pornography - § 5-27-603; and

“(xix) Computer exploitation of a child in the first degree - § 5-27-605 (a);”

Subdivision (10) of this section was also amended by Acts 2003, No. 1390, § 5, to read as follows:

“(10) ‘Sex offense’ means:

“(A)(i) Rape - § 5-14-103;

“(ii) Sexual indecency with a child - § 5-14-110;

“(iii) Sexual assault in the first degree - § 5-14-124;

“(iv) Sexual assault in the second degree - § 5-14-125;

“(v) Sexual assault in the third degree - § 5-14-126;

“(vi) Sexual assault in the fourth degree - § 5-14-127;

“(vii) Incest - § 5-26-202;

“(viii) Engaging children in sexually explicit conduct for use in visual or print medium - § 5-27-303;

“(ix) Transportation of minors for prohibited sexual conduct - § 5-27-305;

“(x) Employing or consenting to use of child in sexual performance - § 5-27-402;

“(xi) Producing, directing, or promoting sexual performance - § 5-27-403;

“(xii) Promoting prostitution in the first degree - § 5-70-104; and

“(xiii) Stalking - § 5-71-229;

“(B) An attempt, solicitation, or conspiracy to commit any of the offenses enumerated in subdivision (10)(A) of this section; or

“(C) A violation of any former law of this state which is substantially equivalent to any of the offenses enumerated in subdivision (10)(A) of this section; and”

Amendments. The 2005 amendment deleted former (2)(B); redesignated former (2)(A) as present (2) and (2)(A); added present (2)(B) and (2)(C); and made related changes.

Meaning of “Arkansas Criminal Code”. See note to § 5-1-101.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Computer Crimes, 26 U. Ark. Little Rock L. Rev. 361.

Case Notes

Construction.

Based on the clear, unambiguous language of § 12-12-1109(a)(2)(A) and subdivision (1) of this section, it was clear that the trial court did not illegally sentence defendant by requiring him to submit to a DNA sample after he received a suspended sentence because whatever conflict § 5-4-101 might have provided, if any, was resolved by the fact that its definitions were used only for Title 5, Chapter 4. Davis v. State, 94 Ark. App. 240, 228 S.W.3d 529 (2006).

Qualifying Offense.

In a rape case, although defendant argued that a blood sample had been illegally taken from him when he was incarcerated in 1997 for non-payment of child support, which was not a qualifying offense named in the State Convicted Offenders DNA Database Act, § 12-12-1101 et seq., and it was based on that sample that the state obtained a “hit,” because defendant had submitted to another blood sample in 2000 when incarcerated for burglary, pursuant to § 12-12-1109(a), the appellate court found that the state met its burden of proof in establishing that the DNA evidence was admissible, pursuant to the inevitable discovery doctrine. Haynes v. State, 354 Ark. 514, 127 S.W.3d 456 (2003), cert. denied, 541 U.S. 1047, 124 S. Ct. 2168, 158 L. Ed. 2d 740 (2004).

Cited: Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005).

12-12-1104. Powers and duties of State Crime Laboratory.

In addition to any other powers and duties conferred by this subchapter, the State Crime Laboratory shall:

  1. Be responsible for the policy management and administration of the state DNA identification record system to support law enforcement agencies and other criminal justice agencies;
  2. Promulgate rules to carry out the provisions of this subchapter; and
  3. Provide for liaison with the Federal Bureau of Investigation and other criminal justice agencies in regard to the state's participation in CODIS or in any DNA data base designated by the laboratory.

History. Acts 1997, No. 737, § 4; 2019, No. 315, § 868.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (2).

12-12-1105. State DNA Data Base.

    1. There is established the State DNA Data Base.
    2. The State Crime Laboratory shall administer the data base and provide DNA records to the Federal Bureau of Investigation for storage and maintenance in CODIS.
  1. The data base shall have the capability provided by computer software and procedures administered by the laboratory to store and maintain DNA records related to:
    1. Crime scene evidence and forensic casework;
    2. Convicted offenders and juveniles adjudicated delinquent who are required to provide a DNA sample under this subchapter;
    3. Offenders who were required to provide a DNA sample under former § 12-12-1101 et seq.;
    4. Anonymous DNA records used for forensic validation, quality control, or establishment of a population statistics database;
    5. Unidentified persons or body parts;
    6. Missing persons and biological relatives of missing persons;
    7. Persons arrested for a felony offense who are required to provide a DNA sample under § 12-12-1006; and
    8. Juveniles adjudicated delinquent who are required to provide a DNA sample under § 9-27-357.

History. Acts 1997, No. 737, § 5; 2003, No. 1470, § 3; 2009, No. 974, § 11; 2015, No. 1084, § 2.

A.C.R.C. Notes. Former § 12-12-1101 et seq., referred to in subdivision (b)(3) of this section, was derived from Acts 1995, No. 922, §§ 1-3, which was subsequently repealed by Acts 1997, No. 737, § 23.

Acts 2009, No. 974, § 1, provided: “This act shall be known and may be cited as ‘Juli's Law’.”

Amendments. The 2009 amendment substituted “Missing persons and biological relatives” for “Relatives” in (b)(6); added (b)(7); and made minor stylistic changes throughout.

The 2015 amendment added (b)(8).

Case Notes

Constitutionality.

Supreme Court of Arkansas adopted the totality of the circumstances test and determined that the DNA collection statute did not constitute an unreasonable search and seizure under the Fourth Amendment; a convicted felon has a diminished expectation of privacy in the penal context, a blood test does not constitute an unduly extensive imposition on an individual's privacy and bodily integrity, and the state's interest in solving crimes is substantial. Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005).

12-12-1106. State DNA Data Bank.

  1. There is established the State DNA Data Bank.
  2. It shall serve as the repository of DNA samples collected under this subchapter.

History. Acts 1997, No. 737, § 6.

12-12-1107. State Crime Laboratory recommendation of additional offenses.

  1. The State Crime Laboratory may recommend to the General Assembly that it enact legislation for the inclusion of additional offenses for which DNA samples shall be taken and otherwise subjected to the provisions of this subchapter.
  2. In determining whether to recommend additional offenses, the laboratory shall consider those offenses for which DNA testing will have a substantial impact on the detection and identification of sex offenders and violent offenders.

History. Acts 1997, No. 737, § 7.

12-12-1108. Procedural compatibility with the Federal Bureau of Investigation.

The DNA identification system as established by the State Crime Laboratory shall be compatible with the procedures specified by the Federal Bureau of Investigation, including use of comparable test procedures, laboratory equipment, supplies, and computer software.

History. Acts 1997, No. 737, § 8.

12-12-1109. DNA sample required upon adjudication of guilt.

  1. A person who is adjudicated guilty for a qualifying offense on or after August 1, 1997, shall have a DNA sample drawn as follows:
      1. A person who is adjudicated guilty for a qualifying offense and sentenced to a term of confinement for that qualifying offense shall have a DNA sample drawn upon intake to a prison, jail, or any other detention facility or institution.
      2. If the person is already confined at the time of sentencing, the person shall have a DNA sample drawn immediately after the sentencing;
      1. A person who is adjudicated guilty for a qualifying offense shall have a DNA sample drawn as a condition of any sentence in which disposition will not involve an intake into a prison, jail, or any other detention facility or institution.
      2. Unless otherwise ordered by the court, the agency supervising the convicted offender shall determine the time and collection of the DNA sample;
    1. A person who is acquitted on the grounds of mental disease or defect of the commission of a qualifying offense and committed to an institution or other facility shall have a DNA sample drawn upon intake to that institution or other facility; and
    2. Under no circumstance shall a person who is adjudicated guilty for a qualifying offense be released in any manner after this disposition unless a DNA sample has been drawn.
  2. A person who has been adjudicated guilty for a qualifying offense before August 1, 1997, and who is still serving a term of confinement in connection therewith on August 1, 1997, shall not be released in any manner prior to the expiration of his or her maximum term of confinement unless and until a DNA sample has been drawn.
  3. All DNA samples taken pursuant to this section shall be taken in accordance with rules promulgated by the State Crime Laboratory in consultation with the Division of Correction, the Division of Community Correction, the Department of Human Services, and the Administrative Office of the Courts.
    1. When the state accepts a person from another state under any interstate compact or under any other reciprocal agreement with any county, state, or federal agency or any other provision of law, whether or not the person is confined or released, the acceptance is conditional on the person's providing a DNA sample if the person was convicted of an offense in any other jurisdiction which would be considered a qualifying offense as defined in § 12-12-1103(9) if committed in this state or if the person was convicted of an equivalent offense in any other jurisdiction.
    2. The person shall provide the DNA sample in accordance with the rules of the custodial institution or supervising agency.
    1. The requirements of this subchapter are mandatory and apply regardless of whether or not a court advises a person that a DNA sample must be provided to the State DNA Data Base and State DNA Data Bank as a condition of probation or parole.
    2. A person who has been sentenced to death or life without the possibility of parole or to any life or indeterminate term of incarceration is not exempt from the requirements of this subchapter.
    3. Any person subject to this subchapter who has not provided a DNA sample for any reason, including the person's release prior to July 16, 2003, an oversight, or because of the person's transfer from another jurisdiction, shall give a DNA sample for inclusion in the data base after being notified by the supervising agency.
    4. In the event that a person's DNA sample is not adequate for any reason, the person shall provide another DNA sample for analysis.

History. Acts 1997, No. 737, § 9; 2001, No. 218, § 1; 2003, No. 1265, § 6[5]; 2003, No. 1470, § 4; 2019, No. 315, § 869; 2019, No. 910, § 726.

A.C.R.C. Notes. Acts 2003, No. 1265 did not contain a section designated as Section 2.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (c).

The 2019 amendment by No. 910, in (c), substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction”.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

Case Notes

Constitutionality.

Supreme Court of Arkansas adopted the totality of the circumstances test and determined that the DNA collection statute did not constitute an unreasonable search and seizure under the Fourth Amendment; a convicted felon has a diminished expectation of privacy in the penal context, a blood test does not constitute an unduly extensive imposition on an individual's privacy and bodily integrity, and the state's interest in solving crimes is substantial. Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005).

Illustrative Cases.

In a rape case, although defendant argued that a blood sample had been illegally taken from him when he was incarcerated in 1997 for non-payment of child support, which was not a qualifying offense named in the State Convicted Offenders DNA Database Act, § 12-12-1101 et seq., and it was based on that sample that the state obtained a “hit,” because defendant had submitted to another blood sample in 2000 when incarcerated for burglary, pursuant to subsection (a) of this section, the appellate court found that the state met its burden of proof in establishing that the DNA evidence was admissible, pursuant to the inevitable discovery doctrine. Haynes v. State, 354 Ark. 514, 127 S.W.3d 456 (2003), cert. denied, 541 U.S. 1047, 124 S. Ct. 2168, 158 L. Ed. 2d 740 (2004).

Based on the clear, unambiguous language of subdivision (a)(2)(A) of this section and § 12-12-1103(1), it was clear that the trial court did not illegally sentence defendant by requiring him to submit to a DNA sample after he received a suspended sentence because whatever conflict § 5-4-101 might have provided, if any, was resolved by the fact that its definitions were used only for Title 5, Chapter 4. Davis v. State, 94 Ark. App. 240, 228 S.W.3d 529 (2006).

12-12-1110. Procedures of withdrawal, collection, and transmission of DNA samples.

      1. Each DNA sample required to be taken pursuant to § 12-12-1109 from persons who are incarcerated shall be taken by the agency supervising the convicted offender.
      2. DNA samples from persons who are not committed or sentenced to a term of confinement shall be drawn at another facility to be specified by the sentencing court.
      3. Only those individuals qualified to draw DNA samples in a medically approved manner shall draw a DNA sample to be submitted for analysis.
    1. In addition to the DNA sample, a right thumbprint shall be taken from the person from whom the DNA sample is drawn for the exclusive purpose of verifying the identity of the person.
    2. The agency or institution having custody or control or the agency providing supervision of persons convicted or adjudicated delinquent for qualifying offenses, as appropriate, is authorized to contract with third parties to provide for the collection of the DNA samples.
  1. The DNA sample and the right thumbprint provided in subdivision (a)(2) of this section shall be delivered to the State Crime Laboratory in accordance with guidelines established by the laboratory.
    1. Persons authorized by this section to draw blood shall not be criminally liable for drawing a DNA sample and transmitting the DNA sample pursuant to this subchapter if they perform these activities in good faith.
    2. Persons authorized to draw blood shall not be civilly liable for such activities when the persons acted in a reasonable manner and according to generally accepted medical and other professional practices.
    1. Authorized law enforcement and corrections personnel may employ reasonable force in cases where an individual refuses to submit to DNA testing authorized under this subchapter.
    2. No such employee shall be criminally or civilly liable for the use of reasonable force.
    1. Any person who refuses to provide a DNA sample required by this subchapter will receive no further sentence reduction for meritorious good time until such time as a sample is provided, and the Division of Correction shall notify the Parole Board regarding the refusal.
    2. Any person who is subject to this subchapter who knowingly refuses to provide the DNA sample after receiving notification of the requirement to provide a DNA sample shall be guilty of a Class D felony.

History. Acts 1997, No. 737, § 10; 2003, No. 1470, § 4; 2019, No. 910, § 727.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (e)(1).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-12-1111. Procedures for conduct, disposition, and use of DNA analysis.

    1. The State Crime Laboratory shall adopt rules governing the procedures to be used in the submission, identification, analysis, storage, and disposition of DNA samples and typing results of DNA samples submitted under this subchapter.
    2. These procedures shall also include quality assurance guidelines to ensure that DNA identification records meet standards for laboratories which submit DNA records to the State DNA Data Base.
  1. The typing results of DNA samples shall be securely stored in the data base, and records of testing shall be retained on file with the State Crime Laboratory consistent with the procedures established by the Federal Bureau of Investigation.
    1. Except as otherwise provided in § 12-12-1112, the tests to be performed on each DNA sample shall be used only for law enforcement identification purposes or to assist in the recovery or identification of human remains from disasters or for other humanitarian identification purposes, including identification of missing persons.
    2. The results of the analysis conducted pursuant to this subchapter from a person adjudicated delinquent may be used for any law enforcement agency identification purpose, including adult prosecution.
    3. The detention, arrest, or conviction of a person based on a data-base match or data-base information is not invalidated if the DNA sample was obtained or placed in the data base by mistake.
    1. The State Crime Laboratory is authorized to contract with third parties for purposes of this subchapter.
    2. Any third party contracting to carry out the functions of this subchapter shall be subject to the same restrictions and requirements of this subchapter, insofar as applicable, as the State Crime Laboratory as well as any additional restrictions imposed by the State Crime Laboratory.

History. Acts 1997, No. 737, § 11; 2003, No. 1470, § 4.

12-12-1112. Receipt and analysis of DNA samples — Availability of information.

  1. Receipt of DNA Samples by State Crime Laboratory.
    1. The State Crime Laboratory shall receive DNA samples, store, perform analysis or contract for DNA typing analysis with a qualified DNA laboratory that meets the guidelines as established by the State Crime Laboratory, classify and file the DNA record of identification characteristic profiles of DNA samples submitted under this subchapter, and make such information available from the State DNA Data Base as provided in this section.
    2. The State Crime Laboratory may contract out the storage of DNA typing analysis and may contract out DNA typing analysis to a qualified DNA laboratory that meets guidelines as established by the State Crime Laboratory.
  2. The results of the DNA profile of individuals in the State DNA Data Base shall be made available:
    1. To criminal justice agencies or to approved crime laboratories which serve these criminal justice agencies; or
    2. Upon written or electronic request and in furtherance of an official investigation of a criminal offense.
  3. Methods of Obtaining Information. The State Crime Laboratory shall adopt rules governing the methods of obtaining information from the State DNA Data Base and CODIS and procedures for verification of the identity and authority of the requester.
  4. Population Database.
    1. The State Crime Laboratory may create a separate population database composed of DNA samples obtained under this subchapter after all personal identification is removed.
    2. The State Crime Laboratory may share or disseminate the population database with other criminal justice agencies or crime laboratories that serve to assist the State Crime Laboratory with statistical databases.
    3. The population database may be made available to and searched by other agencies participating in the CODIS system.

History. Acts 1997, No. 737, § 12.

Case Notes

Cited: Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005).

12-12-1113. Removal and destruction of the DNA record and DNA sample.

    1. Any person whose DNA record has been included in the State DNA Data Base and whose DNA sample is stored in the State DNA Data Bank may apply to any circuit court for removal and destruction of the DNA record and DNA sample on the grounds that the adjudication of guilt that resulted in the inclusion of the person's DNA record in the data base or the inclusion of the person's DNA sample in the data bank has been reversed and the case dismissed.
    2. A copy of the application for removal and destruction shall be served on the prosecutor for the county in which the adjudication of guilt was obtained not less than twenty (20) days prior to the date of the hearing on the application.
    3. A certified copy of the order reversing and dismissing the adjudication of guilt shall be attached to an order removing and destroying the DNA record and DNA sample insofar as its inclusion rests upon that adjudication of guilt.
    1. Upon receipt of an order of removal and destruction and unless otherwise provided, the State Crime Laboratory shall purge the DNA record and other identifiable information from the data base and the DNA sample stored in the data bank covered by the order.
    2. If the entry in the data base reflects more than one (1) adjudication of guilt, that entry shall not be removed and destroyed unless and until the person has obtained an order of removal and destruction for each adjudication of guilt on the grounds contained in subsection (a) of this section.
    3. If one (1) of the bases for inclusion in the data base was other than adjudication of guilt, that entry shall not be subject to removal and destruction.

History. Acts 1997, No. 737, § 13.

12-12-1114. Confidentiality.

  1. All DNA profiles and samples submitted to the State Crime Laboratory pursuant to this subchapter shall be treated as confidential except as otherwise provided in this subchapter.
  2. All DNA records and DNA samples submitted to the laboratory pursuant to this subchapter are exempt from the Freedom of Information Act of 1967, § 25-19-101 et seq.

History. Acts 1997, No. 737, § 14; 2003, No. 1470, § 5.

12-12-1115. Prohibition against disclosure.

    1. Any person who by virtue of employment or official position or any person contracting to carry out any functions under this subchapter, including any officers, employees, and agents of this contractor who has possession of or access to individually identifiable DNA information contained in the State DNA Data Base or State DNA Data Bank shall not disclose the information in any manner to any person or agency not entitled to receive it, knowing that the person is not entitled to receive it.
    2. No person shall obtain individually identifiable DNA information from the data base or the data bank without authorization to do so.
    3. In order to maintain the computer system security of the State Crime Laboratory, data base, and data bank program, the computer software, and data-base structures used by the laboratory to implement this subchapter are confidential.
  1. Any person who knowingly violates this section is guilty of a Class D felony.

History. Acts 1997, No. 737, § 15; 2003, No. 1470, § 5; 2009, No. 974, § 12.

A.C.R.C. Notes. Acts 2009, No. 974, § 1, provided: “This act shall be known and may be cited as ‘Juli's Law’.”

Amendments. The 2009 amendment substituted “Class D felony” for “Class A misdemeanor” in (b).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-12-1116. Prohibition against disclosure for pecuniary gain.

Upon conviction, a person is guilty of a Class D felony if the person:

  1. Possesses or accesses individually identifiable DNA information contained in the State DNA Data Base or State DNA Data Bank;
  2. Carries out functions of this subchapter as an employee, official, or contractor, including an officer, employee, or agent of a contractor; and
  3. For pecuniary gain of the person or another person, knowingly discloses individually identifiable DNA information contained in the data base or data bank in any manner to a person or agency not authorized to receive the individually identifiable DNA information contained in the data base or data bank.

History. Acts 1997, No. 737, § 16; 2009, No. 974, § 13.

A.C.R.C. Notes. Acts 2009, No. 974, § 1, provided: “This act shall be known and may be cited as ‘Juli's Law’.”

Amendments. The 2009 amendment rewrote the section.

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-12-1117. Injunctions.

The State Crime Laboratory or any other aggrieved individual or agency may institute an action in a court of competent jurisdiction against any person, agency, or organization to enjoin any criminal or noncriminal justice agency, organization, or individual from violating the provisions of this subchapter or to compel the agency, organization, or person to comply with the provisions of this subchapter.

History. Acts 1997, No. 737, § 17.

12-12-1118. Mandatory cost.

  1. Unless finding that undue hardship would result, the sentencing court shall assess at the time of sentencing a mandatory fine of not less than two hundred fifty dollars ($250) on any person who is required to provide a DNA sample under this subchapter.
  2. The fine provided in subsection (a) of this section and collected in circuit court or district court shall be remitted by the tenth day of each month to the Administration of Justice Fund Section of the Office of Administrative Services of the Department of Finance and Administration on a form provided by that office for deposit into the DNA Detection Fund as established by § 12-12-1119.

History. Acts 1997, No. 737, § 18; 2003, No. 1765, § 5.

12-12-1119. DNA Detection Fund.

  1. There is hereby established on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State a fund to be known as the “DNA Detection Fund”.
  2. This fund shall consist of special revenues collected pursuant to § 12-12-1118, there to be used by the State Crime Laboratory for the administration of this subchapter.

History. Acts 1997, No. 737, § 19.

Cross References. DNA Detection Fund, § 19-6-447.

12-12-1120. Authority of law enforcement officers.

Nothing in this subchapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize DNA samples for law enforcement purposes.

History. Acts 1997, No. 737, § 20.

Subchapter 12 — Victim Notification System

Effective Dates. Acts 2015, No. 1265, § 12: Apr. 8, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is an alarming lack of transparency in the corrections system regarding information about inmates who will soon be coming up for parole and released into society; that it is vital to public safety that the public know exactly what potential threats exist from inmates in the Department of Correction who will soon be introduced back into society; and that this act is immediately necessary because the sooner inmate, parolee, and probationer information is made available to the public, the sooner the public is able to evaluate who is and who is not a threat to society. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-12-1201. Authorization.

The Arkansas Crime Information Center is authorized to develop and operate a computerized victim notification system which shall provide:

  1. A mechanism for victims of criminal offenses or the victim's next of kin to access information about proceedings in the criminal justice and corrections systems by use of a twenty-four-hour toll-free in-watts telephone service; and
  2. Automatic notification by computerized telephone service to the victims of criminal offenses or the victim's next of kin of:
    1. An inmate's, parolee's, or probationer's status, including the location of the inmate, parolee, or probationer; and
    2. A person's release or modification of a conditional release from the custody of the Arkansas State Hospital, a local or regional hospital, a local or regional mental health facility, or a local or regional jail to which the person has been committed by a court when the person committed a criminal act against the victim but was adjudicated in the criminal case to have a mental disease or defect under § 5-2-301 et seq.

History. Acts 1997, No. 1250, § 1; 2015, No. 1265, § 3; 2017, No. 429, § 1.

Amendments. The 2015 amendment, in (2), substituted “parolee's, or probationer's” for “custody” and added “parolee, or probationer”.

The 2017 amendment redesignated part of former (2) as (2)(A); substituted “of” for “about” at the end of the introductory language of (2); and added (2)(B).

12-12-1202. Information provided.

  1. A victim notification may be accomplished by means of the computerized victim notification system established under § 12-12-1201 if the notification is required under:
    1. Section 12-29-114, pertaining to escape;
    2. Section 16-21-106, pertaining to assistance to victims and witnesses of crimes;
    3. Section 16-93-204, pertaining to executive clemency;
    4. Section 16-93-615, pertaining to transfer hearings;
    5. Section 16-93-702, pertaining to parole;
    6. Section 16-97-102, pertaining to sentencing; or
    7. Section 5-2-315, pertaining to discharge or conditional release from a commitment by a court to the Arkansas State Hospital.
  2. The computerized victim notification system established under § 12-12-1201 shall also include:
    1. Information about an inmate's custody status in regard to furloughs, work release, and community correction programs, if applicable;
    2. Information about a person who was committed to the Arkansas State Hospital due to his or her having a mental disease or defect under § 5-2-301 et seq. in regard to the status of the person being discharged or conditionally released under § 5-2-315, including the location and name of the local or regional hospital, local or regional mental health facility, or local or regional jail in which the person is committed if the person is not being held at the Arkansas State Hospital; and
    3. The location of information publicly available under § 12-27-145.

History. Acts 1997, No. 1250, § 2; 2005, No. 1962, § 44; 2011, No. 570, § 72; 2015, No. 1265, § 4; 2017, No. 429, § 2.

A.C.R.C. Notes. Acts 2011, No. 570, § 1, provided: “Legislative intent. The intent of this act is to implement comprehensive measures designed to reduce recidivism, hold offenders accountable, and contain correction costs.”

Amendments. The 2005 amendment deleted former (a)(6); redesignated former (a)(7) as present (a)(6); and substituted “correction” for “punishment” in (b).

The 2011 amendment substituted “16-93-615” for “16-93-206” in (a)(4).

The 2015 amendment substituted “under” for “pursuant to” in the introductory language of (a); inserted designation (b)(1); and added (b)(2).

The 2017 amendment substituted “if the notification is required under” for “if under” in the introductory language of (a); added (a)(7); added “if applicable” in (b)(1); inserted (b)(2); and redesignated former (b)(2) as (b)(3).

Subchapter 13 — Sex Offenders Assessment

12-12-1301 — 12-12-1303. [Repealed.]

Publisher's Notes. This subchapter was repealed by Acts 2003 (2d Ex. Sess.), No. 21, § 13. The subchapter was derived from the following sources:

12-12-1301. Acts 1999, No. 1353, § 15; 2001, No. 1650, § 5; 2001, No. 1740, § 1.

12-12-1302. Acts 1999, No. 1353, § 15; 2001, No. 1740, § 2.

12-12-1303. Acts 1999, No. 1353, § 15; 2001, No. 1740, § 3.

For current law, see the Sex Offender Registration Act of 1997, § 12-12-901 et seq.

Subchapter 14 — Task Force on Racial Profiling

Research References

ALR.

Construction and Application of State Statutory Provisions Prohibiting Racial Profiling. 102 A.L.R.6th 621 (2015).

12-12-1401. Definition.

  1. As used in this subchapter, “racial profiling” means the practice of a law enforcement officer's relying to any degree on race, ethnicity, national origin, or religion in selecting which individuals to subject to routine investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial routine investigatory activity.
  2. “Racial profiling” does not include reliance on the criteria in combination with other identifying factors when the law enforcement officer is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the description of the suspect and the description is thought to be reliable and locally relevant.

History. Acts 2003, No. 1207, § 1.

Research References

ALR.

Racial Profiling by Law Enforcement Officers in Connection with Traffic Stops as Infringement of Federal Constitutional Rights or Federal Civil Rights Statutes. 91 A.L.R. Fed. 2d 1 (2015).

Case Notes

Construction.

Police officer engaged in racial profiling prohibited by state statute, the state constitution, the U.S. Constitution, and the city's written policy and the officer also illegally seized one of the plaintiffs, thereby violating U.S. Const., Amend. IV and the state constitution; the police chief, who supervised the officer and ran the police department, was deliberately indifferent to ongoing and systemic racial profiling of which he was aware and municipal liability was imposed on the city as it permitted the officer to establish and to carry out a custom and practice of engaging in racial profiling. The officer's true objective was not to enforce traffic laws prohibiting people from driving with their vision obstructed or other minor infractions; rather, the neutral traffic laws were used as a pretext for harassing Hispanics (whether here legally or illegally), for obtaining money through fines and towing charges for the financially troubled city, and to provide an incentive for Hispanics to move out of the area—clearly illegitimate objectives. Giron v. City of Alexander, 693 F. Supp. 2d 904 (E.D. Ark. 2010).

12-12-1402. Prohibition on racial profiling.

  1. No member of the Division of Arkansas State Police, the Arkansas Highway Police Division of the Arkansas Department of Transportation, a county sheriff's department, or a municipal police department, constable, or any other law enforcement officer of this state shall engage in racial profiling.
  2. The statements of policy and definitions contained in this subchapter shall not be construed or interpreted to be contrary to the Arkansas Rules of Criminal Procedure or the United States Constitution or the Arkansas Constitution.

History. Acts 2003, No. 1207, § 2; 2005, No. 2136, § 3; 2017, No. 707, § 16.

Amendments. The 2005 amendment rewrote (b).

The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Case Notes

Construction.

Police officer engaged in racial profiling prohibited by state statute, the state constitution, the U.S. Constitution, and the city's written policy and the officer also illegally seized one of the plaintiffs, thereby violating U.S. Const., Amend. IV and the state constitution; the police chief, who supervised the officer and ran the police department, was deliberately indifferent to ongoing and systemic racial profiling of which he was aware and municipal liability was imposed on the city as it permitted the officer to establish and to carry out a custom and practice of engaging in racial profiling. The officer's true objective was not to enforce traffic laws prohibiting people from driving with their vision obstructed or other minor infractions; rather, the neutral traffic laws were used as a pretext for harassing Hispanics (whether here legally or illegally), for obtaining money through fines and towing charges for the financially troubled city, and to provide an incentive for Hispanics to move out of the area—clearly illegitimate objectives. Giron v. City of Alexander, 693 F. Supp. 2d 904 (E.D. Ark. 2010).

12-12-1403. Policies.

  1. The Division of Arkansas State Police, the Arkansas Highway Police Division of the Arkansas Department of Transportation, all county sheriffs' departments, municipal police departments, constables, and all other law enforcement agencies of this state shall adopt a written policy that:
    1. Prohibits racial profiling as defined in § 12-12-1401;
    2. Requires that law enforcement officers have reasonable suspicion prior to a stop, arrest, or detention;
    3. Defines reasonable suspicion to ensure that individuals are stopped for valid reasons and that race, ethnicity, national origin, or religion is not the basis for stops for violations for which nongroup members would not be stopped;
    4. Requires law enforcement officers to identify themselves by full name and jurisdiction and state the reason for the stop and when possible present written identification;
    5. Provides for a systematic review process by supervising personnel within a department or law enforcement agency for investigating allegations of racial profiling to determine whether any officers of the law enforcement agency have a pattern of stopping or searching persons, and if the review reveals a pattern, requires an investigation to determine whether a trend is present indicating that an officer may be using race, ethnicity, national origin, or religion as a basis for investigating other violations of criminal law;
    6. When a supervisor or other reviewer has detected a pattern of racial profiling, provides timely assistance, remediation, or discipline for individual law enforcement officers who have been found to be profiling by race, ethnicity, national origin, or religion;
    7. Ensures that supervisors will not retaliate against officers who report racial profiling by others; and
    8. Provides standards for the use of in-car audio and visual equipment, including the duration for which the recordings are preserved.
    1. Each law enforcement agency shall include a copy of the law enforcement agency's policy in the annual report that the law enforcement agency submits to Arkansas Legislative Audit.
    2. Arkansas Legislative Audit shall submit to the Attorney General the name of any law enforcement agency that fails to comply with subdivision (b)(1) of this section, and the Attorney General shall take such action as may be necessary to enforce this section.
    3. Arkansas Legislative Audit shall forward to the Attorney General a copy of each law enforcement agency's policy received by Arkansas Legislative Audit. The Attorney General shall review each law enforcement agency's policy to ensure that the law enforcement agency's policy meets the standards required by law.
    1. Each law enforcement agency may promote public awareness of the law enforcement agency's efforts to comply with the mandates of this section.
    2. In addition, each law enforcement agency shall make available for public inspection a copy of the law enforcement agency's policy.

History. Acts 2003, No. 1207, § 3; 2005, No. 2136, § 4; 2007, No. 1048, § 2; 2009, No. 165, § 8; 2017, No. 707, § 17.

A.C.R.C. Notes. As enacted by Acts 2003, No. 1207, § 3, subsection (a) of this section began:

“Not later than January 1, 2004.”

Amendments. The 2005 amendment added (b).

The 2007 amendment added (b)(2) and (3) and made related changes; and added (c).

The 2009 amendment, in (b)(3), inserted “law enforcement agency’s” in three places and made a stylistic change.

The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in the introductory language of (a).

Case Notes

Cited: Giron v. City of Alexander, 693 F. Supp. 2d 904 (E.D. Ark. 2010).

12-12-1404. Training.

  1. Each law enforcement agency shall provide annual training to all officers that:
    1. Emphasizes the prohibition against racial profiling;
    2. Ensures that operating procedures adequately implement the prohibition against racial profiling and that the law enforcement agency's law enforcement personnel have copies of, understand, and follow the operating procedures; and
    3. Includes foreign language instruction, if possible, to ensure adequate communication with residents of a community.
  2. The course or courses of instruction and the guidelines shall stress understanding and respect for racial, ethnic, national, religious, and cultural differences and development of effective and appropriate methods of carrying out law enforcement duties.
    1. The Arkansas Commission on Law Enforcement Standards and Training shall adopt an initial training module concerning diversity and racial sensitivity for recruits and officers.
    2. The commission shall also adopt a training module for biennial recertification for all recruits and officers who have completed the initial training module.
    1. The commission shall promulgate rules that set significant standards for all training required in this section.
    2. The commission may make additions, amendments, changes, or alterations to the rules in accordance with the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
    3. The commission may review and recommend changes to the racial profiling policy of any law enforcement agency.
    4. Upon request, the racial profiling policy of any law enforcement agency shall be made available to the commission for the purpose described in subdivision (d)(3) of this section.
    5. The commission may establish a toll-free hotline and an email address to receive complaints concerning racial profiling.

History. Acts 2003, No. 1207, § 4; 2005, No. 2136, § 5; 2011, No. 779, § 11; 2017, No. 250, § 6.

Amendments. The 2005 amendment added (c) and (d).

The 2011 amendment deleted former (c)(2) and redesignated the remaining subdivisions accordingly.

The 2017 amendment, in (d)(1), substituted “The commission” for “By January 1, 2006, the commission” and “rules that set” for “rules that will set”.

12-12-1405. Racial profiling hotline.

    1. The Attorney General shall establish and publish procedures to receive complaints concerning racial profiling.
    2. The procedures shall include the operation of a toll-free hotline and may include procedures to receive written complaints through the mail, email, or facsimile.
  1. The Attorney General shall maintain statewide statistics on complaints received concerning racial profiling.
  2. The Attorney General annually shall report statewide statistics on complaints concerning racial profiling received under this section during a year no later than October 1 of the next year to the Legislative Council.
  3. If the Attorney General suspects that a violation of law has occurred, the Attorney General shall refer the matter to the appropriate prosecuting attorney or other appropriate legal authority.

History. Acts 2009, No. 768, § 1; 2017, No. 250, § 7.

Amendments. The 2017 amendment deleted “and the Task Force on Racial Profiling” at the end of (c).

Subchapter 15 — Arkansas State Criminal Records Act

Effective Dates. Acts 2003 (1st Ex. Sess.), No. 63, § 12: May 13, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the dissemination of complete, accurate, and timely criminal history information is necessary for the protection of the people of the State of Arkansas and this act is needed to provide that necessary access to the criminal history information. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2005, No. 1573, § 6: Apr. 5, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the dissemination of complete, accurate, and timely criminal history information is necessary for the protection of the people of the State of Arkansas; and that this act is needed to provide necessary access to criminal history information. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2005, No. 1941, § 2: Apr. 11, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that exclusion of persons who are registered sex offenders or are required to register as a sex offender from certain employment or licensure is necessary for the protection of children, elderly, and developmentally disabled persons of the State of Arkansas; that this act will allow the disqualification of registered sex offenders or persons required to register as a sex offender from certain employment or licensure; and that this act is immediately necessary in order to allow state agencies and other entities to disqualify a registered sex offender or person required to register as a sex offender from licensing or employment. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2015, No. 1185, § 9: Jan. 1, 2016.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-12-1501. Title.

This subchapter shall be known as the “Arkansas State Criminal Records Act”.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 1.

12-12-1502. Intent.

  1. It is the intent of this subchapter to:
    1. Provide one (1) source for obtaining the most accurate and complete criminal history information;
    2. Allow dissemination of criminal history information to employers, professional licensing boards, and any entity mandated by Arkansas law to perform background checks through the Department of Arkansas State Police pertaining to all felony arrest information and all conviction information;
    3. With the written consent of the student or prospective student, allow electronic dissemination of criminal history information to an institution of higher education for a student enrolled in, and a prospective student seeking enrollment in, a medical, nursing, pharmacy, or other health-related course of study at an institution of higher education located in Arkansas;
    4. Allow dissemination of criminal history information to the Arkansas Public Defender Commission for use in defense of criminal defendants. Expunged and sealed criminal history information shall be released to the commission only for the purposes of use for impeachment of witnesses; and
    5. Allow dissemination of criminal history information to the public upon proper request and payment without requiring the written consent of the subject of the request.
    1. The department shall be the agency responsible for the dissemination of criminal history information under this subchapter.
    2. The Arkansas Crime Information Center may disseminate criminal history information as authorized by law.
  2. Felony arrest information that has had a disposition of acquittal, dismissal, or nolle prosequi entered into the central repository shall not be released under this subchapter.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 2; 2005, No. 1573, § 2; 2005, No. 2213, § 2; 2007, No. 1586, § 1; 2015, No. 1185, § 1.

Amendments. The 2005 amendment by No. 1573 inserted “and any entity mandated by Arkansas law to perform background checks through the Department of Arkansas State Police” in (a)(2).

The 2005 amendment by No. 2213 added (a)(3).

The 2007 amendment added (a)(4), and made related changes.

The 2015 amendment added (a)(5).

Cross References. Arkansas Crime Information Center Supervisory Board, duties and responsibilities, § 12-12-203.

Department of Arkansas State Police, duties, powers, restrictions, municipal police barred from certain highways, § 12-8-106.

Registration, certification, and licensing for criminal offenders, § 17-1-103.

12-12-1503. Definitions.

As used in this subchapter:

  1. “Administration of criminal justice” means performing functions of investigation, apprehension, detention, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders, including criminal identification activities and the collection, maintenance, and dissemination of criminal justice information;
    1. “Arrest records” or “arrest information” means felony arrest information in which conviction or disposition information has not been entered into the central repository.
    2. “Arrest records” or “arrest information” does not include:
      1. Misdemeanor arrest information;
      2. Felony arrest information that has a disposition of acquittal, dismissal, or nolle prosequi entered into the central repository; or
      3. Felony arrest information if more than three (3) years have elapsed from the date of the felony arrest;
  2. “Bureau” means the Identification Bureau of the Department of Arkansas State Police, which may maintain fingerprint card files and other identification information on individuals;
  3. “Central repository” means the Arkansas Crime Information Center, which collects, maintains, and disseminates criminal history information;
    1. “Conviction information” means criminal history information disclosing that a person has pleaded guilty or nolo contendere to or was found guilty of a criminal offense in a court of law, together with sentencing information.
    2. “Conviction information” does not include a sealed or expunged record;
    1. “Criminal history information” means a record compiled by the central repository or the bureau on an individual consisting of names, identification data, notations of arrests, detentions, indictments, informations, or other formal criminal charges obtained from criminal justice agencies, including any dispositions of the charges, as well as notations on correctional supervision and release.
    2. “Criminal history information” does not include the following:
      1. Fingerprint records on individuals not involved in the criminal justice system, juvenile records, or driver history records;
      2. Original records of entry maintained by criminal justice agencies, court indices, records of public judicial proceedings, court decisions, opinions, and information disclosed during public judicial proceedings; and
      3. Records when the release is made by the specific court, law enforcement agency, or prosecutor that created the records.
    3. This subdivision (6) does not prohibit the release of information by the specific agency that created the record;
  4. “Criminal justice agency” means a government agency or any subunit thereof that is authorized by law to perform the administration of criminal justice and that allocates more than one-half (1/2) of its annual budget to the administration of criminal justice;
    1. “Disposition” means information describing the outcome of any criminal charges, including notations that law enforcement officials have elected not to refer the matter to a prosecutor, that a prosecutor has elected not to begin criminal proceedings, or that proceedings have been indefinitely postponed.
    2. “Disposition” includes acquittals, dismissals, probations, charges pending due to mental disease or defect, guilty pleas, nolle prosequi, nolo contendere pleas, findings of guilt, youthful offender determinations, first offender programs, pardons, commuted sentences, mistrials in which the defendant is discharged, executive clemencies, paroles, releases from correctional supervision, deaths, or a finding that the person must register as a sex offender;
    1. “Dissemination” means disclosing criminal history information or disclosing the absence of criminal history information to any requestor that has applied and been approved by the Department of Arkansas State Police to receive the criminal history information.
    2. “Dissemination” does not mean:
      1. The furnishing of information by a department to personnel of a participating agency when criminal justice agencies jointly participate in the maintenance of a single recordkeeping system as an alternative to maintaining separate records; and
      2. The furnishing of information by any criminal justice agency to another for the purpose of the administration of criminal justice;
    1. “Employer” means a person or an entity that employs the services of another person or for whom an employee works and receives payment of wages or salary.
    2. “Employer” includes a person acting on an employer's behalf;
  5. “Pending information” means felony criminal history information in some stage of active prosecution or processing;
  6. “Requestor” means:
    1. The employer, professional licensing board, institution of higher education, Arkansas Public Defender Commission, or any entity mandated or authorized by Arkansas law to perform criminal background checks through the department or any person who has obtained the written authorization of the subject of the record that has submitted an inquiry into an individual's criminal history information under this subchapter; or
    2. A person who has submitted an inquiry into an individual's criminal history information under § 12-12-1506(d); and
  7. “Seal” or “expunge” means that the record or records in question shall be sealed, sequestered, and treated as confidential as provided by law, including pardons issued by the Governor.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 3; 2005, No. 1573, § 3; 2005, No. 2213, §§ 3, 4; 2007, No. 59, § 2; 2007, No. 571, § 2; 2007, No. 1586, § 2; 2015, No. 1185, § 2.

A.C.R.C. Notes. Acts 2007, No. 571, § 1, provided:

“Legislative intent. It is the intent of this act to allow the Department of Arkansas State Police to release certain criminal history information to persons performing background checks on behalf of an employer and persons who have the written consent of the subject.”

Amendments. The 2005 amendment by No. 1573 substituted “requestor” for “agency, professional licensing board, business designated by state or federal law, or any other employer legally doing business in and paying taxes to the State of Arkansas” in (9)(A); substituted “employer, professional licensing board” for “employer, or professional licensing board” in (11); and made minor punctuation changes.

The 2005 amendment by No. 2213 substituted “requestor” for “agency, professional licensing board, business designated by state or federal law, or any other employer legally doing business in and paying taxes to the State of Arkansas” in (9)(A).

The 2007 amendment by No. 59 added (2)(B)(iii); inserted the designations of (i) and (ii) in former (2)(B), and made related changes.

The 2007 amendment by No. 571 inserted present (10) and redesignated the remaining subsections accordingly; and inserted “or any person who has obtained the written authorization of the subject of the record” in (12).

The 2007 amendment by No. 1586 inserted “Arkansas Public Defender Commission” in present (12), and made a related change.

The 2015 amendment added designation (12)(A); inserted “or authorized” in (12)(A); and added (12)(B).

Cross References. Registration, certification, and licensing for criminal offenders, § 17-1-103.

12-12-1504. Information required — Exceptions.

  1. The Department of Arkansas State Police and the Arkansas Crime Information Center shall disseminate criminal history information pertaining to any felony arrest, detention, indictment, information, or other formal felony criminal charge to the extent entries have been made at the time of the request for the criminal history information.
  2. Any event, activity, or any portion of the criminal history information which has not been processed by the department or the center shall not be required to be included in the dissemination.
  3. Requests for information, supporting documents, and any responses under this subchapter are not subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.
  4. This subchapter shall not affect any record or information that may be accessed by the public under the Freedom of Information Act of 1967, § 25-19-101 et seq.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 4.

Cross References. Arkansas Crime Information Center Supervisory Board, duties and responsibilities, § 12-12-203.

Department of Arkansas State Police, duties, powers, restrictions, municipal police barred from certain highways, § 12-8-106.

12-12-1505. Disposition of data to the central repository.

  1. Criminal history information shall be submitted to the Arkansas Crime Information Center as required under § 12-12-1007.
  2. The central repository shall enter these disposition records in an expeditious manner.
  3. Criminal history information provided to the central repository or the Department of Arkansas State Police shall not be subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 5.

12-12-1506. Unrestricted information — Records — Immunity from civil liability.

    1. All conviction information and felony arrest records may be disseminated as provided in this subchapter.
    2. Any criminal history information of felony arrest records and all conviction information that pertains to a person currently being processed by the criminal justice system, including during the entire period of correctional supervision extending through final discharge from parole, may be disseminated without restriction.
      1. The Identification Bureau of the Department of Arkansas State Police, the Arkansas Crime Information Center, or a third party shall be responsible for the maintenance of information pertaining to dissemination of criminal history information.
      2. The information pertaining to dissemination required to be maintained shall be retained for a period of not less than three (3) years for security purposes.
        1. Each requestor that is allowed access to criminal history information under this subchapter with written consent of the subject of the request shall maintain the written consent document in its files for at least three (3) years.
        2. Access to criminal history information and sealed or expunged records for the Arkansas Public Defender Commission is authorized without the consent of the subject of the request. However, the commission shall maintain records of the reason the dissemination was requested for a period of three (3) years.
        3. Any requestor that is granted access to criminal history information under this subchapter shall not disseminate the criminal history information.
      1. These files and any written consent documents shall be subject to inspection by the Department of Arkansas State Police or the center.
  1. This section allows the dissemination of information concerning persons who are required to register as sex offenders.
  2. A criminal justice agency and its employees and officials shall be immune from civil liability except in instances of gross negligence or intentional malice for dissemination of criminal history information under this subchapter.
  3. The department shall provide criminal history information to any person upon proper request and payment of the requisite fee and without requiring written consent of the subject of the request.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 6; 2005, No. 1573, § 4; 2005, No. 2213, § 5; 2007, No. 1586, § 3; 2015, No. 1185, § 3.

Amendments. The 2005 amendment by No. 1573, in (a)(4)(A)(i), substituted “requestor” for “employer or professional licensing board,” inserted “for at least three (3) years”; and substituted “requestor” for “employer or professional licensing board” in (4)(A)(ii).

The 2005 amendment by No. 2213, in (a)(4)(A)(i), substituted “requestor” for “employer or professional licensing board” inserted “for at least three (3) years,” an added “student or prospective student”; and substituted “requestor” for “emoployer or professional licensing board” in (4)(A)(ii).

The 2007 amendment inserted (a)(4)(A)(ii), and redesignated former (ii) as present (iii).

The 2015 amendment inserted “during” in (a)(2); rewrote (a)(4)(A)(i); in (a)(4)(B), inserted “any written”, substituted “documents” for “forms”, and added “or the center” to the end; and added (d).

Cross References. Arkansas Crime Information Center Supervisory Board, duties and responsibilities, § 12-12-203.

Identification Bureau of the Department of Arkansas State Police, § 12-12-1005.

Registration, certification, and licensing for criminal offenders, § 17-1-103.

12-12-1507. Administration.

    1. Release of criminal history information under this subchapter shall be made only by the Identification Bureau of the Division of Arkansas State Police and the Arkansas Crime Information Center as authorized by law.
    2. The Division of Arkansas State Police and the center may adopt rules consistent with the provisions and intent of this subchapter.
  1. The division and the center may contract with the Information Network of Arkansas under the Information Network of Arkansas Act, § 25-27-101 et seq., or any other qualified third-party vendor in the establishment of the gateway or means of electronically processing transactions under this subchapter.
    1. The division shall not process a request for a Federal Bureau of Investigation background check unless a corresponding state background check through the Identification Bureau of the Division of Arkansas State Police has also been properly requested pursuant to this subchapter.
    2. The requirements of subdivision (c)(1) of this section may be waived upon written authorization of the Director of the Division of Arkansas State Police.
  2. The Division of Arkansas State Police Automated Fingerprint Identification System may access and use the National Fingerprint File and Interstate Identification Index as provided by the Federal Bureau of Investigation when the Arkansas Code authorizes a fingerprint-based Federal Bureau of Investigation check for a noncriminal justice purpose and a positive identification based on fingerprints is made.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 7; 2005, No. 1573, § 5; 2009, No. 168, § 2; 2019, No. 315, § 870; 2019, No. 910, § 5858.

Amendments. The 2005 amendment added (c).

The 2009 amendment added (d).

The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (a)(2).

The 2019 amendment by No. 910, throughout the section, substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” and “division” for “department”.

Cross References. Arkansas Crime Information Center Supervisory Board, duties and responsibilities, § 12-12-203.

Identification Bureau of the Department of Arkansas State Police, § 12-12-1005.

12-12-1508. Access to information — Fee.

  1. Criminal history information or requestor information collected and maintained under this subchapter is not considered public record information for dissemination within the intent and meaning of the Freedom of Information Act of 1967, § 25-19-101 et seq.
  2. A fee for providing criminal history information shall be charged for each criminal history information requested.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 8.

12-12-1509. Right of review and challenge.

    1. A person may review and challenge his or her criminal history information under § 12-12-1013.
    2. No fee shall be charged for the review or challenge of criminal history information.
    1. A person may go to any law enforcement agency, provide positive verification of his or her identity, be fingerprinted by the law enforcement agency, and supply written details of the errors in the criminal history information.
    2. The local law enforcement agency must send the fingerprint card and information directly to the Identification Bureau of the Department of Arkansas State Police.
    3. The law enforcement agency shall verify that the identification of the person and the fingerprint card information are correct.
    4. There shall be no charge from the Department of Arkansas State Police or the Arkansas Crime Information Center for this review process.
    1. After positive identification verification, a person may review his or her requestor information maintained through the department or its designee.
    2. No fee shall be charged for this review.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 9.

12-12-1510. Fees.

    1. Except as provided in subsection (c) of this section, a fee may be charged for providing criminal history information under this subchapter.
    2. The amount of the fee shall be determined jointly by the Department of Arkansas State Police and the Arkansas Crime Information Center and shall not exceed twenty dollars ($20.00), exclusive of any third-party electronic processing fee charges.
      1. The fees shall be credited fifty percent (50%) to the Crime Information System Fund and fifty percent (50%) to the State Police Equipment Fund.
      2. The center may utilize these funds for the operation or expansion of the automated criminal justice information system, subject to legislative appropriations.
      3. The department may utilize these funds for the operation, expansion, and integration of the automated fingerprint identification system, which includes components and software to support a total integrated solution associated with the system.
  1. Special revenues deposited into the Crime Information System Fund and the State Police Equipment Fund may be used for personal services and operating expenses as provided by law, and any special revenues unused at the end of any fiscal year shall be carried forward.
  2. Any fee collected pursuant to a release of information under § 12-12-1506(d) shall be determined jointly by the department and the center and shall not exceed twenty dollars ($20.00) per request, exclusive of any third-party electronic processing or payment fee charged, and shall be credited as follows:
    1. Thirty-eight percent (38%) as special revenues to the State Police Equipment Fund, which may be utilized for the automated fingerprint identification system, and includes components and software to support a total integrated solution associated with the system;
    2. Thirty-eight percent (38%) as special revenues to the Crime Information System Fund, which may be used for the operation or expansion of the automated criminal justice information system; and
    3. Twenty-four percent (24%) to the Crime Victims Reparations Revolving Fund.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 10; 2015, No. 1185, § 4.

Amendments. The 2015 amendment added “Except as provided in subsection (c) of this section” at the beginning of (a)(1); and added (c).

12-12-1511. Penalty.

Any person who shall knowingly release or disclose to any unauthorized person any information collected and maintained under this subchapter and any person who knowingly obtains the information for purposes not authorized by this subchapter shall be deemed guilty of a Class A misdemeanor.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 11.

12-12-1512. Rules.

The Division of Arkansas State Police and the Arkansas Crime Information Center may promulgate rules as are necessary to implement, enforce, and administer this subchapter.

History. Acts 2003 (1st Ex. Sess.), No. 63, § 11; 2019, No. 315, § 871.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in the section heading and in the text.

Cross References. Arkansas Crime Information Center Supervisory Board, duties and responsibilities, § 12-12-203.

Department of Arkansas State Police, duties, powers, restrictions, municipal police barred from certain highways, § 12-8-106.

12-12-1513. Status as a registered sex offender.

  1. The General Assembly finds that:
    1. The fact that a person is a registered sex offender or is required to register as a sex offender is releasable to employers and licensing boards;
    2. Certain agencies are mandated to perform background checks on persons who work with children, elderly persons, and individuals with intellectual or other developmental disabilities;
    3. The offenses for which an agency may exclude a person from employment are outlined in Arkansas law, but being a registered sex offender or being required to register as a sex offender is not listed as a disqualification;
    4. It is a primary government interest to protect the public against sex offenders. A registered sex offender poses a higher risk of reoffending; therefore, release of certain information will assist in protecting the safety of the public;
    5. Protection of the safety of the public will be increased by allowing agencies to immediately take the actions or precautions they deem necessary before employing or licensing the registrant or after employment or licensing of the registrant including, but not limited to, termination of employment or revocation of license;
    6. The provisions of this section are civil in nature and for the protection of the public; and
    7. It is the intent of this section that being a registered sex offender as a result of a court order or that being required to register as a sex offender as a result of a court order may exclude a person from employment or licensure with agencies and boards that are mandated by Arkansas law to perform criminal history background checks.
  2. Whenever a noncriminal justice criminal history background check is performed on a person under the provisions of any criminal background check requirement contained in the Arkansas Code for employment, licensure, or any other purpose, the person may be disqualified for employment, licensure, or any other purpose for which the background check was conducted if it is determined that a court has entered an order requiring the person to register as a sex offender.

History. Acts 2005, No. 1941, § 1; 2019, No. 1035, § 8.

Amendments. The 2019 amendment substituted “individuals with intellectual or other developmental disabilities” for “developmentally disabled persons” in (a)(2).

Cross References. Sex Offender Registration Act of 1997, § 12-12-901 et seq.

Subchapter 16 — Criminal History for Volunteers Act

Effective Dates. Acts 2005, No. 1778, § 2: Apr. 6, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the dissemination of complete, accurate, and timely criminal background check information for volunteers is necessary for the protection of children, the elderly, and developmentally disabled persons in the State of Arkansas. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2013, No. 575, § 3: Apr. 2, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that Arkansas public school students and their parents or guardians should be confident that any person who is allowed to volunteer at a school district or an education service cooperative does not have a criminal record and is not a potential threat to the safety of children; and that this act is immediately necessary to afford additional protection to school children from all persons in school districts or education service cooperatives who might sexually, physically, or emotionally abuse students entrusted into their care. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-12-1601. Title.

This subchapter shall be known and may be cited as the “Criminal History for Volunteers Act”.

History. Acts 2005, No. 1778, § 1.

12-12-1602. Purpose.

The purpose of this subchapter is to allow volunteer organizations to request and receive information regarding the qualifications of an individual who volunteers his or her time or services to work with children, the elderly, victims of domestic abuse, or individuals with disabilities based upon the individual's state and federal criminal history.

History. Acts 2005, No. 1778, § 1.

12-12-1603. Definitions.

As used in this subchapter:

  1. “Children” means individuals under sixteen (16) years of age;
  2. “Conviction” means that an individual has been found guilty of or has pleaded guilty or nolo contendere to any offense by any court in the State of Arkansas or of any similar offense by a court in another state or a federal court regardless of whether the conviction has been sealed or expunged;
  3. “Criminal history information” means a record compiled by the Arkansas Crime Information Center or the Identification Bureau of the Division of Arkansas State Police on an individual;
  4. “Domestic abuse” means the same as defined in § 9-4-102;
  5. “Elderly” means individuals sixty-five (65) years of age or older;
  6. “Employee” means an individual currently in the service of an employer for full-time or part-time compensation and employed by contract or at will, in which the employer has the authority to control the individual in the material details of how work shall be performed and when compensation shall be provided;
  7. “Individuals with disabilities” means individuals with mental illness or intellectual or other developmental disabilities or with physical or mental impairments that substantially limit one (1) or more of the major life activities of the individual;
  8. “Volunteer” means an individual who provides services involving contact with children, the elderly, victims of domestic abuse, or individuals with disabilities without an express or implied promise of compensation; and
  9. “Volunteer organization” means an individual, group of individuals, association, partnership, corporation, limited liability company or partnership, business, public school, school district, person or organization designated by a public school or school district to organize volunteers for the public school or school district, or other entity that has volunteers who provide services to children, the elderly, victims of domestic abuse, or individuals with disabilities.

History. Acts 2005, No. 1778, § 1; 2011, No. 779, § 12; 2013, No. 575, § 1; 2019, No. 1035, § 9.

Amendments. The 2011 amendment inserted “victims of domestic abuse” in (8).

The 2013 amendment rewrote (9).

The 2019 amendment substituted “individuals with mental illness or intellectual or other developmental disabilities or” for “mentally ill or developmentally disabled individuals” in (7).

12-12-1604. Authority.

  1. The Department of Arkansas State Police and the Arkansas Crime Information Center may provide background check services to a volunteer organization pursuant to the provisions of this subchapter.
  2. The department and the center may promulgate rules to administer the provisions of this subchapter.

History. Acts 2005, No. 1778, § 1.

12-12-1605. Registration by volunteer organization.

  1. A volunteer organization desiring to obtain criminal background check information on volunteers shall register with the Department of Arkansas State Police.
  2. The department may promulgate rules regarding registration with the department to obtain criminal background check information.
  3. If the volunteer organization desires to receive criminal background check information from the Federal Bureau of Investigation, the volunteer organization shall include a copy of the minutes from its most recent board meeting that lists offenses that the volunteer organization considers to disqualify an applicant to volunteer from serving as a volunteer with the volunteer organization.

History. Acts 2005, No. 1778, § 1.

12-12-1606. Request for criminal background check.

    1. Any volunteer organization registered to obtain criminal background check information from the Arkansas Crime Information Center or the Federal Bureau of Investigation concerning volunteers may apply to the Identification Bureau of the Department of Arkansas State Police for the purpose of obtaining criminal history information regarding any individual currently acting as a volunteer with the volunteer organization or desiring to act as a volunteer with the volunteer organization.
    2. The request form submitted by the volunteer organization shall include:
      1. The name of the volunteer organization;
      2. The identifying information of the individual for whom the background check is sought; and
      3. A signed authorization form executed by the volunteer authorizing the Identification Bureau of the Department of Arkansas State Police to release criminal history information.
  1. The request form shall be subject to inspection by the Department of Arkansas State Police.
  2. The volunteer organization shall retain a copy of the criminal background check request for a period of at least three (3) years from the date of the request.

History. Acts 2005, No. 1778, § 1.

12-12-1607. Background checks.

    1. Upon receipt of a proper request from a volunteer organization, the Identification Bureau of the Department of Arkansas State Police shall conduct a background check through the Arkansas Crime Information Center.
      1. The Identification Bureau of the Department of Arkansas State Police shall provide the information obtained from the Arkansas background check to the volunteer organization.
      2. The information shall include:
        1. All pending Arkansas felony arrests;
        2. All Arkansas criminal convictions; and
        3. Whether the individual is a registered sex offender or required to register as a sex offender.
    1. Upon the completion of the Arkansas background check, the volunteer organization may request through the Identification Bureau of the Department of Arkansas State Police a national criminal background check through the Federal Bureau of Investigation.
    2. The volunteer organization shall not be required to submit an additional application for the state and national criminal background check through the Federal Bureau of Investigation.
    3. The national background check shall comply with federal standards in effect as of January 1, 2005, including, but not limited to, standards concerning the requirement of the submission of the fingerprints of the volunteer.
    4. The Identification Bureau of the Department of Arkansas State Police shall not release the Federal Bureau of Investigation criminal history report to the volunteer organization but shall review the report and the criteria provided by the volunteer organization in its registration to obtain criminal background check information on volunteers and notify the volunteer organization whether the volunteer meets the qualifications for serving as a volunteer with the organization.
  1. A volunteer organization shall consider all information received in response to a request for criminal background information confidential.

History. Acts 2005, No. 1778, § 1.

12-12-1608. Penalty.

The following acts are a Class A misdemeanor:

  1. Knowingly releasing or disclosing criminal history information to any unauthorized volunteer organization or person; or
  2. Obtaining criminal history information for a purpose not authorized by this subchapter.

History. Acts 2005, No. 1778, § 1; 2011, No. 779, § 13.

Amendments. The 2011 amendment substituted “criminal history” for “criminal background” in (1); and inserted “criminal history” in (2).

12-12-1609. Fees.

    1. The Department of Arkansas State Police may charge a fee for providing criminal history background checks under this subchapter.
    2. The amount of the fee for a criminal history background check conducted through the Arkansas Crime Information Center shall be determined jointly by the department and the center and shall not exceed twenty dollars ($20.00), exclusive of any third-party electronic processing fee charges.
    3. The amount of the fee for a criminal history background check performed by the Federal Bureau of Investigation shall not exceed the amount determined by the Federal Bureau of Investigation.
  1. Fees collected pursuant to this subchapter shall be credited as follows:
    1. Fifty percent (50%) to the Crime Information System Fund; and
    2. Fifty percent (50%) to the State Police Equipment Fund, to be used for the continued operation and expansion of the automated criminal history system and the automated fingerprint identification system.

History. Acts 2005, No. 1778, § 1.

12-12-1610. Extent of disclosure.

  1. The Department of Arkansas State Police and the Arkansas Crime Information Center shall disseminate criminal history information to the extent entries have been made at the time of the request for the information.
  2. Any event, activity, or any portion of the criminal history information that has not been processed by the department or the center shall not be required to be included in the dissemination.
  3. A request for information, supporting documents, and any response to a request for criminal background check information under this subchapter shall not be subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.

History. Acts 2005, No. 1778, § 1.

Subchapter 17 — Adult and Long-Term Care Facility Resident Maltreatment Act

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Acts 2019, No. 967, § 3: Apr. 12, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that currently each finding of abuse or neglect by the Department of Human Services is subject to challenge unless the department sends a person to conduct an investigation in person; that the department's review and adoption of the maltreatment investigation record submitted by a nursing home, a practice in place for decades, was determined to be out of compliance; and that this act is immediately necessary because this act would correct that situation. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

12-12-1701. Title.

This subchapter shall be known and may be cited as the “Adult and Long-Term Care Facility Resident Maltreatment Act”.

History. Acts 2005, No. 1812, § 1.

Case Notes

Construction.

Adult and Long-term Care Facility Resident Maltreatment Act is clearly designed for the protection of the impaired person, in this case, the mentally impaired adult. Ark. Dep't of Human Servs. v. Pope, 2013 Ark. App. 429, 429 S.W.3d 281 (2013).

12-12-1702. Purpose.

The purpose of this subchapter is to:

  1. Provide a system for the reporting of known or suspected adult and long-term care facility resident maltreatment;
  2. Ensure the screening, safety assessment, and prompt investigation of reports of known or suspected adult and long-term care facility resident maltreatment;
  3. Provide for a civil action, if appropriate, to protect maltreated adults and long-term care facility residents; and
  4. Encourage the cooperation of state law enforcement officials, courts, and state agencies in the investigation and assessment of maltreated adults and long-term care facility residents, and prosecution of offenders.

History. Acts 2005, No. 1812, § 1; 2007, No. 283, § 6.

Amendments. The 2007 amendment substituted “investigation, and assessment of maltreated adults and long-term care facility residents and prosecution of offenders” for “investigation, assessment, and prosecution of maltreated adults and long-term care facility residents” in (4).

12-12-1703. Definitions.

As used in this subchapter:

    1. “Abuse” means with regard to any long-term care facility resident or any patient at the Arkansas State Hospital by a caregiver:
      1. Any intentional and unnecessary physical act that inflicts pain on or causes injury to an endangered person or an impaired person, excluding court-ordered medical care or medical care requested by the patient or long-term care facility resident or a person legally authorized to make medical decisions on behalf of the patient or long-term care facility resident;
      2. Any intentional act that a reasonable person would believe subjects an endangered person or an impaired person, regardless of age, ability to comprehend, or disability, to ridicule or psychological injury in a manner likely to provoke fear or alarm, excluding necessary care and treatment provided in accordance with generally recognized professional standards of care;
      3. Any intentional threat that a reasonable person would find credible and nonfrivolous to inflict pain on or cause injury to an endangered person or an impaired person except in the course of medical treatment or for justifiable cause; or
      4. Any willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.
    2. “Abuse” means with regard to any person who is not a long-term care facility resident or a patient at the Arkansas State Hospital:
      1. Any intentional and unnecessary physical act that inflicts pain on or causes injury to an endangered person or an impaired person;
      2. Any intentional act that a reasonable person would believe subjects an endangered person or an impaired person, regardless of age, ability to comprehend, or disability, to ridicule or psychological injury in a manner likely to provoke fear or alarm; or
      3. Any intentional threat that a reasonable person would find credible and nonfrivolous to inflict pain on or cause injury to an endangered person or an impaired person except in the course of medical treatment or for justifiable cause;
  1. “Adult maltreatment” means abuse, exploitation, neglect, or sexual abuse of an adult;
  2. “Caregiver” means any of the following that has the responsibility for the protection, care, or custody of an endangered person or an impaired person as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of a court:
    1. A related person or an unrelated person;
    2. An owner, an agent, or a high managerial agent of a public or private organization; or
    3. A public or private organization;
  3. “Department” means the Department of Human Services;
  4. “Endangered person” means:
    1. A person eighteen (18) years of age or older who:
      1. Is found to be in a situation or condition that poses a danger to himself or herself; and
      2. Demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition; or
    2. A long-term care facility resident or an Arkansas State Hospital resident who:
      1. Is found to be in a situation or condition that poses an imminent risk of death or serious bodily harm to the long-term care facility resident; and
      2. Demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition;
  5. “Exploitation” means the:
    1. Illegal or unauthorized use or management of an endangered person's or an impaired person's funds, assets, or property;
    2. Use of an adult endangered person's or an adult impaired person's power of attorney or guardianship for the profit or advantage of one's own self or another;
    3. The fraudulent or otherwise illegal, unauthorized, or improper act or process of a person, including a caregiver or fiduciary, that uses the resources of an endangered person, impaired person, or long-term care facility resident for monetary or personal benefit, profit, or gain, or that results in depriving the endangered person, impaired person, or long-term care facility resident of rightful access to or use of benefits, resources, belongings, or assets; or
    4. Misappropriation of property of a long-term care facility resident, that is, the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a long-term care facility resident's belongings or money without the long-term care facility resident's consent;
    1. “Fiduciary” means a person or entity with the legal responsibility to:
      1. Make decisions on behalf of and for the benefit of another person; and
      2. Act in good faith and with fairness.
    2. “Fiduciary” includes without limitation:
      1. A trustee;
      2. A guardian;
      3. A conservator;
      4. An executor;
      5. An agent under financial power of attorney or healthcare power of attorney; or
      6. A representative payee;
  6. “Imminent danger to health or safety” means a situation in which death or serious bodily harm could reasonably be expected to occur without intervention;
    1. “Impaired person” means a person:
      1. Eighteen (18) years of age or older who as a result of mental or physical impairment is unable to protect himself or herself from abuse, sexual abuse, neglect, or exploitation; or
      2. Who is a long-term care facility resident and who as a result of mental or physical impairment is unable to protect himself or herself from abuse, sexual abuse, neglect, or exploitation.
    2. For purposes of this subchapter, a long-term care facility resident is presumed to be an impaired person.
    3. For purposes of this subchapter, a person who has a representative payee appointed for the person by the Social Security Administration or another authorized agency is presumed to be an impaired person in relation to adult maltreatment through financial exploitation;
  7. “Impairment” means a disability that grossly and chronically diminishes a person's physical or mental ability to live independently or provide self-care as determined through observation, diagnosis, evaluation, or assessment;
  8. “Long-term care facility” means:
    1. A nursing home;
    2. A residential care facility;
    3. A post-acute head injury retraining and residential facility;
    4. An assisted living facility;
    5. An intermediate care facility for individuals with intellectual disabilities; or
    6. Any facility that provides long-term medical or personal care;
  9. “Long-term care facility resident” means a person, regardless of age, living in a long-term care facility;
  10. “Long-term care facility resident maltreatment” means abuse, exploitation, neglect, or sexual abuse of a long-term care facility resident;
  11. “Maltreated adult” means an adult who has been abused, exploited, neglected, physically abused, or sexually abused;
  12. “Maltreated person” means a person, regardless of age, who has been abused, exploited, neglected, physically abused, or sexually abused;
  13. “Neglect” means:
    1. An act or omission by an endangered person or an impaired person, for example, self-neglect; or
    2. An act or omission by a caregiver responsible for the care and supervision of an endangered person or an impaired person constituting:
      1. Negligently failing to provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an endangered person or an impaired person;
      2. Negligently failing to report health problems or changes in health problems or changes in the health condition of an endangered person or an impaired person to the appropriate medical personnel;
      3. Negligently failing to carry out a treatment plan developed or implemented by the facility; or
      4. Negligently failing to provide goods or services to a long-term care facility resident necessary to avoid physical harm, mental anguish, or mental illness;
  14. “Negligently” means a person's failure to exercise the degree of care that a person of ordinary prudence would have exercised in the same circumstances;
    1. “Physical injury” means the impairment of a physical condition or the infliction of substantial pain on a person.
    2. If the person is an endangered person or an impaired person, there is a presumption that any physical injury resulted in the infliction of substantial pain;
  15. “Serious bodily harm” means sexual abuse, physical injury, or serious physical injury;
  16. “Serious physical injury” means physical injury to an endangered person or an impaired person that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ;
  17. “Sexual abuse” means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined in § 5-14-101, with another person who is not the actor's spouse and who is incapable of consent because he or she is mentally defective, mentally incapacitated, or physically helpless; and
  18. “Subject of the report” means:
    1. The endangered person or impaired person;
    2. The adult's legal guardian;
    3. The natural or legal guardian of a long-term care facility resident under eighteen (18) years of age; and
    4. The offender.

History. Acts 2005, No. 1812, § 1; 2007, No. 283, § 7; 2007, No. 497, § 4; 2009, No. 165, §§ 9, 10; 2009, No. 525, § 1; 2011, No. 206, § 7; 2013, No. 584, §§ 1, 2; 2015, No. 1214, §§ 3, 4; 2017, No. 579, § 5.

Amendments. The 2007 amendment by No, 283 rewrote (1); substituted “serious bodily harm” for “severe bodily injury” in (7); inserted “physically abused” in (13); deleted “as those terms are defined in § 5-14-101” at the end of (18); and made related and stylistic changes.

The 2007 amendment by No. 497 substituted “a danger to himself or herself” for “an imminent risk of death or serious bodily harm to that person” in (5)(A)(i).

The 2009 amendment by No. 165 redesignated (3) and made stylistic changes; and substituted “rules” for “regulations” in present (15)(B)(iv).

The 2009 amendment by No. 525 inserted (6)(C) and (7), redesignated subdivisions accordingly, and made a related change.

The 2011 amendment inserted “or an Arkansas State Hospital resident” in (5)(B).

The 2013 amendment added (9)(C); and rewrote (15)(B)(iii) and (15)(B)(iv).

The 2015 amendment inserted designation (9)(A)(i); added (9)(A)(ii); and inserted the definition for “Negligently”.

The 2017 amendment added the definition of “Impairment”.

Case Notes

Construction.

Adult and Long-term Care Facility Resident Maltreatment Act is clearly designed for the protection of the impaired person, in this case, the mentally impaired adult. Ark. Dep't of Human Servs. v. Pope, 2013 Ark. App. 429, 429 S.W.3d 281 (2013).

Abuse.

Substantial evidence supported the finding of abuse as defined in this section where a witness testified that she heard the elderly resident of the long-term-care facility make a sound like it hurt when the certified nursing assistant yanked her arm and that the resident indicated she was not okay. Snyder v. Ark. Dep't of Human Servs., 2018 Ark. App. 473, 559 S.W.3d 771 (2018).

No Harm to the Impaired Adult.

It was the child with the impaired adult, not the impaired adult, who was harmed, and there was no substantial evidence to support the agency's decision that the certified caregiver negligently supervised the adult, especially where it was the third party, the child, and not the impaired adult, who was actually harmed. Ark. Dep't of Human Servs. v. Pope, 2013 Ark. App. 429, 429 S.W.3d 281 (2013).

No Negligence.

Impaired adult was not left alone with the child unsupervised in a way that constituted negligence, and applying this negligent supervision statute under these circumstances was an abuse of discretion. Ark. Dep't of Human Servs. v. Pope, 2013 Ark. App. 429, 429 S.W.3d 281 (2013).

12-12-1704. Spiritual treatment alone not abusive.

Nothing in this subchapter shall be construed to mean that an endangered person or an impaired person who is being furnished with treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner of the church or religious denomination is for that reason alone an endangered person or an impaired person.

History. Acts 2005, No. 1812, § 1.

12-12-1705. Privilege not grounds for exclusion of evidence.

Any privilege between husband and wife or between any professional person and his or her clients, except lawyer and client, including, but not limited to, physicians, members of the clergy, counselors, hospitals, clinics, rest homes, and nursing homes shall not constitute grounds for excluding evidence at any proceeding regarding an endangered person or an impaired person, or the cause of the proceeding.

History. Acts 2005, No. 1812, § 1.

12-12-1706. Civil penalties.

    1. The State of Arkansas and the Attorney General may institute a civil action against any long-term care facility caregiver necessary to enforce any provision of this subchapter.
    2. Notwithstanding any criminal penalties assessed, any caregiver against whom any civil judgment is entered as the result of a civil action brought by the State of Arkansas through the Attorney General on a complaint alleging that caregiver to have abused, neglected, or exploited an endangered person or an impaired person in a long-term care facility certified under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., as it existed on January 1, 2005, shall be subject to pay a civil penalty:
      1. Not to exceed ten thousand dollars ($10,000) for each violation judicially found to have occurred; or
      2. Not to exceed fifty thousand dollars ($50,000) for the death of a long-term care facility resident that results from a single violation.
      1. The Attorney General shall not be precluded from recovering civil penalties under subdivision (a)(2)(A) of this section for the death of a person that results from multiple violations.
      2. However, the Attorney General may not recover civil penalties under both subdivisions (a)(2)(A) and (B) of this section.
  1. In any action brought under this section, the Attorney General shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.
  2. Any civil penalty under subdivision (a)(2) of this section shall be paid into the State Treasury and credited to the Arkansas Medicaid Program Trust Fund.
  3. Any caregiver against whom any civil judgment is entered as the result of a civil action under this section by the Attorney General shall be required to pay to the Attorney General all reasonable expenses that the court determines have been necessarily incurred in the enforcement of this subchapter.
  4. A civil action under this section may not be brought more than three (3) years after the date on which the violation of this subchapter is committed.

History. Acts 2005, No. 1812, § 1.

12-12-1707. Adult and long-term care facility resident maltreatment hotline.

  1. The Department of Human Services shall maintain a single statewide telephone number that all persons, whether mandated by law or not, may use to report a case of suspected adult maltreatment and long-term care facility resident maltreatment.
  2. When appropriate, a copy of the initial report shall immediately be made available to the appropriate law enforcement agency for its consideration.
    1. The department shall not release information that would identify the person who made the report unless a court of competent jurisdiction orders release of the information after the court has reviewed in camera the record related to the report and has found that disclosure is necessary:
      1. To prevent execution of a crime; or
      2. For prosecution of a crime.
      1. However, any person to whom the name of the reporter is disclosed is prohibited from redisclosing this information, except as provided in subdivision (c)(2)(B) of this section.
        1. Upon request, the information shall be disclosed to:
          1. The Attorney General;
          2. The prosecuting attorney; or
          3. Law enforcement officers.
        2. However, the information shall remain confidential until criminal charges are filed.
    1. A report of an allegation of suspected adult maltreatment or long-term care facility resident maltreatment shall be accepted if the allegation, if true, would constitute adult maltreatment or long-term care facility resident maltreatment and so long as sufficient identifying information is provided to identify and locate the victim.
    2. A report to the hotline when the allegation, even if true, would not constitute adult maltreatment or long-term care facility resident maltreatment shall be screened out.
    1. The hotline shall accept a report if the victim or offender is present in Arkansas or if the incident occurred in Arkansas.
    2. If the incident occurred in another state, the hotline shall screen out the report and transfer the report to the hotline of the state in which the incident occurred.
    3. Upon request from an adult maltreatment or long-term care facility resident maltreatment investigator in another state, the department shall complete courtesy interviews with the victim, offender, or any witness of adult maltreatment who resides in Arkansas.
  3. Upon registration of a hotline report of suspected adult maltreatment or long-term care facility resident maltreatment, the hotline shall refer the matter immediately to the appropriate investigating agency as outlined in this subchapter.

History. Acts 2005, No. 1812, § 1.

12-12-1708. Persons required to report adult or long-term care facility resident maltreatment.

    1. Whenever any of the following persons has observed or has reasonable cause to suspect that an endangered person or an impaired person has been subjected to conditions or circumstances that constitute adult maltreatment or long-term care facility resident maltreatment, the person shall immediately report or cause a report to be made in accordance with the provisions of this section:
      1. A physician;
      2. A surgeon;
      3. A coroner;
      4. A dentist;
      5. A dental hygienist;
      6. An osteopath;
      7. A resident intern;
      8. A nurse;
      9. A member of a hospital's personnel who is engaged in the administration, examination, care, or treatment of persons;
      10. A social worker;
      11. A case manager;
      12. A home health worker;
      13. A mental health professional;
      14. A peace officer;
      15. A law enforcement officer;
      16. A facility administrator or owner;
      17. An employee in a facility;
      18. An employee of the Department of Human Services, with the exception of an employee working with an ombudsman program established by the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services, in accordance with 42 U.S.C. § 3001 et seq., as it existed on January 1, 2017;
      19. A firefighter;
      20. An emergency medical technician;
      21. An employee of a bank or other financial institution;
      22. An employee of the United States Postal Service;
      23. An employee or a volunteer of a program or an organization funded partially or wholly by the department who enters the home of or has contact with an elderly person;
      24. A person associated with the care and treatment of animals, such as animal control officers and humane society officials;
      25. An employee who enforces code requirements for a city, township, or municipality;
      26. Any clergy member, including without limitation, a minister, a priest, a rabbi, an accredited Christian Science practitioner, or any other similar functionary of a religious organization, or an individual reasonably believed to be a minister, a priest, a rabbi, an accredited Christian Science practitioner, or any other similar functionary of a religious organization by the person consulting him or her, except to the extent he or she:
        1. Has acquired knowledge of suspected maltreatment through communications required to be kept confidential pursuant to the religious discipline of the relevant denomination or faith; or
        2. Received the knowledge of the suspected maltreatment from the offender in the context of a statement of admission; or
    2. Whenever a person is required to report under this subchapter in his or her capacity as a member of the staff, an employee in or owner of a facility, or an employee of the department, he or she shall immediately notify the person in charge of the institution, facility, or agency, or that person's designated agent, who shall then become responsible for making a report or cause a report to be made within twenty-four (24) hours or on the next business day, whichever is earlier.
    3. In addition to those persons and officials required to report suspected maltreatment, any other person may make a report if the person has observed an adult or long-term care facility resident being maltreated or has reasonable cause to suspect that an adult or long-term care facility resident has been maltreated.
    1. A report for a long-term care facility resident shall be made:
      1. Immediately to the local law enforcement agency for the jurisdiction in which the long-term care facility is located; and
      2. To the Office of Long-Term Care, under rules of that office.
    2. A report of a maltreated adult who does not reside in a long-term care facility shall be made to the adult and long-term care facility maltreatment hotline provided in § 12-12-1707.
  1. No privilege or contract shall relieve any person required by this subchapter to make a notification or report from the requirement of making the notification or report.
    1. Upon request the department shall provide a person listed in subdivision (a)(1) of this section with confirmation of receipt of a report of maltreatment.
    2. However, confirmation shall consist only of the acknowledgement of receipt of the report and the date the report was made to the department.

(AA) An employee working under contract for, or a contractor of, the Department of Human Services when acting within the scope of his or her contract or employment.

History. Acts 2005, No. 1812, § 1; 2007, No. 497, § 5; 2013, No. 584, § 3; 2017, No. 1034, § 1; 2019, No. 531, § 2; 2019, No. 315, § 872.

Amendments. The 2013 amendment added (d).

The 2017 amendment added “with the exception of an employee working with an ombudsman program established by the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services, in accordance with 42 U.S.C. § 3001 et seq., as it existed on January 1, 2017” to the end of (a)(1)(R).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b)(1)(B).

The 2019 amendment by No. 531 added (a)(1)(AA).

Research References

U. Ark. Little Rock L. Rev.

Breanna Trombley, Note: Criminal Law — No Stitches for Snitches: The Need for a Duty-to-Report Law in Arkansas, 34 U. Ark. Little Rock L. Rev. 813 (2012).

Case Notes

Employment Actions.

Where a nursing home employee was terminated based on reports of improper sexual contact with a male resident, the employee's discrimination claims failed because the employee did not show pretext; the employee's libel claims failed because there was no evidence to support the claim that any of the defendants defamed the employee by falsely stating that the employee initiated the sexual contact with the resident. Evance v. Trumann Health Servs., LLC, 719 F.3d 673 (8th Cir.), cert. denied, — U.S. —, 134 S. Ct. 799, 187 L. Ed. 2d 596 (2013).

12-12-1709. Report of death caused by maltreatment.

    1. Any person or official who is required to report a case of suspected adult maltreatment or long-term care facility resident maltreatment under this subchapter and who has reasonable cause to suspect that an adult or long-term care facility resident has died as a result of maltreatment shall report the suspected death from maltreatment to the appropriate medical examiner or coroner.
      1. In all cases of the death of a long-term care facility resident or a hospice facility resident, the long-term care facility or the hospice facility shall immediately report the death to the appropriate coroner.
      2. The report is required regardless of whether the long-term care facility or the hospice facility believes the death to be from natural causes or the result of maltreatment or any other cause.
      1. In all cases of the death in a hospital of a person who was a long-term care facility resident within five (5) days before entering the hospital, the hospital shall immediately report the death to the appropriate coroner.
      2. The report is required regardless of whether the hospital believes the death to be from natural causes, the result of maltreatment, or any other cause.
    1. The medical examiner or coroner shall accept the report for investigation and upon finding reasonable cause to suspect that a person has died as a result of maltreatment shall report the findings to a law enforcement agency and the appropriate prosecuting attorney.
    2. If the institution making the report is a hospital or long-term care facility, the medical examiner or coroner shall report the findings to the hospital or long-term care facility unless the findings are part of a pending or ongoing law enforcement investigation.
  1. If it receives findings under subdivision (b)(2) of this section, the medical examiner, coroner, or hospital shall also report findings under subsection (b) of this section to the Department of Human Services if:
    1. Reasonable cause exists to believe the death resulted from maltreatment; or
    2. Upon request of the department and there is a pending investigation concerning allegations of maltreatment occurring before death.

History. Acts 2005, No. 1812, § 1.

12-12-1710. Investigation by Department of Human Services.

  1. The Department of Human Services shall have jurisdiction to investigate all cases of suspected maltreatment of an endangered person or an impaired person.
    1. The Adult Protective Services Unit of the Department of Human Services shall investigate:
      1. All cases of suspected adult maltreatment if the act or omission occurs in a place other than a long-term care facility; and
      2. All cases of suspected adult maltreatment of an adult endangered person or an adult impaired person if a family member of the adult endangered person or adult impaired person is named as the suspected offender, regardless of whether or not the adult endangered person or adult impaired person is a long-term care facility resident.
    2. The department shall investigate all cases of suspected maltreatment of a long-term care facility resident.
    3. If requested by the department, a law enforcement agency possessing jurisdiction shall assist in the investigation of any case of suspected adult maltreatment or long-term care facility resident maltreatment, including accompanying the department's investigator if the department has a reasonable belief that the investigator's safety could be compromised.

History. Acts 2005, No. 1812, § 1; 2013, No. 584, § 4; 2019, No. 967, § 1.

Amendments. The 2013 amendment rewrote (b)(3).

The 2019 amendment substituted “department” for “Office of Long Term Care” in (b)(2).

Case Notes

In General.

Unambiguous language of the Adult and Long-Term Care Facility Resident Maltreatment Act, § 12-12-1701 et seq., placed the responsibility to conduct a thorough investigation of allegations of abuse squarely on the Department of Human Services (DHS), not the nursing home or long-term care facility, and nothing in the statutory provisions authorized DHS to delegate the responsibility, via its rulemaking authority, to the nursing home in which the abuse was alleged to have taken place. Williform v. Ark. Dep't of Human Servs., 2018 Ark. App. 314, 551 S.W.3d 401 (2018).

12-12-1711. Procedures for investigation by the Department of Human Services.

  1. The Department of Human Services shall conduct a thorough investigation of all suspected adult maltreatment or long-term care facility resident maltreatment in accordance with this subchapter.
    1. The investigation shall be completed and an investigative determination entered within sixty (60) days.
    2. The investigation shall be conducted by an examination and review of the allegations and any other information concerning suspected adult maltreatment or long-term care facility resident maltreatment received by or collected by the department from any source.
    3. The investigation and written investigative report shall include:
      1. The nature, extent, and cause of the adult maltreatment or long-term care facility resident maltreatment;
      2. The identity of the person responsible;
      3. The names and conditions of other adults in the home, if the incident occurred in a home;
      4. An evaluation of the persons responsible for the care of the maltreated person, if any;
      5. The home environment, the relationship of the maltreated person to the next of kin or other person responsible for his or her care, and all other pertinent data; and
        1. If the incident occurred in the home, a visit to the maltreated person's home and an interview with the maltreated person.
        2. An investigator shall interview the maltreated person alone and out of the hearing of any next of kin or other person responsible for the maltreated person's care.
        3. If necessary, an interpreter may be present during the interview of the maltreated person.

History. Acts 2005, No. 1812, § 1; 2019, No. 967, § 2.

Amendments. The 2019 amendment added (b)(2) and redesignated the remaining subdivisions accordingly; substituted “adult maltreatment or long-term care facility resident maltreatment” for “maltreatment” in (b)(3)(A); and, in (b)(3)(F)(i), substituted “If the incident occurred in the home, a visit” for “A visit”, substituted “maltreated person's home and an interview” for “maltreated adult's home, if the incident occurred in the home, and an interview”, and substituted “person” for “adult”.

Case Notes

In General.

Unambiguous language of the Adult and Long-Term Care Facility Resident Maltreatment Act, § 12-12-1701 et seq., placed the responsibility to conduct a thorough investigation of allegations of abuse squarely on the Department of Human Services (DHS), not the nursing home or long-term care facility, and nothing in the statutory provisions authorized DHS to delegate the responsibility, via its rulemaking authority, to the nursing home in which the abuse was alleged to have taken place. Williform v. Ark. Dep't of Human Servs., 2018 Ark. App. 314, 551 S.W.3d 401 (2018).

Investigation.

Department of Human Services's (DHS's) decision finding that a certified nursing assistant perpetrated an act of abuse on a resident of a long-term care facility was reversed where the facility administrator conducted the investigation, not DHS, and thus DHS had violated the statutory provisions. Williform v. Ark. Dep't of Human Servs., 2018 Ark. App. 314, 551 S.W.3d 401 (2018).

12-12-1712. Photographs and X-rays.

  1. Any person who is required to report a case of adult maltreatment or long-term care facility resident maltreatment may take or cause to be taken, at public expense, color photographs of the area of trauma visible on the maltreated person and, if medically indicated, cause to be performed radiological examination of the maltreated person.
    1. Whenever a person is required to report under this subchapter in his or her capacity as a member of the staff of any private or public institution or agency, he or she shall immediately notify the person in charge of the institution or agency or his or her designee.
    2. Upon notification under subdivision (b)(1) of this section, the person in charge of the institution or agency or his or her designee shall:
      1. Take or cause to be taken, at public expense, color photographs of physical trauma; and
      2. If medically indicated, cause to be performed a radiological examination of the maltreated person.
    1. Any photograph or X-ray taken under this section shall be sent to the Department of Human Services as soon as possible.
    2. The department is not required to pay for a photograph or X-ray or a copy of a photograph or X-ray taken under this section.

History. Acts 2005, No. 1812, § 1; 2019, No. 955, § 1.

Amendments. The 2019 amendment added the (c)(1) designation; inserted “under this section” in (c)(1); and added (c)(2).

12-12-1713. Immunity for investigation participants.

  1. Any person, official, or institution acting in good faith in the making of a report, the taking of a photograph, or the removal of a maltreated person under this subchapter shall have immunity from liability and suit for damages, civil or criminal, that otherwise might result by reason of those actions.
  2. The good faith of any person required to report a case of adult maltreatment or long-term care facility resident maltreatment shall be presumed.

History. Acts 2005, No. 1812, § 1.

12-12-1714. Investigative powers of the Department of Human Services.

  1. If admission cannot be obtained to a home, an institution, or other place in which an allegedly maltreated person may be present, a circuit court, upon good cause shown, shall order the person responsible for or in charge of the home, institution, or other place to allow entrance for an examination and investigation.
  2. If admission to a home cannot be obtained due to hospitalization or similar absence of the maltreated person and admission to the home is necessary to complete an investigation, a circuit court, upon good cause shown, shall order a law enforcement agency to assist the Department of Human Services to obtain entrance to the home for the required investigation of the home environment.
    1. Upon request, the medical, mental health, or other records regarding the maltreated person, including protected health information, maintained by any facility or maintained by any person required by this subchapter to report suspected adult maltreatment or long-term care facility resident maltreatment, shall be made available to the department for the purpose of conducting an investigation under this subchapter.
    2. Upon request, financial records maintained by a bank or similar institution regarding a maltreated person shall be made available to the department for the purpose of conducting an investigation under this subchapter.
    3. A circuit court, upon good cause shown, shall order any facility or person that maintains medical, mental health, or other records, including protected health information, regarding a maltreated person to tender the records to the department for the purpose of conducting an investigation under this subchapter.
    4. The department is not required to pay for a copy of a medical, mental health, financial, or other record that is provided to the department under this subsection.
    1. An investigation under this subchapter may include a medical, psychological, social, vocational, financial, and educational evaluation and review, if necessary.
        1. The department may file an ex parte petition in circuit court requesting an order of investigation.
        2. If the court issues an order of investigation, any subsequent petition for custody shall be filed in this same case.
      1. No fees may be charged or collected by the clerk, including without limitation, fees for filing, summons, or subpoenas.
      1. The department may compel the allegedly maltreated person to be evaluated in the least restrictive environment and least intrusive manner necessary to obtain an assessment if:
        1. The department is unable to secure an order of investigation from the circuit court during regular business hours;
        2. The department has reasonable cause to suspect a significant risk for serious harm to the health or safety of the adult; and
        3. The department cannot adequately assess:
          1. The adult’s capacity to comprehend the nature and consequences of remaining in the situation or condition; or
          2. The adult’s mental or physical impairment and ability to protect himself or herself from maltreatment.
        1. Upon request by the department and without a court order, law enforcement and medical personnel shall assist the department as needed in obtaining an assessment on an allegedly maltreated person.
        2. The assessment may include emergency treatment.
      2. No later than the next business day after the assessment, the department shall petition the court for an order of investigation as outlined in this section.
      1. Upon a showing of reasonable cause to suspect an allegedly maltreated person is endangered or impaired, the circuit court shall issue an order of investigation.
      2. The order of investigation may include the power to compel the allegedly maltreated person to be assessed to determine whether the person:
        1. Lacks capacity to understand the nature and consequences of remaining in the situation or condition that poses a danger to the person; or
        2. Has a mental or physical impairment such that the person is unable to protect himself or herself from abuse, sexual abuse, neglect, or exploitation.
    2. Upon good cause shown by the department, the circuit court may order emergency treatment of the allegedly maltreated adult.
      1. The allegedly maltreated adult has a right to counsel, including appointed counsel if indigent, and a right to a hearing within five (5) business days after the allegedly maltreated adult is served with the ex parte order of investigation.
      2. If the allegedly maltreated adult is not indigent, the circuit court has the authority to appoint counsel to represent the allegedly maltreated adult and to direct payment from the assets of the adult for legal services received by the adult.
      3. If the department determines the allegedly maltreated adult is not endangered or impaired and releases the allegedly maltreated adult or ceases any assessment, a hearing under subdivision (d)(6)(A) of this section is not required.
      1. At the five-day hearing the court shall determine whether the order of investigation shall continue for an additional period of time or be terminated.
      2. The burden shall be upon the department to show probable cause that the alleged maltreated person is an endangered or impaired person and that additional time is necessary to complete the investigation.
    3. The department and the court shall defer to any declaration executed in conformance with the Arkansas Rights of the Terminally Ill or Permanently Unconscious Act, § 20-17-201 et seq., and before any documented medical or judicial determination of lack of capacity.
  3. If before an investigation under this subchapter is completed, the Adult Protective Services Unit of the Department of Human Services determines that the immediate removal of a maltreated adult is necessary to protect the maltreated adult from imminent danger to his or her health or safety, the unit may:
    1. Petition a circuit court for an order of temporary custody; or
    2. Exercise a seventy-two-hour hold under the Adult Maltreatment Custody Act, § 9-20-101 et seq.
  4. Upon petition by the department, the court may direct payment from the assets of the allegedly maltreated adult for services rendered or goods purchased by or for the allegedly maltreated adult during the course of the investigation.

History. Acts 2005, No. 1812, § 1; 2007, No. 283, § 8; 2007, No. 497, § 6; 2009, No. 525, § 2; 2019, No. 955, § 2.

Amendments. The 2007 amendment by No. 283 inserted “including protected health information” in (c)(1) and (c)(3); added (f); and made related and stylistic changes.

The 2007 amendment by No. 497 added the (d)(1) designation and added (d)(2) through (d)(8).

The 2009 amendment, in (d)(6), substituted “the allegedly maltreated adult is served with the” for “issuance of an” in (d)(6)(A), and inserted (d)(6)(C).

The 2019 amendment added (c)(2).

12-12-1715. Rights of subject of report — Investigative determination of the Department of Human Services — Notice of finding — Appeal.

  1. Upon completion of an investigation, the Department of Human Services shall determine that an allegation of adult maltreatment or long-term care facility maltreatment is either:
      1. Unfounded, a finding that shall be entered if the allegation is not supported by a preponderance of the evidence.
      2. An unfounded hard copy report shall be destroyed one (1) year after the completion of the investigation; or
      1. Founded, a finding that shall be entered if the allegation is supported by a preponderance of the evidence.
      2. A determination of founded but exempt shall be entered on a report if an adult practicing his or her religious beliefs is receiving spiritual treatment under § 5-28-105 or § 12-12-1704.
      1. After making an investigative determination, the department shall notify in writing within ten (10) business days:
          1. The person identified as the offender.
          2. However, in cases of unfounded self-neglect, no notice is required;
        1. Either the:
          1. Person identified as the maltreated person;
          2. Legal guardian of the maltreated person; or
          3. Natural or legal guardian of a long-term care facility resident under eighteen (18) years of age;
        2. The current administrator of the long-term care facility if the incident occurred in a long-term care facility; and
        3. If known by the Office of Long-Term Care, the administrator of the long-term care facility that currently employs the offender if different from the long-term care facility in which the incident occurred.
      2. If the investigation determines that the report is founded, notification to the offender shall be by process server or by certified mail, restricted delivery.
    1. The notification under subdivision (b)(1) of this section shall include the following:
      1. The investigative determination, exclusive of the source of the notification, including the nature of the allegation and the date and time of occurrence;
      2. A statement that an offender of a founded report has the right to an administrative hearing upon a timely request;
      3. A statement that the request for an administrative hearing shall be made to the department within thirty (30) days of receipt of the notice of determination;
      4. A statement that the administrative hearing will be by telephone hearing unless the offender requests an in-person hearing within thirty (30) days after the date of receipt of notice of the determination;
      5. A statement of intent to report in writing after the offender has had an opportunity for an administrative hearing the founded investigative determination to:
        1. The Adult and Long-term Care Facility Resident Maltreatment Central Registry; and
        2. Any applicable licensing authority;
      6. A statement that the offender's failure to request an administrative hearing in writing within thirty (30) days from the date of receipt of the notice will result in submission of the investigative report, including the investigative determination, to:
        1. The registry; and
        2. Any applicable licensing authority;
      7. The consequences of waiving the right to an administrative hearing;
      8. The consequences of a finding by a preponderance of the evidence through the administrative hearing process that the maltreatment occurred;
      9. The fact that the offender has the right to be represented by an attorney at the offender's own expense; and
      10. The name of the person making the notification, his or her occupation, and the location at which he or she can be reached.
    1. The administrative hearing process shall be completed within one hundred twenty (120) days from the date of the receipt of the request for a hearing unless waived by the offender.
    2. The department shall hold the administrative hearing at a reasonable place and time.
    3. For an incident occurring in a long-term care facility, the department may not make a finding that an offender has neglected a long-term care facility resident if the offender demonstrates that the neglect was caused by factors beyond the control of the offender.
    4. A delay in completing the administrative hearing process that is attributable to the offender shall not count against the time limit in subdivision (c)(1) of this section.
    5. Failure to complete the administrative hearing process in a timely fashion shall not prevent the department or a court from:
      1. Reviewing the investigative determination of jurisdiction;
      2. Making a final agency determination; or
      3. Reviewing a final agency determination under the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
    6. If any party timely requests an in-person administrative hearing, the hearing officer may notify the parties that the hearing will be conducted by video conference.
  2. If the department's investigative determination of founded is upheld during the administrative hearing process or if the offender does not timely appeal for or waives the right to an administrative hearing, the department shall report the investigative determination in writing within ten (10) business days to:
    1. The offender;
    2. The current administrator of the long-term care facility if the incident occurred in a long-term care facility;
    3. The administrator of the long-term care facility that currently employs the offender if different from the long-term care facility in which the incident occurred;
    4. The appropriate licensing authority;
    5. The registry;
    6. The maltreated person or the legal guardian of the maltreated person; and
    7. If required under § 21-15-110, the employer of any offender if the offender is in a designated position with a state agency.

History. Acts 2005, No. 1812, § 1; 2009, No. 525, § 3; 2011, No. 1139, § 1; 2013, No. 584, § 5.

Amendments. The 2009 amendment substituted “founded but exempt shall be entered on a report if” for “founded shall not be entered solely because” in (a)(2)(B); inserted (b)(2)(D) and redesignated the subsequent subdivisions accordingly; inserted (c)(6); added (e)(7); and made related changes.

The 2011 amendment deleted former (d).

The 2013 amendment rewrote the section heading and (a)(1)(B).

12-12-1716. Adult and Long-term Care Facility Resident Maltreatment Central Registry.

    1. There is established within the Department of Human Services a statewide Adult and Long-term Care Facility Resident Maltreatment Central Registry.
    2. The registry shall contain investigative determinations made by the department on all founded reports of adult maltreatment and long-term care facility resident maltreatment.
    3. An offender's name shall be placed in the registry if:
      1. After notice, the offender does not timely request an administrative hearing; or
      2. Upon completion of the administrative hearing process, the department's investigative determination of founded is upheld.
    4. An offender's name shall remain in the registry unless:
      1. The name is removed under a statute;
      2. The name is removed under a rule; or
      3. The offender prevails upon appeal.
  1. The department may adopt rules necessary to encourage cooperation with other states in exchanging reports to effect a national registry system of adult maltreatment.
    1. The department may charge a reasonable fee not to exceed ten dollars ($10.00) for researching, copying, and mailing records of the investigative files maintained under this subchapter.
    2. The department may also charge a reasonable fee for reproducing copies of tapes and photographs maintained under this subchapter.
    3. No fee may be charged to a nonprofit or volunteer agency that requests a search of the investigative files maintained under this subchapter.
    4. No fee may be charged under this subchapter to a person who is indigent.

History. Acts 2005, No. 1812, § 1; 2009, No. 525, § 4.

Amendments. The 2009 amendment substituted “reports” for “allegations” in (a)(2).

Case Notes

Placement on Registry Required.

This section states that an offender's name shall be placed in the registry if upon completion of the administrative hearing process, the department's investigative determination of founded is upheld. The statute makes it mandatory for the offender's name to be placed on the registry; no lesser punishment is permitted. Snyder v. Ark. Dep't of Human Servs., 2018 Ark. App. 473, 559 S.W.3d 771 (2018).

12-12-1717. Availability of founded reports of adult or long-term care facility resident maltreatment.

  1. A report made under this subchapter that is determined to be founded, as well as any other information obtained, including protected health information, and a report written or photograph taken concerning a founded report in the possession of the Department of Human Services shall be confidential and shall be made available only to:
    1. A physician who has before him or her an endangered person or an impaired person the physician reasonably believes may have been maltreated;
    2. A person authorized to place the adult in protective custody if the person:
      1. Has before him or her an adult the person reasonably believes may have been maltreated; and
      2. Requires the information to determine whether to place the adult in protective custody;
    3. An authorized agency having responsibility for the care or supervision of an endangered person or an impaired person;
    4. Any person who is the subject of a report or that person's legal guardian;
    5. A grand jury or court, if the grand jury or court determines that the information is necessary for the determination of an issue before the grand jury or court;
    6. A prosecuting attorney, law enforcement official, coroner, or the Attorney General or his or her designated investigator;
      1. An employer or volunteer agency for the purpose of screening an employee, applicant, or volunteer upon submission of a signed, notarized release from the employee, applicant, or volunteer.
      2. The only information released to the employer or volunteer agency shall be whether or not the Adult and Long-term Care Facility Resident Maltreatment Central Registry contains any founded reports naming the employee, applicant, or volunteer as an offender;
    7. The department, including the Death Review Committee of the Department of Human Services;
    8. The current administrator of the long-term care facility, if the incident occurred in a long-term care facility;
    9. The administrator of the long-term care facility that currently employs the offender, if different from the long-term care facility in which the incident occurred;
    10. A person or provider identified by the department as having services needed by the maltreated person;
    11. Any applicable licensing or registering authority;
    12. Any employer, legal entity, or board responsible for the person named as the offender;
    13. Any legal entity or board responsible for the maltreated person;
    14. A state or federal agency pursuing an official criminal records check; and
    15. The Office of Medicaid Inspector General.
    1. Under no circumstances may the information contained in the registry be released to a person unless the person's capacity is confirmed by the department.
    2. Except for the subject of the report, no person or agency to whom disclosure is made may disclose to any other person or agency a report or other information obtained under this section.
    1. The department may not release data that would identify the person who made a report except to law enforcement, a prosecuting attorney, or the office of the Attorney General.
    2. A court of competent jurisdiction may order release of data that would identify the person who made a report after the court has reviewed in camera the record related to the report and has found that disclosure is needed:
      1. To prevent execution of a crime; or
      2. For prosecution of a crime.
  2. However, information contained in the registry may be made available to bona fide and approved research groups solely for the purpose of scientific research, but in no event shall the name of a person be released, nor shall specific circumstances or facts related to a specific person be used in any research report that might be identifiable with the person.
  3. A person who knowingly permits or encourages the release of data or information contained in the registry to a person not permitted by this subchapter to receive the data or information upon conviction is guilty of a Class A misdemeanor.
    1. Data, records, reports, or documents released under this section to a law enforcement agency, the prosecuting attorney, or a court by the department:
      1. Are confidential;
      2. Shall be sealed; and
      3. Shall not be redisclosed without a protective order.
    2. Data, records, reports, or documents released under this section are confidential and are items of evidence for which there is a reasonable expectation of privacy that the items will not be distributed to persons or institutions without a legitimate interest in the evidence.
    3. This subchapter does not abrogate the right of discovery in a criminal case under the Arkansas Rules of Criminal Procedure or other applicable law.

History. Acts 2005, No. 1812, § 1; 2007, No. 283, § 9; 2009, No. 165, § 11; 2011, No. 206, § 8; 2013, No. 584, §§ 6–9; 2015, No. 1214, §§ 5, 6.

Amendments. The 2007 amendment, in (a), inserted “including protected health information” in the introductory paragraph, and added (a)(14) through (a)(16); and made related changes.

The 2009 amendment, in (e), substituted “knowingly” for “willfully,” inserted “adult and long-term care facility resident maltreatment central” and “upon conviction,” and made minor stylistic changes.

The 2011 amendment added (a)(17) (now (a)(15)).

The 2013 amendment repealed former (a)(7) and (a)(16); inserted “department, including the” in (a)(9) (now (a)(8)); and inserted “or agency” preceding “a report” in (b)(2).

The 2015 amendment added (a)(18) (now (a)(16)) and (f).

12-12-1718. Availability of screened-out, pending, and unfounded reports.

  1. A record of a screened-out report of adult maltreatment or long-term care facility resident maltreatment shall not be disclosed except to the office of the Attorney General, the prosecuting attorney, and an appropriate law enforcement agency and may be used only within the Department of Human Services for purposes of administration of the program.
    1. A pending report, including protected health information, is confidential and shall be made available only to:
      1. The department, including the Death Review Committee of the Department of Human Services;
      2. A law enforcement agency;
      3. A prosecuting attorney;
      4. The office of the Attorney General;
      5. A circuit court having jurisdiction pursuant to a petition for emergency, temporary, long-term protective custody, or protective services;
      6. A grand jury or court, upon a finding that the information in the report is necessary for the determination of an issue before the grand jury or court;
      7. A person or provider identified by the department as having services needed by the maltreated person;
      8. Any applicable licensing or registering authority;
      9. Any employer, legal entity, or board responsible for the person named as the offender;
      10. Any legal entity or board responsible for the maltreated person; and
      11. The Office of Medicaid Inspector General.
    2. The subject of the report may only be advised that a report is pending.
  2. Upon satisfaction of due process and if an allegation was determined to be unfounded, the investigative report, including protected health information, is confidential and shall be made available only to:
    1. The department, including the committee;
    2. A law enforcement agency;
    3. A prosecuting attorney;
    4. The office of the Attorney General;
    5. Any applicable licensing or registering authority;
    6. Any person named as a subject of the report or that person's legal guardian;
    7. A circuit court having jurisdiction pursuant to a petition for emergency, temporary, long-term protective custody, or protective services;
    8. A grand jury or court, upon a finding that the information in the record is necessary for the determination of an issue before the grand jury or court;
    9. A person or provider identified by the department as having services needed by the person;
    10. Any employer, legal entity, or board responsible for the person named as the offender;
    11. Any legal entity or board responsible for the maltreated person; and
    12. The Office of Medicaid Inspector General.
  3. The department may retain automated information on unfounded reports for statistical purposes, to assess future risk, and to identify false reporting.
    1. Except for the subject of the report, no person or agency to which disclosure is made may disclose to any other person or agency a report or other information obtained under this section.
    2. Upon conviction, any person disclosing information in violation of this subsection is guilty of a Class C misdemeanor.
    1. The department may not release data that would identify the person who made a report except to law enforcement, a prosecuting attorney, or the office of the Attorney General.
    2. A court of competent jurisdiction may order release of data that would identify the person who made a report after the court has reviewed in camera the record related to the report and has found that disclosure is needed:
      1. To prevent commission of a crime; or
      2. For prosecution of a crime.
    1. Data, records, reports, or documents released under this section to a law enforcement agency, the prosecuting attorney, or a court by the department:
      1. Are confidential;
      2. Shall be sealed; and
      3. Shall not be redisclosed without a protective order.
    2. Data, records, reports, or documents released under this section are confidential and are items of evidence for which there is a reasonable expectation of privacy that the items will not be distributed to persons or institutions without a legitimate interest in the evidence.
    3. This subchapter does not abrogate the right of discovery in a criminal case under the Arkansas Rules of Criminal Procedure or other applicable law.

History. Acts 2005, No. 1812, § 1; 2007, No. 283, § 10; 2009, No. 525, § 5; 2013, No. 584, §§ 10–12; 2015, No. 1214, § 7.

Amendments. The 2007 amendment inserted “including protected health information” in (a)(1) and (b); added (a)(1)(I) through (a)(1)(K), (b)(10) through (b)(12), and (d); and made related changes.

The 2009 amendment inserted (a) and redesignated the subsequent subsections accordingly; deleted “screened out report or a” preceding “pending report” in (b)(1); substituted “satisfaction of due process” for “completion of the administrative hearing process” in (c); added (f); and made minor stylistic changes.

The 2013 amendment deleted (b)(1)(K) and (c)(12); rewrote (d); and inserted “or agency” preceding “a report” in (e)(1).

The 2015 amendment added (b)(1)(K), (c)(12), and (g).

12-12-1719. Delegation of authority.

The Secretary of the Department of Human Services may assign responsibilities for administering the various duties imposed upon the Department of Human Services under this subchapter to respective divisions of the department that in the secretary's opinion are best able to render service or administer the provisions of this subchapter.

History. Acts 2005, No. 1812, § 1; 2019, No. 910, § 5155.

Amendments. The 2019 amendment substituted “Secretary of the Department of Human Services” for “Director of the Department of Human Services” and “secretary's” for “director’s”.

12-12-1720. Penalties.

    1. A person commits the offense of failure to report under this subchapter in the first degree if he or she:
      1. Is a mandated reporter under § 12-12-1708;
      2. Has observed or has reasonable cause to suspect that an endangered person or impaired person has been subjected to conditions or circumstances that constitute adult maltreatment or long-term care facility resident maltreatment; and
      3. Knowingly fails to report or cause a report to be made to the adult and long-term care facility resident maltreatment hotline.
    2. Failure to report under this subchapter in the first degree is a Class B misdemeanor.
    1. A person commits the offense of failure to report in the second degree if he or she:
      1. Is a mandated reporter under § 12-12-1708;
      2. Has observed or has reasonable cause to suspect that an endangered person or impaired person has been subjected to conditions or circumstances that constitute adult maltreatment or long-term care facility resident maltreatment; and
      3. Knowingly fails to make a report or cause a report to be made in the manner and time provided in this subchapter to the adult and long-term care facility resident maltreatment hotline.
    2. Failure to report in the second degree is a Class C misdemeanor.
  1. A person or caregiver required by this subchapter to report a case of suspected adult maltreatment or long-term care facility resident maltreatment who purposely fails to do so is civilly liable for damages proximately caused by the failure.
    1. A person commits the offense of false reporting of adult abuse if he or she purposely makes a false report to the adult and long-term care facility resident maltreatment hotline knowing the allegation in the false report to be false.
    2. For a first offense, false reporting of adult abuse is a Class A misdemeanor.
    3. For a subsequent offense, false reporting of adult abuse is a Class D felony.
    1. A person commits the offense of unlawful disclosure of data or information under this subchapter if:
      1. He or she purposely discloses data or information to a person to whom disclosure is not permitted under § 12-12-1717 or § 12-12-1718; or
      2. He or she purposely encourages or permits the release of data or information to a person to whom disclosure is not permitted under § 12-12-1717 or § 12-12-1718.
    2. Unlawful disclosure of data or information under this subchapter is a Class A misdemeanor.
    1. A person commits the offense of failure to report a death under this subchapter if he or she:
      1. Is required to report a death under § 12-12-1709;
      2. Has reasonable cause to suspect that an adult or long-term care facility resident has died as a result of maltreatment; and
      3. Knowingly fails to make the report in the time and manner required under this subchapter.
    2. Failure to report a death under this subchapter is a Class C misdemeanor.

History. Acts 2005, No. 1812, § 1; 2009, No. 165, § 12; 2009, No. 525, § 6; 2017, No. 250, § 8.

A.C.R.C. Notes. This section was amended by both Acts 2009, No. 165, § 12, and Acts 2009, No. 525, § 6. Except for present subsection (c) of this section, this section is codified as amended by Acts 2009, No. 525, § 6, pursuant to § 1-2-207(b) and Acts 2009, No. 165, § 62. The amendments by Acts 2009, No. 165, § 12, and Acts No. 525, § 6, to present subsection (c) of this section were not in conflict.

Amendments. The 2009 amendment by No. 165, throughout the section, substituted “knowingly” for “willfully” and “upon conviction is” for “shall be”; substituted “violating subsection (c) of this section” for “making false allegations” in (d); and made minor stylistic changes.

The 2009 amendment by No. 525 rewrote the section.

The 2017 amendment deleted (b)(1)(C)(ii); redesignated former (b)(1)(C)(i) as (b)(1)(C); and inserted “or cause a report to be made” in (b)(1)(C).

12-12-1721. Reports as evidence.

  1. A written report from a person or official required by this subchapter to report shall be admissible in evidence in any proceeding relating to adult maltreatment or long-term care facility resident maltreatment.
  2. The affidavit of a physician, psychiatrist, psychologist, or licensed certified social worker shall be admissible in evidence in any proceeding relating to adult maltreatment or long-term care facility resident maltreatment.

History. Acts 2005, No. 1812, § 1.

12-12-1722. Services available on investigative finding of founded or unfounded.

  1. If an investigation under this subchapter is determined to be founded, the Department of Human Services may open a protective services case.
    1. If the department opens a protective services case under this section, the department shall provide services to the endangered person or impaired person in an effort to prevent:
      1. Additional maltreatment to the endangered person or impaired person; or
      2. Removal of the endangered person or impaired person from the home.
    2. Services provided by the department shall be relevant to the needs of the endangered person or impaired person.
  2. If at any time during the protective services case the department determines that the endangered person or impaired person cannot safely remain at home, the department shall take steps to remove the endangered person or impaired person under custody under the Arkansas Adult Maltreatment Custody Act, § 9-20-101 et seq.
  3. Upon request, the department shall be provided a copy of the results of radiology procedures, videotapes, photographs, medical records, or financial records on an endangered person or impaired person if the department has an open protective services case.
  4. If the report of adult maltreatment is deemed unfounded, the department may offer supportive services to the alleged endangered person or impaired person.
  5. An alleged endangered person or impaired person may accept or reject supportive services at any time.

History. Acts 2011, No. 206, § 9; 2013, No. 584, §§ 13, 14.

Amendments. The 2013 amendment substituted “founded or unfounded” for “true or unsubstantiated” in the section heading; substituted “to be founded” for “to be true” in (a); and substituted “unfounded” for “unsubstantiated” in (e).

12-12-1723. Rules.

The Secretary of the Department of Human Services may adopt rules to implement this subchapter.

History. Acts 2013, No. 584, § 15; 2019, No. 910, § 5156.

Amendments. The 2019 amendment substituted “Secretary of the Department of Human Services” for “Director of the Department of Human Services”.

Case Notes

Investigation.

Unambiguous language of the Adult and Long-Term Care Facility Resident Maltreatment Act, § 12-12-1701 et seq., placed the responsibility to conduct a thorough investigation of allegations of abuse squarely on the Department of Human Services (DHS), not the nursing home or long-term care facility, and nothing in the statutory provisions authorized DHS to delegate the responsibility, via its rulemaking authority, to the nursing home in which the abuse was alleged to have taken place. Williform v. Ark. Dep't of Human Servs., 2018 Ark. App. 314, 551 S.W.3d 401 (2018).

Subchapter 18 — Automatic License Plate Reader System Act

12-12-1801. Title.

This subchapter is known and may be cited as the “Automatic License Plate Reader System Act”.

History. Acts 2013, No. 1491, § 1.

Research References

ALR.

Use of License Plate Readers, 32 A.L.R.7th Art. 8 (2018).

Case Notes

Enforcement.

Companies lacked standing to sue the Governor and Attorney General challenging the constitutionality of the Automatic License Plate Reader System Act, § 12-12-1801 et seq., because the injury of which the companies complained was not “fairly traceable” to either official. The Act provides for enforcement only through private actions for damages; and the Governor and Attorney General do not have authority to enforce the Act. Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015).

Collection and dissemination of license-plate data prohibited by the Automatic License Plate Reader System Act, § 12-12-1801 et seq., was not consumer-oriented, and thus did not constitute an unconscionable act subject to the Attorney General's enforcement authority under the Deceptive Trade Practices Act, § 4-88-101 et seq.Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015).

12-12-1802. Definitions.

As used in this subchapter:

  1. “Alert” means data held by the Office of Motor Vehicle, the Arkansas Crime Information Center including without limitation the Arkansas Crime Information Center's Missing Persons Information Clearinghouse, the National Crime Information Center, and the Federal Bureau of Investigation Kidnappings and Missing Persons database;
  2. “Automatic license plate reader system” means a system of one (1) or more mobile or fixed automated high-speed cameras used in combination with computer algorithms to convert images of license plates into computer-readable data;
    1. “Captured plate data” means the global positioning device coordinates, date and time, photograph, license plate number, and any other data captured by or derived from any automatic license plate reader system.
    2. Captured plate data shall not include any personal data;
  3. “Governmental entity” means a lawfully created branch, department, or agency of the federal, state, or local government; and
  4. “Secured area” means an area, enclosed by clear boundaries, to which access is limited and not open to the public, and entry is obtainable only through specific access-control points.

History. Acts 2013, No. 1491, § 1.

12-12-1803. Restrictions on use.

  1. Except as provided in subsection (b) of this section, it is unlawful for an individual, partnership, corporation, association, or the State of Arkansas, its agencies, and political subdivisions to use an automatic license plate reader system.
  2. An automatic license plate reader system may be used:
    1. By a state, county, or municipal law enforcement agency for the comparison of captured plate data with data held by the Office of Motor Vehicle, the Arkansas Crime Information Center, the National Crime Information Center, a database created by law enforcement for the purposes of an ongoing investigation, and the Federal Bureau of Investigation for any lawful purpose;
    2. By parking enforcement entities for regulating the use of parking facilities;
    3. For the purpose of controlling access to secured areas; or
      1. By the Arkansas Highway Police Division of the Arkansas Department of Transportation for the electronic verification of registration, logs, and other compliance data to provide more efficient movement of commercial vehicles on a state highway.
      2. An automatic license plate reader system used under subdivision (b)(4)(A) of this section shall be installed at an entrance ramp at a weigh station facility for the review of a commercial motor vehicle entering the weigh station facility.

History. Acts 2013, No. 1491, § 1; 2015, No. 849, § 1; 2017, No. 250, § 9; 2017, No. 707, § 18.

Amendments. The 2015 amendment added (b)(4).

The 2017 amendment by No. 250 inserted the second occurrence of “weigh station” in (b)(4)(B).

The 2017 amendment by No. 707 substituted “Department of Transportation” for “State Highway and Transportation Department” in (b)(4)(A).

Research References

ALR.

Use of License Plate Readers, 32 A.L.R.7th Art. 8 (2018).

Case Notes

Enforcement.

Companies lacked standing to sue the Governor and Attorney General challenging the constitutionality of the Automatic License Plate Reader System Act, § 12-12-1801 et seq., because the injury of which the companies complained was not “fairly traceable” to either official. The Act provides for enforcement only through private actions for damages; and the Governor and Attorney General do not have authority to enforce the Act. Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015).

12-12-1804. Protections.

  1. Captured plate data obtained for the purposes described under § 12-12-1803(b) shall not be used or shared for any other purpose and shall not be preserved for more than one hundred fifty (150) days.
  2. Captured plate data obtained by an entity under § 12-12-1803(b)(1) may be retained as part of an ongoing investigation and shall be destroyed at the conclusion of either:
    1. An investigation that does not result in any criminal charges being filed; or
    2. Any criminal action undertaken in the matter involving the captured plate data.
  3. A governmental entity that uses an automatic license plate reader system under § 12-12-1803(b)(1) shall update the captured plate data collected under this subchapter every twenty-four (24) hours if updates are available.
    1. Except as provided under subdivision (d)(2) of this section, a governmental entity authorized to use an automatic license plate reader system under § 12-12-1803(b) shall not sell, trade, or exchange captured plate data for any purpose.
    2. Captured plate data obtained by a law enforcement agency under § 12-12-1803(b)(1) that indicates evidence of an offense may be shared with other law enforcement agencies.

History. Acts 2013, No. 1491, § 1.

12-12-1805. Practice and usage data preservation.

  1. An entity that uses an automatic license plate reader system under § 12-12-1803(b) shall:
    1. Compile statistical data identified in subsection (b) of this section every six (6) months into a format sufficient to allow the general public to review the compiled data; and
    2. Preserve the compiled data for eighteen (18) months.
  2. The preserved data shall include:
    1. The number of license plates scanned;
    2. The names of the lists against which captured plate data were checked;
    3. For each check of captured plate data against a list:
      1. The number of confirmed matches;
      2. The number of matches that upon further investigation did not correlate to an alert; and
      3. The number of matches that resulted in arrest and prosecution; and
      1. Promulgate rules and policies concerning the manner and method of obtaining, retaining, and destroying captured plate data, including without limitation specific rules and policies concerning retention of material in excess of one hundred fifty (150) days under § 12-12-1804(b) and make those rules and policies available for public inspection.
      2. Failure to comply with subdivision (b)(4)(A) of this section shall be grounds for a court of competent jurisdiction to exclude any evidence obtained under this subchapter.

History. Acts 2013, No. 1491, § 1.

12-12-1806. Use of data and data-derived evidence.

Captured plate data and evidence derived from it shall not be received in evidence in any trial, hearing, or other proceeding before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state or a political subdivision of the state if the disclosure of that information would be in violation of this subchapter.

History. Acts 2013, No. 1491, § 1.

12-12-1807. Penalties.

  1. A person who violates this subchapter shall be subject to legal action for damages to be brought by any other person claiming that a violation of this subchapter has injured his or her business, person, or reputation.
  2. A person so injured shall be entitled to actual damages or liquidated damages of one thousand dollars ($1,000), whichever is greater, and other costs of litigation.

History. Acts 2013, No. 1491, § 1.

Case Notes

Enforcement.

Companies lacked standing to sue the Governor and Attorney General challenging the constitutionality of the Automatic License Plate Reader System Act, § 12-12-1801 et seq., because the injury of which the companies complained was not “fairly traceable” to either official. The Act provides for enforcement only through private actions for damages; and the Governor and Attorney General do not have authority to enforce the Act. Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015).

While the Attorney General may intervene and defend the constitutionality of the Automatic License Plate Reader System Act, § 12-12-1801 et seq., in a private damages suit, the Attorney General does not initiate enforcement or seek relief against a putative defendant. Thus, the companies' injury was “fairly traceable” only to the private civil litigants who may seek damages under the Act and thereby enforce the statute against the companies. For the same reasons, it was not likely that the companies' injury would be “redressed by a favorable decision.” Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015).

Collection and dissemination of license-plate data prohibited by the Automatic License Plate Reader System Act, § 12-12-1801 et seq., was not consumer-oriented, and thus did not constitute an unconscionable act subject to the Attorney General's enforcement authority under the Deceptive Trade Practices Act, § 4-88-101 et seq.Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015).

12-12-1808. Privacy.

    1. Captured plate data or data obtained from the Office of Motor Vehicle may be disclosed only:
      1. To the person to whom the vehicle is registered;
      2. After the written consent of the person to whom the vehicle is registered; or
      3. If the disclosure of the data is permitted by the Driver's Privacy Protection Act of 1994, 18 U.S.C. § 2721 et seq., as it existed on January 1, 2013.
    2. Practice and usage data compiled and preserved under § 12-12-1806 are a public record for purposes of the Freedom of Information Act of 1967, § 25-19-101 et seq.
  1. Upon the presentation to an appropriate governmental entity of a valid, outstanding protection order protecting the driver of a vehicle jointly registered with or registered solely in the name of the individual against whom the order was issued, captured plate data shall not be disclosed except as the result of a match under § 12-12-1803(b).

History. Acts 2013, No. 1491, § 1.

Subchapter 19 — Location Information of Wireless Telecommunications Device and Geolocation of Internet Protocol Address in Emergency Situation

12-12-1901. Definitions.

As used in this subchapter:

  1. “Commercial mobile radio service” means a commercial mobile service under 47 U.S.C. § 151 et seq., Federal Communications Commission rules, and the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66;
  2. “Contact information” means the name of a person or a compilation of names of persons who can immediately respond to and facilitate a request for location information from a public safety agency at any time;
  3. “Geolocation” means the identification or estimation of a geographic location of an internet-enabled device connected to a computer network;
  4. “Internet protocol (IP) address” means a numerical label assigned to each device connected to a computer network that uses internet protocol for communication;
  5. “Law enforcement agency” means the Division of Arkansas State Police, the Attorney General's office, a prosecuting attorney's office, a county sheriff's department, a municipal police department, or a state agency with a law enforcement division;
  6. “Location information” means cell site or other geographic location estimate information in possession of a commercial mobile radio service provider; and
  7. “Public safety agency” means an agency that provides firefighting, law enforcement, medical, or other emergency services.

History. Acts 2015, No. 405, § 1; 2019, No. 584, § 1.

Amendments. The 2019 amendment inserted “and Geolocation of Internet Protocol Address” in the subchapter heading; added (3) and (4) and redesignated the remaining subdivisions accordingly; added “or a state agency with a law enforcement division” in (5); and made stylistic changes.

12-12-1902. Commercial mobile radio service or internet service provider to provide information upon request.

  1. Upon request of a law enforcement agency, a commercial mobile radio service provider shall provide location information of a wireless telecommunications device and an internet service provider shall provide geolocation information of an internet protocol (IP) address to the law enforcement agency, in the most expeditious manner reasonably available to the internet service provider, in order that the law enforcement agency may respond to a call for emergency services or to an emergency situation that involves the risk of death or serious physical harm.
  2. This section does not prohibit a commercial mobile radio service provider or an internet service provider from establishing protocols by which the commercial mobile radio service provider or the internet service provider may voluntarily disclose location information or geolocation information.
  3. Within five (5) days of providing location information or geolocation information to a requesting law enforcement agency, a commercial mobile radio service provider or an internet service provider that supplied the law enforcement agency with location information or geolocation information under this subchapter may request, and the law enforcement agency shall provide, the court order, subpoena, or search warrant, as applicable, outlining the request made and the actions taken by the law enforcement agency.

History. Acts 2015, No. 405, § 1; 2019, No. 584, § 1.

Amendments. The 2019 amendment inserted “or internet service” in the section heading; rewrote (a) and (b) and added (c).

12-12-1903. Limitation of liability.

Notwithstanding any other provision of law, a commercial mobile radio service provider or an internet service provider, or the officers, employees, assigns, or agents of a commercial mobile radio service provider or an internet service provider are not liable for civil damages or criminal liability in connection with the development, design, installation, operation, maintenance, performance, release, or provision of location information or geolocation information or for any failure to timely process or release any request for location information or geolocation information as may be necessary under this subchapter.

History. Acts 2015, No. 405, § 1; 2019, No. 584, § 1.

Amendments. The 2019 amendment inserted “or internet service provider”, substituted “or the officers” for “or its officers”, inserted “of a commercial mobile radio service provider or an internet service provider”, and inserted “or geolocation information” twice.

12-12-1904. Providers to submit contact information to Arkansas Crime Information Center.

A commercial mobile radio service provider or internet service provider either authorized to do business in the state or that has submitted to the jurisdiction of the state shall immediately submit all contact information to the Arkansas Crime Information Center and shall immediately update the contact information as changes occur.

History. Acts 2015, No. 405, § 1; 2019, No. 584, § 1.

Amendments. The 2019 amendment inserted “or internet service provider”.

12-12-1905. Additional duties of Arkansas Crime Information Center.

The Arkansas Crime Information Center shall make available the contact information obtained under § 12-12-1904 on at least a quarterly basis or immediately as changes occur to each public safety agency in the state.

History. Acts 2015, No. 405, § 1; 2019, No. 584, § 1.

Amendments. The 2019 amendment made no changes to this section.

12-12-1906. Prohibition against abuse.

  1. A commercial mobile radio service provider or internet service provider that believes the requirements of this subchapter are being abused by a law enforcement agency or a specific law enforcement officer may report the suspected abuse to the Division of Arkansas State Police for further investigation.
  2. If the law enforcement agency that the commercial mobile radio service provider or internet service provider believes is abusing the requirements of this subchapter is the Division of Arkansas State Police, the commercial mobile radio service provider or internet service provider may report the suspected abuse to the Attorney General.

History. Acts 2019, No. 584, § 1.

Chapter 13 Fire Prevention

Subchapter 1 — Fire Prevention Act

Cross References. Antiarson information from insurance applicants, § 23-88-201 et seq.

State Fire Prevention Commission, § 20-22-201 et seq.

Effective Dates. Acts 1955, No. 254, § 21: July 1, 1955.

Acts 1981, No. 45, § 15: July 1, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the agencies, departments, and programs now performed through the Department of Public Safety could more efficiently and economically perform their respective duties and responsibilities through reorganized agencies and departments operating as separate entities; that substantial savings could be made by eliminating the central services of the Department of Public Safety; and that the immediate passage of this act is necessary to provide for advance planning for more efficient administration after the close of the current fiscal biennium of the various public safety programs of this state. Therefore, an emergency is hereby declared to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after July 1, 1981.”

Acts 1981, No. 540, § 18: July 1, 1981. Emergency clause provided: “It is hereby found and determined by the Seventy-Third General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1981 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1981 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1981.”

Acts 2015, No. 874, § 2: Apr. 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that aspects of the Arkansas Fire Prevention Code are in conflict with the requirements of the Americans with Disability Act Standard for Accessible Design, and that this act is essential to ensure compliance with federal law. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-13-101. Title.

This subchapter shall be known as the “Fire Prevention Act”.

History. Acts 1955, No. 254, § 1; A.S.A. 1947, § 82-806.

12-13-102. Definitions.

As used in this subchapter:

  1. “Building” means any structure, framework, or housing, public or private;
  2. [Repealed.]
  3. “Fire hazard” means any building, premises, place, or thing which by reason of its nature, location, occupancy, condition, or use may cause loss, damage, or injury to persons or property by reason of fire, explosion, or action of the elements;
  4. “Members of fire departments” includes the personnel of all departments supported wholly or partially by public funds;
  5. “Officer” means an officer of the Division of Arkansas State Police whom the Director of the Division of Arkansas State Police may appoint or designate to execute the powers and perform the duties specified in this subchapter and also includes all peace officers as defined in subdivision (7) of this section;
    1. “Owner” shall be given its ordinary meaning and includes any trustee or any person having a freehold interest in property.
    2. However, a lessee or mortgagee of property shall not be deemed the owner thereof;
  6. “Peace officer” includes every type of law enforcement officer commissioned and active within this state;
  7. “Person” means any individual, copartnership, corporation, or voluntary association; and
  8. “Premises” means any parcel of land, exclusive of buildings thereon, and includes parking lots, tourist camps, trailer camps, airports, stockyards, junkyards, and other places or enclosures, however owned, used, or occupied.

History. Acts 1955, No. 254, § 2; A.S.A. 1947, § 82-807; Acts 2019, No. 910, §§ 5859, 5860.

Amendments. The 2019 amendment repealed (2); and substituted “Division of Arkansas State Police whom the Director of the Division of Arkansas State Police” for “Department of Arkansas State Police whom the director” in (5).

12-13-103. Officer's neglect of duty — Penalty.

  1. Any officer referred to in this subchapter who neglects to comply with any requirement of this subchapter shall be guilty of a violation.
  2. Upon conviction, the officer shall be punished by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100) for each neglect or violation.

History. Acts 1955, No. 254, § 9; A.S.A. 1947, § 82-814; Acts 2005, No. 1994, § 77.

Amendments. The 2005 amendment substituted “violation” for “misdemeanor” in (a); and deleted “and in default of the payment thereof shall be imprisoned not to exceed thirty (30) days” from the end of (b).

12-13-104. Administration and enforcement.

  1. The administration and enforcement of this subchapter are vested in the Division of Arkansas State Police.
  2. The Director of the Division of Arkansas State Police is empowered to create and maintain a State Fire Marshal Enforcement Section in the Division of Arkansas State Police and to appoint such personnel with such duties, powers, and titles as he or she may deem necessary for the proper administration and enforcement of this subchapter.

History. Acts 1955, No. 254, § 3; A.S.A. 1947, § 82-808; Acts 2019, No. 910, § 5861.

Publisher's Notes. Acts 1955, No. 254, § 3, which is codified in this section, also empowered the Director of the Department of Arkansas State Police to create and maintain a Division of Fire Prevention within the department and to appoint personnel with duties, powers, and titles as he deemed necessary for the proper administration and enforcement of this subchapter.

Acts 1955, No. 254, § 18, abolished the office of State Fire Marshal as it then existed and transferred all its titles, functions, powers, duties, records, files, and other property to the Director of the Arkansas State Police.

Acts 1971, No. 38, § 14, as amended, transferred the Department of Arkansas State Police into the Department of Public Safety where it was located in the Police Division.

Acts 1975, No. 492, § 1, and a number of successor provisions contained in appropriations bills (Acts 1975 (Extended Sess., 1976), No. 1017, § 21; Acts 1979, No. 1062, § 18; and Acts 1981, No. 540, § 12), provided that a State Fire Marshal Enforcement Section be established within the Police Services Division of the Department of Public Safety and that such section should administer this subchapter.

Acts 1981, No. 45, § 3, provided, in part, that the State Fire Marshal Enforcement Section of the Police Services Division of the Department of Public Safety, and all of its powers, functions, duties, personnel, and funds would be detached from the Department of Public Safety (abolished by Acts 1981, No. 45, § 1) and transferred to the Department of Arkansas State Police. It further provided that nothing in the act would be construed so as to reduce any rights which an employee of the State Fire Marshal Enforcement Section of the Arkansas State Police would have under any civil service or merit system. The section further provided that all powers, functions, and duties added to the State Fire Marshal Enforcement Section subsequent to the enactment of Acts 1971, No. 38 would be vested in and thereafter performed by the State Fire Marshal Enforcement Section of the Arkansas State Police.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” throughout the section.

12-13-105. Duties of State Fire Marshal Enforcement Section.

The State Fire Marshal Enforcement Section shall have the responsibility to:

  1. Provide sufficient training to the several deputy fire marshals in the State of Arkansas to enable them to better understand their duties and their authority and to motivate them to perform their duties in an effective and efficient manner;
  2. Coordinate fire prevention efforts with other agencies and groups;
  3. Develop and present public awareness programs in fire prevention and protection;
  4. Develop and disseminate fire prevention information and material;
  5. Enforce the Arkansas Fire Prevention Code and periodically revise and update the Arkansas Fire Prevention Code;
  6. Investigate fires of a suspicious nature in the state;
  7. Do and perform such other functions as will promote an efficient and effective fire prevention and control program in the state;
  8. Review fire protection class code determinations by an advisory organization and determine if the evaluation of fire protection services is reasonable and appropriate; and
  9. Upon request, make recommendations to the Insurance Commissioner concerning filings made to the commissioner concerning fire protection standards.

History. Acts 1981, No. 540, § 12; A.S.A. 1947, § 5-914.2; Acts 2015, No. 961, § 1.

Publisher's Notes. Acts 1983, No. 358, § 1, transferred the authority and responsibility of the State Fire Marshal Enforcement Section of the Arkansas State Police to establish an information retrieval system on fires, fire deaths, and fire injuries; to provide statistical data for evaluating current fire protection efforts; and to enable the correction of current deficiencies and the development of new methods to the Southern Arkansas University Technical Branch Fire Training Academy.

Amendments. The 2015 amendment added (8) and (9).

Cross References. Criminal acts involving explosives, § 5-73-108.

12-13-106. Section personnel.

The members or heads of the State Fire Marshal Enforcement Section of the Division of Arkansas State Police shall be appointed and serve in the same manner as provided by law for the operation of other divisions of the Division of Arkansas State Police.

History. Acts 1981, No. 45, § 3; A.S.A. 1947, § 5-914.2a; Acts 2019, No. 910, § 5862.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police”.

12-13-107. Director of the Division of Arkansas State Police — Duties generally.

  1. It shall be the duty of the Director of the Division of Arkansas State Police and his or her officers and deputies to enforce all laws and ordinances with regard to the following:
    1. The prevention of fires;
    2. The storage, sale, and use of combustibles and explosives;
    3. The installation and maintenance of automatic or other fire alarm systems and fire extinguishing equipment;
    4. The construction, maintenance, and regulation of fire escapes;
    5. The means and adequacy of exits in case of fire from factories, asylums, hospitals, churches, schools, halls, theaters, and all other places in which numbers of people work, live, or congregate from time to time, for any purpose; and
    6. The suppression of arson and the investigation of the cause, origin, and circumstances of fires.
  2. The director is empowered to adopt reasonable rules for the effective administration of this subchapter to accomplish its intent and purposes, and to safeguard the public from fire hazards.
  3. The director shall make reasonable rules for the keeping, storing, using, manufacture, selling, handling, transportation, or other disposition of highly inflammable materials and rubbish, gunpowder, dynamite, crude petroleum or any of its products, explosives or compounds or any other explosive, including fireworks, and firecrackers, and he or she may prescribe the materials and construction of receptacles and buildings to be used for any of those purposes.
  4. Nothing in this subchapter shall apply to the inspection of boilers, § 20-23-101 et seq., the administration and enforcement of which is now vested in the Division of Labor.

History. Acts 1955, No. 254, §§ 5, 6; A.S.A. 1947, §§ 82-810, 82-811; Acts 2019, No. 315, § 873; 2019, No. 910, §§ 5402, 5863.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (b); and substituted “rules” for “regulations” in (c).

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in the introductory language of (a); and substituted “Division of Labor” for “Department of Labor” in (d).

12-13-108. Ex officio deputies.

All mayors, members of fire departments, and peace officers shall be ex officio deputies to the Director of the Division of Arkansas State Police. They shall be subject to the duties and obligations imposed by this subchapter in fire prevention and in the investigation of the cause, origin, and circumstances of fires within their jurisdiction.

History. Acts 1955, No. 254, § 4; A.S.A. 1947, § 82-809; Acts 2019, No. 910, § 5864.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in the first sentence.

12-13-109. Fire drills.

It shall be the duty of the Director of the Division of Arkansas State Police, his or her officers, and deputies to require teachers of public and private schools and all educational institutions to have one (1) fire drill each month and to keep all doors and exits unlocked during school hours.

History. Acts 1955, No. 254, § 8; A.S.A. 1947, § 82-813; Acts 2019, No. 910, § 5865.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police”.

Cross References. Fire marshal program, § 6-10-110.

12-13-110. Inspection of buildings.

    1. Upon complaint of any person or on their own motion, the Director of the Division of Arkansas State Police and his or her officers or deputies may inspect all buildings and premises within their jurisdiction and issue an order for the compliance with the director's rules.
    2. Failure or refusal to comply with an order of the director in the enforcement of the rules shall be a Class A misdemeanor.
    1. The director and his or her officers and deputies shall inspect all places of public assembly, including factories or industrial plants normally employing ten (10) or more persons, where hazards to the lives and safety of citizens might be present.
    2. If upon completion of the inspection an unsafe or hazardous condition is found to exist, then the director shall promptly notify the owner or operator of the public assembly in writing.
    3. Upon the receipt of the written notice, the owner or operator shall remove the hazardous or unsafe condition.
      1. On failure to remedy the condition, the director may file injunction proceedings in the circuit court of the jurisdiction to abate the condition as being a nuisance.
      2. The suit shall be filed in the name of the director for the use and benefit of the State of Arkansas without bond for costs.

History. Acts 1955, No. 254, §§ 7, 11; A.S.A. 1947, §§ 82-812, 82-816; Acts 2005, No. 1994, § 199; Acts 2019, No. 315, § 874; 2019, No. 910, § 5866.

Amendments. The 2005 amendment substituted “Class A misdemeanor” for “misdemeanor and punishable as such” in (a)(2).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a)(1) and (a)(2).

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(1).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-13-111. Investigation of fires.

    1. The deputies to the Director of the Division of Arkansas State Police shall investigate each fire causing loss of life or damage to property within their jurisdiction to determine if the fire was caused by negligence or design.
    2. If it appears that a fire is of suspicious origin or that a crime has been committed in connection therewith, the deputy shall immediately notify the director, who shall promptly initiate an inquiry to ascertain the cause of the fire and the person, if any, responsible therefor.
  1. On his or her own motion and at any time, the director may investigate the origin and circumstances of any fire in this state without restraint or liability for trespass.
  2. Any building or premises may be inspected along with the contents and occupancy thereof.
  3. On request, every fire insurance company licensed in this state shall furnish to the director any information it may have concerning any fire in this state.

History. Acts 1955, No. 254, § 12; A.S.A. 1947, § 82-817; Acts 2019, No. 910, § 5867.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(1).

12-13-112. Inquiries.

  1. When the Director of the Division of Arkansas State Police or any officer or deputy has reason to believe that a crime or other offense has been committed in connection with any fire, the director or his or her deputy may conduct an inquiry in relation thereto.
  2. The inquiry shall be held at such time and place as the director or his or her deputy shall determine.
  3. The director or his or her deputy shall have the power:
    1. Of subpoena to compel the attendance of witnesses to testify at the inquiry and for the production of books, records, papers, other writings, or things deemed material to the inquiry;
    2. To administer oaths or affirmations of witnesses; and
    3. To cause testimony to be taken stenographically, transcribed, and preserved.
  4. The inquiry or examination may be public or private as the director or his or her deputy may determine, and persons other than those required to be present may be excluded from the place thereof.
  5. Witnesses may be kept separate and apart from each other and not allowed to communicate with one another until they have been examined.
  6. Willful false swearing by any witness shall be deemed perjury and be punishable as such.
    1. In case of disobedience of a subpoena, the director or his or her deputy may invoke the aid of the proper circuit court of the jurisdiction to compel the attendance and testimony of witnesses and production of books, papers, written material, and things incident to the inquiry.
    2. The circuit court is empowered to punish as a contempt any disobedience or refusal to obey a subpoena.
    1. No person shall be excused from testifying or producing any books, records, papers, or things, or upon any hearing, when ordered to do so, upon the ground that the testimony or evidence may tend to incriminate him or her or subject him or her to a criminal penalty.
      1. However, no person shall be prosecuted or subjected to criminal liability for or on account of any transaction made or thing concerning which he or she may testify or produce evidence, documentary or otherwise, before the director or his or her deputy.
      2. No person so testifying shall be exempt from prosecution and punishment for perjury committed in his or her testimony.
  7. The prosecuting attorney of any district, upon request of the director or his or her officer or deputy, shall assist in any investigation when called upon to do so.

History. Acts 1955, No. 254, §§ 13, 14; A.S.A. 1947, §§ 82-818, 82-819; Acts 2019, No. 910, § 5868.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a).

12-13-113. Service of process, order, or notice.

Any officer of the Department of Arkansas State Police may serve any order, notice, or process issued under the authority of this subchapter. The officer may make a return of service in the same manner as required by law for the return of service of process by a county sheriff of a county.

History. Acts 1955, No. 254, § 15; A.S.A. 1947, § 82-820.

12-13-114. Civil actions.

    1. No act taken by the Director of the Division of Arkansas State Police shall affect the rights of any policy holder or of any insurance company with regard to a loss by reason of any fire which the director has investigated.
    2. The result of any investigation shall not be given in evidence upon the trial of any civil action upon any policy.
  1. No statement made by any insurance company, its officers or agents, or by anyone representing the insurance company or its officers or agents, made with reference to the origin, cause, or supposed origin or cause of the fire to the director or his or her officers or deputies shall be admitted in evidence or made the basis for any civil action for damages.

History. Acts 1955, No. 254, § 16; A.S.A. 1947, § 82-821; Acts 2019, No. 910, § 5869.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(1).

12-13-115. Annual report to Governor.

Annually on or before July 1, the Director of the Division of Arkansas State Police shall transmit to the Governor a full report of his or her proceedings under this subchapter, including statistics and recommendations he or she may deem advisable.

History. Acts 1955, No. 254, § 17; A.S.A. 1947, § 82-822; Acts 2019, No. 910, § 5870.

Amendments. The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police”.

12-13-116. Disposition of penalties, fees, and forfeitures.

All penalties, fees, or forfeitures collected under the provisions of this subchapter shall be deposited into the State Treasury to the credit of the Department of Arkansas State Police Fund.

History. Acts 1955, No. 254, § 10; A.S.A. 1947, § 82-815.

12-13-117. Temporary door barricade devices.

A person may install and use a temporary door barricade device or security lockdown device for security purposes to protect individuals during active shooter events or other similar situations.

History. Acts 2015, No. 606, § 1.

12-13-118. Americans with Disabilities Act compliance.

When the Arkansas Fire Prevention Code conflicts with the 2010 Americans with Disabilities Act Standards for Accessible Design, the conflicting provisions of the 2010 Americans with Disabilities Act Standards for Accessible Design shall control.

History. Acts 2015, No. 874, § 1.

12-13-119. Review of fire protection class code determinations by advisory organizations — Recommendations to Insurance Commissioner.

  1. The State Fire Marshal Enforcement Section may review fire protection standards filings filed by an advisory organization with the Insurance Commissioner if:
    1. The filing is based on the effectiveness of fire protection services; and
    2. Upon request of the commissioner or a person affected by a rate filing.
  2. The section shall review a fire protection class code determination by:
    1. Reassessing the fire protection services of each area of the state under approved standards to determine whether or not the analysis of the area's fire protection services were graded accurately considering the area's concerns, characteristics, and equipment and support available for fire protection services;
    2. Advising the commissioner if the fire protection class code determination is reasonable and appropriate; and
    3. Recommending further review or action by the commissioner concerning the fire protection class code determination.
  3. A recommendation by the section is not binding on the commissioner.
  4. The section shall make its recommendations under this section to the commissioner within thirty (30) days after receipt of a request to review a fire protection standards filing.
  5. The section shall draw upon the experience and knowledge of different individuals in this state to make an informed recommendation to the commissioner.

History. Acts 2015, No. 961, § 2.

Subchapter 2 — Arkansas Fire Training Academy

Publisher's Notes. Acts 1987, No. 928, § 11, transferred the Arkansas Fire Training Academy at Camden, and its properties and funds, to the control of the State Board of Vocational Education (abolished and transferred to the State Board of Workforce Education and Career Opportunities) to be under the direction of the Director of the Vocational and Technical Education Division (abolished and transferred to the Department of Workforce Education). It also provided that Academy personnel who were members of a state retirement system were eligible to continue to participate in that system.

Effective Dates. Acts 1973, No. 482, § 5: Mar. 27, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly that the construction of a Fire Training Academy is vitally needed in providing fire service training for firemen and other individuals who are responsible for fighting fires, and that the immediate passage of this act is necessary to provide construction funds therefor. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 928, § 16: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the Seventy-Sixth General Assembly that the amendments to the Revenue Stabilization Law are essential to the continued operation of state government; therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1987.”

Acts 2001, No. 178, § 3: Feb. 9, 2001. Emergency clause provided: “It is hereby found and determined by the Eighty-third General Assembly that Act 928 of 1987 purported to transfer the Fire Training Academy from Southern Arkansas University, SAU — Tech to the Vocational-Technical Division of the Department of Education; that the Pulaski County Chancery Court determined that the transfer was in violation of Amendment 33 to the Arkansas Constitution and therefore invalidated the transfer; and that this act is necessary to clarify the law regarding the Fire Training Academy to restate that the Fire Training Academy is under the control of the Southern Arkansas University, SAU — Tech. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 1459, § 7: Apr. 16, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that fire protection services in this state are not being adequately addressed by the existing boards responsible for these services; that some fire protection services are being duplicated by the various boards; and that this act is immediately necessary because without proper services for our firefighters, their lives could be at risk. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-13-201. Construction, operation, etc.

The Arkansas Fire Training Academy shall be under the control of SAU-Tech of Southern Arkansas University, and the university shall maintain and operate a fire service training program at the academy.

History. Acts 1973, No. 482, § 4; 1993, No. 447, § 6; 2001, No. 178, § 1.

A.C.R.C. Notes. Acts 1987, No. 928, § 11, repealed by Acts 2001, No. 178, § 3, transferred the Arkansas Fire Training Academy at Camden, and its properties and funds, to the control of the State Board of Vocational Education (abolished and transferred to the State Board of Workforce Education and Career Opportunities) to be under the direction of the Director of the Vocational and Technical Education Division (abolished and transferred to the Department of Workforce Education). It also provided that Academy personnel who were members of a state retirement system were eligible to continue to participate in that system.

12-13-202. [Repealed.]

Publisher's Notes. This section, concerning the creation of the Arkansas Fire Training Academy Board, was repealed by Acts 2003, No. 1459, § 4. The section was derived from Acts 1983, No. 529, §§ 1-3; 1983, No. 530, §§ 1-3; A.S.A. 1947, §§ 82-151 — 82-853; Acts 1997, No. 250, § 68.

12-13-203. [Repealed.]

Publisher's Notes. This section, concerning the duties of the Arkansas Fire Training Academy Board, was repealed by Acts 2003, No. 1459, § 5. The section was derived from Acts 1983, No. 529, § 4; 1983, No. 530, § 4; A.S.A. 1947, § 82-854; Acts 1993, No. 447, § 7.

12-13-204. Gifts, grants, and donations.

SAU-Tech of Southern Arkansas University is authorized to accept and receive gifts, grants, and donations for the operations and improvement of the Arkansas Fire Training Academy.

History. Acts 1987, No. 928, § 13; 2001, No. 178, § 2.

12-13-205. Reimbursement for training expenses.

    1. If any county, city, or town pays the cost or expenses for training a firefighter at the Arkansas Fire Training Academy or other like program and another county, city, or town or an agency of the State of Arkansas employs that firefighter within eighteen (18) months after completion of the training in a position requiring a certificate of training from the academy, the state agency, county, city, or town so employing the firefighter, at the time of employing the firefighter, shall reimburse the county, city, or town for all or a portion of the expenses incurred by the county, city, or town for the training of the firefighter at the academy, unless the firefighter has been terminated by the county, city, or town which paid the costs or expenses of training, in which case no reimbursement is required from the state agency, county, city, or town hiring the firefighter.
    2. Reimbursement may only be sought from the first state agency, county, city, or town which employs the firefighter after another county, city, or town has paid the costs or expenses of training.
    3. Reimbursement shall include any salary, travel expenses, food, lodging, or other costs required to be paid by the county, city, or town, as follows:
      1. If the person is employed within two (2) months after completion of the training, the employing agency shall reimburse the total cost of the training;
      2. If the person is employed more than two (2) months but not more than six (6) months after completion of the training, the employing agency shall reimburse eighty percent (80%) of the cost of the training;
      3. If the person is employed more than six (6) months but not more than ten (10) months after completion of the training, the employing agency shall reimburse sixty percent (60%) of the cost of the training;
      4. If the person is employed more than ten (10) months but not more than fourteen (14) months after completion of the training, the employing agency shall reimburse forty percent (40%) of the cost of the training; or
      5. If the person is employed more than fourteen (14) months but not more than eighteen (18) months after completion of the training, the employing agency shall reimburse twenty percent (20%) of the cost of the training.
    4. If the person is employed more than eighteen (18) months after completion of the training, no reimbursement is required.
    1. If any county, city, town, or state agency which employs a firefighter whose training expense was paid by another county, city, or town fails to make reimbursement for the expenses as required in subsection (a) of this section, the county, city, or town entitled to reimbursement shall notify the Treasurer of State.
    2. The Treasurer of State shall then withhold the amount of the reimbursement due for training the firefighter from the county or municipal aid of the employing county, city, or town or from funds appropriated to the employing state agency and shall remit the amount to the county, city, or town which is entitled to the reimbursement under the provisions of this section.

History. Acts 2001, No. 66, § 1.

Subchapter 3 — Arson Reporting-Immunity Act

Effective Dates. Acts 1981, No. 123, § 7: Feb. 19, 1981. Emergency clause provided: “The General Assembly hereby finds and determines that arson has become an epidemic in this state; that law enforcement and other authorized agencies need access to the files of insurers to more effectively fight the crime; that insurers need immunity from liability for furnishing their suspected arson files to authorized agencies; and that this act is immediately necessary to provide such immunity. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Jackson, Torts, 9 U. Ark. Little Rock L.J. 207.

12-13-301. Title.

This subchapter shall be known as the “Arson Reporting-Immunity Act”.

History. Acts 1981, No. 123, § 1; A.S.A. 1947, § 66-5601.

12-13-302. Definitions.

As used in this subchapter:

  1. “Action” includes nonaction or the failure to take action;
  2. “Authorized agencies” means any law enforcement agency or agency or instrumentality of this state, of a county or municipality, or of the federal government which is charged with the responsibility of investigating fires;
  3. “Immune” means that neither a civil action nor a criminal prosecution may arise from any action taken pursuant to this subchapter when actual malice on the part of the insurer or its representative against the insured is not present;
  4. “Insurer” shall include every person engaged as indemnitor, surety, or contractor in the business of entering into contracts of insurance;
  5. “Named insured” means the person whose name appears on the face of the policy as the insured individual; and
  6. “Relevant information” means information having any tendency to make the existence of any fact that is of consequence to the investigation or determination of the issue more probable or less probable than it would be without the information.

History. Acts 1981, No. 123, §§ 2, 3; A.S.A. 1947, §§ 66-5602, 66-5603.

12-13-303. Disclosure of information.

  1. Any authorized agency may, in writing, require the insurer at interest to release to the requesting agency relevant information relating to the fire loss in question which may include, but is not limited to:
    1. Policy premium payment records;
    2. History of previous claims made by the insured; and
    3. Material relating to the insurer's investigation of the fire loss.
    1. Any insurer having reason to believe that a fire loss in which it has an interest may be of other than accidental cause shall, in writing, notify an authorized agency of the finding.
    2. When an insurer notifies any one (1) of the authorized agencies pursuant to this subchapter, it shall be sufficient notice for the purpose of this subchapter.
    3. Nothing in this subsection shall abrogate or impair the rights or powers created under subsection (a) of this section.
  2. The authorized agency provided with information pursuant to subsection (a) or subsection (b) of this section and in furtherance of its own purposes may release or provide the information to any other authorized agency of this or another state, or of the United States to the extent that its disclosure or use is relevant to a loss by fire of real or personal property which is under investigation by the authorized agency.
    1. When an insurer enters into a contract of insurance against fire loss with the insured, the requirements of this subchapter must be disclosed in writing to the insured.
    2. Any insurer providing information to an authorized agency pursuant to this subchapter shall notify its insured in writing of such an action no later than ninety (90) days after the action has been taken. A copy of the report furnished the authorized agency shall be furnished to the insured upon the commencement of civil action or criminal prosecution.
  3. Any insurer, or a person acting on its behalf, shall be immune from liability in any civil or criminal proceeding for any statement made or action required by this subchapter when actual malice on the part of the insurer or its representative is not present.

History. Acts 1981, No. 123, § 3; 1983, No. 415, § 1; A.S.A. 1947, § 66-5603.

Cross References. False claims or proofs, § 23-66-301.

Case Notes

Admissibility of Evidence.

Insurer's violation of notification requirement of this section was relevant to bad faith claim; consequently, testimony concerning insurer's noncompliance should have been admitted and instructions setting out requirements of this subchapter should have been given. Thomas v. Farm Bureau Ins. Co., 287 Ark. 313, 698 S.W.2d 508 (1985).

12-13-304. Confidentiality.

Any information furnished to any authorized agency pursuant to this subchapter shall be held in confidence by the authorized agency and shall be released only for use in a civil or criminal proceeding as authorized by a court of competent jurisdiction.

History. Acts 1981, No. 123, § 4; A.S.A. 1947, § 66-5604.

12-13-305. Enforcement.

  1. No person shall knowingly refuse to provide authorized agencies with relevant information pursuant to this subchapter.
  2. No person shall fail to hold in confidence information required to be held in confidence by this subchapter.
  3. Whoever violates this section is guilty of a Class A misdemeanor.

History. Acts 1981, No. 123, § 5; A.S.A. 1947, § 66-5605.

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

Chapter 14 State Capitol Police

Effective Dates. Acts 1989, No. 468, § 7: Mar. 10, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present laws protection of the State Capitol grounds is inadequate; that this act is designed to maintain proper order and decorum, prevent unlawful assemblies, exclude and eject persons detrimental to the well-being of the State Capitol grounds and regulate the operation and parking of motor vehicles in the Capitol Zoning District and that this law should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 976, § 25: July 1, 1997. Emergency clause provided: “It is hereby found and determined by the Eighty-First General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1997 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1997 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997.”

Acts 2017, No. 474, § 2: Became law without Governor's signature, Mar. 13, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this exemption is needed for the security of the State Capitol Building and Capitol Hill apartment complex; that this act protects confidential records belonging to the State Capitol Police; and that this act is immediately necessary because currently this exemption does not exist in law. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-14-101. Establishment — Powers.

  1. In such a manner as will most effectually secure the citizens and their property in and around the State Capitol, the Secretary of State may:
    1. Establish the State Capitol Police;
    2. Organize the State Capitol Police;
    3. Prescribe the State Capitol Police's duties; and
    4. Define the State Capitol Police's powers.
    1. The Secretary of State may designate and appoint one (1) or more of his or her employees as State Capitol Police, who shall be peace officers under the laws of the state and shall have and possess all the powers provided by the law for Arkansas State Police, city police, and county sheriffs to be exercised as required for the protection of the State Capitol grounds, together with such other duties as may be assigned by the Secretary of State.
    2. An officer of the State Capitol Police may act in his or her official capacity and exercise his or her powers anywhere within the boundaries of the State of Arkansas.
  2. None of the present jurisdiction or powers of the Department of Arkansas State Police, county police, or city police shall be ceded to the State Capitol Police over the land or property which constitutes the State Capitol grounds or within the boundaries of the State of Arkansas.

History. Acts 1989, No. 468, § 1; 2005, No. 167, § 1.

Amendments. The 2005 amendment added the subdivision (1) designation in (b); added (b)(2); and added “or within the boundaries of the State of Arkansas” at the end of (c).

12-14-102. Duties — Authority.

  1. Except to the extent otherwise limited by the Secretary of State, State Capitol Police appointed pursuant to the authority contained in this chapter shall:
    1. Protect property;
    2. Preserve and maintain proper order and decorum;
    3. Prevent unlawful assemblies and disorderly conduct;
    4. Exclude and eject persons from and prevent trespass upon and in all of the State Capitol grounds and other grounds, buildings, improvements, streets, alleys, and sidewalks under control of the Secretary of State; and
    5. Have the authority to regulate the operation and parking of motor vehicles upon the State Capitol grounds and other grounds under control of the Secretary of State and upon all streets adjoining and traversing the State Capitol grounds, as long as it does not impede normal traffic patterns.
  2. The State Capitol Police officers shall have and exercise police supervision on behalf of the Secretary of State and are authorized as peace officers to arrest, with or without warrant, any person upon or in the areas described in this section or within the boundaries of the State of Arkansas who is or is reasonably believed to be committing an offense against any laws of the State of Arkansas or against the ordinances of the city where the State Capitol grounds are located, and to deliver the person before any court of competent jurisdiction to be dealt with according to law.

History. Acts 1989, No. 468, § 1; 2005, No. 167, § 2.

Amendments. The 2005 amendment inserted “or within the boundaries of the State of Arkansas” in (b).

12-14-103. Rules.

The Secretary of State is hereby authorized and empowered to promulgate rules, and to amend or change the same from time to time as he or she shall deem necessary, providing for the operation and organization of the State Capitol Police, so long as such rules are not arbitrary or capricious.

History. Acts 1989, No. 468, § 1; 2019, No. 315, § 875.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in the section heading and twice in the text.

12-14-104. Territory — Cumulative remedies.

    1. This chapter shall apply to and encompass all lands, buildings, and improvements that are commonly referred to as the State Capitol grounds and additional areas set out in this section and that are bounded as follows: Beginning at the point where the centerline of Tenth Street intersects the eastern edge of the right-of-way of the Missouri Pacific and Rock Island Railroad Line, then northeast along the southern boundary of that right-of-way to the point where the centerline of Cross Street, extended northeast, intersects that right-of-way, then south along the centerline of Cross Street to the point where that line intersects the northern edge of the Wilbur Mills Freeway, also known as I-630, surveyed by the Arkansas Department of Transportation, to the point of the beginning.
    2. However, nothing in this chapter shall be interpreted as in any way interfering with the ownership and control that are by law now vested in the governing boards of each department as to its lands, buildings, and improvements.
  1. The provisions of this chapter shall be cumulative to any remedies that each department may now possess for enforcing its rules, including its rights to:
    1. Impose sanctions through fees and charges;
    2. Discipline;
    3. Deny service; and
    4. Expel.

History. Acts 1989, No. 468, § 1; 2001, No. 1082, § 1; 2017, No. 707, § 19; 2019, No. 315, § 876.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a)(1).

The 2019 amendment deleted “and regulations” following “rules” in the introductory language of (b).

12-14-105. Enforcement — Fines.

  1. The prosecuting attorney or the city attorney, as may be appropriate, shall appear and prosecute all actions arising in any court under the provisions of this chapter.
  2. All fines which may be collected by any court on account of the violation of this chapter shall be remitted by the tenth day of each month to the Administration of Justice Funds Section of the Office of Administrative Services of the Department of Finance and Administration on a form provided by that office, to be deposited into the State Treasury and placed to the credit of the State Capitol Police.

History. Acts 1989, No. 468, § 1; 2003, No. 1765, § 6.

12-14-106. Additional salary payments.

  1. In the event that sufficient revenues in the judgment of the Secretary of State exist, the Secretary of State may make additional salary payments from those funds to those employees who have attained law enforcement certification above the basic certificate level, as defined by the Arkansas Commission on Law Enforcement Standards and Training.
  2. It is the intent of this section that the payment shall be optional, at the discretion of the Secretary of State, dependent on sufficient revenues, and shall not be implemented using funds specifically set aside for other programs within the office of the Secretary of State.
    1. Employees shall be eligible for all or a portion of additional salary payments scheduled as follows:
      1. General certificate — three hundred dollars ($300) annually;
      2. Intermediate certificate — six hundred dollars ($600) annually;
      3. Advanced certificate — nine hundred dollars ($900) annually; and
      4. Senior certificate — one thousand two hundred dollars ($1,200) annually.
    2. Payment of additional salary payments may be made monthly, quarterly, semiannually, or annually depending upon the availability of revenues and shall be restricted to the following classifications:
      1. State Capitol Police Chief;
      2. State Capitol Police Assistant Chief;
      3. State Capitol Police sergeant; and
      4. State Capitol Police corporal.
    1. Payments made under this section which are awarded as partial or lump-sum payments shall not be considered as salary for purposes of retirement benefits but shall be subject to withholding of all applicable federal and state taxes.
    2. Payments made under this section shall not be construed as exceeding the maximum annual salary of the employee.

History. Acts 1997, No. 976, § 18; 2005, No. 167, § 3.

A.C.R.C. Notes. Acts 2015, No. 68, § 16, provided:

“STATE CAPITOL POLICE. In the event that sufficient revenues, in the judgment of the Secretary of State exist, the Secretary is hereby authorized to make additional salary payments from such funds to those employees who have attained law enforcement certification above the basic certificate level, as defined by the Arkansas Commission on Law Enforcement Standards. It is the intent of this Section that such payment shall be optional, at the discretion of the Secretary, dependent on sufficient revenues and shall not be implemented using funds specifically set aside for other programs within the Department.

“Employees shall be eligible for all or a portion of additional salary payments scheduled as follows:

“I. General Certificate — $ 300 annually

“II. Intermediate Certificate — $ 600 annually

“III. Advanced Certificate — $ 900 annually

“IV. Senior Certificate — $1,200 annually

“Payment of such funds may be made monthly, quarterly, semiannually or annually depending upon the availability of revenues and shall be restricted to the following classifications:

“1. Sec. of State Capitol Police Chief

“2. Sec. of State Police Sergeant

“3. Sec. of State Corporal

“4. Sec. of State Capitol Police Captain

“Payments made under this Section which are awarded as partial or lump sum payments shall not be considered as salary for purposes of retirement benefits but shall be subject to withholding of all applicable federal and state taxes. Payments made under this Section shall not be construed as exceeding the maximum annual salary of the employee.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Amendments. The 2005 amendment inserted present (c)(2)(B) and redesignated the remaining subdivisions accordingly.

Cross References. Additional salary payments for Arkansas State Police, § 12-8-215.

12-14-107. Assignment of officer to Senate.

    1. Upon request, one (1) member of the State Capitol Police shall be assigned to the Senate.
    2. The officer shall be selected by the Chair of the Senate Efficiency Committee or his or her designee in charge of security procedures for the Senate.
  1. The officer shall remain a full-time employee of the State Capitol Police with accrued benefits and remain on duty with the State Capitol Police when not on call with the Senate.

History. Acts 1997, No. 976, § 19.

12-14-108. Award of pistol upon retirement or death.

When a State Capitol Police officer retires from service or dies while still employed with the State Capitol Police, in recognition of and appreciation for the service of the retiring or deceased officer, the Secretary of State may award the pistol carried by the officer at the time of his or her death or retirement from service to:

  1. The officer; or
  2. The officer's spouse if the spouse is eligible under applicable state and federal laws to possess a firearm.

History. Acts 2005, No. 167, § 4.

12-14-109. Certain records exempt.

A record or other information related to the operations, emergency procedure, and security personnel of the State Capitol Police is confidential and not subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq., including without limitation:

  1. Records or other information that upon disclosure could reasonably be expected to be detrimental to the public safety, including without limitation records or other information concerning emergency or security plans, State Capitol Building or Capitol Hill apartment complex safety plans, monitoring capabilities, procedures, risk assessments, studies, measures, or systems; and
  2. Records or other information relating to the number of licensed security officers, certified State Capitol Police officers, or other security personnel, as well as any personal information about a security officer, certified State Capitol Police officer, or other security personnel.

History. Acts 2017, No. 474, § 1.

Chapter 15 Weapons

Subchapter 1 — General Provisions

[Reserved.]

Subchapter 2 — Concealed Handgun Permits

Effective Dates. Acts 2013, No. 539, § 5: Mar. 28, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that a prosecuting attorney and his or her deputy prosecuting attorneys perform a vital public function and often are in dangerous situations due to the nature of the crimes they prosecute; and that this act is immediately necessary because allowing a prosecuting attorney and his or her deputy prosecuting attorneys to carry a firearm or concealed handgun is essential to the safe operation of criminal justice in this state. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-15-201. Definitions.

As used in this subchapter:

  1. “Auxiliary law enforcement officer” means a person certified by the Arkansas Commission on Law Enforcement Standards and Training and approved by the county sheriff or chief of police of a municipality where he or she is acting as an auxiliary law enforcement officer if the auxiliary law enforcement officer has completed the minimum training requirements and is certified as an auxiliary law enforcement officer in accordance with the commission;
  2. “Certified law enforcement officer” means any appointed or elected law enforcement officer or county sheriff employed by a public law enforcement department, office, or agency who:
    1. Is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic, or highway laws of this state; and
    2. Has met the selection and training requirements for certification set by the commission;
  3. “Employee of a local detention facility” means a person who:
    1. Is employed by a county sheriff or municipality that operates a local detention facility and whose job duties include:
      1. Securing a local detention facility;
      2. Monitoring inmates in a local detention facility; or
      3. Administering the daily operation of the local detention facility;
    2. Has completed the minimum training requirements; and
    3. Has obtained authorization from the chief of police of the law enforcement agency or county sheriff and the authorization is:
      1. In writing;
      2. In the possession of the employee of a local detention facility; and
      3. Produced upon demand at the request of any law enforcement officer or owner or operator of any of the prohibited places under § 5-73-306;
  4. “In good standing” means that the person:
    1. Was not terminated;
    2. Did not resign in lieu of termination; or
    3. Was not subject to a pending disciplinary action or criminal investigation at the time of his or her retirement or resignation from the public law enforcement department, office, or agency;
  5. “Local detention facility” means a jail or other facility that is operated by a municipal police force or a county sheriff for the purpose of housing persons charged with or convicted of a criminal offense; and
  6. “Public law enforcement department, office, or agency” means any public police department, county sheriff's office, or other public agency, force, or organization whose primary responsibility as established by law, statute, or ordinance is the enforcement of the criminal, traffic, or highway laws of this state.

History. Acts 1995, No. 1332, § 2; 2007, No. 675, § 1; 2013, No. 415, § 2; 2013, No. 1220, § 2; 2017, No. 957, § 4.

Amendments. The 2013 amendment by No. 415 added definitions for “Auxiliary law enforcement officer” and “In good standing”.

The 2013 amendment by No. 1220 inserted present (3) and (5).

The 2017 amendment deleted (1)(B); and redesignated the former introductory language of (1) and (1)(A) as (1).

12-15-202. Eligibility to carry concealed handgun.

  1. Any certified law enforcement officer, auxiliary law enforcement officer, employee of a local detention facility, prosecuting attorney, or deputy prosecuting attorney designated by the prosecuting attorney may carry a concealed handgun if the certified law enforcement officer, auxiliary law enforcement officer, employee of a local detention facility, prosecuting attorney, or deputy prosecuting attorney designated by the prosecuting attorney:
    1. Is presently in the employ of a public law enforcement department, office, or agency;
    2. Is authorized by the public law enforcement department, office, or agency to carry a firearm in the course and scope of his or her duties;
    3. Is not subject to any disciplinary action that suspends his or her authority as a certified law enforcement officer, auxiliary law enforcement officer, employee of a local detention facility, prosecuting attorney, or deputy prosecuting attorney designated by the prosecuting attorney;
    4. Is carrying a badge and appropriate written photographic identification issued by the public law enforcement department, office, or agency identifying him or her as a certified law enforcement officer, auxiliary law enforcement officer, employee of a local detention facility, prosecuting attorney, or deputy prosecuting attorney designated by the prosecuting attorney;
    5. Is not otherwise prohibited under federal law;
    6. Is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and
    7. Has fingerprint impressions on file with the Division of Arkansas State Police Automated Fingerprint Identification System.
    1. A concealed handgun may be carried by any retired law enforcement officer or retired auxiliary law enforcement officer acting as a retired auxiliary law enforcement officer who:
      1. Retired in good standing from service with a public law enforcement department, office, or agency for reasons other than mental disability;
      2. Immediately before retirement was a certified law enforcement officer authorized by a public law enforcement department, office, or agency to carry a firearm in the course and scope of his or her duties;
      3. Is carrying appropriate written photographic identification issued by a public law enforcement department, office, or agency identifying him or her as a retired and former certified law enforcement officer;
      4. Is not otherwise prohibited under federal law from receiving or possessing a firearm;
      5. Has fingerprint impressions on file with the system together with written authorization for state and national level criminal history record screening;
      6. During the most recent twelve-month period has met, at the expense of the retired law enforcement officer, the standards of this state for training and qualification for active law enforcement officers to carry firearms;
      7. Before his or her retirement, worked or was employed as a law enforcement officer or acted as an auxiliary law enforcement officer for an aggregate of ten (10) years or more; and
      8. Is not under the influence of or consuming alcohol or another intoxicating or hallucinatory drug or substance.
      1. The chief law enforcement officer of the city or county shall keep a record of all retired law enforcement officers authorized to carry a concealed handgun in his or her jurisdiction and shall revoke any authorization for good cause shown.
      2. The Director of the Division of Arkansas State Police shall keep a record of all retired Department of Arkansas State Police or Division of Arkansas State Police officers authorized to carry a concealed handgun in the state and shall revoke any authorization for good cause shown.
      1. A firearms instructor certified by the Arkansas Commission on Law Enforcement Standards and Training who is employed by any law enforcement agency in this state may certify or recertify that a retired law enforcement officer has met the training and qualification requirements for certification set by the commission for active law enforcement officers to carry firearms.
      2. A retired law enforcement officer shall pay the expenses for meeting the training and qualification requirements described in subdivision (c)(1)(A) of this section.
    1. A firearms instructor who certifies or recertifies that a retired law enforcement officer has met the training and qualification requirements for certification set by the commission for active law enforcement officers to carry firearms under subdivision (c)(1)(A) of this section shall complete and submit any required paperwork to the commission.
  2. Any certified law enforcement officer or retired law enforcement officer carrying a concealed handgun under this section is not subject to the prohibitions and limitations of § 5-73-306.
    1. Any presently employed certified law enforcement officer authorized by another state to carry a concealed handgun shall be entitled to the same privilege while in this state, but subject to the same restrictions of this section, provided that the state which has authorized the officer to carry a concealed handgun extends the same privilege to presently employed Arkansas-certified law enforcement officers.
    2. The director shall make a determination as to which states extend the privilege to carry a concealed handgun to presently employed Arkansas-certified law enforcement officers and shall then determine which states' officers' authority to carry concealed handguns will be recognized in Arkansas.

History. Acts 1995, No. 1332, § 1; 1997, No. 92, § 1; 1997, No. 302, § 1; 2001, No. 251, § 1; 2001, No. 585, § 1; 2003, No. 348, § 1; 2007, No. 134, § 1; 2007, No. 675, § 2; 2013, No. 415, § 3; 2013, No. 539, § 3; 2013, No. 1220, § 3; 2015, No. 958, § 1; 2015, No. 1161, § 1; 2017, No. 957, § 5; 2019, No. 910, §§ 5871, 5872.

A.C.R.C. Notes. Pursuant to Acts 2015, No. 1161, § 6, the amendments to this section by Acts 2015, No. 1161, § 1, are superseded by the amendments to this section by Acts 2015, No. 958, § 1.

Amendments. The 2007 amendment by No. 134 inserted (b)(1)(G) and (c), and redesignated the following subdivisions accordingly; and made related changes.

The 2007 amendment by No. 675 deleted former (b)(1)(C) and redesignated the remaining subsections accordingly.

The 2013 amendment by No. 415 rewrote (a) and (b).

The 2013 amendment by No. 539 inserted "prosecuting attorney, or deputy prosecuting attorney designated by the prosecuting attorney" twice in the introductory language of (a) and in (a)(4).

The 2013 amendment by No. 1220 inserted “or employee of a local detention facility" in the introductory language of (a) and in (a)(3) and (4).

The 2015 amendment by No. 958, in the introductory language of (a), deleted “acting as an auxiliary law enforcement officer” preceding “employee of a local detention facility” and inserted the second occurrence of “auxiliary law enforcement officer, employee of a local detention facility”; substituted “certified law enforcement officer, auxiliary law enforcement officer, employee of a local detention facility, prosecuting attorney, or deputy prosecuting attorney designated by the prosecuting attorney” for “law enforcement officer or employee of a local detention facility by the public law enforcement department, office, or agency” in (a)(3); and inserted “auxiliary law enforcement officer” in (a)(4).

The 2017 amendment inserted “or consuming” preceding “alcohol” in (b)(1)(H).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (a)(7); and, in (b)(2)(B), substituted the first occurrence of “Division of Arkansas State Police” for “Department of Arkansas State Police” and substituted “retired Department of Arkansas State Police or Division of Arkansas State Police officers” for “retired department officers”.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Law Enforcement and Emergency Management, Concealed Handgun, 26 U. Ark. Little Rock L. Rev. 428.

12-15-203. [Repealed.]

Publisher's Notes. This section, concerning duties of board members, was repealed by Acts 1999, No. 1133, § 2. The section was derived from Acts 1995, No. 1332, § 3.

Subchapter 3 — Law Enforcement Personnel

12-15-301. Sale of county-issued firearms to deputies.

    1. When any county sheriff's deputy retires or otherwise honorably terminates employment with the county sheriff, the officer may purchase any firearm which had been issued to the officer by the county sheriff.
    2. The county sheriff, with the approval of the county judge, may sell the firearm to the deputy at its fair market value as determined by the county sheriff.
  1. In regard to the sale of such firearms, the county sheriff is not required to comply with any other law of this state regarding the sale of county property.

History. Acts 1999, No. 451, § 1.

12-15-302. Award of pistol upon retirement or death of a county sheriff or deputy county sheriff.

  1. When a deputy county sheriff retires from service or dies while still employed with the county sheriff's department, in recognition of and appreciation for the service of the retiring or deceased deputy county sheriff, the county sheriff may award the pistol carried by the deputy county sheriff at the time of his or her death or retirement from service to:
    1. The deputy county sheriff; or
    2. The deputy county sheriff's spouse if the spouse is eligible under applicable state and federal laws to possess a firearm.
    1. A county sheriff may retain his or her pistol he or she carried at the time of his or her retirement from service.
    2. If the county sheriff dies while he or she is still in office, his or her spouse may receive or retain the pistol carried by the county sheriff at the time of his or her death if the spouse is eligible under applicable state and federal laws to possess a firearm.

History. Acts 2015, No. 60, § 1.

Chapter 16 Multijurisdictional Cooperation

Subchapter 1 — General Provisions

[Reserved.]

Subchapter 2 — Drug and Controlled Substance Laws — Multijurisdictional Enforcement Groups for the Enforcement of Drug and Controlled Substance Laws

12-16-201. Drug and controlled substance laws — Multijurisdictional enforcement groups.

  1. A county bordering another state may enter into an agreement with the political subdivisions in such other state's contiguous county or parish pursuant to the Interlocal Cooperation Act, § 25-20-101 et seq., to form a multijurisdictional enforcement group for the enforcement of drug and controlled substance laws.
  2. Such other state's law enforcement officers may be deputized as officers of the counties of this state participating in an agreement pursuant to this section and shall be deemed to have met all requirements of law enforcement officer training and certification pursuant to § 12-9-101 et seq. for the purposes of conducting investigations and making arrests in this state provided such officers have satisfied the applicable law enforcement officer training and certification standards in force in such other state.
  3. The other state's law enforcement officers shall have the same powers and immunities when working under an agreement pursuant to this section as do law enforcement officers of this state.
  4. A multijurisdictional enforcement group formed pursuant to this section is eligible to receive state grants to help defray the costs of its operation.
  5. The provisions of subsections (b)-(d) of this section shall not be in force unless the other state has provided legal authority for its political subdivisions to enter into such agreements and to extend reciprocal powers and privileges to the law enforcement officers of this state working pursuant to such agreements.

History. Acts 1999, No. 1483, § 1.

Chapter 17 State Drug Crime Enforcement and Prosecution Grant Fund

Effective Dates. Acts 2007, No. 1086, § 2: Apr. 4, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that law enforcement officials throughout the state require increased resources to combat drug crimes; that this act provides needed financial relief and will escalate efforts throughout the state to prevent the use and spread of drugs; and that this act should become effective as soon as possible to effectuate its intent. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-17-101. Definitions.

As used in this chapter:

  1. “Drug crime” means a misdemeanor or felony criminal offense prosecuted in district court or circuit court that violates:
    1. Any provision of the Uniform Controlled Substances Act, § 5-64-401 et seq., or any solicitation, attempt, or conspiracy to violate the Uniform Controlled Substances Act, § 5-64-401 et seq.;
    2. Any criminal violation of state law, or any solicitation, attempt, or conspiracy to violate state law, committed for the purpose of unlawfully acquiring, obtaining, manufacturing, purchasing, procuring, possessing, distributing, delivering, shipping, or transporting controlled substances, prescription drugs, drug paraphernalia, or precursor chemicals or components used to manufacture controlled substances;
    3. Any criminal violation of state or federal law, or any solicitation, attempt, or conspiracy to violate state or federal law involving the use or possession of any fraudulent, falsified, forged, or altered identification card or document evidencing the identity of an individual, issued or purportedly issued by any state, federal, or foreign government, for the purpose of unlawfully acquiring, obtaining, manufacturing, purchasing, procuring, possessing, distributing, delivering, shipping, or transporting controlled substances, prescription drugs, drug paraphernalia, or precursor chemicals or components used to manufacture controlled substances;
    4. Any criminal violation of state or federal law, or any solicitation, attempt, or conspiracy to violate state or federal law, for the purpose of committing any act that constitutes money laundering, as defined by § 5-42-204, of proceeds and profits related to violations of the Uniform Controlled Substances Act, § 5-64-401 et seq.; or
    5. Any criminal violation of state or federal law or any solicitation, attempt, or conspiracy thereof, involving any firearm, deadly weapon, or explosive device used or possessed with intent to use:
      1. To enforce or facilitate any criminal act defined under the Uniform Controlled Substances Act, § 5-64-401 et seq.; or
      2. To commit a criminal offense defined by Arkansas law that intimidates, threatens, injures, maims, or kills any law enforcement officer, prosecutor, judicial officer, or any other court official, witness, informant, or juror involved in the investigation or prosecution of any violation of the Uniform Controlled Substances Act, § 5-64-401 et seq.;
  2. “Investigate” means any law enforcement activities directed toward drug crimes, including without limitation prevention, eradication, investigation, and interdiction;
  3. “Law enforcement agency” means:
    1. Any county sheriff's office of any county in this state;
    2. Any municipal police department of an organized city or town within this state; and
    3. The Department of Arkansas State Police;
  4. “Multi-jurisdictional drug crime task force” means an association consisting of a minimum of two (2) law enforcement agencies and one (1) prosecuting attorney acting by agreement to jointly investigate and prosecute drug crimes in a defined geographic area or judicial district; and
  5. “Prosecuting attorney” means the elected prosecuting attorney for any judicial district, including without limitation appointed deputies and investigators.

History. Acts 2007, No. 1086, § 1.

12-17-102. State Drug Crime Enforcement and Prosecution Grant Fund established.

  1. There is hereby established and created on the books of the Chief Fiscal Officer of the State, the Treasurer of State, and the Auditor of State a special revenue fund to be known as the “State Drug Crime Enforcement and Prosecution Grant Fund” for the purpose of funding state grant awards for multi-jurisdictional drug crime task forces to investigate and prosecute drug crimes within the State of Arkansas.
  2. The fund shall consist of:
    1. Revenues generated under § 12-17-106; and
    2. Any moneys authorized by the General Assembly.

History. Acts 2007, No. 1086, § 1.

12-17-103. Grant application and administration process.

  1. The Department of Finance and Administration shall develop and promulgate grant applications under this chapter and upon the recommendations of the Arkansas Alcohol and Drug Abuse Coordinating Council.
  2. The department shall administer all grant awards and expenditures under this chapter by the multi-jurisdictional drug crime task forces under applicable state and federal law.

History. Acts 2007, No. 1086, § 1.

12-17-104. Determination of grant awards.

The Arkansas Alcohol and Drug Abuse Coordinating Council shall:

  1. Develop and promulgate by rule criteria for the grant applications and awards process under this chapter;
  2. Review all grant applications under this chapter;
  3. Determine which applicant or applicants should receive grant awards under this chapter; and
  4. Retain oversight of all grant expenditures under this chapter.

History. Acts 2007, No. 1086, § 1.

12-17-105. Matching funds.

  1. Any multi-jurisdictional drug crime task force receiving a grant award under this chapter shall contribute local matching funds in an amount not less than twenty percent (20%) of the total grant award.
  2. The source of local matching funds shall be from county or municipal general revenue appropriations or authorized drug control fund disbursements of any participating multi-jurisdictional drug crime task force member agency.
  3. The Department of Finance and Administration shall restrict distribution of any grant award to a multi-jurisdictional drug crime task force if it is determined that local matching funds are not appropriated or available.

History. Acts 2007, No. 1086, § 1.

12-17-106. Drug crime special assessment.

  1. There is hereby established a drug crime special assessment to be levied by the district courts or circuit courts of this state in the sum of one hundred twenty-five dollars ($125) against any person who is convicted of or enters a plea of guilty or nolo contendere to any felony or misdemeanor offense the court determines to be a drug crime.
  2. The drug crime special assessment shall be collected by the entity or office designated to collect fines and costs within the jurisdiction.
    1. All drug crime special assessments collected shall be remitted by the county official, city official, agency, or department designated in § 16-13-709 as primarily responsible for the collection of fines assessed in the circuit courts or district courts on or before the fifteenth day of each month to the Administration of Justice Funds Section of the Office of Administrative Services of the Department of Finance and Administration, for deposit into the State Drug Crime Enforcement and Prosecution Grant Fund, as established by § 12-17-102.
    2. A form provided by the section identifying the amount of the drug crime special assessments shall be transmitted with the collected drug crime special assessments.

History. Acts 2007, No. 1086, § 1; 2009, No. 165, § 13; 2011, No. 779, § 14.

Amendments. The 2009 amendment inserted “drug crime” in (b); and rewrote (c).

The 2011 amendment inserted “drug crime” twice in (c)(2).

12-17-107. Specific use of grant awards.

  1. Grant awards under this chapter shall be used specifically for:
    1. Salaries;
    2. Personal services matching;
    3. Overtime;
    4. Maintenance and general operations;
    5. Evidentiary purchases of controlled substances or information;
    6. Informant and witness compensation;
    7. Rent;
    8. Utilities;
    9. Telecommunications;
    10. Fuel;
    11. Vehicle maintenance and repair;
    12. In-state training; and
    13. Travel expenses.
  2. Each grant award shall specifically provide for accounting and fiscal officer services.
  3. No grant awards shall be used for capital outlay or equipment purchases that exceed a cost of one thousand five hundred dollars ($1,500) per item.

History. Acts 2007, No. 1086, § 1.

Chapter 18 Child Maltreatment Act

Cross References. Child Maltreatment Investigations Oversight Committee, § 10-3-3201 et seq.

Subchapter 1 — General Provisions

Effective Dates. Acts 2019, No. 556, § 7: Mar. 26, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Centers for Disease Control and Prevention currently estimates that five hundred fifty-one (551) girls or women in Arkansas are at the risk of, or have undergone, female genital mutilation; that female genital mutilation is recognized globally as a human rights violation; and that this legislation is immediately needed to help the women of Arkansas as soon as possible. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-18-101. Title.

This chapter shall be known and may be cited as the “Child Maltreatment Act”.

History. Acts 2009, No. 749, § 1.

12-18-102. Purpose.

The purpose of this chapter is to:

  1. Provide a system for the reporting of known or suspected child maltreatment;
  2. Ensure the immediate screening, safety assessment, and prompt investigation of reports of known or suspected child maltreatment;
  3. Ensure that immediate steps are taken to:
    1. Protect a maltreated child and any other child under the same care who may also be in danger of maltreatment; and
    2. Place a child whose health or physical well-being is in immediate danger in a safe environment;
  4. Provide immunity from criminal prosecution for an individual making a good faith report of suspected child maltreatment;
  5. Preserve the confidentiality of all records in order to protect the rights of the child and of the child's parents or guardians;
  6. Encourage the cooperation of state law enforcement officials, courts, and state agencies in the investigation, assessment, prosecution, and treatment of child maltreatment; and
  7. Stabilize the home environment if a child's health and safety are not at risk.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 1.

Amendments. The 2011 amendment substituted “whose health or physical well-being is in immediate danger” for “who is in immediate danger of severe maltreatment” in (3)(B).

Case Notes

Protection.

Where defendant was convicted for failing to make a report of child abuse, there was no conflict between the unambiguous mandatory reporting statute, § 12-18-201, and the statute relating to the responsibilities of the child abuse hotline, § 12-18-306; the purpose of the Arkansas Child Maltreatment Act was to protect the victim and other children as well. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

12-18-103. Definitions.

As used in this chapter:

    1. “Abandonment” means:
      1. The failure of a parent to provide reasonable support and to maintain regular contact with a child through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future or the failure of a parent to support or maintain regular contact with a child without just cause; or
      2. An articulated intent to forego parental responsibility.
    2. “Abandonment” does not include:
      1. Acts or omissions of a parent toward a married minor; or
      2. A situation in which a child has disrupted his or her adoption and the adoptive parent has exhausted the available resources;
    1. “Abortion” means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child.
    2. “Abortion” does not mean the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy if done with the intent to:
      1. Save the life or preserve the health of the unborn child;
      2. Remove a dead unborn child caused by spontaneous abortion; or
      3. Remove an ectopic pregnancy;
    1. “Abuse” means any of the following acts or omissions by a parent, guardian, custodian, foster parent, person eighteen (18) years of age or older living in the home with a child whether related or unrelated to the child, or any person who is entrusted with the child's care by a parent, guardian, custodian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, a significant other of the child's parent, or any person legally responsible for the child's welfare, but excluding the spouse of a minor:
      1. Extreme or repeated cruelty to a child;
      2. Engaging in conduct creating a realistic and serious threat of death, permanent or temporary disfigurement, or impairment of any bodily organ;
      3. Injury to a child's intellectual, emotional, or psychological development as evidenced by observable and substantial impairment of the child's ability to function within the child's normal range of performance and behavior;
      4. Any injury that is at variance with the history given;
      5. Any nonaccidental physical injury;
      6. Any of the following intentional or knowing acts, with physical injury and without justifiable cause:
        1. Throwing, kicking, burning, biting, or cutting a child;
        2. Striking a child with a closed fist;
        3. Shaking a child; or
        4. Striking a child on the face or head;
      7. Any of the following intentional or knowing acts, with or without physical injury:
        1. Striking a child six (6) years of age or younger on the face or head;
        2. Shaking a child three (3) years of age or younger;
        3. Interfering with a child's breathing;
        4. Pinching, biting, or striking a child in the genital area;
        5. Tying a child to a fixed or heavy object or binding or tying a child's limbs together;
        6. Giving a child or permitting a child to consume or inhale a poisonous or noxious substance not prescribed by a physician that has the capacity to interfere with normal physiological functions;
        7. Giving a child or permitting a child to consume or inhale a substance not prescribed by a physician that has the capacity to alter the mood of the child, including, but not limited to, the following:
          1. Marijuana;
          2. Alcohol, excluding alcohol given to a child during a recognized and established religious ceremony or service;
          3. A narcotic; or
          4. An over-the-counter drug if a person purposely administers an overdose to a child or purposely gives an inappropriate over-the-counter drug to a child and the child is detrimentally impacted by the overdose or the over-the-counter drug;
        8. Exposing a child to a chemical that has the capacity to interfere with normal physiological functions, including, but not limited to, a chemical used or generated during the manufacture of methamphetamine; or
        9. Subjecting a child to Munchausen syndrome by proxy or a factitious illness by proxy if the incident is confirmed by medical personnel;
      8. Recruiting, harboring, transporting, or obtaining a child for labor or services, through force, fraud, or coercion, for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery; or
      9. Female genital mutilation.
      1. The list in subdivision (3)(A) of this section is illustrative of unreasonable action and is not intended to be exclusive.
      2. No unreasonable action shall be construed to permit a finding of abuse without having established the elements of abuse.
      1. “Abuse” does not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child.
      2. “Abuse” does not include when a child suffers transient pain or minor temporary marks as the result of an appropriate restraint if:
        1. The person exercising the restraint is:
          1. An employee of a child welfare agency licensed or exempted from licensure under the Child Welfare Agency Licensing Act, § 9-28-401 et seq.; and
          2. Acting in his or her official capacity while on duty at a child welfare agency licensed or exempted from licensure under the Child Welfare Agency Licensing Act, § 9-28-401 et seq.;
        2. The child welfare agency has policy and procedures regarding restraints;
        3. No other alternative exists to control the child except for a restraint;
        4. The child is in danger or hurting himself or herself or others;
        5. The person exercising the restraint has been trained in properly restraining children, de-escalation, and conflict resolution techniques;
        6. The restraint is for a reasonable period of time; and
        7. The restraint is in conformity with training and child welfare agency policy and procedures.
      3. Reasonable and moderate physical discipline inflicted by a parent or guardian does not include any act that is likely to cause and which does cause injury more serious than transient pain or minor temporary marks.
      4. The age, size, and condition of the child and the location of the injury and the frequency or recurrence of injuries shall be considered when determining whether the physical discipline is reasonable or moderate;
  1. “Caretaker” means a parent, guardian, custodian, foster parent, or any person fourteen (14) years of age or older who is entrusted with a child's care by a parent, guardian, custodian, or foster parent, including without limitation, an agent or employee of a public or private residential home, child care facility, public or private school, or any person responsible for a child's welfare, but excluding the spouse of a minor;
    1. “Central intake”, otherwise referred to as the “Child Abuse Hotline”, means a unit that shall be established by the Department of Human Services for the purpose of receiving and recording notification made pursuant to this chapter.
    2. The Child Abuse Hotline shall be staffed twenty-four (24) hours per day and shall have statewide accessibility through a toll-free telephone number;
  2. “Child” or “juvenile” means an individual who is from birth to eighteen (18) years of age;
  3. “Child maltreatment” means abuse, sexual abuse, neglect, sexual exploitation, or abandonment;
  4. “Department” means the Department of Human Services and the Division of Arkansas State Police;
  5. “Deviate sexual activity” means any act of sexual gratification involving:
    1. Penetration, however slight, of the anus or mouth of one person by the penis of another person; or
    2. Penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person;
      1. “Forcible compulsion” means physical force, intimidation, or a threat, express or implied, of physical injury to or death, rape, sexual abuse, or kidnapping of any person.
      2. If the act was committed against the will of the child, then forcible compulsion has been used.
    1. The age, developmental stage, and stature of the victim and the relationship of the victim to the assailant, as well as the threat of deprivation of affection, rights, and privileges from the victim by the assailant, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion;
  6. “Guardian” means any person, agency, or institution, as defined by § 28-65-101 et seq., whom a court of competent jurisdiction has so appointed;
  7. “Indecent exposure” means the exposure by a person of the person's sexual organs for the purpose of arousing or gratifying the sexual desire of the person or of any other person under circumstances in which the person knows the conduct is likely to cause affront or alarm;
  8. “Near fatality” means an act that, as certified by a physician, places the child in serious or critical condition;
    1. “Neglect” means those acts or omissions of a parent, guardian, custodian, foster parent, or any person who is entrusted with the child's care by a parent, custodian, guardian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, or any person legally responsible under state law for the child's welfare, but excluding the spouse of a minor and the parents of the married minor, which constitute:
      1. Failure or refusal to prevent the abuse of the child when the person knows or has reasonable cause to know the child is or has been abused;
      2. Failure or refusal to provide necessary food, clothing, shelter, or medical treatment necessary for the child's well-being, except when the failure or refusal is caused primarily by the financial inability of the person legally responsible and no services for relief have been offered;
      3. Failure to take reasonable action to protect the child from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of the condition was known or should have been known;
      4. Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the child, including the failure to provide a shelter that does not pose a risk to the health or safety of the child;
      5. Failure to provide for the child's care and maintenance, proper or necessary support, or medical, surgical, or other necessary care;
      6. Failure, although able, to assume responsibility for the care and custody of the child or to participate in a plan to assume such responsibility;
      7. Failure to appropriately supervise the child that results in the child's being left alone:
        1. At an inappropriate age creating a dangerous situation or a situation that puts the child at risk of harm; or
        2. In inappropriate circumstances creating a dangerous situation or a situation that puts the child at risk of harm;
      8. Failure to appropriately supervise the child that results in the child's being placed in:
        1. Inappropriate circumstances creating a dangerous situation; or
        2. A situation that puts the child at risk of harm;
      9. Failure to ensure a child between six (6) years of age and seventeen (17) years of age is enrolled in school or is being legally home-schooled; or
      10. An act or omission by the parent, custodian, or guardian of the child that results in the child's being habitually and without justification absent from school.
      1. “Neglect” shall also include:
        1. Causing a child to be born with an illegal substance present in the child's bodily fluids or bodily substances as a result of the pregnant mother's knowingly using an illegal substance before the birth of the child; or
        2. At the time of the birth of a child, the presence of an illegal substance in the mother's bodily fluids or bodily substances as a result of the pregnant mother's knowingly using an illegal substance before the birth of the child.
      2. As used in this subdivision (14)(B), “illegal substance” means a drug that is prohibited to be used or possessed without a prescription under the Arkansas Criminal Code, § 5-1-101 et seq.
      3. A test of the child's bodily fluids or bodily substances may be used as evidence to establish neglect under subdivision (14)(B)(i)(a) of this section.
      4. A test of the mother's bodily fluids or bodily substances may be used as evidence to establish neglect under subdivision (14)(B)(i)(b) of this section;
  9. “Parent” means a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth or who has been found by a court of competent jurisdiction to be the biological father of the child;
  10. “Pornography” means:
    1. Pictures, movies, or videos that lack serious literary, artistic, political, or scientific value and that, when taken as a whole and applying contemporary community standards, would appear to the average person to appeal to the prurient interest;
    2. Material that depicts sexual conduct in a patently offensive manner lacking serious literary, artistic, political, or scientific value; or
    3. Obscene or licentious material;
  11. “Reproductive healthcare facility” means any office, clinic, or any other physical location that provides abortions, abortion counseling, abortion referrals, contraceptives, contraceptive counseling, sex education, or gynecological care and services;
  12. “Serious bodily injury” means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty;
  13. “Severe maltreatment” means sexual abuse, sexual exploitation, acts or omissions that may or do result in death, abuse involving the use of a deadly weapon as defined by § 5-1-102, bone fracture, internal injuries, burns, immersions, suffocation, abandonment, medical diagnosis of failure to thrive, or causing a substantial and observable change in the behavior or demeanor of the child;
  14. “Sexual abuse” means:
    1. By a person fourteen (14) years of age or older to a person younger than eighteen (18) years of age:
      1. Sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion;
      2. Attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion;
      3. Indecent exposure; or
      4. Forcing the watching of pornography or live sexual activity;
    2. By a person eighteen (18) years of age or older to a person not his or her spouse who is younger than fifteen (15) years of age:
      1. Sexual intercourse, deviate sexual activity, or sexual contact;
      2. Attempted sexual intercourse, deviate sexual activity, or sexual contact; or
      3. Solicitation of sexual intercourse, deviate sexual activity, or sexual contact;
    3. By a person twenty (20) years of age or older to a person not his or her spouse who is younger than sixteen (16) years of age:
      1. Sexual intercourse, deviate sexual activity, or sexual contact;
      2. Attempted sexual intercourse, deviate sexual activity, or sexual contact; or
      3. Solicitation of sexual intercourse, deviate sexual activity, or sexual contact;
    4. By a caretaker to a person younger than eighteen (18) years of age:
      1. Sexual intercourse, deviate sexual activity, or sexual contact;
      2. Attempted sexual intercourse, deviate sexual activity, or sexual contact;
      3. Forcing or encouraging the watching of pornography;
      4. Forcing, permitting, or encouraging the watching of live sexual activity;
      5. Forcing the listening to a phone sex line;
      6. An act of voyeurism; or
      7. Solicitation of sexual intercourse, deviate sexual activity, or sexual contact;
    5. By a person younger than fourteen (14) years of age to a person younger than eighteen (18) years of age:
      1. Sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; or
      2. Attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; or
    6. By a person eighteen (18) years of age or older to a person who is younger than eighteen (18) years of age, the recruiting, harboring, transporting, obtaining, patronizing, or soliciting of a child for the purpose of a commercial sex act;
      1. “Sexual contact” means any act of sexual gratification involving:
        1. The touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female;
        2. The encouraging of a child to touch the offender in a sexual manner; or
        3. The offender requesting to touch a child in a sexual manner.
      2. Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
    1. “Sexual contact” does not include normal affectionate hugging;
  15. “Sexual exploitation” means:
    1. The following by a person eighteen (18) years of age or older to a child who is not his or her spouse:
      1. Allowing, permitting, or encouraging participation or depiction of the child in:
        1. Prostitution;
        2. Obscene photography; or
        3. Obscene filming; or
      2. Obscenely depicting, obscenely posing, or obscenely posturing the child for any use or purpose;
    2. The following by a caretaker to a child:
      1. Allowing, permitting, or encouraging participation or depiction of the child in:
        1. Prostitution;
        2. Obscene photography; or
        3. Obscene filming; or
      2. Obscenely depicting, obscenely posing, or obscenely posturing the child for any use or purpose;
  16. “Significant other” means a person:
    1. With whom the parent shares a household; or
    2. Who has a relationship with the parent that results in the person's acting in loco parentis with respect to the parent's child or children, regardless of living arrangements;
  17. “Subject of the report” means:
    1. The offender;
    2. The custodial and noncustodial parents, guardians, and legal custodians of the child who is subject to suspected maltreatment; and
    3. The child who is the subject of suspected maltreatment;
  18. “Underaged juvenile offender” means any child younger than fourteen (14) years of age for whom a report of sexual abuse has been determined to be true for sexual abuse to another child;
  19. “Voyeurism” means looking, for the purpose of sexual arousal or gratification, into a private location or place in which a child may reasonably be expected to be nude or partially nude;
  20. “Died suddenly and unexpectedly” means a child death that was not caused by a known disease or illness for which the child was under a physician's care at the time of death, including without limitation a child death as a result of the following:
    1. Sudden infant death syndrome;
    2. Sudden unexplained infant death;
    3. An accident;
    4. A suicide;
    5. A homicide; or
    6. Other undetermined circumstance;
    1. “Female genital mutilation” means a procedure that involves the partial or total removal of the external female genitalia or any procedure harmful to the female genitalia, including without limitation:
      1. A clitoridectomy;
      2. The partial or total removal of the clitoris or the prepuce;
      3. The excision or the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;
      4. The infibulation or the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora or the labia majora, with or without excision of the clitoris;
      5. Pricking, piercing, incising, scraping, or cauterizing the genital area; or
      6. Any other action to purposely alter the structure or function of the female genitalia for a nonmedical reason.
    2. “Female genital mutilation” does not include acts or conduct that otherwise would be considered female genital mutilation if the acts or conduct occur in the furtherance of a surgical or other lawful medical procedure, performed by a licensed medical professional, and:
      1. Is necessary to preserve or protect the physical health of the child upon whom the surgical or other lawful medical procedure was performed; or
      2. Is part of a sex reassignment procedure as requested by the child who was the patient in the sex reassignment procedure;
  21. “Family member” means a person within the fifth degree of consanguinity by virtue of blood or adoption;
  22. “Fictive kin” means a person who:
    1. Is not related to a child by blood or marriage; and
    2. Has a strong, positive, and emotional tie or role in the:
      1. Life of the child; or
      2. Life of the parent of the child if the child is an infant; and
  23. “Imminent harm” means an act of harm that is a danger:
    1. To the physical, mental, or emotional health of a child;
    2. That is constrained by time; and
    3. That may only be prevented by immediate intervention by a court.

History. Acts 2009, No. 749, § 1; 2011, No. 779, §§ 15-17; 2011, No. 1143, §§ 2-5; 2013, No. 725, §§ 2-4; 2013, No. 1006, §§ 1-6; 2015, No. 1004, § 1; 2015, No. 1026, §§ 1, 2; 2015, No. 1092, § 4; 2015, No. 1211, § 1; 2017, No. 209, §§ 6, 7; 2017, No. 250, § 10; 2019, No. 554, § 2; 2019, No. 556, §§ 2, 3; 2019, No. 881, § 1; 2019, No. 927, § 2.

A.C.R.C. Notes. Acts 2013, No. 725, § 1, provided: “Findings and purposes.

“(a) The General Assembly finds that:

“(1) Children are increasingly being preyed upon, victimized, and coerced into illegal sexual relationships by adults;

“(2) The Child Maltreatment Act, § 12-18-101 et seq., requires caretakers, healthcare facilities, healthcare providers, teachers, and other specified individuals to report suspected incidents of sexual crimes against children;

“(3) The physical, emotional, developmental, and psychological impact of sexual crimes on child victims can be severe and long-lasting;

“(4) The societal costs of these crimes are also significant and affect the entire populace;

“(5) The collection, maintenance, and preservation of evidence, including forensic tissue samples, furthers Arkansas's interest in protecting children from sexual crimes and provides the state with the tools necessary for successful investigations and prosecutions;

“(6) Parents and guardians have both the right and responsibility to be involved in medical treatment decisions involving their children, and no one has the right to knowingly or willfully impede or circumvent this right;

“(7)(A) There are documented cases of individuals other than a parent or guardian aiding, abetting, and assisting minor girls to procure abortions without their parents' or guardians' knowledge, consent, or involvement.

“(B) These activities of individuals other than a parent or guardian include transporting children across state lines to avoid Arkansas's parental involvement requirements for abortion; and

“(8) Such actions violate both the sanctity of the familial relationship and Arkansas's parental involvement law concerning abortion.

“(b) The General Assembly's purposes in enacting the Child Maltreatment Act are to further the important and compelling state interests of:

“(1) Protecting children from sexually predatory adults;

“(2) Ensuring that adults who are involved in illegal sexual relationships or contact with children are reported, investigated, and, when warranted, prosecuted;

“(3)(A) Relieving medical professionals and other mandatory reporters of suspected sexual crimes against children from any responsibility to personally investigate an allegation or suspicion.

“(B) Mandatory reporters must simply report allegations, suspicions, and pertinent facts.

“(C) Trained law enforcement or social services personnel are responsible for any investigation and for the ultimate disposition of the allegation or case;

“(4) Reducing the physical, emotional, developmental, and psychological impact of sexual crimes on child victims;

“(5) Reducing the societal and economic burden on the populace that results from sexual crimes against children;

“(6) Providing law enforcement officials with the tools and evidence necessary to investigate and prosecute child predators; and

“(7) Protecting and respecting the right of parents and guardians to be involved in the medical decisions and treatment of their children and preventing anyone from knowingly or willfully subverting or circumventing these rights.”

Amendments. The 2011 amendment by No. 779 substituted “or the failure of a parent to support” for “and support” in (1)(A)(i); rewrote present (21)(B); and added “or” at the end of present (22)(A)(i) (b)

The 2011 amendment by No. 1143 inserted present (3)(C)(ii) (a)(2) ; substituted “thirteen (13) years of age” for “ten (10) years of age” in present (4), the introductory language of present (20)(A) and (E), and present (25); substituted “fifteen (15) years of age” for “sixteen (16) years of age” in the introductory language of present (20)(B); inserted present (20)(B)(iii) and (20)(C) and redesignated the remaining subdivisions accordingly; and substituted “offender” for “aggressor” in present (25).

The 2013 amendment by No. 725 added present (2) and (17); and substituted “fourteen (14)” for “thirteen (13)” in present (20)(E).

The 2013 amendment by No. 1006 added “a significant other of the child's parent” in present (3)(A); substituted “fourteen (14) years of age“ for “thirteen (13) years of age” in present (4); deleted “and education required by law, excluding the failure to follow an individualized educational program” following “shelter” in present (14)(A)(ii); deleted “or in inappropriate circumstances” following “age” in present (14)(A)(vii) (a) ; added the present (14)(A)(vii) (a) designation; and added present (14)(A)(vii) (b) , present (14)(A)(viii), and present (14)(A)(ix); substituted “fourteen (14) years of age“ for “thirteen (13) years of age” in present (20)(A) and (20)(E); added the definition for “Significant other”; and substituted “fourteen (14) years of age“ for “thirteen (13) years of age” in present (25).

The 2015 amendment by No. 1004 added “and the Department of Arkansas State Police” in (8).

The 2015 amendment by No. 1026 added (20)(D)(vii); inserted the present (22)(A) designation and redesignated former (22)(A) and (B) as (22)(A)(i) and (ii); added “The following by a person eighteen (18) years of age or older to a child who is not his or her spouse” in (22)(A); and added (22)(B).

The 2015 amendment by No. 1092 inserted the (1)(B)(i) designation; and added (1)(B)(ii).

The 2015 amendment by No. 1211 added “and the Department of Arkansas State Police” in (8).

The 2017 amendment by No. 209 added (3)(A)(viii) and (20)(F).

The 2017 amendment by No. 250 added (27) (definition for “Died suddenly and unexpectedly”).

The 2019 amendment by No. 554, in (14)(A)(x), substituted “An act” for “as a result of an act”, substituted “omission by the parent, custodian, or guardian of the child that results in the child being habitually” for “omission by the child's parent or guardian, the child is habitually”; and made stylistic changes.

The 2019 amendment by No. 556 added (3)(A)(ix); and added (28).

The 2019 amendment by No. 881 added (28) and (29) [now (29) and (30)].

The 2019 amendment by No. 927 added (28) [now (31)].

Case Notes

Abuse.

Administrative law judge (ALJ) said the mother was carelessly swinging a belt at the child and knowingly struck him, but the two adverbs of “carelessly” and “knowingly” were diametrically opposed and invalidated the reasoning behind her conclusion that the mother abused her child, and the facts did not rise to the level of substantial evidence to support the ALJ's decision; the mother accidentally hit the child in the face as he was moving, which did not rise to the level of knowingly or intentionally as required by statute. Ark. Dep't of Human Servs., Div. of Children & Family Servs. v. Nelson, 2015 Ark. App. 98, 455 S.W.3d 859 (2015).

Substantial evidence supported the ALJ's decision that appellant's name was to remain on the Child Maltreatment Central Registry based on a true finding of abuse in 2002 where the ALJ found cuts, bruises, and welts in photos of the teenage child taken after appellant had disciplined her with a belt and the ALJ focused not on the bruises but on the broken skin on the child's upper back and upper arm and red linear marks on her upper arm. Smith v. Ark. Dep't of Human Servs., 2018 Ark. App. 438, 559 S.W.3d 291 (2018).

It was error to reverse the decision of the Department of Human Services to place a father's name on the Child Maltreatment Central Registry because substantial evidence supported the decision, as the father drove while impaired by alcohol at twice the legal limit with his then six-year-old son in the car, which constituted inadequate supervision (neglect) and a threat of harm (abuse). The statutes do not require that actual injury occur for findings of abuse or neglect. Ark. Dep't of Human Servs. v. Newcity, 2020 Ark. App. 32, 594 S.W.3d 112 (2020).

Application

Child's testimony, by itself, that her stepmother picked her up by her neck, making it difficult to breathe, described treatment that fit within the definition of abuse under subdivision (2)(A)(vii) (c) (now (3)(A)(vii) (c) ) of this section and was sufficient to support the Arkansas Department of Human Services' finding of maltreatment. Duke v. Selig, 2009 Ark. App. 843 (2009).

Jury Instructions.

Prosecution must prove that a person is a “mandated reporter” in order to show a violation of § 12-18-201, relating to mandatory reporting of child abuse; therefore, the jury was properly instructed as to the requirement of immediacy when it was given the statutory definition of a mandated reporter in § 12-18-402, along with the other statutory definitions of relevant terms, such as “child” and “child maltreatment.” Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Neglect.

Order for the Arkansas Department of Human Services to provide a pregnant teenager with school uniforms and maternity clothes was clearly erroneous because the lack of such did not pose an immediate danger to the teenager's health or physical well-being under § 12-18-1001(a); there was a lack of evidence to support the finding that the teenager was at immediate risk of severe maltreatment and that family services were necessary to prevent her removal, the failure to make findings necessitated reversal, and the trial court's personal recollections were not sufficient. In addition, even if the teenager lacked school uniforms and maternity clothes because her family could not afford them and was kept out of school as a result, this did not constitute neglect that warranted removal from the home. Ark. Dep't of Human Servs. v. A.M., 2012 Ark. App. 240, 423 S.W.3d 86 (2012).

Father placed his child in a car seat in a car on a hot day, the child was left alone, and the foreseeability of harm in that circumstance was clear; thus, the administrative law judge's finding of neglect by inadequate supervision comported with case law; the father lost awareness of the child's presence in the car and failed to remove him, and this placed him in inappropriate circumstances creating a dangerous situation. W.N. v. Ark. Dep't of Human Servs., 2018 Ark. App. 346, 552 S.W.3d 483 (2018).

Neglect by inadequate supervision does not require a culpable mental state because it is defined in the Child Maltreatment Act outside of the Arkansas Criminal Code. W.N. v. Ark. Dep't of Human Servs., 2018 Ark. App. 346, 552 S.W.3d 483 (2018).

It was not clear that the administrative law judge (ALJ) incorrectly relied on the criminal-negligence standard; however, the father could not show prejudice because applying the criminal-negligence standard only heightened the standard by which the ALJ could find neglect by inadequate supervision under the Child Maltreatment Act. W.N. v. Ark. Dep't of Human Servs., 2018 Ark. App. 346, 552 S.W.3d 483 (2018).

Sexual Abuse.

Petitioner was properly placed on the Arkansas Child Maltreatment Central Registry; the administrative hearing was not untimely because the petitioner requested a continuance and the ensuing delay was attributable to him; moreover, the ALJ did not err by failing to consider evidence of an affirmative defense because the petitioner, at the age of eighteen, engaged in sexual intercourse with a girl who was fourteen, and even though the child testified that she told the petitioner that she was sixteen years old, it was not sufficient to negate the finding of child maltreatment. Marrufo v. Ark. Dep't of Human Servs., 2013 Ark. 323, 429 S.W.3d 210 (2013).

Substantial evidence supported the finding that a father sexually abused, as defined in subdivision (18)(A)(iv) (now (20)(A)(iv)) of this section, his son, who was autistic and had cerebral palsy, by allowing him to view pornography; the child's mother testified that she observed the father showing the son pornography on television when the son was approximately seven or eight years old and the son was strapped in a wheelchair. Ark. Dep't of Human Servs. v. R.F., 2013 Ark. App. 694 (2013).

12-18-104. Confidentiality.

  1. Any data, records, reports, or documents that are created, collected, or compiled by or on behalf of the Department of Human Services, the Division of Arkansas State Police, or other entity authorized under this chapter to perform investigations or provide services to children, individuals, or families shall not be subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.
  2. Any data, records, reports, or documents released under this chapter to law enforcement, a prosecuting attorney, or a court by the Department of Human Services and the Division of Arkansas State Police are confidential and shall be sealed and not re-disclosed without a protective order to ensure the items of evidence for which there is a reasonable expectation of privacy are not distributed to a person or institution without a legitimate interest in the evidence, provided that nothing in this chapter is deemed to abrogate the right of discovery in a criminal case under the Arkansas Rules of Criminal Procedure or the law.
  3. Confidential data, records, reports, or documents created, collected, or compiled by or on behalf of the Department of Human Services, the Division of Arkansas State Police, or other entity authorized under this chapter to perform investigations or provide services to children, individuals, or families may be:
    1. Disclosed to and discussed with a member of the Child Maltreatment Investigations Oversight Committee; and
    2. Disclosed and discussed in closed meetings conducted by the Child Maltreatment Investigations Oversight Committee under § 10-3-3201 et seq.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 7; 2015, No. 1004, § 2; 2017, No. 713, § 4; 2019, No. 1081, § 7.

Amendments. The 2013 amendment added (b).

The 2015 amendment inserted “and the Department of Arkansas State Police” in (b).

The 2017 amendment added (c).

The 2019 amendment inserted (c)(1) and redesignated former (c) as the introductory language of (c) and (c)(2); in the introductory language of (c), deleted “This section does not prohibit the disclosure and discussion of” from the beginning, and added “may be” at the end; and added “Disclosed and discussed” in (c)(2).

Case Notes

Release of Records.

Plaintiff's claim for invasion of privacy by intrusion upon seclusion, arising from the release of juvenile investigative records, failed to state a claim because (1) even if the records were protected from release under this section, plaintiff failed to state facts showing the city's and county's release of the records was intentional; (2) plaintiff failed to state facts as to how he conducted himself in a manner consistent with an actual expectation of privacy; and (3) plaintiff failed to state how he suffered damages. Duggar v. City of Springdale, 2020 Ark. App. 220, 599 S.W.3d 672 (2020).

12-18-105. Rules.

The Department of Human Services and the Department of Arkansas State Police shall promulgate rules to implement this chapter.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 3.

Amendments. The 2015 amendment substituted “Department of Human Services and the Department of Arkansas State Police” for “Director of the Department of Human Services”.

12-18-106. Cooperative agreements.

  1. The Department of Human Services and the Division of Arkansas State Police shall implement a coordinated multidisciplinary team approach to intervention in reports involving severe maltreatment and all reports requested by a prosecuting attorney pertaining to a law enforcement or prosecuting attorney's investigation by initiating formal cooperative agreements with:
    1. Law enforcement agencies;
    2. Prosecuting attorneys; and
    3. Other appropriate agencies and individuals.
  2. The Secretary of the Department of Human Services may enter into cooperative agreements with other states to create a national child maltreatment registration system.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 3; 2019, No. 910, § 5157.

Amendments. The 2015 amendment substituted “Department of Human Services and the Department of Arkansas State Police” for “Director of the Department of Human Services” in (a); and substituted “Director of the Department of Human Services” for “director” in (b).

The 2019 amendment substituted “Secretary of the Department of Human Services” for “Director of the Department of Human Services” in (b).

12-18-107. Liability.

  1. A person or agency required by this chapter to report suspected child maltreatment who acts in good faith in making notification, the taking of a photograph or radiological test, or the removal of a child while exercising a seventy-two-hour hold is immune to suit and to civil and criminal liability.
  2. If acting in good faith, a person making notification not named in this section is immune from liability.
  3. A publicly supported school, facility, or institution acting in good faith by cooperating with the investigative agency under this chapter shall be immune from civil and criminal liability.

History. Acts 2009, No. 749, § 1.

12-18-108. Maintenance of forensic samples from abortions performed on a child.

    1. A physician who performs an abortion on a child who is less than seventeen (17) years of age at the time of the abortion shall preserve under this subchapter fetal tissue extracted during the abortion in accordance with rules adopted by the office of the State Crime Laboratory.
    2. Before submitting the tissue under subdivision (a)(1) of this section, the physician shall redact protected health information as required under the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191.
    3. The physician or the reporting medical facility shall contact the law enforcement agency in the jurisdiction where the child resides.
  1. The State Crime Laboratory shall adopt rules prescribing:
    1. The amount and type of fetal tissue to be preserved under this section;
    2. Procedures for the proper preservation of the tissue for the purpose of DNA testing and examination;
    3. Procedures for documenting the chain of custody of the tissue for use as evidence;
    4. Procedures for proper disposal of fetal tissue preserved under this section;
    5. A uniform reporting instrument mandated to be utilized by physicians when submitting fetal tissue under this section which shall include the name and address of the physician submitting the fetal tissue and the name and complete address of residence of the parent or legal guardian of the child upon whom the abortion was performed; and
    6. Procedures for communication with law enforcement agencies regarding evidence and information obtained under this section.
  2. Failure of a physician to comply with this section or any rule adopted under this section shall constitute unprofessional conduct under the Arkansas Medical Practices Act, § 17-95-201 et seq., § 17-95-301 et seq., and § 17-95-401 et seq.

History. Acts 2013, No. 725, § 5; 2017, No. 1018, § 1.

A.C.R.C. Notes. Acts 2013, No. 725, § 1, provided: “Findings and purposes.

“(a) The General Assembly finds that:

“(1) Children are increasingly being preyed upon, victimized, and coerced into illegal sexual relationships by adults;

“(2) The Child Maltreatment Act, § 12-18-101 et seq., requires caretakers, healthcare facilities, healthcare providers, teachers, and other specified individuals to report suspected incidents of sexual crimes against children;

“(3) The physical, emotional, developmental, and psychological impact of sexual crimes on child victims can be severe and long-lasting;

“(4) The societal costs of these crimes are also significant and affect the entire populace;

“(5) The collection, maintenance, and preservation of evidence, including forensic tissue samples, furthers Arkansas's interest in protecting children from sexual crimes and provides the state with the tools necessary for successful investigations and prosecutions;

“(6) Parents and guardians have both the right and responsibility to be involved in medical treatment decisions involving their children, and no one has the right to knowingly or willfully impede or circumvent this right;

“(7)(A) There are documented cases of individuals other than a parent or guardian aiding, abetting, and assisting minor girls to procure abortions without their parents' or guardians' knowledge, consent, or involvement.

“(B) These activities of individuals other than a parent or guardian include transporting children across state lines to avoid Arkansas's parental involvement requirements for abortion; and

“(8) Such actions violate both the sanctity of the familial relationship and Arkansas's parental involvement law concerning abortion.

“(b) The General Assembly's purposes in enacting the Child Maltreatment Act are to further the important and compelling state interests of:

“(1) Protecting children from sexually predatory adults;

“(2) Ensuring that adults who are involved in illegal sexual relationships or contact with children are reported, investigated, and, when warranted, prosecuted;

“(3)(A) Relieving medical professionals and other mandatory reporters of suspected sexual crimes against children from any responsibility to personally investigate an allegation or suspicion.

“(B) Mandatory reporters must simply report allegations, suspicions, and pertinent facts.

“(C) Trained law enforcement or social services personnel are responsible for any investigation and for the ultimate disposition of the allegation or case;

“(4) Reducing the physical, emotional, developmental, and psychological impact of sexual crimes on child victims;

“(5) Reducing the societal and economic burden on the populace that results from sexual crimes against children;

“(6) Providing law enforcement officials with the tools and evidence necessary to investigate and prosecute child predators; and

“(7) Protecting and respecting the right of parents and guardians to be involved in the medical decisions and treatment of their children and preventing anyone from knowingly or willfully subverting or circumventing these rights.”

Amendments. The 2017 amendment substituted “seventeen (17)” for “fourteen (14)” in (a)(1).

Subchapter 2 — Offenses and Penalties

12-18-201. Failure to notify by a mandated reporter in the first degree.

  1. A person commits the offense of failure to notify by a mandated reporter in the first degree if he or she:
    1. Is a mandated reporter under this chapter;
    2. Has:
      1. Reasonable cause to suspect that a child has been subjected to child maltreatment;
      2. Reasonable cause to suspect that a child has died as a result of child maltreatment; or
      3. Observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment; and
    3. Knowingly fails to notify the Child Abuse Hotline of the child maltreatment or suspected child maltreatment.
  2. Failure to notify by a mandated reporter in the first degree is a Class A misdemeanor.

History. Acts 2009, No. 749, § 1.

Case Notes

Jury Instructions.

Defendant's proposed jury instructions were properly denied where she failed to report child abuse to a hotline for two weeks because the instructions were not a correct statement of the law; defendant's instructions incorrectly stated that there was no requirement to report if the reasonable cause to suspect arose after the victim had attained her 18th birthday. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Defendant's proposed jury instructions relating to the responsibilities of a child abuse hotline were properly denied where she failed to report child abuse to a hotline for two weeks because the hotline responsibility statute, § 12-18-306, was not relevant to defendant's conviction under this section on the charge of failing to report. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Mandated Reporter.

Prosecution must prove that a person is a “mandated reporter” in order to show a violation of this section relating to mandatory reporting of child abuse; therefore, the jury was properly instructed as to the requirement of immediacy when it was given the statutory definition of a mandated reporter, along with the other statutory definitions of relevant terms, such as “child” and “child maltreatment.” Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Relation to Other Statute.

Section 12-18-306 did not dictate a contrary result where defendant was convicted for failing to make a report of child abuse, as it was found in a separate subchapter discussing the responsibilities of the child-abuse hotline, and it did not affect the unambiguous language governing mandated reporters found in this section. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Relevance.

Trial court did not abuse its discretion by failing to admit evidence relating to an agency's statutory interpretation because the hotline personnel's opinion and interpretation of a separate statute relating solely to the duties of the child-abuse hotline, § 12-18-306, were not relevant to defendant's intent, as a mandated reporter, in failing to comply with the reporting requirements under this section. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Vagueness.

Defendant could not complain that inclusion of the word “immediately” in § 12-18-402 rendered the statute vague, as her conduct of purposely delaying making a report to the child abuse hotline for more than two weeks after acquiring direct knowledge of the child maltreatment clearly did not satisfy the requirement of immediacy that was placed on a mandated reporter. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Victim's Age.

This section contains no limitation for a situation where a child is 18 when the maltreatment is discovered; instead, the statute is written in the past tense to include a child who has been subjected to child maltreatment. Therefore, the evidence was sufficient to support a conviction under this section in a case where defendant did not learn about the abuse until after the victim was 18. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

12-18-202. Failure to notify by a mandated reporter in the second degree.

  1. A person commits the offense of failure to notify by a mandated reporter in the second degree if he or she:
    1. Is a mandated reporter under this chapter;
    2. Has:
      1. Reasonable cause to suspect that a child has been subjected to child maltreatment;
      2. Reasonable cause to suspect that a child has died as a result of child maltreatment; or
      3. Observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment; and
    3. Recklessly fails to notify the Child Abuse Hotline of the child maltreatment or suspected child maltreatment.
  2. Failure to notify by a mandated reporter in the second degree is a Class C misdemeanor.

History. Acts 2009, No. 749, § 1.

12-18-203. Making a false report under this chapter.

  1. A person commits the offense of making a false report under this chapter if he or she purposely makes a report containing a false allegation to the Child Abuse Hotline knowing the allegation to be false.
    1. A first offense of making a false report under this chapter is a Class A misdemeanor.
    2. A subsequent offense of making a false report under this chapter is a Class D felony.

History. Acts 2009, No. 749, § 1.

Case Notes

Applicability.

Because a school principal admitted that she knew the allegation of child abuse to be true, this section could not possibly be applied to her. Struble v. Blytheville Sch. Dist., 2017 Ark. App. 99, 516 S.W.3d 269 (2017).

12-18-204. Unlawful restriction of child abuse reporting.

    1. An employer or supervisor of an employee identified as a mandated reporter commits the offense of unlawful restriction of child abuse reporting if he or she:
      1. Prohibits a mandated reporter under this chapter from making a report of child maltreatment or suspected child maltreatment to the Child Abuse Hotline;
      2. Requires that a mandated reporter under this chapter receive permission or notify a person before the mandated reporter makes a report of child maltreatment or suspected child maltreatment to the Child Abuse Hotline; or
      3. Knowingly retaliates against a mandated reporter under this chapter for reporting child maltreatment or suspected child maltreatment to the Child Abuse Hotline.
      1. Nothing in this section shall prohibit any person or institution from requiring a mandatory reporter employed or serving as a volunteer for a person or institution to inform a representative of that person or institution that the reporter has made a report to the Child Abuse Hotline.
      2. Information disclosed to a person or institution under subdivision (a)(2)(A) of this section shall not be shared outside the organization and may only be shared within the organization to protect the health, safety, and welfare of the child.
  1. Unlawful restriction of child abuse reporting is a Class A misdemeanor.

History. Acts 2009, No. 749, § 1; 2013, No. 1086, § 6.

Amendments. The 2013 amendment rewrote the introductory language in (a)(1); substituted “or notify a person” for “from the person” in (a)(1)(B); and added (a)(2)(B).

12-18-205. Unlawful disclosure of data or information under this chapter.

  1. A person commits the offense of unlawful disclosure of data or information under this chapter if the person knowingly discloses data or information to a person to whom disclosure is not permitted by this chapter.
  2. Unlawful disclosure of data or information under this chapter is a Class A misdemeanor.

History. Acts 2009, No. 749, § 1.

12-18-206. Civil liability for failure to report.

A person required by this chapter to make a report of child maltreatment or suspected child maltreatment to the Child Abuse Hotline who purposely fails to do so is civilly liable for damages proximately caused by that failure.

History. Acts 2009, No. 749, § 1.

12-18-207. Judicial and prosecutorial disclosure.

A judge or prosecuting attorney who fails to make a report when required by this chapter is immune from criminal and civil liability under this chapter.

History. Acts 2009, No. 749, § 1.

12-18-208. Subsequent disclosure by a subject of a report.

This chapter does not prevent subsequent disclosure by a subject of the report.

History. Acts 2009, No. 749, § 1.

12-18-209. Imposition of penalties.

The Department of Human Services and the Department of Arkansas State Police, or a prosecuting attorney, may file a petition in the appropriate court seeking imposition of penalties for violation of this chapter.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 4.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police”.

12-18-210. Prohibition on intentionally causing, aiding, abetting, or assisting a child to obtain an abortion without parental consent.

    1. A person shall not intentionally cause, aid, or assist a child to obtain an abortion without the consent or notification regarding judicial bypass of the requirement for consent under §§ 20-16-801, 20-16-804, and 20-16-805.
    2. Subdivision (a)(1) of this section does not affect § 20-16-808.
    1. A person who violates subsection (a) of this section shall be civilly liable to the child and to the person or persons required to give the consent under § 20-16-801.
    2. A court may award:
      1. Damages to the person or persons adversely affected by a violation of subsection (a) of this section, including compensation for emotional injury without the need for personal presence at the act or event; and
      2. Attorney's fees, litigation costs, and punitive damages.
    3. An adult who engages in or consents to another person's engaging in a sexual act with a child in violation of the Arkansas Criminal Code, § 5-1-101 et seq., that results in the child's pregnancy shall not be awarded damages under this section.
  1. An unemancipated child does not have capacity to consent to any action in violation of this section.
  2. Upon a petition by any person adversely affected or who reasonably may be adversely affected by the conduct, a court of competent jurisdiction may enjoin conduct that would violate this section upon a showing that the conduct:
    1. Is reasonably anticipated to occur in the future; or
    2. Has occurred in the past, whether with the same child or others, and that it is not unreasonable to expect that the conduct will be repeated.

History. Acts 2013, No. 725, § 6.

A.C.R.C. Notes. Acts 2013, No. 725, § 1, provided: “Findings and purposes.

“(a) The General Assembly finds that:

“(1) Children are increasingly being preyed upon, victimized, and coerced into illegal sexual relationships by adults;

“(2) The Child Maltreatment Act, § 12-18-101 et seq., requires caretakers, healthcare facilities, healthcare providers, teachers, and other specified individuals to report suspected incidents of sexual crimes against children;

“(3) The physical, emotional, developmental, and psychological impact of sexual crimes on child victims can be severe and long-lasting;

“(4) The societal costs of these crimes are also significant and affect the entire populace;

“(5) The collection, maintenance, and preservation of evidence, including forensic tissue samples, furthers Arkansas's interest in protecting children from sexual crimes and provides the state with the tools necessary for successful investigations and prosecutions;

“(6) Parents and guardians have both the right and responsibility to be involved in medical treatment decisions involving their children, and no one has the right to knowingly or willfully impede or circumvent this right;

“(7)(A) There are documented cases of individuals other than a parent or guardian aiding, abetting, and assisting minor girls to procure abortions without their parents' or guardians' knowledge, consent, or involvement.

“(B) These activities of individuals other than a parent or guardian include transporting children across state lines to avoid Arkansas's parental involvement requirements for abortion; and

“(8) Such actions violate both the sanctity of the familial relationship and Arkansas's parental involvement law concerning abortion.

“(b) The General Assembly's purposes in enacting the Child Maltreatment Act are to further the important and compelling state interests of:

“(1) Protecting children from sexually predatory adults;

“(2) Ensuring that adults who are involved in illegal sexual relationships or contact with children are reported, investigated, and, when warranted, prosecuted;

“(3)(A) Relieving medical professionals and other mandatory reporters of suspected sexual crimes against children from any responsibility to personally investigate an allegation or suspicion.

“(B) Mandatory reporters must simply report allegations, suspicions, and pertinent facts.

“(C) Trained law enforcement or social services personnel are responsible for any investigation and for the ultimate disposition of the allegation or case;

“(4) Reducing the physical, emotional, developmental, and psychological impact of sexual crimes on child victims;

“(5) Reducing the societal and economic burden on the populace that results from sexual crimes against children;

“(6) Providing law enforcement officials with the tools and evidence necessary to investigate and prosecute child predators; and

“(7) Protecting and respecting the right of parents and guardians to be involved in the medical decisions and treatment of their children and preventing anyone from knowingly or willfully subverting or circumventing these rights.”

Subchapter 3 — Child Abuse Hotline

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-18-301. Creation.

  1. There is created the Child Abuse Hotline.
  2. The Child Abuse Hotline is a unit established within the Department of Human Services and the Division of Arkansas State Police, or their designee, with the purpose of receiving and recording notifications and reports under this chapter.
    1. The Child Abuse Hotline shall be staffed twenty-four (24) hours per day and shall have statewide accessibility through a toll-free telephone number.
    2. The toll-free telephone number under this section shall be known as the “Child Abuse Hotline”.
  3. All persons whether a mandated reporter under this chapter or not may use the Child Abuse Hotline to report child maltreatment or suspected child maltreatment.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 5; 2019, No. 910, § 5873.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (b).

The 2019 amendment substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (b).

12-18-302. Reports by mandated reporters.

  1. As prescribed under this section, a mandated reporter under this chapter may report child maltreatment or suspected child maltreatment by telephone call, facsimile transmission, or online reporting.
  2. Facsimile transmission and online reporting may be used in nonemergency situations by an identified mandated reporter under this chapter who provides the following contact information:
    1. Name and phone number; and
    2. In the case of online reporting, the email address of the identified mandated reporter under this chapter.
  3. The Child Abuse Hotline shall provide confirmation of the receipt of a facsimile transmission via a return facsimile transmission or via online receipt.
  4. A mandated reporter under this chapter who wishes to remain anonymous shall make a report through the Child Abuse Hotline toll-free telephone system.

History. Acts 2009, No. 749, § 1.

12-18-303. Minimum requirements for a report to be accepted.

  1. Except as otherwise provided in this section, the Child Abuse Hotline shall accept a report if:
    1. The report is of:
      1. An allegation of child maltreatment or suspected child maltreatment, that if found to be true, would constitute child maltreatment as defined under this chapter;
      2. The death of a child who died suddenly and unexpectedly; or
      3. The death of a child reported by a coroner or county sheriff under § 20-15-502;
    2. Sufficient identifying information is provided to identify and locate the child or the child's family; and
    3. The child or the child's family is present in Arkansas or the incident occurred in Arkansas.
    1. If the alleged offender resides in another state and the incident occurred in another state or country, the Child Abuse Hotline shall document receipt of the report, transfer the report to the Child Abuse Hotline of the state or country where the alleged offender resides or the incident occurred, and, if child protection is an issue, forward the report to the Department of Human Services or the equivalent governmental agency of the state or country where the alleged offender resides.
    2. Any record of receipt of a report under subdivision (b)(1) of this section may be used only within the Department of Human Services for purposes of administration of the program and shall not be disclosed except to:
      1. The prosecuting attorney; or
      2. A law enforcement agency.
    3. Data identifying a reporter under subdivision (b)(1) of this section shall be maintained under § 12-18-502.
  2. If the incident occurred in Arkansas and the victim, offender, or victim's parents no longer reside in Arkansas, the Child Abuse Hotline shall accept the report and the Arkansas investigating agency shall contact the other state and request assistance in completing the investigation, including an interview with the out-of-state subject of the report.
    1. If the Child Abuse Hotline receives a report and the alleged offender is a resident of the State of Arkansas and the report of child maltreatment or suspected child maltreatment in the state or country in which the act occurred would also be child maltreatment in Arkansas at the time the incident occurred, the Child Abuse Hotline shall refer the report to the appropriate investigating agency within the state so that the Arkansas investigative agency can investigate alone or in concert with the investigative agency of any other state or country that may be involved.
    2. The Arkansas investigating agency shall make an investigative determination and shall provide notice to the alleged offender that, if the allegation is determined to be true, the offender's name will be placed in the Child Maltreatment Central Registry.
    3. The other state may also conduct an investigation in this state that results in the offender's being named in a true report in that state and placed in the Child Maltreatment Central Registry of that state.
      1. A report of child maltreatment that does not meet the requirements of subsection (a) of this section shall not be accepted by the Child Abuse Hotline.
      2. The Child Abuse Hotline may accept a report of child maltreatment that does not meet the requirements of subsection (a) of this section if sufficient information is provided to accept the report under §§ 12-18-304 — 12-18-310.
      1. The Department of Human Services and the Division of Arkansas State Police shall establish procedures for the Child Abuse Hotline.
      2. The procedures established by the Department of Human Services and the Division of Arkansas State Police shall include without limitation the:
        1. Creation of a secondary review of an accepted report of child maltreatment by the investigating agency assigned under § 12-18-601 to ensure that the report of child maltreatment meets the requirements of this section; and
        2. Ability of the Child Abuse Hotline and the investigating agency to contact the Department of Human Services to obtain or determine information relevant to whether a report of child maltreatment should be accepted.
    1. A report of child maltreatment that does not meet the requirements of subsection (a) of this section shall be considered screened-out for the purposes of releasing information under § 12-18-910.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 6; 2015, No. 1211, § 2; 2017, No. 250, § 11; 2019, No. 802, § 2.

A.C.R.C. Notes. Acts 2019, No. 802, § 1, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) All members of society desire the safety of all children;

“(2) A child raised under constant adult supervision may miss opportunities for growth that will negatively impact his or her mental and physical development;

“(3) The alarming rise of childhood obesity and diabetes is almost certainly linked to an increase in the sedentary lifestyle and lack of physical activity for children today, which is often encouraged by parents and guardians, including without limitation by insisting on driving their children to school;

“(4) As measured by incidences of mental health difficulties, the over-supervised youth of today experience more difficulties when they reach adulthood than earlier generations;

“(5) Earlier generations learned resilience by walking, bicycling, playing, helping, and solving problems without constant adult intervention;

“(6) Parents and guardians are often in the best position to weigh the risk and make decisions concerning the safety of children under their care, including without limitation where their child may go, with whom, and when; and

“(7) Parents and guardians who have done nothing more than briefly and safely permitted their children to remain unsupervised should not be subject to investigation and possible prosecution as it causes unnecessary governmental intrusion and diversion of valuable public resources.

“(b) It is the intent of the General Assembly that this act:

“(1) Protect and promote the inherent right of a parent or guardian to raise his or her children;

“(2) Protect the decision of a parent or a guardian to grant his or her children unsupervised time to engage in activities that include without limitation playing outside, walking to school, bicycling, remaining briefly in a vehicle, and remaining at home; and

“(3) Ensure that valuable public resources are used most effectively to protect children by providing a secondary review to ensure that:

“(A) Calls to the Child Abuse Hotline are properly accepted;

“(B) Child maltreatment investigations are closed when the results of the investigation indicate that the allegations lack merit; and

“(C) Only the names of offenders who pose a risk to a vulnerable population are placed on the Child Maltreatment Central Registry.”

Amendments. The 2011 amendment, in (b)(1), substituted “document receipt of” for “screen out”, deleted “screened-out” following “forward the”, and added “or the equivalent governmental agency of the state or country where the alleged offender resides”; and added (b)(2) and (b)(3).

The 2015 amendment deleted “of child maltreatment or suspected child maltreatment” following “report” in the introductory language of (a); and rewrote (a)(1).

The 2017 amendment inserted the comma following “maltreatment” in (a)(1)(A); and rewrote (a)(1)(B).

The 2019 amendment added (e).

12-18-304. Qualifying reports of certain types of child maltreatment.

    1. The Child Abuse Hotline shall accept a report of child maltreatment if any of the following intentional or knowing acts are alleged to occur:
      1. Throwing, kicking, burning, biting, or cutting a child;
      2. Striking a child with a closed fist;
      3. Shaking a child four (4) years of age or older; or
      4. Striking a child seven (7) years of age or older on the face or on the head.
    2. A report under this subsection shall not be determined to be true unless the child suffered an injury as the result of the act.
  1. The Child Abuse Hotline shall accept a report of child maltreatment if any of the following intentional or knowing acts are alleged to occur:
    1. Shaking a child three (3) years of age or younger;
    2. Striking a child six (6) years of age or younger on the face or on the head;
    3. Interfering with a child's breathing; or
    4. Pinching, biting, or striking a child in the genital area.
    1. The Child Abuse Hotline shall accept a report of child maltreatment if a child suffers an injury as the result of a restraint.
    2. The report shall be determined not to be true if the injury is a minor temporary mark or causes transient pain and was an acceptable restraint as provided under this chapter.
    1. The Child Abuse Hotline shall accept a report of child maltreatment involving a bruise to a child even if at the time of the report the bruise is not visible if the bruising occurred:
      1. Within the past fourteen (14) days; and
      2. As a result of child maltreatment as described under subsections (a)-(c) of this section.
    2. However, the report under this subsection shall not be determined to be true unless the existence of the bruise is corroborated.
  2. The Child Abuse Hotline shall not accept a report of environmental neglect pertaining to head lice unless the:
    1. Head lice is chronic; or
    2. Alleged victim currently has sores that require immediate medical attention.
  3. The Child Abuse Hotline shall not accept a report of giving a child or permitting a child to consume or inhale a poisonous or noxious substance as described in § 12-18-103(3)(A)(vii)(f) unless the alleged incident occurred within the previous three (3) months.
  4. The Child Abuse Hotline shall accept a report regarding educational neglect if the:
    1. Report alleges that a parent, custodian, or guardian of a child who is at least (6) years of age and under eighteen (18) years of age failed to enroll the child in school and lawfully home-school the child; or
    2. Report alleges that:
      1. An act or omission of a parent, custodian, or guardian of a child who is at least six (6) years of age and under eighteen (18) years of age caused the child to be absent from school;
      2. The child's absence from school was not caused by the refusal of the child to attend school;
      3. The child has been habitually absent from school without justification; and
      4. The child's absence from school has had a negative impact on the child's performance at school.

History. Acts 2009, No. 749, § 1; 2013, No. 1486, § 1; 2015, No. 1026, § 3; 2015, No. 1215, §§ 1, 2; 2019, No. 554, § 3.

Amendments. The 2013 amendment substituted “child maltreatment” for “physical abuse” throughout the section; and added (e).

The 2015 amendment by No. 1026 added (f).

The 2015 amendment by No. 1215 rewrote (e); and added (g).

The 2019 amendment substituted “shall accept a report regarding educational neglect if the” for “shall accept each call regarding educational neglect” in the introductory language of (g); and added (g)(1) and (g)(2).

12-18-305. Garrett's Law reports.

The Child Abuse Hotline shall accept a report of neglect as defined under § 12-18-103(14)(B) only if the reporter is one (1) of the following mandated reporters and the mandated reporter has reasonable cause to suspect that a child has been subjected to neglect as defined under § 12-18-103(14)(B):

  1. A licensed nurse;
  2. Any medical personnel who may be engaged in the admission, examination, care, or treatment of persons;
  3. An osteopath;
  4. A physician;
  5. A resident intern;
  6. A surgeon; or
  7. A social worker in a hospital.

History. Acts 2009, No. 749, § 1.

A.C.R.C. Notes. The catchline of this section is derived from Acts 2005, No. 1176, § 1: This act shall be known and may be cited as “Garrett’s Law: To Provide Services to a Newborn Child Born with an Illegal Substance Present in the Child’s System”. Acts 2005, No. 1176, § 5, amended former § 12-12-507(f) to add provisions substantially similar to this section.

12-18-306. Reports naming an adult as the victim.

The Child Abuse Hotline shall accept a report of child sexual abuse, sexual contact, or sexual exploitation naming as the victim a person who is now an adult only if:

  1. The alleged offender is a caretaker of a child; and
  2. The person making the report is one (1) of the following:
    1. The adult victim;
    2. A law enforcement officer; or
    3. The alleged offender.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 8.

Amendments. The 2013 amendment in the introductory language inserted “child” before “sexual abuse” and substituted “as the victim a person who is now an adult” for “an adult as the victim”; deleted former (2)(C) and (D) and redesignated former (E) as (C).

Case Notes

Jury Instructions.

Defendant's proposed jury instructions relating to the responsibilities of a child abuse hotline were properly denied where she failed to report child abuse to a hotline for two weeks because the hotline responsibility statute was not relevant to defendant's conviction on the charge of failing to report under § 12-18-201. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Relation to Other Statute.

This section did not dictate a contrary result where defendant was convicted for failing to make a report of child abuse under § 12-18-201, as this section was found in a separate subchapter discussing the responsibilities of the child-abuse hotline, and it did not affect the unambiguous language governing mandated reporters found in § 12-18-201. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

Relevance.

Trial court did not abuse its discretion by failing to admit evidence relating to an agency's statutory interpretation because the hotline personnel's opinion and interpretation of this section, relating solely to the duties of the child-abuse hotline, were not relevant to defendant's intent, as a mandated reporter, in failing to comply with the reporting requirements of § 12-18-201. Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

12-18-307. Reports alleging Munchausen syndrome by proxy or factitious illness.

The Child Abuse Hotline shall accept a report of child maltreatment alleging Munchausen syndrome by proxy or factitious illness only if the reporter is a medical professional.

History. Acts 2009, No. 749, § 1.

12-18-308. Reports of injury to a child's intellectual, emotional, or psychological development.

The Child Abuse Hotline shall accept a report of injury to a child's intellectual, emotional, or psychological development as evidenced by observable and substantial impairment of the child's ability to function within the child's normal range of performance and behavior only if the reporter is:

  1. A medical or mental health professional;
  2. A school counselor, if the child did not disclose to the teacher;
  3. A teacher; or
  4. A day care center worker.

History. Acts 2009, No. 749, § 1; 2011, No. 784, § 1.

Amendments. The 2011 amendment inserted (2) and redesignated the remaining subdivisions accordingly.

12-18-309. Reports alleging that a child is disrupting his or her adoption or is a dependent juvenile.

The Child Abuse Hotline shall accept telephone calls or other communications alleging that a child is at risk of disrupting or has disrupted his or her adoption or that a child is a dependent juvenile, as defined in § 9-27-303, and shall immediately refer this information to the Department of Human Services.

History. Acts 2009, No. 749, § 1; 2011, No. 779, § 18; 2013, No. 1006, § 9; 2015, No. 1092, § 5.

Amendments. The 2011 amendment inserted “juvenile”.

The 2013 amendment substituted “dependent” for “dependent neglected” in the section heading and in section text; and substituted “9-27-303” for “9-27-303(18)”.

The 2015 amendment inserted “disrupting his or her adoption or” in the section heading; and inserted “is at risk of disrupting or has disrupted his or her adoption or that a child” in the section text.

12-18-310. Referrals on children born with and affected by fetal alcohol spectrum disorder or prenatal drug exposure to an illegal drug or a legal substance.

  1. All healthcare providers involved in the delivery or care of infants shall:
    1. Contact the Department of Human Services regarding an infant born with and affected by:
      1. A fetal alcohol spectrum disorder;
      2. Maternal substance abuse resulting in prenatal drug exposure to an illegal or a legal substance; or
      3. Withdrawal symptoms resulting from prenatal drug exposure to an illegal or a legal substance; and
    2. Share all pertinent information, including health information, with the department regarding an infant born with and affected by:
      1. A fetal alcohol spectrum disorder;
      2. Maternal substance abuse resulting in prenatal drug exposure to an illegal or a legal substance; or
      3. Withdrawal symptoms resulting from prenatal drug exposure to an illegal or a legal substance.
  2. The department shall accept referrals, calls, and other communications from healthcare providers involved in the delivery or care of infants born with and affected by:
    1. A fetal alcohol spectrum disorder;
    2. Maternal substance abuse resulting in prenatal drug exposure to an illegal or a legal substance; or
    3. Withdrawal symptoms resulting from prenatal drug exposure to an illegal or a legal substance.
    1. A plan of safe care shall be developed for infants affected by:
      1. A fetal alcohol spectrum disorder;
      2. Maternal substance abuse resulting in prenatal drug exposure to an illegal or a legal substance; or
      3. Withdrawal symptoms resulting from prenatal drug exposure to an illegal or a legal substance.
      1. The plan of safe care shall be designed to ensure the safety and well-being of an infant following the release of the infant from the care of a healthcare provider.
      2. A plan of safe care shall include content that addresses the health and substance use disorder treatment needs of the infant and affected family or caregiver.

History. Acts 2011, No. 1143, § 7; 2019, No. 598, § 1.

Amendments. The 2019 amendment, in the section heading, inserted “and affected by” and added “or prenatal drug exposure to an illegal drug or a legal substance”; substituted “born with and affected by” for “born and affected with” in the introductory language of (a)(1), (a)(2), and (b); added the (a)(1)(A), (a)(2)(A), (b)(1), and (c)(1) designations; in (c)(1), substituted “A plan” for “The department shall develop a plan”, inserted “shall be developed”, and substituted “affected by” for “affected with”; and added (a)(1)(B), (a)(1)(C), (a)(2)(B), (a)(2)(C), (b)(2), (b)(3), (c)(1)(B), (c)(1)(C), (c)(2)(A), and (c)(2)(B).

Subchapter 4 — Reporting Suspected Child Maltreatment

Effective Dates. Acts 2019, No. 945, § 11: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that some juveniles in Arkansas may be unaware of their rights under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that some individuals and entities that are responsible for the welfare of a juvenile may be unaware of the rights of the juvenile under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that the creation of the Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission will help increase awareness of a juvenile's legal rights; that independent oversight of the child welfare system in Arkansas is more than likely to result in recommendations that will further improve the procedures and operations of the child welfare system; and that this act is necessary for the preservation of the public peace, health, and safety. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-18-401. Generally.

  1. A person may immediately notify the Child Abuse Hotline if he or she:
    1. Has reasonable cause to suspect that:
      1. Child maltreatment has occurred; or
      2. A child has died as a result of child maltreatment; or
    2. Observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment.
  2. A person who in good faith notifies the hotline in accordance with subsection (a) of this section is immune from civil and criminal liability.

History. Acts 2009, No. 749, § 1; 2019, No. 970, § 1.

Amendments. The 2019 amendment added the (a) designation; and added (b).

Cross References. Civil and criminal liability, § 12-18-107.

12-18-402. Mandated reporters.

  1. An individual listed as a mandated reporter under subsection (b) of this section shall immediately notify the Child Abuse Hotline if he or she:
    1. Has reasonable cause to suspect that a child has:
      1. Been subjected to child maltreatment;
      2. Died as a result of child maltreatment; or
      3. Died suddenly and unexpectedly; or
    2. Observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment.
  2. The following individuals are mandated reporters under this chapter:
    1. A child care worker or foster care worker;
    2. A coroner;
    3. A day care center worker;
    4. A dentist;
    5. A dental hygienist;
    6. A domestic abuse advocate;
    7. A domestic violence shelter employee;
    8. A domestic violence shelter volunteer;
    9. An employee of the Department of Human Services;
    10. An employee working under contract for, or a contractor of, the Department of Human Services when acting within the scope of his or her contract or employment;
    11. A foster parent;
    12. A judge;
    13. A law enforcement official;
    14. A licensed nurse;
    15. Medical personnel who may be engaged in the admission, examination, care, or treatment of persons;
    16. A mental health professional or paraprofessional;
    17. An osteopath;
    18. A peace officer;
    19. A physician;
    20. A prosecuting attorney;
    21. A resident intern;
    22. A public or private school counselor;
    23. A school official, including without limitation institutions of higher education;
    24. A social worker;
    25. A surgeon;
    26. A teacher;
    27. A court-appointed special advocate program staff member or volunteer;
    28. A juvenile intake or probation officer;
    29. A clergy member, which includes a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting him or her, except to the extent the clergy member:
      1. Has acquired knowledge of suspected child maltreatment through communications required to be kept confidential pursuant to the religious discipline of the relevant denomination or faith; or
      2. Received the knowledge of the suspected child maltreatment from the alleged offender in the context of a statement of admission;
    30. An employee of a child advocacy center or a child safety center;
    31. An attorney ad litem in the course of his or her duties as an attorney ad litem;
      1. A sexual abuse advocate or sexual abuse volunteer who works with a victim of sexual abuse as an employee of a community-based victim service or mental health agency such as Safe Places, United Family Services, Inc., or Centers for Youth and Families.
      2. A sexual abuse advocate or sexual abuse volunteer includes a paid or volunteer sexual abuse advocate who is based with a local law enforcement agency;
    32. A rape crisis advocate or rape crisis volunteer;
      1. A child abuse advocate or child abuse volunteer who works with a child victim of abuse or maltreatment as an employee of a community-based victim service or a mental health agency such as Safe Places, United Family Services, Inc., or Centers for Youth and Families.
      2. A child abuse advocate or child abuse volunteer includes a paid or volunteer sexual abuse advocate who is based with a local law enforcement agency;
    33. A victim/witness coordinator;
    34. A victim assistance professional or victim assistance volunteer;
    35. An employee of the Crimes Against Children Division of the Division of Arkansas State Police;
    36. An employee of a reproductive healthcare facility;
    37. A volunteer at a reproductive healthcare facility;
    38. An individual not otherwise identified in this subsection who is engaged in performing his or her employment duties with a nonprofit charitable organization other than a nonprofit hospital; and
    39. A Child Welfare Ombudsman.
    1. A privilege or contract shall not prevent a person from reporting child maltreatment when he or she is a mandated reporter and required to report under this section.
    2. An employer or supervisor of an employee identified as a mandated reporter shall not prohibit an employee or a volunteer from directly reporting child maltreatment to the Child Abuse Hotline.
    3. An employer or supervisor of an employee identified as a mandated reporter shall not require an employee or a volunteer to obtain permission or notify any person, including an employee or a supervisor, before reporting child maltreatment to the Child Abuse Hotline.
  3. A mandated reporter who in good faith notifies the Child Abuse Hotline in accordance with subsection (a) of this section is immune from civil and criminal liability.

History. Acts 2009, No. 749, § 1; 2009, No. 1409, § 1; 2011, No. 1143, § 8; 2013, No. 725, § 7; 2013, No. 1086, §§ 7, 8; 2015, No. 1056, § 1; 2015, No. 1211, § 3; 2017, No. 250, § 12; 2019, No. 186, § 1; 2019, No. 531, § 3; 2019, No. 945, § 5.

A.C.R.C. Notes. Acts 2013, No. 725, § 1, provided: “Findings and purposes.

“(a) The General Assembly finds that:

“(1) Children are increasingly being preyed upon, victimized, and coerced into illegal sexual relationships by adults;

“(2) The Child Maltreatment Act, § 12-18-101 et seq., requires caretakers, healthcare facilities, healthcare providers, teachers, and other specified individuals to report suspected incidents of sexual crimes against children;

“(3) The physical, emotional, developmental, and psychological impact of sexual crimes on child victims can be severe and long-lasting;

“(4) The societal costs of these crimes are also significant and affect the entire populace;

“(5) The collection, maintenance, and preservation of evidence, including forensic tissue samples, furthers Arkansas's interest in protecting children from sexual crimes and provides the state with the tools necessary for successful investigations and prosecutions;

“(6) Parents and guardians have both the right and responsibility to be involved in medical treatment decisions involving their children, and no one has the right to knowingly or willfully impede or circumvent this right;

“(7)(A) There are documented cases of individuals other than a parent or guardian aiding, abetting, and assisting minor girls to procure abortions without their parents' or guardians' knowledge, consent, or involvement.

“(B) These activities of individuals other than a parent or guardian include transporting children across state lines to avoid Arkansas's parental involvement requirements for abortion; and

“(8) Such actions violate both the sanctity of the familial relationship and Arkansas's parental involvement law concerning abortion.

“(b) The General Assembly's purposes in enacting the Child Maltreatment Act are to further the important and compelling state interests of:

“(1) Protecting children from sexually predatory adults;

“(2) Ensuring that adults who are involved in illegal sexual relationships or contact with children are reported, investigated, and, when warranted, prosecuted;

“(3)(A) Relieving medical professionals and other mandatory reporters of suspected sexual crimes against children from any responsibility to personally investigate an allegation or suspicion.

“(B) Mandatory reporters must simply report allegations, suspicions, and pertinent facts.

“(C) Trained law enforcement or social services personnel are responsible for any investigation and for the ultimate disposition of the allegation or case;

“(4) Reducing the physical, emotional, developmental, and psychological impact of sexual crimes on child victims;

“(5) Reducing the societal and economic burden on the populace that results from sexual crimes against children;

“(6) Providing law enforcement officials with the tools and evidence necessary to investigate and prosecute child predators; and

“(7) Protecting and respecting the right of parents and guardians to be involved in the medical decisions and treatment of their children and preventing anyone from knowingly or willfully subverting or circumventing these rights.”

Acts 2019, No. 945, § 1, provided: “Legislative intent. It is the intent of the General Assembly to create a Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission to provide for independent oversight of the child welfare system in Arkansas”.

Amendments. The 2009 amendment by No. 1409 added (b)(32) through (b)(36).

The 2011 amendment added (b)(37).

The 2013 amendment by No. 725 added (b)(38) and (b)(39).

The 2013 amendment by No. 1086 added “or paraprofessional” in (b)(16); inserted “public or private” in (b)(22); added “including without limitation institutions of higher education” in (b)(23); and substituted “An employer or supervisor of an employee identified as a mandated reporter” for “A school, Head Start program, or day care facility” in (c)(2) and (3).

The 2015 amendment by No. 1056 added (b)(40).

The 2015 amendment by No. 1211 added (a)(1)(C).

The 2017 amendment deleted (a)(1)(C)(ii); and redesignated (a)(1)(C)(i) as (a)(1)(C).

The 2019 amendment by No. 186 added (d).

The 2019 amendment by No. 531, in (b)(10), substituted “or a contractor of” for “the Division of Youth Services of” and added “when acting within the scope of his or her contract or employment”.

The 2019 amendment by No. 945 added (b)(41).

Research References

U. Ark. Little Rock L. Rev.

Breanna Trombley, Note: Criminal Law — No Stitches for Snitches: The Need for a Duty-to-Report Law in Arkansas, 34 U. Ark. Little Rock L. Rev. 813 (2012).

Case Notes

Jury Instructions.

Prosecution must prove that a person is a “mandated reporter” in order to show a violation of § 12-18-201, relating to mandatory reporting of child abuse; therefore, the jury was properly instructed as to the requirement of immediacy when it was given the statutory definition of a mandated reporter, along with the other statutory definitions of relevant terms, such as “child” and “child maltreatment.” Griffin v. State, 2015 Ark. App. 63, 454 S.W.3d 262 (2015).

School Official.

Circuit court did not err in granting summary judgment in favor of a school district because it complied with The Teacher Fair Dismissal Act of 1983, § 6-17-1501 et seq., when it terminated a school principal for just and reasonable cause; the school board heard uncontested evidence that the principal did not call the child-abuse hotline as required by this section when she became aware of the contents of a child's letter detailing that she had been touched by her grandfather and that she had “bad things” in her life. Struble v. Blytheville Sch. Dist., 2017 Ark. App. 99, 516 S.W.3d 269 (2017).

Subchapter 5 — Notice Procedures After a Report of Suspected Child Maltreatment Has Been Made

12-18-501. Notice of a report to the Child Abuse Hotline.

Notice of a report to the Child Abuse Hotline is confidential and may be disclosed only as provided in this chapter.

History. Acts 2009, No. 749, § 1.

12-18-502. Release and disclosure of data generally.

    1. The Department of Human Services and the Department of Arkansas State Police shall not release data that would identify the person who made the report to the Child Abuse Hotline unless a court of competent jurisdiction orders release of the information after the court has reviewed in camera the record related to the report and has found it has reason to believe that the reporter knowingly made a false report.
    2. However, upon request the information shall be disclosed to the prosecuting attorney or law enforcement.
    1. A person or agency to whom disclosure is made shall not disclose to any other person a report or other information obtained pursuant to this section.
    2. However, the person or agency is permitted to consult his or her own attorney regarding the information in any notice provided by the Department of Human Services and the Department of Arkansas State Police.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 6.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (a)(1).

12-18-503. Notification generally.

The Department of Human Services and the Department of Arkansas State Police shall notify the following of any report of child maltreatment within five (5) business days:

  1. The legal parents, legal guardians, and current foster parent of a child in foster care who is named as a victim or alleged offender;
  2. The attorney ad litem for any child named as the victim or alleged offender;
  3. A person appointed by the court as the Court Appointed Special Advocates volunteer for any child named as the victim or alleged offender;
  4. Counsel in a dependency-neglect case or family in need of services case when the child is named as a victim or alleged offender;
  5. The attorney ad litem and Court Appointed Special Advocates volunteer for all other children in the same foster home if the child maltreatment occurred in a foster home;
  6. The attorney ad litem and Court Appointed Special Advocates volunteer for any child in foster care when the alleged juvenile offender or underaged juvenile offender is placed in the same placement as the attorney ad litem or Court Appointed Special Advocates volunteer's client;
  7. The responsible multidisciplinary team; and
  8. A mandated reporter, if the mandated reporter made the initial notification of suspected child maltreatment and the notification has been accepted for investigation.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 9; 2015, No. 1004, § 7.

Amendments. The 2011 amendment substituted “offender” for “aggressor” in (6); substituted “responsible” for “appropriate” in (7); and added (8).

The 2015 amendment inserted “and the Department of Arkansas State Police” in the introductory language.

12-18-504. Notification in cases of reports of severe maltreatment.

  1. The Department of Human Services and the Department of Arkansas State Police shall immediately notify local law enforcement of all reports of severe maltreatment.
    1. Notification of a report of child maltreatment shall be provided within five (5) business days to the prosecuting attorney on an allegation of severe maltreatment.
    2. The prosecuting attorney may provide written notice to the Department of Human Services and the Department of Arkansas State Police that the Department of Human Services and the Department of Arkansas State Police do not need to provide notification of the initial child maltreatment report to the prosecuting attorney's office.
    3. Upon receiving the notification, the Department of Human Services and the Department of Arkansas State Police shall not be required to provide notification of the initial child maltreatment report to the prosecuting attorney's office.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 8.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (a).

12-18-505. Notification to the child's school.

The Department of Human Services shall notify the child's school if the department takes a seventy-two-hour hold on the child or if the court awards the department custody of the child.

History. Acts 2009, No. 749, § 1.

12-18-506. Notice when the alleged offender works with children, the elderly, an individual with a disability, an individual with a mental illness, is engaged in child-related activities, or is a juvenile.

  1. If the Child Abuse Hotline receives a report naming as an alleged offender a person who is engaged in child-related activities or employment, works with the elderly, an individual with a disability, or an individual with a mental illness, or is a juvenile and the Department of Human Services or the Department of Arkansas State Police has determined that children, the elderly, or individuals with a disability or mental illness under the care of the alleged offender appear to be at risk of maltreatment by the alleged offender, the Department of Human Services or the Department of Arkansas State Police may notify the following of the report made to the Child Abuse Hotline:
    1. The alleged offender's employer;
    2. The school superintendent, principal, or a person in an equivalent position where the alleged offender is employed;
    3. The person in charge of a paid or volunteer activity; and
    4. The appropriate licensing or registering authority to the extent necessary to carry out its official responsibilities.
  2. The Department of Human Services and the Department of Arkansas State Police shall promulgate rules to ensure that notification required under this section is specifically approved by a responsible manager in the Department of Human Services or the Department of Arkansas State Police before the notification is made.
  3. If the Department of Human Services and the Department of Arkansas State Police, based on information gathered during the course of the investigation, determine that there is no preponderance of the evidence indicating that children under the care of the alleged offender appear to be at risk, the Department of Human Services and the Department of Arkansas State Police shall immediately notify the previously notified person or entity of that information.
    1. If the Child Abuse Hotline receives a report naming a juvenile as an alleged offender who is in a setting or circumstances where other children may be at risk, the Department of Human Services and the Department of Arkansas State Police may notify the entity or person in charge about the Child Abuse Hotline report.
    2. The Department of Human Services and the Department of Arkansas State Police shall promulgate rules to ensure that the notification required under this section is specifically approved by a responsible manager in the Department of Human Services or the Department of Arkansas State Police before notification is made.
    3. If the Department of Human Services and the Department of Arkansas State Police, based on information gathered during the course of the investigation, determine that there is no preponderance of the evidence indicating that children appear to be at risk, the Department of Human Services and the Department of Arkansas State Police shall immediately notify the person or entity originally notified under subdivision (d)(1) of this section of that information.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 10; 2015, No. 1026, § 4.

Amendments. The 2013 amendment rewrote the section heading and introductory language in (a); and added (d).

The 2015 amendment, in the introductory language of (a), inserted “or the Department of Arkansas State Police” twice and substituted the second occurrence of “Department of Human Services” for “department”.

12-18-507. Notice when the alleged victim is a resident of a facility licensed, registered, or operated by the state.

  1. If the Child Abuse Hotline receives a report that a client or a resident of a facility licensed or registered by the State of Arkansas has been subjected to child maltreatment while at the facility, the Department of Human Services and the Department of Arkansas State Police shall immediately notify the facility director and the facility's licensing or registering authority of the Child Abuse Hotline's receipt of a report of suspected child maltreatment.
  2. If the Child Abuse Hotline receives a report that a client or a resident of a facility operated by the Department of Human Services or a facility operated under contract with the Department of Human Services has been subjected to child maltreatment while at the facility, the Department of Human Services and the Department of Arkansas State Police shall immediately notify the appropriate division director and the facility director of the Child Abuse Hotline's receipt of initial report of suspected child maltreatment.
  3. If the Child Abuse Hotline receives a report that a child in the custody of the Department of Human Services has been subjected to child maltreatment while in the custody of the Department of Human Services, the Department of Human Services and the Department of Arkansas State Police shall immediately notify the appropriate division director of the Child Abuse Hotline's receipt of an initial report of suspected child maltreatment.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 11; 2015, No. 1004, § 9.

Amendments. The 2013 amendment added (c).

The 2015 amendment inserted “and the Department of Arkansas State Police” in (a).

12-18-508. Notice to United States military organizations of alleged child maltreatment — Definitions.

  1. As used in this section:
    1. “Active duty service member” means a military member on full-time duty in the United States Army, United States Marine Corps, United States Navy, or United States Air Force;
    2. “Child” means a biological child, adopted child, stepchild, foster child, or ward of an active duty service member; and
    3. “Family advocacy program” means a congressionally mandated United States Department of Defense activity implemented through branches of the United States Armed Forces to address domestic abuse and child abuse through prevention, response, clinical assessment, treatment, and related services for active duty service members and their families.
  2. When the Child Abuse Hotline accepts a report involving as an alleged victim a child of an active duty service member, the Department of Human Services or the Division of Arkansas State Police shall immediately notify the applicable family advocacy program or other person or entity designated by the military authority for the military installation associated with the active duty service member.
  3. When the Child Abuse Hotline accepts a report involving as an alleged offender a person who is an active duty service member, the Department of Human Services or the Division of Arkansas State Police shall immediately notify the applicable family advocacy program or other person or entity designated by the military authority for the military installation associated with the active duty service member.
    1. When the Child Abuse Hotline accepts a report alleging child maltreatment that occurred during an activity conducted or sanctioned by the United States Department of Defense or its subdivisions, or occurred at a facility operated by the United States Department of Defense or its subdivisions, the Department of Human Services or the Division of Arkansas State Police shall immediately notify the applicable family advocacy program or other person or entity designated by the military authority for the military installation associated with the activity or facility.
    2. Facilities covered under the notification requirement in subdivision (d)(1) of this section include without limitation all military installations and recruiting locations, as well as schools, daycares, and youth programs operated by the United States Department of Defense or its subdivisions, and schools, daycares, and youth programs that are allowed to operate on military installations, recruiting locations, or other military facilities.
  4. The notice required under this section shall include notice of the Child Abuse Hotline's receipt of a report of suspected child maltreatment.
  5. The Department of Human Services and the Division of Arkansas State Police may promulgate rules and enter into memoranda of understanding with the United States Department of Defense and its subdivisions to ensure that the notification required under this section is provided.

History. Acts 2017, No. 528, § 1.

Subchapter 6 — Investigative Proceedings

Effective Dates. Acts 2019, No. 945, § 11: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that some juveniles in Arkansas may be unaware of their rights under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that some individuals and entities that are responsible for the welfare of a juvenile may be unaware of the rights of the juvenile under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that the creation of the Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission will help increase awareness of a juvenile's legal rights; that independent oversight of the child welfare system in Arkansas is more than likely to result in recommendations that will further improve the procedures and operations of the child welfare system; and that this act is necessary for the preservation of the public peace, health, and safety. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-18-601. Assignment to investigative agency.

    1. If a report of child maltreatment is accepted by the Child Abuse Hotline, an investigation shall be conducted under procedures established by the Department of Human Services.
    2. The procedures established by the Department of Human Services shall require the:
      1. Assignment of a report of child maltreatment to the Department of Human Services or the Division of Arkansas State Police as the investigating agency;
      2. Assignment of a report of child maltreatment to the Division of Arkansas State Police if the report involves:
        1. Severe maltreatment;
        2. A person, agency, corporation, or partnership that provides substitute care for a child who is in the custody of the Department of Human Services; or
        3. A person, agency, corporation, or partnership that provides substitute care for a child who is in the custody of an employee of the Department of Human Services or another person who resides in the home of an employee of the Department of Human Services; and
      3. Assignment of a report of child maltreatment that qualifies for triage procedures that are developed and implemented under this section and as prescribed by triage procedures in lieu of an assignment for investigation by the Department of Human Services or the Division of Arkansas State Police.
      1. After the assignment of a report of child maltreatment, the investigating agency shall initiate an investigation as provided under this subchapter.
      2. After initiating the investigation and interviewing the alleged victim, the investigating agency shall review the report of child maltreatment to determine if the investigation should be administratively closed under § 12-18-702 without complying with the requirements of this subchapter regarding a complete investigation.
      3. If an investigation is not administratively closed under § 12-18-702, the investigating agency shall comply with the requirements of this subchapter regarding a complete investigation.
      1. The investigating agency shall administratively close an investigation under procedures that are established by the Department of Human Services.
      2. The procedures established by the Department of Human Services shall require the:
        1. Closure of an investigation if there is no evidence to support the report of child maltreatment other than the report made to the Child Abuse Hotline;
        2. Closure of an investigation if there is insufficient detail to investigate the report of child maltreatment;
          1. Closure of an investigation that is based on an allegation made by an anonymous reporter if there is no evidence to corroborate the report of child maltreatment after the investigating agency has conducted a preliminary investigation to determine whether there is any evidence to corroborate the report of child maltreatment.
          2. A preliminary investigation shall include:
            1. An interview with the alleged victim;
            2. A visit to the home of the alleged victim if appropriate given the type of child maltreatment alleged; and
            3. Evidence from a collateral witness;
        3. Closure of an investigation if:
          1. There has not been an additional report of abuse or neglect that has been committed by the alleged offender who is the subject of the current report;
          2. The investigator reviews the prior history of child maltreatment related to the family of the child and to the offender and determines that the health and safety of the child can be assured without further investigation by the Department of Human Services or the Division of Arkansas State Police; and
          3. The investigator determines that abuse or neglect of the child did not occur; and
        4. Approval of the:
          1. Director of the Division of Children and Family Services of the Department of Human Services or his or her designee for the administrative closure of an investigation that is conducted by the Department of Human Services; or
          2. Director of the Division of Arkansas State Police or his or her designee for the administrative closure of an investigation conducted by the Division of Arkansas State Police.
            1. The Department of Human Services and the Division of Arkansas State Police may develop and implement triage procedures for accepting and documenting reports of child maltreatment of a child not at risk of imminent harm.
            2. The Department of Human Services and the Division of Arkansas State Police shall not implement this section until rules necessary to carry out this subsection have been promulgated pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
            1. With regard to the procedures established in accordance with subsections (a) and (b) of this section, the Department of Human Services shall assess the safety of a child upon the receipt of an accepted child maltreatment report.
            2. The assessment under subdivision (d)(1) of this section shall include each underlying issue or additional child maltreatment concern that may not have been identified in the original Child Abuse Hotline report.
          3. The Department of Human Services shall work with families related to an accepted child maltreatment report to remedy the conditions or issues that resulted in the child maltreatment report.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 10; 2015, No. 1004, § 10; 2015, No. 1215, § 3; 2019, No. 802, § 3.

A.C.R.C. Notes. Acts 2019, No. 802, § 1, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) All members of society desire the safety of all children;

“(2) A child raised under constant adult supervision may miss opportunities for growth that will negatively impact his or her mental and physical development;

“(3) The alarming rise of childhood obesity and diabetes is almost certainly linked to an increase in the sedentary lifestyle and lack of physical activity for children today, which is often encouraged by parents and guardians, including without limitation by insisting on driving their children to school;

“(4) As measured by incidences of mental health difficulties, the over-supervised youth of today experience more difficulties when they reach adulthood than earlier generations;

“(5) Earlier generations learned resilience by walking, bicycling, playing, helping, and solving problems without constant adult intervention;

“(6) Parents and guardians are often in the best position to weigh the risk and make decisions concerning the safety of children under their care, including without limitation where their child may go, with whom, and when; and

“(7) Parents and guardians who have done nothing more than briefly and safely permitted their children to remain unsupervised should not be subject to investigation and possible prosecution as it causes unnecessary governmental intrusion and diversion of valuable public resources.

“(b) It is the intent of the General Assembly that this act:

“(1) Protect and promote the inherent right of a parent or guardian to raise his or her children;

“(2) Protect the decision of a parent or a guardian to grant his or her children unsupervised time to engage in activities that include without limitation playing outside, walking to school, bicycling, remaining briefly in a vehicle, and remaining at home; and

“(3) Ensure that valuable public resources are used most effectively to protect children by providing a secondary review to ensure that:

“(A) Calls to the Child Abuse Hotline are properly accepted;

“(B) Child maltreatment investigations are closed when the results of the investigation indicate that the allegations lack merit; and

“(C) Only the names of offenders who pose a risk to a vulnerable population are placed on the Child Maltreatment Central Registry.”

Amendments. The 2011 amendment substituted “accepting and documenting” for “screening out” in (d)(1).

The 2015 amendment by No. 1004 inserted “and the Department of Arkansas State Police” in (d)(1) and (2).

The 2015 amendment by No. 1215 added (e) and (f).

The 2019 amendment rewrote (a) and (b); deleted former (c) and redesignated the remaining subsections accordingly; deleted “if an appropriate referral is made to a community organization or voluntary preventive service” following “imminent harm” in (c)(1); substituted “established in accordance with subsections (a) and (b)” for “described in subdivisions (d)(1) and (2)” in (d)(1); and updated an internal reference in (d)(2).

12-18-602. Initiation of the investigation.

  1. The Department of Human Services and the Division of Arkansas State Police shall cause an investigation to be made upon receiving initial notification of suspected child maltreatment or notification of a child death.
    1. All investigations shall begin within seventy-two (72) hours.
    2. However, the investigation shall begin within twenty-four (24) hours if:
      1. The allegation is severe maltreatment, excluding an allegation:
        1. Of sexual abuse if the most recent allegation of sexual abuse was more than one (1) year ago or the alleged victim does not currently have contact with the alleged offender;
        2. Of abandonment and the child is in a facility;
        3. Of cuts, welts, bruises, or suffocation if the most recent allegation was more than one (1) year ago and the alleged victim is in the custody of the Department of Human Services; or
        4. In which the alleged victim is in a facility and does not currently have contact with the alleged offender;
      2. The allegation is that a child has been subjected to neglect as defined in § 12-18-103(14)(B); or
      3. A child has died suddenly and unexpectedly.
  2. At the initial time of contact with the alleged offender, the person conducting the investigation shall advise the alleged offender of the allegations made against the alleged offender in a manner that is consistent with the laws protecting the rights of the person who made the report.
  3. The Department of Human Services and the Division of Arkansas State Police shall:
    1. Develop policy and procedures to follow when a child dies suddenly and unexpectedly to use in a child death investigation;
    2. Determine during the Department of Human Services’ and the Division of Arkansas State Police’s investigation whether the child's death was caused by child maltreatment; and
    3. Assess the home to ensure the safety of surviving siblings or children in the home.
  4. Upon initiation of the investigation, the primary focus of the investigation shall be whether or not the alleged offender has access to children and whether or not children are at risk such that children need to be protected.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 11; 2015, No. 1004, § 11; 2015, No. 1026, § 5; 2015, No. 1211, § 4; 2017, No. 250, § 13; 2019, No. 881, § 2.

Amendments. The 2011 amendment substituted “more than one (1) year ago or” for “more than one (1) year ago and” in (b)(2)(A).

The 2015 amendment by No. 1004 redesignated former (a)(1) as (a); and inserted “and the Department of Arkansas State Police” in (a).

The 2015 amendment by No. 1026 inserted designation (b)(2)(A)(i); and added (b)(2)(A)(ii) and (iii).

The 2015 amendment by No. 1211 redesignated former (a)(1) as (a); in (a), inserted “and the Department of Arkansas State Police” and “or notification of a child death”; added (b)(2)(C); inserted present (d); and redesignated former (d) as (e).

The 2017 amendment deleted (b)(2)(C)(ii); and redesignated (b)(2)(C)(i) as (b)(2)(C).

The 2019 amendment inserted “Of” in (b)(2)(A)(i) through (b)(2)(A)(iii); and added (b)(2)(A)(iv).

12-18-603. Accompaniment by law enforcement.

Upon request, law enforcement shall accompany a person conducting an investigation required by this chapter.

History. Acts 2009, No. 749, § 1.

12-18-604. Services during the investigation.

The Department of Human Services may make referrals or provide services during the course of the child maltreatment investigation.

History. Acts 2009, No. 749, § 1; 2013, No. 1090, § 1; 2015, No. 1161, § 2.

A.C.R.C. Notes. The amendments to this section by Acts 2015, No. 1004, § 12, were incorporated into § 12-18-622.

Amendments. The 2013 amendment added (b).

The 2015 amendment removed the (a) designation and substituted “may” for “shall have the authority to”; and deleted (b) (see now § 12-18-622).

12-18-605. Investigative interviews.

  1. An investigation of child maltreatment or suspected child maltreatment under this chapter shall include interviews with:
    1. The child as provided under § 12-18-608;
    2. The parents, both custodial and noncustodial;
    3. If neither parent is the alleged offender, the alleged offender;
    4. Current or past healthcare providers when the allegation of child maltreatment was reported by a healthcare provider; and
    5. Any other relevant persons.
  2. If, after exercising reasonable diligence in conducting any or all interviews, the subjects of the interviews cannot be located or are unable to communicate, the efforts to conduct the interviews shall be documented and the investigation shall proceed under this chapter.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 12; 2015, No. 1123, § 1.

Amendments. The 2013 amendment substituted “§ 12-18-608” for “subsection (b) of this section” in (a)(1).

The 2015 amendment inserted present (a)(4); and redesignated former (a)(4) as (a)(5).

12-18-606. When the alleged offender is a family member, a fictive kin, or lives in the home with the alleged victim.

If the alleged offender is a family member, fictive kin, or lives in the home with the alleged victim, an investigation under this chapter shall seek to ascertain:

  1. The existence, cause, nature, and extent of the child maltreatment;
  2. The existence and extent of previous injuries;
  3. The identity of the person responsible for the child maltreatment;
  4. The names and conditions of other children in the home;
  5. The circumstances of the parents or caretakers of the child;
  6. The environment where the child resides;
  7. The relationship of the child or children with the parents or caretakers; and
  8. All other pertinent data.

History. Acts 2009, No. 749, § 1; 2019, No. 881, § 3.

Amendments. The 2019 amendment inserted “a fictive kin” in the section heading and made a similar change in the introductory language.

12-18-607. When the alleged offender is neither a family member nor a fictive kin and not living in the home with the alleged victim.

If the alleged offender is not a family member living in the home with the alleged victim, the investigation under this chapter shall seek to ascertain:

  1. The existence, cause, nature, and extent of child maltreatment;
  2. The identity of the person responsible for the child maltreatment;
  3. The existence and extent of previous child maltreatment perpetrated by the alleged offender;
  4. If the report is determined to be true, the names and conditions of any children of the alleged offender and whether these children have been maltreated or are at risk of child maltreatment unless the investigating agency has determined that there is no indication of risk to the children;
  5. If the report is determined to be true and is a report of sexual abuse, sexual contact, or sexual exploitation, an assessment of any other children previously or currently under the care of the alleged offender, to the extent practical, and whether these children have been maltreated or are at risk of maltreatment unless the investigating agency has determined that there is no indication of risk to the children; and
  6. All other pertinent and relevant data.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 13; 2015, No. 1026, § 6; 2019, No. 881, § 4.

Amendments. The 2013 amendment deleted “If the report is determined to be true” from the beginning of (4).

The 2015 amendment added “If the report is determined to be true” in (4).

The 2019 amendment substituted “neither a family member nor a fictive kin and” for “not a family member or” in the section heading; deleted “nor” following “family member” in the introductory language; and added “unless the investigating agency has determined that there is no indication of risk to the children” at the end of (4) and (5).

12-18-608. Interview of the alleged child victim, siblings of a child victim, or any other children in the home or under the care of an alleged offender.

  1. A person conducting an interview with a child victim, sibling of a child victim, or any other children in the home or under the care of an alleged offender shall have the discretion:
    1. In the child's best interest, to limit the persons allowed to be present when a child is being interviewed concerning allegations of child maltreatment; and
    2. As it relates to the integrity of the investigation, to limit persons present during an interview.
    1. The interview with the child victim, siblings of a child victim, or any other children in the home or under the care of an alleged offender shall be conducted separate and apart from the alleged offender or any representative or attorney for the alleged offender.
    2. However, if the age or abilities of the child victim render an interview impossible, the investigation shall include observation of the child.
    1. If a person conducting an investigation under this chapter is denied access to a child as permitted under this section, the Department of Human Services or the Department of Arkansas State Police may petition the proper juvenile division of a circuit court for an ex parte order of investigation to limit the persons allowed to be present when the child is being interviewed.
    2. However, upon application to the circuit court and a showing of good cause by a parent, caretaker, or person denying unrestricted access to a child, the circuit court may issue a written order to stay the order of investigation pending a hearing to be held within seventy-two (72) hours.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 14; 2015, No. 1026, § 7.

Amendments. The 2013 amendment inserted “siblings of a child victim, or any other children in the home or under the care of an alleged offender” three times in the section and substituted “interview with” for “investigation of” in (a).

The 2015 amendment added (c).

12-18-609. Right to enter for the purposes of the investigation.

  1. A person conducting an investigation under this chapter shall have the right to enter into or upon a home, school, or any other place for the purpose of conducting the investigation and interviewing or completing the investigation.
    1. A publicly supported school, facility, or institution shall not deny access to any person conducting a child maltreatment investigation under this chapter.
    2. Failure to comply with this section may subject the publicly supported school, facility, or institution to a contempt sanction and reimbursement of attorney's fees.
    1. If necessary access or admission is denied to a person conducting an investigation under this chapter, the Department of Human Services and the Department of Arkansas State Police may petition the proper juvenile division of circuit court for an ex parte order of investigation requiring the parent, caretaker, or persons denying access to any place where the child may be to allow entrance for the interviews, examinations, and investigations.
    2. However, upon application to the court by the parents, caretaker, or persons denying access to the child showing good cause, the court may issue a written order to stay the order of investigation pending a hearing to be held within seventy-two (72) hours.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 13.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (c)(1).

12-18-610. Access to the child's school records.

  1. A person conducting an investigation under this chapter shall be allowed access to the child's public and private school records during the course of the child maltreatment investigation.
  2. Upon request, a public or private school shall provide the child's records free of charge to the person conducting the investigation.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 12.

Amendments. The 2011 amendment added (b).

12-18-611. Inspection of personnel and volunteer records.

A person conducting an investigation required by this chapter shall have the right to inspect personnel records of employees and volunteers in any place where an allegation of child maltreatment has been reported as having occurred at that place but the alleged offender is unknown.

History. Acts 2009, No. 749, § 1.

12-18-612. Criminal background check.

  1. The person conducting an investigation under this chapter shall have the right to obtain a criminal background check, including a fingerprint-based check in any national crime information database, on any subject of the report.
  2. The results of the criminal background check shall not be disclosed outside of the Department of Human Services and the Department of Arkansas State Police except as permitted under this chapter.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 14.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (b).

12-18-613. Access to miscellaneous records.

Upon request by a person conducting an investigation under this chapter, a school, day care center, child care facility, residential facility, residential treatment facility, or similar institution shall provide the person conducting the investigation with:

  1. The name, date of birth, Social Security number, and last known address and phone number of any person identified as an alleged offender if the alleged child maltreatment occurred at that school, center, or facility; and
  2. The name and address of any witness to the alleged child maltreatment if the alleged child maltreatment occurred at that school, center, or facility.

History. Acts 2009, No. 749, § 1.

12-18-614. Submission to a physical exam or other testing.

An investigation under this chapter may include a physical examination, a drug test, radiology procedures, photographs, and a psychological or psychiatric examination of all children subject to the care, custody, or control of the alleged offender.

History. Acts 2009, No. 749, § 1.

12-18-615. Radiology procedures, photographs, electronic media, and medical records.

  1. A person who is required to make a report under this chapter may take or cause to be taken radiology procedures and photographs or compile medical records that may be relevant as to the existence or extent of child maltreatment.
  2. A hospital, clinic, or child safety center, or the Department of Human Services and the Department of Arkansas State Police may make electronic media that may be relevant as to the existence or extent of child maltreatment.
  3. The Department of Human Services and the Department of Arkansas State Police, or law enforcement officials shall be provided at no cost a copy of the results of radiology procedures, electronic media, photographs, or medical records upon request.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 15; 2015, No. 1004, § 15.

Amendments. The 2013 amendment substituted “electronic media” for “videotapes” throughout and substituted “child safety center, or the Department of Human Services” for “or” in (b).

The 2015 amendment inserted “and the Department of Arkansas State Police” in (b) and (c).

12-18-616. Timing.

    1. Except as otherwise provided in this section, an investigative determination shall be made in each investigation under this chapter within forty-five (45) days regardless of whether the investigation is conducted by the Department of Human Services and the Department of Arkansas State Police, or local law enforcement.
    2. However, this procedural requirement shall not be considered as a factor to alter the investigative determination in any judicial or administrative proceeding.
      1. An extension of an additional fifteen (15) days to make an investigative determination is permitted.
      2. The Department of Human Services and the Crimes Against Children Division of the Department of Arkansas State Police shall respectively promulgate rules pertaining to the extension of time to make an investigative determination.
  1. An investigation shall not be transferred to inactive status because an investigator is awaiting documentary evidence.

History. Acts 2009, No. 749, § 1; 2013, No. 426, § 1; 2015, No. 1004, § 16.

Amendments. The 2013 amendment substituted “forty-five (45) days” for “thirty (30) days” in (a)(1); added (a)(3); deleted former (b); and redesignated former (c) as (b).

The 2015 amendment substituted “and the Department of Arkansas State Police” for “the Crimes Against Children Division of the Department of Arkansas State Police” in (a)(1).

12-18-617. Authority to pursue other remedies.

  1. Notwithstanding an investigative determination finding of true but exempted, the Department of Human Services may pursue:
    1. Any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction; and
    2. Medical care or treatment for a child when such care or treatment is necessary to prevent or remedy serious harm to the child or to prevent the withholding of medically indicated treatment from a child with life-threatening conditions.
  2. Except with respect to the withholding of medically indicated treatments from a disabled infant with life-threatening conditions, case-by-case determinations concerning the exercise of authority in this section shall be within the sole discretion of the department.

History. Acts 2009, No. 749, § 1.

12-18-618. Religious bias prohibited.

The Department of Human Services and the Department of Arkansas State Police shall investigate all allegations of child maltreatment without regard to the parent's practice of his or her religious beliefs and shall only consider whether the acts or omissions of the parent constitute child maltreatment under this chapter.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 17.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police”.

12-18-619. Closing investigations.

  1. If at any time before or during an investigation under this chapter it is determined that the alleged offender is not a caretaker of any child and the alleged victim has reached eighteen (18) years of age prior to notification, the child maltreatment investigation shall be closed notwithstanding any criminal investigation.
    1. If at any time before or during the investigation it appears that the alleged offender is identified and is not a caretaker of the victim child, excluding investigations of sexual abuse, the Department of Human Services and the Department of Arkansas State Police shall:
      1. Refer the matter to the appropriate law enforcement agency;
      2. Close their investigation; and
      3. Forward a copy of their findings to the appropriate law enforcement agency for the agency's further use in any criminal investigation.
      1. If the appropriate law enforcement agency subsequently determines that the alleged offender is a caretaker, it shall immediately notify the Department of Human Services and the Department of Arkansas State Police of its determination.
      2. Thereupon the Department of Human Services and the Department of Arkansas State Police shall reopen and continue their investigation in compliance with all other requirements contained in this chapter.
  2. If at any time before or during the investigation the Department of Human Services and the Department of Arkansas State Police are unable to locate or identify the alleged offender because the alleged child maltreatment occurred more than five (5) years ago or in another state, the Department of Human Services and the Department of Arkansas State Police shall consider the report unable to be completed and place the report in inactive status.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 18.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (b)(1).

12-18-620. Release of information on pending investigation.

  1. Information on a pending investigation under this chapter is confidential and may be disclosed only as provided in this chapter.
    1. The Department of Human Services shall not release data that would identify a person who made a report under this chapter unless a court of competent jurisdiction orders release of the information after the court has reviewed in camera the record related to the report and has found it has reason to believe that the reporter knowingly made a false report.
    2. However, upon request, the information shall be disclosed to the prosecuting attorney or law enforcement.
    1. Any person or agency to whom disclosure is made shall not disclose to any other person any information obtained pursuant to this section.
    2. However, the person or agency is permitted to consult his or her or its own attorney regarding the information in any notice provided by the department.
  2. The department may provide information, including protected health information, to a person or agency that provides services such as medical examination of, an assessment interview with, or diagnosis of, care for, treatment of, or supervision of a victim of child maltreatment, a juvenile offender, or an underaged juvenile offender.
  3. Information on a pending investigation, including protected health information, shall be released upon request to:
    1. The department, excluding pending investigations on an employee or spouse of the Division of Children and Family Services;
    2. Law enforcement;
    3. The prosecuting attorney;
    4. The responsible multidisciplinary team;
    5. The attorney ad litem of the alleged victim or offender;
    6. A court-appointed special advocate volunteer for the alleged victim or offender;
    7. Any licensing or registering authority to the extent necessary to carry out its official responsibilities;
    8. Any department division director or facility director receiving notice of a Child Abuse Hotline report pursuant to this chapter;
    9. Any facility director receiving notice of a Child Abuse Hotline report pursuant to this chapter;
    10. Any family advocacy program or other person designated by the military authority for the military installation receiving notice of a Child Abuse Hotline report under § 12-18-508;
      1. Federal, state, and local government entities, or any agent of such entities, that have a need for such information to carry out their responsibilities under law to protect children from child maltreatment.
      2. Acting in their official capacities under law to protect children, disclosure may be made to individual United States and Arkansas senators and representatives and their authorized staff members, but only if they agree not to permit any redisclosure of the information except for a legitimate state purpose to protect children from child maltreatment.
      3. However, disclosure shall not be made to any committee or legislative body;
    11. The attorney ad litem and court-appointed special advocate of a juvenile who has an open dependency-neglect case, if the alleged offender or the minor victim resides in the home or in the proposed placement location for the juvenile that is not a licensed foster home, adoptive home, shelter, or facility; and
    12. A Child Welfare Ombudsman.
  4. Information on a pending investigation, including protected health information, may be released to or disclosed in a circuit court child custody case or similar case if:
    1. No seventy-two-hour hold has been exercised under this chapter or pleadings filed pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.;
    2. Written notice of intent to request release or disclosure is provided to the investigating agency at least five (5) days before the date for release or disclosure;
    3. The investigating agency has the opportunity to appear before the court and be heard on the issue of release or disclosure;
    4. The information gathered by the investigative agency is necessary for the determination of an issue before the court;
    5. Waiting until completion of the investigation will jeopardize the health or safety of the child in the custody case;
    6. A protective order is issued to prevent redisclosure of the information provided by the investigating agency or the information is released or disclosed only to the court in camera; and
    7. Release or disclosure of the information will not compromise a criminal investigation.
  5. Information on a pending investigation, including protected health information, may be released to or disclosed in the circuit court if the victim or alleged offender has an open dependency-neglect or family in need of services case before the circuit court.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 13; 2015, No. 1026, § 8; 2017, No. 250, § 14; 2017, No. 528, § 2; 2017, No. 713, § 5; 2017, No. 803, § 2; 2019, No. 590, § 1; 2019, No. 945, § 6.

A.C.R.C. Notes. Acts 2019, No. 945, § 1, provided: “Legislative intent. It is the intent of the General Assembly to create a Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission to provide for independent oversight of the child welfare system in Arkansas”.

Amendments. The 2011 amendment substituted “responsible” for “appropriate” in (e)(4).

The 2015 amendment added “excluding . . . Department of Human Services” in (e)(1).

The 2017 amendment by No. 250, in (d), inserted “child” preceding “maltreatment” and substituted “offender” for “aggressor” at the end.

The 2017 amendment by No. 528 inserted (e)(10); and redesignated former (e)(10) as (e)(11).

The 2017 amendment by No. 713 redesignated (e)(10)(A) as (e)(10)(A)(i) [now (e)(11)(A)(i)]; and added (e)(10)(A)(ii) [now (e)(11)(A)(ii)].

The 2017 amendment by No. 803 added (e)(11) [now (e)(12)].

The 2019 amendment by No. 590 rewrote (e)(11).

The 2019 amendment by No. 945 added (e)(13).

Cross References. Arkansas Juvenile Code of 1989, § 9-27-301 et seq.

12-18-621. Right to obtain records during course of the investigation.

  1. Upon a request by a person conducting an investigation under this chapter, the keeper of the record shall provide the person conducting the investigation with the following:
    1. Records showing the nature and extent of the child's present and past injuries;
    2. Records showing previous injuries or child maltreatment of the child or his or her siblings;
    3. School records, as described under § 12-18-610;
    4. Personnel and volunteer records, as described under § 12-18-611; and
    5. Results of radiological procedures, photographs, or medical records, as described under § 12-18-615.
    1. If a person conducting an investigation under this chapter is denied records authorized to be released under subsection (a) of this section, the Department of Human Services and the Department of Arkansas State Police may petition the proper juvenile division of circuit court for an ex parte order of investigation to obtain the records.
    2. However, upon application to the circuit court and a showing of good cause by the keeper of the record, the circuit court may issue a written order to stay the order to tender records pending a hearing to be held within seventy-two (72) hours.

History. Acts 2015, No. 1026, § 9.

12-18-622. Access to the controlled substance database.

  1. The Department of Human Services and the Department of Arkansas State Police may petition a circuit court to allow an investigator to access the controlled substance database under the Prescription Drug Monitoring Program Act, § 20-7-601 et seq., for a record concerning a person.
  2. The circuit court may grant a petition under this section if the Department of Human Services and the Department of Arkansas State Police demonstrate probable cause that:
    1. The person was or is in possession of one (1) or more prescription drugs;
    2. The person gave birth to a baby; and
    3. The person or the baby tested positive for one (1) or more prescription drugs at the time of the birth of the baby.

History. Acts 2015, No. 1161, § 3; 2015, No. 1004, § 12.

Amendments. The 2015 amendment by No. 1004 inserted “and the Department of Arkansas State Police” twice.

12-18-623. [Repealed.]

Publisher's Notes. This section, concerning no merit investigations, was repealed by Acts 2019, No. 802, § 4, effective July 24, 2019. The section was derived from Acts 2015, No. 1212, § 1; 2017, No. 250, § 15.

Subchapter 7 — Investigative Findings

Effective Dates. Acts 2019, No. 945, § 11: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that some juveniles in Arkansas may be unaware of their rights under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that some individuals and entities that are responsible for the welfare of a juvenile may be unaware of the rights of the juvenile under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that the creation of the Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission will help increase awareness of a juvenile's legal rights; that independent oversight of the child welfare system in Arkansas is more than likely to result in recommendations that will further improve the procedures and operations of the child welfare system; and that this act is necessary for the preservation of the public peace, health, and safety. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-18-701. Generally.

  1. The agency responsible for an investigation under this chapter shall make a complete written report at the conclusion of the investigation.
  2. The report of the investigation shall include the following information:
    1. The names and addresses of the child and his or her legal parents and other caretakers of the child, if known;
    2. The child's age, sex, and race;
    3. The nature and extent of the child's present and past injuries;
    4. The investigative determination;
    5. The nature and extent of the child maltreatment, including any evidence of previous injuries or child maltreatment to the child or his or her siblings;
    6. The name and address of the person responsible for the injuries or child maltreatment, if known;
    7. Services offered and accepted;
    8. Family composition;
    9. The source of the notification; and
    10. The person making the notification, his or her occupation, and where he or she can be reached.
  3. The agency responsible for the investigation shall immediately provide the Department of Human Services at no cost a copy of the written report and any information gathered during the course of the investigation, including statements from witnesses and transcripts of interviews.
  4. All information gathered during the course of the investigation shall be contained in the file of the department whether or not the information supports the investigative determination.
    1. The department shall not release data that would identify the person who made the report unless a court of competent jurisdiction orders release of the information after the court has reviewed in camera the record related to the report and has found it has reason to believe that the reporter knowingly made a false report.
    2. However, the information shall be disclosed to the prosecuting attorney or law enforcement officers on request.
  5. The report, exclusive of information identifying the person making the notification, shall be admissible in evidence in any proceeding related to child maltreatment.
  6. Notwithstanding any provision of the Arkansas Rules of Evidence, any privilege between a minister and any person confessing to or being counseled by the minister shall not constitute grounds for excluding evidence at any dependency-neglect proceeding or proceedings involving custody of a child.

History. Acts 2009, No. 749, § 1; 2015, No. 1026, § 10.

Amendments. The 2015 amendment substituted “at the conclusion of the investigation” for “of the investigation by the conclusion of a period of thirty (30) days” in (a).

Case Notes

Admission Error, But No Prejudice.

Although admission of portions of an investigator's report to the prosecutor were hearsay and were admitted in error, the child's grandmother failed to show prejudice because the trial court's ruling showed that it relied on the child's statements in a recorded interview in determining that she was dependent neglected on the basis of sexual abuse. The DVD of the interview was entered into evidence independently and constituted sufficient evidence to support the dependency neglect adjudication without any reference to the prosecuting attorney's report. Berthelot v. Ark. Dep't of Human Servs., 2012 Ark. App. 249, 413 S.W.3d 536 (2012).

12-18-702. Investigative determination.

  1. Upon completion of an investigation under this chapter, the Department of Human Services and the Division of Arkansas State Police shall determine whether the allegations of child maltreatment are:
      1. Unsubstantiated.
      2. An unsubstantiated determination shall be entered when the allegation is not supported by a preponderance of the evidence;
      1. True.
      2. A true determination shall be entered when the allegation is supported by a preponderance of the evidence;
      1. True but exempted.
      2. A determination of true but exempted is a true determination where the offender's name shall not be placed in the Child Maltreatment Central Registry, shall be entered if:
        1. A parent practicing his or her religious beliefs does not, for that reason alone, provide medical treatment for a child, but in lieu of treatment the child is being furnished with treatment by spiritual means alone, through prayer, in accordance with a recognized religious method of healing by an accredited practitioner;
        2. The offender is an underaged juvenile offender;
        3. The report was true for neglect as defined under § 12-18-103(14)(B); or
        4. The offender is a juvenile less than fourteen (14) years of age at the time of the offense; or
      1. Inactive.
      2. If the investigation cannot be completed, the investigation shall be determined incomplete and placed in inactive status.
  2. An investigation of a report of child maltreatment that is closed under § 12-18-601 shall be documented as administratively closed without a determination of whether the allegation is unsubstantiated, true, true but exempt, or inactive.
    1. If the Department of Human Services or the Division of Arkansas State Police determines that a report of child maltreatment is true, the Department of Human Services shall determine whether the offender may pose a risk of maltreatment to a vulnerable population, including without limitation children, the elderly, persons with a disability, and persons with a mental health illness.
      1. The Department of Human Services shall establish procedures to determine the risk level of the offender and any vulnerable population to which the offender may pose a risk of maltreatment.
      2. The procedures of the Department of Human Services shall require the following factors to be considered in the determination of whether an offender may pose a risk of maltreatment to a vulnerable population:
        1. The severity of the child maltreatment;
        2. The nature and severity of an injury or other adverse impact caused by the child maltreatment;
        3. The access the offender has to a vulnerable population;
        4. Any previous substantiated child maltreatment findings against the offender;
        5. A subsequent report of child maltreatment alleged against the offender; and
        6. The criminal history of the offender.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 14; 2013, No. 1006, § 16; 2015, No. 1004, § 19; 2019, No. 802, § 5.

A.C.R.C. Notes. Acts 2019, No. 802, § 1, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) All members of society desire the safety of all children;

“(2) A child raised under constant adult supervision may miss opportunities for growth that will negatively impact his or her mental and physical development;

“(3) The alarming rise of childhood obesity and diabetes is almost certainly linked to an increase in the sedentary lifestyle and lack of physical activity for children today, which is often encouraged by parents and guardians, including without limitation by insisting on driving their children to school;

“(4) As measured by incidences of mental health difficulties, the over-supervised youth of today experience more difficulties when they reach adulthood than earlier generations;

“(5) Earlier generations learned resilience by walking, bicycling, playing, helping, and solving problems without constant adult intervention;

“(6) Parents and guardians are often in the best position to weigh the risk and make decisions concerning the safety of children under their care, including without limitation where their child may go, with whom, and when; and

“(7) Parents and guardians who have done nothing more than briefly and safely permitted their children to remain unsupervised should not be subject to investigation and possible prosecution as it causes unnecessary governmental intrusion and diversion of valuable public resources.

“(b) It is the intent of the General Assembly that this act:

“(1) Protect and promote the inherent right of a parent or guardian to raise his or her children;

“(2) Protect the decision of a parent or a guardian to grant his or her children unsupervised time to engage in activities that include without limitation playing outside, walking to school, bicycling, remaining briefly in a vehicle, and remaining at home; and

“(3) Ensure that valuable public resources are used most effectively to protect children by providing a secondary review to ensure that:

“(A) Calls to the Child Abuse Hotline are properly accepted;

“(B) Child maltreatment investigations are closed when the results of the investigation indicate that the allegations lack merit; and

“(C) Only the names of offenders who pose a risk to a vulnerable population are placed on the Child Maltreatment Central Registry.”

Amendments. The 2011 amendment substituted “offender” for “aggressor” in (2)(C)(ii); and added (2)(C)(iv).

The 2013 amendment rewrote (2)(C)(iv).

The 2015 amendment inserted “and the Department of Arkansas State Police” in the introductory language.

The 2019 amendment added (b) and (c) and designated the former section as (a); added (a)(3)(A); redesignated former (a)(2)(C) as (a)(3)(B); substituted “is a true determination where” for “which means that” in (a)(3)(B); inserted “at the time of the offense” in (a)(3)(B)(iv); and redesignated former (a)(3)(A) and (a)(3)(B) as (a)(4)(A) and (a)(4)(B).

12-18-703. Notice generally.

  1. The Department of Human Services and the Department of Arkansas State Police shall notify each alleged offender of the child maltreatment investigative determination whether true or unsubstantiated.
    1. In every case in which a report is determined to be true, the Department of Human Services and the Department of Arkansas State Police shall notify the alleged offender of the investigative determination by certified mail, restricted delivery, or by process server as permitted under Rule 4 of the Arkansas Rules of Civil Procedure.
    2. Failure of service under subdivision (b)(1) of this section is not deemed failure of notice if the alleged offender has actual notice.
    1. The notice of the investigative determination shall include a statement that the request for an administrative hearing shall be made within thirty (30) days of the receipt of notice under subsection (b) of this section.
    2. An alleged offender is not entitled to an automatic administrative hearing if:
      1. The allegations are determined to be true; and
      2. The alleged offender's name is exempt from placement in the Child Maltreatment Central Registry.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 15; 2013, No. 1006, § 17; 2015, No. 1004, § 20; 2015, No. 1097, § 1.

Amendments. The 2011 amendment added (b)(2).

The 2013 amendment added (c).

The 2015 amendment by No. 1004 inserted “and the Department of Arkansas State Police” in (a).

The 2015 amendment by No. 1097 substituted “or by process server as permitted under Rule 4 of the Arkansas Rules of Civil Procedure” for “or process server” in (b)(1).

Case Notes

Failure to Preserve.

Although appellant did not receive timely notice of the true finding of abuse and an opportunity to be heard before his name was placed on the Child Maltreatment Central Registry, appellant's due process argument was not preserved for appeal as he failed to raise it before the ALJ or the circuit court. Smith v. Ark. Dep't of Human Servs., 2018 Ark. App. 438, 559 S.W.3d 291 (2018).

12-18-704. Notice if the investigative determination is true but exempted and the alleged offender is a child.

If the investigative determination of the report was determined true but exempted under § 12-18-702(2)(C)(ii) and the alleged offender is a child at the time the act or omission occurred, the Department of Human Services and the Department of Arkansas State Police shall notify the legal parents and legal guardians of the investigative determination and that the child's name shall not be placed in the Child Maltreatment Central Registry, and the alleged offender may petition for an administrative hearing.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 15; 2013, No. 1006, § 18; 2015, No. 1004, § 21.

Amendments. The 2011 amendment inserted “investigative determination of the” and “but exempted under § 12-18-702(2)(C)(ii) or § 12-18-702(2)(C)(iv)” and deleted “under ten (10) years of age” following “is a child”.

The 2013 amendment deleted “or § 12-18-702(2)(C)(iv)” following “§ 12-18-702(2)(C)(ii)” and added “and the alleged offender may petition for an administrative hearing” to the end.

The 2015 amendment inserted “and the Department of Arkansas State Police”.

12-18-705. Notice if the alleged offender is at least fourteen years of age and less than eighteen years of age.

  1. If the report was determined true and the alleged offender is at least fourteen (14) years of age and less than eighteen (18) years of age at the time the act or omission occurred, a notice shall be given as provided in this section.
  2. The notice under this section shall be provided as follows:
    1. If the alleged offender is in foster care, the Department of Human Services and the Department of Arkansas State Police shall notify the alleged offender's counsel and the legal parents, legal guardians, and current foster parents of the alleged offender; or
    2. If the alleged offender is not in foster care, the Department of Human Services and the Department of Arkansas State Police shall notify the legal parents and legal guardians of the alleged offender.
  3. The notice under this section shall include the following:
    1. The investigative determination, excluding data that would identify the person who made the report to the Child Abuse Hotline;
    2. A statement that the matter has been referred for an automatic administrative hearing that may be waived only by the alleged offender or his or her parent or legal guardian in writing;
    3. The potential consequences to the alleged offender if the alleged offender's name is placed in the Child Maltreatment Central Registry;
    4. A statement that the alleged offender has a right to have an attorney and if the person cannot afford an attorney to contact the Center for Arkansas Legal Services;
    5. A statement that if the alleged offender's name is placed on the registry, the alleged offender's name may be automatically removed after one (1) year or the alleged offender may be able to petition for removal after one (1) year, depending on the finding;
    6. A statement that the administrative hearing may take place in person if requested by the alleged offender, the alleged offender's parent or guardian, or the alleged offender's attorney within thirty (30) days from the date that the alleged offender receives notification under this section; and
    7. The name of the person making the notification, his or her title or position, and current contact information.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 15; 2013, No. 1006, § 19; 2015, No. 1004, § 22.

Amendments. The 2011 amendment substituted “under eighteen (18) years of age” for “a child ten (10) years of age or older” in (a); substituted “alleged offender” for “child” or variant throughout (b)(1) and (b)(2); substituted “alleged offender” for “juvenile offender” or “alleged juvenile offender” or variant throughout (c)(2), (c)(3), and (c)(6); substituted “alleged offender” for “person” or variant throughout (c)(4) and c)(5); and deleted “to the alleged juvenile offender” following “notification” in (b)(7).

The 2013 amendment substituted “at least fourteen years of age and less than eighteen” for “under eighteen” in the section heading and (a).

The 2015 amendment inserted “and the Department of Arkansas State Police” in (b)(1).

12-18-706. Notice if the alleged offender is eighteen years of age or older.

Notification to an alleged offender who was eighteen (18) years of age or older at the time of the act or omission that resulted in a true finding of child maltreatment shall include the following:

  1. The investigative determination, excluding data that would identify the person who made the report to the Child Abuse Hotline;
  2. A statement that the person named as the alleged offender of the true report may request an administrative hearing;
  3. A statement that the request must be made to the Department of Human Services within thirty (30) days of receipt of the service or certified mailing of the notice of determination;
  4. The potential consequences to the person if the person's name is placed on the Child Maltreatment Central Registry;
  5. A statement that the person has a right to have an attorney and that if the person cannot afford an attorney to contact the Center for Arkansas Legal Services;
  6. A statement that if the person's name is placed on the registry, the person's name may be automatically removed after one (1) year or the person may be able to petition for removal after one (1) year, depending on the finding;
  7. The name of the person making the notification to the alleged offender, his or her title or position, and current contact information; and
  8. A statement that the administrative hearing may take place in person if requested by the alleged offender or the alleged offender's attorney within thirty (30) days from the date that the alleged offender receives notification under this section.

History. Acts 2009, No. 749, § 1; 2011, No. 779, § 19.

Amendments. The 2011 amendment deleted “juvenile” preceding “offender” in (7).

12-18-707. Notice when the alleged offender works with children, the elderly, an individual with a disability, or an individual with a mental illness, is engaged in child-related activities, or is a juvenile.

  1. If the child maltreatment investigative determination names as an alleged offender a person who is engaged in child-related activities or employment, works with the elderly, an individual with a disability, or an individual with a mental illness, or is a juvenile and the Department of Human Services or the Department of Arkansas State Police has determined that children, the elderly, or individuals with a disability or mental illness under the care of the alleged offender appear to be at risk of maltreatment by the alleged offender, the Department of Human Services or the Department of Arkansas State Police may notify the following of the investigative determination:
    1. An alleged offender's employer;
    2. A school superintendent, principal, or a person in an equivalent position where the alleged offender is employed;
    3. A person in charge of a paid or volunteer activity; and
    4. Any licensing or registering authority to the extent necessary to carry out its official responsibilities.
  2. The Department of Human Services and the Department of Arkansas State Police shall promulgate rules that will ensure that notification required under this section is specifically approved by a responsible manager in the Department of Human Services or the Department of Arkansas State Police before the notification is made.
  3. If the Department of Human Services and the Department of Arkansas State Police later determine that there is no preponderance of the evidence indicating that children under the care of the alleged offender appear to be at risk, the Department of Human Services and the Department of Arkansas State Police shall immediately notify the previously notified person or entity of that information.
    1. If the child maltreatment investigation names as an alleged offender a juvenile who is in a setting or circumstance where other children appear to be at risk, the Department of Human Services and the Department of Arkansas State Police may notify the entity or person in charge about the investigative determination.
    2. The Department of Human Services and the Department of Arkansas State Police shall promulgate rules to ensure that the notification required under this section is specifically approved by a responsible manager in the Department of Human Services or the Department of Arkansas State Police before notification is made.
    3. If the Department of Human Services and the Department of Arkansas State Police later determine that there is no preponderance of the evidence indicating that other children are at risk or if the investigative determination is overturned, the Department of Human Services and the Department of Arkansas State Police shall immediately notify the entity or person originally notified under subdivision (d)(1) of this section of that information.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 20; 2015, No. 1026, § 11.

Amendments. The 2013 amendment rewrote the section heading and introductory language in (a) and added (d).

The 2015 amendment, in the introductory language of (a), inserted “or the Department of Arkansas State Police” twice and substituted the second occurrence of “Department of Human Services” for “department”.

12-18-708. Miscellaneous notice requirements.

  1. The Department of Human Services and the Department of Arkansas State Police shall confirm an investigative determination upon request from the following:
    1. The responsible multidisciplinary team;
    2. The juvenile division of circuit court if the victim or offender has an open dependency-neglect or family in need of services case;
    3. The attorney ad litem for any child who is named as the victim or offender;
    4. The Court Appointed Special Advocates volunteer for any child named as the alleged victim or offender;
    5. Any licensing or registering authority to the extent necessary to carry out its official responsibilities;
    6. Any Department of Human Services and Department of Arkansas State Police division director or facility director receiving notice of a Child Abuse Hotline report under this chapter;
    7. Any facility director receiving notice of a Child Abuse Hotline report under this chapter;
    8. The attorney ad litem and Court Appointed Special Advocates volunteer for all other children in the same foster home if the child maltreatment occurred in a foster home; and
    9. The attorney ad litem and Court Appointed Special Advocates volunteer for any child in foster care when the alleged juvenile offender or underaged juvenile offender is placed in the same placement as the attorney ad litem or Court Appointed Special Advocates volunteer's client.
  2. If the investigative determination is true, notification of the investigative determination shall be provided to the school where the victim child is enrolled. However, the name of the alleged offender shall not be identified.
  3. The Department of Human Services and the Department of Arkansas State Police may notify the persons or entities listed in subsection (a) of this section of the investigative determination, if the Department of Human Services and the Department of Arkansas State Police determine the notification is necessary to ensure the health or safety of the child.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 16; 2015, No. 1004, § 23.

Amendments. The 2011 amendment, in the introductory language of (a), substituted “The Department of Human Services shall confirm” for “Notification of” and “upon request from the following” for “shall be provided to”; substituted “responsible” for “appropriate” in (a)(1); substituted “juvenile division of circuit court” for “circuit court judge” in (a)(2); rewrote (c)(8) and (c)(9); deleted former (b) and redesignated the following subsection accordingly; and added (c).

The 2015 amendment inserted “and the Department of Arkansas State Police” in the introductory language of (a).

12-18-709. Confidentiality.

  1. Notice of an investigative determination under this chapter is confidential and may be disclosed only as provided in this chapter.
    1. The Department of Human Services and the Division of Arkansas State Police shall not release data that would identify the person who made the report unless a court of competent jurisdiction orders release of the information after the court has reviewed in camera the record related to the report and has found it has reason to believe that the reporter knowingly made a false report.
    2. However, upon request, the information shall be disclosed to the prosecuting attorney or law enforcement.
    1. Any person or agency to whom disclosure is made shall not disclose to any other person a report or other information obtained pursuant to this section.
    2. However, the person or agency is permitted to consult his or her or its own attorney regarding the information in any notice provided by the Department of Human Services and the Division of Arkansas State Police.
    1. Notification of the investigative determination of severe maltreatment shall be provided to the appropriate law enforcement agency and the prosecuting attorney.
    2. The prosecuting attorney and law enforcement may provide written notice to the Department of Human Services and the Division of Arkansas State Police that the Department of Human Services and the Division of Arkansas State Police do not need to provide notice of investigative determinations.
    3. Upon receiving the notification, the Department of Human Services and the Division of Arkansas State Police shall not be required to provide notification of the investigative determination.
  2. The Department of Human Services and the Division of Arkansas State Police shall notify each subject of the report of the investigative determination whether true or unsubstantiated.
  3. The Department of Human Services and the Division of Arkansas State Police shall notify the alleged offender's legal parents, legal guardians, and foster parents of the investigative determination if the:
    1. Investigative determination is unsubstantiated; and
    2. Alleged offender is:
      1. Under eighteen (18) years of age; and
      2. In foster care.
  4. The Department of Human Services and the Division of Arkansas State Police shall notify any family advocacy program or other person or entity designated by the military authority for the military installation to which notice must be given of child maltreatment investigations under § 12-18-508 of the investigation determination whether true or unsubstantiated.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 17; 2015, No. 1004, § 24; 2017, No. 528, § 3.

Amendments. The 2011 amendment added (f).

The 2015 amendment inserted “and the Department of Arkansas State Police” in (b)(1).

The 2017 amendment added (g).

12-18-710. Release of information on true investigative determination pending due process.

  1. Information on a completed true investigation pending due process as referenced in this chapter is confidential and may be disclosed only as provided in this chapter.
    1. The Department of Human Services shall not release data that would identify the person who made the report unless a court of competent jurisdiction orders release of the information after the court has reviewed in camera the record related to the report and has found it has reason to believe that the reporter knowingly made a false report.
    2. However, upon request, the information shall be disclosed to the prosecuting attorney or law enforcement.
    1. Any person or agency to whom disclosure is made shall not disclose to any other person any information obtained pursuant to this section.
    2. However, the person or agency is permitted to consult his or her or its own attorney regarding the information in any notice provided by the department.
  2. The department may provide information, including protected health information, to a person or agency that provides services such as medical examination of, an assessment interview with, or diagnosis of, care for, treatment of, or supervision of a victim of maltreatment, a juvenile offender, or an underaged juvenile offender.
  3. Information on a completed investigation, including protected health information, pending due process shall be released upon request to:
    1. The alleged offender;
    2. The department, excluding pending investigations on an employee or spouse of the Division of Children and Family Services;
    3. Law enforcement;
    4. The prosecuting attorney;
    5. The responsible multidisciplinary team;
    6. The attorney ad litem for the victim or offender;
    7. A court-appointed special advocate volunteer for the victim or offender;
    8. Any licensing or registering authority to the extent necessary to carry out its official responsibilities;
    9. Any department division director or facility director receiving notice of a Child Abuse Hotline report under this chapter;
    10. Any facility director receiving notice of a Child Abuse Hotline report under this chapter;
    11. Any family advocacy program or other person designated by the military authority for the military installation receiving notice of a Child Abuse Hotline report under § 12-18-508;
      1. Federal, state, and local government entities, or any agent of such entities, that have a need for such information to carry out their responsibilities under law to protect children from child maltreatment.
      2. Acting in their official capacities under law to protect children, disclosure may be made to individual United States and Arkansas senators and representatives and their authorized staff members, but only if they agree not to permit any redisclosure of the information except for a legitimate state purpose to protect children from child maltreatment.
      3. However, disclosure shall not be made to any committee or legislative body;
    12. The attorney ad litem and court-appointed special advocate of a juvenile who has an open dependency-neglect case, if the alleged offender or the minor victim resides in the home or in the proposed placement location for the juvenile that is not a licensed foster home, adoptive home, shelter, or facility; and
    13. A Child Welfare Ombudsman.
  4. Information on a true investigative determination, including protected health information, may be released to or disclosed in a circuit court child custody case or similar case if:
    1. No seventy-two-hour hold has been exercised under this chapter or pleadings filed pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.;
    2. Written notice of intent to request release or disclosure is provided to the investigating agency at least five (5) days before the date for release or disclosure;
    3. The investigating agency has the opportunity to appear before the court and be heard on the issue of release or disclosure;
    4. The information gathered by the investigative agency is necessary for the determination of an issue before the court;
    5. Waiting until completion of due process will jeopardize the health or safety of the child in the custody case;
    6. A protective order is issued to prevent redisclosure of the information provided by the investigating agency or the information is released or disclosed only to the court in camera; and
    7. Release or disclosure of the information will not compromise a criminal investigation.
  5. Information on a true investigative determination, including protected health information, may be released to or disclosed in the circuit court if the victim or offender has an open dependency-neglect or family in need of services case before the circuit court.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 18; 2015, No. 1026, § 12; 2017, No. 528, § 4; 2017, No. 713, § 6; 2017, No. 803, § 3; 2019, No. 590, § 2; 2019, No. 945, § 7

A.C.R.C. Notes. Acts 2019, No. 945, § 1, provided: “Legislative intent. It is the intent of the General Assembly to create a Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission to provide for independent oversight of the child welfare system in Arkansas”.

Amendments. The 2011 amendment substituted “underaged juvenile offender” for “underaged juvenile aggressor” in (d); and substituted “responsible” for “appropriate” in (e)(5).

The 2015 amendment substituted “Department of Human Services, excluding pending investigations on an employee or spouse of the Division of Children and Family Services of the Department of Human Services” for “department” in (e)(2).

The 2017 amendment by No. 528 inserted (e)(11); and redesignated former (e)(11) as (e)(12).

The 2017 amendment by No. 713 redesignated (e)(11)(A) as (e)(11)(A)(i) [now (e)(12)(A)(i)]; added (e)(11)(A)(ii) [now (e)(12)(A)(ii)]; and made a stylistic change.

The 2017 amendment by No. 803 added (e)(12) [now (e)(13)].

The 2019 amendment by No. 590 redesignated (e)(12)(A)(i) and (e)(12)(B) as (e)(12)(B) and (e)(12)(C); added (e)(12)(A); deleted (e)(12)(A)(ii); and, in (e)(12)(B), inserted “under law to protect children, disclosure may be made to” and added “except for a legitimate state purpose to protect children from child maltreatment”.

The 2019 amendment by No. 945 added (e)(14).

Cross References. Arkansas Juvenile Code of 1989, § 9-27-301 et seq.

12-18-711. Fee for copying investigative file.

  1. Except as provided under subsection (b) of this section, the Department of Human Services may charge:
    1. A reasonable fee not to exceed ten dollars ($10.00) for researching, copying, or mailing records from a child maltreatment investigative file under this chapter; and
    2. A reasonable fee for reproducing copies of electronic media, such as audio tapes, video recordings, compact discs, or DVDs, and photographs.
  2. A fee shall not be charged to:
    1. A nonprofit or volunteer agency that requests searches of the investigative files; or
    2. A person who is indigent.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 21.

Amendments. The 2013 amendment substituted “or mailing records from a child maltreatment investigative file” for “and mailing records of an investigative file” in (a)(1); and substituted “electronic media, such as audio tapes, video recordings, compact discs, or DVDs and photographs” for “tapes and photographs” in (a)(2).

12-18-712. Mental health services for alleged sex offenders under eighteen years of age and the victim.

  1. If an investigative determination of a report under this chapter was determined true and the alleged sex offender is a child under eighteen (18) years of age at the time the act or omission occurred, the alleged sex offender and the victim shall be referred for mental health services, including a mental health evaluation and treatment if determined necessary by a mental health professional.
  2. The Department of Human Services and the Department of Arkansas State Police shall:
    1. Provide the parents or legal guardians of the alleged sex offender and the victim with a list of the mental health professionals or agencies available to evaluate and treat the alleged sex offender and the victim, if necessary; and
    2. Assist the parents or legal guardians of the alleged sex offender and the victim with a referral for a mental health evaluation, if necessary.

History. Acts 2013, No. 1200, § 1; 2015, No. 1004, § 25.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (b).

12-18-713. Reports on overturned true determinations.

    1. The Department of Human Services and the Division of Arkansas State Police shall submit two (2) reports annually on true determinations made under this chapter that are administratively or judicially overturned to the Senate Interim Committee on Children and Youth and the House Committee on Aging, Children and Youth, Legislative and Military Affairs.
    2. The first report shall be submitted on June 1 and the second report shall be submitted on December 1.
  1. A report submitted under subsection (a) of this section shall include:
    1. Data on overturned true determinations by county; and
    2. Any other information requested by the Senate Interim Committee on Children and Youth and the House Committee on Aging, Children and Youth, Legislative and Military Affairs.

History. Acts 2017, No. 1025, § 1.

Subchapter 8 — Administrative Hearings

12-18-801. Time to complete administrative hearing.

      1. The administrative hearing under this chapter shall begin within one hundred eighty (180) days from the date of the receipt of the request for a hearing.
      2. However, delays in completing the administrative hearing that are attributable to either party shall not count against the limit of one hundred eighty (180) days if the administrative law judge determines that good cause for the delay is shown by the party requesting the delay and the request for delay is made in writing and delivered to the Office of Appeals and Hearings of the Department of Human Services and all other parties.
      1. The Department of Human Services shall report any failures to comply with this subsection for each quarter to the House Committee on Aging, Children and Youth, Legislative and Military Affairs and the Senate Interim Committee on Children and Youth.
      2. The quarterly report to the House Committee on Aging, Children and Youth, Legislative and Military Affairs and the Senate Interim Committee on Children and Youth shall include a written explanation of the failure of the Department of Human Services.
    1. The limit of one hundred eighty (180) days for an administrative hearing under this chapter shall not apply if upon request of any party a stay is granted as permitted under this section.
    2. The administrative law judge may stay the case upon a showing by any party that there is an ongoing criminal or delinquency investigation regarding the occurrence that is the subject of the child maltreatment report.
      1. If a criminal or delinquency proceeding is filed regarding the occurrence that is the subject of the child maltreatment report and a request for a stay is accompanied by the written notification of the date the criminal or delinquency proceeding was filed by a party, the administrative hearing shall be stayed for a period of not more than one (1) year from the date the criminal or delinquency proceeding is filed.
      2. The stay shall be lifted and the case set for a hearing upon the earlier of:
        1. A petition and showing by any party that there is good cause to conduct the administrative hearing before the conclusion of the criminal or delinquency proceeding;
        2. The final disposition of the criminal or delinquency proceeding; or
        3. The expiration of one (1) year from the date the criminal or delinquency proceeding was filed.
      3. A stay granted under this section may be extended after the one-year expiration upon a written notice from the requesting party that the criminal or delinquency investigation or proceeding is still ongoing.
        1. It is the duty of the petitioner to report the final disposition of the criminal or delinquency proceeding to the office for a stay granted under this subdivision (b)(3).
        2. The case shall be dismissed and the petitioner's name placed on the Child Maltreatment Central Registry if the petitioner fails to provide a file-marked copy of the final disposition of the criminal or delinquency proceeding within thirty (30) days of the entry of the final disposition.
    3. The administrative law judge shall stay the case upon a request by the Department of Human Services or the Department of Arkansas State Police when there is an ongoing criminal or delinquency investigation or pending criminal charges regarding the occurrence that is the subject of the child maltreatment report.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 19; 2013, No. 1006, § 22; 2015, No. 1026, § 13.

Amendments. The 2011 amendment, in (a)(1)(B), substituted “either party” for “the petitioner” and added “if the administrative law judge ... and all other parties”.

The 2013 amendment rewrote the section.

The 2105 amendment added (b)(4).

Case Notes

Dismissal Proper.

Office of Appeals and Hearings properly dismissed petitioner's administrative appeal of the decision to place his name on the Child Maltreatment Central Registry because he failed to provide a file-marked copy of the final disposition of his criminal proceeding within 30 days of entry, as required by this section, despite the ALJ's letter specifically informing petitioner's counsel of the statutory requirement; there is no “good faith” exception for failure to comply with the statutory requirement. Ark. Dep't of Human Servs. v. Salcido, 2018 Ark. App. 559, 567 S.W.3d 510 (2018).

Hearing Timely.

Petitioner was properly placed on the Arkansas Child Maltreatment Central Registry; the administrative hearing was not untimely because the petitioner requested a continuance and the ensuing delay was attributable to him; moreover, the ALJ did not err by failing to consider evidence of an affirmative defense because the petitioner, at the age of eighteen, engaged in sexual intercourse with a girl who was fourteen, and even though the child testified that she told the petitioner that she was sixteen years old, it was not sufficient to negate the finding of child maltreatment. Marrufo v. Ark. Dep't of Human Servs., 2013 Ark. 323, 429 S.W.3d 210 (2013).

12-18-802. Subpoenas — Service upon a child.

If any child served with a subpoena to be a witness in an administrative hearing is a party to an open dependency-neglect or family in need of services case, the child's attorney ad litem shall be provided a copy of the subpoena.

History. Acts 2009, No. 749, § 1; 2011, No. 1139, § 2.

Amendments. The 2011 amendment rewrote the section.

Cross References. Arkansas Juvenile Code of 1989, § 9-27-301 et seq.

12-18-803. Privileged communications as evidence — Exception.

  1. It is the public policy of the State of Arkansas to protect the health, safety, and the welfare of children within the state.
  2. No privilege, except that between a lawyer and client or between a minister, including a Christian Science practitioner, and a person confessing to or being counseled by the minister shall prevent anyone from testifying concerning child maltreatment.
  3. When a physician, psychologist, psychiatrist, or licensed counselor or therapist conducts interviews with or provides therapy to a subject of a report of suspected child maltreatment for purposes related to child maltreatment, the physician, psychologist, psychiatrist, or licensed counselor or therapist is deemed to be performing services on behalf of the child.
  4. An adult subject of a report of suspected child maltreatment cannot invoke privilege on the child's behalf.

History. Acts 2009, No. 749, § 1.

Case Notes

Cited: Riley v. State, 2012 Ark. 462 (2012).

12-18-804. Defenses and affirmative defenses.

For any act or omission of child maltreatment that would be a criminal offense or an act of delinquency, any defense or affirmative defense, including the burden of proof regarding the affirmative defense, that would apply to the criminal offense or delinquent act is also cognizable in a child maltreatment proceeding with the exception of:

  1. A statute of limitation;
  2. Lack of capacity as a result of mental disease or defect under § 5-2-312; and
  3. Affirmative defenses under §§ 5-1-112 — 5-1-114.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 20.

Amendments. The 2011 amendment, in the introductory language, inserted “including the burden of proof regarding the affirmative defense” and added “with the exception of” at the end; and added (1) through (3).

Case Notes

Consideration of Affirmative Defense.

Petitioner was properly placed on the Arkansas Child Maltreatment Central Registry; the administrative hearing was not untimely because the petitioner requested a continuance and the ensuing delay was attributable to him; moreover, the ALJ did not err by failing to consider evidence of an affirmative defense because the petitioner, at the age of eighteen, engaged in sexual intercourse with a girl who was fourteen, which was sexual abuse, and even though the child testified that she told the petitioner that she was sixteen years old, it was not sufficient to negate the finding of child maltreatment. Marrufo v. Ark. Dep't of Human Servs., 2013 Ark. 323, 429 S.W.3d 210 (2013).

Mental Capacity.

Father placed his mental capacity at issue by arguing that due to lack of sleep, stress, and other factors, his brain functioned differently than it would if it were not experiencing those unusual conditions, and he was unable to adequately supervise his child; the Child Maltreatment Act specifically excludes lack of capacity caused by mental disease or defect as an affirmative defense, and the administrative law judge's reference to the Act was not error under the circumstances. W.N. v. Ark. Dep't of Human Servs., 2018 Ark. App. 346, 552 S.W.3d 483 (2018).

12-18-805. Video teleconferencing and teleconferencing options.

    1. An administrative law judge may conduct an administrative hearing under this chapter by video teleconference in lieu of an in-person hearing.
    2. If neither party requests that the administrative hearing be conducted in person, the administrative hearing shall be conducted telephonically.
  1. If any party requests an in-person administrative hearing within thirty (30) days from the date that the party receives notification of the investigative determination, the in-person administrative hearing shall be conducted in an office of the Department of Human Services nearest to the petitioner's residence unless the administrative law judge notifies the parties that the administrative hearing will be conducted via video teleconference.
    1. The Office of Appeals and Hearings of the Department of Human Services shall designate the sites to be used for video teleconference administrative hearings.
    2. The office shall designate sites within ten (10) miles of the following cities:
      1. Arkadelphia;
      2. Booneville;
      3. Conway;
      4. Fayetteville;
      5. Jonesboro;
      6. Little Rock; and
      7. Warren.
    3. The office may designate additional sites for video teleconference administrative hearings.
    4. A site for a video teleconference administrative hearing shall include the location designated by the office that is nearest to the petitioner's residence.
    5. The administrative law judge and other parties may agree to appear at the location designated by the office or at any other designated administrative hearing locations that are convenient to them.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 23.

Amendments. The 2013 amendment inserted “of the investigative determination” in (b).

12-18-806. Continuances.

    1. An administrative law judge shall grant a continuance if the record under this chapter tendered by the Department of Human Services to the alleged offender is determined by the administrative law judge to be incomplete.
    2. The administrative law judge shall direct the department to make diligent inquiry and obtain the missing information to supplement the record if:
      1. The department receives further information;
      2. The alleged offender gives notice of the existence of further information; or
      3. The department examines the record and determines that additional information exists.
    3. If additional information is found to exist, the record shall be supplemented and the department shall provide a copy of the supplemented record to the alleged offender.
  1. At least ten (10) days prior to the administrative hearing, the alleged offender and the department shall share any information with the other party that the party intends to introduce into evidence at the administrative hearing that is not contained in the record.
  2. If a party fails to timely share information, the administrative law judge shall:
    1. Grant a continuance;
    2. Allow the record to remain open for submission of rebuttal evidence; or
    3. Reject the information as not relevant to the incident of child maltreatment.
  3. Any time accrued during the continuance or allowing the record to remain open shall not be counted in the one-hundred-eighty-day time period to complete the administrative hearing.

History. Acts 2009, No. 749, § 1.

12-18-807. Administrative judgments and adjudications.

  1. If a court of competent jurisdiction adjudicates a question that is an issue to be determined by the Office of Appeals and Hearings of the Department of Human Services, the prevailing party to the judicial adjudication who is also a party to the administrative adjudication shall file a certified copy of the judicial adjudication with the office.
    1. The office shall determine whether and to what extent the judicial adjudication has preclusive effect on the administrative adjudication by applying the principles of claim preclusion and issue preclusion.
    2. The office shall not readjudicate any precluded issues.
  2. If the judicial adjudication is modified or reversed, the office shall determine whether and to what extent any issue in the administrative adjudication remains precluded and shall schedule a hearing with respect to any matter that is no longer precluded.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 24.

Amendments. The 2013 amendment rewrote the section.

Case Notes

Collateral Estoppel.

Administrative law judge did not err in finding that a mother was precluded from relitigating maltreatment issues since they had been previously adjudicated in a dependency-neglect action; the “actually litigated” element of collateral estoppel was satisfied. The dependency-neglect adjudication was issued by a court of competent jurisdiction, and the adjudication involved a question to be determined by the Office of Appeals and Hearings of the Department of Human Services. Ogborn v. Ark. Dep't of Human Servs., 2017 Ark. App. 600, 532 S.W.3d 621 (2017).

12-18-808. Notice of juvenile division circuit court proceedings.

  1. The Department of Human Services and the Department of Arkansas State Police shall notify the administrative law judge and the petitioner of the status of any juvenile division of circuit court proceeding involving the victim if child maltreatment at issue in the administrative hearing proceeding is also an issue in the juvenile division of circuit court proceeding.
  2. Notice from the Department of Human Services and the Department of Arkansas State Police under this section shall also include whether the Department of Human Services exercised a seventy-two-hour hold on the victim and released the child or if the Department of Human Services or division of circuit court dismissed a petition for emergency custody or dependency-neglect.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 26.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (a).

12-18-809. Confidentiality.

  1. An administrative hearing decision and the hearing record, including all exhibits, under this chapter are confidential and shall remain confidential upon the filing of an appeal with a circuit court or an appellate court.
  2. An administrative hearing decision and the hearing record, including all exhibits, under this chapter that uphold the agency investigative determination of true may be used or disclosed only as provided in this chapter.
  3. An administrative hearing decision and the hearing record, including all exhibits, under this chapter that overturn the agency investigative determination of true may be used or disclosed only as provided in this chapter.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 21.

Amendments. The 2011 amendment inserted “and the hearing record, including all exhibits” in (a), (b), and (c); and deleted “and all exhibits submitted at the hearing” following “under this chapter” in (a).

12-18-810. Authority to amend investigative determinations based on evidence.

  1. An administrative law judge may amend an investigative determination to conform with the evidence presented.
    1. If the alleged offender could not reasonably infer the amended investigative determination from the investigative record and information submitted by the Department of Human Services and the Department of Arkansas State Police, the administrative law judge shall, upon request, grant a continuance to the alleged offender.
    2. However, an amendment of the investigative determination shall not be done after the conclusion of the hearing.

History. Acts 2009, No. 749, § 1; 2015, No. 1004, § 27.

Amendments. The 2015 amendment inserted “and the Department of Arkansas State Police” in (b)(1).

12-18-811. Expedited administrative hearings — Definition.

    1. If an alleged offender timely requests an administrative hearing, the Department of Human Services and the Department of Arkansas State Police may request that the administrative hearing be expedited if the alleged offender is engaged in child-related activities or employment or the alleged offender is employed or a volunteer with persons with disabilities, persons with mental illnesses, or elderly persons.
    2. The alleged offender shall have five (5) days from date of receipt of the request for an expedited administrative hearing to object to any request to expedite the administrative hearing.
  1. The expedited administrative hearing shall be granted if any of the following are at risk because of the alleged offender's employment or volunteer activities:
    1. Children;
    2. The elderly; or
    3. Persons with disabilities or mental illnesses.
  2. If the administrative hearing is expedited, the Department of Human Services and the Department of Arkansas State Police shall immediately make the investigative file available to the alleged offender.
    1. The Department of Human Services and the Department of Arkansas State Police may charge:
      1. A reasonable fee not to exceed ten dollars ($10.00) for researching, copying, or mailing records from a child maltreatment investigative file; and
      2. A reasonable fee for reproducing copies of electronic media, such as audio tapes, video tapes, compact discs, DVDs, and photographs.
    2. A fee shall not be charged to a person who is indigent.
    1. Unless waived by the alleged offender, the expedited administrative hearing process shall not be held until at least thirty (30) days have elapsed after the investigative file is made available to the alleged offender.
    2. As used in this section, “made available” means notification to the offender or his or her attorney that a copy of the investigative record is available for pickup at the Department of Human Services office in the county in which the alleged offender resides or in the Department of Human Services office in the county designated by the alleged offender or his or her attorney.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 25; 2015, No. 1004, § 28.

Amendments. The 2013 amendment substituted “or mailing records from a child maltreatment investigative file” for “and mailing records of an investigative file” in (d)(1)(A); and substituted “electronic media, such as audio tapes, video recordings, compact discs, or DVDs and photographs” for “tapes and photographs” in (d)(1)(B).

The 2015 amendment inserted “and the Department of Arkansas State Police” in (a)(1).

12-18-812. Preliminary administrative hearing.

  1. If the Department of Human Services and the Division of Arkansas State Police are unable to notify an offender of an investigative determination under this chapter, the Department of Human Services and the Division of Arkansas State Police may request a preliminary administrative hearing to allow provisional placement of the offender's name in the Child Maltreatment Central Registry.
  2. The Department of Human Services and the Division of Arkansas State Police must prove that the Department of Human Services and the Division of Arkansas State Police diligently attempted to notify the alleged offender of the investigative determination, specifically, that the Department of Human Services and the Division of Arkansas State Police used a reasonable degree of care to ascertain the offender's whereabouts and notify the offender.
    1. The Department of Human Services and the Division of Arkansas State Police shall notify the administrative law judge of any known criminal action related to the investigation.
    2. A preliminary administrative hearing shall proceed even if:
      1. There is an ongoing criminal or delinquency investigation regarding the occurrence that is the subject of the child maltreatment investigation; or
      2. Criminal or delinquency charges are filed or will be filed regarding the occurrence that is the subject of the child maltreatment investigation.
  3. At the preliminary administrative hearing, the administrative law judge shall determine whether a prima facie case exists that:
    1. The offender committed child maltreatment, that is, whether a preponderance of the evidence supports a finding that the allegations are true; and
    2. A child, elderly person, person with a disability, or person with a mental illness may be at risk of maltreatment.
  4. If the administrative law judge determines there is not a prima facie case, the Department of Human Services and the Division of Arkansas State Police shall not at that time place the alleged offender's name in the registry but may continue to provide notice to the alleged offender for a regular administrative hearing.
  5. If the administrative law judge determines there is a prima facie case, the administrative law judge shall direct that the offender's name shall be provisionally placed in the registry.
    1. If an offender's name is provisionally placed in the registry the alleged offender may request a regular administrative hearing within thirty (30) days of receipt of the notice of the investigative determination.
    2. Failure to timely request a regular administrative hearing shall result in a finding by the administrative law judge that the provisional designation shall be removed and the offender's name shall be officially placed in the registry.

History. Acts 2009, No. 749, § 1; 2013, No. 1006, § 26; 2015, No. 1004, § 29; 2019, No. 802, § 6.

A.C.R.C. Notes. Acts 2019, No. 802, § 1, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) All members of society desire the safety of all children;

“(2) A child raised under constant adult supervision may miss opportunities for growth that will negatively impact his or her mental and physical development;

“(3) The alarming rise of childhood obesity and diabetes is almost certainly linked to an increase in the sedentary lifestyle and lack of physical activity for children today, which is often encouraged by parents and guardians, including without limitation by insisting on driving their children to school;

“(4) As measured by incidences of mental health difficulties, the over-supervised youth of today experience more difficulties when they reach adulthood than earlier generations;

“(5) Earlier generations learned resilience by walking, bicycling, playing, helping, and solving problems without constant adult intervention;

“(6) Parents and guardians are often in the best position to weigh the risk and make decisions concerning the safety of children under their care, including without limitation where their child may go, with whom, and when; and

“(7) Parents and guardians who have done nothing more than briefly and safely permitted their children to remain unsupervised should not be subject to investigation and possible prosecution as it causes unnecessary governmental intrusion and diversion of valuable public resources.

“(b) It is the intent of the General Assembly that this act:

“(1) Protect and promote the inherent right of a parent or guardian to raise his or her children;

“(2) Protect the decision of a parent or a guardian to grant his or her children unsupervised time to engage in activities that include without limitation playing outside, walking to school, bicycling, remaining briefly in a vehicle, and remaining at home; and

“(3) Ensure that valuable public resources are used most effectively to protect children by providing a secondary review to ensure that:

“(A) Calls to the Child Abuse Hotline are properly accepted;

“(B) Child maltreatment investigations are closed when the results of the investigation indicate that the allegations lack merit; and

“(C) Only the names of offenders who pose a risk to a vulnerable population are placed on the Child Maltreatment Central Registry.”

Amendments. The 2013 amendment rewrote (c).

The 2015 amendment inserted “and the Department of Arkansas State Police” in (a).

The 2019 amendment, in (d)(2), inserted the second occurrence of “a” and substituted “maltreatment” for “harm”.

12-18-813. Notice of investigative determination upon satisfaction of due process.

    1. Due process has been satisfied when:
      1. The alleged offender eighteen (18) years of age or older at the time the act or omission occurred was provided written notice of the true investigative determination as required by this chapter but failed to timely request an administrative hearing;
      2. The alleged offender eighteen (18) years of age or older at the time the act or omission occurred timely requested an administrative hearing and a decision has been issued by the administrative law judge; or
      3. The alleged offender was a child at the time the act or omission occurred and the child or his or her legal parent or legal guardian waived the administrative hearing or the administrative law judge issued a decision.
    2. Upon satisfaction of due process, if the investigative determination is true, the alleged offender's name shall be placed in the Child Maltreatment Central Registry.
    1. Upon satisfaction of due process and if the investigative determination is true, the Department of Human Services and the Division of Arkansas State Police shall provide the local educational agency, specifically the school counselor at the school the maltreated child attends, a report including the name and relationship of the offender to the maltreated child and the services offered or provided by the Department of Human Services and the Division of Arkansas State Police to the child.
    2. Upon completion of due process, the Department of Human Services and the Division of Arkansas State Police shall provide the local educational agency, specifically the school counselor at the school the maltreated child attends, a report indicating the Department of Human Services’ and the Division of Arkansas State Police's true investigative determination on any child ten (10) years of age or older who is named as the offender in a true report and the services offered or provided by the Department of Human Services and the Division of Arkansas State Police to the juvenile offender.
    3. Any local educational agency receiving information under this section from the Department of Human Services and the Division of Arkansas State Police shall make this information, if it is a true report, confidential and a part of the child's permanent educational record and shall treat information under this section as educational records are treated under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.
    1. Upon satisfaction of due process and if the investigative determination is true, if the offender is engaged in child-related activities or employment, works with the elderly, an individual with a disability, or an individual with a mental illness, or is a juvenile and the Department of Human Services or the Division of Arkansas State Police has determined that children, the elderly, or individuals with a disability or mental illness under the care of the offender appear to be at risk of maltreatment by the offender, the Department of Human Services or the Division of Arkansas State Police may notify the following of the investigative determination:
      1. The offender's employer;
      2. A school superintendent, principal, or a person in an equivalent position where the offender is employed;
      3. A person in charge of a paid or volunteer activity;
      4. Any licensing or registering authority to the extent necessary to carry out its official responsibilities; and
      5. The custodial parent, custodian, or guardian of a child who is or may be currently cared for or supervised by the offender.
    2. The Department of Human Services and the Division of Arkansas State Police shall promulgate rules that shall ensure that notification required under this subsection is specifically approved by a responsible manager in the Department of Human Services or the Division of Arkansas State Police before the notification is made.
    3. If the Department of Human Services and the Division of Arkansas State Police later determine that there is not a preponderance of the evidence indicating that children under the care of the alleged offender appear to be at risk, the Department of Human Services and the Division of Arkansas State Police shall immediately notify the previously notified person or entity of that information.
      1. Upon satisfaction of due process, the Department of Human Services and the Division of Arkansas State Police may notify the entity or person in charge of the investigative determination if:
        1. The investigative determination is true; and
        2. The alleged offender is a juvenile who is in a setting or circumstance where other children appear to be at risk.
      2. The Department of Human Services and the Division of Arkansas State Police shall promulgate rules to ensure that notification required under this section is specifically approved by a responsible manager in the Department of Human Services or the Division of Arkansas State Police before notification is made.
      3. If the Department of Human Services and the Division of Arkansas State Police later determine that there is no preponderance of the evidence indicating that children appear to be at risk, the Department of Human Services and the Division of Arkansas State Police shall immediately notify the previously notified entity or person of that information.
  1. Upon satisfaction of due process, if the victim or offender is in foster care, notification of the investigative determination shall be provided to:
    1. The legal parents, legal guardians, and current foster parents of the victim; and
    2. The attorney ad litem and court-appointed special advocate volunteer for the victim or offender.
  2. Upon satisfaction of due process, notification of the investigative determination shall be provided to the following:
    1. All subjects of the report; and
    2. As required by § 21-15-110, the employer of any offender if the offender is in a designated position with a state agency.
  3. Upon satisfaction of due process, the Department of Human Services and the Division of Arkansas State Police shall confirm the investigative determination to the following, upon request:
    1. The responsible multidisciplinary team;
    2. The juvenile division of circuit court, if the victim or offender has an open dependency-neglect or family in need of services case;
    3. The attorney ad litem for a child who is named as the victim or offender;
    4. The Court Appointed Special Advocates volunteer for a child named as the alleged victim or offender;
    5. Any licensing or registering authority if it is necessary to carry out its official responsibilities;
    6. Any Department of Human Services division director or facility director receiving notice of a Child Abuse Hotline report under this subchapter;
    7. The attorney ad litem and Court Appointed Special Advocates volunteer for all other children in the same foster home if the child maltreatment occurred in a foster home;
    8. The attorney ad litem and Court Appointed Special Advocates volunteer for any child in foster care when the alleged offender or underaged juvenile offender is placed in the same placement as the attorney ad litem or Court Appointed Special Advocates volunteer's client;
    9. A child safety center if involved in the investigation;
    10. Law enforcement;
    11. The prosecuting attorney in cases of severe maltreatment;
    12. Any family advocacy program or other person designated by the military authority for the military installation receiving notice of a Child Abuse Hotline report under § 12-18-508; and
    13. The attorney ad litem and court-appointed special advocate of a juvenile who has an open dependency-neglect case, if the alleged offender or the minor victim resides in the home or in the proposed placement location for the juvenile that is not a licensed foster home, adoptive home, shelter, or facility.
  4. Upon satisfaction of due process, the Department of Human Services and the Division of Arkansas State Police may notify the persons or entities listed in subsection (f) of this section of the investigative determination if the Department of Human Services and the Division of Arkansas State Police determine that the notification is necessary to accomplish the purposes of § 12-18-102.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 22; 2013, No. 1006, § 27; 2015, No. 1004, § 30; 2015, No. 1026, § 14; 2017, No. 528, § 5; 2017, No. 803, § 4; 2019, No. 531, § 4.

Amendments. The 2011 amendment deleted former (b) and redesignated the remaining subsections accordingly; substituted “Department of Human Services” for “department” in (c)(1); substituted “for the victim or offender” for “any other children in the same foster home if the maltreatment occurred in the foster home” in (d)(2); deleted (e)(2) through (e)(11) and redesignated the remaining subdivision as (e)(2); and added (f) and (g).

The 2013 amendment rewrote (c)(1) and added (c)(4).

The 2015 amendment by No. 1004 inserted “and the Department of Arkansas State Police” in (b)(1).

The 2015 amendment by No. 1026 substituted “Department of Human Services or the Department of Arkansas State Police” for “department” twice in (c)(1).

The 2017 amendment by No. 528 added (f)(12).

The 2017 amendment by No. 803 added (f)(13).

The 2019 amendment added (c)(1)(E).

12-18-814. Automatic hearings for juveniles.

  1. The Division of Children and Family Services of the Department of Human Services shall provide written referrals to the Office of Appeals and Hearings of the Department of Human Services identifying each juvenile who is:
    1. The subject of a true child maltreatment finding; and
    2. Subject to placement on the Child Maltreatment Central Registry.
  2. The office shall schedule an administrative hearing for each juvenile identified under subsection (a) of this section.
  3. An administrative hearing scheduled under this section shall be conducted in accordance with the administrative hearing provisions of this subchapter except that the office shall not dismiss the case and place the petitioner's name on the registry based solely on the petitioner's failure to provide a file-marked copy of the final disposition of the criminal or delinquency proceeding within thirty (30) days of the entry of the final disposition.

History. Acts 2013, No. 1006, § 28.

12-18-815. Adjudication of allegations and risk.

  1. In an administrative hearing held under this chapter, an administrative law judge shall determine whether:
    1. A preponderance of the evidence supports a finding that an allegation of child maltreatment is true; and
    2. The Department of Human Services abused its discretion in determining that an offender may pose a risk of maltreatment to a vulnerable population that includes without limitation, children, the elderly, persons with a disability, and persons with a mental health illness.
  2. An administrative law judge shall direct the name of an offender to be placed on the Child Maltreatment Central Registry if a preponderance of the evidence supports a finding that:
    1. An allegation of child maltreatment is true; and
    2. The department did not abuse its discretion in determining that the offender may pose a risk of maltreatment to a vulnerable population.

History. Acts 2019, No. 802, § 7.

A.C.R.C. Notes. Acts 2019, No. 802, § 1, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) All members of society desire the safety of all children;

“(2) A child raised under constant adult supervision may miss opportunities for growth that will negatively impact his or her mental and physical development;

“(3) The alarming rise of childhood obesity and diabetes is almost certainly linked to an increase in the sedentary lifestyle and lack of physical activity for children today, which is often encouraged by parents and guardians, including without limitation by insisting on driving their children to school;

“(4) As measured by incidences of mental health difficulties, the over-supervised youth of today experience more difficulties when they reach adulthood than earlier generations;

“(5) Earlier generations learned resilience by walking, bicycling, playing, helping, and solving problems without constant adult intervention;

“(6) Parents and guardians are often in the best position to weigh the risk and make decisions concerning the safety of children under their care, including without limitation where their child may go, with whom, and when; and

“(7) Parents and guardians who have done nothing more than briefly and safely permitted their children to remain unsupervised should not be subject to investigation and possible prosecution as it causes unnecessary governmental intrusion and diversion of valuable public resources.

“(b) It is the intent of the General Assembly that this act:

“(1) Protect and promote the inherent right of a parent or guardian to raise his or her children;

“(2) Protect the decision of a parent or a guardian to grant his or her children unsupervised time to engage in activities that include without limitation playing outside, walking to school, bicycling, remaining briefly in a vehicle, and remaining at home; and

“(3) Ensure that valuable public resources are used most effectively to protect children by providing a secondary review to ensure that:

“(A) Calls to the Child Abuse Hotline are properly accepted;

“(B) Child maltreatment investigations are closed when the results of the investigation indicate that the allegations lack merit; and

“(C) Only the names of offenders who pose a risk to a vulnerable population are placed on the Child Maltreatment Central Registry.”

Subchapter 9 — Child Maltreatment Central Registry

Effective Dates. Acts 2013, No. 575, § 3: Apr. 2, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that Arkansas public school students and their parents or guardians should be confident that any person who is allowed to volunteer at a school district or an education service cooperative does not have a criminal record and is not a potential threat to the safety of children; and that this act is immediately necessary to afford additional protection to school children from all persons in school districts or education service cooperatives who might sexually, physically, or emotionally abuse students entrusted into their care. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Acts 2019, No. 945, § 11: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that some juveniles in Arkansas may be unaware of their rights under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that some individuals and entities that are responsible for the welfare of a juvenile may be unaware of the rights of the juvenile under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that the creation of the Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission will help increase awareness of a juvenile's legal rights; that independent oversight of the child welfare system in Arkansas is more than likely to result in recommendations that will further improve the procedures and operations of the child welfare system; and that this act is necessary for the preservation of the public peace, health, and safety. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Challenges to Placement on State Child Abuse Registries on Other Than Constitutional Bases, 25 A.L.R.7th Art. 1 (2018).

12-18-901. Creation.

There is established within the Department of Human Services a statewide Child Maltreatment Central Registry.

History. Acts 2009, No. 749, § 1.

Research References

ALR.

Constitutional Challenges to State Child Abuse Registries. 36 A.L.R.6th 475.

12-18-902. Contents.

The Child Maltreatment Central Registry shall contain records of cases on all true investigative determinations of child maltreatment.

History. Acts 2009, No. 749, § 1.

12-18-903. Placement in the Child Maltreatment Central Registry.

  1. An offender's name shall be placed in the Child Maltreatment Central Registry if:
    1. After notice, the offender eighteen (18) years of age or older at the time the act or omission occurred does not timely request an administrative hearing;
    2. The alleged offender was a child at the time of the act or omission and the child or his or her legal parent or legal guardian waived the administrative hearing;
    3. The administrative law judge upheld the investigative determination of true pursuant to a preliminary administrative hearing; or
    4. Upon completion of the administrative hearing process, the Department of Human Services' or Division of Arkansas State Police's investigative determination of true is upheld.
  2. In addition to the requirements of subsection (a) of this section, the name of an offender shall be placed on the Child Maltreatment Central Registry only if the Department of Human Services determines under § 12-18-702 that the offender may pose a risk of maltreatment to a vulnerable population that includes without limitation children, the elderly, persons with a disability, and persons with a mental health illness.

History. Acts 2009, No. 749, § 1; 2019, No. 802, § 8.

A.C.R.C. Notes. Acts 2019, No. 802, § 1, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) All members of society desire the safety of all children;

“(2) A child raised under constant adult supervision may miss opportunities for growth that will negatively impact his or her mental and physical development;

“(3) The alarming rise of childhood obesity and diabetes is almost certainly linked to an increase in the sedentary lifestyle and lack of physical activity for children today, which is often encouraged by parents and guardians, including without limitation by insisting on driving their children to school;

“(4) As measured by incidences of mental health difficulties, the over-supervised youth of today experience more difficulties when they reach adulthood than earlier generations;

“(5) Earlier generations learned resilience by walking, bicycling, playing, helping, and solving problems without constant adult intervention;

“(6) Parents and guardians are often in the best position to weigh the risk and make decisions concerning the safety of children under their care, including without limitation where their child may go, with whom, and when; and

“(7) Parents and guardians who have done nothing more than briefly and safely permitted their children to remain unsupervised should not be subject to investigation and possible prosecution as it causes unnecessary governmental intrusion and diversion of valuable public resources.

“(b) It is the intent of the General Assembly that this act:

“(1) Protect and promote the inherent right of a parent or guardian to raise his or her children;

“(2) Protect the decision of a parent or a guardian to grant his or her children unsupervised time to engage in activities that include without limitation playing outside, walking to school, bicycling, remaining briefly in a vehicle, and remaining at home; and

“(3) Ensure that valuable public resources are used most effectively to protect children by providing a secondary review to ensure that:

“(A) Calls to the Child Abuse Hotline are properly accepted;

“(B) Child maltreatment investigations are closed when the results of the investigation indicate that the allegations lack merit; and

“(C) Only the names of offenders who pose a risk to a vulnerable population are placed on the Child Maltreatment Central Registry.”

Amendments. The 2019 amendment added (b) and designated the former section as (a).

Case Notes

Placement in Registry Upheld.

Substantial evidence supported the decision of the Department of Human Services that a teacher had committed sexual abuse of a minor student and ordering that the teacher's name be placed in the Child Maltreatment Central Registry, even though the criminal charges had been dropped; the ALJ had clearly considered the teacher's defenses and rejected them, the appellate court does not act as a super factfinder, and the teacher could not complain that he was denied an opportunity to cross-examine the student when he failed to subpoena her. J.C. v. Ark. Dep't of Human Servs., 2019 Ark. App. 131, 572 S.W.3d 878 (2019).

It was error to reverse the decision of the Department of Human Services to place a father's name on the Child Maltreatment Central Registry because substantial evidence supported the decision, as the father drove while impaired by alcohol at twice the legal limit with his then six-year-old son in the car, which constituted inadequate supervision (neglect) and a threat of harm (abuse) under § 12-18-103. The statutes do not require that actual injury occur for findings of abuse or neglect. Ark. Dep't of Human Servs. v. Newcity, 2020 Ark. App. 32, 594 S.W.3d 112 (2020).

12-18-904. Child Maltreatment Central Registry generally.

An offender's name shall remain in the Child Maltreatment Central Registry unless:

  1. The name is removed pursuant to this chapter or another statute;
  2. The name is removed under a rule;
  3. The name was provisionally placed in the registry and the alleged offender subsequently prevails at an administrative hearing; or
  4. The offender prevails upon appeal.

History. Acts 2009, No. 749, § 1.

12-18-905. Provisional placement in the Child Maltreatment Central Registry.

If an alleged offender's name is provisionally placed in the Child Maltreatment Central Registry, any disclosure by the registry shall include the notation that the name has only been provisionally placed in the registry.

History. Acts 2009, No. 749, § 1.

12-18-906. Allegations determined to be unsubstantiated not to be included.

Records of all cases in which allegations are determined to be unsubstantiated shall not be included in the Child Maltreatment Central Registry.

History. Acts 2009, No. 749, § 1.

12-18-907. Rules.

The Department of Human Services may adopt rules as may be necessary to encourage cooperation with other states in exchanging true reports and to effect a national registration system.

History. Acts 2009, No. 749, § 1.

12-18-908. Removal of name from the Child Maltreatment Central Registry.

  1. If an adult offender is found guilty of, pleads guilty to, or pleads nolo contendere to an act that is the same act for which the offender is named in the Child Maltreatment Central Registry regardless of any subsequent expungement of the offense from the offender's criminal record, the offender shall always remain in the registry unless the conviction is reversed or vacated.
    1. The Department of Human Services shall identify in its policy and procedures manual the types of child maltreatment that shall automatically result in the removal of the name of an offender from the registry.
    2. If an offender has been entered into the registry as an offender for the named types of child maltreatment identified under subdivision (b)(1) of this section, the offender's name shall be removed from the registry on reports of this type of child maltreatment if the offender has not had a subsequent true report of this type for one (1) year and more than one (1) year has passed since the offender's name was placed on the registry.
    1. The department shall identify in its policy and procedures manual the types of child maltreatment for which an offender can request that the offender's name be removed from the registry.
      1. If an offender has been entered into the registry as an offender for the named types of child maltreatment identified under subdivision (c)(1) of this section, the offender may petition the department, requesting that the offender's name be removed from the registry if the offender has not had a subsequent true report of this type for one (1) year and more than one (1) year has passed since the offender's name was placed on the registry.
      2. If the department denies the request for removal of the name from the registry, the offender shall wait one (1) year from the date of the request for removal before filing a new petition with the department, requesting that the offender's name be removed from the registry.
    2. The department shall develop policy and procedures to assist it in determining whether to remove the offender's name from the registry.
  2. Notwithstanding the provisions of this subchapter, with regard to an offender who was a child at the time of the act or omission that resulted in a true finding of child maltreatment, the department shall:
    1. Not remove the offender's name from the registry if the offender was found guilty of, pleaded guilty to, or pleaded nolo contendere to a felony in circuit court as an adult for the act that is the same act for which the offender is named in the registry unless the conviction is reversed or vacated; or
    2. Remove the offender's name from the registry if:
      1. The juvenile has reached eighteen (18) years of age or more than one (1) year has passed from the date of the act or omission that caused the true finding of child maltreatment and there have been no subsequent acts or omissions resulting in a true finding of child maltreatment; and
      2. The offender can prove by a preponderance of the evidence that the juvenile offender has been rehabilitated.
    3. If the department denies the request for removal of the name from the registry, the offender shall wait one (1) year from the date of the request for removal before filing a new petition with the department, requesting that the offender's name be removed from the registry.
      1. If the department denies the request for removal of the name from the registry, the offender may request an administrative hearing within thirty (30) days from receipt of the department's decision.
      2. The standard on review for the administrative hearing shall be whether the department abused its discretion.
      1. At least ten (10) days prior to the administrative hearing, the alleged offender and the department shall share any information with the other party that the party intends to introduce into evidence at the administrative hearing that is not contained in the record.
      2. If a party fails to timely share information, the administrative law judge shall:
        1. Grant a continuance;
        2. Allow the record to remain open for submission of rebuttal evidence; or
        3. Reject the information as not relevant to the rehabilitation or the incident of child maltreatment.
  3. The Secretary of the Department of Human Services shall adopt rules necessary to carry out this chapter pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq., except that the secretary shall not begin the process under the Arkansas Administrative Procedure Act, § 25-15-201 et seq., until the proposed rules have been reviewed by the House Committee on Aging, Children and Youth, Legislative and Military Affairs and the Senate Interim Committee on Children and Youth.

History. Acts 2009, No. 749, § 1; 2019, No. 910, § 5158.

Amendments. The 2019 amendment substituted “Secretary of the Department of Human Services” for “Director of the Department of Human Services” and “secretary” for “director” in (f).

Case Notes

Child Custody.

In denying appellant father's motion to change child custody, the trial court did not err in failing to apply the presumption in § 9-13-101(c) that it was not in the best interest of a child to remain in the custody of an abusive parent because the record was completely devoid of any evidence of domestic violence. While appellee mother was placed on the child-maltreatment registry for a period of time pursuant to subdivision (b)(2) of this section for subjecting the child to a home that was filthy and infested with roaches, her poor housekeeping was not a form of domestic violence. Loftis v. Nazario, 2012 Ark. App. 98 (2012).

12-18-909. Availability of true reports of child maltreatment from the central registry.

  1. True reports of child maltreatment are confidential and may be disclosed only as provided in this chapter.
    1. The Department of Human Services and the Division of Arkansas State Police may charge:
      1. A reasonable fee not to exceed ten dollars ($10.00) for researching, copying, or mailing records from a child maltreatment investigative file; and
      2. A reasonable fee for reproducing copies of electronic media, such as audio tables, video tapes, compact discs, DVDs, and photographs.
    2. A fee may not be charged to:
      1. A nonprofit or volunteer agency that requests searches of the investigative files; or
      2. A person who is indigent.
    1. The Department of Human Services shall not release data that would identify the person who made the report unless a court of competent jurisdiction orders release of the information after the court has reviewed in camera the record related to the report and has found it has reason to believe that the reporter knowingly made a false report.
    2. However, upon request, the information shall be disclosed to the prosecuting attorney or law enforcement.
    1. Any person or agency to whom disclosure is made shall not disclose to any other person a report or other information obtained pursuant to this section.
    2. However, the person or agency is permitted to consult his or her or its own attorney regarding information provided by the Department of Human Services and the Division of Arkansas State Police.
    3. However, a local educational agency or a school counselor shall forward all true reports of child maltreatment received from the Department of Human Services and the Division of Arkansas State Police when a child transfers from one (1) local educational agency to another and shall notify the Department of Human Services and the Division of Arkansas State Police of the child's new school and address, if known.
    4. Nothing in this chapter shall be construed to prevent subsequent disclosure by the subject of the report.
    5. Confidential data, records, reports, or documents created, collected, or compiled by or on behalf of the Department of Human Services, the Division of Arkansas State Police, or other entity authorized under this chapter to perform investigations or provide services to children, individuals, or families may be:
      1. Disclosed to and discussed with a member of the Child Maltreatment Investigations Oversight Committee; and
      2. Disclosed and discussed in closed meetings conducted by the Child Maltreatment Investigations Oversight Committee under § 10-3-3201 et seq.
    1. The Department of Human Services and the Division of Arkansas State Police may provide information, including protected health information, to a person or agency that provides services such as medical examination of, an assessment interview with, or diagnosis of, care for, treatment of, or supervision of a victim of child maltreatment, a juvenile offender, or an underaged juvenile offender.
    2. This information may include:
      1. The investigative determination or the investigation report; and
      2. The services offered and provided.
  2. If an alleged offender's name has been provisionally placed in the Child Maltreatment Central Registry, any disclosure by the registry shall include the notation that the name has only been provisionally placed in the registry.
  3. A report made under this chapter that is determined to be true, as well as any other information obtained, including protected health information and the administrative hearing decision, and a report written or photograph or radiological procedure taken concerning a true report in the possession of the Department of Human Services and the Division of Arkansas State Police shall be confidential and shall be made available only to:
    1. The administration of the adoption, foster care, children's and adult protective services programs, or child care licensing programs of any state;
    2. A federal, state, or local government entity, or any agent of the entity, having a need for the information in order to carry out its responsibilities under law to protect children from abuse or neglect;
    3. Any person who is the subject of a true report;
    4. A civil or administrative proceeding connected with the administration of the Arkansas child welfare state plan when the court or hearing officer determines that the information is necessary for the determination of an issue before the court or agency;
    5. An audit or similar activity conducted in connection with the administration of such a plan or program by any governmental agency that may by law conduct the audit or activity;
      1. A person, agency, or organization engaged in a bona fide research or evaluation project having value as determined by the Department of Human Services and the Division of Arkansas State Police in future planning for programs for maltreated children or in developing policy directions.
      2. However, any confidential information provided for a research or evaluation project under this subdivision (g)(6) shall not be redisclosed.
      3. However, if a research or evaluation project results in the publication of related material, confidential information provided for a research or evaluation project under this subdivision (g)(6) shall not be disclosed;
    6. A properly constituted authority, including multidisciplinary teams referenced in this chapter, investigating a report of known or suspected child abuse or neglect or providing services to a child or family that is the subject of a report;
      1. The Division of Child Care and Early Childhood Education and the child care facility owner or operator who requested the registry information through a signed notarized release from an individual who is a volunteer, has applied for employment, is currently employed by a child care facility, or is the owner or operator of a child care facility.
      2. This disclosure shall be for the limited purpose of providing registry background information and shall indicate a true finding only;
    7. Child abuse citizen review panels described in the Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a;
    8. Child fatality review panels as authorized by the Department of Human Services;
    9. A grand jury upon a finding that information in the record is necessary for the determination of an issue before the grand jury;
      1. A court in a criminal case upon finding that the information in the record is necessary for the determination of an issue before the court.
      2. The court may disclose the report to parties under the terms of a protective order issued by the court;
      1. A court in a child custody or similar civil case upon finding that the information in the record is necessary for the determination of a health or safety issue concerning a child before the court.
      2. The court may disclose the report to the parties under the terms or a protective order issued by the court;
    10. The current foster parents of a child who is a subject of a report;
      1. Federal, state, and local government entities, or any agent of such entities, that have a need for such information to carry out their responsibilities under law to protect children from child maltreatment.
      2. Acting in their official capacities under law to protect children, disclosure may be made to individual United States and Arkansas senators and representatives and their authorized staff members, but only if they agree not to permit any redisclosure of the information except for a legitimate state purpose to protect children from child maltreatment.
      3. However, disclosure shall not be made to any committee or legislative body of any information that identifies any recipient of services by name or address;
    11. A Court Appointed Special Advocates volunteer upon presentation of an order of appointment for a child who is a subject of a report;
    12. The attorney ad litem of a child who is the subject of a report;
      1. An employer or volunteer agency for purposes of screening an employee, applicant, or volunteer who is or will be engaged in employment or activity with children, the elderly, individuals with disabilities, or individuals with mental illness upon submission of a signed, notarized release from the employee, applicant, or volunteer.
      2. The registry shall release only the following information on true reports to the employer or agency:
        1. That the employee, applicant, or volunteer has a true report;
        2. The date the investigation was completed; and
        3. The type of true report;
    13. The Division of Developmental Disabilities Services and the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services as to participants of the waiver program;
    14. The Division of Child Care and Early Childhood Education for purposes of enforcement of licensing laws and rules;
    15. Any licensing or registering authority to the extent necessary to carry out its official responsibilities;
    16. Any person or entity to whom notification was provided under this chapter;
    17. The extent necessary to carry out a responsibility to ensure that children are protected while in the school environment or during off-campus school activities:
      1. A school district superintendent, a person in an equivalent position in a private school, or other district-level administrator;
      2. A public school principal, a person in an equivalent position in a private school, or other building-level administrator;
        1. Another person or organization designated by a public school, private school, or school district to organize volunteers for the public school, private school, or school district upon the submission of a signed, notarized release from the volunteer.
        2. The registry shall release only the following information on true reports to a person or an organization:
          1. That the employee, applicant, or volunteer has a true report;
          2. The date the investigation was completed; and
          3. The type of true report; and
      3. Division of Elementary and Secondary Education;
    18. The custodial and noncustodial parents, guardians, and legal custodians of the child who is identified as the offender;
    19. Any family advocacy program or other person designated by the military authority for the military installation receiving notice of a Child Abuse Hotline report under § 12-18-508;
    20. The custodial parent, custodian, or guardian of a child who is or may be currently cared for or supervised by the offender; and
    21. A Child Welfare Ombudsman.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 23; 2013, No. 575, § 2; 2013, No. 1006, §§ 29-31; 2015, No. 1004, §§ 31-35; 2015, No. 1097, §§ 2, 3; 2017, No. 250, § 16; 2017, No. 528, § 6; 2017, No. 713, §§ 7, 8; 2017, No. 913, § 37; 2019, No. 315, § 877; 2019, No. 531, § 5; 2019, No. 590, § 3; 2019, No. 910, §§ 2223-2227; 2019, No. 945, § 8; 2019, No. 1081, § 8.

A.C.R.C. Notes. Acts 2019, No. 945, § 1, provided: “Legislative intent. It is the intent of the General Assembly to create a Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission to provide for independent oversight of the child welfare system in Arkansas”.

Amendments. The 2011 amendment, in (g)(11)(A) (now (g)(11)), substituted “A grand jury” for “A grand jury or court” and substituted “before the grand jury” for “before the court or grand jury”; rewrote (g)(11)(B) (now (g)(12)); and added (g)(11)(C) (now (g)(13)).

The 2013 amendment by No. 575 rewrote (g)(21) (now (g)(23)).

The 2013 amendment by No. 1006 rewrote (b)(1)(A) and (b)(1)(B); inserted “and the administrative hearing decision” following “health information” in the introductory language of (g); and substituted “the terms of” for “the terms or” in (g)(11)(B)(ii) (now (g)(12)(B)).

The 2015 amendment by No. 1004 inserted “and the Department of Arkansas State Police” in (b)(1), (d)(3), (e)(1), the introductory language of (g), and in (g)(6)(A).

The 2015 amendment by No. 1097 inserted “a person in an equivalent position in a private school” in (g)(21)(A) and (g)(21)(B) (now (g)(23)(A) and (B)); inserted “private school” twice in (g)(21)(C)(i) (now (g)(23)(C)(i)); and added (g)(22) (now (g)(24)).

The 2017 amendment by No. 250, in (e)(1), inserted “child” preceding maltreatment” and substituted “offender” for “aggressor” at the end.

The 2017 amendment by No. 528 added (g)(25).

The 2017 amendment by No. 713 added (d)(5); redesignated former (g)(15)(A) as (g)(15)(A)(i); added (g)(15)(A)(ii); and made a stylistic change.

The 2017 amendment by No. 913 substituted “Division of Aging, Adult, and Behavioral Health Services” for “Division of Aging and Adult Services” in (g)(19).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (g)(20).

The 2019 amendment by No. 531 added (g)(26).

The 2019 amendment by No. 590 redesignated (g)(15)(A)(i) and (g)(15)(B) as (g)(15)(B) and (g)(15)(C); added (g)(15)(A); deleted (g)(15)(A)(ii); and, in (g)(15)(B), inserted “under law to protect children, disclosure may be made to” and added “except for a legitimate state purpose to protect children from child maltreatment”.

The 2019 amendment by No. 910 substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (d)(2), twice in (d)(3), in (d)(5), in (e)(1), and in (g)(6)(A); and substituted “Division of Elementary and Secondary Education” for “Department of Education” in (g)(23)(D).

The 2019 amendment by No. 945 added (g)(26) [now (g)(27)].

The 2019 amendment by No. 1081 inserted (d)(5)(A) and redesignated former (d)(5) as the introductory language of (d)(5) and (d)(5)(B); in the introductory language of (d)(5), deleted “This section does not prohibit the disclosure and discussion of” from the beginning, and added “may be” at the end; and added “Disclosed and discussed” in (d)(5)(B).

12-18-910. Availability of screened-out and unsubstantiated reports.

  1. Screened-out, administratively closed, and unsubstantiated reports of child maltreatment are confidential and may be disclosed only as provided in this chapter.
    1. The Department of Human Services and the Division of Arkansas State Police may charge:
      1. A reasonable fee not to exceed ten dollars ($10.00) for researching, copying, or mailing records from a child maltreatment investigative file; and
      2. A reasonable fee for reproducing copies of electronic media, such as audio tapes, video tapes, compact discs, DVDs, and photographs.
    2. A fee shall not be charged to:
      1. A nonprofit or volunteer agency that requests searches of the investigative files; or
      2. A person who is indigent.
    1. The Department of Human Services and the Division of Arkansas State Police shall not release data that would identify the person who made the report unless a court of competent jurisdiction orders release of the information after the court has reviewed in camera the record related to the report and has found it has reason to believe that the reporter knowingly made a false report.
    2. However, upon request, the information shall be disclosed to the prosecuting attorney or law enforcement.
    1. Any person or agency to whom disclosure is made shall not disclose to any other person a report or other information obtained pursuant to this section.
    2. However, the person or agency is permitted to consult his or her or its own attorney regarding information provided by the Department of Human Services and the Division of Arkansas State Police.
    3. Nothing in this chapter shall be construed to prevent subsequent disclosure by the subject of the report.
    4. Confidential data, records, reports, or documents created, collected, or compiled by or on behalf of the Department of Human Services, the Division of Arkansas State Police, or other entity authorized under this chapter to perform investigations or provide services to children, individuals, or families may be:
      1. Disclosed to and discussed with a member of the Child Maltreatment Investigations Oversight Committee; and
      2. Disclosed and discussed in closed meetings conducted by the Child Maltreatment Investigations Oversight Committee under § 10-3-3201 et seq.
  2. Any record of a screened-out or administratively closed report of child maltreatment shall not be disclosed except to the prosecuting attorney and law enforcement and may be used only within the Department of Human Services and the Division of Arkansas State Police for purposes of administration of the program.
  3. An unsubstantiated report, including protected health information and the administrative hearing decision, shall be confidential and shall be disclosed only to:
    1. The prosecuting attorney;
    2. A subject of the report;
    3. A grand jury upon a finding that information in the record is necessary for the determination of an issue before a grand jury;
      1. A court in a criminal case upon finding that the information in the record is necessary for the determination of an issue before the court.
      2. The court may disclose the report to parties under the terms of a protective order issued by the court;
      1. A court in a child custody or similar civil case upon finding that the information in the record is necessary for the determination of a health or safety issue concerning a child before the court.
      2. The court may disclose the report to the parties under the terms or a protective order issued by the court;
      1. Federal, state, and local government entities, or any agent of such entities, that have a need for such information to carry out their responsibilities under law to protect children from child maltreatment.
      2. Acting in their official capacities under law to protect children, disclosure may be made to individual United States and Arkansas senators and representatives and their authorized staff members, but only if they agree not to permit any redisclosure of the information except for a legitimate state purpose to protect children from child maltreatment.
      3. However, disclosure shall not be made to any committee or legislative body of any information that identifies any recipient of services by name or address;
    4. Law enforcement;
    5. Any licensing or registering authority to the extent necessary to carry out its official responsibilities;
    6. Adult protective services;
    7. The Division of Developmental Disabilities Services and the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services as to participants of the waiver program;
    8. A Court Appointed Special Advocates volunteer upon presentation of an order of appointment for a child who is a subject of a report;
    9. The attorney ad litem of a child who is the subject of a report;
    10. Any person or entity to whom notification was provided under this chapter;
    11. The custodial and noncustodial parents, guardians, and legal custodians of the child who is identified as the offender;
    12. Any family advocacy program or other person designated by the military authority for the military installation receiving notice of a Child Abuse Hotline report under § 12-18-508; and
    13. A Child Welfare Ombudsman.
  4. Hard copy records of unsubstantiated reports shall be retained no longer than eighteen (18) months for purposes of audit.
  5. Information on unsubstantiated reports included in the automated data system shall be retained indefinitely to assist the Department of Human Services and the Division of Arkansas State Police in assessing future risk and safety.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 24; 2013, No. 1006, §§ 32–34; 2015, No. 1004, § 36; 2015, No. 1097, § 4; 2017, No. 528, § 7; 2017, No. 713, §§ 9, 10; 2017, No. 913, § 38; 2019, No. 590, § 4; 2019, No. 802, §§ 9, 10; 2019, No. 945, § 9; 2019, No. 1081, § 9.

A.C.R.C. Notes. Acts 2019, No. 802, § 1, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) All members of society desire the safety of all children;

“(2) A child raised under constant adult supervision may miss opportunities for growth that will negatively impact his or her mental and physical development;

“(3) The alarming rise of childhood obesity and diabetes is almost certainly linked to an increase in the sedentary lifestyle and lack of physical activity for children today, which is often encouraged by parents and guardians, including without limitation by insisting on driving their children to school;

“(4) As measured by incidences of mental health difficulties, the over-supervised youth of today experience more difficulties when they reach adulthood than earlier generations;

“(5) Earlier generations learned resilience by walking, bicycling, playing, helping, and solving problems without constant adult intervention;

“(6) Parents and guardians are often in the best position to weigh the risk and make decisions concerning the safety of children under their care, including without limitation where their child may go, with whom, and when; and

“(7) Parents and guardians who have done nothing more than briefly and safely permitted their children to remain unsupervised should not be subject to investigation and possible prosecution as it causes unnecessary governmental intrusion and diversion of valuable public resources.

“(b) It is the intent of the General Assembly that this act:

“(1) Protect and promote the inherent right of a parent or guardian to raise his or her children;

“(2) Protect the decision of a parent or a guardian to grant his or her children unsupervised time to engage in activities that include without limitation playing outside, walking to school, bicycling, remaining briefly in a vehicle, and remaining at home; and

“(3) Ensure that valuable public resources are used most effectively to protect children by providing a secondary review to ensure that:

“(A) Calls to the Child Abuse Hotline are properly accepted;

“(B) Child maltreatment investigations are closed when the results of the investigation indicate that the allegations lack merit; and

“(C) Only the names of offenders who pose a risk to a vulnerable population are placed on the Child Maltreatment Central Registry.”

Acts 2019, No. 945, § 1, provided: “Legislative intent. It is the intent of the General Assembly to create a Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission to provide for independent oversight of the child welfare system in Arkansas”.

Amendments. The 2011 amendment, in (f)(3)(A) (now (f)(3)), substituted “A grand jury” for “A grand jury or court” and “before a grand jury” for “before the court or grand jury”; rewrote (f)(3)(B) (now (f)(4)); and added (f)(3)(C) (now (f)(5)).

The 2013 amendment rewrote (b)(1)(A) and (b)(1)(B); added “and the administrative hearing decision” in the introductory language of (f); and substituted “the terms of” for “the terms or” in (f)(3)(B)(ii) (now (f)(4)(B)).

The 2015 amendment by No. 1004 inserted “and the Department of Arkansas State Police” in (b)(1).

The 2015 amendment by No. 1097 added (f)(12) (now (f)(14)).

The 2017 amendment by No. 528 added (f)(15).

The 2017 amendment by No. 713 added (d)(4); redesignated former (f)(6)(A) as (f)(6)(A)(i); added (f)(6)(A)(ii); and made a stylistic change.

The 2017 amendment by No. 913 substituted “Division of Aging, Adult, and Behavioral Health Services” for “Division of Aging and Adult Services” in (f)(10).

The 2019 amendment by No. 590 redesignated (f)(6)(A)(i) and (f)(6)(B) as (f)(6)(B) and (f)(6)(C); added (f)(6)(A); deleted (f)(6)(A)(ii); and, in (f)(6)(B), inserted “under law to protect children, disclosure may be made to” and added “except for a legitimate state purpose to protect children from child maltreatment”.

The 2019 amendment by No. 802 inserted “administratively closed” in (a); and inserted “or administratively closed” in (e).

The 2019 amendment by No. 945 added (f)(16).

The 2019 amendment by No. 1081 inserted (d)(4)(A) and redesignated former (d)(4) as the introductory language of (d)(4) and (d)(4)(B); in the introductory language of (d)(4), deleted “This section does not prohibit the disclosure and discussion of” from the beginning, and added “may be” at the end; and added “Disclosed and discussed” in (d)(4)(B).

Case Notes

In Camera Review.

Because the circuit court erred by not conducting an in camera review of the alleged sexual assault victim's Department of Human Services file to determine if it contained information material to the defense concerning the victim's accusations against her biological father, which were later recanted, remand for further proceedings was necessary for the court to conduct an in camera review of the file. If the file contained information that probably would have changed the outcome of the trial, defendant was to receive a new trial unless the nondisclosure was harmless beyond a reasonable doubt. Taffner v. State, 2018 Ark. 99, 541 S.W.3d 430 (2018).

12-18-911. Records — Subpoena duces tecum — Definitions.

  1. As used in this section:
    1. “Custodian of records” means the administrator of the Child Maltreatment Central Registry or his or her designee; and
    2. “Records” means data, records, or documents that are created, collected, or compiled by or on behalf of the Department of Human Services, the Department of Arkansas State Police, or other entity authorized under this chapter to perform investigations or provide services to children, individuals, or families.
    1. A subpoena duces tecum for records shall be served on the custodian of records.
      1. When a subpoena duces tecum described in subdivision (b)(1) of this section does not request the personal attendance of the custodian of records and the Department of Human Services is not a party to the action, the subpoena duces tecum is complied with when the custodian of records delivers to the court clerk or the officer, court reporter, body, or tribunal issuing the subpoena duces tecum or conducting the hearing, a true and correct copy of all records described in the subpoena duces tecum and the affidavit described in subsection (c) of this section.
      2. The records may be delivered by hand or registered mail.
    1. The records shall be accompanied by an affidavit of the custodian of records stating that:
      1. The affiant is the duly authorized custodian of records and has authority to certify the records;
      2. The attached copies are a true copy of all the records described in the subpoena duces tecum; and
      3. The records were prepared by employees of the Department of Human Services or the Crimes Against Children Division of the Department of Arkansas State Police acting in the ordinary course of the business at or near the time of the child maltreatment investigation reported in the records.
    2. If the registry does not have the records described in the subpoena duces tecum, or has only part of the records, the custodian of records shall state so in the affidavit and file the affidavit and records as the records are available.
    3. The custodian of records may enclose a statement of costs pursuant to § 12-18-711 for copying the records, and the costs of copying the records shall be charged to the party requesting the subpoena duces tecum for the records.
    1. The copy of the records produced by the custodian of records shall be separately enclosed in an inner envelope or wrapper and sealed with the title and number of the action, the name of the custodian of records, and the date of the subpoena duces tecum clearly written on the inner envelope or wrapper.
    2. The sealed outer envelope or wrapper shall be addressed as follows:
      1. If the subpoena duces tecum directs attendance in court, to the clerk or the judge of the court;
      2. If the subpoena duces tecum directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena duces tecum for the taking of the deposition or at his or her place of business; and
      3. In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.
      1. The copy of the records produced by the custodian of records shall remain sealed and be opened:
        1. At the time of trial, deposition, or hearing; or
        2. Upon the direction of the judge, court, officer, body, or tribunal conducting the hearing.
      2. Before directing that the inner envelope or wrapper be opened, the judge, court, officer, body, or tribunal first shall ascertain if the custodian of records is authorized to release the records under § 12-18-620, § 12-18-710, § 12-18-909, or § 12-18-910.
    1. The records shall be opened in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing.
    2. When the custodian of records is ordered to appear personally, he or she may open the sealed envelope or wrapper if the records produced are returned.
  2. The copy of the records shall be admissible in evidence to the same extent as though the original record were offered and the custodian of records had been present and testified to the matters stated in the affidavit.
      1. When the personal attendance of the custodian of records is requested, the subpoena duces tecum shall contain a clause which reads: “The personal attendance of the custodian of records is necessary”.
      2. When both the personal attendance of the custodian of records and the production of a copy of the records are requested, the subpoena duces tecum shall contain a clause which reads: “A copy of the records and the personal attendance of the custodian of records are necessary”.
    1. When the personal attendance of the custodian of records is requested, the reasonable cost of producing the records and expenses for personal attendance shall be charged to the party requesting the subpoena duces tecum.

History. Acts 2015, No. 1097, § 5.

Subchapter 10 — Protective Custody

12-18-1001. Protective custody generally.

  1. A police officer, law enforcement, a juvenile division of circuit court judge during juvenile proceedings concerning the child or a sibling of the child, or a designated employee of the Department of Human Services may take a child into custody or any person in charge of a hospital or similar institution or any physician treating a child may keep that child in his or her custody without the consent of the parent or the guardian, whether or not additional medical treatment is required, if:
    1. The child is subjected to neglect as defined under § 12-18-103(14)(B) and the department assesses the family and determines that the newborn and any other children, including siblings, under the custody or care of the mother are at substantial risk of serious harm such that the children need to be removed from the custody or care of the mother;
    2. The child is dependent as defined in the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.; or
    3. Circumstances or conditions of the child are such that continuing in his or her place of residence or in the care and custody of the parent, guardian, custodian, or caretaker presents an immediate danger to the health or physical well-being of the child.
  2. However, custody shall not exceed seventy-two (72) hours except in the event that the expiration of seventy-two (72) hours falls on a weekend or holiday, in which case custody may be extended to the end of the next business day following the weekend or holiday.
  3. If the department assesses the health and safety of a child and determines that there is an immediate danger to the health or physical well-being of the child in the care, custody, or control of the legal parent, guardian, or custodian, the department shall place the child into protective custody and shall not direct or allow the legal parent, guardian, or custodian to place the child in the care, custody, or control of another person.
    1. If the department assesses the health and safety of a child and determines that the child cannot safely remain in the care, custody, or control of the legal parent, guardian, or custodian without the implementation of a protection plan, the department may implement a protection plan that allows the child to remain in his or her place of residence and includes services to address the safety of the child.
      1. If a protection plan is implemented under subdivision (d)(1) of this section, then the department shall reassess the health and safety of the child within thirty (30) days of the date on which the protection plan was implemented.
      2. If the department determines that a substantial risk of harm to the health and safety of the child remains after a reassessment under subdivision (d)(2)(A) of this section is performed, then the department shall file a petition for dependency-neglect.
    2. This subsection does not apply if the parent, guardian, or custodian is not the alleged offender and the parent, guardian, or custodian is not alleged to have failed to protect the child.
  4. If protective custody is taken by a juvenile division circuit court judge during juvenile proceedings concerning the child or a sibling of the child, the court shall:
    1. Appoint a dependency-neglect attorney ad litem for the child or children for whom protective custody was taken; and
    2. Designate a member of the court's staff, a party to the juvenile case, or a juvenile officer to immediately provide a copy of the order of appointment and all relevant information from the juvenile case to the attorney ad litem appointed by the court.
  5. The department shall:
    1. Assume custody of every child who is taken into custody under this subchapter;
    2. Assess the health and safety of each child who is taken into custody under this subchapter to determine whether to continue or release custody of the child;
    3. Release custody of a child who is taken into custody under this subchapter if the department determines that custody is no longer required under this section; and
    4. Notify the circuit court if the department releases custody of a child whom the circuit court has taken into custody under this subchapter.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 25; 2015, No. 1017, §§ 15, 16; 2017, No. 963, § 1; 2019, No. 531, § 6.

Amendments. The 2011 amendment substituted “danger to the health or physical well-being of the child” for ”danger of severe maltreatment” in (a)(3).

The 2015 amendment substituted “to the end of” for “through” in (b); and added (c), (d), and (e).

The 2017 amendment redesignated former (d) as (d)(1); added (d)(2) and (d)(3); and substituted “may implement a protection plan that allows the child to remain in his or her place of residence and includes services to address the safety of the child” for “shall file a petition for dependency-neglect” in (d)(1).

The 2019 amendment added (f).

Cross References. Arkansas Juvenile Code of 1989, § 9-27-301 et seq.

Case Notes

Clothing for School.

Order for the Arkansas Department of Human Services to provide a pregnant teenager with school uniforms and maternity clothes was clearly erroneous because the lack of such did not pose an immediate danger to the teenager's health or physical well-being under subsection (a) of this section; there was a lack of evidence to support the finding that the teenager was at immediate risk of severe maltreatment and that family services were necessary to prevent her removal, the failure to make findings necessitated reversal, and the trial court's personal recollections were not sufficient. In addition, even if the teenager lacked school uniforms and maternity clothes because her family could not afford them and was kept out of school as a result, this did not constitute neglect that warranted removal from the home. Ark. Dep't of Human Servs. v. A.M., 2012 Ark. App. 240, 423 S.W.3d 86 (2012).

State Actor Taking Children Into Custody.

District court did not err in denying the child abuse investigator's motion to dismiss the parents' civil rights claim that she had removed their minor children from their home without an adequate basis because pleaded facts plausibly showed that she had acted under color of state law to separate the children from the parents, have them questioned and examined, and removed by police at her insistence. Stanley v. Finnegan, 899 F.3d 623 (8th Cir. 2018).

Cited: Ark. Dep't of Human Servs. v. Veasley, 2016 Ark. App. 175 (2016).

12-18-1002. Placement in a foster home.

A county sheriff or chief of police may place a child in his or her custody in a Department of Human Services foster home if:

  1. The county sheriff or chief of police contacts the on-call worker for the department and does not get a return phone call within thirty (30) minutes;
  2. The county sheriff or chief of police contacts the department emergency notification line and does not get a return phone call within fifteen (15) minutes;
  3. The foster parent is personally well-known to the county sheriff or the chief of police;
  4. The county sheriff or chief of police has:
    1. Determined that the foster parent's home is safe and provides adequate accommodations for the child; and
    2. Performed a criminal record and child maltreatment check on the foster parent as required under § 9-28-409; and
  5. On the next business day, the county sheriff or chief of police immediately notifies the department of the time and date that the child was placed in the foster parent's home.

History. Acts 2009, No. 749, § 1; 2011, No. 779, § 20.

Amendments. The 2011 amendment inserted “in his or her custody” in the introductory language.

12-18-1003. Consent for health care and services.

An individual taking a child into custody may give effective consent for medical, dental, health, and hospital services during protective custody.

History. Acts 2009, No. 749, § 1.

12-18-1004. Notice when custody is invoked.

In any case in which custody is invoked under this subchapter, the individual taking the child into custody shall immediately notify the Department of Human Services.

History. Acts 2009, No. 749, § 1; 2019, No. 531, § 7.

Amendments. The 2019 amendment inserted “under this subchapter”, inserted “immediately”, and deleted “in order that a child protective proceeding may be initiated within the time specified in this subchapter” following “Services”.

12-18-1005. Location.

  1. A school, residential facility, hospital, or similar institution where a child may be located shall not require a written order for the Department of Human Services to take a seventy-two-hour hold under this section or § 9-27-313.
  2. Upon notice by the department that a hold has been taken on a child, a school, residential facility, hospital, or similar institution where the child is located shall:
    1. Retain the child until the department takes a hold on the child;
    2. Not notify the parent until the child has been removed by the department; and
    3. Provide the parent or guardian with the name and contact information of the department employee regarding the hold on the child.

History. Acts 2009, No. 749, § 1.

12-18-1006. Custody of children generally — Health and safety of the child.

    1. During the course of any child maltreatment investigation, whether conducted by the Department of Human Services or the Division of Arkansas State Police, the Department of Human Services shall assess the health and safety of a child who is subject to the child maltreatment investigation and determine whether or not custody under this subchapter is required.
    2. If the Division of Arkansas State Police is the investigative agency, it shall disclose information as needed for the Department of Human Services to assess the health and safety of a child subject to the child maltreatment investigation and determine whether or not custody under this subchapter is required.
  1. The child's health and safety shall be the paramount concern in determining whether or not to exercise custody under this subchapter.

History. Acts 2009, No. 749, § 1; 2015, No. 1026, § 15; 2019, No. 531, § 8.

Amendments. The 2015 amendment redesignated (a) as (a)(1); and added (a)(2).

The 2019 amendment rewrote (a)(1) and (a)(2); and substituted “whether or not to exercise custody under this subchapter” for “whether or note to remove a child from the custody of his or her parents” in (b).

12-18-1007. Services to families generally.

  1. The Department of Human Services shall have the authority to make referrals or provide services during the course of a child maltreatment investigation.
  2. Any family may request supportive services from the department.
  3. Supportive services shall be offered for the purpose of preventing child maltreatment.

History. Acts 2009, No. 749, § 1.

12-18-1008. Removal from home — Procedure.

  1. If the Department of Human Services determines that custody under this subchapter is required, the Department of Human Services shall take steps to remove the child under custody as outlined in this chapter or pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.
  2. After the Department of Human Services has removed the child, the child shall be placed in a licensed or approved foster home, shelter, facility, or an exempt child welfare agency as defined at § 9-28-402(12).
  3. No one, including the family, the Department of Human Services, the Division of Arkansas State Police, or local law enforcement shall allow a child to be placed in a nonapproved or nonlicensed foster home, shelter, or facility.

History. Acts 2009, No. 749, § 1; 2019, No. 531, § 9.

Amendments. The 2019 amendment substituted “If the Department of Human Services determines that custody under this subchapter is required, the department shall take steps” for “If an investigation under this chapter determines that the child cannot safely remain at home, the Department of Human Services shall take steps” in (a).

12-18-1009. When the investigation determines that the child can safely remain at home.

If an investigation under this chapter determines that a child can safely remain at home, the parents retain the right to keep the child at home or to place the child outside the home.

History. Acts 2009, No. 749, § 1.

12-18-1010. When a child maltreatment investigation is determined to be true or true but exempted.

  1. If an investigation under this chapter is determined to be true or true but exempted under § 12-18-702(2)(C), the Department of Human Services may open a protective services case.
    1. If the department opens a protective services case, it shall provide services to the family in an effort to prevent additional maltreatment to the child or the removal of the child from the home.
    2. The services shall be relevant to the needs of the family.
  2. If at any time during the protective services case the department determines that the child cannot safely remain at home, it shall take steps to remove the child under custody as outlined in this chapter or under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.
  3. Upon request, the department shall be provided at no cost a copy of the child's public and private school records if the department has an open protective services case.
  4. Upon request, the department shall be provided a copy of the results of radiology procedures, videotapes, photographs, or medical records on a child if the department has an open protective services case.

History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 26.

Amendments. The 2011 amendment inserted “or true but exempted under § 12-18-702(2)(C)” in (a).

12-18-1011. When a report of child maltreatment is determined to be unsubstantiated.

  1. If the report of child maltreatment is unsubstantiated, the Department of Human Services may offer supportive services to the family.
  2. The family may accept or reject supportive services at any time.

History. Acts 2009, No. 749, § 1.

Subchapter 11 — Public Disclosure of Information on Fatalities and Near Fatalities

A.C.R.C. Notes. Acts 2009, No. 675, § 2, provided: “If a law is not enacted establishing a Child Maltreatment Act in Title 12, Chapter 18, of the Arkansas Code in the Eighty-Seventh Session of the General Assembly, the Arkansas Code Revision Commission shall assign this act to Title 12, Chapter 12, of the Arkansas Code.”

Acts 2009, No. 749, established a Child Maltreatment Act in this chapter. As a result, Acts 2009, No. 675, is codified in this chapter.

12-18-1101. Procedure if the investigation is pending on a fatality.

Upon request, the Department of Human Services shall release the following information to the general public when an investigation is pending on a report of a fatality of a child to the Child Abuse Hotline:

  1. Age, race, and gender of the child;
  2. Date of the child's death;
  3. Allegations or preliminary cause of death;
  4. County and type of placement of the child at the time of incident leading to the child's death;
  5. Generic relationship of the alleged offender to the child;
  6. Agency conducting the investigation;
  7. Legal action taken by the department;
  8. Services offered or provided by the department presently and in the past; and
  9. Name of the child.

History. Acts 2009, No. 675, § 1; 2013, No. 1181, § 4.

Amendments. The 2013 amendment inserted “type of” preceding “placement” in (4).

12-18-1102. Procedure if the investigation results in a true report related to a fatality.

Upon request, the Department of Human Services shall release the following information to the general public when the investigative determination is true on a report of a fatality of a child:

    1. A summary of previous child maltreatment investigations.
    2. The disclosure shall not include the name of the offender;
  1. A summary of the current child maltreatment investigation, including:
    1. The nature and extent of the child's present and past injuries;
    2. Medical information pertaining to the death; and
    3. The name of the offender if due process has been satisfied or the offender has been arrested;
  2. All relevant risk and safety assessments completed on the child;
  3. Information about criminal charges, if known; and
  4. Any action taken by the Department of Human Services or the Crimes Against Children Division of the Department of Arkansas State Police, including personnel action and licensing action.

History. Acts 2009, No. 675, § 1; 2013, No. 1181, § 5.

Amendments. The 2013 amendment rewrote (1)(B); deleted former (1)(C); and inserted “relevant” preceding “risk” in (3).

12-18-1103. Procedure if the investigation results in an unsubstantiated report related to a fatality.

Upon request, the Department of Human Services shall release the following information to the general public when the investigative determination is unsubstantiated on a report of a fatality of a child:

    1. A summary of previous child maltreatment investigations.
    2. The disclosure shall not include the name of the offender;
  1. A summary of the current child maltreatment investigation, including medical information pertaining to the death; however, the name of the alleged offender shall not be disclosed;
  2. All relevant risk and safety assessments completed on the child;
  3. Information about criminal charges, if known; and
  4. Any action taken by the Department of Human Services or the Crimes Against Children Division of the Department of Arkansas State Police, including personnel action and licensing action.

History. Acts 2009, No. 675, § 1; 2013, No. 1181, § 6.

Amendments. The 2013 amendment rewrote (1)(B); deleted former (1)(C); and inserted “relevant” preceding “risk” in (3).

12-18-1104. Information not to be released regarding a child fatality.

Concerning the fatality of a child, the Department of Human Services shall not release:

  1. Information on siblings of the child;
  2. Attorney-client communications; or
  3. Any information if release of such information would jeopardize a criminal investigation.

History. Acts 2009, No. 675, § 1.

12-18-1105. Procedure if the investigation is pending related to a near fatality.

Upon request, the Department of Human Services shall release the following information to the general public when an investigation is pending on a report of a near fatality of a child to the Child Abuse Hotline:

  1. Age, race, and gender of the child;
  2. Date of the near fatality;
  3. Allegations or preliminary cause of the near fatality;
  4. County and type of placement of the child at the time of the near fatality;
  5. Generic relationship of the alleged offender to the child;
  6. Agency conducting the investigation;
  7. Legal action taken by the department; and
  8. Services offered or provided by the department presently and in the past.

History. Acts 2009, No. 675, § 1; 2013, No. 1181, § 7.

Amendments. The 2013 amendment inserted “type of” preceding “placement” in (4) and substituted “presently” for “now” in (8).

12-18-1106. Procedure if the investigation results in a true report related to a near fatality.

Upon request, the Department of Human Services shall release the following information to the general public when the investigative determination is true on a report of a near fatality of a child:

  1. A nonidentifying summary of any previous child maltreatment investigations;
  2. A nonidentifying summary of the current child maltreatment investigation, including:
    1. The nature and extent of the child's present and past injuries; and
    2. Medical information pertaining to the incident;
  3. Information about criminal charges, if known; and
  4. Any action taken by the Department of Human Services or the Crimes Against Children Division of the Department of Arkansas State Police, including personnel action and licensing action.

History. Acts 2009, No. 675, § 1.

12-18-1107. Procedure if the investigation results in an unsubstantiated report related to a near fatality.

Upon request, the Department of Human Services shall release the following information to the general public when the investigative determination is unsubstantiated on a report of a near fatality of a child:

  1. A nonidentifying summary of any previous child maltreatment investigations;
  2. A nonidentifying summary of the current child maltreatment investigation;
  3. Information about criminal charges, if known; and
  4. Any action taken by the Department of Human Services or the Crimes Against Children Division of the Department of Arkansas State Police, including personnel action and licensing action.

History. Acts 2009, No. 675, § 1.

12-18-1108. Information not to be released regarding the near fatality of a child.

Concerning the near fatality of a child, the Department of Human Services shall not release:

  1. Information on siblings of the child;
  2. Attorney-client communications; or
  3. Any information if release of such information would jeopardize a criminal investigation.

History. Acts 2009, No. 675, § 1; 2011, No. 779, § 21.

Amendments. The 2011 amendment inserted “near” preceding “fatality” in the introductory language.

Subchapter 12 — Training Regarding Sexually Exploited Children

A.C.R.C. Notes. Acts 2013, No. 1257, § 1, provided: “Legislative findings. The General Assembly finds that:

“(1) The criminal justice system is not the appropriate place for sexually exploited children because it serves to retraumatize them and to increase their feelings of low self-esteem;

“(2) Both federal and international law recognize that sexually exploited children are the victims of crime and should be treated as such;

“(3) Sexually exploited children should, when possible, be diverted into services that address the needs of these children outside of the justice system; and

“(4) Sexually exploited children deserve the protection of child welfare services, including diversion, crisis intervention, counseling, and emergency housing services.”

Acts 2013, No. 1257, § 2, provided: “Legislative intent.

“(1) The intent of this act is to protect a child from further victimization after the child is discovered to be a sexually exploited child by ensuring that a child protective response is in place in the state.

“(2) This is to be accomplished by presuming that any child engaged in prostitution or solicitation is a victim of sex trafficking and providing these children with the appropriate care and services when possible.

“(3) In determining the need for and capacity of services that may be provided, the Department of Human Services shall recognize that sexually exploited children have separate and distinct service needs according to gender, and every effort should be made to ensure that these children are not prosecuted or treated as juvenile delinquents, but instead are given the appropriate social services.”

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-18-1201. Definition.

As used in this subchapter, “sexually exploited child” means a person less than eighteen (18) years of age who has been subject to sexual exploitation because the person:

  1. Is a victim of trafficking of persons under § 5-18-103;
  2. Is a victim of child sex trafficking under 18 U.S.C. § 1591, as it existed on January 1, 2013; or
  3. Engages in an act of prostitution under § 5-70-102 or sexual solicitation under § 5-70-103.

History. Acts 2013, No. 1257, § 8.

12-18-1202. Training regarding sexually exploited children.

The Arkansas Juvenile Officers Association, the Division of Law Enforcement Standards and Training, or the Prosecutor Coordinator may provide training to intake officers, law enforcement, prosecutors, and any other appropriate staff concerning how to identify a sexually exploited child and how to obtain appropriate services for a sexually exploited child.

History. Acts 2013, No. 1257, § 8; 2019, No. 910, § 5874.

Amendments. The 2019 amendment substituted “the Division of Law Enforcement Standards and Training” for “Arkansas Law Enforcement Training Academy”.

Research References

U. Ark. Little Rock L. Rev.

Mary Ward, Note: Arkansas’s Human Trafficking Laws: Steps in the Right Direction or a False Sense of Accomplishment?, 37 U. Ark. Little Rock L. Rev. 133 (2014).

Chapter 19 Human Trafficking — Prevention and Law Enforcement

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-19-101. State Task Force for the Prevention of Human Trafficking.

    1. The Attorney General may establish a State Task Force for the Prevention of Human Trafficking.
    2. The task force shall address all aspects of human trafficking, including sex trafficking and labor trafficking of both United States citizens and foreign nationals.
  1. If established, representatives on the task force shall be appointed by the Attorney General and may include representatives from:
    1. The office of the Attorney General;
    2. The office of the Governor;
    3. The Department of Labor and Licensing;
    4. The Department of Health;
    5. The Department of Human Services;
    6. The Arkansas Association of Chiefs of Police;
    7. The Arkansas Sheriffs' Association;
    8. The Division of Arkansas State Police;
    9. The Arkansas Prosecuting Attorneys Association;
    10. Local law enforcement; and
    11. Nongovernmental organizations such as:
      1. Those specializing in the problems of human trafficking;
      2. Those representing diverse communities disproportionally affected by human trafficking;
      3. Agencies devoted to child services and runaway services; and
      4. Academic researchers dedicated to the subject of human trafficking.
  2. If the task force is created by the Attorney General, he or she may invite federal agencies that operate in the state to be members of the task force, including without limitation:
    1. The Federal Bureau of Investigation;
    2. United States Immigration and Customs Enforcement; and
    3. The United States Department of Labor.
  3. If the task force is created by the Attorney General, the task force shall:
    1. Develop a state plan;
    2. Coordinate the implementation of the state plan;
    3. Coordinate the collection and sharing of human trafficking data among government agencies in a manner that ensures that the privacy of victims of human trafficking is protected and that the data collection shall respect the privacy of victims of human trafficking;
    4. Coordinate the sharing of information between agencies to detect individuals and groups engaged in human trafficking;
    5. Explore the establishment of state policies for time limits for the issuance of law enforcement agency endorsements as described in 8 C.F.R. § 214.11(f)(1), as it existed on January 1, 2013;
    6. Establish policies to enable state government to work with nongovernmental organizations and other elements of the private sector to prevent human trafficking and provide assistance to victims of human trafficking who are United States citizens or foreign nationals;
    7. Evaluate various approaches used by state and local governments to increase public awareness of human trafficking, including trafficking of United States citizens and foreign national victims;
    8. Develop curriculum and train law enforcement agencies, prosecutors, public defenders, judges, and others involved in the criminal and juvenile justice systems on:
      1. Offenses under the Arkansas Human Trafficking Act of 2013, § 5-18-101 et seq.;
      2. Methods used in identifying victims of human trafficking who are United States citizens or foreign nationals, including preliminary interview techniques and appropriate questioning methods;
      3. Methods for prosecuting human traffickers;
      4. Methods of increasing effective collaboration with nongovernmental organizations and other relevant social service organizations in the course of investigating and prosecuting a human trafficking case;
      5. Methods for protecting the rights of victims of human trafficking, taking into account the need to consider human rights and special needs of women and minors;
      6. The necessity of treating victims of human trafficking as crime victims rather than criminals; and
      7. Methods for promoting the safety of victims of human trafficking; and
    9. Submit a report of its findings and recommendations to the Governor, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate.

History. Acts 2013, No. 132, § 6; 2013, No. 133, § 6; 2019, No. 910 § 5403.

A.C.R.C. Notes. Acts 2013, No. 133, § 1, provided: “Title. This act shall be cited as the ‘Arkansas Human Trafficking Act of 2013’.”

Amendments. The 2019 amendment substituted “Department of Labor and Licensing” for “Department of Labor” in (b)(3); and substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (b)(8).

Research References

ALR.

Validity, Construction, and Application of State Statutes Proscribing Human Trafficking. 101 A.L.R.6th 417 (2015).

U. Ark. Little Rock L. Rev.

Mary Ward, Note: Arkansas’s Human Trafficking Laws: Steps in the Right Direction or a False Sense of Accomplishment?, 37 U. Ark. Little Rock L. Rev. 133 (2014).

12-19-102. Posting information about the National Human Trafficking Resource Center Hotline.

  1. The following establishments shall post in a conspicuous place near the entrance of the establishment, or where posters and notices of this type customarily are posted, a poster described in subsection (b) of this section measuring at least eight and one-half inches by eleven inches (8½" x 11") in size:
    1. A hotel, motel, or other establishment that has been cited as a public nuisance for prostitution under § 20-27-401;
    2. A strip club or other sexually oriented business;
    3. A private club that has a liquor permit for on-premises consumption and does not hold itself out to be a food service establishment;
    4. An airport;
    5. A train station that serves passengers;
    6. A bus station; and
    7. A privately owned and operated facility that provides food, fuel, shower or other sanitary facilities, and overnight parking.
    1. The poster shall read:
    2. The poster shall be printed in English, Spanish, and any other language mandated by the Voting Rights Act of 1965, 42 U.S.C. § 1973, as it existed on January 1, 2013, in the county where the poster will be posted.
  2. The poster shall be available on the websites of all of the following:
    1. The Alcoholic Beverage Control Board where documents associated with obtaining a liquor license or alcoholic beverage license are customarily located;
    2. The Department of Labor and Licensing; and
    3. The Arkansas Department of Transportation.
    1. To obtain a copy of the poster required to be posted under this section, the owners or operators of an establishment required to post the notice under this section shall:
      1. Print the poster from any of the internet websites in subsection (c) of this section; or
      2. Request that the poster be mailed for the cost of printing and first-class postage.
    2. The owner or operator shall post the sign in compliance with subsection (a) of this section.
    1. If the regulatory agency that licenses or permits an establishment under this section finds that the establishment has failed to post the information required under this section, the owner or operator shall receive:
      1. For a first violation, a warning; and
      2. For a second or subsequent violation, a fine not to exceed five hundred dollars ($500).
    2. The violation of or noncompliance with this section, and each day's continuance thereof, shall constitute a separate and distinct violation.
  3. The civil fines in subsection (e) of this section do not apply to establishments that are owned or operated by the State of Arkansas.

“If you or someone you know is being forced to engage in any activity and cannot leave — whether it is commercial sex, housework, farm work, or any other activity — call the National Human Trafficking Resource Center Hotline at 1-888-373-7888 to access help and services. Victims of human trafficking are protected under United States and Arkansas state law.

The Hotline is:

• Available 24 hours a day, 7 days a week

• Toll-free

• Operated by a non-profit, non-governmental organization

• Anonymous and confidential

• Accessible in 170 languages

• Able to provide help, referral to services, training, and general information”.

History. Acts 2013, No. 1157, § 5; 2017, No. 707, § 20; 2019, No. 910, § 5404.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (c)(3).

The 2019 amendment substituted “Department of Labor and Licensing” for “Department of Labor” in (c)(2).

Research References

ALR.

Validity, Construction, and Application of State Statutes Proscribing Human Trafficking. 101 A.L.R.6th 417 (2015).

U. Ark. Little Rock L. Rev.

Mary Ward, Note: Arkansas’s Human Trafficking Laws: Steps in the Right Direction or a False Sense of Accomplishment?, 37 U. Ark. Little Rock L. Rev. 133 (2014).

12-19-103. Development of a state protocol for assistance.

The Department of Human Services shall develop a state protocol for assisting victims of human trafficking with applying for federal and state benefits and services to which they may be entitled.

History. Acts 2013, No. 1157, § 5.

Research References

ALR.

Validity, Construction, and Application of State Statutes Proscribing Human Trafficking. 101 A.L.R.6th 417 (2015).

12-19-104. Law enforcement agency nonimmigrant visa certification.

  1. Each law enforcement agency shall adopt a policy for the completion and signing of T and U nonimmigrant visa certification forms for human trafficking victims.
  2. The policy adopted under subsection (a) of this section shall include a requirement that a law enforcement official shall complete the certification no later than thirty (30) days after receipt of the request for certification.

History. Acts 2015, No. 1138, § 3.

12-19-105. Training and educational materials on human trafficking.

  1. The Department of Education and the Department of Human Services shall collaborate on providing awareness and training materials to local school districts on human trafficking that include without limitation strategies for the prevention of the trafficking of children.
  2. The training materials required under subsection (a) of this section shall describe local, state, and national resources to which a student, a parent, a counselor, or school personnel may consult for information on human trafficking that includes without limitation strategies for the prevention of the trafficking of children.

History. Acts 2019, No. 937, § 1.

Chapter 20 Law Enforcement Agencies for Private Colleges and Universities

Cross References. Private college or university law enforcement officers, § 12-9-211.

Subchapter 1 — General Provisions

12-20-101. Definitions.

As used in this chapter:

  1. “Control” means that a private college or university is maintained on the property or rents or leases the property to facilitate events or functions of the private college or university;
  2. “Executive head” means the president or governing board of a private college or university;
  3. “Private college or university” means a college, university, or teaching hospital that has all of the following characteristics:
    1. Is not owned or controlled by the state or a political subdivision of the state;
    2. Provides a program of education in residence leading to a baccalaureate degree or provides a program of education in residence for which the baccalaureate degree is a prerequisite, leading to an academic or professional degree;
    3. Is accredited by the North Central Association of Colleges and Schools or another nationally recognized agency that accredits private colleges and universities; and
    4. Has its principal place of business located in the state; and
  4. “Property” means both real property and personal property owned by or under the control of the private college or university and includes without limitation all highways, streets, alleys, and rights-of-way that are contiguous or adjacent to real property owned by or under the control of the private college or university.

History. Acts 2013, No. 227, § 3.

12-20-102. Applicability — Cumulative effect.

  1. This chapter applies to the property of each private college or university.
  2. This chapter does not mean that a private college or university is an agent of the State of Arkansas.
  3. This chapter is cumulative to any remedies that each private college or university may possess for enforcing its rules and regulations, including its rights to impose sanctions through fees and charges and its rights to discipline, deny service, and expel.

History. Acts 2013, No. 227, § 3.

12-20-103. Enforcement.

The prosecuting attorney or the city attorney, as may be appropriate, shall appear and prosecute in court all criminal offenses arising under this chapter.

History. Acts 2013, No. 227, § 3.

Subchapter 2 — Law Enforcement Officers

12-20-201. Appointment and removal of private college or university law enforcement officers.

  1. An executive head of a private college or university may appoint one (1) or more of the employees of the private college or university as a private college or university law enforcement officer for the private college or university, who shall exercise law enforcement officer authority under the laws of this state.
  2. A private college or university law enforcement officer shall:
    1. Have all the powers, duties, and obligations provided under the law for municipal police departments and county sheriffs, to be exercised as required for the protection of the private college or university, together with any other duties that may be assigned by the employing private college or university; and
    2. Meet the requirements for certification set out by the Arkansas Commission on Law Enforcement Standards and Training in addition to any private college or university requirements.
    1. The jurisdictional powers or responsibilities of a county sheriff or municipal police department over the property of a private college or university or a person on the property of a private college or university are not ceded to a private college or university law enforcement officer.
    2. The appointment or designation of private college or university law enforcement officers does not supersede the authority of the Department of Arkansas State Police, a county sheriff, or a municipal police department of the jurisdiction within which the property of the private college or university, or portions of it, is located.
    1. A private college or university law enforcement officer shall be identified by a shield or badge bearing the name of the private college or university.
    2. The private college or university shall issue an identification card bearing the photograph of the private college or university law enforcement officer who shall carry it on his or her person at all times when on duty and display it upon request.
    1. A private college or university law enforcement officer's authorization to have and to exercise the powers provided by law for law enforcement officers shall be further evidenced by a letter of appointment issued under the seal of the private college or university.
    2. The executive head of the private college or university shall maintain a file containing each private college or university law enforcement officer's letter of appointment and all other certificates and information consistent with the rules of the commission.
      1. The executive head of the private college or university or the department may revoke in writing the appointment to serve as a private college or university law enforcement officer for the private college or university.
      2. Upon revocation as described in subdivision (e)(3)(A) of this section, the person shall not possess or exercise the authority of a private college or university law enforcement officer.
      3. A copy of all revocations shall be placed into the file described in subdivision (e)(2) of this section.
      4. A private college or university employing a private college or university law enforcement officer shall notify the commission of any change in the private college or university law enforcement officer's status within three (3) days.
  3. A private college or university law enforcement officer shall not be reimbursed with state funds for any training he or she receives or be eligible to participate in any state or municipal retirement system.

History. Acts 2013, No. 227, § 3.

12-20-202. Private college or university law enforcement officer's duties and powers — Definition.

  1. A private college or university law enforcement officer's primary jurisdiction is the private college or university employing him or her, and except to the extent otherwise limited by the executive head of the private college or university appointing him or her, the private college or university law enforcement officer shall:
    1. Protect property;
    2. Preserve and maintain proper order and decorum;
    3. Prevent unlawful assemblies, disorderly conduct, and trespass;
    4. Exclude and eject persons detrimental to the well-being of the private college or university; and
    5. Regulate the operation and parking of motor vehicles upon property of the private college or university.
    1. A private college or university law enforcement officer shall exercise police supervision on behalf of the private college or university and may arrest any person in the private college or university law enforcement officer's primary jurisdiction who is committing an offense against any law of the State of Arkansas or against the ordinances of the city or county in which the private college or university is located.
    2. A private college or university law enforcement officer may summon a posse comitatus if necessary to complete an arrest under subdivision (b)(1) of this section.
  2. A private college or university law enforcement officer may make an arrest for an offense against any law of the State of Arkansas outside his or her primary jurisdiction if the private college or university law enforcement officer is:
    1. Summoned by another law enforcement agency to provide assistance;
    2. Assisting another law enforcement agency;
    3. Exercising his or her police powers in accordance with a written mutual aid agreement or memorandum of understanding between the private college or university and the municipality or county within which the private college or university is located; or
      1. Traveling to or from any location in the state on official business.
      2. As used in subdivision (c)(4)(A) of this section, “official business” includes without limitation:
        1. Engaging in intelligence-gathering activity relating to security on the property of the private college or university employing him or her;
        2. Investigating a crime committed on the property of the private college or university employing him or her;
        3. Transporting money, valuables, securities, or other valuables on behalf of the private college or university employing him or her;
        4. Providing security or protective services for officials or visiting dignitaries to the private college or university employing him or her; or
        5. Continuously and immediately pursuing a person for an offense committed on the property of the private college or university employing him or her or in the private college or university law enforcement officer's eyesight.
    1. When a private college or university law enforcement officer makes an arrest outside his or her primary jurisdiction, the private college or university law enforcement officer shall promptly notify the law enforcement agency with jurisdiction and forward a written report to the law enforcement agency with jurisdiction no later than the next working day.
    2. The law enforcement agency having jurisdiction may choose to conduct the investigation or allow the private college or university law enforcement officer to conduct the investigation.

History. Acts 2013, No. 227, § 3.

12-20-203. Records kept by a private college or university law enforcement agency.

Records generated or kept by a private college or university law enforcement agency under this chapter are subject to the same record keeping and disclosure requirements of a state or local law enforcement agency.

History. Acts 2013, No. 227, § 3.

Subchapter 3 — Motor Vehicle Regulation

12-20-301. Rules and regulations for motor vehicles on private college or university grounds.

    1. Each private college or university may promulgate and amend rules and regulations for the operation and parking of motor vehicles on its property as its governing board deems necessary if the rules and regulations do not conflict with governing state law or a city or county ordinance.
    2. The rules and regulations described in subdivision (a)(1) of this section may be submitted to the city or county where the property of the private college or university is located for adoption as ordinances, including without limitation ordinances that:
      1. Limit the rate of speed; and
      2. Enforce other traffic rules, including control and direction of traffic.
  1. Speed limits shall be posted at reasonable intervals, and traffic and parking directions and prohibitions shall be indicated by signs.

History. Acts 2013, No. 227, § 3.

Chapters 21-24 [Reserved.]

[Reserved.]

Subtitle 3. Correctional Facilities and Programs

Chapter 25 Public Hearing Requirements Prior to Location of Community-Based Residential Facilities

12-25-101. Location or construction of residential facilities for sexual or violent offenders — Public hearings.

    1. No state agency, board, commission, or governing body of any municipality or county shall approve the location or construction of any community-based residential facility housing juveniles or adults adjudicated or convicted of any sexual or violent offense or any other offense that would constitute a Class C felony or higher, even if the facility otherwise conforms to applicable zoning ordinances, until a public hearing is conducted in the municipality or county of the proposed location of the facility at least thirty (30) days prior to the contracting for the acquisition of any property on which to locate the proposed facility or any existing structure in which to locate the proposed facility by the owner, operator, or care provider of the proposed facility.
    2. No community-based residential facility housing juveniles or adults adjudicated or convicted of any sexual or violent offense or any other criminal offense that would constitute a Class C felony or higher shall be located or constructed within any municipality or county of this state until a public hearing is conducted in the municipality or county of the proposed location of the facility at least thirty (30) days prior to the contracting for the acquisition of any property on which to locate the proposed facility or any existing structure in which to locate the proposed facility by the owner, operator, or care provider of the proposed facility.
  1. All residents within one thousand feet (1000') of the proposed location of the facility shall be notified by mail at least ten (10) days prior to the day of the hearing.

History. Acts 1997, No. 626, § 1; 2005, No. 1962, § 45.

A.C.R.C. Notes. As enacted by Acts 1997, No. 626, § 1, subsection (a) began:

“In order to ensure public notice and safety, from and after August 1, 1997,”.

Amendments. The 2005 amendment rewrote (a).

Cross References. Community-based residential programs and regulations, § 25-10-134.

Chapter 26 Criminal Detention Facilities Standards

A.C.R.C. Notes. Acts 2017, No. 153, § 9, provided: “Temporary legislation.

“(a)(1) The criminal detention facility review committees established under § 12-26-101 et seq. before the effective date of this act are abolished on January 1, 2019.

“(2) A vacancy on a committee abolished by this act shall not be filled before January 1, 2019, absent an appointment by the Governor in the event of an emergency.

“(b) At the initial meeting of a criminal detention facility review committee created under this act, the members of the committee shall draw lots for staggered initial terms as follows:

“(1) One (1) member to serve an initial one-year term;

“(2) One (1) member to serve an initial two-year term;

“(3) One (1) member to serve an initial three-year term; and

“(4) Two (2) members to serve initial four-year terms.”

Effective Dates. Acts 1983, No. 741, § 13: Mar. 23, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that a need exists to continue the adoption and enforcement of minimum standards for criminal detention facilities within this state, and that immediate action is necessary to achieve and facilitate an orderly transfer of the powers, functions, and duties of the Criminal Detention Facilities Board to the several Criminal Detention Facilities Review Committees created by this act. Therefore, an emergency is deemed to exist, and in order to protect the public peace, health, and safety, this act shall be in full force and effect from and after its passage and approval.”

Acts 1989, No. 515, § 8: Mar. 13, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is immediately necessary to provide for an adequate system of monitoring jails, juvenile detention facilities, and criminal detention facilities to prohibit juveniles from being treated as criminals, to place such juveniles under proper care, to assure adequate standards for juvenile detention facilities, and to prohibit juveniles from associating with hardened adult criminals; and that the immediate passage of this act is necessary for the protection of juveniles. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation and protection of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 1473, § 74: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act includes technical corrects to Act 923 of 2003 which establishes the classification and compensation levels of state employees covered by the provisions of the Uniform Classification and Compensation Act; that Act 923 of 2003 will become effective on July 1, 2003; and that to avoid confusion this act must also effective on July 1, 2003. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2003.”

Acts 2017, No. 153, § 10: Jan. 1, 2019, except §§ 7-9, effective Aug. 1, 2017. Effective date clause provided: “Sections 1 through 6 of this act are effective on and after January 1, 2019.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-26-101. Policy — Purpose of chapter.

  1. It is declared to be the policy of the State of Arkansas that all criminal detention facilities and juvenile detention facilities within the counties of the state shall conform to certain minimum standards of construction, maintenance, and operation.
  2. It is the purpose of this chapter to implement this policy by establishing a criminal detention facility review committee within each of the criminal detention facility review committee districts of the state with the authority and responsibility to administer the provisions of this chapter and other laws enacted relating to standards for criminal detention facilities and juvenile detention facilities.

History. Acts 1983, No. 741, § 1; A.S.A. 1947, § 46-1210; Acts 2017, No. 153, § 1.

Amendments. The 2017 amendment inserted “and juvenile detention facilities” in (a) and (b); and, in (b), substituted “facility” for “facilities” preceding “review committee within” and substituted “criminal detention facility review committee districts” for “judicial districts”.

Effective Dates. Acts 2017, No. 153, § 10: Jan. 1, 2019, except §§ 7-9, effective Aug. 1, 2017. Effective date clause provided: “Sections 1 through 6 of this act are effective on and after January 1, 2019.”

12-26-102. Definition.

As used in this chapter, “criminal detention facility” means any institution operated by a political subdivision or a combination of political subdivisions for the care, keeping, or rehabilitative needs of adult criminal offenders, including regional jails, county jails, municipal jails, and temporary holding units.

History. Acts 1983, No. 741, § 2; 1985, No. 539, § 1; A.S.A. 1947, § 46-1211; Acts 2001, No. 1185, § 2; 2003, No. 1473, § 26; 2017, No. 153, § 2.

Amendments. The 2017 amendment deleted (1) and (3) through (5); deleted the (2) designation; and substituted “political subdivision or a combination of political subdivisions” for “political jurisdiction or a combination of jurisdictions”.

Effective Dates. Acts 2017, No. 153, § 10: Jan. 1, 2019, except §§ 7-9, effective Aug. 1, 2017. Effective date clause provided: “Sections 1 through 6 of this act are effective on and after January 1, 2019.”

12-26-103. Office of Criminal Detention Facilities Review Coordinator — Creation — Duties.

  1. There is established the Office of Criminal Detention Facilities Review Coordinator within the Department of Corrections which shall consist of:
    1. A criminal detention facilities review coordinator, who shall be appointed by and serve at the pleasure of the Governor; and
    2. An administrative assistant.
  2. The office shall be responsible for promulgating minimum standards for the construction, maintenance, and operation of local, county, regional, or state criminal detention facilities and juvenile detention facilities in accordance with the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
  3. The coordinator shall perform all duties necessary to assure uniformity in the interpretation and administration of the minimum standards by the several criminal facility detention review committees.

History. Acts 1983, No. 741, § 7; A.S.A. 1947, § 46-1216; Acts 1989, No. 515, § 3; 2003, No. 1473, § 27; 2017, No. 153, § 3; 2019, No. 910, § 693.

Amendments. The 2017 amendment deleted former (a)(2) and redesignated former (a)(3) as present (a)(2); deleted “coordinator's” preceding “office” in (b); inserted “criminal facility detention review” in (c); and made a stylistic change.

The 2019 amendment inserted “within the Department of Corrections” in the introductory language of (a).

Effective Dates. Acts 2017, No. 153, § 10: Jan. 1, 2019, except §§ 7-9, effective Aug. 1, 2017. Effective date clause provided: “Sections 1 through 6 of this act are effective on and after January 1, 2019.”

12-26-104. [Repealed.]

Publisher's Notes. This section, concerning the Criminal Detention Facilities Review Commission, was repealed by Acts 2001, No. 1185, § 1. The section was derived from Acts 1985, No. 882, §§ 1, 2; A.S.A. 1947, §§ 46-1220, 46-1221; Acts 1987, No. 881, § 1; 1997, No. 250, § 69.

Acts 1983, No. 741, § 3, provided that, as of the close of business on June 30, 1983, the Criminal Detention Facilities Board, created by Acts 1973, No. 244, § 3 [repealed], was abolished. The section further provided that all the powers, functions, and duties of that board would be assumed and carried out in accordance with the provisions of that act.

12-26-105. Criminal detention facility review committee districts and committees created — Members.

  1. There are created eight (8) criminal detention facility review committee districts as follows:
    1. Criminal Detention Facility Review Committee District One is composed of the following counties: Baxter, Benton, Boone, Carroll, Madison, Marion, Newton, Searcy, and Washington;
    2. Criminal Detention Facility Review Committee District Two is composed of the following counties: Cleburne, Conway, Faulkner, Fulton, Independence, Izard, Sharp, Stone, Van Buren, and White;
    3. Criminal Detention Facility Review Committee District Three is composed of the following counties: Clay, Craighead, Greene, Jackson, Lawrence, Mississippi, Poinsett, and Randolph;
    4. Criminal Detention Facility Review Committee District Four is composed of the following counties: Crawford, Franklin, Johnson, Logan, Montgomery, Polk, Pope, Scott, Sebastian, and Yell;
    5. Criminal Detention Facility Review Committee District Five is composed of the following counties: Crittenden, Cross, Lee, Lonoke, Monroe, Phillips, Prairie, St. Francis, and Woodruff;
    6. Criminal Detention Facility Review Committee District Six is composed of the following counties: Arkansas, Garland, Grant, Hot Spring, Jefferson, Perry, Pulaski, and Saline;
    7. Criminal Detention Facility Review Committee District Seven is composed of the following counties: Clark, Columbia, Hempstead, Howard, Lafayette, Little River, Miller, Nevada, Ouachita, Pike, and Sevier; and
    8. Criminal Detention Facility Review Committee District Eight is composed of the following counties: Ashley, Bradley, Calhoun, Chicot, Cleveland, Dallas, Desha, Drew, Lincoln, and Union.
    1. There is created within each district a criminal detention facility review committee to be composed of five (5) members who are residents within the district and who do not hold public office.
    2. The Governor shall appoint the members of a committee for a term of four (4) years as follows:
      1. A county in the district shall be represented on the committee by no more than one (1) member;
      2. At least one (1) member on the committee shall be a youth services worker or juvenile advocate;
      3. The Governor may reappoint a member of the committee to the committee at the end of the member's term; and
      4. If a vacancy occurs on the committee, the remaining members of the committee shall notify in writing the Governor of the vacancy, and the Governor shall appoint another member to serve the remainder of the vacated term.
  2. Each year the members of a committee shall elect one (1) member to serve as chair.
    1. A committee shall function as a state agency.
      1. A member of a committee has all of the rights and privileges of a state officer while performing his or her duties as assigned by this chapter.
      2. Subdivision (d)(2)(A) of this section extends to any case that may arise as a result of the duties assigned by this chapter without a time limitation except as may already exist by other statutes.
    1. A member of a committee shall receive no compensation or remuneration, however the state shall reimburse a member for clerical and typing expenses approved by the Criminal Detention Facilities Review Coordinator.
    2. A member of a committee may receive expense reimbursement in accordance with § 25-16-901 et seq.

History. Acts 1983, No. 741, § 4; 1985, No. 539, §§ 2, 3; A.S.A. 1947, § 46-1213; Acts 1989, No. 515, § 1; 1997, No. 250, § 70; 2017, No. 153, § 4.

Publisher's Notes. Acts 1983, No. 741, § 4, provided, in part, that the first criminal detention facility review committees would be appointed by May 1, 1983, and that they would assume their powers, functions, and duties as set forth in the act on July 1, 1983. The section further provided that the members first appointed to the commissions would draw lots for their respective terms so that the expiration dates of the terms of the members would be staggered over three (3) years.

Amendments. The 2017 amendment rewrote the section.

Effective Dates. Acts 2017, No. 153, § 10: Jan. 1, 2019, except §§ 7-9, effective Aug. 1, 2017. Effective date clause provided: “Sections 1 through 6 of this act are effective on and after January 1, 2019.”

12-26-106. Powers and duties of a criminal detention facility review committee.

A criminal detention facility review committee shall:

  1. Provide consultation and technical assistance to county and local government officials with respect to criminal detention facilities and juvenile detention facilities;
  2. Visit and inspect the criminal detention facilities and juvenile detention facilities for compliance with the standards as established under § 12-26-103;
  3. Advise government officials and other appropriate persons of deficiencies in the criminal detention facilities and juvenile detention facilities and make recommendations for improvements;
  4. Submit written reports of the inspections to appropriate agencies and persons as provided in § 12-26-107;
  5. Review and comment on plans for the construction and major modification or renovation of the criminal detention facilities and juvenile detention facilities; and
  6. Perform such other duties as may be necessary to carry out the policy of the state regarding criminal detention facilities and juvenile detention facilities.

History. Acts 1983, No. 741, § 6; A.S.A. 1947, § 46-1215; Acts 1989, No. 515, § 2; 2017, No. 153, § 5; 2017, No. 250, § 17.

Amendments. The 2017 amendment by No. 153 substituted “a criminal detention facility review committee” for “committees” in the section heading; in the introductory language, substituted “A criminal detention facility review committee” for “The criminal detention facility review committees” and deleted “have the authority and responsibility to” from the end; and substituted “criminal detention facilities and juvenile detention facilities” for “facilities” in (3).

The 2017 amendment by No. 250 deleted “have the authority and responsibility to” at the end of the introductory language; and substituted “criminal detention facilities and juvenile detention facilities” for “facilities” in (3).

Effective Dates. Acts 2017, No. 153, § 10: Jan. 1, 2019, except §§ 7-9, effective Aug. 1, 2017. Effective date clause provided: “Sections 1 through 6 of this act are effective on and after January 1, 2019.”

12-26-107. Inspection of facility — Report.

  1. Except as otherwise provided in this chapter, each criminal detention facility review committee shall visit and inspect each criminal detention facility and each juvenile detention facility, if any, in the committee's criminal detention facility review committee district at least annually for the purpose of determining the conditions of confinement, the treatment of prisoners, and whether the criminal detention facilities and juvenile detention facilities comply with the minimum standards established pursuant to this chapter.
    1. A written report of each inspection shall be made within thirty (30) days following such inspection to the administrative judge for a judicial district within the geographic area of the criminal detention facility review committee district in which the criminal detention facility or juvenile detention facility is located and to the county judge or the governing body of the political subdivision whose criminal detention facility or juvenile detention facility is the subject of the written report.
    2. The written report shall specify those respects in which the criminal detention facility or juvenile detention facility does not comply with the required minimum standards.

History. Acts 1983, No. 741, § 8; A.S.A. 1947, § 46-1217; Acts 1989, No. 515, § 4; 2017, No. 153, § 6; 2017, No. 250, § 18.

Amendments. The 2017 amendment by No. 153, in (a), substituted “the committee’s criminal detention facility review committee district” for “its judicial district” and substituted “criminal detention facilities and juvenile detention facilities” for “facilities”; rewrote (b)(1); and, in (b)(2), inserted “written” and substituted “criminal detention facility or juvenile detention facility” for “facility”.

The 2017 amendment by No. 250 substituted “criminal detention facilities and juvenile detention facilities” for “facilities” in (a); in (b)(1), substituted “criminal detention facility or juvenile detention facility” for “facility” throughout and inserted “written” preceding “report” at the end; and, in (b)(2), inserted “written” and substituted “criminal detention facility or juvenile detention facility” for “facility”.

Effective Dates. Acts 2017, No. 153, § 10: Jan. 1, 2019, except §§ 7-9, effective Aug. 1, 2017. Effective date clause provided: “Sections 1 through 6 of this act are effective on and after January 1, 2019.”

12-26-108. Failure to meet minimum standards — Procedure.

    1. If an inspection under this chapter discloses that the criminal detention facility or juvenile detention facility does not meet the minimum standards established by the Criminal Detention Facilities Review Coordinator, the criminal detention facility review committee shall send notice, together with the inspection report, to the governing body responsible for the criminal detention facility or juvenile detention facility.
    2. A copy of the notice required by this chapter shall also be sent to the administrative judge of a judicial district within the geographic area of the criminal detention facility review committee district in which the criminal detention facility or juvenile detention facility is located.
  1. The appropriate governing body shall promptly meet to consider the inspection report, and the chair of the criminal detention facility review committee, or the chair's designee, shall appear to advise and consult concerning appropriate corrective action.
  2. The governing body shall then initiate appropriate corrective action within six (6) months of the receipt of the inspection report or may voluntarily close the criminal detention facility or juvenile detention facility or the objectionable portion of the criminal detention facility or juvenile detention facility.
    1. If the governing body fails to initiate corrective action within six (6) months after receipt of the inspection report, or fails to correct the disclosed conditions, or fails to close the criminal detention facility or juvenile detention facility or the objectionable portion of the criminal detention facility or juvenile detention facility, the committee may petition a circuit court within the judicial district in which the criminal detention facility or juvenile detention facility is located to close the criminal detention facility or juvenile detention facility.
    2. The petition shall include the inspection report regarding the criminal detention facility or juvenile detention facility.
    3. The local governing body shall then have thirty (30) days to respond to the petition and shall serve a copy of the response on the chair by certified mail, return receipt requested.
  3. Thereafter, a hearing shall be held on the petition before the circuit court, and an order rendered by the circuit court which:
    1. Dismisses the petition of the committee;
    2. Directs that corrective action be initiated in some form by the local governing body with respect to the criminal detention facility or juvenile detention facility in question; or
    3. Directs that the criminal detention facility or juvenile detention facility be closed.
  4. An appeal from the decision of the circuit court may be taken as provided in the Rules of Appellate Procedure — Civil.

History. Acts 1983, No. 741, §§ 9, 10; 1985, No. 539, § 4; A.S.A. 1947, §§ 46-1218, 46-1219; Acts 1989, No. 515, § 5; 2017, No. 153, § 7; 2017, No. 250, § 19.

Amendments. The 2017 amendment by No. 153 deleted “and to the duly constituted grand jury for the county in which the criminal detention facility or juvenile detention facility is located” from the end of (a)(1); rewrote (a)(2); deleted “or the grand jury, or both” and similar language following “governing body” in (b), (c), (d)(1), and (e)(2); substituted “chair of the criminal detention facility review committee, or the chair's designee” for “committee chair” in (b); substituted “criminal detection facility or juvenile detention facility” for “detention facility” in (c) and made similar changes in (d); substituted “chair” for “committee chair” in (d)(3); inserted “or juvenile detention facility” in (e)(2) and (e)(3); substituted “as provided in the Rules of Appellate Procedure — Civil” for “to the Supreme Court” in (f); and made stylistic changes.

The 2017 amendment by No. 250 substituted “criminal detection facility or juvenile detention facility” for “facility” or “detention facility” throughout (a)(2), (c), and (d); deleted “duly constituted” preceding “grand jury” in (a)(1); in (d)(1), substituted “the inspection” for “such inspection”, “portion of the criminal detention facility or juvenile detention facility” for “portion thereof”, and “may” for “is authorized to”; substituted “the circuit court” for “such court” in the introductory language of (e); inserted “or juvenile detention facility” in (e)(2) and (e)(3); and substituted “as provided in the Arkansas Rules of Appellate Procedure” for “to the Supreme Court” in (f).

12-26-109. [Repealed.]

Publisher's Notes. This section, concerning a citizen advisory council, was repealed by Acts 2017, No. 153, § 8. The section was derived from Acts 2001, No. 1185, § 3.

Chapter 27 Division of Correction — Division of Community Correction

Subchapter 1 — General Provisions

A.C.R.C. Notes. Acts 2013, No. 1190, § 1, provided: “Legislative Intent. The purpose of this act is to create a holistic and seamless approach for reentry into society for persons in the custody of the Department of Correction.”

Acts 2013, No. 1190, § 2, provided: “Meetings established.

“(a) The Department of Community Correction is directed to convene joint sessions with the Department of Correction, Arkansas Economic Development Commission, Department of Education, Department of Higher Education, Department of Career Education, Department of Workforce Services, Department of Human Services, Department of Finance and Administration, the Parole Board, the Arkansas Prosecuting Attorneys Association, the Arkansas Public Defender Commission, as well as criminal defense attorneys and any other state, county, or local agency as appropriate to discuss the goals of this act. All invited agencies shall participate.

“(b) The Department of Community Correction also shall involve the private sector by engaging groups such as chambers of commerce, labor unions, faith-based organizations, foundations with an interest in a reentry system, literacy groups, advocates for systemic reentry, and any other private sector groups as appropriate to discuss the goals of this act.”

Acts 2015, No. 1071, § 36, provided:

“USE OF MARKETING AND REDISTRIBUTION PROCEEDS FROM SALE OF STATE PROPERTY. The proceeds from the sale of state property through the Marketing and Redistribution Section of the Department of Finance and Administration, may be deposited into the Cash in State Treasury fund in an amount not to exceed $100,000 there to be used for operating expenses for the Paws in Prison program.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Publisher's Notes. Acts 1933, No. 30, § 37, provided, in part, that laws not inconsistent with, or specifically repealed by, Acts 1933, No. 30 should apply to the Board of Penal Institutions.

Acts 1968 (1st Ex. Sess.), No. 50, § 44, provided, in part, that all laws relating to the State Penitentiary which were not specifically repealed by, or in conflict with, Acts 1968 (1st Ex. Sess.), No. 50 would apply to the Department of Correction.

Acts 1993, No. 958, § 5, provided:

“Effective July 1, 1993, the Board of Parole and Community Rehabilitation created in ACA § 16-93-201 et seq. shall assume the name of Post Prison Transfer Board and shall assume the additional duties as defined in Act 530 of 1993.”

Cross References. Emergency procedures to relieve prison overcrowding, § 12-28-601 et seq.

United States prisoners, duty to receive, § 12-41-510.

Preambles. Acts 1945, No. 13 contained a preamble which read:

“The primary purpose of this act is to abolish the State Penal Building Commission, and to vest in the State Penitentiary Board all powers and duties heretofore vested in the State Penal Building Commission. All books, files and records of the State Penal Building Commission shall be delivered to the State Penitentiary Board….”

Acts 1973, No. 464 contained a preamble which read:

“Whereas, the location of the administrative headquarters of the Department of Correction at Pine Bluff would place the Department of Correction in a better location to serve the needs of the Cummins and Tucker Units, and would also permit the establishment of central warehouses and other facilities to serve the Cummins and Tucker Units and the Women's Reformatory, with resulting economies in the operation thereof;

“Whereas, the General Assembly has authorized the construction of a Women's Reformatory adjacent to the present Boys Training School facilities at Pine Bluff; and

“Whereas, the Board of Correction has recommended that the administrative headquarters of the Department of Correction be moved to the grounds of the new Women's Reformatory facility….”

Effective Dates. Acts 1893, No. 76, § 71: effective on passage.

Acts 1919, No. 482, § 6: Mar. 28, 1919. Emergency declared.

Acts 1933, No. 30, § 38: Feb. 14, 1933. Emergency clause provided: “It having been ascertained that the present method of operating the state penitentiary, penitentiary farms and other state penal institutions, is expensive and cumbersome and that the situation should be remedied as quickly as possible in order to save the taxpayers of Arkansas huge sums of money and to increase the efficiency of the penal institutions, an emergency is declared to exist and this act being necessary for the public peace, health, and safety, an emergency is declared to exist and this act shall be in force from and after its passage and approval.”

Acts 1968 (1st Ex. Sess.), No. 50, § 46: Mar. 1, 1968. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order better to effectuate the rehabilitation of persons convicted of crime and to make possible their return as useful members of the community, and that the immediate passage of this act is necessary to establish a Department of Correction to effectuate such rehabilitation. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after March 1, 1968.”

Acts 1975, No. 733, § 3: Apr. 3, 1975. Emergency clause provided: “It has been found and it is hereby declared by the Seventieth General Assembly that it is immediately necessary that the Commissioner of Correction be provided with an official seal of office in order to properly perform the assigned functions of his office and properly authenticate documents and records of the Arkansas Department of Correction for use in judicial proceedings. Therefore, an emergency is declared to exist and this act, being immediately necessary for the preservation of the public peace, health, and safety and to insure the proper administration of justice shall be in full force and effect upon its passage and approval.”

Acts 1977, No. 935, § 2: Mar. 31, 1977. Emergency clause provided: “The General Assembly finds that there exists a need for greater efficiency in the issuing of warrants for the retaking of persons who escape from the lawful custody of the Department of Correction. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect upon its passage and approval.”

Acts 1979, No. 661, § 3: Mar. 29, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the per diem for the Board of Correction is not sufficient to reimburse citizens for their cost of serving in this vital function, and that an increase is necessary for the continued effective supervision and management of the department, and for the continued orderly operation of state government. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after the effective date of its passage and approval.”

Acts 1980 (1st Ex. Sess.), No. 37, § 3: Jan. 25, 1980. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the per diem for the Board of Correction is not sufficient to reimburse citizens for their cost of serving in this vital function, and that an increase is necessary for the continued effective supervision and management of the department, and for the continued orderly operation of state government. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after the effective date of its passage and approval.”

Acts 1981, No. 58, § 7: approved Feb. 12, 1981. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order to better effectuate the rehabilitation of persons convicted of crimes and to make possible their return as useful members of the community, and that the immediate passage of this act is necessary to facilitate these reforms. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage.”

Acts 1981, No. 139, § 2: Feb. 26, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the above mentioned act is severely outdated; that sometimes it is necessary for a prison employee to use certain items with the permission of the director; that the above mentioned act is much too restrictive and hard to enforce. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect after its passage and approval.”

Acts 1985, No. 648, § 27: July 1, 1985. Emergency clause provided: “It is hereby found and determined by the Seventy-Fifth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1985 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1985 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1985.”

Acts 1985, No. 734, § 3: Mar. 29, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present compensation for Board of Correction members is too low and this act is necessary to correct this situation. Therefore, an emergency is hereby declared to exist and this act being necessary for the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 953, § 31: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the Seventy-Sixth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1987 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1987 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1987.”

Acts 1989, No. 708, § 4: Mar. 20, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the language of the current law relating to the per diem and expenses of the State Board of Correction for attending meetings of the board and other business of the board is in urgent need of clarification; that this act is designed to clarify the same and should be given effect immediately. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1989, No. 819, § 6: Mar. 21, 1989. Emergency clause provided: “It is hereby found and determined by the Seventy-Seventh General Assembly that the Arkansas Department of Correction is to receive $22.5 million from bond proceeds issued by the State of Arkansas through the Arkansas Development Finance Authority and that the purchaser of such bonds require that legislation be enacted authorizing the creation of various accounts in financial institutions outside of the State Treasury. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after the date of its passage and approval.”

Acts 1989 (1st Ex. Sess.), No. 118, § 37: July 1, 1989 except §§ 33-37, effective June 23, 1989. Emergency clause provided: “It is hereby found and determined by the Seventy-Seventh General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1989 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1989 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety Sections 1 through 32 shall be in full force and effect from and after July 1, 1989 and Sections 33 through 37 shall be in full force and effect upon the date of its passage and approval.”

Acts 1991, No. 574, § 8: Mar. 15, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that under present law persons sentenced to the Department of Correction and awaiting transfer to the department are entitled to earn meritorious goodtime during such wait only if the delay is due to lack of space in the Department of Correction facilities; that it is only fair that those persons be permitted to earn meritorious goodtime while waiting for transfer for whatever reason; that this act is designed to correct this situation and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 644, § 9: July 1, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1991 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1991 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1991.”

Acts 1991, No. 1078, § 37: July 1, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1991 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1991 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1991.”

Acts 1993, No. 658, § 3: Mar. 24, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is an urgent need to utilize all existing bed space in the Department of Correction, and that this act is designed to accomplish this purpose. Therefore, an emergency is declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 697, § 8: Mar. 24, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Department of Correction is in need of a non-tax receipt cash fund for immediate deposit of funds to supplement the Department's operation and this act should be given effect immediately in order to provide such relief. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 911, § 38: July 1, 1993. Emergency clause provided: “It is hereby found and determined by the Seventy-Ninth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1993 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1993 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993.”

Acts 1993, No. 953, § 24: July 1, 1993. Emergency clause provided: “It is hereby found and determined by the Seventy-Ninth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1993 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1993 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993.”

Acts 1994 (2nd Ex. Sess.), No. 26, § 5: Aug. 23, 1994. Emergency clause provided: “It is hereby found and determined by the Seventy-Ninth General Assembly of the State of Arkansas meeting in the Second Extraordinary Session of 1994 that authority is needed by the Board of Correction and Community Punishment to enable its members to receive per diem for attending to Board business; that the provisions of the act will provide the necessary authority to continue the effective and efficient monitoring of the operations of the Department of Corrections, and that the delay in the effective date of this act could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, in order to promote effective and efficient administration of government programs, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 158, § 31: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 1995, No. 195, § 9: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 1995, No. 316, § 19: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 1995, No. 1170, § 13: Apr. 11, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that confusion exists regarding the status of ineligible offenders judicially transferred to Department of Community Punishment facilities; that there is an immediate need to clarify the law applicable to transferring ineligible offenders back to the Department of Correction; and that it is in the best interest of the courts which already have crowded documents to immediately reduce the reporting requirements for departure sentences. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 324, § 9: Mar. 3, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 10 of the First Extraordinary Session of 1995 abolished the Joint Interim Committee on State Agencies and Governmental Affairs and in its place established the House Interim Committee and Senate Interim Committee on State Agencies and Governmental Affairs; that various sections of the Arkansas Code refer to the Joint Interim Committee on State Agencies and Governmental Affairs and should be corrected to refer to the House and Senate Interim Committees on State Agencies and Governmental Affairs; that this act so provides; and that this act should go into effect immediately in order to make the laws compatible as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 1031, § 7: Apr. 2, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the ‘Task Force to Study the Disparity in Sentencing for Persons Convicted of Non-violent Crimes’ has found that it appears that some Arkansas citizens do not receive equitable sentences under the law; that it is necessary to compile statistical sentencing information in order to determine if disparities exist; and that this act is immediately necessary to allow the compiling of the needed statistical information in the first quarter of 2003. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2006 (1st Ex. Sess.), No. 4, § 11: Apr. 7, 2006. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the need to register sex offenders and update the registration files of sex offenders is necessary to ensure the safety of the citizens of the State of Arkansas; that the provisions of this act will improve the process of registering sex offenders and updating the registration files of sex offenders; and that this act is immediately necessary because of the public risk posed by sex offenders. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2007, No. 1291, § 48: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 2007 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 2007 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2007.”

Acts 2009, No. 958, § 2: July 31, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the appointment of capable and qualified people to serve on the Board of Corrections is of vital importance for the proper discharge of the duties imposed on the board; and that a fair system of per diem stipends and expense reimbursement for the Board of Corrections is necessary to keep and attract capable and qualified people to serve and should be implemented as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2015, No. 895, § 49: Apr. 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that prison overcrowding is one of the largest problems currently burdening the state both from a public safety and budgetary standpoint; that safe and effective measures are needed to immediately combat this problem; and that this act is immediately necessary because in the interests of public safety and the state budget the Department of Correction, Department of Community Correction, Department of Human Services, and the Parole Board should be allowed to immediately implement these new measures. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2015, No. 1201, § 2: Oct. 1, 2015.

Acts 2015, No. 1206, § 3: Apr. 7, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is a serious prison overcrowding problem in Arkansas; that every alternative housing solution should be considered until the prison population becomes manageable; and that this act is immediately necessary because the corrections agencies need flexibility to immediately address the prison overcrowding problem. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2015, No. 1265, § 12: Apr. 8, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is an alarming lack of transparency in the corrections system regarding information about inmates who will soon be coming up for parole and released into society; that it is vital to public safety that the public know exactly what potential threats exist from inmates in the Department of Correction who will soon be introduced back into society; and that this act is immediately necessary because the sooner inmate, parolee, and probationer information is made available to the public, the sooner the public is able to evaluate who is and who is not a threat to society. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Criminal Procedure, 16 U. Ark. Little Rock L.J. 99.

12-27-101. Purposes and construction of the Division of Correction.

    1. The purpose of this act is to establish a Division of Correction that shall assume the custody, control, and management of the state penitentiary, execute the orders of criminal courts of the State of Arkansas, and provide for the custody, treatment, rehabilitation, and restoration of adult offenders as useful law-abiding citizens within the community.
    2. The division shall be under the supervision and control of the Board of Corrections.
    3. To accomplish the objectives and purposes of this act in an effective, coordinated, and uniform manner, the division shall be responsible for the maintenance, supervision, and administration of adult detention and correctional services of the state as determined by the board.
    4. Institutions and services shall be diversified in program, construction, and staff to provide effectually and efficiently for the maximum custody, care, supervision, and treatment of those persons committed to the division.
  1. This act shall be liberally construed so as to effectuate its purposes.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 1; A.S.A. 1947, § 46-100; Acts 1993, No. 549, § 1; 2019, No. 910, § 728.

A.C.R.C. Notes. Acts 2016, No. 266, § 36, provided: “MARKETING AND REDISTRIBUTION PROCEEDS FROM SALE OF STATE PROPERTY. The proceeds from the sale of state property through the Marketing and Redistribution Section of the Department of Finance and Administration, may be deposited into the Cash in State Treasury fund in an amount not to exceed $100,000 there to be used for operating expenses for the Paws in Prison program.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “division” for “department” throughout (a).

Meaning of “this act”. Acts 1968 (1st Ex. Sess.), No. 50, codified as §§ 12-27-10112-27-105, 12-27-10712-27-109, 12-27-112, 12-27-113, 12-27-115, 12-27-118, 12-27-120, 12-28-102, 12-29-10112-29-104, 12-29-107, 12-29-112, 12-29-401, 12-30-301, 12-30-306, 12-30-401, 12-30-403, 12-30-40512-30-407, 12-30-408 [repealed], 16-93-101, 16-93-102, 16-93-201 [repealed], 16-93-20216-93-204, 16-93-601, 16-93-610, 16-93-701, 16-93-705.

Case Notes

Construction with Other Law.

Inmate who asserted wool blankets caused him to suffer rashes did not show a serious medical need that would have supported a claim of a violation of Ark. Const. Art. 2, § 9 or § 16-123-105 of the Arkansas Civil Rights Act; the inmate's condition was not one that mandated treatment even though it may have been diagnosed by a doctor and, while the evidence showed he indeed suffered from discomfort and rashes, he had been provided with adequate treatment for those symptoms. Williams v. Ark. Dep't of Corr., 362 Ark. 134, 207 S.W.3d 519, cert. denied, 546 U.S. 1018, 126 S. Ct. 647, 163 L. Ed. 2d 531 (2005).

Cited: Edens v. State, 258 Ark. 734, 528 S.W.2d 416 (1975).

12-27-102. Enforcement of penalties — Report of crimes.

  1. All laws of this state prescribing penalties for violations concerned with or affecting the state penitentiary or inmates thereof shall be equally applicable to the Division of Correction and shall be enforced accordingly.
  2. In the event any crime shall be committed in any institution of the division, it shall be the duty of the Director of the Division of Correction, or his or her designated employee, to report the crime to the county sheriff and prosecuting attorney of the county in which the institution is located in which the crime, or alleged crime, took place.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 22; A.S.A. 1947, § 46-131; Acts 2019, No. 910, § 729.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a) and (b); and “division” for “department” in (b).

12-27-103. Division of Correction — Creation — Powers and duties.

  1. There is established, under the supervision, control, and direction of the Board of Corrections, a Division of Correction.
  2. The Division of Correction shall have the following functions, powers, and duties, administered in accordance with the policies and rules promulgated by the Board of Corrections:
    1. The Division of Correction shall have exclusive jurisdiction over the care, charge, custody, control, management, administration, and supervision of all persons and offenders committed to, or in the custody of, the state penitentiary;
    2. The Division of Correction shall maintain management and control over all properties, both real and personal, facilities, books, records, equipment, supplies, materials, contracts, funds, moneys, equities, and all other properties belonging to the state penitentiary, except those deemed by the Board of Corrections to be placed in the Division of Community Correction. The Division of Correction shall administer said properties in accordance with the provisions of this act and other laws applicable to the administration of the state correctional system;
    3. The Department of Correction, as the Division of Correction was known as prior to July 1, 2019, assumed all obligations, contracts, indebtedness, liabilities, and other obligations of the state penitentiary system existing on March 1, 1968;
      1. The Department of Correction, as the Division of Correction was known as prior to July 1, 2019, has custody, management, and control over all institutions and facilities, and the inmates therein, belonging to the state penitentiary or hereafter established by the Department of Correction, as the Division of Correction was known as prior to July 1, 2019, and known as the Division of Correction for the custodial correction and rehabilitation of persons committed to the Division of Correction for its care, except for those institutions established by or transferred to the Division of Community Correction.
      2. Legal custody of inmates transferred to the Division of Community Correction shall remain with the Division of Correction unless altered by court order;
    4. The Division of Correction shall establish and operate classification committees, diagnosis and treatment programs, and such other programs as may be desirable to fulfill the purposes of this act;
    5. The Division of Correction shall employ such officers, employees, and agents and shall secure such offices and quarters as are deemed necessary to discharge the functions of the Division of Correction;
    6. The Division of Correction shall receive all offenders committed to the Division of Correction for conviction of felonies or other offenses, the punishment of which is commitment to the penitentiary under the laws of this state, and shall be responsible for the care, custody, and correction of such persons pursuant to policies established by the Board of Corrections;
    7. The Division of Correction shall operate all farming, livestock, industries, and other income-producing facilities of the Division of Correction and shall sell the products of its industries and farms in the manner provided by law;
    8. The Division of Correction may establish and operate regional adult detention facilities, provided funds therefor have been authorized and appropriated by the General Assembly;
    9. The Division of Correction shall cooperate with municipalities and counties in this state in providing consulting services when requested with respect to detention and correctional facilities operated by the municipalities or counties;
    10. The Division of Correction shall cooperate with law enforcement agencies of this state, the United States, institutions of this state for the detention, custody, and care of delinquent and dependent juveniles, and with all agencies and departments of this state offering services or programs of welfare, rehabilitation, and other services for the benefit of persons committed to the Division of Correction;
    11. The Division of Correction may accept gifts, grants, and funds from public and private sources with prior approval of the Board of Corrections and administer the same in furtherance of the purposes of this act;
      1. The Division of Correction shall have the authority to issue warrants for the retaking of any person who, committed to its custody, unlawfully escapes therefrom.
      2. The warrant shall:
        1. Authorize all law enforcement officials of this state to take custody and return the person named therein to the custody of the Division of Correction; and
        2. Authorize all law enforcement officials of this state, any other state, and the federal government to take custody and detain the person in any suitable detention facility while awaiting further transfer to the Division of Correction;
        1. Subject to the approval of the Governor, the Division of Correction may cooperate with and contract with the federal government, governmental agencies of Arkansas and other states, political subdivisions of Arkansas, political subdivisions of other states, counties, regional correctional facilities, and private contractors to provide and improve correctional operations and to keep custody of inmates transferred from the Division of Correction.
        2. A facility owned or leased under this subdivision (b)(14) shall comply with all constitutional standards of the United States and the State of Arkansas.
      1. A county may contract for construction or operation or both with another entity to house a Division of Correction inmate under this subdivision (b)(14) for a period not to exceed twenty (20) years;
    12. The Division of Correction shall cooperate with the Division of Community Correction, the Parole Board, the Arkansas Sentencing Commission, judicial districts, municipalities, and counties in this state in providing guidance and services required to ensure a full range of correctional options for the state as a whole;
    13. The Division of Correction shall provide support to the Division of Community Correction as determined by the Board of Corrections;
    14. The Division of Correction shall assist the Board of Corrections in the furtherance of its goals by staffing the specific charges articulated for it through legislation and by the Board of Corrections; and
    15. The Department of Corrections shall establish programs of research, evaluation, statistics, audit, and planning, including studies and evaluation of the performance of various functions and activities of the department and studies affecting the treatment of offenders and information about other programs.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 3; 1977, No. 935, § 1; A.S.A. 1947, § 46-103; Acts 1993, No. 549, § 2; 2011, No. 184, § 1; 2015, No. 1206, § 1; 2019, No. 315, § 878; 2019, No. 910, § 730.

A.C.R.C. Notes. Acts 1968 (1st Ex. Sess.), No. 50, § 3 transferred the powers and duties of the State Penitentiary to the Department of Correction.

Acts 2015, No. 1071, § 21, provided:

“ADC SEX OFFENDER ASSESSMENT. The Arkansas Department of Correction is authorized to enter into a cooperative agreement with a qualified state treatment and assessment agency to conduct assessments of juvenile sex or child offenders as required by provisions of ACA12-12-901 et. seq. and pay for services upon receipt of invoice.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2015, No. 1071, § 35, provided:

“ESSENTIAL SERVICES STIPEND. The Arkansas Department of Correction (ADC) may award additional compensation to those exempt employees who are members of the emergency response unit. These employees are eligible to receive up to 3% per hour additional compensation for the actual number of hours that an employee spends on an emergency response action.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2015, No. 1206, § 2, provided:

“(a) The Board of Correction or Department of Correction shall promulgate rules consistent with the implementation of this act and shall submit the rules to the appropriate legislative committee by October 1, 2015.

“(b) Any administrative directive resulting from the implementation of this act shall be reported to the Legislative Council for review at the next scheduled Legislative Council meeting date.”

Acts 2016, No. 266, § 21, provided: “ADC SEX OFFENDER ASSESSMENT. The Arkansas Department of Correction is authorized to enter into a cooperative agreement with a qualified state treatment and assessment agency to conduct assessments of juvenile sex or child offenders as required by provisions of ACA12-12-901 et. seq. and pay for services upon receipt of invoice.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Acts 2016, No. 266, § 35, provided: “ESSENTIAL SERVICES STIPEND. The Arkansas Department of Correction (ADC) may award additional compensation to those exempt employees who are members of the emergency response unit. These employees are eligible to receive up to 3% per hour additional compensation for the actual number of hours that an employee spends on an emergency response action.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Amendments. The 2011 amendment inserted “political subdivisions of other states” in (b)(14).

The 2015 amendment redesignated former (b)(14) as (b)(14)(A)(i), and in that subdivision, added “Subject to the approval of the Governor”, inserted “counties, regional correctional facilities”, and added “and to keep custody of inmates transferred from the Department of Correction”; and added (b)(14)(A)(ii) and (b)(14)(B).

The 2019 amendment by No. 315 substituted “policies and rules” for “policies, rules, and regulations” in the introductory language of (b).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” in the section heading and throughout the section, except for (b)(18) in which “Department of Corrections” was substituted for “Department of Correction”; in (b)(2), substituted “maintain” for “assume”; inserted “as the Division of Correction was known as prior to July 1, 2019” in (b)(3); rewrote (b)(4)(A); substituted “Division of Community Correction” for “Department of Community Correction” in (b)(4)(B), (b)(15), and (b)(16); and made stylistic changes.

Meaning of “this act”. See note to § 12-27-101.

Cross References. Parole Board, § 16-93-201 et seq.

Case Notes

Exclusive Jurisdiction.

Trial court had no authority to grant prisoner's petition that time served prior to escape be credited on his sentence, since when a valid sentence has been put into execution, Department of Correction has responsibility for prior administration. Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974).

The exclusive jurisdiction of custody, control, and supervision of all persons in the penitentiary is vested with the Department of Correction and a trial court cannot intervene in the administration of prison affairs. Stevens v. State, 262 Ark. 216, 555 S.W.2d 229 (1977).

Cited: Eldridge v. Board of Corr., 298 Ark. 467, 768 S.W.2d 534 (1989); Lanford v. State, 33 Ark. App. 11, 800 S.W.2d 434 (1990).

12-27-104. Board of Corrections — Members — Records — Staff.

  1. The Board of Corrections shall be composed of seven (7) voting members:
    1. Five (5) citizen members;
    2. The chair of the Parole Board; and
    3. One (1) member of a criminal justice faculty who is employed at any four-year university in Arkansas.
  2. The Board of Corrections shall elect a chair annually in accordance with rules developed by the Board of Corrections.
    1. All members of the Board of Corrections shall serve a term of seven (7) years, unless they resign or are removed.
    2. Vacancies occurring before the expiration of a term shall be filled in the manner provided for members first appointed.
    3. Members shall serve until their replacements are appointed.
    4. The Governor shall appoint those members not determined by virtue of their office when vacancies occur.
      1. A member of the Board of Corrections may receive expense reimbursement and stipends in accordance with § 25-16-901 et seq.
      2. However, a member shall receive a per diem stipend and reimbursement for expenses for both official meetings and related activities associated with attending to the business of the Board of Corrections, the Division of Correction, the Division of Community Correction, and the Corrections School System for up to an annual average of seven (7) days per month.
      3. The reimbursement for use of private airplanes shall be in accordance with state travel rules.
      4. A public university employee or other state employee who serves on the Board of Corrections is allowed to receive a per diem stipend and reimbursement of expenses for both official meetings and related activities associated with attending to the business of the Board of Corrections.
    1. All expenses that may be reimbursed to members of the Board of Corrections and stipends as provided in § 25-16-901 et seq. shall be payable from the maintenance funds appropriated for the Division of Correction and the Division of Community Correction.
  3. The Governor shall appoint an advisory judicial group to facilitate coordination among the judicial system, the Division of Correction, and the Division of Community Correction to promote the effective and efficient use of correctional resources in furtherance of sentencing policy adopted by the General Assembly.
  4. The Board of Corrections, in cooperation with the Governor, may establish additional advisory groups composed of professionals from the criminal justice system and citizens representing specific criminal justice interest groups to assist the Board of Corrections in its charge.
  5. The Board of Corrections shall meet no less than quarterly.
  6. The Board of Corrections shall submit to the Governor and the General Assembly a biennial report six (6) months prior to the convening of the regular session.
    1. The Board of Corrections shall keep regular minutes of all its meetings, visits, and proceedings and shall cause the minutes, together with all orders and rules adopted by it, to be recorded in a book which shall be kept by the secretary of the Board of Corrections for that purpose.
    2. The record shall be signed by the members of the Board of Corrections present at the meeting or visit and shall at all times be open to the inspection of the Governor or any member of the General Assembly.
    1. The Board of Corrections shall employ necessary staff to assist with the range and diversity of the charge of the Board of Corrections.
    2. In addition to Board of Corrections staff, the Board of Corrections may reassign staff from the divisions it governs for either short-term or long-term service to the Board of Corrections.

History. Acts 1893, No. 76, § 46, p. 121; C. & M. Dig., § 9719; Acts 1919, No. 482, § 4; Pope's Dig., § 12750; Acts 1968 (1st Ex. Sess.), No. 50, § 2; 1975, No. 378, § 12; 1979, No. 661, § 1; 1979, No. 918, § 1; 1980 (1st Ex. Sess.), No. 37, § 1; 1985, No. 734, § 1; A.S.A. 1947, §§ 7-203.2, 46-101, 46-102; Acts 1989, No. 708, § 1; 1989, No. 937, § 4; 1993, No. 549, § 3; 1994 (2nd Ex. Sess.), No. 26, § 1; 1997, No. 250, § 71; 2009, No. 958, § 1; 2009, No. 962, § 29; 2019, No. 315, §§ 879, 880; 2019, No. 910, §§ 731-734.

A.C.R.C. Notes. Acts 2001, No. 323, § 1, provided:

“Legislative intent. The General Assembly, in Act 549 of 1993, established the Arkansas Department of Community Punishment and delineated its purposes. Confusion in the public's perception, with regard to the purposes of the department, exists and will persist because of the inconsistency between the name of the department and its established purposes. The purpose of this act is to provide the department with a name that more accurately describes its role as an agency that is intended to fulfill the legislatively established purposes of supervision, treatment, rehabilitation, and restoration of adult offenders as useful law-abiding citizens within the community and to provide its supervisory board with a name consistent with the department's name change.”

Acts 2001, No. 323, § 3, provided:

“The ‘Board of Correction and Community Punishment’, as established in Arkansas Code 12-27-104 and 16-93-1203, shall hereafter be known as the ‘Board of Corrections’.”

Publisher's Notes. Acts 1993, No. 549, § 3 provided in part that the Board of Correction and the Arkansas Adult Probation Commission shall merge to become the Board of Correction and Community Punishment. Initial appointments to the merged board shall be from the existing Board of Correction, Board of Parole and Community Rehabilitation and Arkansas Adult Probation Commission, except in the case of the criminal justice faculty member who shall be chosen at large. Members of the merged board shall serve a term of seven years, and vacancies which occur after the initial merger shall be filled by gubernatorial appointment. The initial terms of the six (6) members of the board, not determined by virtue of their office, are to be staggered with one member serving until December 31, 1995, one member serving until December 31, 1996, one member serving until December 31, 1997, one member serving until December 31, 1998, one member serving until December 31, 1999, and one member serving until December 31, 2000. The Board shall be impaneled by July 1, 1993, and shall assume power on July 1, 1993, and shall hold its initial meeting within forty-five (45) days of August 13, 1993.

Amendments. The 2009 amendment by No. 958 rewrote (d)(1)(B), substituted “rules” for “regulations” in (d)(1)(C), inserted (d)(1)(D), and made a minor stylistic change.

The 2009 amendment by No. 962 substituted “regular” for “next regularly scheduled legislative.”

The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (b); and substituted “orders and rules” for “orders, rules, and regulations” in (i)(1).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout (d) and (e); and substituted “the charge of the Board of Corrections” for “its charge” in (j)(1), and substituted “divisions” for “departments” in (j)(2).

Case Notes

Suits Against Board.

The board is an agency of the state and as such is not amenable to suits in the state courts. Pitcock v. State, 91 Ark. 527, 121 S.W. 742 (1909) (decision under prior law).

A suit against the board to reform a contract for the purchase of a state convict farm is in effect a suit against the state. Jobe v. Urquhart, 98 Ark. 525, 136 S.W. 663 (1911) (decision under prior law).

12-27-105. Board's powers and duties.

  1. The purpose of the Board of Corrections is to manage correctional resources in the state such that offenders are held accountable for their actions, victims' needs are addressed in a positive manner, and the safety of society is enhanced.
  2. In furtherance of its purpose, the Board of Corrections shall have the following powers and duties:
      1. General supervisory power and control over the Division of Correction and the Division of Community Correction and shall perform all functions with respect to the management and control of the adult correctional institutions and community correction options of this state contemplated by Arkansas Constitution, Amendment 33.
      2. No provision of this act shall abridge, diminish, or curtail in any respect the authority vested in the Board of Corrections as the successor to the State Penitentiary Board and the Arkansas Adult Probation Commission to govern and supervise the administration of the state penal institutions and community correction options;
    1. To coordinate resources for the corrections system, in conjunction with sentencing policy developed by the Arkansas Sentencing Commission, in a fashion that best serves the needs of the state, the entities encompassed, and the individuals served by and affected by corrections;
    2. To review and approve budgets submitted by the Division of Correction and the Division of Community Correction prior to submission for executive and legislative approval;
    3. To develop and approve policy and management decisions for the Division of Correction and the Division of Community Correction, evaluating their impact on corrections as a whole;
    4. To assist in the development of impact statements and recommendations on all existing and proposed legislation with regard to its effect on corrections as a whole, in cooperation and coordination with the commission;
    5. To coordinate the implementation and continued utilization of community correction options in support of sentencing policies developed by the commission;
    6. To investigate, monitor, and address the needs of the state for adequate housing, treatment, and employment of individuals involved in state-funded correctional programs, facilities, and states of supervision;
    7. To establish programs of research, statistics, and planning, including studies and evaluation of the performance of the various functions and activities of the board, in cooperation and coordination with the commission;
    8. Appoint temporary or permanent advisory committees for such purposes as it may determine;
      1. Authorized and empowered to investigate, consider, and determine the needs of the state for adequately housing, treating, and employing prisoners of the state and to provide adequate facilities for such housing, treatment, and employment.
      2. The Board of Corrections is authorized and empowered to obtain and approve plans and specifications for the necessary buildings and plants to meet such needs and to provide for the construction and equipment of such buildings and plants;
    9. By and with the advice and approval of the Governor, at its discretion to close the operation of any penal institution if it deems such action necessary and more economical;
    10. To establish minimum standards for supervision, contact, programming, housing, and employee hiring within the parameters of those divisions encompassed under its control;
    11. To establish a code of ethics for all employees, both institutional and community correction;
    12. To require and review annual audits of appropriate programs and facilities associated with the Board of Corrections;
    13. To prescribe the duties of all personnel of the Division of Correction and the Division of Community Correction and the rules governing the transfer of employees within each division and between divisions;
    14. Authorized to review, approve, make application for, and accept grants, gifts, and funds from any entity on behalf of any entity encompassed within the control of the Board of Corrections in carrying out and completing such projects as may be approved for the enumerated purposes and projects of this section;
      1. Authorized to establish fees to be levied by the courts and paid by probationers during the probationary period.
      2. The Board of Corrections may also establish fees found necessary for participation in any community correction program or service.
      3. The payment of such sanctions and fees may be a condition of probation, parole, post prison transfer, or attached to admission and participation in a community correction program.
      4. The moneys collected shall be deposited into an earmarked account at the state level to be used solely for the continuation and expansion of community correction in this state.
      5. Economic sanction officers are to be authorized by the Division of Community Correction to perform these duties pursuant to policies and procedures adopted by the Board of Corrections and in accord with any state statutory accounting requirements; and
    15. To delegate duties to Board of Corrections staff and division staff as necessary and appropriate to fulfill its responsibilities to the state.

History. Acts 1933, No. 30, § 28; Pope's Dig., §§ 12695, 12775, 12776; Acts 1937, No. 140, §§ 2, 3; 1945, No. 13, §§ 2, 3; 1968 (1st Ex. Sess.), No. 50, § 2; 1975, No. 378, § 12; A.S.A. 1947, §§ 46-101, 46-108 — 46-110; Acts 1993, No. 549, § 4; 2013, No. 1277, § 2; 2019, No. 315, § 881; 2019, No. 910, §§ 735-738.

Amendments. The 2013 amendment, in (b)(11), substituted “to close” for “may close” and deleted “or prison farm” following “penal institution”.

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b)(15).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout (b), and substituted “each division and between divisions” for “each department and between departments” in (b)(15).

Meaning of “this act”. See note to § 12-27-101.

12-27-106. Publication of rules — Report concerning administrative directives and administrative memoranda filed with Legislative Council.

  1. The Board of Corrections shall make available in conspicuous places all rules promulgated by the board with reference to the conduct of the persons committed to or housed in correctional facilities that are operated or contracted by the divisions and agencies the board governs.
    1. Except as provided in subdivision (b)(2) of this section, the board shall file a report with the Legislative Council on a quarterly basis containing all new and revised administrative directives and administrative memoranda issued in the previous quarter by:
      1. The board;
      2. The Director of the Division of Correction;
      3. The Director of the Division of Community Correction; and
      4. Staff of the Division of Correction and the Division of Community Correction.
    2. The report under subdivision (b)(1) of this section shall not include information that is confidential under § 12-27-137.

History. Acts 1933, No. 30, § 11; Pope's Dig., § 12655; A.S.A. 1947, § 46-132; Acts 2015, No. 1258, § 14; 2019, No. 315, § 882; 2019, No. 396, § 1.

A.C.R.C. Notes. Acts 2015, No. 1258, § 1, provided: “LEGISLATIVE FINDINGS.

The General Assembly finds:

“(1) Amendment 92 to the Arkansas Constitution states in part: ‘The General Assembly may provide by law for the review by a legislative committee of administrative rules promulgated by a state agency before the administrative rules become effective; and that administrative rules promulgated by a state agency shall not become effective until reviewed and approved by the legislative committee charged by law with the review of administrative rules under subdivision (a)(1) of this section’;

“(2) As Amendment 92 does not define the term ‘state agency’, the General Assembly may establish a definition by law as part of its implementation of Amendment 92;

“(3) The General Assembly at this time wishes to exclude the Arkansas State Game and Fish Commission, the State Highway Commission, the Arkansas State Highway and Transportation Department, and institutions of higher education from the definition of ‘state agency’ applied to the implementation of Amendment 92; and

“(4) The General Assembly or the Legislative Council reserve the right to amend the definition of ‘state agency’ in the future to include one (1) or all of the Arkansas State Game and Fish Commission, the State Highway Commission, the Arkansas State Highway and Transportation Department, and institutions of higher education.”

Amendments. The 2015 amendment rewrote the section heading; inserted designation (a); and added (b).

The 2019 amendment by No. 315 substituted “rules and laws” for “rules, laws, and regulations” in (a).

The 2019 amendment by No. 396 deleted “laws” following “Publication of rules” in the section heading; rewrote (a); and made a stylistic change in (b)(1)(D).

12-27-107. Director of the Division of Correction.

  1. The Director of the Division of Correction, who shall be the executive, administrative, budgetary, and fiscal officer of the Division of Correction, shall be appointed by the Board of Corrections at a salary fixed by the Board of Corrections which shall not exceed the maximum salary for the position established by law.
  2. The director shall be qualified for the position by character, ability, education, training, and successful administrative experience in correctional or related fields.
  3. The director shall serve at the pleasure of the Board of Corrections.
  4. Subject to the rules, policies, and procedures prescribed by the Board of Corrections, the director shall:
    1. Administer the Division of Correction and supervise the administration of all institutions, facilities, and services under the jurisdiction of the Division of Correction;
    2. Employ such personnel as are required in the administration of the provisions of this act, provided that the employment of personnel shall be in accordance with the applicable laws and personnel rules of the state;
    3. Institute programs for the training and development of personnel within the Division of Correction and have authority to suspend, discharge, or otherwise discipline personnel in accordance with policies prescribed by the Board of Corrections;
    4. Make an annual report to the Board of Corrections, which will be forwarded to the Governor and the General Assembly, on the work of the Division of Correction, including statistics and other data, income derived by the Division of Correction from agriculture, livestock, and other farming activities and from prison inmates' activities, a summary of expenditures of the Division of Correction, and progress reports regarding internal issues such as inmate discipline, utilization of programming, facilities and bed space utilization, upkeep issues, and construction needs;
    5. Cooperate with the Division of Community Correction, the Parole Board, the Arkansas Sentencing Commission, judicial districts, counties, and municipalities to provide the guidance and services required to ensure a full range of correctional options for the state as a whole; and
      1. Designate those employees of the Division of Correction who shall have the powers of peace officers in the enforcement of criminal laws to the extent they apply to employees, inmates, and persons on Division of Correction property, while participating in the search and capture of an inmate who has escaped custody, or while assisting law enforcement officers in the search and capture of any fugitive or escapee from another jurisdiction.
      2. The employees so designated have the authority to use blue rotating or flashing emergency lights on Division of Correction vehicles and exercise other law enforcement powers exercised by police and other law enforcement personnel.

History. Acts 1968 (1st Ex. Sess.), No. 50, §§ 4, 5; 1975, No. 733, § 1; A.S.A. 1947, §§ 46-104, 46-105; Acts 1993, No. 549, § 5; 1997, No. 943, § 1; 2003, No. 351, § 1; 2019, No. 315, § 883; 2019, No. 910, § 739.

A.C.R.C. Notes. Acts 1993, No. 911, § 9, provided:

“Notwithstanding any other provision of law, the Governor shall initially appoint the Director of the Department of Correction after which the Board of Correction and Community Punishment shall appoint the Director of the Department with the advice of the Governor.”

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “rules” in the introductory language of (d); and substituted “rules” for “regulations” in (d)(2).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” throughout the section; and substituted “Division of Community Correction” for “Department of Community Correction” in (d)(5).

Meaning of “this act”. See note to § 12-27-101.

Cross References. Interstate Corrections Compact, § 12-49-101 et seq.

Case Notes

Cited: Messimer v. Lockhart, 702 F.2d 729 (8th Cir. 1983).

12-27-108. Authentication of records.

  1. For authentication of the records, process, and proceedings of the Division of Correction, the Director of the Division of Correction may adopt and keep an official seal for the use of his or her office, and the seal shall receive judicial notice in all of the courts of the state.
  2. All acts, orders, reports, and other records of the division or copies thereof which are entitled to judicial notice shall be certified to by the director with the seal affixed thereto.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 4; 1975, No. 733, § 1; A.S.A. 1947, § 46-104; Acts 2019, No. 315, § 884; 2019, No. 910, § 740.

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “orders” in (b).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” twice in (a); and substituted “division” for “department” in (b).

12-27-109. Oaths of director and other authorized persons.

The Director of the Division of Correction and each person authorized by the Board of Corrections to assume the duties of the director on an interim or acting basis shall, before discharging his or her prescribed duties, take and subscribe to and file in the office of the Secretary of State, an oath that he or she will support the United States Constitution and the Arkansas Constitution and faithfully perform the prescribed duties upon which he or she is about to enter.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 4; 1975, No. 733, § 1; A.S.A. 1947, § 46-104; 2019, No. 208, § 1; 2019, No. 910, § 741.

A.C.R.C. Notes. Acts 2019, No. 910, § 741, amended this section to replace “Department“ with “Division” in the phrase “of the superintendents of the institutions within the Department of Correction”. However, Acts 2019, No. 208, § 1, specifically repealed this phrase.

Amendments. The 2019 amendment by No. 208 substituted “other authorized persons” for “superintendents” in the section heading; substituted “person authorized by the Board of Corrections to assume the duties of the director on an interim or acting basis” for “of the superintendents of the institutions within the Department of Correction”, substituted “discharging his or her prescribed duties” for “entering upon their respective duties”, and inserted the second occurrence of “prescribed”.

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction”.

12-27-110. Administrative headquarters.

The Board of Corrections shall locate the administrative headquarters of the Department of Correction and the Department of Community Correction at a suitable site or sites to be chosen by the board.

History. Acts 1973, No. 464, § 1; A.S.A. 1947, § 46-103.1; Acts 2001, No. 614, § 1.

12-27-111. Improvements.

  1. The Board of Corrections and the Director of the Department of Correction shall decide what improvements are necessary, which are not otherwise provided by law. These improvements shall be made under the direction and supervision of the director.
  2. In making any necessary improvements under the provisions of this section, if in his or her discretion it shall be deemed necessary, the director may employ the services of an engineer, draftsman, or architect to make such plans and specifications as may be necessary.

History. Acts 1893, No. 76, § 63, p. 121; C. & M. Dig., § 9717; Pope's Dig., § 12748; A.S.A. 1947, § 46-114.

12-27-112. Sale of lands and facilities of the Department of Correction.

  1. None of the lands under the control and jurisdiction of the State Penitentiary on March 1, 1968, shall be sold or otherwise disposed of by the Board of Corrections or the Department of Correction except upon specific authorization by the General Assembly.
    1. The authority granted state boards and commissions to sell land belonging to state institutions, as provided in §§ 22-6-601 and 22-6-602, shall not be applicable to the penitentiary, the board, and the department.
    2. It is the intent of this section that lands under the control and jurisdiction of the penitentiary on March 1, 1968, may be sold or otherwise disposed of only upon specific authorization therefor by laws enacted by the General Assembly subsequent to March 1, 1968.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 40; A.S.A. 1947, § 46-111.

A.C.R.C. Notes. The powers and duties of the State Penitentiary referred to in this section were transferred to the Department of Correction by Acts 1968 (1st Ex. Sess.), No. 50, § 3.

12-27-113. Commitments to the Division of Correction — Records.

    1. All commitments to the Division of Correction shall be to the Division of Correction and not to a particular institution.
    2. Commitments may provide for judicial transfer to the Division of Community Correction.
    1. The Director of the Division of Correction, in accordance with the rules and procedures promulgated by the Board of Corrections shall transfer an inmate to the Division of Community Correction, pursuant to a judicial transfer, or assign a newly committed inmate to an appropriate facility of the Division of Correction.
    2. The director may transfer an inmate from one (1) facility to another consistent with the commitment and in accordance with treatment, training, and security needs.
    3. Inmates may be transferred between the Division of Correction and the Division of Community Correction within the constraints of law applicable to judicial transfer, subject to the policies, rules, and regulations established by the Board of Corrections, and conditions set by the Parole Board.
    4. The Division of Correction shall retain legal custody of all inmates transferred to community correction unless altered by court order.
    1. When a prisoner is committed to the Division of Correction, his or her commitment papers must include a report on the circumstances attending the offense, particularly such circumstances as tend to aggravate or extenuate the offense, which report shall be kept in the permanent file of such prisoner.
    2. The report shall be prepared by the prosecutor or deputy prosecutor who represented the state in the proceeding against the prisoner. The report shall be approved by the sentencing judge.
    1. A county sheriff, a deputy county sheriff, or a trained security contractor shall transport all inmates committed to the Division of Correction or the Division of Community Correction as described in this subsection, and the county sheriff is entitled to the fees provided by law.
    2. A county sheriff shall notify the director of the number of inmates in his or her charge who are under commitment to the Division of Correction, and upon request to the county sheriff by the director, the county sheriff, the deputy county sheriff, or the trained security contractor shall send for, take charge of, and safely transport the inmates to the nearest appropriate facility as determined by the Division of Correction or the Division of Community Correction.
    3. However, if the county sheriff determines that it would be in the best interest of an inmate and the public to immediately transport the inmate to the Division of Correction or the Division of Community Correction because of overcrowding or another issue, the county sheriff may notify the Division of Correction or the Division of Community Correction of the need for immediate transport and the Division of Correction or the Division of Community Correction shall consider the request in scheduling inmates for intake.
    1. The director shall make and preserve a full and complete record of every inmate committed to the Division of Correction, along with a photograph of the inmate and data pertaining to his or her trial conviction and past history.
      1. To protect the integrity of records described in subdivision (e)(1) of this section and to ensure their proper use, it is unlawful to permit inspection of or disclose information contained in records described in subdivision (e)(1) of this section or to copy or issue a copy of all or part of a record described in subdivision (e)(1) of this section except:
        1. As authorized by rule;
        2. By order of a court of competent jurisdiction; or
        3. Records posted on the Division of Correction's website as required by § 12-27-145.
      2. A rule under subdivision (e)(2)(A) of this section shall provide for adequate standards of security and confidentiality of records described in subdivision (e)(1) of this section.
    2. For those inmates committed to the Division of Correction and judicially transferred to the Division of Community Correction, the preparation of a record described in subdivision (e)(1) of this section may be delegated to the Division of Community Correction pursuant to policies applicable to records transmission adopted by the Board of Corrections.
    3. A rule under subdivision (e)(2)(A) of this section may authorize the disclosure of information contained in a record described in subdivision (e)(1) of this section for research purposes.
        1. Upon written request, an employee of the Bureau of Legislative Research acting on behalf of a member of the General Assembly may view all records described in subdivision (e)(1) of this section of a current or former inmate.
        2. A request under subdivision (e)(5)(A)(i) of this section shall be made in good faith.
      1. A view of records under this subdivision (e)(5) by an employee may be performed only if the employee is assigned to one (1) or more of the following committees:
        1. Senate Committee on Judiciary;
        2. House Committee on Judiciary; or
        3. Charitable, Penal, and Correctional Institutions Subcommittee of the Legislative Council.
      2. The Division of Correction shall ensure that the employee authorized under subdivision (e)(5)(B) of this section to view records is provided access to the records.
      3. A record requested to be viewed under this subdivision (e)(5) is privileged and confidential and shall not be shown to any person not authorized to have access to the record under this section and shall not be used for any political purpose, including without limitation political advertising, fundraising, or campaigning.

History. Acts 1933, No. 30, § 13; Pope's Dig., § 12658; Acts 1968 (1st Ex. Sess.), No. 50, §§ 6, 19, 38; A.S.A. 1947, §§ 46-106 — 46-106.2, 46-135; Acts 1989, No. 897, § 1; 1993, No. 549, § 6; 2001, No. 615, § 1; 2015, No. 895, § 7; 2015, No. 1171, § 1; 2015, No. 1265, § 5; 2019, No. 315, § 885.

A.C.R.C. Notes. Acts 2015, No. 895, § 1, provided: “Legislative intent. It is the intent of the General Assembly to implement wide-ranging reforms to the criminal justice system in order to address prison overcrowding, promote seamless reentry into society, reduce medical costs incurred by the state and local governments, aid law enforcement agencies in fighting crime and keeping the peace, and to enhance public safety.”

Amendments. The 2015 amendment by No. 895 rewrote (e)(1) through (4); and added (e)(5).

The 2015 amendment by No. 1171 rewrote (d).

The 2015 amendment by No. 1265 rewrote (e).

The 2019 amendment substituted “rules and procedures” for “rules, procedures, and regulations” in (b)(1).

Cross References. Use of county jail fund for supervision and transportation of inmates, § 12-41-716.

Case Notes

Inspection or Disclosure of Records.

Disclosure of inmate records is only permissible when authorized by administrative regulation or by order of a court of competent jurisdiction. Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993).

A court of competent jurisdiction can order disclosure of an inmate's records, and the inmate need not establish a “particularized need” for the information requested. Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993).

Restrictions on an inmate's inspection of his records, allowing only one inspection per six-month period and authorizing the Department of Correction to remove from the inmate's file any documents it deemed to be of a sensitive or confidential nature and which would cause great harm to third persons if disclosed to the inmate or any other member of the public, were permissible under this section and reasonable. Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993).

An administrative directive pertaining to the disclosure of inmate records was not a regulation establishing an exemption as contemplated by subdivision (e)(2) of this section since such directive had not been adopted by the board and was not registered with the Secretary of State. Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000).

Transfer.

Inmate not denied due process when he was transferred to a maximum security prison as he had no justifiable expectation that he would be incarcerated in any particular prison within Arkansas. Whittington v. Norris, 602 F. Supp. 954 (E.D. Ark. 1984).

Cited: Pennington v. State, 260 Ark. 844, 545 S.W.2d 72 (1977).

12-27-114. Inmates in county jails — Reimbursement of county — Medical care.

        1. In the event the Department of Correction cannot accept inmates from county jails due to insufficient bed space, the Department of Correction shall reimburse the counties from the County Jail Reimbursement Fund at rates determined by the Chief Fiscal Officer of the State, after consultation with Arkansas Legislative Audit and the Department of Correction and upon approval by the Governor, until the appropriation and funding provided for that purpose are exhausted.
        2. The reimbursement rate shall include the county's cost of transporting the inmates to the Department of Correction.
        1. Reimbursement shall begin on the date of sentencing if the judgment and commitment order is received by the Department of Correction not later than twenty-one (21) days from the sentencing date.
        2. If the judgment and commitment order is received by the Department of Correction twenty-two (22) or more days after the sentencing date, reimbursement shall begin on the date the Department of Correction receives the judgment and commitment order.
      1. In the event the Department of Community Correction cannot accept inmates from county jails due to insufficient bed space or shall have an inmate confined in a county jail under any prerelease program or sanction imposed in response to a violation of supervision conditions, the Department of Community Correction shall reimburse the counties from the fund at rates determined by the Chief Fiscal Officer of the State, after consultation with Arkansas Legislative Audit and the Department of Correction, and upon approval by the Governor, until the appropriation and funding provided for that purpose are exhausted.
        1. Reimbursement shall begin on either the date of sentencing or the date of placement on probation accompanied with incarceration in the Department of Community Correction if the judgment and commitment order or the judgment and disposition order, whichever is applicable, is received by the Department of Community Correction not later than twenty-one (21) days from either the date of sentencing or the date of placement on probation accompanied with incarceration in the Department of Community Correction.
        2. If the judgment and commitment order or the judgment and disposition order, whichever is applicable, is received by the Department of Community Correction twenty-two (22) or more days after the date of sentencing or the date of placement on probation accompanied with incarceration in the Department of Community Correction, reimbursement shall begin on the date the Department of Community Correction receives either the judgment and commitment order or the judgment and disposition order, whichever is applicable.
      1. The Department of Correction and the Department of Community Correction shall prepare an invoice during the first week of each month that lists each state inmate that is on the county jail backup list during the previous month.
      2. The invoice shall reflect the number of days a state inmate was in the county jail in an awaiting-bed-space status.
      1. The Department of Correction and the Department of Community Correction shall verify and forward the invoices to the applicable county sheriff to certify the actual number of days the state inmates were physically housed in the county jail.
        1. Upon written request of a county judge, county treasurer, or county sheriff, the Department of Correction and the Department of Community Correction shall provide to the county official making the request a written report summarizing the year-to-date county jail reimbursement invoices prepared and forwarded for verification by the Department of Correction and the Department of Community Correction and payment from the fund.
        2. In addition, the written report shall include a summary of invoices returned by each county for payment for previous months within the fiscal year, the amounts paid, and any balances owed.
      1. The certified invoices shall then be returned to the Department of Correction and the Department of Community Correction for payment from the fund.
      2. Payment from the fund shall be made within (5) business days of receipt of signed and certified invoices returned by each county, subject to funding made available for payment of the certified notices.
    1. The county sheriff shall maintain documentation for three (3) calendar years to confirm the number of days each state inmate was physically housed in the county jail.
    2. The documentation maintained by the county sheriff is subject to review by Arkansas Legislative Audit.
    3. Invoices under this subsection may be mailed or sent electronically.
    1. The Board of Corrections shall adopt rules by which the Department of Correction or the Department of Community Correction may reimburse any county, which is required to retain an inmate awaiting delivery to the custody of either the Department of Correction or the Department of Community Correction upon receipt of a correct sentencing order, for the actual costs paid for any emergency medical care for physical injury or illness of the inmate retained under this section if the injury or illness is directly related to the incarceration and the county is required by law to provide the care for inmates in the jail.
    2. The Director of the Department of Correction or his or her designee or the Director of the Department of Community Correction or his or her designee may accept custody of any inmate as soon as possible upon request of the county upon determining that the inmate is required to have extended medical care.
      1. Reimbursements for medical expenses shall require prior approval of the Department of Correction or the Department of Community Correction before the rendering of health care.
        1. In a true emergency situation, health care may be rendered without prior approval.
        2. The Department of Correction or the Department of Community Correction shall be notified of a true emergency situation immediately after the true emergency situation.

History. Acts 1985, No. 648, § 19; 1991, No. 329, §§ 2, 3; 1991, No. 574, §§ 2, 3; 1991, No. 644, § 3; 1995, No. 316, § 13; 2003, No. 370, § 1; 2003 (2nd Ex. Sess.), No. 16, § 1; 2005, No. 2192, § 1; 2013, No. 1282, § 1; 2015, No. 946, § 1; 2015, No. 1201, § 1.

A.C.R.C. Notes. Acts 2015, No. 1071, § 15, provided:

“COUNTY REIMBURSEMENT RATE RESTRICTION. Notwithstanding any other provision of law or departmental commitment which may exist to the contrary, the Board of Corrections shall not increase any reimbursement rate for payments made to any county for the purpose of reimbursing the expenses of the care and custody of state inmates, without first seeking and receiving the approval of the Governor and the Chief Fiscal Officer of the State.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2015, No. 1071, § 16, provided:

“COUNTY JAIL REIMBURSEMENT. In the event the Department of Correction cannot accept inmates from county jails due to insufficient bed space, the Department shall reimburse the counties at a rate determined by the Chief Fiscal Officer of the State, after consultation with the Division of Legislative Audit and the Department of Correction, and upon approval by the Governor, until the appropriation and funding for such purpose, is exhausted. The reimbursement rate shall include the county's cost of transporting the inmates to the department. The appropriation provided by Item (06) of Section 3 may be used for contracts with county jails for pre release inmates.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2015, No. 1071, § 31, provided:

“The Departments of Correction and Community Correction, shall at a minimum and on a fiscal year basis, prepare and post on the applicable agency web site, a monthly summary of county jail reimbursement invoices prepared and forwarded to each county sheriff for verification by the Departments and for payment from the County Jail Reimbursement Fund. In addition, the report shall include a summary of invoices returned by each county for payment for previous months within the fiscal year, the amounts paid, and any balances owed. Each fiscal year-end report shall be maintained on the web sites for a period of no less than three (3) years.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2015, No. 1075, § 21, provided:

“COUNTY JAIL INVOICE SUMMARY. The Departments of Correction and Community Correction, shall at a minimum and on a fiscal year basis, prepare and post on the applicable agency web site, a monthly summary of county jail reimbursement invoices prepared and forwarded to each county sheriff for verification by the Departments and for payment from the County Jail Reimbursement Fund. In addition, the report shall include a summary of invoices returned by each county for payment for previous months within the fiscal year, the amounts paid, and any balances owed. Each fiscal year-end report shall be maintained on the web sites for a period of no less than three (3) years.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2016, No. 266, § 15, provided: “COUNTY REIMBURSEMENT RATE RESTRICTION. Notwithstanding any other provision of law or departmental commitment which may exist to the contrary, the Board of Corrections shall not increase any reimbursement rate for payments made to any county for the purpose of reimbursing the expenses of the care and custody of state inmates, without first seeking and receiving the approval of the Governor and the Chief Fiscal Officer of the State.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Acts 2016, No. 266, § 16, provided: “COUNTY JAIL REIMBURSEMENT. In the event the Department of Correction cannot accept inmates from county jails due to insufficient bed space, the Department shall reimburse the counties at a rate determined by the Chief Fiscal Officer of the State, after consultation with the Division of Legislative Audit and the Department of Correction, and upon approval by the Governor, until the appropriation and funding for such purpose, is exhausted. The reimbursement rate shall include the county's cost of transporting the inmates to the department. The appropriation provided by Item (06) of Section 3 may be used for contracts with county jails for pre release inmates.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Acts 2016, No. 266, § 31, provided: “COUNTY JAIL INVOICE SUMMARY. The Departments of Correction and Community Correction, shall at a minimum and on a fiscal year basis, prepare and post on the applicable agency web site, a monthly summary of county jail reimbursement invoices prepared and forwarded to each county sheriff for verification by the Departments and for payment from the County Jail Reimbursement Fund. In addition, the report shall include a summary of invoices returned by each county for payment for previous months within the fiscal year, the amounts paid, and any balances owed. Each fiscal year-end report shall be maintained on the web sites for a period of no less than three (3) years.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Amendments. The 2005 amendment redesignated former (b)(2) as present (b)(2)(A); and added (b)(2)(B).

The 2013 amendment inserted “or sanction imposed in response to a violation of supervision conditions” in (a)(2)(A).

The 2015 amendment by No. 946, in (c)(1), substituted “rules” for “regulations” near the beginning and substituted “upon receipt of a correct sentencing order” for “for more than thirty (30) days”; and added (c)(3).

The 2015 amendment by No. 1201 rewrote (b)(1)(A); substituted “a state inmate” for “an inmate” in (b)(1)(B); inserted “written” in (b)(2)(B)(ii); added (b)(3)(B); in (b)(4), substituted “state inmate” for “inmate” and inserted “physically”; and added (b)(6).

Research References

Ark. L. Rev.

Mason L. Boling, Legislative Note: That Was the Easy Part: The Development of Arkansas's Public Safety Improvement Act of 2011, and Why the Biggest Obstacle to Prison Reform Remains Intact, 66 Ark. L. Rev. 1109 (2013).

12-27-115. Claims of counties for expenses — Verification.

  1. When any county in which an institution of the Department of Correction is located shall incur expenses in connection with any legal proceedings involved or occasioned by any inmate of a penal institution, the county shall be entitled to reimbursement for such expenses from the Department of Correction Fund.
  2. All claims by counties against the fund pursuant to this section shall be itemized, and the claims shall be verified by the county judge and presented to the Director of the Department of Correction within ninety (90) days after the expense is incurred.
  3. Upon receipt of the verified claims, the director shall pay the claim from funds appropriated for the maintenance and operation of the department.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 43; 1981, No. 58, § 4; A.S.A. 1947, § 46-162.

12-27-116. Use of fuel and provisions — Issuance or sale of items produced.

  1. Except as authorized by the Board of Corrections, no officer of the Department of Correction or employee of the department shall give to anyone any fuel, forage, provisions, or manufactured articles under his or her charge, nor permit such things to be taken or used except for the use and benefit of the state.
    1. The department may provide a program to provide for the orderly and equitable issuance or sale of surplus items produced or processed by the farming operations of the department to employees and, if the department provides the program, the department shall implement a monitoring system to guarantee fiscal accountability in the program.
    2. Only those individuals identified as emergency force personnel meeting the following requirements may participate in the issuance of items under this program:
      1. Individuals whose duties require long working hours beyond the normal workday of approximately 8:00 a.m. to 5:00 p.m., and the normal workweek of five (5) days a week;
      2. Individuals required for long working hours, regularly worked weekends, and holidays; or
      3. Individuals on twenty-four-hour call, seven (7) days a week.
    3. As determined by availability after meeting the needs of the inmate population, reasonable quantities of items produced or processed by the farming operations of the department or purchased in bulk for processing shall be made available under this section.
    4. There shall be a twenty-five-dollar-per-month minimum allowance for commissary items.
      1. Fresh surplus vegetables will be available at the cost of production as determined by the Department of Correction's Farm Accounting Division and Central Office Accounting Division to all nonemergency force employees.
      2. Vegetables will be for the use of the employee and domicile correction's family only.
      3. Only one (1) member of the domicile family will be entitled to the issuance or purchase of vegetables.
    5. The department will implement, maintain, and guarantee accountability of all items so issued to assure fiscal responsibility and total honesty in the program.

History. Acts 1893, No. 76, § 54, p. 121; C. & M. Dig., § 9723; Pope's Dig., § 12754; Acts 1981, No. 139, § 1; A.S.A. 1947, § 46-129; Acts 1989 (1st Ex. Sess.), No. 118, § 33; 2009, No. 283, § 1; 2011, No. 182, § 1; 2011, No. 779, § 22.

Amendments. The 2009 amendment inserted “or processed” in (b)(1) and twice in (b)(3).

The 2011 amendment by No. 182, in (b)(1), substituted “may provide” for “shall adopt rules and regulations to establish” and substituted “if the department provides the program, the department” for “in addition”.

The 2011 amendment by No. 779 added “shall be made available under this section” at the end of (b)(3).

12-27-117. Employees' uniforms.

The Department of Correction is authorized to purchase identifying occupational uniforms for correctional personnel as approved by the Board of Corrections.

History. Acts 1987, No. 953, § 21.

A.C.R.C. Notes. Former § 12-27-117 which concerned employee's uniforms, is deemed to be superseded by this section. The former section was derived from Acts 1985, No. 648, § 20.

12-27-118. Employees' children — Transportation to school.

    1. In order to provide adequate educational opportunities for school children of personnel employed at the various institutions of the Department of Correction, in those instances in which an institution includes territory in more than one (1) school district, school children living within the boundaries of the institution may attend schools in the district of their choice.
    2. The school district in which the children choose to attend may provide transportation services and all other services normally provided school children of the district.
  1. The authority granted in this section for a school district to transport children living within territory of an institution shall supersede any existing provision of law to the contrary.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 41; A.S.A. 1947, § 46-126.

12-27-119. [Repealed.]

Publisher's Notes. This section, concerning exemptions of prison officials and employees from jury and other duties, was repealed by Acts 1997, No. 484, § 1. The section was derived from Acts 1893, No. 76, § 47, p. 121; C. & M. Dig., § 9725; Pope's Dig., § 12756; A.S.A. 1947, § 46-124.

12-27-120. Retirement of employees.

  1. During their employment by the Department of Correction, all employees of the state penitentiary on March 1, 1968, shall be eligible for benefits under and shall participate in the Arkansas Public Employees' Retirement System.
  2. All employees of the department employed after March 1, 1968, shall be included in the membership of the Arkansas Public Employees' Retirement System and shall participate in the Arkansas Public Employees' Retirement System in accordance with the laws governing the Arkansas Public Employees' Retirement System.
  3. It is the intent of this section to:
    1. Allow those employees of the state penitentiary who participated before in the Arkansas State Penitentiary Employees' Retirement System to participate in and receive benefits from the Arkansas Public Employees' Retirement System; and
    2. Provide that all other employees of the department shall participate in and receive the benefits of the Arkansas Public Employees' Retirement System in the manner provided by law.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 21; A.S.A. 1947, § 46-125; Acts 2005, No. 1962, § 46.

A.C.R.C. Notes. The Arkansas State Penitentiary Employees' Retirement System was abolished and all of its assets transferred to the Arkansas State Employees Retirement System [now Arkansas Public Employees' Retirement System] by Acts 1965 (2nd Ex. Sess.), No. 12, § 6. The Arkansas State Penitentiary Employees' Retirement System was created by Acts 1957, No. 64, § 1.

Amendments. The 2005 amendment substituted “Arkansas Public Employees' Retirement System” for “Arkansas State Penitentiary Employees' Retirement System” throughout this section; in (c), inserted the subdivision (1) and (2) designations, substituted “Allow” for “continue to make available to,” deleted “opportunity to continue” preceding “to participate,” and substituted “and” for “but” at the end of (c)(1); and made stylistic and punctuation changes throughout this section.

Cross References. Arkansas Public Employees' Retirement System, § 24-4-101 et seq.

12-27-121. Transfer of inmates to foreign countries.

The Governor is empowered to authorize the Department of Correction to participate, with the assistance of federal authorities, in any treaty between the United States and a foreign country for the transfer of inmates from the custody of the department to the proper authorities of a foreign country.

History. Acts 1987, No. 775, § 1.

12-27-122. Debt service accounts.

    1. The Division of Correction may establish accounts in financial institutions other than the State Treasury for the purpose of making debt service payments on bonds issued, or leases, or both, through the Arkansas Development Finance Authority and as otherwise authorized by law.
    2. The accounts shall be entitled the “Construction Fund Deficiency Account”, the “Prisoner Housing Contract Account”, and the “Regional Facilities Operations Account”.
    3. Receipts into the Construction Fund Deficiency Account, the Prisoner Housing Contract Account, and the Regional Facilities Operations Account shall be from transfers from the work-release cash funds, payments to the division for housing county and city prisoners in regional facilities, and such other sources as required.
  1. Payments made by the division from the work-release cash funds, Construction Fund Deficiency Account, Prisoner Housing Contract Account, and the Regional Facilities Operations Account which are made for bonded indebtedness or leases of regional correction facilities, or both, are specifically exempt from §§ 19-4-801 — 19-4-803, 19-4-805, and 19-4-806.

History. Acts 1989, No. 819, §§ 1, 2; 2017, No. 250, § 20.

Amendments. The 2017 amendment substituted “may” for “is authorized to” in (a)(1); substituted “Construction Fund Deficiency Account, the Prisoner Housing Contract Account, and the Regional Facilities Operations Account” for “accounts so established” in (a)(3); and substituted “§§ 19-4-80119-4-803” for “the provisions of §§ 19-4-80119-4-803, 19-4-804 [repealed]” in (b).

12-27-123. Supervision and transfer of employees.

  1. All staff, employees, and other personnel of the Department of Correction shall be under the direct supervision and control of the Director of the Department of Correction, who shall report directly to the Board of Corrections.
  2. The Compliance Division, which consists of but is not limited to a compliance attorney and an auditor, shall be under the direct authority of the board.

History. Acts 1991, No. 1078, §§ 28, 29; 1993, No. 885, § 1.

12-27-124. Purposes and construction of the Division of Community Correction.

    1. The purpose of this act is to establish a Division of Community Correction that shall assume the management of all community correction facilities and services, execute the orders of the criminal courts of the State of Arkansas, and provide for the supervision, treatment, rehabilitation, and restoration of adult offenders as useful law-abiding citizens within the community.
    2. The division shall be under the supervision and control of the Board of Corrections.
    3. To accomplish the objectives and purposes of this act in an effective, coordinated, and uniform manner, the division shall be responsible for the administration of all community correction facilities, services, and means of supervision, including probation and parole or any type of post-prison release or transfer.
    4. Facilities and services shall be diversified in program, construction, and staff to provide effectually and efficiently for the maximum care, supervision, and treatment of those persons accessing the division.
  1. This act shall be liberally construed so as to effectuate its purposes.

History. Acts 1993, No. 549, § 7; 2019, No. 910, § 742.

Publisher's Notes. Acts 1993, No. 549, § 7, provided, in part, that the Board of Correction and Community Punishment shall succeed to all powers, functions, and duties formerly vested in the State Penitentiary Board and the Arkansas Adult Probation Commission. The Department of Community Punishment shall be created effective July 1, 1993, the same date that the Board of Correction and Community Punishment assumes its new duties and responsibilities.

Amendments. The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in the section heading and (a)(1); and substituted “division” for “department” in (a)(2) through (a)(4).

Meaning of “this act”. Acts 1993, No. 549, codified as §§ 12-27-101, 12-27-10312-27-105, 12-27-107, 12-27-113, 12-27-12412-27-127, 16-93-402 [repealed].

12-27-125. Division of Community Correction — Creation — Powers and duties.

  1. There is established, under the supervision, control, and direction of the Board of Corrections, a Division of Community Correction.
  2. The Division of Community Correction shall have the following functions, powers, and duties, administered in accordance with the policies and rules promulgated by the Board of Corrections:
    1. It shall assume management and control over all properties, both real and personal, facilities, books, records, equipment, supplies, materials, contracts, funds, moneys, equities, and all other properties belonging to the Arkansas Adult Probation Commission [abolished], and all such properties transferred from the Department of Correction, as the Division of Correction was known as prior to July 1, 2019, by the Board of Corrections;
      1. It shall have management and control over all community correction services.
      2. It shall have management and control over all community correction facilities within the purview of the Board of Corrections existing on or created after July 1, 1993;
    2. It shall employ such officers, employees, and agents and shall secure such offices and quarters as deemed necessary to discharge the functions of the Division of Community Correction, and which are appropriately funded;
    3. It may establish and operate regional community correction facilities if funds for the regional community correction facilities have been authorized and appropriated by the General Assembly;
      1. It may exercise all legally sanctioned supervision and appropriate care over all offenders referred with proper documentation from the circuit courts and all offenders transferred with proper documentation from the Division of Correction pursuant to policies established by the Board of Corrections and conditions set by the Parole Board.
      2. Legal custody remains with the referring court or the Division of Correction;
    4. It shall administer the provision of probation services for offenders processed through circuit courts;
    5. It shall administer the provision of parole services in coordination with the Parole Board and in cooperation with the Division of Correction;
    6. It shall provide support services to the Parole Board or its designated representatives as determined by the Parole Board;
    7. It shall assist the Board of Corrections in the furtherance of its goals by staffing the specific charges articulated for it through legislation and by the Board of Corrections;
    8. It shall conduct statewide public education and training to foster the provision of correctional supervision and service in community settings;
    9. It shall provide technical assistance when necessary to any entity, program, division, or agency receiving assistance or clients through the Division of Community Correction;
    10. It shall facilitate the development of a comprehensive community correction plan through the provision of funding, criteria review, and ongoing evaluation to ensure the maintenance of quality in supervision and programming;
    11. It may accept gifts, grants, and funds from both public and private sources with prior approval of the Board of Corrections;
    12. It shall establish minimum standards for case loads, programs, facilities, and equipment and other aspects of the operation of community correction programs and facilities necessary for the provision of adequate and effective supervision and service;
    13. It shall establish minimum standards for the employment of community correction employees;
    14. It shall establish programs of research, evaluation, statistics, audit, and planning, including studies and evaluation of the performance of various functions and activities of the Department of Corrections and studies affecting the treatment of offenders and information about other programs;
      1. It may receive and disburse moneys ordered to be paid by offenders pursuant to statutory economic sanctions.
      2. It may receive fees to be levied by the courts or authorized by the Board of Corrections for participation in specified programs and to be paid by offenders on community correction.
      3. The payment of such sanctions and fees may be a condition of probation, parole, or post prison transfer or attached to admission and participation in a community correction program.
      4. The moneys collected shall be deposited into an earmarked account at the state level to be used solely for the continuation and expansion of community correction in this state.
      5. Economic sanction officers are to be authorized by the Division of Community Correction to perform these duties pursuant to policies and procedures adopted by the Board of Corrections and in accord with any state statutory accounting requirements;
    15. It may cooperate and contract with the federal government, with governmental agencies of Arkansas and other states, with political subdivisions of Arkansas, and with private contractors to provide and improve community correction options;
    16. It may inspect and evaluate any community correction site and conduct audits of financial and service records at any reasonable time to determine compliance with the Board of Corrections' rules and standards;
      1. It shall maintain a full and complete record of each offender under its supervision.
        1. To protect the integrity of a record described in subdivision (b)(20)(A) of this section and to ensure its proper use, it is unlawful to permit inspection of or disclose information contained in a record described in subdivision (b)(20)(A) of this section or to copy or issue a copy of any part of the record except:
          1. As authorized by administrative rule;
          2. By order of a court of competent jurisdiction; or
          3. Records posted on the Division of Community Correction's website as required by § 12-27-145.
        2. The rules under subdivision (b)(20)(B)(i)(a) shall provide for adequate standards of security and confidentiality of a record described in subdivision (b)(20)(A) of this section;
    17. Subject to availability of funds, it shall employ officers, employees, and agents and secure sufficient offices for monitoring each sex offender on parole or probation who is required to register under the Sex Offender Registration Act of 1997, § 12-12-901 et seq., and who has been assessed as a risk Level 3 or Level 4 offender; and
      1. It may issue an arrest warrant for the arrest of any person who, while in its custody, unlawfully escapes from the Division of Community Correction.
      2. The arrest warrant shall authorize:
        1. All law enforcement officers of this state to take into custody and return the person named in the arrest warrant to the custody of the Division of Community Correction or the Division of Correction; and
        2. All law enforcement officers of this state, any other state, or the federal government to take into custody and detain the person in a suitable detention facility while awaiting further transfer to the Division of Community Correction or the Division of Correction.

History. Acts 1993, No. 549, § 7; 1997, No. 280, § 1; 2006 (1st Ex. Sess.), No. 4, § 8; 2015, No. 145, §§ 1, 2; 2015, No. 1265, § 6; 2019, No. 315, § 886; 2019, No. 910, § 743.

A.C.R.C. Notes. The Arkansas Adult Probation Commission was merged with the Board of Correction to become the Board of Correction and Community Punishment by Acts 1993, No. 549, § 3.

Acts 2001, No. 323, § 1, provided:

“Legislative intent. The General Assembly, in Act 549 of 1993, established the Arkansas Department of Community Punishment and delineated its purposes. Confusion in the public's perception, with regard to the purposes of the department, exists and will persist because of the inconsistency between the name of the department and its established purposes. The purpose of this act is to provide the department with a name that more accurately describes its role as an agency that is intended to fulfill the legislatively established purposes of supervision, treatment, rehabilitation, and restoration of adult offenders as useful law-abiding citizens within the community and to provide its supervisory board with a name consistent with the department's name change.”

Acts 2001, No. 323, § 2, provided:

“The ‘Department of Community Punishment’, as established in Arkansas Code 12-27-125, shall hereafter be known as the ‘Department of Community Correction’.”

Acts 2019, No. 160, § 1, provided: “The Department of Community Correction may, with consent of the Board of Corrections and the Governor, donate the former site of the Southeast Arkansas Community Correction Center in Pine Bluff to an Arkansas-based nonprofit organization serving veterans of the United States Armed Forces if the proposed use by the nonprofit organization includes services approved by the Board of Corrections for veterans released from incarceration.”

Amendments. The 2015 amendment by No. 145 substituted “correction services” for “punishment services existing on July 1, 1993, and created thereafter” at the end of (b)(2)(A); and added (b)(22).

The 2015 amendment by No. 1265 inserted the (a) and (b) designations in (b)(20)(B)(i); substituted “rule” for “regulation or” in (b)(20)(B)(i) (a) ; added (b)(20)(B)(i) (c) ; and substituted “rules under subdivision (b)(20)(B)(i) (a) ” for “regulations” in (b)(20)(B)(ii).

The 2019 amendment by No. 315 substituted “policies and rules” for “policies, rules, and regulations” in the introductory language of (b); and deleted “regulations” following “rules” in (b)(19).

The 2019 amendment by No. 910 substituted “Division of Community Correction” for “Department of Community Correction” in the section heading and throughout the section, except in (b)(16), which substituted “Department of Corrections” for “Department of Community Correction; substituted “transferred from the Department of Correction, as the Division of Correction was known as prior to July 1, 2019,” for “deemed appropriate for transfer from the Department of Correction” in (b)(1); and substituted “Division of Correction” for “Department of Correction” in (b)(5), (b)(7), (b)(22)(B)(i), and (b)(22)(B)(ii).

12-27-126. Director of the Division of Community Correction.

  1. The Director of the Division of Community Correction shall be appointed by the Board of Corrections at a salary fixed by the Board of Corrections, which shall not exceed the maximum salary for the position established by law.
  2. The director shall be qualified for the position by character, ability, education, training, and successful administrative experience in correctional, community correction, or related fields.
  3. The director shall serve at the pleasure of the Board of Corrections.
  4. Subject to the rules, policies, and procedures prescribed by the Board of Corrections, the director shall:
    1. Administer the Division of Community Correction and supervise the administration of all facilities, programs, and services under the Division of Community Correction's jurisdiction;
    2. Employ such personnel as are required in the administration of the provisions of this act, provided that the employment of personnel shall be in accordance with the applicable laws and personnel rules of the state;
    3. Institute programs for the training and development of personnel within the Division of Community Correction and have authority to suspend, discharge, or otherwise discipline personnel in accordance with policies prescribed by the Board of Corrections;
    4. Make an annual report to the Board of Corrections, which will be forwarded to the Governor and the General Assembly, on the work of the Division of Community Correction, including statistics and other data, income derived from fee collection, a summary of expenditures of the Division of Community Correction, and progress reports regarding internal issues such as offender success, programming development, bed space utilization, and future needs; and
    5. Cooperate with the Division of Correction, the Parole Board, the Arkansas Sentencing Commission, judicial districts, counties, and municipalities to provide the guidance and services required to ensure a full range of correctional and community correction options for the state as a whole.

History. Acts 1993, No. 549, § 7; 2019, No. 315, § 887; 2019, No. 910, §§ 744-746.

A.C.R.C. Notes. Acts 1993, No. 953, § 13, provided:

“Notwithstanding any other provision of law, the Governor shall initially appoint the Director of the Department of Community Punishment after which the Board of Correction and Community Punishment shall appoint the Director of the Department with the advice of the Governor.”

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “rules” in the introductory language of (d); and substituted “rules” for “regulations” in (d)(2).

The 2019 amendment by No. 910 substituted “Division of Community Correction” for “Department of Community Correction” in (a) and throughout (d); and substituted “Division of Correction” for “Department of Correction” in (d)(5).

Meaning of “this act”. See note to § 12-27-124.

12-27-127. Transfer to the Division of Community Correction — Transfer of an inmate between divisions.

  1. A commitment shall be treated as a commitment to the Division of Correction and subject to regular transfer eligibility unless:
    1. The commitment specifies that the inmate is to be judicially transferred to the Division of Community Correction; or
    2. If the court indicates on the commitment that the Division of Correction shall administratively determine the transfer of an inmate, the Division of Correction may administratively transfer a statutorily eligible inmate to the Division of Community Correction in accordance with rules promulgated by the Board of Corrections.
    1. In accordance with rules and procedures promulgated by the Board of Corrections and the orders of the committing court, the Director of the Division of Community Correction shall assign a newly transferred inmate to an appropriate facility, placement, program, or status within the Division of Community Correction.
    2. The director may transfer an inmate from one facility, placement, program, or status to another facility, placement, program, or status consistent with the commitment, applicable law, and in accordance with treatment, training, and security needs.
      1. An inmate may be administratively transferred back to the Division of Correction from the Division of Community Correction by the Parole Board following a hearing in which the inmate is found ineligible for placement in a Division of Community Correction facility as he or she fails to meet the criteria or standards established by law or policy adopted by the Board of Corrections or has been found guilty of a violation of the rules of the facility.
      2. Time served in a community correction facility or under supervision by the Division of Community Correction shall be credited against the sentence contained in the commitment to the Division of Correction.
    1. In accordance with rules and procedures promulgated by the Board of Corrections, or except as otherwise prohibited by subdivision (c)(4) of this section, upon receipt of a referral from the director or his or her designee, the Parole Board may release from confinement an inmate who has been:
      1. Sentenced and judicially or administratively transferred to the Division of Community Correction;
      2. Incarcerated for a minimum of one hundred eighty (180) days; and
      3. Determined by the Division of Community Correction to have successfully completed its therapeutic program.
      1. The General Assembly finds that the power granted to the Parole Board under subdivision (c)(1) of this section will:
        1. Aid the therapeutic rehabilitation of the inmates judicially or administratively transferred to the Division of Community Correction; and
        2. More efficiently use the correctional resources of the State of Arkansas.
      2. The power granted to the Parole Board under subdivision (c)(1) of this section shall be the sole authority required for the accomplishment of the purposes set forth in this subdivision (c)(2), and when the Parole Board exercises its power under this section, it shall not be necessary for the Parole Board to comply with general provisions of other laws dealing with the minimum time constraints as applied to release eligibility.
    2. This subsection does not grant the Parole Board or the Division of Community Correction the authority either to detain an inmate beyond the sentence imposed upon him or her by a transferring court or to shorten that sentence.
    3. An inmate may not be released from confinement under this section if the inmate was sentenced and judicially or administratively transferred to the Division of Community Correction at a time earlier than that which would otherwise be possible if the inmate was sentenced to the Division of Correction, regardless of any program completed by the inmate.
    1. An inmate of the Division of Correction who is to be released on parole may be administratively transferred to the Division of Community Correction when the inmate is within eighteen (18) months of his or her projected release date for the purpose of participating in a reentry program of at least six (6) months in length.
    2. Each inmate administratively transferred under this subsection shall be thoroughly screened and approved for participation by the director or his or her designee.
    3. In accordance with rules promulgated by the Board of Corrections, upon receipt of a referral from the director or his or her designee, the Parole Board may release from incarceration an inmate who has been:
      1. Administratively transferred to the Division of Community Correction; and
      2. Determined by the Division of Community Correction to have successfully completed its reentry program.
    4. An inmate who has been administratively transferred under this subsection shall be administratively transferred back to the Division of Correction if he or she:
      1. Is denied parole; or
      2. Fails to complete or is removed from the reentry program.

History. Acts 1993, No. 549, § 8; 1995, No. 1170, § 5; 2005, No. 682, § 1; 2013, No. 1335, § 1; 2015, No. 146, § 1; 2017, No. 423, § 10; 2019, No. 910, §§ 747-751.

Amendments. The 2005 amendment added (c).

The 2013 amendment deleted “pursuant to § 16-93-1206(b)(3)” following “Department of Community Correction” in (a).

The 2015 amendment deleted “Judicial” at the beginning of the section heading; in (a), substituted “Unless a commitment specifies” for “All commitments shall specify” at the beginning, deleted “or” following “Correction”, and substituted “shall” for “will”; deleted “and regulations” preceding “promulgated” in (b)(1); deleted “and regulations” preceding “of the facility” at the end of (b)(3)(A); substituted “This subsection does not grant” for “Nothing in this subsection (c) shall be construed as granting” at the beginning of (c)(3); and added (d).

The 2017 amendment added “Transfer of an inmate between departments” to the section heading; in the introductory language of (a), substituted “A” for “Unless a commitment specifies that the inmate is to be judicially transferred to the Department of Community Correction, the” and added “unless”; added (a)(1) and (a)(2); inserted “or except as otherwise prohibited by subdivision (c)(4) of this section” in the introductory language of (c)(1); inserted “or administratively” in (c)(1)(A); substituted “one hundred eighty (180) days” for “two hundred seventy (270) days” in (c)(1)(B); inserted “or administratively” in (c)(2)(A)(i); added (c)(4); and made stylistic changes.

The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” and substituted “Division of Correction” for “Department of Correction” throughout the section.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Law Enforcement, Emergency Management, and Military Affairs, 28 U. Ark. Little Rock L. Rev. 365.

12-27-128. Division of Correction Nontax Revenue Receipts Fund.

  1. There is created in accordance with §§ 19-4-801 — 19-4-803, 19-4-804 [repealed], 19-4-805, 19-4-806, and the Revenue Classification Law, § 19-6-101 et seq., a cash fund entitled the Division of Correction Nontax Revenue Receipts Fund to consist of receipts for telephone calls from coinless telephones located on Division of Correction grounds, and from other nontax receipts not previously identified to a fund of deposit.
  2. Funds held in the Division of Correction Nontax Revenue Receipts Fund are to be administered and expended by the Director of the Division of Correction within guidelines established by the Board of Corrections for periodic transfers to other division funds or for disbursements in support of division operations or debt service.
  3. The division will request cash fund appropriations in accordance with established law and procedures after a determination by the board of the usage of the Division of Correction Nontax Revenue Receipts Fund.

History. Acts 1993, No. 697, §§ 1-3; 2019, No. 910, § 752.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” throughout the section; and substituted “division” for “department” twice in (b) and in (c).

12-27-129. Report on rehabilitation.

  1. The Division of Correction may report to the House Committee on State Agencies and Governmental Affairs and the Senate Committee on State Agencies and Governmental Affairs no later than December 1 of each year regarding its efforts in rehabilitating the inmate population.
    1. The report may include the division's rehabilitative efforts regarding inmate education, specific job training, behavior modification, psychological treatment and assistance, and substance abuse programs.
    2. Further, the report is to include the amount of meritorious good time awarded inmates by the division for the successful completion of the various rehabilitative programs.

History. Acts 1993, No. 911, § 32; 1997, No. 324, § 1; 2019, No. 910, § 753.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a); and substituted “division” for “department” and similar language in (b).

12-27-130. Reimbursement of county.

Notwithstanding any other provision of law or Division of Correction's commitment which may exist to the contrary, the Board of Corrections shall not increase any reimbursement rate for payments made to any county for the purpose of reimbursing the expenses of the care and custody of state inmates without first seeking and receiving the approval of the Governor and the Chief Fiscal Officer of the State.

History. Acts 1993, No. 911, § 19; 1995, No. 158, § 13; 2019, No. 910, § 754.

A.C.R.C. Notes. Acts 2015, No. 1071, § 15, provided:

“COUNTY REIMBURSEMENT RATE RESTRICTION. Notwithstanding any other provision of law or departmental commitment which may exist to the contrary, the Board of Corrections shall not increase any reimbursement rate for payments made to any county for the purpose of reimbursing the expenses of the care and custody of state inmates, without first seeking and receiving the approval of the Governor and the Chief Fiscal Officer of the State.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2016, No. 266, § 15, provided: “COUNTY REIMBURSEMENT RATE RESTRICTION. Notwithstanding any other provision of law or departmental commitment which may exist to the contrary, the Board of Corrections shall not increase any reimbursement rate for payments made to any county for the purpose of reimbursing the expenses of the care and custody of state inmates, without first seeking and receiving the approval of the Governor and the Chief Fiscal Officer of the State.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Amendments. The 2019 amendment substituted “Division of Correction's” for “Department of Correction's”.

12-27-131. Receipts for reimbursement.

  1. Receipts from cities or counties reimbursed to the Division of Correction for daily care of city or county prisoners shall be accounted for separately.
  2. The debt service of such receipts shall be used for payment of debt service on bonds, loans, or any other instruments used to finance regional jail facilities.
  3. The operational portion of such receipts shall also be used for debt service unless approval is received from the Secretary of the Department of Finance and Administration for other usages.

History. Acts 1993, No. 911, § 30; 2019, No. 910, §§ 755, 756.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a); and substituted “Secretary of the Department of Finance and Administration” for “Director of the Department of Finance and Administration” in (c).

12-27-132. Award of pistol upon retirement or death.

When a Division of Community Correction parole or probation officer retires from service or dies while still employed with the division, in recognition of and appreciation for the service of the retiring or deceased parole or probation officer, the division may award the pistol carried by the officer at the time of his or her death or retirement from service to:

  1. The parole or probation officer; or
  2. The parole or probation officer's spouse if the spouse is eligible under applicable state and federal laws to possess a firearm.

Acts 2009, No. 365, § 1; 2019, No. 910, § 757.

Amendments. The 2019 amendment, in the introductory language of the section, substituted “Division of Community Correction” for “Department of Community Correction”; and “division” for “department” twice.

12-27-133. Community Correction Revolving Fund.

There is created and established on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State a fund to be known as the “Community Correction Revolving Fund”, which shall consist of those special revenues as specified in § 19-6-301(31) and fees and sanctions levied by the courts or authorized by the Board of Corrections for participation in specified programs to be paid by offenders on community correction, there to be used for continuation and expansion of community correction programs as established and approved by the board and as may be provided by law.

History. Acts 1993, No. 953, § 5.

A.C.R.C. Notes. Acts 1993, No. 953, § 5, provided, in part:

“Any fund balances of the Arkansas Adult Probation Commission Fund and the Community Services Revolving Fund on June 30, 1993 shall be transferred to the Community Punishment Revolving Fund.”

Acts 2001, No. 323, § 4, provided:

“The ‘Community Punishment Revolving Fund’, as established in Arkansas Code 12-27-133 and 19-6-432, shall hereafter be known as the ‘Community Correction Revolving Fund’.”

Publisher's Notes. Acts 1993, No. 953, § 5, is also codified as § 19-6-432.

12-27-134. Probation services.

  1. The Division of Community Correction shall administer, in cooperation with the circuit courts, the provision of probation services as prescribed by the circuit courts.
  2. The division shall establish an acceptable procedure that ensures the selection of qualified applicants to meet the needs of the circuit courts and includes subject matter experts from the circuit courts.

History. Acts 1993, No. 953, § 14; 2019, No. 910, § 758.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 953, § 14, this section also provided, in part:

“Any existing employee of an Arkansas circuit court adult probation department whose salary is paid in whole or part with State aid (probation supervision fees and/or financial aid regulated or funded by the Arkansas Adult Probation Commission) who is employed with an Arkansas circuit court adult probation department on June 30, 1993, shall be deemed a State employee for all purposes, and therefore shall enjoy the same benefits as regular State employees. An Arkansas circuit court adult probation department employee who becomes a State employee on July 1, 1993, who was employed at any time between April 1, 1984 and June 30, 1993, is entitled to credited service in the former position for the purposes of establishing eligibility for the same benefits as regular state employees.”

Amendments. The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in (a); and substituted “division” for “department” in (b).

12-27-135. Facility assignment.

    1. In accordance with the rules and procedures promulgated by the Board of Corrections, the Director of the Division of Correction shall assign a newly committed inmate to an appropriate facility of the Division of Correction.
    2. The director may transfer an inmate from one (1) facility to another consistent with the commitment and in accordance with treatment, training, and security needs.
  1. All commitments to the division shall be to the division and not to a particular institution.

History. Acts 1993, No. 658, § 1; 2019, No. 315, § 888.

Amendments. The 2019 amendment substituted “rules and procedures” for “rules, procedures, and regulations” in (a)(1).

12-27-136. Services and equipment.

The Division of Correction and the Division of Community Correction may provide services, furnishings, equipment, and office space to assist the Parole Board in fulfilling the purposes for which the board was created by law.

History. Acts 1995, No. 195, § 3; 2019, No. 910, § 759.

A.C.R.C. Notes. Acts 2015, No. 977, § 3, provided:

“ASSISTANCE PROVISION. The Department of Correction and the Department of Community Correction may provide services, furnishings, equipment and office space to assist the Parole Board in fulfilling the purposes for which the Board was created by law.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2016, No. 54, § 3, provided:

“ASSISTANCE PROVISION. The Department of Correction and the Department of Community Correction may provide services, furnishings, equipment and office space to assist the Parole Board in fulfilling the purposes for which the Board was created by law.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Publisher's Notes. Acts 1995, No. 195, § 3, is also codified as § 16-93-208.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction,” and “Division of Community Correction” for “Department of Community Correction”.

12-27-137. Confidentiality of emergency preparedness documents.

  1. The following sections of the Division of Correction's official Emergency Preparedness Manual are confidential and shall not be subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.:
    1. Command Post Checklist;
    2. Command Notifications;
    3. Internal Notifications;
    4. External Notifications;
    5. Recall Notifications;
    6. Family Notifications;
    7. Tactical Systems;
    8. Command Structure;
    9. Emergency Locations;
    10. Emergency Equipment;
    11. Emergency Deactivation;
    12. Emergency Plans;
    13. Work Stoppage Directive;
    14. Evacuation Diagrams; and
    15. Facility Maps, Utility Locations.
  2. Any document described in subsection (a) of this section shall become available for public viewing if it becomes part of a criminal investigation, at the time that investigation is concluded and it is not otherwise exempt by law.
  3. Any amendments or additions to the sections of the manual described in subsection (a) of this section shall be reviewed annually by the Charitable, Penal and Correctional Institutions Subcommittee of the Legislative Council.

History. Acts 1997, No. 741, § 1; 2019, No. 910, § 760.

Amendments. The 2019 amendment substituted “Division of Correction's” for “Department of Correction's” in the introductory language of (a).

12-27-138. [Repealed.]

Publisher's Notes. This section, concerning reallocation of resources, was repealed by Acts 2007, No. 1291, § 24. The section was derived from Acts 1999, No. 1142, § 8; 2003, No. 370, § 2.

12-27-139. Notice to police when furloughed inmate will be in jurisdiction.

  1. The Board of Corrections may promulgate rules to allow inmates to participate in a meritorious furlough program which include a requirement that the county sheriff and the chief of police of the city or town, if applicable, shall be notified if an inmate will be present within their jurisdiction while on furlough.
  2. The rules referred to in subsection (a) of this section shall not require the county sheriff or the chief of police of the city or town, if applicable, of the jurisdiction in which an inmate will be present on furlough to approve the granting of the furlough.
    1. All Arkansas-certified law enforcement officers are authorized to escort inmates on emergency furlough.
    2. The board may promulgate rules necessary to implement subdivision (c)(1) of this section.

History. Acts 2001, No. 1371, § 1; 2019, No. 315, § 889.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (a), (b), and (c)(2).

12-27-140. Division of Community Correction annual report.

    1. On July 31 of each year, the Division of Community Correction shall submit an annual report to the Legislative Council showing the number of persons sentenced or transferred to the division during the fiscal year for each criminal offense classification.
    2. Persons sentenced or transferred for multiple offenses shall be noted in the report.
  1. The report shall include a breakdown by race of all persons charged in each criminal offense classification.
  2. The division shall cooperate with and upon request make presentations and provide various reports, to the extent the division's budget will allow, to the Legislative Council concerning division policy and criteria on discretionary offender programs and services.

History. Acts 2003, No. 1031, § 4; 2005, No. 1962, § 47; 2019, No. 910, §§ 761, 762.

A.C.R.C. Notes. Acts 2003, No. 1031, § 1, provided:

“Intent.

“(a) Ethnic minorities appear to be over represented in the population of persons who are involved in the criminal justice system, charged as defendants, convicted, and incarcerated throughout the United States criminal justice systems.

“(b) It is the responsibility of criminal justice agencies and the courts in the State of Arkansas to ensure that all actions taken are based upon reasons other than the race of the defendant.

“(c) In order to allow the General Assembly to conduct a thorough review of the Arkansas criminal justice process, information on actions taken by criminal justice agencies and the courts must be reported in a timely, uniform, and consistent manner.”

As enacted by Acts 2003, No. 1031, § 4, subdivision (a)(1) began:

“Beginning July 31, 2003, and on July 31 of each year thereafter,”.

Amendments. The 2005 amendment deleted “and the Commission on Disparity in Sentencing” in (a)(1); and deleted “and the commission” in (c).

The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in (a)(1); and substituted “division” for “department” in (a)(1) and throughout (c).

12-27-141. [Repealed.]

Publisher's Notes. This section, concerning Department of Correction annual report, was repealed by Acts 2017, No. 305, § 1. The section was derived from Acts 2003, No. 1031, § 5; 2005, No. 1962, § 48.

12-27-142. Medical services contract.

  1. The Division of Correction and the Division of Community Correction may enter into professional services contracts for medical services for a contract period not to exceed ten (10) years.
  2. Except as provided in subsection (a) of this section, the professional services contracts for medical services shall comply with all other provisions of the Arkansas Procurement Law, § 19-11-201 et seq., and rules promulgated under the Arkansas Procurement Law, § 19-11-201 et seq.

History. Acts 2005, No. 684, § 1; 2017, No. 250, § 21; 2019, No. 910, § 763.

A.C.R.C. Notes. As enacted by Acts 2005, No. 684, § 1, subsection (c) of this section read “… on the effective date of this section …”.

Amendments. The 2017 amendment substituted “and rules promulgated under the Arkansas Procurement Law, § 19-11-201 et seq.” for “and regulations” in (b); and deleted (c).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a).

12-27-143. Award of service weapon upon retirement or death.

When a Division of Correction employee retires from service with at least twenty (20) years of service or dies while still employed with the division, in recognition of and appreciation for the service of the retiring or deceased employee, the Director of the Division of Correction may award the service weapon carried by the employee at the time of his or her retirement from service or death to:

  1. The employee;
  2. The employee's spouse if the spouse is eligible under applicable state and federal laws to possess a firearm; or
    1. The surviving child of the employee if there is no surviving spouse and the surviving child is eligible under applicable state and federal laws to possess a firearm.
      1. If there is more than one (1) surviving child of the employee, the service weapon may be awarded to the oldest surviving child if he or she is eligible under applicable state and federal laws to possess a firearm.
      2. If the oldest of the surviving children is not eligible to possess a firearm under applicable state and federal laws, then the service weapon may be awarded to the next-oldest surviving child if he or she is eligible to possess a firearm under applicable state and federal laws.

History. Acts 2011, No. 181, § 1; 2019, No. 106, § 1; 2019, No. 910, § 764.

A.C.R.C. Notes. Acts 2019, No. 910, § 764, changed “department” to “division” in this section before “may award”. However, Acts 2019, No. 106, § 1, specifically amended this section to change “department” to the “Director of the Department of Correction”. Pursuant to Acts 2019, No. 910, § 739, the Director of the Department of Correction is now known as the “Director of the Division of Correction”.

Amendments. The 2019 amendment by No. 106 substituted “Director of the Department of Correction” for “the department” in the introductory language; and added (3).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “division” for “department” in the introductory language.

12-27-144. Division of Community Correction — Receipt of grant money for certain purposes.

  1. The Division of Community Correction may receive money from any source to be deposited into the Accountability Court Fund to be used for adult and juvenile specialty court programs as defined under § 16-10-139, based upon a formula to be developed by the Arkansas Judicial Council, Inc., reviewed by the Specialty Court Program Advisory Committee, and approved by the Legislative Council.
  2. The division may promulgate rules to implement this section.

History. Acts 2015, No. 895, § 8; 2019, No. 910, § 765.

A.C.R.C. Notes. Acts 2015, No. 895, § 1, provided: “Legislative intent. It is the intent of the General Assembly to implement wide-ranging reforms to the criminal justice system in order to address prison overcrowding, promote seamless reentry into society, reduce medical costs incurred by the state and local governments, aid law enforcement agencies in fighting crime and keeping the peace, and to enhance public safety.”

Amendments. The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in the section heading and (a); and substituted “division” for “department” in (b).

12-27-145. Records to be posted on a public website — Definition.

  1. To the extent permitted by federal law, the Division of Correction shall post on the Division of Correction's website the following information concerning an inmate:
    1. The offense and sentence for any conviction for which the inmate is incarcerated, including:
      1. Whether the inmate is subject to a suspended sentence, if known; and
      2. The terms of the suspended sentence, if applicable;
        1. Beginning July 1, 2015, the disciplinary record for each inmate.
        2. As used in this subsection, “disciplinary record” means a list of each major disciplinary violation after July 1, 2015, for which the inmate has been found guilty.
      1. Additionally, the list and the date of major disciplinary violations for which the inmate was found guilty shall be displayed during the period the inmate is being considered for transfer to parole;
      1. Risk assessment scores completed after April 1, 2015.
      2. Risk assessment scores under this subdivision (a)(3) shall include the name of the state agency that completed the risk assessment, the date the risk assessment was conducted, and the level of assessment.
      3. Information by the Division of Correction regarding how risk assessments are scored shall also be posted;
    2. Custody status and level;
    3. Any known aliases;
    4. A current photograph of the inmate;
    5. A complete felony conviction summary to the extent that information is available to the Division of Correction;
    6. To the extent the information is available to the Division of Correction, if an order of protection, no contact order, or other order from an in-state or out-of-state court that prohibits contact or communication with another person is in place;
    7. Any programs completed by the inmate while in custody; and
    8. An inmate's parole eligibility date or date he or she is to be released from incarceration as well as a general explanation of how an inmate's parole eligibility date is calculated, including good time credits.
    1. To the extent permitted by federal law, the Division of Community Correction shall post on the Division of Community Correction's website the following information concerning a probationer, parolee, or other person under the supervision of the Division of Community Correction who has absconded or has had a warrant issued for his or her arrest for evading supervision:
      1. Any offense and sentence for which the probationer, parolee, or other person under the supervision of the Division of Community Correction is being supervised, including:
        1. Whether the probationer, parolee, or other person under the supervision of the Division of Community Correction is subject to a suspended sentence, if known; and
        2. The terms of the suspended sentence, if applicable;
      2. A complete felony conviction summary to the extent that information is available to the Division of Community Correction;
        1. Risk assessment scores completed after April 1, 2015.
        2. Risk assessment scores under this subdivision (b)(1)(C) shall include the name of the state agency that completed the risk assessment, the date the risk assessment was conducted, and the level of assessment.
        3. Information by the Division of Community Correction regarding how risk assessments are scored shall also be posted;
      3. Any known aliases;
      4. A most recent photograph of the probationer, parolee, or other person under the supervision of the Division of Community Correction;
      5. To the extent the information is available to the Division of Community Correction, if an order of protection, no-contact order, or other order from an in-state or out-of-state court that prohibits contact or communication with another person is in place;
      6. All major disciplinary violations while the probationer, parolee, or other person under the supervision of the Division of Community Correction was incarcerated and the date of the major disciplinary violation disposition;
      7. Any programs completed by the probationer, parolee, or other person under the supervision of the Division of Community Correction while on supervision and the date of completion; and
      8. A list of previous revocation offenses while on probation or parole and date of revocation.
    2. The Division of Community Correction shall develop a plan to establish a method for a victim of a crime committed by a probationer, parolee, or other person under the supervision of the Division of Community Correction to directly and easily access the information listed under this subsection.
    1. When possible, court-generated records listed under this section shall be electronic copies of the actual court documents.
    2. All victim information included in the court-generated records under this subsection shall be redacted.

History. Acts 2015, No. 1265, § 7; 2017, No. 250, § 22; 2019, No. 910, § 766.

Amendments. The 2017 amendment substituted “A most” for “Most” in (b)(1)(E); in (b)(1)(F), substituted “no-contact” for “no contact” preceding “order”; and, in (b)(1)(G), substituted “probationer, parolee, or other person under the supervision of the Department of Community Correction” for “inmate”.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” throughout (a); and substituted “Division of Community Correction” for “Department of Community Correction” throughout (b).

12-27-146. Tracking an inmate or person being supervised who is serving a suspended sentence.

  1. The Division of Community Correction shall track a person under its supervision who is serving a suspended sentence and notify the prosecuting attorney with jurisdiction over the person's suspended sentence if the division knows that the person has not complied with the terms and conditions of the suspended sentence.
  2. A circuit court shall notify the division of all suspended sentences to which the circuit court sentences a defendant, including the defendant's name, the terms and conditions of the suspended sentence, and the length of the suspended sentence.

History. Acts 2015, No. 1265, § 8; 2019, No. 910, § 767.

Amendments. The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in (a); and substituted “division” for “department” in (a) and (b).

12-27-147. Rulemaking and administrative directive reporting requirement.

  1. A rule implemented by the Board of Corrections, Division of Correction, Division of Community Correction, or the Parole Board pertaining to this act shall be approved by the appropriate legislative committee before becoming effective.
  2. Any administrative directive or board policy pertaining to this act implemented by the Board of Corrections, the Division of Correction, the Division of Community Correction, or the Parole Board shall be reported to the Legislative Council.

History. Acts 2015, No. 1265, § 9; 2019, No. 910, § 768.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a) and (b).

Meaning of "this act". Acts 2015, No. 1265, codified as §§ 12-1-102, 12-12-1201, 12-12-1202, 12-27-113, 12-27-125, 12-27-14512-27-147, 16-93-202, and 16-93-213.

12-27-148. Confidentiality of emergency preparedness document of the Division of Community Correction.

  1. The following sections of the Division of Community Correction's official Emergency Preparedness Manual are confidential and shall not be subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.:
    1. Command Post Checklist;
    2. Command Notifications;
    3. Internal Notifications;
    4. External Notifications;
    5. Recall Notifications;
    6. Family Notifications;
    7. Tactical Systems;
    8. Command Structure;
    9. Emergency Locations;
    10. Emergency Equipment;
    11. Emergency Deactivation;
    12. Emergency Plans;
    13. Work Stoppage Directive;
    14. Evacuation Diagrams; and
    15. Facility Maps, Utility Locations.
  2. If a section of the manual described in subsection (a) of this section becomes part of a criminal investigation, the section is available for public viewing at the conclusion of the criminal investigation if the section is not otherwise exempt from disclosure by law.
  3. An amendment or addition to a section of the manual described in subsection (a) of this section shall be reviewed annually by the Charitable, Penal and Correctional Institutions Subcommittee of the Legislative Council.

History. Acts 2017, No. 376, § 1; 2019, No. 910, § 769.

Amendments. The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in the introductory language of (a).

12-27-149. Division of Community Correction — Sufficient staffing guidelines.

For the purposes of maintaining a sufficiently trained and specialized staff of probation and parole officers, the Division of Community Correction shall establish staffing guidelines using evidence-based practices to develop ratios between the number of high-risk, medium-risk, and low-risk probationers and parolees and the probation officers and parole officers assigned to the high-risk, medium-risk, and low-risk probationers and parolees in order to maximize the effectiveness of the monitoring ability of the probation officers and parole officers.

History. Acts 2017, No. 423, § 11; 2019, No. 910, § 770.

Amendments. The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in the section heading and the section.

Subchapter 2 — Pay-for-Success Act

A.C.R.C. Notes. Acts 2015, No. 895, § 1, provided: “Legislative intent. It is the intent of the General Assembly to implement wide-ranging reforms to the criminal justice system in order to address prison overcrowding, promote seamless reentry into society, reduce medical costs incurred by the state and local governments, aid law enforcement agencies in fighting crime and keeping the peace, and to enhance public safety.”

Effective Dates. Acts 2015, No. 895, § 49: Apr. 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that prison overcrowding is one of the largest problems currently burdening the state both from a public safety and budgetary standpoint; that safe and effective measures are needed to immediately combat this problem; and that this act is immediately necessary because in the interests of public safety and the state budget the Department of Correction, Department of Community Correction, Department of Human Services, and the Parole Board should be allowed to immediately implement these new measures. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-27-201. Title.

This subchapter shall be known as the “Pay-for-Success Act”.

History. Acts 2015, No. 895, § 9.

12-27-202. Legislative findings and intent.

  1. The General Assembly finds that:
    1. Incarceration and reincarceration are costly for the government and for taxpayers;
    2. Certain intervention measures have been found to reduce reincarceration rates;
    3. Pay-for-success contracts can serve as an effective tool for addressing certain issues concerning Arkansas correctional facilities, including overcrowding, by enabling the state to finance programs aimed at reducing recidivism rates; and
    4. It is in the best interests of Arkansas residents to encourage and enable the Division of Community Correction to obtain financing for certain intervention services to reduce the recidivism rate in Arkansas correctional facilities.
  2. The General Assembly intends for this subchapter to enable the division to obtain private financing for intervention services on a pay-for-success basis to reduce the reincarceration rate in Arkansas correctional facilities.

History. Acts 2015, No. 895, § 9; 2019, No. 910, §§ 771, 772.

Amendments. The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in (a)(4); and substituted “division” for “department” in (b).

12-27-203. Definitions.

As used in this subchapter:

  1. “Incarcerated” means the condition of being committed to a state correctional facility; and
  2. “Pay-for-success program” means a program in which the Division of Community Correction pays for intervention services only if certain performance targets are met, including without limitation a reduction in the reincarceration rate in Arkansas correctional facilities through intervention measures that focus on improving personal responsibility and decision making.

History. Acts 2015, No. 895, § 9; 2019, No. 910, § 773.

Amendments. The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in (2).

12-27-204. Pay-for-success programs.

  1. The Division of Community Correction may enter into an agreement with entities, including without limitation licensed or accredited, as applicable, community-based providers specializing in behavioral health, case management, and job placement services, and two-year or four-year public universities to create a pay-for-success program for incarcerated individuals or individuals on parole or probation that requires the division to pay for the intervention services only if the performance targets stated in the agreement are achieved.
  2. Before entering into an agreement under subsection (a) of this section, the division shall:
    1. Calculate the amount and timing of the payments that would be earned by the entity providing the intervention services during each year of the agreement if the performance targets are achieved; and
    2. Make a written determination that the agreement will result in specific performance improvements and budgetary savings if the performance targets are achieved.
  3. An agreement entered into under subsection (a) of this section:
    1. Shall include the following:
      1. A requirement that payment be conditioned on the achievement of specific outcomes based on defined performance targets; and
      2. An agreement with an independent third party to evaluate the pay-for-success program to determine whether the performance targets have been achieved;
    2. May contain a graduated payment schedule to allow for varying payments based on different levels of performance targets; and
    3. May include without limitation an agreement with one (1) or more private entities regarding the following:
      1. One (1) or more loans to fund the pay-for-success program's delivery and operations;
      2. One (1) or more guarantees for loans obtained under this section;
      3. Payment based on reduced rates of reincarceration or other agreed-upon measures of success; and
      4. Oversight and implementation of the pay-for-success program, including without limitation the following:
        1. Making necessary financial arrangements;
        2. Training staff;
        3. Selecting service providers;
        4. Overseeing the intervention measures;
        5. Monitoring pay-for-success program participation; and
        6. Designation of one (1) entity to serve as a liaison among all parties to the agreement.

History. Acts 2015, No. 895, § 9; 2019, No. 910, § 774.

Amendments. The 2019 amendment, in (a), substituted “Division of Community Correction” for “Department of Community Correction” and “division” for “department”; and substituted “division” for “department” in the introductory language of (b).

Chapter 28 State Correctional Facilities

Publisher's Notes. Acts 1968 (1st Ex. Sess.), No. 50, § 44, provided, in part, that all laws relating to the state penitentiary which were not specifically repealed by, or in conflict with, Acts 1968 (1st Ex. Sess.), No. 50 would apply to the Department of Correction.

Subchapter 1 — General Provisions

Effective Dates. Acts 1968 (1st Ex. Sess.), No. 50, § 46: Mar. 1, 1968. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order better to effectuate the rehabilitation of persons convicted of crime and to make possible their return as useful members of the community, and that the immediate passage of this act is necessary to establish a Department of Correction to effectuate such rehabilitation. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after March 1, 1968.”

Acts 1969, No. 377, § 13: Apr. 9, 1969. Emergency clause provided: “It is hereby found and determined by the General Assembly that persons under the age of 21 years who are convicted of a felony in this state, must now be committed to the Department of Correction, thereby severely minimizing the opportunities of rehabilitation of such persons, and that immediate steps must be taken to provide for the establishment of an intermediate reformatory wherein educational opportunities for training, education and rehabilitation training may be established for the benefit of such convicted felons. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after the date of its passage and approval.”

Acts 1977, No. 466, § 6: July 1, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Department of Correction is in the process of constructing new facilities and will in the future build others, and that inmates will be classified and sent to units or centers that will be designated by the Board of Correction as to what type or age of inmates each unit or center will house, and that this act is immediately necessary to properly name the various units of the Department of Correction and to permit the proper designation of facilities hereafter constructed by the Department of Correction. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after July 1, 1977.”

Acts 1981, No. 107, § 4: Feb. 19, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that Section 7 of Act 377 of 1969 needs immediate amending because of the present requirement of the Department of Correction to transport an inmate to his former home or to the county in which he was committed; that this is an expensive and unnecessary financial burden on the taxpayers of this state; that all that is needed is for the Department of Correction to transport the inmate to the closest commercial transportation pick-up point. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect after its passage and approval.”

Acts 1993, No. 1281, § 7: Apr. 21, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that on occasion the best interest of the releasee and state are served by a short delay in release in cases of mental or medical health cure need and that this act is immediately necessary to permit such delay. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 423, § 5: Mar. 10, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that without cost impact statements on bills which have an impact on prison populations the General Assembly cannot adequately review and debate those bills; the present law does not now require those cost impact statements; that this act will require cost impact statements on those bills and this act should go into effect immediately in order to be applicable to the Eighty-First General Assembly in its regular session. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-28-101. Facilities.

    1. The Division of Correction, with the approval of the Board of Corrections, shall provide appropriate incarceration facilities for women, youthful offenders, and other adult offenders committed to the division by the courts of this state.
    2. The division shall also provide education and other rehabilitation and treatment programs designed to prepare inmates committed to the division for productive and law-abiding lives upon release from the division.
    3. The division may contract with state or private entities such as accredited colleges or universities to provide additional educational opportunities for inmates under the direction and authority of the board and the Corrections School System.
  1. Any facility built or occupied by the division for use as a correctional facility shall be given a designated name of “unit” or “center” depending on its size, location, and purpose of usage.

History. Acts 1977, No. 466, § 4; A.S.A. 1947, § 46-100.1; Acts 2001, No. 613, § 1; 2009, No. 788, § 2; 2019, No. 910, § 775.

A.C.R.C. Notes. Acts 2009, No. 788, § 1, provided:

“Whereas, Arkansas Code § 12-28-101(a)(2) authorizes the Department of Correction to provide education and other rehabilitation and treatment programs designed to prepare inmates committed to the department for productive and law-abiding lives upon release from the Department of Correction; and

“Whereas, Arkansas Code § 12-29-301 establishes the Department of Corrections School System to provide elementary, secondary, and vocational and technical education to qualified persons incarcerated in the Department of Correction and the Department of Community Correction and qualified persons supervised by the Department of Community Correction; and

“Whereas, Arkansas Code § 12-29-101(d)(2) provides that inmates in the institutions of the Department of Correction may participate in and benefit from the vocational, educational, and rehabilitation services of their respective institutions solely within the rules and regulations of the department as determined by the director, subject to appeal and review by the Board of Corrections or a designated review board in accordance with procedures that shall be established by the board; and

“Whereas, the Corrections School System along with the Department of Correction and the Department of Community Correction have entered into agreements to provide college courses to qualified persons under Administrative Regulation 500 which are taught onsite by accredited college and universities.”

Amendments. The 2009 amendment inserted (a)(3); and added quotation marks around “unit” and “center” in (b).

The 2019 amendment, in (a)(1), substituted “Division of Correction” for “Department of Correction” and “division” for “department”, and substituted “division” for “department” throughout (a)(2), (a)(3), and (b).

12-28-102. Death chamber.

  1. The Department of Correction shall provide a death chamber within such facility or institution of the department as may be designated by the Director of the Department of Correction with the approval of the Board of Corrections.
  2. The death chamber shall have all the necessary appliances for the proper execution of felons by electrocution.
  3. All felons upon whom the death penalty has been imposed shall be executed in the death chamber.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 16; A.S.A. 1947, § 46-115.

A.C.R.C. Notes. This section may be affected by Acts 1983, No. 774, § 4, which provided:

“All references in the laws of the State of Arkansas relating to execution by electrocution shall, insofar as such provisions are applicable, apply to, and mean, execution by lethal injection, except as to capital offenses already committed.”

Cross References. Method of execution, § 5-4-617.

12-28-103. Cost impact statements.

  1. Each of the following bills introduced in the General Assembly shall have a cost impact statement attached to the bill prior to the committee to which the bill is referred taking action in regard to the bill:
    1. Bills that affect inmate population patterns at facilities of the Department of Correction by imposing restrictions on inmate release or by increased intake into the department of inmates based on felony convictions; and
    2. Bills that affect programs or services of the department.
  2. In addition, copies of the cost impact statement shall be furnished on the desk of each member of the Senate and of the House of Representatives at least one (1) day prior to the date on which the bill is on third reading and debated for final passage in the respective houses.
  3. Cost impact statements required under this section shall be prepared, upon referral thereof by the Speaker of the House of Representatives, with respect to House of Representatives bills, and by the President of the Senate upon recommendation of the Senate Committee on Rules, Resolutions and Memorials, with respect to Senate bills, at the time of introduction thereof, to:
    1. The Director of the Department of Correction who shall either personally prepare or cause appropriate officials of the department to prepare, a cost impact statement to be approved by the director before submission to the house in which the request was made; or
    2. Any other state agency that has information available upon which to base a cost impact statement.
  4. The cost impact statement shall be furnished to the Governor and to the President of the Senate and the Speaker of the House of Representatives who shall cause copies thereof to be prepared for distribution upon the desks of the members of the House of Representatives and Senate at least twenty-four (24) hours prior to consideration of any such bill by committee or twenty-four (24) hours prior to the bill's being called up for third reading and final passage.
  5. The cost impact statement shall be certified by the director or the director of the appropriate agency to which the bill is referred for preparation of an impact statement, and shall be returned and filed as required in this section within not more than five (5) days from the date of receipt thereof unless additional time in which to prepare the statement is granted by the requesting official.

History. Acts 1997, No. 423, § 1.

Publisher's Notes. Former § 12-28-103, concerning cost impact statements, was repealed by Acts 1995, No. 1248, § 1. The former section was derived from Acts 1983, No. 701, § 1; A.S.A. 1947, § 46-182.

12-28-104. Paroling authority.

  1. The Parole Board shall be the paroling authority for the units of the Department of Corrections and shall make recommendations to the Governor in cases from the criminal courts that, in the board's opinion, the defendant in the case should be pardoned.
  2. The board shall consider the work skills, education, rehabilitation, and treatment programs recommended to the inmate upon intake and determine whether the inmate took advantage of those opportunities while incarcerated in the department in making decisions regarding parole.

History. Acts 1969, No. 377, § 9; 1981, No. 107, § 2; A.S.A. 1947, § 46-916; Acts 2009, No. 788, § 3; 2019, No. 910, § 776.

A.C.R.C. Notes. Acts 2009, No. 788, § 1, provided:

“Whereas, Arkansas Code § 12-28-101(a)(2) authorizes the Department of Correction to provide education and other rehabilitation and treatment programs designed to prepare inmates committed to the department for productive and law-abiding lives upon release from the Department of Correction; and

“Whereas, Arkansas Code § 12-29-301 establishes the Department of Corrections School System to provide elementary, secondary, and vocational and technical education to qualified persons incarcerated in the Department of Correction and the Department of Community Correction and qualified persons supervised by the Department of Community Correction; and

“Whereas, Arkansas Code § 12-29-101(d)(2) provides that inmates in the institutions of the Department of Correction may participate in and benefit from the vocational, educational, and rehabilitation services of their respective institutions solely within the rules and regulations of the department as determined by the director, subject to appeal and review by the Board of Corrections or a designated review board in accordance with procedures that shall be established by the board; and

“Whereas, the Corrections School System along with the Department of Correction and the Department of Community Correction have entered into agreements to provide college courses to qualified persons under Administrative Regulation 500 which are taught onsite by accredited college and universities.”

Amendments. The 2009 amendment inserted (b) and redesignated the remaining text accordingly; and in (a), substituted “Parole Board” for “Post Prison Transfer Board” and inserted “the defendant in the case.”

The 2019 amendment substituted “Department of Corrections” for “Department of Correction” in (a).

12-28-105. Continuity of care for persons released.

    1. Any person incarcerated by the Division of Correction may be permitted to remain within a treatment facility operated by the division, if serious physical or mental disorders or disabilities exist, until release to a similar treatment setting outside of the division can be accomplished.
    2. In no case should the continuation of housing extend beyond a seventy-two-hour period.
  1. The division will adopt rules to govern the housing situations.

History. Acts 1993, No. 1281, §§ 1-3; 2019, No. 910, § 777.

Amendments. The 2019 amendment, in (a)(1), substituted “Division of Correction” for “Department of Correction” and “division” for “department” twice; and substituted “division” for “department” in (b).

12-28-106. Electric fencing.

    1. The Division of Correction may design and install high-voltage electrified security fence systems at all existing and proposed medium and maximum security prisons.
    2. However, at the time of installation there shall be posted universal danger signs on all sides of the system clearly visible to inmates and the public displaying in English and Spanish the warning “deadly voltage”.
  1. The installation of these fence systems shall be double, twelve-feet-high, security perimeter fences, with the exception of those locations where a building or wall constitutes a part of the security perimeter.
  2. At institutions where these fences have been installed, the division shall provide perimeter patrol for the safety of the local community.

History. Acts 1997, No. 350, § 1; 2019, No. 910, § 778.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a)(1); and substituted “division” for “department” in (c).

12-28-107. Training for inmates.

  1. As provided for in § 12-28-101, the Division of Correction shall provide education as well as training for inmates who want to acquire skills for employment upon release.
    1. The division shall identify high-demand vocations and careers and shall accordingly create training and skills programs to prepare inmates for gainful employment upon release.
    2. The programs under this section shall be available to all inmates except for inmates who disqualify themselves from participation due to disciplinary violations or because of other circumstances that may preclude the inmates' access to these programs.
    3. Programs under this section shall include without limitation training in the following fields:
      1. Professional careers and vocations;
      2. Service careers and vocations;
      3. Information and computer technology;
      4. Medical technology; and
      5. Office administration.

History. Acts 2011, No. 1151, § 3; 2019, No. 910, §§ 779, 780.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a); and substituted “division” for “department” in (b)(1).

Subchapter 2 — Cummins Unit

12-28-201. [Repealed.]

Publisher's Notes. This subchapter, concerning the Cummins Unit, was repealed by Acts 2001, No. 559, § 1. The subchapter was derived from Acts 1977, No. 466, § 1; A.S.A. 1947, § 46-100.2.

Subchapter 3 — Women's Unit

12-28-301, 12-28-302. [Repealed.]

Publisher's Notes. This subchapter, concerning the Women's Unit of the Department of Correction, was repealed by Acts 2001, No. 559, § 2. The subchapter was derived from the following sources:

12-28-301. Acts 1951, No. 351, § 1; A.S.A. 1947, § 46-801.

12-28-302. Acts 1951, No. 351, § 2; A.S.A. 1947, § 46-802.

Subchapter 4 — Tucker Unit

12-28-401 — 12-28-408. [Repealed.]

Publisher's Notes. This subchapter, concerning the Tucker Unit of the Department of Correction, was repealed by Acts 2001, No. 559, §§ 3-6. The subchapter was derived from the following sources:

12-28-401. Acts 1969, No. 377, § 1; A.S.A. 1947, § 46-908; Acts 1993, No. 658, § 2.

12-28-402. Acts 1969, No. 377, § 4; A.S.A. 1947, § 46-911.

12-28-403. Acts 1969, No. 377, § 3; A.S.A. 1947, § 46-910.

12-28-404. Acts 1969, No. 377, § 10; A.S.A. 1947, § 46-917.

12-28-405. Acts 1969, No. 377, § 5; A.S.A. 1947, § 46-912.

12-28-406. Acts 1969, No. 377, § 6; A.S.A. 1947, § 46-913.

12-28-407. Acts 1969, No. 377, § 4; A.S.A. 1947, § 46-911.

12-28-408. Acts 1969, No. 377, § 8; A.S.A. 1947, § 46-915.

Subchapter 5 — Youthful Offenders Treatment Facility

12-28-501 — 12-28-507. [Repealed.]

Publisher's Notes. This subchapter, concerning a Department of Correction youthful offenders treatment facility, was repealed by Acts 2001, No. 559, § 7. The subchapter was derived from the following sources:

12-28-501. Acts 1971, No. 466, § 1; A.S.A. 1947, § 46-1101.

12-28-502. Acts 1971, No. 466, § 8; A.S.A. 1947, § 46-1108.

12-28-503. Acts 1971, No. 466, § 3; A.S.A. 1947, § 46-1103.

12-28-504. Acts 1971, No. 466, §§ 2, 5; 1981, No. 488, § 1; A.S.A. 1947, §§ 46-1102, 46-1105.

12-28-505. Acts 1971, No. 466, § 4; A.S.A. 1947, § 46-1104.

12-28-506. Acts 1971, No. 466, § 7; A.S.A. 1947, § 46-1107.

12-28-507. Acts 1971, No. 466, § 6; A.S.A. 1947, § 46-1106.

Subchapter 6 — Prison Overcrowding Emergency Powers Act

Publisher's Notes. Former subchapter 6, concerning prison overcrowding emergency powers, was repealed by Acts 1987, No. 418, § 7. The former subchapter was derived from Acts 1983, No. 223, §§ 1-7; A.S.A. 1947, §§ 46-1801 — 46-1807.

Cross References. General powers and duties of Department of Correction, § 12-27-101 et seq.

Effective Dates. Acts 1987, No. 418, § 8: Mar. 26, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is serious overcrowding in the Department of Correction facilities and that such overcrowding is likely to worsen unless appropriate action is taken immediately; that this act is designed to establish a procedure for alleviating this problem and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 684, § 5: Mar. 21, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that at present, the Prison Overcrowding Emergency Powers Act can be invoked by the Board only if the total combined male and female population of the prison system exceeds ninety-eight percent (98%) of the rated capacity; that male and female facilities are separate and either may become overcrowded while the combined total inmate population of the male and female facilities would not meet the ninety-eight percent capacity requirement of the Prison Overcrowding Emergency Powers Act; that it is urgent that the Board be given authority to invoke the Act when either the male facilities or the female facilities exceeds ninety-eight percent of capacity level; that this act is designed to accomplish this purpose and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2003, No. 1721, § 5: Apr. 22, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that overcrowding in the state prisons must be addressed immediately; that this act does so; and that this act must go into effect as soon as possible in order to help assure that our citizens are protected from the dangerous elements of society. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Case Notes

Cited: Wells v. Walker, 852 F.2d 368 (8th Cir. 1988).

12-28-601. Title.

This subchapter shall be known as the “Prison Overcrowding Emergency Powers Act”.

History. Acts 1987, No. 418, § 1.

12-28-602. Definitions.

As used in this subchapter:

  1. “Board” means the Board of Corrections;
  2. “County backlog” means those inmates sentenced to the Division of Correction who are being housed in the county jails until space is available in a prison;
  3. “Prison” means a correctional facility operated by the division under the supervision and direction of the board;
  4. “Prison system” means the prison facilities of the division; and
  5. “Rated capacity” means the actual available bed space in the prison system as certified by the board, subject to applicable federal and state laws and the rules and regulations adopted pursuant to those laws.

History. Acts 1987, No. 418, § 2; 1995, No. 204, § 1; 1995, No. 293, § 1; 2003, No. 1721, § 1; 2019, No. 910, § 781.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (2); and substituted “division” for “department” in (3) and (4).

12-28-603. Declaration of emergency.

    1. Whenever the population of the prison system exceeds ninety-eight percent (98%) of the rated capacity for thirty (30) consecutive days, or whenever the number of inmates on the county jail backlog exceeds five hundred (500) inmates, the Board of Corrections may declare a prison overcrowding state of emergency.
    2. In making any emergency request based on exceeding the ninety-eight-percent capacity, the board shall certify the rated capacity and current population of the prison system and shall further certify that all authorized actions consistent with applicable state laws and rules have been exhausted in an attempt to reduce the prison population to ninety-eight percent (98%) of the rated capacity.
    3. In making any emergency request based on a county jail backlog exceeding five hundred (500) inmates, the board shall certify the list of persons on the county jail backlog and shall further certify that all authorized actions consistent with applicable state laws and rules have been exhausted in an attempt to reduce the county jail backlog to five hundred (500) inmates.
  1. Provided all other requirements of this subchapter are met, the board is authorized to invoke this subchapter separately for those facilities housing either male or female inmate populations.

History. Acts 1987, No. 418, § 3; 1991, No. 684, § 1; 1995, No. 204, § 2; 1995, No. 293, § 2; 2003, No. 1721, § 2; 2019, No. 315, § 890.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a)(2) and (a)(3).

12-28-604. List of inmates — Early parole or discharge.

    1. When the Board of Corrections declares a prison overcrowding state of emergency due to exceeding ninety-eight percent (98%) of the rated capacity and notifies the Director of the Division of Correction of the emergency as authorized, the director shall certify to the board a list of those inmates who are Class I and Class II, and the director shall indicate which inmates he or she recommends for parole, transfer, or discharge.
    2. The listed inmates shall be those who, if authorized, would have their parole eligibility, transfer eligibility, or minimum release dates moved up to a point where they would immediately be eligible for parole, transfer, or discharge.
    3. Upon receipt of the list of inmates certified by the director, the board is authorized to move up the projected parole eligibility, transfer eligibility, or minimum release dates of any or all inmates on the list by up to ninety (90) days.
    4. The board shall certify to the director a list of the names of all prisoners whose projected parole eligibility, transfer eligibility, or minimum release dates are affected pursuant to the provisions of this subchapter.
    1. When the board declares a prison overcrowding state of emergency due to the county jail backlog exceeding five hundred (500) inmates and notifies the director of the emergency as authorized, the director shall certify to the board a list of those inmates who are in Class I or Class II status who have been incarcerated in a division facility for a minimum of six (6) months and are serving a sentence for a nonviolent offense as established by the board, and the director shall indicate which inmates he or she recommends for parole, transfer, or discharge.
    2. The listed inmates shall be those who, if authorized, would have their parole eligibility, transfer eligibility, or discharge dates moved up to a point where they would immediately be eligible for parole, transfer, or discharge.
    3. Upon the receipt of the list of inmates certified by the director, the board is authorized to move up the projected parole eligibility, transfer eligibility, or discharge dates of any or all inmates on the list by up to one (1) year.
    4. The board shall certify to the director a list of the names of all prisoners whose projected parole eligibility, transfer eligibility, or discharge dates are affected pursuant to the provisions of this subchapter.

History. Acts 1987, No. 418, § 4; 1995, No. 204, § 3; 1995, No. 293, § 3; 2003, No. 1721, § 3; 2019, No. 910, §§ 782, 783.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a)(1); and substituted “division” for “department” in (b)(1).

Cross References. Custody classifications and treatment programs, § 12-29-101.

Case Notes

Cited: Loveless v. Agee, 2010 Ark. 53 (2010).

12-28-605. Successive states of emergency.

  1. The Board of Corrections may declare succeeding prison overcrowding states of emergency at any time when the prison population exceeds ninety-eight percent (98%) of the rated capacity of the prison system, but these successive states of emergency shall not be declared more often than one (1) time each ninety (90) days or at any time the county jail backlog exceeds five hundred (500) inmates.
  2. Any subsequent state of emergency declared pursuant to the provisions of this subchapter shall have the same effect as the first declaration of emergency with respect to inmates in the prison system on the date of the declaration of each successive state of emergency.

History. Acts 1987, No. 418, § 5; 1995, No. 204, § 4; 1995, No. 293, § 4; 2003, No. 1721, § 4.

12-28-606. Declaration of end of emergency.

At any time during a declared prison overcrowding state of emergency, the Board of Corrections may declare the prison overcrowding state of emergency to be ended.

History. Acts 1987, No. 418, § 6; 1995, No. 204, § 5; 1995, No. 293, § 5.

Subchapter 7 — Arkansas Boot Camp Act

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-28-701. Title.

This subchapter shall be referred to and may be cited as the “Arkansas Boot Camp Act”.

History. Acts 1989, No. 492, § 1.

12-28-702. Legislative findings and determinations.

The General Assembly finds that:

  1. The cost of incarcerating the expanding number of offenders in conventional penitentiaries is skyrocketing, bringing added fiscal pressures on the state;
  2. Some inmates may be effectively punished in a more affordable manner through the exposure to severe, military-like conditions; and
  3. The Division of Correction should be given the authority to establish boot camps which will provide a more affordable means of punishing certain inmates who are designated as eligible for this alternative punishment by the division.

History. Acts 1989, No. 492, § 2; 2019, No. 910, § 784.

Amendments. The 2019 amendment, in (3), substituted “Division of Correction” for “Department of Correction” and “division” for “department”.

12-28-703. Authorization.

  1. The Board of Corrections shall develop and implement a boot camp program designed to reduce the inmate population by diverting eligible offenders from long-term incarceration.
  2. This diversion shall involve successful completion of, at a minimum, a sixty-day program of intensive behavior modification in an arduous, physically demanding, military-like environment, otherwise known as a “boot camp”.

History. Acts 1989, No. 492, § 3; 1993, No. 582, § 1.

12-28-704. Eligibility.

Appropriate inmates shall be chosen for the boot camp program established by this subchapter in accordance with guidelines to be adopted by the Board of Corrections. These guidelines must include a risk profile system to be used in selecting inmates eligible for assignment to the program.

History. Acts 1989, No. 492, § 4.

12-28-705. Construction — Applicability of other acts.

This subchapter shall be liberally construed to accomplish the intent and purposes of the General Assembly in adopting it and shall be the sole authority required for the accomplishment of these purposes. To this end, it shall not be necessary to comply with general provisions of other laws dealing with the minimum time constraints as applied to release eligibility.

History. Acts 1989, No. 492, § 5.

Chapter 29 Inmates of State Facilities

A.C.R.C. Notes. Acts 2011, No. 1151, § 4, provided:

“Establishment of a study.

“(a) The Department of Finance and Administration or other appropriate state agency designated by the Governor shall explore the feasibility of the state's assuming responsibility for limiting liability for a business or other commercial or nonprofit enterprise that knowingly employs ex-offenders.

“(b) If the limiting of liability proves feasible and prudent, the Department of Finance and Administration or other appropriate agency designated by the Governor shall promulgate rules and regulations for implementation of a practice allowing the limitation of liability.

“(c) Authority to determine feasibility and prudence under this section rests solely with the Department of Finance and Administration or other appropriate state agency designated by the Governor.”

Publisher's Notes. Acts 1933, No. 30, § 37, provided, in part, that laws not inconsistent with, or specifically repealed by, Acts 1933, No. 30 should apply to the Board of Penal Institutions.

Acts 1968 (1st Ex. Sess.), No. 50, § 44, provided, in part, that all laws relating to the State Penitentiary which were not specifically repealed by, or in conflict with, Acts 1968 (1st Ex. Sess.), No. 50 would apply to the Department of Correction.

Research References

ALR.

Sex discrimination in treatment of prisoners. 12 A.L.R.4th 1219.

Sufficiency of access to legal research facilities afforded defendant confined in state prison or local jail. 98 A.L.R.5th 445.

Right of jailed or imprisoned parent to visit from minor child. 6 A.L.R.6th 483.

Subchapter 1 — General Provisions

Effective Dates. Acts 1887, No. 113, § 5: effective on passage.

Acts 1893, No. 76, § 71: effective on passage.

Acts 1967, No. 474, § 4: Apr. 4, 1967. Emergency clause provided: “It is hereby found and determined by the General Assembly that recent investigations of the State Penitentiary have pointed up the need for improved laws to impose stronger penalties on inmates in the penitentiary who violate the laws, rules and regulations governing the penitentiary; that a number of inmates at the penitentiary have been in possession of amounts of cash in excess of the amounts authorized by the regulations of the State Penitentiary Board, and that such amounts of cash have often led to abuses and disorder in the penitentiary, and that immediate passage of this act is necessary to correct this situation. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1967, No. 475, § 4: Apr. 4, 1967. Emergency clause provided: “It is hereby found and determined by the General Assembly that recent investigations at the State Penitentiary called attention to the need to strengthen the laws of this state to prevent abuses at the penitentiary and to promote discipline and order at the penitentiary; and, that the immediate passage of this act is necessary to impose adequate safeguards against abuses at the penitentiary. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1967, No. 477, § 4: Apr. 4, 1967. Emergency clause provided: “It is hereby found and determined by the General Assembly that the State Penitentiary is in the vicinity of Jefferson and Lincoln Counties; that the quick apprehension of escaped convicts before life or property is destroyed requires that the law enforcement officials in these counties be notified immediately of any prison escapes; and that in order to remedy this situation, it is necessary that this act become effective immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1968 (1st Ex. Sess.), No. 50, § 46: Mar. 1, 1968. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order better to effectuate the rehabilitation of persons convicted of crime and to make possible their return as useful members of the community, and the immediate passage of this act is necessary to establish a Department of Correction to effectuate such rehabilitation. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after March 1, 1968.”

Acts 1969, No. 377, § 13: Apr. 9, 1969. Emergency clause provided: “It is hereby found and determined by the General Assembly that persons under the age of 21 years who are convicted of a felony in this state, must now be committed to the Department of Correction, thereby severely minimizing the opportunities of rehabilitation of such persons, and that immediate steps must be taken to provide for the establishment of an intermediate reformatory wherein educational opportunities for training, education and rehabilitation training may be established for the benefit of such convicted felons. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after the date of its passage and approval.”

Acts 1975, No. 737, § 3: Apr. 3, 1975. Emergency clause provided: “It is hereby found and determined by the Seventieth General Assembly that this act is essential to the operation of the Department of Correction and that in the event of a delay that the proper administration in providing transportation for inmates for court appearances could work irreparable harm on the effectiveness of the courts. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after the date of its passage and approval.”

Acts 1981, No. 56, § 2: Feb. 12, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the above mentioned act is outdated and unnecessary as more sophisticated methods in law enforcement techniques are now employed by the Department of Correction and law enforcement agencies throughout the state; that the Department of Correction has a solid record of apprehending escaped prisoners in concerted efforts with all Arkansas county and local law enforcement officials; that there is no need to limit the notification of only the sheriffs of Jefferson, Lincoln, and Pulaski Counties and the Police Chief of Little Rock as the above mentioned act calls for. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 58, § 7: approved Feb. 12, 1981. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order to better effectuate the rehabilitation of persons convicted of crimes and to make possible their return as useful members of the community, and that the immediate passage of this act is necessary to facilitate these reforms. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage.”

Acts 1981, No. 59, § 4: Feb. 12, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present custody classification of prisoners is quite ambiguous and difficult to implement; that this act is necessary to correct such deficiency in the law. It is further found and determined by the General Assembly that the present law which requires physicals to be given twice a year is arbitrary and unnecessary and a waste of taxpayer money; that physicals should be given as often as needed as determined by the medical staff of the Department of Correction as this act requires. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force after its passage and approval.”

Acts 1981, No. 60, § 3: Feb. 12, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law regarding the furnishing of an inmate with liquor results in a maximum fine of only one hundred dollars ($100) and up to 10 days in jail; that this law is badly outdated and needs modernization; that such offense is very serious and the consequences could be devastating; that the offense should be reclassified as a Class D felony and should include ‘drugs’ in the definition. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect after its passage and approval.”

Acts 1981, No. 107, § 4: Feb. 19, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that Section 7 of Act 377 of 1969 needs immediate amending because of the present requirement of the Department of Correction to transport an inmate to his former home or to the county in which he was committed; that this is an expensive and unnecessary financial burden on the taxpayers of this State; that all that is needed is for the Department of Correction to transport the inmate to the closest commercial transportation pick-up point. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect after its passage and approval.”

Acts 1983, No. 790, § 3: Mar. 24, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that inmates in the Department of Correction, who damage or destroy state property, are not now required to pay restitution to the department for damages to state property; and that the immediate passage of this act is necessary in order to enable the Department of Correction to recover from money available to the inmate, the restitution of damages caused by actions of the acts of an inmate, and the immediate passage of this act is necessary to accomplish this purpose. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 686, § 3: Mar. 27, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the penalties prescribed in the present law are inadequate to deter introduction of prohibited articles in certain facilities; that this act is designed to correct this deficiency and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1988 (4th Ex. Sess.), No. 8, § 4 and No. 23, § 4: July 15, 1988. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present provisions do not allow persons incarcerated in the Department of Correction to properly exercise their religious beliefs. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1999, No. 1487, § 5: Apr. 15, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that the law providing that certain inmates should not be eligible to participate in furlough programs does not include persons convicted of murder in the first degree; that it is imperative that persons convicted of murder in the first degree be prevented from participation in such programs because they present a real and present danger to society; and that immediate passage of this act is necessary to protect the public peace, health and safety of the State of Arkansas. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2015, No. 895, § 49: Apr. 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that prison overcrowding is one of the largest problems currently burdening the state both from a public safety and budgetary standpoint; that safe and effective measures are needed to immediately combat this problem; and that this act is immediately necessary because in the interests of public safety and the state budget the Department of Correction, Department of Community Correction, Department of Human Services, and the Parole Board should be allowed to immediately implement these new measures. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-29-101. Custody classifications and treatment programs.

    1. The Director of the Division of Correction shall formulate and establish a system by which all prisoners delivered to and in the care and custody of the Division of Correction shall be classified according to deportment.
    2. In this classification, consideration shall be given to the prisoner's demeanor while in the division's care and custody and the prisoner's record prior to commitment to the division.
  1. Persons committed to the institutional care of the division shall be dealt with humanely with efforts directed to their rehabilitation.
    1. For these purposes, the division may establish programs of classification and diagnosis, education, casework, counseling and psychiatric therapy, vocational training and guidance, work, library and religious services, and other rehabilitation programs or services as may be indicated.
    2. The division shall also institute procedures for the study and classification of inmates.
    1. With the approval of the Board of Corrections, the director shall establish rules for the assignment of inmates to the various programs, services, and work activities of the division.
    2. Inmates in the institutions of the division may participate in and benefit from the vocational, educational, and rehabilitation services of their respective institutions solely within the rules of the division as determined by the director, subject to appeal and review by the Board of Corrections or a designated review board in accordance with procedures that shall be established by the Board of Corrections.

History. Acts 1943, No. 157, § 1; 1968 (1st Ex. Sess.), No. 50, § 8; 1981, No. 58, § 1; 1981, No. 59, § 1; A.S.A. 1947, §§ 46-116, 46-136; Acts 2019, No. 315, § 891.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (d)(1) and (d)(2).

Case Notes

Cited: Finney v. Ark. Bd. of Corr., 505 F.2d 194 (8th Cir. 1974).

12-29-102. Inmates denied participation in furlough programs.

A person who is convicted of any of the following offenses shall be ineligible to participate in any meritorious furlough program conducted by or for the Division of Correction:

  1. Capital murder, § 5-10-101;
  2. Murder in the first degree, § 5-10-102;
  3. Kidnapping, § 5-11-102;
  4. Rape, § 5-14-103;
  5. Any other offense concerning sexual offenses under § 5-14-101 et seq.;
  6. An offense concerning sexual exploitation of children under the Arkansas Protection of Children Against Exploitation Act of 1979, § 5-27-301 et seq.;
  7. An offense concerning use of children in sexual performances under § 5-27-401 et seq.; or
  8. Stalking, § 5-71-229.

History. Acts 1997, No. 1191, § 1; 1999, No. 1487, § 1; 2019, No. 910, § 785.

Publisher's Notes. Former § 12-29-102, concerning women inmates, was repealed by Acts 1993, No. 658, § 2. The former section was derived from Acts 1968 (1st Ex. Sess.), No. 50, § 8; 1981, No. 58, § 1; A.S.A. 1947, § 46-116.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in the introductory language of the section.

12-29-103. Discipline.

  1. The Director of the Division of Correction or the Director of the Division of Community Correction shall prescribe, with the approval of the Board of Corrections, rules for the maintenance of good order and discipline in the facilities and institutions of the Division of Correction and the Division of Community Correction, respectively, including proceedings for dealing with violations.
    1. These rules shall require that inmates found guilty of damaging or destroying state property shall be ordered to pay restitution.
    2. This restitution shall be collected by levying against the inmate's institutional account. The levy against the inmate's institutional account shall continue until the estimated damage to state property has been fully paid or until the inmate is released from incarceration, whichever occurs first.
    1. In case of riot or other violent conduct or behavior on the part of any inmate or group of inmates, the Director of the Division of Correction may take such steps as are necessary, including the use of force and arms as necessary, to restore discipline and order.
    2. The Director of the Division of Correction may seek the assistance of the Division of Arkansas State Police, the National Guard, and local and federal law enforcement agencies in preserving order whenever the circumstances justify.
  2. The Director of the Division of Correction shall provide for a record of charges of infractions by inmates, including any punishment imposed, and shall also keep a record of all medical inspections made.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 10; 1983, No. 790, § 1; A.S.A. 1947, § 46-118; Acts 2009, No. 366, § 1; 2019, No. 315, § 892.

Amendments. The 2009 amendment, in (a), inserted “or the Director of the Department of Community Correction” and substituted “Correction or the Department of Community Correction, respectively” for “Corrections.”

The 2019 amendment deleted “and regulations” following “rules” in (a).

Case Notes

Corporal Punishment.

Disciplining of inmates may not include corporal punishment. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (decision under prior law).

Trustees.

Trustees may not be authorized to inflict summary punishment upon fellow prisoners under their charge. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (decision under prior law).

12-29-104. Contacts with persons outside the institution.

Under rules prescribed by the Division of Correction, heads of the institutions of the division may authorize:

  1. Visits and correspondence, under reasonable conditions, between inmates and approved friends, relatives, and others;
  2. Temporary release of an inmate for such occasions as the serious illness or death of a member of the inmate's family; or
  3. An interview of the inmate by a prospective employer.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 13; A.S.A. 1947, § 46-119; Acts 2019, No. 910, § 786.

Amendments. The 2019 amendment, in the introductory language, substituted “Division of Correction” for “Department of Correction” and “division” for “department”.

12-29-105. Clergy.

  1. All clergy of every denomination shall be admitted free to a Department of Correction prison or may visit any inmate confined therein, subject to such rules as may be necessary to the good government and discipline of the prison, and may administer the rites and ceremonies of the church to which the clergy belong if the inmate desires it.
  2. The Director of the Department of Correction shall afford every facility to a clergy to visit an inmate and to administer rites, ceremonies, and spiritual consolation to an inmate within the rules of the prison.

History. Acts 1893, No. 76, § 58, p. 121; C. & M. Dig., § 9686; Pope's Dig., § 12719; A.S.A. 1947, § 46-149; Acts 2011, No. 779, § 23; 2013, No. 295, § 1.

Amendments. The 2011 amendment deleted “and the physician” following “Department of Correction” in (b).

The 2013 amendment substituted “inmate” for “convict” throughout the section.

12-29-106. Mail to or from inmates.

    1. A person without the consent of the Director of the Division of Correction shall not bring into or carry out of a prison any letter or writing to or from any inmate.
    2. A violation of this section is an unclassified misdemeanor punishable by a fine not exceeding one hundred dollars ($100), imprisonment not exceeding thirty (30) days, or both.
  1. However, all inmates shall have the privilege, under the proper supervision and inspection of the director or his or her employees, to write and receive letters from their relations and friends.

History. Acts 1893, No. 76, § 53, p. 121; C. & M. Dig., § 9714; Pope's Dig., § 12745; A.S.A. 1947, § 46-168; Acts 2013, No. 295, § 2; 2017, No. 250, § 23; 2019, No. 910, § 787.

Publisher's Notes. This section may be affected by § 5-54-119.

Amendments. The 2013 amendment substituted “inmate” for “convict” in (a); and “inmates” for “convicts” in (b).

The 2017 amendment, in (a)(2), substituted “A violation of this section is an unclassified” for “Whoever shall violate the provisions of this section shall be guilty of a” preceding “misdemeanor”, substituted “punishable by a fine” for “and shall on conviction be fined”, inserted a comma following “($100)”, substituted “imprisonment” for “or imprisoned in the county jail”, and deleted “fined and imprisoned” at the end.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a)(1).

12-29-107. Inmate welfare funds.

Amounts held as inmate welfare funds or received as inmate welfare funds through contributions, profit from sale of products to inmates, or otherwise, shall be held as a special fund to be administered and used by the Director of the Division of Correction for the general benefit of the inmates under rules to be established by the Board of Corrections.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 39; A.S.A. 1947, § 46-122; Acts 2019, No. 315, § 893.

Amendments. The 2019 amendment deleted “and regulations” following “rules”.

Case Notes

Cited: Diagnostic Unit Inmate Council v. Motion Picture Ass'n, 953 F.2d 376 (8th Cir. 1992).

12-29-108. Cash in possession of inmate — Confiscation.

  1. The Board of Corrections is authorized to promulgate rules concerning the maximum amount of cash that inmates of the Division of Correction may have in their possession.
  2. The board shall provide adequate facilities for the deposit and safekeeping of cash belonging to inmates at the division if the inmate desires to deposit it for safekeeping.
    1. An inmate of the division shall forfeit any cash found on his or her person or in his or her possession in excess of the amount prescribed by rules of the board.
    2. After a hearing, the Director of the Division of Correction shall confiscate such cash and deposit the amount held in violation of the rules into a division welfare fund, to be used for the benefit of inmates of the division pursuant to rules of the board.
    3. A complete record of all funds forfeited and confiscated shall be maintained by the director.

History. Acts 1967, No. 474, § 1; A.S.A. 1947, § 46-178; Acts 2019, No. 315, §§ 894, 895.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (a); deleted “or regulations” following “rules” in (c)(1); and deleted “and regulations” following “rules” twice in (c)(2).

Cross References. Allocation of inmate's earnings; inmate funds, § 12-30-406.

12-29-109. Board action upon violations of § 5-54-119.

If the Board of Corrections has good reason for believing that any violation of § 5-54-119 has occurred, it shall investigate the matter and report the facts together with the names of the witnesses to the proper prosecuting attorney.

History. Acts 1893, No. 76, §§ 51, 52, p. 121; C. & M. Dig., §§ 9712, 9713; Pope's Dig., §§ 12743, 12744; Acts 1975, No. 280, § 2819; 1977, No. 360, § 17; 1981, No. 60, § 1; 1985, No. 686, § 1; A.S.A. 1947, §§ 41-2819, 46-166, 46-167; Acts 1988 (4th Ex. Sess.), No. 8, § 3; 1988 (4th Ex. Sess.), No. 23, § 3; 2007, No. 827, § 129.

Amendments. The 2007 amendment substituted “Board action upon violations of § 5-54-119” for “Furnishing liquor, etc., to inmates” in the section heading; and rewrote the section.

12-29-110. Selling or trading position, working condition, or promotion — Penalty.

  1. It is unlawful for any inmate or employee of the Division of Correction or any other person to sell, barter, or trade, or to promise or offer to sell, barter, or trade any favored job or position, working condition, or any promotion or demotion in any job or position at the division and to:
    1. Accept or receive any money, consideration, or thing of value therefor;
    2. Make or accept any loan or money as inducement thereof; or
    3. Accept or receive any favored condition or job or position at the division either directly or indirectly as a result thereof.
    1. A violation of this section is an unclassified felony punishable by imprisonment for not less than one (1) year nor more than five (5) years.
    2. If the person convicted under this section is an inmate in the division, the sentence shall commence to run from the expiration of the sentence under which the person is serving at the time of the violation of this section.

History. Acts 1967, No. 475, §§ 1, 2; A.S.A. 1947, §§ 46-179, 46-180; Acts 2017, No. 250, § 24; 2019, No. 910, § 788.

Amendments. The 2017 amendment substituted “It is” for “It shall be” in the introductory language of (a); in (b)(1), substituted “A violation of this section is an unclassified” for “Any person violating the provisions of this section shall be guilty of a” preceding “felony” and “punishable by imprisonment” for “and upon conviction shall be punished by imprisonment in the department”; and, in (b)(2), substituted “convicted under this section” for “so convicted” and added “of this section”.

The 2019 amendment, in the introductory language of (a), substituted “Division of Correction” for “Department of Correction” and “division” for “department”; and substituted “division” for “department” in (a)(3) and (b)(2).

12-29-111. Transport of inmate required for legal proceeding.

  1. If an inmate in the care and custody of the Division of Correction or the Division of Community Correction is required to be present during a criminal proceeding or a civil proceeding that arises from a criminal charge or conviction of any court in this state, the county sheriff of the county in which the criminal proceeding or civil proceeding takes place shall take custody of the inmate at the institution where the inmate is confined, transport the inmate to the appropriate county, and make him or her available to the court.
  2. At the conclusion of the criminal proceeding or civil proceeding, the county sheriff shall transport the inmate back to the unit of the Division of Correction or Division of Community Correction from which the inmate was received and shall return custody of the inmate to the Division of Correction or Division of Community Correction officials.
    1. The county sheriff's office is responsible for the custody, sustenance, and safety of the inmate from the time the inmate is placed into its custody until the time custody of the inmate is returned to the Division of Correction or the Division of Community Correction.
    2. The county in which the legal proceeding is held is responsible for all expenses relating to the transportation and care of the inmate.
  3. While transporting an inmate under this section, a county sheriff has the full authority of his or her office in any county of this state in matters relating to the transportation.
  4. This section does not apply to the transportation and care costs for court appearances arising from charges brought by the Division of Correction against the inmate for offenses committed while the inmate is under the custody and care of the Division of Correction.
    1. When an inmate in the care and custody of the Division of Correction or the Division of Community Correction is required to be present for appearances in a civil proceeding that does not arise from a criminal charge or conviction, the court requiring the inmate's presence may assess costs against one (1) or more of the parties to the proceeding to be paid to the Division of Correction or the Division of Community Correction to compensate the actual cost of transporting the inmate and to compensate other costs assessed by the court.
    2. Costs under this subsection shall not be assessed against the Department of Human Services if the Department of Human Services is a party to the proceeding.

History. Acts 1975, No. 737, § 1; A.S.A. 1947, § 46-181; Acts 2009, No. 364, § 1; 2013, No. 287, § 1; 2019, No. 910, § 789.

Amendments. The 2009 amendment inserted “or the Department of Community Correction” in (a).

The 2013 amendment rewrote the section.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout the section.

Case Notes

Cited: McGee v. Rankin, 584 F. Supp. 1202 (W.D. Ark. 1984).

12-29-112. Discharge or release.

  1. At least one hundred twenty (120) days before an inmate's anticipated release date, the Division of Correction, in collaboration with the inmate and the Division of Community Correction and the Parole Board, shall complete a prerelease assessment and reentry plan, which may include a travel subsidy and transportation to the closest commercial transportation pick-up point.
  2. A copy of the reentry plan under this section shall be provided to the inmate and the assigned parole officer, if applicable.
  3. An inmate released upon completion of his or her terms of incarceration shall be provided:
    1. Written and certified proof that he or she completed and satisfied all the terms of his or her incarceration; and
    2. Information on how to reinstate his or her voting rights upon discharge of his or her sentence.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 15; 1969, No. 377, § 7; 1981, No. 58, § 3; 1981, No. 107, § 1; A.S.A. 1947, §§ 46-121, 46-914; Acts 2007, No. 271, § 1; 2009, No. 788, § 4; 2013, No. 440, § 1; 2015, No. 895, § 10; 2019, No. 910, § 790.

A.C.R.C. Notes. Acts 2009, No. 788, § 1, provided:

“Whereas, Arkansas Code § 12-28-101(a)(2) authorizes the Department of Correction to provide education and other rehabilitation and treatment programs designed to prepare inmates committed to the department for productive and law-abiding lives upon release from the Department of Correction; and

“Whereas, Arkansas Code § 12-29-301 establishes the Department of Corrections School System to provide elementary, secondary, and vocational and technical education to qualified persons incarcerated in the Department of Correction and the Department of Community Correction and qualified persons supervised by the Department of Community Correction; and

“Whereas, Arkansas Code § 12-29-101(d)(2) provides that inmates in the institutions of the Department of Correction may participate in and benefit from the vocational, educational, and rehabilitation services of their respective institutions solely within the rules and regulations of the department as determined by the director, subject to appeal and review by the Board of Corrections or a designated review board in accordance with procedures that shall be established by the board; and

“Whereas, the Corrections School System along with the Department of Correction and the Department of Community Correction have entered into agreements to provide college courses to qualified persons under Administrative Regulation 500 which are taught onsite by accredited college and universities.”

Acts 2015, No. 895, § 1, provided: “Legislative intent. It is the intent of the General Assembly to implement wide-ranging reforms to the criminal justice system in order to address prison overcrowding, promote seamless reentry into society, reduce medical costs incurred by the state and local governments, aid law enforcement agencies in fighting crime and keeping the peace, and to enhance public safety.”

Amendments. The 2009 amendment added (d).

The 2013 amendment deleted former (c) and redesignated former (d) as (c).

The 2015 amendment rewrote (a) and (b).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a).

Case Notes

Warning to Others.

State's actions in releasing and transporting inmate to a person's store, without a warning he was dangerous, did not deprive storeowner of her life and infringe her liberty interest in personal security in violation of her substantive due process rights. Wells v. Walker, 852 F.2d 368 (8th Cir. 1988), cert. denied, 489 U.S. 1012, 109 S. Ct. 1121, 103 L. Ed. 2d 184 (1989).

12-29-113. Notice of escape to law enforcement officers — Penalty.

    1. Whenever any inmate of the Department of Correction shall escape from its custody, it shall be the duty of the Director of the Department of Correction or his or her designee to immediately notify the appropriate law enforcement officers in the area where the escape took place.
    2. Notification of law enforcement officers in other areas of the state as well as surrounding states will be made as deemed necessary by the department.
  1. A violation of any provision of this section shall be a violation and shall be punished by a fine of not less than ten dollars ($10.00) nor more than twenty-five dollars ($25.00).

History. Acts 1887, No. 113, §§ 1, 4, p. 203; C. & M. Dig., §§ 9690, 9708; Pope's Dig., §§ 12722, 12739; Acts 1967, No. 477, § 1; 1981, No. 56, § 1; A.S.A. 1947, §§ 46-160, 46-161; Acts 2005, No. 1994, § 78.

Amendments. The 2005 amendment substituted “violation” for “misdemeanor” in (b).

12-29-114. Notice of escape to victim or victim's next of kin.

    1. Whenever an inmate serving a sentence for the commission of a crime escapes from the custody of the Division of Correction, it shall be the responsibility of the division to immediately notify the victim of the crime or the victim's next of kin of the inmate's escape.
    2. However, the victim of the crime or the victim's next of kin will not be notified by the division unless a request for the notification has previously been delivered in writing to the division.
    1. When notice of an escape is given by the division, it shall be conveyed by telephone whenever possible and otherwise in writing to the last known address of the victim or the victim's next of kin.
    2. It shall be the responsibility of the victim or the victim's next of kin to notify the division in writing of any future changes in the victim's or victim's next of kin address and telephone number.
  1. It shall be the responsibility of the prosecuting attorney of the county from which the inmate was committed to notify the victim or the victim's next of kin that an address and telephone number may be provided to the division, and the procedure by which to supply information, for the purpose of notification should the inmate escape.

History. Acts 1985, No. 428, §§ 1-3; 1985, No. 470, §§ 1-3; A.S.A. 1947, §§ 46-161.1 — 46-161.3; Acts 2019, No. 910, § 791.

Amendments. The 2019 amendment substituted “division” for “department” throughout the section; and substituted “Division of Correction” for “Department of Correction” in (a)(1).

Cross References. Escapes, §§ 5-54-1105-54-112.

Victim notification system, § 12-12-1201 et seq.

12-29-115. Combination to escape — Authority of guards.

  1. The officers and guards of the Division of Correction shall use all lawful and suitable means to defend themselves, secure the persons of offenders, and prevent attempted violence and escape whenever two (2) or more inmates shall combine for the following purposes or whenever one (1) or more inmates shall:
    1. Offer violence to any officer, guard, or inmate;
    2. Do or attempt to do any injury to any building, workshop, or appurtenance thereto;
    3. Attempt to escape; or
    4. Resist any lawful demand.
  2. If any of the officers or guards employed in the division shall, in the attempt to prevent the escape of any inmate, any attempt to retake any inmate who may have escaped, or in the attempt to suppress any riot, revolt, or insurrection, take the life of any inmate, the officer or guard shall not be held responsible therefor unless it is done unnecessarily or wantonly.

History. Acts 1893, No. 76, § 49, p. 121; C. & M. Dig., § 9691; Pope's Dig., § 12723; A.S.A. 1947, § 46-163; 2013, No. 295, § 3; 2019, No. 910, § 792.

Amendments. The 2013 amendment substituted “inmates” for “convicts” and “inmate” for “convict” throughout the section.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in the introductory language of (a); and substituted “division” for “department” in (b).

12-29-116. Authority of director in case of alarm or danger.

The Director of the Department of Correction shall have the authority of a county sheriff over the power of the county in which a Department of Correction's prison or inmate camp is situated in all cases of alarm or danger at the prison or inmate camp, in the absence of the county sheriff or the county sheriff's inability to act.

History. Acts 1893, No. 76, § 56, p. 121; C. & M. Dig., § 9724; Pope's Dig., § 12755; A.S.A. 1947, § 46-164; 2013, No. 295, § 4.

Amendments. The 2013 amendment substituted “inmate” for “convict”.

12-29-117. Educational, training, and rehabilitative programs.

An inmate who was convicted and sentenced as an adult for an offense he or she committed before he or she attained eighteen (18) years of age shall not be prevented from participating in an educational, training, or rehabilitative program that is otherwise available to other inmates in the general population of the correctional facility in which he or she is housed.

History. Acts 2019, No. 821, § 1.

12-29-118. Punitive isolation or solitary confinement of inmates who are minors — Definitions.

  1. As used in this section:
    1. “Minor” means a person who is under eighteen (18) years of age;
    2. “Punitive isolation” means the placement of a minor in a location that is separate from the general population as a punishment; and
    3. “Solitary confinement” means the isolation of a minor in a cell separate from the general population as a punishment.
  2. A minor who is an inmate at a state correctional facility shall not be placed in punitive isolation or solitary confinement as a disciplinary measure for more than twenty-four (24) hours unless the:
    1. Placement of the minor in punitive isolation or solitary confinement is due to:
      1. A physical or sexual assault committed by the minor while in the state correctional facility;
      2. Conduct of the minor that poses a direct threat to the safety of a person or a clear threat to the safe and secure operation of the state correctional facility; or
      3. The minor escaping or attempting to escape from the state correctional facility; and
      1. Warden of the state correctional facility or his or her designee provides written authorization to place the minor in punitive isolation or solitary confinement for more than twenty-four (24) hours.
      2. The warden of the state correctional facility or his or her designee shall provide the written authorization described in subdivision (b)(2)(A) of this section for every twenty-four-hour period during which the minor remains in solitary confinement after the initial twenty-four (24) hours.
  3. The Board of Corrections shall retain the authority to govern and supervise the administration of the responsibilities of the board before July 24, 2019, including without limitation the administration of the state penal institutions under Arkansas Constitution, Amendment 33.

History. Acts 2019, No. 971, § 2.

Subchapter 2 — Good Time Allowance

Cross References. Local correctional facilities, good time allowance, § 12-41-101 et seq.

Effective Dates. Acts 1971, No. 510, § 8: approved Apr. 2, 1971. Emergency clause provided: “The General Assembly finds that there is an immediate need for ‘meritorious good time’ awards to encourage good discipline, good behavior and efficiency within the institution. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of public peace, health, and safety shall be in full force and effect from and after the date of its enactment.”

Acts 1993, Nos. 536 and 558, § 7: Jan. 1, 1994.

Acts 2003, No. 1005, § 2: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is serious overcrowding in the Department of Correction facilities and that such overcrowding is likely to worsen unless appropriate action is taken immediately; that this act is immediately necessary because it is designed to allow a procedure for helping to alleviate this problem. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2003.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-29-201. Meritorious good time.

  1. An inmate may be entitled to meritorious good time reducing his or her transfer eligibility date up to thirty (30) days for each month incarcerated after imposition of sentence in one (1) of the units, facilities, and centers maintained by the Division of Correction or the Division of Community Correction.
  2. An inmate transferred or paroled to the supervision of the Division of Community Correction under § 16-93-615 may receive meritorious good time reducing his or her time of transfer or parole supervision up to thirty (30) days for each month he or she is under the supervision of the Division of Community Correction.
  3. Meritorious good time shall be allocated under rules promulgated by the Board of Corrections and administered by the respective Division of Correction or Division of Community Correction staff subject to the provisions of this subchapter for good discipline, behavior, work practices, job responsibilities, and involvement in rehabilitative activities while in the custody or under the supervision of the Division of Correction or the Division of Community Correction.
  4. Meritorious good time will not be applied to reduce the length of a sentence.
    1. Meritorious good time shall apply to an inmate's transfer eligibility date from the Division of Correction or a community correction facility.
    2. Meritorious good time shall under no circumstances reduce an inmate's time served in prison by more than one-half (½) of the percentage required by law for transfer eligibility.
    3. Meritorious good time shall under no circumstances reduce an inmate's confinement in a community correction facility by more than one-half (½).
    1. The Division of Correction or the Division of Community Correction shall determine a date on which the inmate who has acquired the maximum amount of meritorious good time necessary is to be administratively transferred to a less restrictive placement or supervision level within the Division of Community Correction.
    2. This date will be determined in accordance with the policies developed by the Arkansas Sentencing Commission within the parameters allowed by law.
    1. Inmates under sentence of death or life imprisonment without parole shall not be eligible for meritorious good time under this subchapter but may be pardoned or have their sentences commuted by the Governor, as provided by law.
    2. Inmates sentenced to life imprisonment shall not receive meritorious good time calculated on their sentences unless the sentence is commuted to a term of years by executive clemency.
    3. Upon commutation, the inmate shall be eligible to receive meritorious good time at the rate established by this subchapter.

History. Acts 1993, No. 536, §§ 1, 2; 1993, No. 558, §§ 1, 2; 2003, No. 1005, § 1; 2011, No. 570, § 73; 2019, No. 315, § 896; 2019, No. 910, § 793.

A.C.R.C. Notes. Acts 2011, No. 570, § 1, provided: “Legislative intent. The intent of this act is to implement comprehensive measures designed to reduce recidivism, hold offenders accountable, and contain correction costs.”

Publisher's Notes. Former § 12-29-201, concerning meritorious allowance, was repealed by Acts 1993, Nos. 536 and 558, § 6. The former section was derived from Acts 1971, No. 510, §§ 2, 3; 1972 (1st Ex. Sess.), No. 59, § 1; A.S.A. 1947, §§ 46-120, 46-120.1; Acts 1987, No. 506, § 1.

Amendments. The 2011 amendment substituted “§ 16-93-615” for “§ 16-93-206” in (b).

The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (c).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout the section.

Case Notes

Applicability.

Because this section, changing how meritorious good-time credit was applied, did not impliedly repeal the language in § 16-90-121 (the deadly-weapon enhancement statute applicable at the time of an inmate's sentence), the inmate's 30-year sentence for first-degree murder was subject to reduction by meritorious good-time credit at the conclusion of the first 10 years of the sentence. Hobbs v. Baird, 2011 Ark. 261 (2011).

Authority of Department.

The trial court properly refused to force the department to credit the petitioner with meritorious good time credits since the exclusive jurisdiction of custody, control, and supervision of all persons in the penitentiary is vested with the Department of Correction. Elliott v. State, 268 Ark. 454, 597 S.W.2d 76 (1980).

Interstate Correction Compact.

Prisoner transferred to Florida pursuant to the Interstate Corrections Compact, § 12-49-102, was entitled to good time and other benefits he earned while in Florida as if he had earned them in Arkansas. Hayes v. Lockhart, 754 F.2d 281 (8th Cir. 1985).

Prisoners’ Rights Claim.

Inmate's Class 1-C classification for purposes of calculating meritorious good time under this section did not in and of itself give rise to a constitutional claim where the inmate was unable to show an atypical and substantive deprivation that was a dramatic departure from the basic conditions of his confinement. Crawford v. Cashion, 2010 Ark. 124, 361 S.W.3d 268 (2010).

Cited: Finney v. Ark. Bd. of Corr., 505 F.2d 194 (8th Cir. 1974); Thomas v. Ark. Bd. of Corr. & Community Punishment, 324 Ark. 6, 918 S.W.2d 156 (1996).

12-29-202. Classification committee — Classifications.

    1. There is established a classification committee to be defined by administrative rules approved by the Board of Corrections.
    2. Members of the committee shall be selected by wardens or supervisors of the various units, facilities, or centers of the Division of Correction and Division of Community Correction per board rule governing their selection.
    3. This committee shall meet as often as necessary to classify the inmates into no more than four (4) classes according to good behavior, good discipline, medical condition, job responsibilities, and involvement in rehabilitative activities.
    1. An inmate who maintains class through good behavior, good discipline, work practices, job responsibilities, and involvement in rehabilitative activities may earn up to one (1) day for every day served as a reduction toward his or her transfer eligibility date for each day incarcerated after the imposition of sentence.
    2. An inmate who is reduced to the lowest class, established through board policy, as a result of disciplinary action shall not be entitled to earn meritorious good time.
    3. An inmate serving a punitive disciplinary sentence in punitive segregation shall not be entitled to earn meritorious good time.
  1. An inmate may be reclassified as often as the committee deems necessary or in accordance with current board rules to carry out the purpose of this subchapter and to maintain good discipline, order, and efficiency at the units, facilities, or centers.
    1. Upon recommendation of the committee, the Director of the Division of Correction may award an amount of meritorious good time sufficient to reduce incarceration time by up to ninety (90) days, not to exceed a total of three hundred sixty (360) days, for each successful completion of a:
      1. State-sponsored general education development certificate program;
      2. Vocational program for which certification is awarded;
      3. Drug or alcohol treatment program offered at a Division of Correction facility; or
      4. Pre-release and other rehabilitative programs or assignments as approved by the Board of Corrections.
      1. The additional days of meritorious good time described in subdivision (d)(1) of this section shall be awarded pursuant to rules promulgated by the board.
      2. The board may make additions, amendments, changes, or alterations to the rules in accordance with the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
  2. Meritorious good time awarded under subdivision (d)(1) of this section shall not be applicable to persons sentenced under § 16-93-618(a)(1)(A)-(E).
  3. A jury may be instructed pursuant to § 16-97-103 regarding the awarding of meritorious good time under subdivision (d)(1) of this section.

History. Acts 1993, No. 536, § 3; 1993, No. 558, § 3; 1997, No. 876, § 1; 2005, No. 681, § 1; 2007, No. 1413, § 1; 2011, No. 570, § 74; 2011, No. 748, § 1; 2019, No. 315, §§ 897, 898.

A.C.R.C. Notes. Acts 2011, No. 570, § 1, provided: “Legislative intent. The intent of this act is to implement comprehensive measures designed to reduce recidivism, hold offenders accountable, and contain correction costs.”

Publisher's Notes. Former § 12-29-202, concerning the classifications committee, establishment of classifications and award of additional good time, was repealed by Acts 1993, Nos. 536 and 558, § 6, effective January 1, 1994. The section was derived from Acts 1971, No. 510, § 5; 1972 (1st Ex. Sess.), No. 59, § 2; 1981, No. 55, § 2; A.S.A. 1947, § 46-120.3; Acts 1987, No. 273, § 1; 1989, No. 429, § 1; 1989, No. 734, § 1; 1991, No. 309, § 1; 1991, No. 571, § 1.

Amendments. The 2005 amendment added (d)-(f).

The 2007 amendment substituted “an amount of meritorious good time sufficient to reduce incarceration time by up to ninety (90) days” for “up to ninety (90) additional days” in (d)(1).

The 2011 amendment by No. 570, in (e), deleted “In no event shall the awarding of” at the beginning, inserted “awarded” and “shall not”, and substituted “16-93-618(a)(1)(A)-(E)” for “§ 16-93-611(a)(1)(A)-(E)”.

The 2011 amendment by No. 748 substituted “three hundred sixty (360) days” for “two hundred seventy (270) days” in (d)(1); and added (d)(1)(D).

The 2019 amendment substituted “rules” for “regulations” and made a similar change in (a)(1) and (a)(2); and substituted “rules” for “regulations” in (c).

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Law Enforcement, Emergency Management, and Military Affairs, 28 U. Ark. Little Rock L. Rev. 365.

Case Notes

Due Process.

This section does not protect an inmate's right to any particular classification; therefore, a reduction of two steps in class as an inmate's penalty for violating a prison rule did not deprive him of due process. Strickland v. Dyer, 628 F. Supp. 180 (E.D. Ark. 1986).

Ex Post Facto Rights.

The repeal of a provision that had afforded prison officials the discretion to award additional good-time credits to prisoners did not constitute an ex post facto violation of the defendant's rights. Ellis v. Norris, 232 F.3d 619 (8th Cir. 2000), cert. denied, 532 U.S. 935, 121 S. Ct. 1389, 149 L. Ed. 2d 313 (2001).

Cited: Thomas v. Ark. Bd. of Corr. & Community Punishment, 324 Ark. 6, 918 S.W.2d 156 (1996).

12-29-203. Forfeiture — Restoration.

  1. All meritorious good time shall be forfeited by an inmate in the event of escape, and all or part of accrued meritorious good time may be taken away by the Director of the Division of Correction or the Director of the Division of Community Correction, respectively, for infraction of rules.
  2. However, in the event of escape, the Director of the Division of Correction or the Director of the Division of Community Correction, respectively, may restore all or part of any accrued meritorious good time if the escapee returns to the institution voluntarily, without expense to the state, and without any act of violence while a fugitive from the institution.
  3. The Director of the Division of Correction or the Director of the Division of Community Correction, respectively, may restore lost meritorious good time according to rules promulgated by the Board of Corrections.

History. Acts 1971, No. 510, § 4; A.S.A. 1947, § 46-120.2; Acts 1993, No. 536, § 4; 1993, No. 558, § 4; 2019, No. 135, § 1.

A.C.R.C. Notes. Subsection (c) of this section, amended by identical 1993 acts Nos. 536 and 558, § 4, effective January 1, 1994, was repealed and replaced by implication.

Amendments. The 2019 amendment inserted “or the Director of the Department of Community Correction, respectively” in (a) and (b), and made stylistic changes.

12-29-204. Statutory good time — Maximum reduction.

No inmate sentenced to the Division of Correction shall ever receive a reduction under this subchapter, or this subchapter and another subchapter jointly, of more than thirty (30) days for each month served except for the additional days of meritorious good time awards authorized in § 12-29-202(d).

History. Acts 1971, No. 510, § 6; A.S.A. 1947, § 46-120.5; Acts 2005, No. 681, § 2; 2005, No. 1962, § 49; 2019, No. 910, § 794.

Amendments. The 2005 amendment by No. 681 added “except for the additional days of meritorious good time awards authorized in § 12-29-202(d).”

The 2005 amendment by No. 1962 deleted “Those inmates sentenced to the Department of Correction prior to April 2, 1971, shall be entitled to “statutory good time” as provided in Acts 1968 (1st Ex. Sess.), No. 50, § 14 [repealed], provided” from the beginning, inserted “sentenced to the Department of Correction” following “inmate,” added “except for the additional days of meritorious good time awards authorized in § 12-29-202(d),” and made related changes.

The 2019 amendment substituted “Division of Correction” for “Department of Correction”.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Law Enforcement, Emergency Management, and Military Affairs, 28 U. Ark. Little Rock L. Rev. 365.

12-29-205. Good time earned pending transfer to Division of Correction or Division of Community Correction.

    1. Any person who is sentenced by a circuit court to the Division of Correction or the Division of Community Correction and is awaiting transfer to the Division of Correction or Division of Community Correction may earn meritorious good time in accordance with law and rules as adopted by the Board of Corrections.
    2. Meritorious good time will only be given for being housed in a jail or similar secure facility while awaiting transfer on the conviction resulting in a sentence from that county.
    3. Meritorious good time will be calculated upon reception within the respective division.
  1. Meritorious good time will be awarded unless the county sheriff of record submits written objections to such award based on the prisoner's behavior, discipline, and the conduct or performance of such duties and responsibilities as assigned by such county sheriff or his or her designated representatives.
  2. This meritorious good time award is subject to all rules regarding meritorious good time including, but not limited to, those rules for forfeiture of meritorious good time as adopted by the board.

History. Acts 1993, No. 536, § 5; 1993, No. 558, § 5; 2019, No. 315, §§ 899, 900; 2019, No. 910, §§ 795, 796.

Publisher's Notes. Former § 12-29-205, concerning good time earned pending transfer to Department of Correction, was repealed by Acts 1993, Nos. 536 and 558, § 6, effective January 1, 1994. The former section was derived from Acts 1987, No. 626, §§ 1-4; 1991, No. 329, § 1; 1991, No. 574, § 1.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a)(1); and deleted “and regulations” following “rules” and substituted “rules” for the second occurrence of “regulations” in (c).

The 2019 amendment by No. 910, in (a)(1), substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction”; and substituted “division” for “department” in (a)(3).

Subchapter 3 — Education

Cross References. Vocational and technical education, § 6-50-101 et seq.

Effective Dates. Acts 1973, No. 279, § 9: Mar. 12, 1973. Emergency clause provided: “The General Assembly finds that there is an immediate need for the institution of basic education for inmates of the Department of Correction, to the end that the said inmates may improve their minds and characters and become less likely to commit further crimes. An emergency is therefore declared to exist, and this act, being necessary for the public health, safety, and welfare, shall be effective from and after its passage and approval.”

Acts 1985, No. 288, § 5: July 1, 1985.

Acts 1985, No. 751, § 2: Apr. 3, 1985. Emergency clause provided: “It is hereby found and determined that Act 279 of 1973 established the Department of Correction School District for the purpose of providing elementary, secondary, and vocational technical education to all persons incarcerated in the Department of Correction facilities who are not high school graduates, irrespective of age; that subsection (b) of Section 3 of Act 279 of 1973 authorized the Department of Correction School District to share in Minimum Foundation Program Aid under distribution laws then in effect; that the First Extraordinary Session of 1983 substantially revised the method of distributing Minimum Foundation Program Aid funds to school districts in this state; and that the immediate passage of this act is necessary to enable the Department of Correction to be eligible to receive Minimum Foundation Program Aid funds under the latest revisions of the Minimum Foundation Program Distribution Law, and to enable the Department of Correction to continue its eligibility to receive said funds, even though all aspects of the operation of said school may not conform to the quality education standards due to the restrictions on the educational program within such correctional facility. Therefore, an emergency is hereby declared to exist and this act, being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1989, No. 671, § 4: Mar. 20, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that confusion has arisen concerning the funding of the public school program operated in the Department of Correction; that it is necessary to clarify that funds generated from various programs within the department may be utilized in support of the public school district within the department; and that the immediate passage of this act is necessary to resolve the uncertainty surrounding this issue. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Case Notes

Rights of Employees.

Where plaintiff was employed with the Department of Correction School District as a teacher and was required to have a State teaching certificate as prerequisite to employment, he was a teacher within the meaning of the Teacher Fair Dismissal Act. Allred v. Ark. Dep't of Corr. Sch. Dist., 322 Ark. 772, 912 S.W.2d 4 (1995).

12-29-301. School system created.

  1. Properties owned by the State of Arkansas and occupied by the various units of the Division of Correction and the Division of Community Correction are by this subchapter designated as a qualified school district to be known as the “Corrections School System”.
  2. The system is created for the purpose of providing elementary, secondary, and vocational and technical education to qualified persons incarcerated in facilities of the Division of Correction and the Division of Community Correction or to qualified persons supervised by the Division of Community Correction, including those on probation and parole or any type of post-prison release or transfer who are not high school graduates, irrespective of age.
  3. The Board of Corrections shall act as the Board of Directors of the Corrections School System.
    1. The system's chief administrative officer shall be under the direct authority of the Board of Directors of the Corrections School System.
    2. Subject to the approval of the Board of Directors of the Corrections School System, the chief administrative officer or superintendent of the system shall have supervisory authority over the employees of the system, including, but not limited to, assistant superintendents, principals, and teachers.

History. Acts 1973, No. 279, §§ 1, 2; A.S.A. 1947, §§ 46-1301, 46-1302; Acts 2005, No. 496, § 1; 2019, No. 910, § 797.

Publisher's Notes. Acts 1973, No. 279, § 2, provided, in part, that, notwithstanding the other provisions of the act, the adult education programs administered by the England Special School District No. 2, on March 12, 1973, would continue to be administered by that district, and that all federal and state funds received by that district for such programs would be applied against federal and state funds available to the Department of Correction School District under the act.

Amendments. The 2005 amendment, in (a), inserted “and the Department of Community Correction” and “qualified” and substituted “Corrections School System” for “Department of Correction School District”; in (b), substituted “The qualified system” for “This district” and “qualified persons incarcerated … release or transfer” for “all persons incarcerated in department facilities”; substituted “Board of Directors of the Corrections School System” for “school district” in (c); and added (d).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout (a) and (b).

Case Notes

Mandatory Enrollment.

There is no “constitutional right to be ignorant,” and state clearly has the right, through forced school enrollment, to undertake rehabilitation of its inmates through education. Rutherford v. Hutto, 377 F. Supp. 268 (E.D. Ark. 1974).

Purpose.

While the Department of Correction School District is certainly different from other public school districts, it is clear that the General Assembly intended to establish a public school district within the Department of Correction for the benefit of both the free and the incarcerated populations; further, public federal funds and state funds from the Departments of Education and Correction support the district. Allred v. Ark. Dep't of Corr. Sch. Dist., 322 Ark. 772, 912 S.W.2d 4 (1995).

12-29-302. Rules.

The Board of Corrections and the State Board of Education are directed, authorized, and empowered to adopt rules as are necessary to implement the provisions of this subchapter.

History. Acts 1973, No. 279, § 4; A.S.A. 1947, § 46-1304; Acts 2019, No. 315, § 901.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in the section heading and in the text.

12-29-303. Privileges of students — Limitations.

A school established under this subchapter and a person incarcerated who attends the school shall be entitled to certain educational privileges provided generally to common public schools and adult education programs administered by the State Board of Education to students who attend the common public schools and adult education programs under the laws of the State of Arkansas, provided the privileges do not conflict with the rules and policies of the State Board of Education, the Division of Correction, and the Division of Community Correction or the laws of the state respecting the establishment and operation of the Division of Correction and the Division of Community Correction.

History. Acts 1973, No. 279, § 5; A.S.A. 1947, § 46-1305; Acts 2005, No. 496, § 2; 2019, No. 910, § 798.

Amendments. The 2005 amendment deleted “the provisions of” following “established under,” substituted “certain educational privileges” for “all of the privileges” and “departments” for “department,” and inserted “State Board of Education” and “and the Department of Community Correction.”

The 2019 amendment substituted “Division of Correction” for “Department of Correction”, and “Division of Community Correction” for “Department of Community Correction” twice.

Case Notes

Cited: Allred v. Ark. Dep't of Corr. Sch. Dist., 322 Ark. 772, 912 S.W.2d 4 (1995).

12-29-304. Costs and funding.

  1. The cost of implementing and operating the Corrections School System shall be borne by the state and shall be paid from funds appropriated by the General Assembly from the general revenues of the state to the Division of Correction, the Division of Community Correction, and the Division of Elementary and Secondary Education, together with any federal funds that may be available for that purpose and from any funds generated from the operations of the Division of Correction and the Division of Community Correction, in the following manner:
    1. The cost of facilities, equipment, and current operation in excess of the amount of grants and aids received from the Division of Elementary and Secondary Education shall be borne by the Division of Correction and the Division of Community Correction as approved by the Board of Corrections; and
      1. The system, as other school districts in the state, shall share in the distribution of grants and aids from the Division of Elementary and Secondary Education.
      2. However, in no case shall the moneys from the Public School Fund to the system be in excess of the line item appropriation provided to the system in the fund.
    1. Recognizing that the primary roles, duties, and responsibilities of the Division of Correction and the Division of Community Correction are to serve as penal and correctional institutions, the system shall be exempt from and shall not be penalized in any manner for not complying with:
      1. All of the following:
        1. The Quality Education Act of 2003, § 6-15-201 et seq.;
        2. The Arkansas Comprehensive Testing, Assessment, and Accountability Program Act, § 6-15-401 et seq.;
        3. Sections 6-15-901, 6-15-902, 6-15-2001 — 6-15-2008, 6-15-2101 — 6-15-2107, 6-15-2201, 6-15-2301, and 6-16-1201 — 6-16-1206;
        4. The Arkansas Fiscal Assessment and Accountability Program, § 6-20-1901 et seq.; and
        5. The Arkansas Educational Financial Accounting and Reporting Act of 2004, § 6-20-2201 et seq.;
      2. Any state laws or rules adopted to comply with the federal Elementary and Secondary Education Act as reauthorized under the No Child Left Behind Act of 2001, 20 U.S.C. § 6301 et seq., as in existence on January 1, 2005; and
      3. Any rule of the State Board of Education related to the provisions listed in this subdivision (b)(1).
    2. The system's exemption from or noncompliance with the provisions under this subsection shall not affect the system's, the Division of Correction's, or the Division of Community Correction's eligibility to apply for or receive state grants or aids for public school districts as authorized in this subchapter and related rules.

History. Acts 1973, No. 279, § 3; 1985, No. 751, § 1; A.S.A. 1947, § 46-1303; Acts 1989, No. 671, § 1; 1999, No. 391, § 37; 2005, No. 496, § 3; 2019, No. 910, § 799.

Amendments. The 2005 amendment rewrote this section.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and similar language, “Division of Community Correction” for “Department of Community Correction” and similar language, and “Division of Elementary and Secondary Education” for “Department of Education” throughout the section.

Case Notes

Cited: Allred v. Ark. Dep't of Corr. Sch. Dist., 322 Ark. 772, 912 S.W.2d 4 (1995).

12-29-305. Gifts and bequests.

The Board of Corrections and the State Board of Education may accept gifts, grants, donations, equipment, materials, bequests, and real and personal property from public and private sources to implement and operate the school program authorized by this subchapter.

History. Acts 1973, No. 279, § 6; A.S.A. 1947, § 46-1306.

12-29-306. Riverside Vocational and Technical School — Legislative intent.

  1. This section and §§ 12-29-307 — 12-29-310 are intended to create an additional state vocational and technical school to provide vocational and technical education and training opportunities to qualified persons incarcerated in facilities of the Division of Correction and the Division of Community Correction or to qualified persons supervised by the Division of Community Correction, including those on probation and parole or any type of post-prison release or transfer.
  2. This section and §§ 12-29-307 — 12-29-310 are not intended to modify or repeal any of the laws of this state pertaining to vocational and technical schools or vocational and technical education.

History. Acts 1985, No. 288, § 4; A.S.A. 1947, § 46-1307; Acts 2005, No. 496, § 4; 2019, No. 910, § 800.

Amendments. The 2005 amendment inserted the subsection designations; inserted “the Department of Community Correction or to qualified persons supervised by the Department of Community Correction including those on probation and parole or any type of post prison release or transfer” in present (a); and substituted “This section and §§ 12-29-307 and 12-29-310 are” for “is” in present (b).

The 2019 amendment, in (a), substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” twice.

12-29-307. Riverside Vocational and Technical School — Establishment.

There is established a state vocational and technical school, to be known as the “Riverside Vocational and Technical School”, to be operated by the Division of Correction and the Division of Community Correction at such facilities of the Division of Correction and the Division of Community Correction as may be designated by the Board of Corrections.

History. Acts 1985, No. 288, § 1; A.S.A. 1947, § 46-1308; Acts 2005, No. 496, § 5; 2019, No. 910, § 801.

Amendments. The 2005 amendment inserted “and the Department of Community Correction.”

The 2019 amendment rewrote the section.

12-29-308. Riverside Vocational and Technical School — Purpose.

The Riverside Vocational and Technical School is created for the purpose of providing vocational and technical educational opportunities to qualified persons incarcerated in facilities of the Department of Correction and the Department of Community Correction or to qualified persons supervised by the Department of Community Correction, including those on probation and parole or any type of post prison release or transfer who would be qualified to receive vocational and technical education and training in state vocational and technical schools established by the Career Education and Workforce Development Board under the provisions of §§ 6-51-2016-51-203, 6-51-205, 6-51-2076-51-210, and other laws of this state relative to vocational and technical schools.

History. Acts 1985, No. 288, § 2; A.S.A. 1947, § 46-1309; Acts 2005, No. 496, § 6.

Amendments. The 2005 amendment substituted “facilities of the Department of Correction … prison release or transfer” for “the Department of Correction facilities.”

12-29-309. Riverside Vocational and Technical School — Facilities — Operations — Rules.

    1. The Division of Correction and the Division of Community Correction shall locate facilities and operate vocational or technical education or training programs within the Riverside Vocational and Technical School.
    2. The operation of the school is subject to such special rules deemed appropriate for the operation of vocational or technical education or training programs at the correctional institutions under the control of the Division of Correction and the Division of Community Correction in accordance with agreements and rules mutually developed and agreed to by the Department of Education and the Board of Corrections.
    1. The school shall be entitled to all funds, rights, and privileges and shall be operated in the same manner as other area vocational and technical schools are operated in this state.
    2. However, the school shall be operated in accordance with the rules for the operation of vocational or technical education or training programs at facilities of the Division of Correction and the Division of Community Correction as provided in §§ 12-29-306 — 12-29-310.

History. Acts 1985, No. 288, § 2; A.S.A. 1947, § 46-1309; Acts 2005, No. 496, § 7; 2015, No. 1198, § 6; 2019, No. 910, § 6340.

Amendments. The 2005 amendment, in (a), inserted “and the Department of Community Correction” and substituted “fulfill their” for “fulfill its,” “institutions” for “institution” and “Department of Correction and the Department of Community Correction” for “department”; and substituted “Department of Correction and the Department of Community Correction” for “department of Correction” in (b).

The 2015 amendment deleted “and regulations” at the end of the section heading; and rewrote the section.

The 2019 amendment substituted “Division of Correction and the Division of Community Correction” for “Career Education and Workforce Development Board” in (a)(1); in (a)(2), substituted “Division of Correction” for “Department of Correction”, “Division of Community Correction” for “Department of Community Correction” and “Department of Education and” for “Career Education and Workforce Development Board and”; and, in (b)(2), substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction”.

12-29-310. Riverside Vocational and Technical School — Cost of implementation and operation.

  1. The cost of implementing and operating the Riverside Vocational and Technical School at facilities of the Division of Correction and the Division of Community Correction as authorized by this section and §§ 12-29-306 — 12-29-309 shall be borne by the state and shall be paid from funds appropriated by the General Assembly to the school, the Division of Correction, and the Division of Community Correction, together with any federal funds that may be available for this purpose in the following manner:
    1. The cost of facilities and equipment in excess of the amount of moneys provided by the school shall be borne by the Division of Correction and the Division of Community Correction as approved by the Board of Corrections; and
      1. This section and §§ 12-29-306 — 12-29-309 contemplate that the Division of Correction and the Division of Community Correction will provide facilities for the vocational and technical education programs operated by the school.
      2. However, nothing in this section and §§ 12-29-306 — 12-29-309 shall prohibit the Career Education and Workforce Development Board from providing facilities or sharing in the cost of facilities and from providing or sharing in the cost of repairing, maintenance, and upkeep of the buildings and facilities with the Division of Correction and the Division of Community Correction as funds are provided by the General Assembly, or are otherwise available for these purposes.
  2. The school shall be administered under the direction and supervision of the chief administrative officer of the Corrections School System or the Director of the Riverside Vocational and Technical School under the direct authority of the Board of Directors of the Corrections School System.

History. Acts 1985, No. 288, § 3; A.S.A. 1947, § 46-1310; Acts 2005, No. 496, § 8; 2019, No. 910, § 802.

Amendments. The 2005 amendment inserted “and the Department of Community Correction” in (a) and twice in present (a)(2); substituted “the Riverside Vocational and Technical School, the Department of Career Education, the Department of Correction, and to the Department of Community Correction” for “the Department of Workforce Education and to the Department of Correction” in (a); in (a)(1), inserted “Riverside Vocational and Technical School and the” and “and the Department of Community Correction as approved by the Board of Corrections”; deleted former (a)(2)(A); redesignated former (a)(2)(B) as present (a)(2); rewrote (b); and deleted (c).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout the section; deleted “the Department of Career Education, and to” following “to the school” in the introductory language of (a); and deleted “and the Department of Career Education” following “by the school” in (a)(1).

12-29-311. Dyslexia screening — Science of reading — Intervention services.

The Superintendent of the Arkansas Correctional School shall:

  1. Promulgate rules that require that:
    1. Teachers within the Arkansas Correctional School have and demonstrate awareness of the best practices of scientific reading instruction as required under the Right to Read Act, § 6-17-429;
    2. Each inmate who does not have a high school diploma or its equivalent receive:
      1. A reading proficiency-level assessment; and
        1. Dyslexia screening administered with fidelity, as defined under § 6-41-602.
        2. If the Arkansas Correctional School provides dyslexia intervention to an inmate who demonstrates under subdivision (1)(B)(ii)(a) of this section that the inmate is reading below the proficiency level required to be a high-functioning reader, the dyslexia intervention the Arkansas Correctional School provides shall be evidence-based and consistent with science-based research specifically tailored to addressing dyslexia; and
    3. A process be established by which new-intake inmates are:
      1. Assessed and administered a dyslexia screening with fidelity, as defined under § 6-41-602; and
      2. Provided dyslexia intervention with fidelity, as defined under § 6-41-602, that is evidence-based and consistent with science-based research specifically tailored to addressing dyslexia; and
  2. Submit a plan to the Division of Correction that allows inmates to voluntarily receive:
    1. A reading proficiency-level assessment;
    2. Dyslexia screening administered with fidelity, as defined under § 6-41-602; and
    3. Reading instruction that is consistent with the science of reading, as provided under the Right to Read Act, § 6-17-429.

History. Acts 2019, No. 1088, § 2.

A.C.R.C. Notes. Acts 2019, No. 1088, § 1, provided: “Legislative intent.

The General Assembly finds that:

“(1) Individuals undergo a process known as ‘intake’ when entering the Department of Correction system as a new inmate;

“(2) The intake process for new inmates can take at least three (3) to five (5) days, and sometimes longer in certain situations;

“(3) During intake, inmates are given an academic examination amongst other relevant examinations;

“(4) The inmate population of the department is approximately eighteen thousand (18,000);

“(5) The mission of the department is to:

“(A) Protect public safety by carrying out the mandate of the courts;

“(B) Provide a safe and humane environment for all staff members and inmates;

“(C) Strengthen the work ethic of inmates through teaching and instilling good habits; and

“(D) Provide opportunities for staff members and inmates to improve spiritually, mentally, and physically; and

“(6) Part of the mission and vision of the department is to provide correctional services that return inmates to the community as productive people.”

Acts 2019, No. 1088, § 3, provided: “Temporary language.

“(a) The superintendent of the Arkansas Correctional School shall comply with:

“(1) Section 12-29-311(1) by January 1, 2020; and

“(2) Section 12-29-311(2) by October 1, 2020.

“(b)(1) When adopting the initial rules to implement § 12-29-311, the final rule shall be filed with the Secretary of State for adoption under § 25-15-204(f):

“(A) On or before January 1, 2020; or

“(B) If approval under § 10-3-309 has not occurred by January 1, 2020, as soon as practicable after approval under § 10-3-309.

“(2) The superintendent of the Arkansas Correctional School shall file the proposed rule with the Legislative Council under § 10-3-309(c) sufficiently in advance of January 1, 2020, so that the Legislative Council may consider the rule for approval before January 1, 2020.”

Subchapter 4 — Medical Care

Preambles. Acts 1987, No. 777, contained a preamble which read:

“Whereas, there are currently over 600 inmates in the Arkansas Department of Correction convicted of sex related offenses; and

“Whereas, studies indicate that an unknown proportion of this group have paraphilias (sexual deviations) which, if ignored will result in continued sex related crimes upon release; and

“Whereas, an individualized assessment and treatment program in the Department of Correction to screen for sexually transmitted diseases and teach socially accepted behavior would decrease the amount of recidivism of these inmates;

“Now therefore….”

Effective Dates. Acts 1968 (1st Ex. Sess.), No. 50, § 46: Mar. 1, 1968. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order better to effectuate the rehabilitation of persons convicted of crime and to make possible their return as useful members of the community, and that the immediate passage of this act is necessary to establish a Department of Correction to effectuate such rehabilitation. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after March 1, 1968.”

Acts 1981, No. 59, § 4: Feb. 12, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present custody classification of prisoners is quite ambiguous and difficult to implement; that this act is necessary to correct such deficiency in the law. It is further found and determined by the General Assembly that the present law which requires physicals to be given twice a year is arbitrary and unnecessary and a waste of taxpayer money; that physicals should be given as often as needed as determined by the medical staff of the Department of Correction as this act requires. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect after its passage and approval.”

Acts 1981, No. 507, § 4: Mar. 16, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that in order to meet constitutional requirements the Arkansas Department of Correction should be authorized to develop in-house due process procedures for transferring inmates to the State Hospital; that the State Hospital should not be limited in the length of time it can retain custody of the inmates to treat such mental illness; and that this act is immediately necessary to so provide. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 2015, No. 895, § 48:

“(a) Sections 11, 12, 13, and 20 of this act are effective on and after September 1, 2015.

“(b) Sections 46 and 47 of this act are effective on and after January 1, 2016.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-29-401. Medical care.

  1. The Department of Correction shall establish and shall prescribe standards for health, medical, mental health, and dental services for each institution, including preventive, diagnostic, and therapeutic measures on both an outpatient and inpatient basis for all types of patients.
  2. An inmate may be taken, when necessary, to a medical facility outside the institution, but the Director of the Department of Correction shall provide ample safeguards for the custody of the inmate while confined in a medical facility outside the institution.
    1. The Board of Corrections is authorized to establish and maintain facilities for health, medical, mental health, and dental services for each institution in the Department of Correction and the Department of Community Correction, including preventive, diagnostic, and therapeutic measures on both an outpatient and inpatient basis for all types of patients, and to hire physicians and other healthcare professionals.
    2. The board may also implement copay charges for inmate-initiated healthcare requests.
    1. The Department of Correction and the Department of Community Correction shall have access to and may obtain copies of all medical records pertaining to any person incarcerated in a facility of either of those departments, including, but not limited to, test results, treatment records, and examination reports generated prior to the commitment of the person to the Department of Correction or the Department of Community Correction or based on medical care received by the person outside the Department of Correction or the Department of Community Correction during the period of the person's incarceration, regardless of whether the person consents to the release of the information.
      1. Any entity or person in possession of such records or information has a duty to disclose it to the Department of Correction or the Department of Community Correction upon written request by the Director of the Department of Correction or his or her designee or the Director of the Department of Community Correction or his or her designee, provided that the Department of Correction and the Department of Community Correction shall put in place the privacy and security provisions required by federal law and provide assurances of compliance, in writing, to the entity or person to whom the written request is made.
      2. Additionally, the requesting entity or person shall provide assurances in the written request that provisions of state laws which require heightened security and privacy will be complied with.
    2. Any information obtained pursuant to this section shall be used only for treatment purposes, to enable the Department of Correction and the Department of Community Correction to assign the incarcerated person to the correct unit or to enable the Department of Correction or the Department of Community Correction to file insurance claims, if applicable.
    3. Any hospital, clinic, medical office, or other such entity and the owners, officers, directors, employees, or agents of such entity, or any other person who, in good faith, furnishes any records or information to the Department of Correction or the Department of Community Correction pursuant to this subsection shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed in the absence of this subsection.
    1. If an inmate in the Department of Correction or a person in the custody of the Department of Community Correction receives medical services that meet criteria for Medicaid coverage, the departments are authorized to apply for Medicaid coverage under this subsection.
      1. The inmate or person may designate a representative for the purposes of filing a Medicaid application and complying with Medicaid requirements for determining and maintaining eligibility.
      2. However, the agency having custody of the inmate or person shall be the authorized representative for purposes of establishing and maintaining Medicaid eligibility under this subsection if:
        1. The inmate or person does not designate a representative within three (3) business days after request; or
        2. The representative designated under subdivision (e)(2)(A) of this section does not file a Medicaid application within three (3) business days after appointment and request.
    2. An authorized representative under this subsection:
      1. Shall have access to the information necessary to comply with Medicaid requirements; and
      2. May provide and receive information in connection with establishing and maintaining Medicaid eligibility, including confidential information.
      1. The Director of the Department of Correction or the Director of the Department of Community Correction or his or her designee may access information necessary to determine if a Medicaid application has been filed on behalf of the inmate or person.
      2. Disclosure under subdivision (e)(4)(A) of this section shall be to:
        1. Establish Medicaid eligibility;
        2. Provide healthcare services; or
        3. Pay for healthcare services.
      1. The Department of Human Services shall allow applications for Medicaid coverage and benefits to be submitted up to forty-five (45) days before the release of:
        1. An inmate or offender not previously qualified or previously qualified and subsequently suspended; or
        2. An inmate or offender, eighteen (18) years of age or older, adjudicated as delinquent and not previously qualified or previously qualified and subsequently suspended.
      2. To the extent feasible, the Department of Correction and the Department of Community Correction shall provide for Medicaid coverage applications to be submitted online to the Department of Human Services.
      3. A sentencing order shall satisfy the identity verification for Medicaid applications, if required for an application, and if permitted by federal law.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 11; A.S.A. 1947, § 46-150; Acts 1993, No. 884, § 1; 1995, No. 291, § 1; 2001, No. 161, § 1; 2013, No. 462, § 1; 2013, No. 467, § 1; 2015, No. 895, § 11.

A.C.R.C. Notes. Acts 2015, No. 895, § 1, provided: “Legislative intent. It is the intent of the General Assembly to implement wide-ranging reforms to the criminal justice system in order to address prison overcrowding, promote seamless reentry into society, reduce medical costs incurred by the state and local governments, aid law enforcement agencies in fighting crime and keeping the peace, and to enhance public safety.”

Amendments. The 2013 amendment by No. 462 added (c)(2).

The 2013 amendment by No. 467 added (e).

The 2015 amendment added (e)(5).

Cross References. Correctional facilities, § 12-28-101.

Research References

ALR.

Provision of Hormone Therapy or Sexual Reassignment Surgery to State Inmates with Gender Identity Disorder (GID). 89 A.L.R.6th 701.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

Case Notes

Cited: Pennington v. State, 260 Ark. 844, 545 S.W.2d 72 (1977).

12-29-402. Physical examination — Assignment to labor.

  1. All prisoners committed to the Division of Correction shall be given a physical examination initially upon arrival and then as often as determined by medical staff of the division.
  2. Inmates shall be assigned to labor as shall be fitting, with due consideration being given to their physical condition.

History. Acts 1943, No. 157, § 3; 1981, No. 59, § 2; A.S.A. 1947, § 46-138; Acts 2019, No. 910, § 803.

Amendments. The 2019 amendment, in (a), substituted “Division of Correction” for “Department of Correction” and “division” for “department”.

Research References

ALR.

Constitutional Right of Prisoners to Abortion Services and Facilities. 28 A.L.R.6th 485.

12-29-403. Inmates with a disability — Duty of physician.

    1. Each new inmate committed to the Division of Correction shall be given a medical examination during the intake process.
      1. During the medical examination required under subdivision (a)(1) of this section, the medical provider shall determine what restrictions, if any, shall be placed upon the inmate's work assignments.
      2. Restrictions placed upon an inmate's work assignments under subdivision (a)(2)(A) of this section shall be updated as medically necessary.
  1. The division shall not assign an inmate to a work assignment that conflicts with a restriction determined by the medical provider for the division under subdivision (a)(2) of this section.
  2. Whenever the medical provider updates the restrictions under subdivision (a)(2) of this section, the division shall adjust the inmate's work assignments as necessary to comply with the updated restrictions.

History. Acts 1893, No. 76, § 34, p. 121; C. & M. Dig., § 9665; Pope's Dig., § 12705; A.S.A. 1947, § 46-151; Acts 2009, No. 208, § 1; 2013, No. 295, § 5; 2019, No. 910, § 804.

Amendments. The 2009 amendment rewrote the section.

The 2013 amendment substituted “inmates” for “convicts” in the section heading.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a)(1); and substituted “division” for “department” in (b) and (c); and made stylistic changes in (b).

12-29-404. Medical parole for a terminal illness or permanent incapacitation — Definitions.

  1. As used in this section:
    1. “Permanently incapacitated” means, as determined by a licensed physician, that an inmate:
      1. Has a medical condition that is not necessarily terminal but renders him or her permanently and irreversibly incapacitated; and
      2. Requires immediate and long-term care; and
    2. “Terminally ill” means, as determined by a licensed physician, that an inmate:
      1. Has an incurable condition caused by illness or disease; and
      2. Will likely die within two (2) years due to the illness or disease.
  2. The Director of the Division of Correction or the Director of the Division of Community Correction shall communicate to the Parole Board when, in the independent opinions of either a Division of Correction physician or Division of Community Correction physician, and a consultant physician in Arkansas, an inmate is either terminally ill or permanently incapacitated and should be considered for transfer to parole supervision.
    1. Upon receipt of a communication described in subsection (b) of this section, the board shall assemble or request all such information as is germane to determine whether the inmate is eligible under this section for immediate transfer to parole supervision.
    2. If the facts warrant and the board is satisfied that the inmate's physical condition makes the inmate no longer a threat to public safety, the board may approve the inmate for immediate transfer to parole supervision.
  3. An inmate is not eligible for parole supervision under this section if he or she is required to register as a sex offender under the Sex Offender Registration Act of 1997, § 12-12-901 et seq., and:
    1. The inmate is assessed as a Level 3 offender or higher; or
    2. A victim of one (1) or more of the inmate's sex offenses was fourteen (14) years of age or younger.
  4. The board may revoke a person's parole supervision granted under this section if the person's medical condition improves to the point that he or she would initially not have been eligible for parole supervision under this section.

History. Acts 1893, No. 76, § 35, p. 121; C. & M. Dig., § 9666; Pope's Dig., § 12706; A.S.A. 1947 § 46-152; Acts 1991, No. 771, § 1; 1995, No. 290, § 1; 2011, No. 570, § 75; 2019, No. 910, § 805.

A.C.R.C. Notes. Acts 2011, No. 570, § 1, provided: “Legislative intent. The intent of this act is to implement comprehensive measures designed to reduce recidivism, hold offenders accountable, and contain correction costs.”

Amendments. The 2011 amendment rewrote (a); inserted (b) and redesignated former (b) as (c); in (c)(1), added “Upon receipt of a communication described in subsection (b) of this section” at the beginning and substituted “determine whether the inmate is eligible under this section for immediate transfer to parole supervision” for “making a decision”; in (c)(2), inserted “and the board is satisfied that the inmate's physical condition makes the inmate no longer a threat to public safety”, substituted “approve” for “make”, and deleted “eligible” following “inmate”; and added (d) and (e).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout (b).

12-29-405. Inmates with mental illness.

  1. The Division of Correction is authorized to develop in-house due process procedures as approved by the Board of Corrections in accordance with United States Supreme Court guidelines for the voluntary or involuntary treatment of inmates with mental illness at the facilities and programs of the Mental Health Services Section of the Division of Correction.
    1. While the inmate is in treatment, the inmate's sentence shall continue to run.
    2. If an inmate's sentence expires while in treatment, the division shall release the inmate or pursue involuntary admission under the appropriate procedures prescribed by existing laws governing the involuntary treatment of individuals with mental illness.

History. Acts 1981, No. 507, §§ 1, 2; A.S.A. 1947, §§ 46-153.1, 46-153.2; Acts 1993, No. 884, §§ 2, 3; 2019, No. 910, §§ 806, 807.

Amendments. The 2019 amendment, in (a), substituted “Division of Correction” for “Department of Correction”, and substituted “Mental Health Services Section of the Division of Correction” for “Mental Health Services Section of the Division of Health Treatment Services of the Department of Correction”; and substituted “division” for “department” in (b)(2).

12-29-406. Treatment for deviant sexual behavior.

  1. The purpose of this section is to enable the Division of Correction to establish a core program that will utilize services of medical and mental health providers in the community to provide intensive treatment of inmates with paraphilia, commonly known as sexual deviations, during their incarceration to increase their chance of returning to society successfully upon their release.
    1. The Mental Health Services Section of the Division of Correction is authorized to establish and maintain a program for intensive treatment for control of deviant sexual behavior of inmates in a specialized treatment setting and to cooperate with the medical services provider in screening for sexually transmitted diseases as part of this program.
    2. The division may develop the program in such a manner as to utilize outside professionals from the medical and mental health fields to provide both teaching and training opportunities.
  2. The section shall adopt, promulgate, and enforce such rules, policies, and standards as may be necessary to carry out the intent and purposes of this section.

History. Acts 1987, No. 777, §§ 1-3; 2019, No. 315, § 902; 2019, No. 910, § 808.

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “rules” in (c).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” in (a); substituted “Mental Health Services Section of the Division of Correction” for “Mental Health Services Section of the Division of Health Treatment Services of the Department of Correction” in (b)(1); and substituted “division” for “department” in (b)(2).

12-29-407. Medicaid suspension.

  1. When an individual who is enrolled in a Medicaid program or the Health Care Independence Program is incarcerated to the custody of the Division of Correction, the Division of Community Correction, or detained in a county jail, city jail, juvenile detention facility, or other Division of Youth Services of the Department of Human Services commitment, the Department of Human Services shall suspend, to the degree feasible, the individual's coverage during the period of incarceration for up to twelve (12) months from the initial approval or renewal, unless prohibited by law.
  2. When an individual with suspended Medicaid eligibility receives eligible medical treatment or is released from custody, the Department of Human Services shall reinstate, to the degree feasible, the individual's coverage for up to twelve (12) months from the initial approval or renewal, unless prohibited by law.
  3. The Department of Human Services shall ensure that the suspension and reinstatement process is automated and that protocols are developed to maximize Medicaid reimbursement for allowable medical services and essential health benefits.

History. Acts 2015, No. 895, § 12; 2019, No. 910, § 809.

A.C.R.C. Notes. Acts 2015, No. 895, § 1, provided: “Legislative intent. It is the intent of the General Assembly to implement wide-ranging reforms to the criminal justice system in order to address prison overcrowding, promote seamless reentry into society, reduce medical costs incurred by the state and local governments, aid law enforcement agencies in fighting crime and keeping the peace, and to enhance public safety.”

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a).

Subchapter 5 — State Prison Inmate Care and Custody Reimbursement Act

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Case Notes

Constitutionality.

This subchapter violates the Supremacy Clause of the United States Constitution because it permits the state to attach funds that federal law exempts from legal process. Bennett v. Arkansas, 485 U.S. 395, 108 S. Ct. 1204, 99 L. Ed. 2d 455 (1988).

12-29-501. Title.

This subchapter may be known and cited as the “State Prison Inmate Care and Custody Reimbursement Act”.

History. Acts 1981, No. 715, § 1; A.S.A. 1947, § 46-1701.

Case Notes

Constitutionality.

Supreme Court of Arkansas held that the application of the Arkansas State Prison Inmate Care and Custody Reimbursement Act, §§ 12-29-501 to 12-29-507, to appellant and other inmates based solely on the balance in their inmate accounts did not violate the equal protection guarantee because the Act was rationally related to the legitimate government purpose of allowing the State to seek reimbursement for care and custody expenses from inmates whose account balances were greater than the cost of litigating the reimbursement under the Act. MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28 (2012).

Illustrative Cases.

State was entitled to the $5,016.61 in appellant's inmate account under the Arkansas State Prison Inmate Care and Custody Reimbursement Act, §§ 12-29-501 to 12-29-507, for a portion of the cost of housing appellant, because money appellant received as a gift from his mother that was deposited into the account was clearly within the Act's definition of the term “estate.” MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28 (2012).

12-29-502. Definitions.

As used in this subchapter:

  1. “Board” means the Board of Corrections;
  2. “Cost of care” means the cost to the Department of Correction or the Department of Community Correction for providing room, board, clothing, medical, and other normal living expenses of inmates in the Department of Correction or the Department of Community Correction, as determined from time to time by the board;
  3. “Director” means the Director of the Department of Correction or the Director of the Department of Community Correction; and
  4. “Estate” means any tangible or intangible properties, real or personal, belonging to or due an inmate confined to an institution of the Department of Correction or the Department of Community Correction, including income or payments to the inmate from Social Security, previously earned salary or wages, bonuses, annuities, pensions, or retirement benefits, or any source whatsoever.

History. Acts 1981, No. 715, § 2; A.S.A. 1947, § 46-1702; 2013, No. 289, § 1.

Amendments. The 2013 amendment inserted “or the Department of Community Correction” following the first occurrence of “Department of Correction" in (2); added "or the Director of the Department of Community Correction" in (3); and substituted “Department of Correction or the Department of Community Correction” for “department” in (2) and (4).

Case Notes

Recovery from Estate.

The plain language of this section reflects, in defining “estate,” that the state is permitted to recover from an inmate's estate, whatever it might be. Burns v. State, 303 Ark. 64, 793 S.W.2d 779 (1990).

State was entitled to the $5,016.61 in appellant's inmate account under the Arkansas State Prison Inmate Care and Custody Reimbursement Act, §§ 12-29-501 to 12-29-507, for a portion of the cost of housing appellant. The Supreme Court of Arkansas held that any money appellant received as a gift from his mother that was deposited into his inmate account was clearly within the definition of the term “estate” in subdivision (4) of this section. MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28 (2012).

12-29-503. Monthly reports on prisoners — Investigation.

    1. The Director of the Department of Correction or the Director of the Department of Community Correction shall forward to the Attorney General a list containing the name of each prisoner in the respective penal facilities of the Department of Correction or the Department of Community Correction, the county from which he or she was sentenced, the term of the sentence, the date of admission, together with all information available to the appropriate department on the financial responsibilities of the prisoner.
    2. The report shall be made on forms to be agreed upon by the Director of the Department of Correction and the Attorney General or his or her designated employee and shall be made on or before the tenth day of each month.
  1. The Attorney General shall investigate or cause to be investigated all such reports furnished by the Department of Correction or the Department of Community Correction for the purpose of securing reimbursement for the expenses of the State of Arkansas for the cost of care of the prisoners.

History. Acts 1981, No. 715, § 3; A.S.A. 1947, § 46-1703; 2013, No. 289, § 2.

Amendments. The 2013 amendment, in (a)(1), inserted “or the Director of the Department of Community Correction”, “or the Department of Community Correction”, and “appropriate”; and substituted “Department of Correction or the Department of Community Correction” for “department” in (b).

Case Notes

Constitutionality.

There is a rational connection between Act 715 of 1981, as codified in this section and § 12-29-504, and the nonpunitive goal of reimbursement to the state for care and custody expenses from state prison inmates. Act 715 is not unconstitutional as ex post facto law as it is not focused on the crimes committed by defendant, nor is it additional punishment. Burns v. State, 303 Ark. 64, 793 S.W.2d 779 (1990).

12-29-504. Reimbursement proceedings — Appointment of guardian.

    1. When a person is admitted to an institution of the Department of Correction as an inmate or the Department of Community Correction as a resident of a community correction facility, the Attorney General shall petition the Pulaski County Circuit Court or the prosecuting attorney of the county from which the inmate or resident was sentenced shall petition the circuit court of the county from which the person was sentenced if the inmate or resident possesses any estate or becomes possessed of any estate while he or she is in the institution or community correction facility.
    2. The petition shall:
      1. State that the person is an inmate at an institution of the Department of Correction or a resident of a community correction facility of the Department of Community Correction;
      2. State that the Attorney General or prosecuting attorney has good reason to believe and does believe that the inmate or resident has an estate;
      3. Pray for the appointment of a guardian of the person if a guardian has not already been appointed; and
      4. Pray that the estate may be subjected to payment to the state of the expenses paid and to be paid by the state on behalf of the inmate or resident as an inmate or resident.
    1. The circuit court shall then issue a citation to show cause why the prayer of the petitioner should not be granted.
    2. If the inmate or resident has a guardian, the petition shall be served upon the guardian.
    3. If the inmate or resident does not have a guardian, the petition shall be served at least fourteen (14) days before the date of the hearing upon the inmate or resident by delivering a copy personally or by registered mail to the warden or head of the institution where the person is an inmate or, if the person is a resident of a community correction facility of the Department of Community Correction, to the Director of the Department of Community Correction.
    4. The circuit court may appoint a guardian of the person.
      1. At the time of the hearing, if it appears that the inmate or resident has an estate that is subject to the claim of the state, without further notice the circuit court shall appoint a guardian of the person and estate of the inmate or resident if the circuit court determines a guardian is necessary for the protection of the rights of all parties concerned.
        1. The circuit court shall make an order requiring the guardian or any person or corporation possessing the estate belonging to the inmate or resident to appropriate and apply the estate or part of the estate as appropriate toward reimbursing the state, to the payment of the expenses so far incurred by the state on behalf of the inmate or resident, and a part of the estate toward reimbursing the state for the future expenses that it must pay on the inmate's or resident's behalf.
        2. The reimbursement under subdivision (c)(1)(B)(i) of this section shall not be in excess of the per capita cost of maintaining inmates or residents in the institution or community correction facility in which he or she is an inmate or resident.
      1. However, before issuing any order under this subchapter providing for payments from the estate of the inmate or resident for his or her cost of care while confined to an institution of the Department of Correction or community correction facility of the Department of Community Correction, the circuit court shall take into consideration and make allowances for the maintenance and support of the spouse, dependent children, or other persons having a moral or legal right to support and maintenance out of the estate of the inmate or resident.
      2. The circuit court shall take the factors under subdivision (c)(2)(A) of this section into consideration in determining the amount to be paid, if any, from the estate of the inmate or resident for his or her cost of care at the Department of Correction or the Department of Community Correction.
    1. If a guardian, person, or corporation neglects or refuses to comply with the order, the circuit court shall cite the guardian, person, or corporation to appear before the circuit court at a time as it may direct and to show cause why the guardian, person, or corporation should not be sentenced for contempt of court.
    2. As an additional remedy, the Attorney General or prosecuting attorney may enforce payment of the sums provided in the original order by a proper action in the name of the state.
    3. If in the opinion of the court the estate of the inmate or resident is sufficient to pay the cost of the proceedings under this section, the estate shall be made liable for the cost of the proceedings by order of the circuit court.
    1. The proceedings provided for by this section may be begun at any time after admittance of the person to a facility of the Department of Correction as an inmate or to a community correction facility of the Department of Community Correction as a resident.
    2. Recovery may be had for the expenses incurred on behalf of an inmate or resident during the entire period the person is an inmate at a facility of the Department of Correction or a resident of a community correction facility of the Department of Community Correction.

History. Acts 1981, No. 715, § 4; A.S.A. 1947, § 46-1704; 2013, No. 289, § 3; 2015, No. 1161, § 4.

Amendments. The 2013 amendment rewrote the section.

The 2015 amendment substituted “inmate” for “prisoner” throughout the section and rewrote the section to clarify references and conform usage.

Case Notes

Constitutionality.

There is a rational connection between Act 715 of 1981, as codified in this section and § 12-29-503, and the nonpunitive goal of reimbursement to the state for care and custody expenses from state prison inmates. Act 715 is not unconstitutional as ex post facto law as it is not focused on the crimes committed by defendant, nor is it additional punishment. Burns v. State, 303 Ark. 64, 793 S.W.2d 779 (1990).

Cited: MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28 (2012).

12-29-505. Duty to furnish information.

It shall be the duty of the sentencing judge, the county sheriff of the county, the Director of the Department of Correction or the Director of the Department of Community Correction, and the warden or administrative head of the penal facility or residential facility in which the person or prisoner is confined to furnish on inquiry to the Attorney General or prosecuting attorney all information and assistance possible to enable the Attorney General or prosecuting attorney to secure reimbursement for the cost of care of the person or prisoner by the State of Arkansas.

History. Acts 1981, No. 715, § 5; A.S.A. 1947, § 46-1705; 2013, No. 289, § 4.

Amendments. The 2013 amendment inserted “or the Director of the Department of Community Correction” and “or residential facility”.

12-29-506. Duties of Attorney General — Assistance.

  1. The Attorney General shall enforce this subchapter.
  2. However, the Attorney General may refer to the prosecuting attorney of the county from which the inmate in the Division of Correction or the person residing in a Division of Community Correction facility was sentenced, or to the prosecuting attorney of the county in which any property or estate of the inmate or person is located, to investigate or assist in legal proceedings to obtain the reimbursements for the cost of care of the inmate or person, as authorized in this subchapter.

History. Acts 1981, No. 715, § 7; A.S.A. 1947, § 46-1707; 2013, No. 289, § 5; 2017, No. 250, § 25; 2019, No. 910, § 810.

Amendments. The 2013 amendment rewrote (a); and inserted “or the person residing in a Department of Community Correction facility” in (b).

The 2017 amendment, in (b), substituted “the inmate or person” for “any such inmate” following “estate of” and “inmate or person” for “such prisoners” following “care of”.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (b).

12-29-507. Deposit of recovered moneys — Payment of costs.

    1. All moneys recovered for the cost of care of prisoners in a facility of the Division of Correction or the Division of Community Correction under this subchapter shall be deposited into the State Treasury.
    2. The Treasurer of State shall credit the moneys to the appropriate fund established by law from which appropriations to the Division of Correction or the Division of Community Correction are made for inmate care and custody at the Division of Correction or the Division of Community Correction.
  1. However, the cost of making any investigation necessary to secure the reimbursements provided under this subchapter shall be paid from the reimbursement secured under this subchapter in those instances in which the General Assembly has not otherwise provided funds to defray the cost of the investigations.

History. Acts 1981, No. 715, § 6; A.S.A. 1947, § 46-1706; 2013, No. 289, § 6; 2019, No. 910, § 811.

Amendments. The 2013 amendment inserted “or the Department of Community Correction” in (a)(1); and substituted “Department of Correction or the Department of Community Correction” for “department” twice in (a)(2).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout (a).

Cross References. State General Government Fund, § 19-5-302.

Case Notes

Illustrative Cases.

Because the state was entitled to the $5,016.61 in appellant's inmate account under the Arkansas State Prison Inmate Care and Custody Reimbursement Act, §§ 12-29-501 to 12-29-507, for a portion of the cost of housing appellant, the court ordered the deposit of that money into the state treasury in accordance with subdivision (a)(1) of this section. MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28 (2012).

Subchapter 6 — Satisfaction of Restitution Orders Through Damage Awards

12-29-601. Compensatory damages paid to satisfy restitution orders.

  1. Any compensatory damages after payment of attorney's fees and costs awarded to a prisoner in connection with a civil action brought against any state or local jail, prison, or correctional facility, or against any official or agent of such jail, person, or correctional facility, shall be paid directly to satisfy any outstanding restitution orders pending against the prisoner.
  2. The remainder of any such award after full payment of all pending restitution orders shall be forwarded to the prisoner.

History. Acts 1997, No. 524, § 1.

12-29-602. Immunity not affected.

The provisions of this subchapter are not intended to in any way affect the immunity from suit granted to state officials and employees under § 19-10-305 or to the state and its official agencies under Arkansas Constitution, Article 5, § 20.

History. Acts 1997, No. 524, § 2.

Chapter 30 State Inmate Industries and Labor

Publisher's Notes. Acts 1933, No. 30, § 37, provided, in part, that laws not inconsistent with, or specifically repealed by, Acts 1933, No. 30 should apply to the Board of Penal Institutions.

Acts 1968 (1st Ex. Sess.), No. 50, § 44, provided, in part, that all laws relating to the State Penitentiary which were not specifically repealed by, or in conflict with, Acts 1968 (1st Ex. Sess.), No. 50 would apply to the Department of Correction.

Subchapter 1 — General Provisions

Cross References. Inmate welfare funds, § 12-29-107.

Effective Dates. Acts 1975, No. 361, § 4: Mar. 10, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that the exchange of materials, goods, and products between the Department of Correction in this state and correctional institutions of other states and of the federal government would be of benefit to the correctional program of this state and would provide opportunities for obtaining the processing of raw materials and for the obtaining of goods and products produced by correctional institutions of other states or of federal correctional institutions, in exchange for goods or products produced in the correctional program of this state, and that the immediate passage of this act is necessary in order to enable the Board of Correction to enter into such contracts and agreements and thereby obtain the benefit of this program for the correctional system of this state. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 108, § 5: Feb. 19, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that this act is immediately necessary to allow the Board of Correction to enter into contracts with other states and the federal government for the buying and selling of commodities thereby creating additional revenues which are severely needed by that department. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force after its passage and approval.”

Acts 1981, No. 118, § 3: Feb. 19, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present law the sale of Department of Correction handicraft products is much too restrictive; that this act expands the market for such product which in turn provides more money which will be put into the Inmate Welfare Fund. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect after its passage and approval.”

Acts 1989 (3rd Ex. Sess.), No. 48, § 5: Nov. 16, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Department of Correction is in immediate need of additional revenues for its Industry Program; this Act will assist the Department in generating additional revenues for their Industry Program; and that this Act should go into effect immediately in order to grant the Department of Correction the necessary authority to generate additional revenues for its Industry Program. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-30-101. Bartering products of institutions.

    1. In the passage of this section, the General Assembly is cognizant of the diversity of agricultural, livestock, processing, manufacturing, fabricating, and production resources of penal and correctional institutions in this state, in other states, and of the federal government.
    2. It is recognized that each of the correctional institutions may carry on a program of production, industries, manufacturing, and processing essential to its own needs and requirements, and that in a number of instances the institutions could share, through trade and barter agreements, their production, materials, and goods for the mutual benefit and advantage of their respective institutions.
  1. It is the intent of this section to enable the Board of Corrections of this state to enter into agreements with the managing boards or commissions of correctional institutions of other states, or with appropriate federal officials having custody or control of federal correctional institutions, for the exchange of raw materials, goods, and products in accordance with terms and agreements which the respective institutions find to be advantageous and of benefit to their respective institutions and programs.
    1. The board, with the approval of the Governor, is authorized to enter into contracts, compacts, or agreements with the appropriate governing officials of correctional institutions of other states or of the federal government for the trading or bartering of raw materials, goods, and products produced by and belonging to their respective institutions.
    2. This may be done in accordance with the terms and conditions the board and the governing officials of correctional institutions of other states or of the federal government may deem advantageous and appropriate for their respective institutions and programs.
  2. The agreements may include matters such as the exchange of raw materials for finished products produced in correctional institutions or the processing of raw materials into finished products in exchange for a portion of the raw materials processed.
  3. Copies of all such agreements, compacts, or contracts entered into with correctional institutions of other states or with the federal government, as authorized in this section, shall be filed with the Auditor of State and the Chief Fiscal Officer of the State.
  4. A complete set of books and records shall be kept with respect to all transactions, deliveries, and obligations under each compact, contract, or agreement. Copies shall be filed with the Auditor of State and the Chief Fiscal Officer of the State and shall be available to public inspection during all normal business hours.
  5. The board may make reasonable rules governing the Division of Correction in the administration of contracts, compacts, or agreements made under the provisions of this section.

History. Acts 1975, No. 361, §§ 1, 2; A.S.A. 1947, §§ 46-250, 46-250n; Acts 2019, No. 315, § 903; 2019, No. 910, § 812.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (g).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” in (g).

12-30-102. Buying and selling products of institutions.

  1. The Board of Corrections is authorized to enter into contracts, compacts, or agreements with the appropriate governing officials of agencies of other states or of the federal government for the buying and selling of raw materials, goods, and products produced by and belonging to their respective institutions in accordance with such terms and conditions as the board and the governing officials of correctional institutions of other states or the federal government may deem advantageous and appropriate for their respective institutions and programs.
  2. These agreements may include matters such as the buying and selling of raw materials for finished products produced in correctional institutions or for the processing of materials into finished products.
  3. Copies of all such agreements, compacts, or contracts entered into with correctional institutions of other states, or with the federal government as authorized in this section, shall be filed with the Chief Fiscal Officer of the State.
    1. A complete set of books and records shall be kept with respect to all transactions, deliveries, and obligations under each compact, contract, or agreement.
    2. Copies shall be filed with the Chief Fiscal Officer of the State and shall be available to public inspection during all normal business hours.
  4. The board may make reasonable rules governing the Division of Correction in the administration of contracts, compacts, or agreements made under the provisions of this section.

History. Acts 1981, No. 108, §§ 1-3; A.S.A. 1947, §§ 46-251 — 46-253; Acts 2019, No. 315, § 904; 2019, No. 910, § 813.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (e).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” in (e).

12-30-103. Workcraft program.

  1. The Division of Correction and the Division of Community Correction are authorized to operate a workcraft program that offers instruction and training for their inmates, thereby helping prepare them for employment after incarceration.
  2. The Board of Corrections is authorized to establish rules for operating the workcraft program, which shall include, but not be limited to, the following:
    1. Acquisition of necessary machinery, materials, and equipment;
    2. Establishment of procedures for public sale of inmate-produced craft;
    3. Inmate eligibility for participation in the workcraft program; and
    4. Establishment of a workcraft program revolving fund.

History. Acts 1975, No. 702, § 1; A.S.A. 1947, § 46-248; Acts 1995, No. 205, § 1; 1995, No. 292, § 1; 2019, No. 315, § 905; 2019, No. 910, § 814.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in the introductory language of (b).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a).

12-30-104. Sale of workcraft items.

    1. The sale of items produced in the Division of Correction or the Division of Correction workcraft programs may be through one (1) or more retail outlets operated by the Division of Correction or the Division of Community Correction.
    2. The public availability of these items for sale will be made known through advertising or other public marketing communications, or both.
    1. Prices of workcraft items shall be sufficient to cover production cost.
    2. A percentage of sale proceeds, as determined by rule, will accrue to the individual product-creating inmate's account and the remainder to a workcraft program revolving fund.

History. Acts 1975, No. 702, § 2; 1981, No. 118, § 1; A.S.A. 1947, § 46-249; Acts 1995, No. 205, § 2; 1995, No. 292, § 2; 2019, No. 315, § 906; 2019, No. 910, § 815.

Amendments. The 2019 amendment by No. 315 substituted “rule” for “rules and regulations” in (b)(2).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” throughout (a)(1).

12-30-105. Marketing contracts.

    1. The Division of Correction may enter into marketing contracts with dealers, retailers, distributors, and manufacturer representatives permitting them to market and sell all products and services produced by the Division of Correction industry program in accordance with existing laws and state purchasing rules.
    2. The Industry Division of the Division of Correction will be responsible for all billing of purchased products and services to ensure that only customers authorized by law are making said purchases.
  1. Reimbursement to companies on contract for marketing of said products and services will be based on rules established by the Board of Corrections.

History. Acts 1989 (3rd Ex. Sess.), No. 48, §§ 1, 2; Acts 2019, No. 315, § 907; 2019, No. 910, § 816.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a)(1) and (b).

The 2019 amendment by No. 910, in (a)(1), substituted “Division of Correction” for “Department of Correction” and “division” for “department”; and substituted “division” for “department” in (a)(2).

Subchapter 2 — Prison-Made Goods Act of 1967

Effective Dates. Acts 1985, No. 825, § 3: Apr. 4, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that inmate produced goods could be readily sold to nonprofit organizations thereby producing a source of revenue which is badly needed to help fund the Arkansas prison system; that this act would authorize such a procedure. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 944, § 6: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-30-201. Title.

This subchapter may be cited as the “Prison-Made Goods Act of 1967”.

History. Acts 1967, No. 473, § 2; A.S.A. 1947, § 46-235.

12-30-202. Legislative intent.

Whereas, the means now provided for the employment of prison labor are inadequate to furnish a sufficient number of prisoners with diversified employment, it is declared to be the intent of this subchapter:

  1. To further provide more adequate, regular, and suitable employment for the prisoners of this state, consistent with proper penal purposes;
  2. To further utilize the labor of prisoners for self-maintenance and for reimbursing this state for expenses incurred by reason of their crimes and imprisonment; and
  3. To effect the requisitioning and disbursement of prison products directly through established state authorities with no possibility of private profits therefrom.

History. Acts 1967, No. 473, § 1; A.S.A. 1947, § 46-234.

Case Notes

Cited: Wells v. Heath, 274 Ark. 45, 622 S.W.2d 163 (1981).

12-30-203. Establishment of prison industries.

The Board of Corrections may purchase, in the manner provided by law, equipment, raw materials, and supplies and engage supervisory personnel necessary to establish and maintain for this state, at the Division of Correction or institution under control of the board, industries for the utilization of services of prisoners in the manufacture or production of articles or products as may be needed for the construction, operation, maintenance, or use of any office, department, division, institution, or agency supported, in whole or in part, by this state and the political subdivisions of this state.

History. Acts 1967, No. 473, § 3; A.S.A. 1947, § 46-236; 2013, No. 1277, § 3; 2019, No. 910, § 817.

Amendments. The 2013 amendment substituted “may purchase” for “is authorized to purchase”; deleted “to” preceding “engage” and “or any penal farm” following “Correction”; and substituted “the board” for “this board” and “subdivisions of this state” for “subdivisions thereof”.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and inserted “division”.

12-30-204. Purchase of goods by state and local agencies.

    1. All offices, departments, divisions, institutions, and agencies of this state which are supported in whole or in part by this state, and all political subdivisions of this state, may purchase, at the discretion of the office, department, division, institution, or agency, from the Board of Corrections any products required by the offices, departments, divisions, institutions, agencies, or political subdivisions of this state produced or manufactured by the Division of Correction utilizing prison labor as provided for by this subchapter.
        1. The Revenue Division may request that the board propose the purchase of license plates which are necessary as evidence of registration of motor vehicles and trailers to be issued by the Revenue Division’s revenue offices.
        2. The license plates would be produced or manufactured by the Division of Correction utilizing prison labor.
      1. The provisions of this subdivision (a)(2) shall be applicable beginning with the contracts for purchase or any purchases of license plates which are required after the expiration of any contracts for the purchase or manufacture of license plates that are in effect.
  1. Such offices, departments, divisions, institutions, and agencies shall not be required to submit an invitation for bid to the board for all products known to be produced or manufactured by the Division of Correction utilizing prison labor as provided for by this subchapter.
    1. The Division of Correction may enter into an agreement with the Old State House Commission to utilize inmate labor in the production or manufacture of items for resale by the Old State House Museum.
    2. Except as provided in subdivision (c)(3) of this section, the proceeds from the sales of the items produced or manufactured under subdivision (c)(1) of this section shall be used by the Old State House Museum to:
      1. Develop exhibits and programs about the history of the Division of Correction; or
      2. Maintain the Old State House Museum's collection of the Division of Correction artifacts.
    3. The Division of Correction and the commission may by rule modify the use of the proceeds from the sale of items produced or manufactured under subdivision (c)(1) of this section.
  2. All purchases made pursuant to this section shall be made through the Division of Correction's purchasing division, upon requisition by the proper authority of the office, department, division, institution, agency, or political subdivision of this state requiring the articles or products.

History. Acts 1967, No. 473, §§ 4, 5; 1985, No. 825, § 1; A.S.A. 1947, §§ 46-237, 46-238; Acts 1995, No. 944, § 1; 1997, No. 1284, § 1; 2009, No. 307, § 1; 2019, No. 910, § 818.

A.C.R.C. Notes. As enacted by Acts 1997, No. 1284, § 1, subdivision (a)(2)(A)(i) began:

“On and after January 1, 1998,.”

Amendments. The 2009 amendment inserted (c), and redesignated the remaining text as (d).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and similar language, and inserted “divisions” and similar language throughout the section; and substituted “Revenue Division of the Department of Finance and Administration's” for “division's” in (2)(A)(i).

12-30-205. Purchase of goods by nonprofit organizations and other individuals.

  1. A nonprofit organization may purchase goods produced by the Division of Correction's Industry Division as provided for by this subchapter.
    1. Goods produced by the Industry Division as provided for by this subchapter may also be purchased by:
      1. Current employees and retirees of the Division of Correction;
        1. Current employees and retirees of the public offices, departments, divisions, institutions, school districts, and agencies of this state.
        2. Subdivision (b)(1)(B)(i) of this section does not include members of the General Assembly; and
      2. Current and former members of the Board of Corrections.
    2. Goods purchased by an individual under subdivision (b)(1) of this section:
      1. Shall be for personal use only and not for resale; and
      2. Exclusive of fees assessed by the Industry Division and applicable taxes, may not exceed two hundred dollars ($200) for any one (1) purchase of home furnishings for any one (1) fiscal year.
  2. Goods or products that are produced, assembled, or packaged in whole or in part by the Division of Correction utilizing prison labor may be sold to inmates of the Division of Correction, Division of Community Correction, or a local correctional facility.

History. Acts 1967, No. 473, § 4; 1985, No. 825, § 1; A.S.A. 1947, § 46-237; Acts 1999, No. 1375, § 1; 2005, No. 1182, § 1; 2009, No. 502, § 1; 2011, No. 779, § 24; 2015, No. 1061, § 1; 2019, No. 910, § 819; 2019, No. 982, § 1.

Amendments. The 2005 amendment, in (a), deleted “also” following “may” and substituted “Department of Correction's Industry Division” for “Department of Correction utilizing prison labor”; and rewrote (b).

The 2009 amendment, in (b)(1), inserted “excluding furniture and seating” in the introductory language, substituted “school districts, and public agencies in this state” for “and agencies of this state which are supported in whole or in part by this state” in (b)(1)(B)(i), and made related changes.

The 2011 amendment, in (b)(1)(B)(i), inserted “public” preceding “offices” and deleted “public” preceding “agencies”.

The 2015 amendment added (c).

The 2019 amendment by No. 910 substituted “Division of Correction's Industry Division” for “Department of Correction's Industry Division” in (a); substituted “Division of Correction” for “Department of Correction in (b)(1)(A), and inserted “divisions” in (b)(1)(B)(i); and, in (c), substituted “Division of Correction” for “Department of Correction” twice and “Division of Community Correction” for “Department of Community Correction”.

The 2019 amendment by No. 982 deleted “upon the condition that the goods may not be resold for profit” following “subchapter” in (a); deleted “excluding furniture and seating” following “subchapter” in the introductory language of (b)(1); substituted “Current employees and retirees of the public offices” for “All employees of the public offices” in (b)(1)(B)(i); substituted “section does not include” for “section shall not include” in (b)(1)(B)(ii); added the (b)(2)(A) designation; added (b)(2)(B); and made stylistic changes.

12-30-206. Prices.

  1. The Board of Corrections shall fix and determine the prices at which all articles or products manufactured or produced shall be furnished.
  2. The prices shall be uniform and nondiscriminating to all and shall not exceed the wholesale market prices with the exception of goods or items produced, assembled, or packaged in whole or in part specifically for sale or resale to inmates of the Division of Correction, Division of Community Correction, or a local correctional facility.

History. Acts 1967, No. 473, § 9; A.S.A. 1947, § 46-242; 2015, No. 1061, § 2; 2019, No. 910, § 820.

Amendments. The 2015 amendment added “with the exception of goods or items produced, assembled, or packaged in whole or in part specifically for sale or reseale to inmates of the Department of Correction, Department of Community Correction, or a local correctional facility” at the end of (b).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (b).

12-30-207. Catalogues.

  1. The Board of Corrections shall cause to be prepared, at such times as the board may determine, catalogues containing the description of all articles and products manufactured or produced by the board pursuant to the provisions of this subchapter.
  2. Copies of the catalogue shall be sent by the board to all offices, departments, institutions, and agencies of this state and made accessible to all political subdivisions of this state referred to in § 12-30-204.

History. Acts 1967, No. 473, § 7; A.S.A. 1947, § 46-240.

12-30-208. [Repealed.]

Publisher's Notes. This section, concerning needs estimates by state and local agencies, was repealed by Acts 1995, No. 944, § 2. The section was derived from Acts 1967, No. 473, § 7; A.S.A. 1947, § 46-240. For current law, see § 12-30-204.

12-30-209. Order of distribution.

The articles or products manufactured or produced by prison labor in accordance with the provisions of this subchapter shall be devoted:

  1. First, to fulfilling the requirements of the offices, departments, institutions, and agencies of this state that are supported in whole or in part by this state; and
  2. Second, to supply the political subdivisions of this state with the articles and products.

History. Acts 1967, No. 473, § 8; A.S.A. 1947, § 46-241.

12-30-210. Annual report.

  1. The Division of Correction's Industry Division shall make an annual full and detailed report of:
    1. All materials, machinery, or other property procured, the cost of the materials, machinery, or other property procured, and the expenditures made during the last preceding year for production purposes, together with a statement of all materials then on hand to be produced, in process of production, or already produced;
    2. All machinery, fixtures, or other appurtenances for the purpose of carrying out the work of the Industry Division;
    3. The earnings realized during the last preceding fiscal year as the proceeds of the sale of items produced by the Industry Division; and
    4. The Industry Division's current inventory stock price list.
    1. The report shall be verified by the oath of the Director of the Division of Correction and shall be forwarded to the Board of Corrections by the director within ninety (90) days after the end of the last preceding fiscal year.
    2. The board shall review the report described under this section and shall make the report available on the Division of Correction's website.

History. Acts 1967, No. 473, § 10; A.S.A. 1947, § 46-243; Acts 2019, No. 910, § 821; 2019, No. 982, § 2.

A.C.R.C. Notes. Acts 2019, No. 910, § 821, amended subsection (a) of this section to change “Director of the Department” to “Director of the Division” and subdivision (a)(3) of this section to change “Department” to “Division”. However, Acts 2019, No. 982, § 2, specifically repealed these references.

Amendments. The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” in the introductory language of (a) and (a)(3).

The 2019 amendment by No. 982 rewrote the introductory language of (a); in (a)(1), substituted “property procured, the cost of the materials, machinery, or other property procured, and the expenditures” for “property procured, the cost thereof, and the expenditures”, substituted “production” for “manufacturing” and made similar changes, and substituted “already produced” for “manufactured”; substituted “carrying out the work of the division” for “carrying on the labor of the prisoners” in (a)(2); in (a)(3), inserted “fiscal” and substituted “proceeds of the sale of items produced by the division” for “proceeds of the labor of the prisoners at the Department of Correction or penal institutions of this state”; added (a)(4); in (b)(1), substituted “report” for “statement”, substituted “the Director of the Department of Correction” for “the manager or authorities having charge of penal institutions to be just and true”, substituted “the director within ninety (90) days” for “the manager or authorities having charge within thirty (30) days”, and inserted “fiscal”; added (b)(2); and made stylistic changes.

12-30-211. Rules.

The Board of Corrections shall have power and authority to prepare and promulgate rules which are necessary to give effect to the provisions of this subchapter with respect to matters of administration and procedure respecting them.

History. Acts 1967, No. 473, § 11; A.S.A. 1947, § 46-244; Acts 2019, No. 315, § 908.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in the section heading and in the text.

12-30-212. Auditor of State bound by voucher or warrant.

No voucher, certificate, or warrant issued on the Auditor of State by any office, department, institution, or agency shall be questioned by the Auditor of State or by the Treasurer of State on the grounds that this subchapter has not been complied with by the office, department, institution, or agency.

History. Acts 1967, No. 473, § 6; A.S.A. 1947, § 46-239.

12-30-213. Intentional violations.

If an intentional violation of this subchapter by any office, department, institution, or agency continues, after notice from the Governor to desist, then the intentional violation shall constitute a malfeasance in office and shall subject the person or persons responsible for this violation to suspension or removal from office.

History. Acts 1967, No. 473, § 6; A.S.A. 1947, § 46-239.

12-30-214. Appropriations — Contracts.

  1. Incident to the employment of prisoners as provided in this subchapter, the Board of Corrections is authorized to:
    1. Erect buildings;
    2. Purchase, install, or replace equipment;
    3. Procure tools, supplies, and materials;
    4. Employ personnel; and
    5. Otherwise defray necessary expenses.
    1. To further aid the purposes in subsection (a) of this section, the board is empowered to enter into contracts and agreements with any person or persons upon a self-liquidating basis respecting the acquisition and purchase of any equipment, tools, supplies, and materials to the end that they may be paid for over a period of not exceeding ten (10) years.
    2. The aggregate amount of the purchases or acquisitions are not to exceed five hundred thousand dollars ($500,000) unless specifically approved by the Governor with the amounts to be payable solely out of the revenues derived from the activities authorized by this subchapter.
  2. Nothing in this section shall be construed or interpreted to authorize or permit the incurring of a state debt of any kind or nature as contemplated by the Arkansas Constitution in relation to the debt.

History. Acts 1967, No. 473, § 12; A.S.A. 1947, § 46-245.

Case Notes

Repeal by Implication.

The effect of the appropriation in Acts 1977, No. 713, in transferring general revenues to the Prison Industry Account, was to repeal by implication the provision in this section requiring that purchases be payable solely out of revenues derived from the industry since, if two legislative acts relating to the same subject are in conflict with each other, the later act controls. Wells v. Heath, 274 Ark. 45, 622 S.W.2d 163 (1981).

Cited: Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980).

12-30-215. Purchase for construction or operation of prison.

Any contractor or subcontractor who has entered into a contract with or for the benefit of a state board, state agency, or state-supported institution of higher education for constructing, equipping, or operating, in whole or in part, any facility of the board, agency, or institution may purchase goods produced by the Division of Correction and the Division of Community Correction for use in the performance of the contract.

History. Acts 1997, No. 877, § 1; 1999, No. 145, § 1; 2019, No. 910, § 822.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction”.

Subchapter 3 — Farms

Publisher's Notes. Acts 1991, No. 343, § 6, provided:

“The Department of Corrections Farm Advisory Board created under Arkansas Code § 12-30-302 is abolished”.

Effective Dates. Acts 1933, No. 30, § 38: Feb. 14, 1933. Emergency clause provided: “It having been ascertained that the present method of operating the State Penitentiary, penitentiary farms and other state penal institutions, is expensive and cumbersome and that the situation should be remedied as quickly as possible in order to save the taxpayers of Arkansas huge sums of money and to increase the efficiency of the penal institutions, an emergency is declared to exist and this act being necessary for the public peace, health, and safety, an emergency is declared to exist and this act shall be in force from and after its passage and approval.”

Acts 1968 (1st Ex. Sess.), No. 50, § 46: Mar. 1, 1968. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order better to effectuate the rehabilitation of persons convicted of crime and to make possible their return as useful members of the community, and that the immediate passage of this act is necessary to establish a Department of Correction to effectuate such rehabilitation. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after March 1, 1968.”

Acts 1987, No. 953, § 31: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the Seventy-Sixth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two year period; that the effectiveness of this Act on July 1, 1987 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1987 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1987.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-30-301. Farming and livestock activities.

  1. The Division of Correction shall make maximum utilization of the farm lands of the various institutions of the division through the use of modern agricultural machinery, equipment, and technology in producing crops and livestock for use in feeding prisoners and for sale on the market to produce income for the maintenance and operation of the institutions of the division.
  2. The Director of the Division of Correction, with the approval of the Board of Corrections, shall promulgate necessary rules for the operation of the farming and livestock activities of the various institutions of the division, the employment of personnel, the assignment of inmate labor, and other activities as may be reasonably necessary to accomplish the purposes as provided in this section.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 18; A.S.A. 1947, § 46-219.1; Acts 2019, No. 315, § 909; 2019, No. 910, § 823.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (b).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “division” for “department” throughout the section.

12-30-302. [Repealed.]

Publisher's Notes. This section, concerning the Department of Correction Farm Advisory Board, was repealed by Acts 1991, No. 343, § 6. The section was derived from Acts 1983, No. 841, §§ 1-4; A.S.A. 1947, § 46-254 — 46-257.

Acts 1991, No. 343, § 6, provided:

“The Department of Corrections Farm Advisory Board created under Arkansas Code § 12-30-302 is abolished.”

12-30-303. Cooperation of Cooperative Extension Service.

It shall be the duty of the University of Arkansas Cooperative Extension Service to cooperate with the Director of the Division of Correction to the end that proper crops may be planted to the best advantage and proper methods of soil treatment may be utilized and proper methods of canning and preserving may be used to the best advantage.

History. Acts 1933, No. 30, § 23; Pope's Dig., § 12690; A.S.A. 1947, § 46-216; Acts 2019, No. 910, § 824.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction”.

12-30-304. Products — Purchase by state institutions.

  1. It shall be the duty of the various state institutions to purchase, as far as possible, products grown or produced by the state upon its Division of Correction and other farms, giving the state preference wherever possible.
    1. Sales shall be made at prevailing market prices and all proceeds thereof shall be deposited with the Treasurer of State to the credit of the Division of Correction Farm Fund.
    2. However, the Secretary of the Department of Finance and Administration, by proper bookkeeping entries, may charge the institution so purchasing and credit the Division of Correction account with such amount.

History. Acts 1933, No. 30, § 22; Pope's Dig., § 12667; A.S.A. 1947, § 46-219; Acts 2019, No. 910, § 3376.

A.C.R.C. Notes. This section may be affected by the Prison-Made Goods Act of 1967, § 12-30-201 et seq.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a), (b)(1), and (b)(2); and substituted “Secretary of the Department of Finance and Administration” for “Director of the Department of Finance and Administration” in (b)(2).

12-30-305. Sales by director.

  1. The Director of the Division of Correction, by and with the consent and approval of the Board of Corrections, shall make all sales of commodities and articles produced and offered for sale by the various penal institutions under his or her supervision.
  2. The director shall keep a complete and detailed record of all sales and shall immediately deposit all moneys received therefrom with the Treasurer of State to the credit of the Penal Institution Fund.
  3. The director shall give a bond to be approved by the board as the board may require for the performance of the duties imposed under this section.

History. Acts 1933, No. 30, § 35; Pope's Dig., § 12702; A.S.A. 1947, § 46-222; Acts 2019, No. 910, § 825.

A.C.R.C. Notes. The operation of subsection (c) of this section was suspended by adoption of a self-insured fidelity bond program for public officers, officials and employees, effective July 20, 1987, pursuant to § 21-2-701 et seq. The subsection may again become effective upon cessation of coverage under that program. See § 21-2-703.

This section may be affected by the Prison-Made Goods Act of 1967, § 12-30-201 et seq.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a).

12-30-306. Purchases, expenditures, and sales — Compliance with laws.

  1. All purchases for or in behalf of the Division of Correction and its various institutions shall be in strict compliance with the state purchasing laws and applicable rules promulgated thereunder.
  2. All expenditures of funds appropriated for the division shall be in accordance with the General Accounting and Budgetary Procedures Law, § 19-4-101 et seq., and other applicable fiscal laws of this state governing expenditure of state funds.
  3. All sales of farm products, livestock, or other products produced in connection with the agriculture and livestock activities at the respective institutions of the division shall be in accordance with the applicable laws of this state governing the advertising for bids and awarding of contracts for the sales.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 17; A.S.A. 1947, § 46-220.1; Acts 2019, No. 315, § 910; 2019, No. 910, § 826.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (a).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” in (a); and substituted “division” for “department” in (b) and (c).

12-30-307. Payment for food used by division.

  1. The Division of Correction may make payment from the Division of Correction Inmate Care and Custody Fund Account to the Division of Correction Farm Fund in an amount not to exceed fifty cents (50¢) on each dollar's worth of food produced on the division farm for consumption in the Inmate Care and Custody Program.
  2. The division shall keep appropriate records reflecting farm production and the value of farm-produced products utilized in the Inmate Care and Custody Program and shall keep records of current market values in support of any such payments.
  3. In no event shall the amount received under this section, when combined with any loans forgiven under provisions of other laws, exceed the value of the farm products utilized by the Inmate Care and Custody Program.

History. Acts 1987, No. 953, § 25; 2019, No. 910, § 827.

A.C.R.C. Notes. Former § 12-30-307, concerning payment for food used by Department of Corrections, is deemed to be superseded by this section. The former section was derived from Acts 1985, No. 648, § 24.

Amendments. The 2019 amendment, in (a), substituted “Division of Correction” for “Department of Correction”, “Division of Correction Inmate Care and Custody Fund Account” for “Department of Correction Inmate Care and Custody Fund Account”, “Division of Correction Farm Fund” for “Department of Correction Farm Fund”, and “division” for “department”; and substituted “division” for “department” in (b).

Cross References. State General Government Fund, § 19-5-302.

12-30-308. Lease or rental of land.

  1. The Board of Corrections, in its discretion and with the Governor's approval, may cease or abandon the cultivation of any land now owned by the state and under the jurisdiction of the board and may rent or lease the land not cultivated, or abandoned and not needed in the proper operation of the penal system of this state, if they deem the action expedient.
  2. In its discretion and with the Governor's approval, the board may rent or lease additional lands for the planting and cultivation of crops by inmates.

History. Acts 1933, No. 30, § 33; Pope's Dig., § 12700; A.S.A. 1947, § 46-217; 2013, No. 294, § 1; 2013, No. 295, § 6; 2013, No. 1277, § 4.

Amendments. The 2013 amendment by No. 294 deleted (b)(2).

The 2013 amendment by No. 295 substituted “inmates” for “convicts” in (b)(1).

The 2013 amendment by No. 1277 deleted the (b)(1) designation; in (b), deleted “The board” from the beginning, inserted “the board” preceding “may rent”, and substituted “inmates” for “convicts”; and deleted (b)(2).

Subchapter 4 — Work-Study Release

Cross References. Disabled convicts, physician's duties, § 12-29-403.

Physical examinations, assignment to labor, § 12-29-402.

Effective Dates. Acts 1968 (1st Ex. Sess.), No. 50, § 46: Mar. 1, 1968. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order better to effectuate the rehabilitation of persons convicted of crime and to make possible their return as useful members of the community, and that the immediate passage of this act is necessary to establish a Department of Correction to effectuate such rehabilitation. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after March 1, 1968.”

Acts 1971, No. 465, § 3: Mar. 31, 1971. Emergency clause provided: “It has been found and determined by the General Assembly that work-release programs would be of great value, and finds that the immediate passage of this act is necessary to effectuate such programs; therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1977, No. 948, § 27: July 1, 1977. Emergency clause provided: “It is hereby found and determined by the Seventy-First General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1977 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1977 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1977.”

Acts 1981, No. 58, § 7: approved Feb. 12, 1981. Emergency clause provided: “The General Assembly finds that the penal system of the State of Arkansas is in need of immediate reform, in order to better effectuate the rehabilitation of persons convicted of crimes and to make possible their return as useful members of the community, and that the immediate passage of this act is necessary to facilitate these reforms. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage.”

Acts 1983, No. 309, § 5: Mar. 2, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Department of Correction should be encouraged to expand the use of work release programs; and that in order to expand such programs it is necessary to grant the department authority to house inmates outside of Department of Correction units; and that this act is immediately necessary to grant such authority. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 814, § 3: Mar. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Department of Correction should be encouraged to expand the use of work release programs; and that in order to expand such programs it is necessary to grant the department authority to house inmates outside of Department of Correction units; and that this act is immediately necessary to grant such authority. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 953, § 31: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the Seventy-Sixth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two year period; that the effectiveness of this Act on July 1, 1987 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1987 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1987.”

Acts 1991, No. 287, § 5: Feb. 28, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is urgent need for additional space to house inmates of the Department of Correction who are participating in the prerelease and work-release programs of the Department; that the Benton Services Center facilities are suitable for housing such inmates in excess of the number currently authorized by law; that this Act is designed to permit the housing of additional inmates at the Benton Services Center facility and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 1112, § 5: Apr. 9, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that facilities of the Department of Correction are inadequate to house all inmates committed to the custody of the Department of Correction; that it is urgent that the Board of Correction be given authority to take appropriate steps to provide for housing of inmates in facilities other than Department facilities; that this act is designed to accomplish this purpose and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, Nos. 532 and 550, § 13: Mar. 16, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the sentencing policies and standards of the State of Arkansas are in need of immediate reform in order to better provide for a balanced correctional system and to better effectuate the rehabilitation of persons convicted of crimes and to make possible their return as useful members of the community and passage of this act is necessary to facilitate these reforms. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect, unless provided for otherwise herein, from and after its passage and approval.”

Acts 2017, No. 444, § 2: Mar. 9, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that Act 309 inmates are currently a valuable resource for local jails and political subdivisions; that Act 309 inmates should be available for use by local nonprofit organizations; and that this act is immediately necessary because a number of nonprofit entities can immediately benefit from the assistance of Act 309 inmates. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Computation of incarceration time under work release or hardship sentences. 28 A.L.R.4th 1265.

Case Notes

In General.

Arkansas' work release statutes and regulations do not create a protectible liberty interest in participation in work release programs. Mahfouz v. Lockhart, 826 F.2d 791 (8th Cir. 1987).

12-30-401. Work and rehabilitative programs — Work-release programs.

  1. All inmates committed to the Division of Correction for institutional care shall be required to participate in the various work programs to which assigned and may be afforded vocational training and rehabilitative opportunities in accordance with rules and procedures therefor as promulgated by the Director of the Division of Correction with the approval of the Board of Corrections.
  2. The division may institute “work-release” programs under which the inmates selected to participate in the programs may be gainfully employed or attend school outside of the units maintained by the division, under rules promulgated by the director with the approval of the board.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 9; 1971, No. 465, § 1; 1977, No. 482, § 5; 1981, No. 58, § 2; 1983, No. 309, § 1; A.S.A. 1947, § 46-117; Acts 2019, No. 315, § 911; 2019, No. 910, § 828.

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “rules” and made a similar change in (a) and (b).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” twice in (a); and substituted “division” for “department” twice in (b).

Case Notes

Act 814 Participant.

Although the Arkansas legislature's labeling of an Act 814 participant (a work-release participant pursuant to Acts 1983, No. 814, codified as this subchapter) as an “inmate” is not determinative, it does make it reasonable for the Department of Corrections Director, absent authoritative direction to the contrary, to believe that Act 814 status may be more akin to inmate status (deserving of a prison disciplinary hearing before revocation) than to parolee status (deserving of certain other protections before revocation). Jackson v. Lockhart, 7 F.3d 1391 (8th Cir. 1993).

Liberty Interest.

Status in a work-release program is similar to that of parole, and, therefore, the due process clause vests the prisoner with a liberty interest in remaining in the program; accordingly the prisoner is entitled to due process protection for that interest. Edwards v. Lockhart, 908 F.2d 299 (8th Cir. 1990).

12-30-402. Establishment of new work-release centers.

  1. The Community Correction Revolving Fund may borrow from the Budget Stabilization Trust Fund for the establishment of new work-release centers for the Division of Correction.
  2. The loans shall be repaid by the end of the fiscal year in which the loans are made.

History. Acts 1987, No. 953, § 19; 2005, No. 1962, § 50; 2019, No. 910, § 829.

A.C.R.C. Notes. Former § 12-30-402, concerning establishment of new work-release centers, is deemed to be superseded by this section. The former section was derived from Acts 1985, No. 648, § 18.

Amendments. The 2005 amendment inserted the (a) and (b) designations; and in (a) substituted “Community Correction Revolving Fund” for “Community Service Revolving Fund [abolished],” and “may” for “is authorized to.”

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a).

Cross References. Budget Stabilization Trust Fund, § 19-5-501.

Community Correction Revolving Fund, § 19-6-432.

12-30-403. Rules generally.

The Board of Corrections and the Director of the Division of Correction will govern the administration of work-release programs with the promulgation of rules and procedures subject to the continuing review by the Governor, who shall have the right to revise and rescind any such rules and procedures.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 9; 1971, No. 465, § 1; 1977, No. 482, § 5; 1981, No. 58, § 2; 1983, No. 440, § 1; 1983, No. 814, § 1; A.S.A. 1947, § 46-117; Acts 2019, No. 315, § 912.

Amendments. The 2019 amendment deleted “and regulations” following “Rules” in the section heading and made similar changes in the text.

12-30-404. Inmates excepted from program.

  1. No person shall be allowed to participate in any work-release program conducted by or for the Division of Correction if convicted of:
    1. A capital offense;
    2. Murder in the first degree, § 5-10-102;
    3. Rape, § 5-14-103;
    4. Kidnapping, § 5-11-102; or
    5. Aggravated robbery a second or subsequent time, § 5-12-103.
  2. However, this section shall not apply to persons participating in work-release programs on July 20, 1979.

History. Acts 1979, No. 399, § 1; A.S.A. 1947, § 46-117.1; Acts 2019, No. 910, § 830.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in the introductory language of (a).

12-30-405. Contracts for inmate labor.

The Division of Correction may make contractual arrangements for use of inmate labor by the following prioritized list:

  1. Other state departments, divisions, and agencies;
  2. Counties, cities, and school districts; and
  3. Civic organizations, other nonprofit organizations, and private citizens, including, but not limited to, those responsible for the preservation of natural resources or other public works.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 9; 1971, No. 465, § 1; 1977, No. 482, § 5; 1981, No. 58, § 2; 1983, No. 309, § 1; 1983, No. 440, § 1; 1983, No. 814, § 1; A.S.A. 1947, § 46-117; Acts 2019, No. 910, § 831.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in the introductory language; and inserted “divisions” in (1).

Cross References. Road work by inmates, § 27-66-601.

12-30-406. Allocation of earnings — Inmate's funds.

  1. Under any work-release program, earnings by the inmate shall be paid directly to the Division of Correction and applied as follows:
    1. The division shall retain an amount to be established by the Director of the Division of Correction which will reasonably compensate the division for the cost of feeding, housing, and supervising the inmate;
    2. The division shall determine if the inmate has persons dependent upon him or her for their support and may remit to such persons that portion of the earnings which the director considers reasonable;
      1. The division shall determine if the inmate has created victims of his or her criminal conduct who are entitled to restitution or reparations for physical injury or loss of or damage to property and may remit to the victim that portion of the earnings which the director considers reasonable.
      2. However, in no case shall the portion of the earnings remitted for restitution be in excess of twenty-five percent (25%) of the inmate's income remaining after deduction for the cost of care, custody, and family support provided for in subdivisions (a)(1) and (2) of this section.
      3. The names and addresses of victims and the amount of restitution to be paid shall be provided to the director by certificate of the trial court in which the inmate was convicted; and
    3. The balance shall be deposited to the account of the inmate.
  2. Inmates may be required to contribute to the support of their dependents who may be receiving public assistance during the period of their commitment if funds credited to them are adequate for that purpose provided that all inmates participating in the work-study release programs shall continue to be housed at a division institution.
  3. The division shall promulgate rules governing the possession of or use of money by inmates and may prohibit the possession of money by inmates and may establish a system for the custody of all funds belonging to inmates, for the balance of such fund period.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 9; 1971, No. 465, § 1; 1977, No. 482, § 5; 1981, No. 58, § 2; 1983, No. 309, § 1; 1983, No. 440, § 1; 1983, No. 814, § 1; A.S.A. 1947, § 46-117; Acts 2019, No. 315, § 913.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (c).

Cross References. Cash in possession of inmate; confiscation, § 12-29-108.

12-30-407. Housing of participants.

      1. The Board of Corrections may promulgate rules to allow the proper classification of inmates to be released to the county sheriffs of approved jail facilities or chiefs of police or other authorized law enforcement officers of city-operated approved jail facilities or community correction centers outside the Division of Correction.
        1. Inmates shall be interviewed to develop a classification of each inmate's skills, work experiences, job background, and education.
        2. Inmates shall work at jobs under this section that directly benefit approved jail facilities or a political subdivision, or may assist a political subdivision in supporting or working with a nonprofit organization with a chapter, committee, or other governing body that is based in the county, that are related to a particular inmate's background classification, and in which the inmates are under supervision at all times.
        1. County sheriffs, chiefs of police, or other authorized law enforcement officers of approved jail facilities may request assignment of inmates to their approved jail facilities to perform particular jobs for the approved jail facilities or for a political subdivision, or to assist a political subdivision in supporting or working with a nonprofit organization with a chapter, committee, or other governing body that is based in the county, when the jobs or assistance are in a particular area of need of the approved jail facilities, political subdivision, or nonprofit organization with a chapter, committee, or other governing body that is based in the county.
        2. The division shall review the requests and shall submit a list of inmates with appropriate skills or backgrounds for the particular job needs of the approved jail facility, political subdivision, or nonprofit organization with a chapter, committee, or other governing body that is based in the county that is being provided assistance by a political subdivision, in accordance with the division's classification of inmates' skills and backgrounds.
        3. County sheriffs, chiefs of police, or other authorized law enforcement officers shall choose inmates from the submitted list who are appropriate for the needs of the approved jail facilities, political subdivision, or nonprofit organization with a chapter, committee, or other governing body that is based in the county that is being provided assistance by a political subdivision.
      1. County sheriffs, chiefs of police, or other authorized law enforcement officers of approved jail facilities shall not request the assignment of a particular inmate to an approved jail facility, political subdivision, or nonprofit organization with a chapter, committee, or other governing body that is based in the county, and may refuse the assignment of a particular inmate.
      1. An inmate shall not be released to a county sheriff, chief of police, or other authorized law enforcement officer of an approved jail facility under this section until notification of the release is first sent to the county sheriff of the county from which the inmate was tried and convicted, the prosecuting attorney's office that prosecuted the inmate, and, upon a written request, to the victim or victim's family.
      2. Notification of the victim or victim's family shall be done by mail to the last known address supplied to the division in accordance with division policies.
      1. Inmates released under this section shall be entitled to credit on their sentences under the meritorious classification system of the division.
      2. However, no inmate shall be eligible to be released to the county sheriff, chief of police, or other authorized law enforcement officer of an approved jail facility unless the inmate is within forty-five (45) months of his or her first parole eligibility date or his or her first post prison transfer eligibility date, unless:
        1. The inmate is returning to the county from which he or she was tried and convicted and the victim or victim's immediate family, if residing in the county from which the inmate was tried and convicted, has been notified of the inmate's return; or
          1. If the inmate is released to a county other than a county from which he or she was tried and convicted, the county sheriff of the county from which he or she was tried and convicted shall be notified as provided in subdivision (a)(3)(A) of this section.
            1. Unless the county sheriff responds within fifteen (15) days of notification that he or she disapproves of the transfer, the inmate may be transferred as provided in this section.
            2. If the county sheriff disapproves of the transfer and an inmate becomes eligible to be released again, the notifications required by subdivision (a)(3) of this section shall be made again.
    1. The number of persons on prerelease, work-release, and other rehabilitative programs that may be housed at the Arkansas Health Center shall not exceed a number appropriate to maintain the security and good order of the center.
    2. However, with the approval of the Department of Human Services State Institutional System Board and the Administrator of the Arkansas Health Center, a maximum number of persons on prerelease, work-release, and other rehabilitative programs to be housed at the center may be established by the Board of Corrections.

History. Acts 1968 (1st Ex. Sess.), No. 50, § 9; 1971, No. 465, § 1; 1977, No. 482, § 5; 1977, No. 948, § 20; 1981, No. 58, § 2; 1983, No. 309, §§ 1, 2; 1983, No. 440, § 1; 1983, No. 814, § 1; A.S.A. 1947, §§ 46-117, 46-117.2, 46-117.3; Acts 1991, No. 287, § 1; 1991, No. 1112, § 1; 1993, No. 532, § 8; 1993, No. 550, § 8; 1995, No. 1188, §§ 1, 2; 1997, No. 115, § 1; 1997, No. 936, § 1; 1997, No. 1271, § 1; 2001, No. 152, § 1; 2001, No. 1402, § 1; 2011, No. 183, § 1; 2017, No. 444, § 1; 2019, No. 910, §§ 832-835.

Amendments. The 2011 amendment, in (b)(1), substituted “prerelease, work-release, and other rehabilitative programs that” for “prerelease and work-release programs of the Department of Correction that” and “a number appropriate to maintain the security and good order of the center” for “two hundred twenty-five (225)”; in (b)(2), substituted “maximum number of persons on prerelease, work-release, and other rehabilitative programs to be” for “maximum of four hundred twenty-five (425) persons on prerelease and work-release programs may be” and added “may be established by the Board of Corrections” at the end.

The 2017 amendment deleted “and regulations” following “rules” in (a)(1)(A); rewrote (a)(1)(B)(ii) and (a)(2); in (a)(3)(A), substituted “a county sheriff, chief of police, or other authorized law enforcement officer of an approved jail facility under this section” for “approved jail facilities” and “that prosecuted” for “who convicted”; substituted “released under this section” for “so released” in (a)(4)(A); substituted “forty-five (45) months” for “thirty (30) months” in the introductory language of (a)(4)(B); and deleted (c).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and similar language throughout (a).

12-30-408. [Repealed.]

Publisher's Notes. This section, concerning meritorious good time, was repealed by Acts 1989, No. 503, § 1. The section was derived from Acts 1968 (1st Ex. Sess.), No. 50, § 9; 1971, No. 465, § 1; 1977, No. 482, § 5; 1981, No. 58, § 2; 1983, No. 440, § 1; A.S.A. 1947, § 46-117.

Subchapter 5 — Privatized Prison-Made Goods

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-30-501. Private sector prison industry enhancement programs.

  1. The Board of Corrections may contract with any private individual, corporation, partnership, or association whereby inmates would assemble, process, fabricate, or repair parts or components for goods or products being manufactured or produced by the private individual or entity.
  2. All contracts executed under this section must comply with federal law and must not result in any significant displacement of employed workers in the private sector.

History. Acts 1995, No. 106, § 1.

12-30-502. Transportation and sale of goods.

  1. Goods produced in whole or in part by inmates of the Division of Correction or the Division of Community Correction participating in private sector prison industry enhancement programs may be transported and sold in the same manner as goods produced by free persons, provided that the inmates participating in the private sector prison industry enhancement programs are paid at least the minimum wage prescribed by state law.
  2. The minimum wage requirement does not apply to hobby and craft items produced by the inmates on their own time and with their own resources or to inmates working in any other prison industries program.

History. Acts 1995, No. 106, § 1; 2015, No. 144, § 1; 2019, No. 910, § 836.

Amendments. The 2015 amendment substituted “inmates of the Department of Correction or the Department of Community Correction” for “Department of Correction inmates” in (a).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a).

12-30-503. Purpose of wages set aside — Rules of director.

  1. An inmate of the Department of Correction or Department of Community Correction who is earning at least minimum wage and is employed under §§ 12-30-501 and 12-30-502 shall have his or her wages set aside in a separate wage fund by the warden or supervisor of the facility in which the inmate is incarcerated.
  2. The Director of the Department of Correction and the Director of the Department of Community Correction shall promulgate rules that:
    1. Protect the inmate's rights to due process;
    2. Provide for hearings as necessary before the Crime Victims Reparations Board; and
    3. Govern the disposition of an inmate's gross monthly wage, minus required payroll deductions and payment of necessary work-related incidental expenses, for the following purposes:
      1. To support the family and dependent relatives of the inmate;
      2. To discharge any legal obligations, including judgments for restitution;
      3. To pay all or a part of the cost of the inmate's board, room, clothing, medical, dental, and other correctional services;
      4. To provide for funds payable to the inmate upon his or her release;
      5. To reimburse the state for the actual value of state property intentionally or willfully and wantonly destroyed by the inmate during his or her incarceration;
      6. To reimburse the state for reasonable costs incurred in returning the inmate to the facility to which he or she was incarcerated in the event of escape; and
      7. To deposit an appropriate amount into the Crime Victims Reparations Revolving Fund.

History. Acts 1995, No. 106, § 1; 2015, No. 144, § 2.

Amendments. The 2015 amendment deleted “and regulations” following “Rules” in the section heading; in (a), substituted “An inmate of” for “A person committed to”, inserted “or Department of Community Correction”, substituted “under” for “pursuant to”, inserted “in a separate wage fund”, and substituted “in which the inmate is incarcerated” for “in a separate wage fund” at the end; in the introductory language of (b), inserted “and the Director of the Department of Community Correction” and substituted “rules that” for “regulations which will”; substituted “an inmate’s” for “a confined person’s” in the introductory language of (b)(3); in (b)(3)(A), substituted “To support the family” for “The support of families” and made similar changes in (b)(3)(B), (E), (F), and (G); substituted “incarceration” for “commitment” in (b)(3)(E); and substituted “was incarcerated” for “is committed” in (b)(3)(F).

Cross References. Crime Victims Reparations Revolving Fund, § 19-5-950.

Chapter 31 Corrections Resources Commission

12-31-101 — 12-31-104. [Repealed.]

Publisher's Notes. Former chapter 31, concerning the Corrections Resources Commission, was repealed by Acts 2005, No. 1962, § 51. The former chapter was derived from the following sources:

12-31-101. Acts 1991, No. 568, § 1; 1991, No. 1169, § 1.

12-31-102. Acts 1991, No. 568, § 1; 1991, No. 1169, § 1; 1997, No. 250, § 72.

12-31-103. Acts 1991, No. 568, § 2; 1991, No. 1169, § 2.

12-31-104. Acts 1991, No. 568, § 3; 1991, No. 1169, § 3.

Chapter 32 Treatment of Female Inmates or Detainees

12-32-101. Definitions.

As used in this chapter:

  1. “Correctional or detention facility” means:
    1. A local or state correctional facility or detention facility that has the power to detain or restrain a person under the laws of the state, including a city jail, county jail, or facility operated by the Division of Correction or the Division of Community Correction; or
    2. A post-incarceration residential reentry facility designed to house a person on parole;
  2. “Detainee” includes a person detained under the immigration laws of the United States;
  3. “Inmate” means any person incarcerated in a correctional or detention facility for any reason;
  4. “Labor” means the period of time before a birth during which contractions are of sufficient frequency, intensity, and duration to bring about effacement and progressive dilation of the cervix;
  5. “Post-partum” means, as determined by the physician of the inmate or detainee, the thirty-day period following delivery of a child; and
    1. “Restraints” means a physical restraint or mechanical device used to control the movement of an inmate's or detainee's body or limbs, including without limitation:
      1. Flex cuffs;
      2. Soft restraints;
      3. Hard metal handcuffs;
      4. A black box;
      5. Chubb cuffs;
      6. Leg irons;
      7. Belly chains;
      8. A security tether or chain;
      9. A convex shield; and
      10. Restraints connecting more than one (1) inmate or detainee.
    2. “Restraints” does not include a door to a room.

History. Acts 2019, No. 566, § 1.

12-32-102. Restraint of pregnant inmate or detainee.

  1. A correctional or detention facility shall not place an inmate or detainee verified to be pregnant, in labor, or in post-partum recovery in restraints unless:
    1. The correctional or detention facility makes a reasonable and individualized determination that the inmate or detainee presents a substantial flight risk; or
    2. An extraordinary medical or security circumstance dictates that the inmate or detainee be restrained to:
      1. Ensure the safety and security of:
        1. The inmate, detainee, or child;
        2. The staff of the correctional or detention facility, or medical facility;
        3. Other inmates or detainees; or
        4. The public; or
      2. Prevent the risk of escape by the inmate or detainee that cannot be reasonably minimized through a safer method than restraints.
    1. If the correctional or detention facility determines that the inmate or detainee is required to be restrained under subsection (a) of this section, the restraints shall be removed if a physician, nurse, or other health professional requests that the inmate or detainee not be restrained.
      1. The physician, nurse, or other health professional providing inmate or detainee obstetric care shall have final decision-making authority on the use of restraints while the inmate or detainee is in labor or delivery.
      2. If the inmate or detainee is not under the care of a physician, nurse, or other health professional, the official at the correctional or detention facility primarily responsible for medical care of inmates or detainees shall have final decision-making authority on the use of restraints and shall consult with a physician, nurse, or other healthcare provider who specializes in obstetrics about the use of restraints on the inmate or detainee.
  2. If restraints are used on a pregnant inmate or detainee under subsection (a) of this section:
      1. The type of restraints shall be the least restrictive type necessary, and the restraints shall be applied in the least restrictive manner necessary.
      2. Leg or waist restraints shall not be used on any inmate or detainee who is in labor.
      3. Leg restraints shall not be used on a pregnant inmate who is not in a wheelchair, bed, or gurney;
    1. The restraints shall always be forward-facing, designed to restrain the person's hands in front of the person to protect the person and others;
    2. Only soft restraints may be used; and
      1. The correctional or detention facility shall make written findings within ten (10) days regarding the substantial flight risk of that inmate or detainee or other extraordinary medical or security circumstance that dictated the inmate or detainee be restrained to ensure the safety and security of the inmate or detainee, the child, staff of the correctional or detention facility, or medical facility, other inmates or detainees, or the public.
      2. The written findings under subdivision (c)(4)(A) of this section shall be maintained by the correctional or detention facility for at least five (5) years and be made available for public inspection, except that information identifying any inmate or detainee or that could lead to the identification of the inmate or detainee shall not be made public.
  3. If restraints are used during labor, the Division of Correction or the Division of Community Correction, as applicable, shall report the use of restraints during labor to the Board of Corrections and to the Attorney General.

History. Acts 2019, No. 566, § 1.

12-32-103. Necessary female prenatal nutrition and hygiene products required.

  1. A correctional or detention facility shall establish a policy for providing:
    1. Necessary prenatal vitamins and nutrition for pregnant inmates and detainees;
    2. A necessary number of hygiene products for female inmates and detainees;
    3. A necessary number of undergarments for female inmates and detainees;
    4. A lower bunk for a pregnant inmate or detainee; and
    5. Unless otherwise provided for by the correctional or detention facility, access for a pregnant inmate or detainee to nonprofit educational programming, such as prenatal care, pregnancy-specific hygiene, and parenting classes.
  2. A policy under this section may be approved annually by the Charitable, Penal and Correctional Institutions Subcommittee of the Legislative Council.

History. Acts 2019, No. 566, § 1.

Chapters 33-40 [Reserved.]

[Reserved.]

Chapter 41 Local Correctional Facilities

Subchapter 1 — General Provisions

A.C.R.C. Notes. Acts 2015, No. 1071, § 34, provided:

“LOCAL GOVERNMENT INMATE COST REPORT. Each calendar year, the Association of Arkansas Counties shall compile and submit a report to the Arkansas Legislative Council, of all costs incurred, excluding construction costs, by local government units housing inmates sentenced to the Department of Correction and Department of Community Correction. The cost report shall be a representative sample of all counties housing and caring for state inmates. The report shall be submitted no later than July 1 of the calendar year immediately following the reporting year.

“The Association of Arkansas Counties in coordination with Legislative Audit shall determine which counties will be included in the sample and shall include a sufficient number of counties from each classification based upon population and each congressional district to ensure a fair representation of costs incurred. Guidelines for preparing this cost report shall be developed by the Division of Legislative Audit in coordination with the Association of Arkansas Counties. The Division of Legislative Audit shall test the accuracy of the information submitted during the routine audit of the applicable county.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2016, No. 266, § 34, provided: “LOCAL GOVERNMENT INMATE COST REPORT. Each calendar year, the Association of Arkansas Counties shall compile and submit a report to the Arkansas Legislative Council, of all costs incurred, excluding construction costs, by local government units housing inmates sentenced to the Department of Correction and Department of Community Correction. The cost report shall be a representative sample of all counties housing and caring for state inmates. The report shall be submitted no later than July 1 of the calendar year immediately following the reporting year.

“The Association of Arkansas Counties in coordination with Legislative Audit shall determine which counties will be included in the sample and shall include a sufficient number of counties from each classification based upon population and each congressional district to ensure a fair representation of costs incurred. Guidelines for preparing this cost report shall be developed by the Division of Legislative Audit in coordination with the Association of Arkansas Counties. The Division of Legislative Audit shall test the accuracy of the information submitted during the routine audit of the applicable county.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Cross References. State correctional facilities, good time allowance, § 12-29-201 et seq.

Effective Dates. Acts 1979, No. 639, § 6: approved Mar. 28, 1979. Emergency clause provided: “The General Assembly finds that there is an immediate need for ‘meritorious good time’ and temporary emergency release of inmates in order to encourage good discipline, good behavior, and efficiency within the county and city jail system. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of public peace, health, and safety shall be in full force and effect from and after the date of its enactment.”

Acts 2015, No. 741, § 6: Jan. 1, 2016.

Acts 2015, No. 895, § 48:

“(a) Sections 11, 12, 13, and 20 of this act are effective on and after September 1, 2015.

“(b) Sections 46 and 47 of this act are effective on and after January 1, 2016.”

Acts 2015, No. 895, § 49: Apr. 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that prison overcrowding is one of the largest problems currently burdening the state both from a public safety and budgetary standpoint; that safe and effective measures are needed to immediately combat this problem; and that this act is immediately necessary because in the interests of public safety and the state budget the Department of Correction, Department of Community Correction, Department of Human Services, and the Parole Board should be allowed to immediately implement these new measures. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-41-101. Good time allowance.

  1. An inmate committed by any court in Arkansas to a county jail or city jail in the State of Arkansas may be entitled to a reduction, to be known as “meritorious good time”, from his or her maximum term of his or her sentence to be served in the county jail or city jail.
    1. Meritorious good time shall be awarded under the rules and regulations promulgated by the county sheriff or chief of police and approved by the county quorum court of the various counties or the city legislative body of the various cities.
    2. Meritorious good time shall be administered by the county sheriff or chief of police, subject to this subchapter, for good discipline, good behavior, work practices, and job responsibilities within the county jail or city jail.

History. Acts 1979, No. 639, §§ 1, 2; A.S.A. 1947, §§ 46-424, 46-425; Acts 2015, No. 738, § 1.

A.C.R.C. Notes. As enacted by Acts 1979, No. 639, § 1, subsection (a) began: “From the effective date of this Act,.” The effective date of Acts 1979, No. 639 was March 28, 1979.

Amendments. The 2015 amendment, in (a), inserted “jail” after “county” and substituted “his or her sentence to be served in the county jail or city jail” for “up to ten (10) days for each month served in the county or city jails maintained in the State of Arkansas by the various counties and municipalities”; and, in (b)(2), substituted “Meritorious good time” for “It”, deleted “the provisions of” preceding “this subchapter”, and inserted “jail” following “county”.

Case Notes

In General.

The authority to grant or deny meritorious good time to a county inmate belongs to the sheriff of the county to whose jail an inmate is committed, not to the judge ordering the commitment. Upton v. State, 68 Ark. App. 84, 4 S.W.3d 510 (1999).

12-41-102. Good time — Classification of inmates.

  1. There is established a classification committee consisting of such persons as the county sheriff or chief of police may designate.
  2. The committee shall meet as often as necessary to classify the inmates of the county jail or city jail into one (1) of three (3) classes according to behavior, good discipline, and job responsibility.
    1. Inmates in Class I shall be allowed to earn a one-day reduction for each day served.
    2. Inmates in Class II shall be allowed to earn a ten-days' reduction for each month served.
    3. Inmates in Class III shall not be entitled to earn meritorious good time.
  3. Inmates of the county jail or city jail may be reclassified as often as the committee deems necessary to carry out the purposes of this subchapter and to maintain good discipline and efficiency at the county or city jail.

History. Acts 1979, No. 639, § 4; A.S.A. 1947, § 46-427; Acts 2015, No. 738, § 2.

Amendments. The 2015 amendment inserted “of the county jail or city jail” in (b); substituted “a one (1) day reduction for each day served” for “ten (10) days’ reduction for each month served” in (c)(1); substituted “ten (10) days’ reduction” for “five (5) days’ reduction” in (c)(2); substituted “Inmates” for “Those” in (c)(2) and (c)(3); inserted “jail” following “county” in (d); and deleted (e).

12-41-103. Good time — Forfeiture and restoration.

  1. All meritorious good time shall be forfeited by the inmate in the event of escape, and all or part of the accrued meritorious good time may be taken away by the county sheriff or chief of police for infraction of rules.
  2. However, in the event of escape, the county sheriff or chief of police may restore all or part of any accrued meritorious good time if the escapee returns to the institution voluntarily, without expense to the county or city, and without any act of violence while a fugitive from the institution.
  3. In other instances, the county sheriff or chief of police may restore lost meritorious good time according to rules approved by the county quorum court or city legislative body.

History. Acts 1979, No. 639, § 3; A.S.A. 1947, § 46-426.

12-41-104. Emergency furloughs.

Under rules prescribed by the county sheriff or chief of police, and approved by the county quorum court or city legislative body, the county sheriff or chief of police may authorize emergency furloughs, under reasonable conditions, for inmates for occasions such as serious illness or death of a member of the inmate's family or other proper emergency.

History. Acts 1979, No. 639, § 5; A.S.A. 1947, § 46-428.

12-41-105. Commissions from prisoner telephone services and profits from prisoner commissary services.

    1. Commissions derived from prisoner telephone services and profits earned from prisoner commissary services provided in the various county and regional detention facilities in the state shall be deposited with the county treasurer of the county in which the county or regional detention facility is located, and the county treasurer shall credit the funds to the county sheriff's office fund.
      1. The county sheriff's office fund is an agency fund defined by the County Financial Management System as a fund used to account for funds held by the county treasurer as an agent for a governmental unit until transferred by check or county court order to the county sheriff or other governmental unit for the intended uses of the funds.
      2. The transfer of funds to the county sheriff or other governmental unit under this subsection is not subject to an appropriation by the quorum court or to the county claims process.
    2. Arkansas Legislative Audit shall review actions described in this subsection for substantial compliance with this section.
    1. Of the commissions and profits deposited into the county sheriff's office fund in each county under subsection (a) of this section, one hundred percent (100%) shall be credited to the county sheriff's office communications facility and equipment fund under § 21-6-307.
    2. Each county sheriff's office shall allocate for the maintenance and operation of the county jail up to seventy-five percent (75%) of the commissions and profits deposited into the county sheriff's office communications facility and equipment fund.
  1. This section does not apply to funds derived from prisoner telephone services or prisoner commissary services provided in Division of Correction facilities or Division of Community Correction facilities or in municipally owned detention facilities or in county detention facilities in counties with a population of one hundred seventy-five thousand (175,000) or more according to the latest federal decennial census.

History. Acts 1995, No. 996, §§ 1, 2; 1997, No. 520, § 1; 1997, No. 1287, § 1; 2015, No. 741, § 1; 2017, No. 250, § 26; 2019, No. 372, § 1; 2019, No. 910, § 837.

Amendments. The 2015 amendment inserted “service profits and prisoner commissary” in the section heading; redesignated and rewrote former (a) as (a)(1); added (a)(2) and (3); in (b)(1), inserted “and profits”, inserted “county” preceding “sheriff's office” twice, substituted “under subsection (a)” for “pursuant to subsection (a)”, and added “under § 21-6-307” at the end; rewrote (b)(2); and, in (c), substituted “This section does not” for “The provisions of this section do not” and inserted “or prisoner commissary services”.

The 2017 amendment inserted “county or regional” before “detention facility” in (a)(1); in (a)(2)(B), substituted “The county sheriff's office fund and the transfer of funds under subdivision (a)(2)(A) of this section are not” for “As an agency fund, the transfer of funds is not”; and, in (a)(3), inserted “actions described in this subsection”.

The 2019 amendment by No. 372 substituted “services and profits from” for “service profits and” in the section heading; inserted “or other governmental unit” in (a)(2)(A); and substituted “The transfer of funds to the county sheriff or other governmental unit under this subsection is not subject” for “The county sheriff's office fund and the transfer of funds under subdivision (a)(2)(A) of this section are not subject” in (a)(2)(B).

The 2019 amendment by No. 910 substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (c).

12-41-106. Medicaid eligibility of an inmate in a local correctional facility.

  1. If an inmate in a local correctional facility receives medical services that meet criteria for Medicaid coverage, the local correctional facility may apply for Medicaid coverage under this section.
    1. The inmate may designate a representative for the purposes of filing a Medicaid application and complying with Medicaid requirements for determining and maintaining eligibility.
    2. However, the local correctional facility having custody of the inmate shall be the authorized representative for purposes of establishing and maintaining Medicaid eligibility under this subsection if:
      1. The inmate does not designate a representative within three (3) business days after request; or
      2. The representative designated under subdivision (b)(1) of this section does not file a Medicaid application within three (3) business days after appointment and request.
  2. An authorized representative under this section:
    1. Shall have access to the information necessary to comply with Medicaid requirements; and
    2. May provide and receive information in connection with establishing and maintaining Medicaid eligibility, including confidential information.
    1. The county sheriff or the keeper of the jail or his or her designee may access information necessary to determine if a Medicaid application has been filed on behalf of the inmate.
    2. Access under subdivision (d)(1) of this section shall be to:
      1. Establish Medicaid eligibility;
      2. Provide healthcare services; or
      3. Pay for healthcare services.
  3. To the extent feasible, the Department of Human Services shall allow an online application for Medicaid coverage and benefits to be submitted up to forty-five (45) days prior to the release of an inmate or offender who is in the custody of the Department of Correction or the Department of Community Correction and who was not previously qualified or previously qualified and subsequently suspended.

History. Acts 2013, No. 1117, § 1; 2015, No. 895, § 13.

A.C.R.C. Notes. Acts 2015, No. 895, § 1, provided: “Legislative intent. It is the intent of the General Assembly to implement wide-ranging reforms to the criminal justice system in order to address prison overcrowding, promote seamless reentry into society, reduce medical costs incurred by the state and local governments, aid law enforcement agencies in fighting crime and keeping the peace, and to enhance public safety.”

Amendments. The 2015 amendment added (e).

12-41-107. Medical services billing to a local correctional facility — Definitions.

  1. As used in this section:
    1. “Healthcare professional” means an individual or entity that is licensed, certified, or otherwise authorized by the laws of this state to administer health care in the ordinary course of the practice of his or her profession or as a function of an entity's administration of the practice of medicine;
    2. “Local correctional facility” means a county jail, a city jail, regional jail, criminal justice center, or county house of correction that is not operated by the Division of Correction, the Division of Community Correction, or a federal correctional agency; and
    3. “Medicaid reimbursement rate” means the prevailing cost paid by the Arkansas Medicaid Program for a particular medical service or treatment established by the Division of Medical Services in the Arkansas Medicaid Program fee schedules for a particular medical service, treatment, or medical code.
  2. A healthcare professional that provides medical service or treatment to a local correctional facility under this chapter for the benefit of an inmate housed in a local correctional facility for which the local correctional facility is responsible for payment shall not charge the local correctional facility more than the Medicaid reimbursement rate for the same or similar medical service or treatment.

History. Acts 2015, No. 895, § 14; 2019, No. 910, § 838.

A.C.R.C. Notes. Acts 2015, No. 895, § 1, provided: “Legislative intent. It is the intent of the General Assembly to implement wide-ranging reforms to the criminal justice system in order to address prison overcrowding, promote seamless reentry into society, reduce medical costs incurred by the state and local governments, aid law enforcement agencies in fighting crime and keeping the peace, and to enhance public safety.”

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “Division of Community Correction” for “Department of Community Correction” in (a)(2).

12-41-108. Behavioral health and risk screening tool — Database entry.

A local correctional facility is encouraged to:

  1. Adopt independently, or in collaboration with other local correctional facilities or nongovernmental law enforcement entities, a screening tool designed to screen inmates or other detainees for a behavioral health impairment, substance abuse issues, and criminogenic risk; and
  2. Utilize the database maintained by the Arkansas Crime Information Center under § 12-12-219 concerning entry of data and information collected from inmates at a local correctional facility.

History. Acts 2017, No. 423, § 12.

Subchapter 2 — Criminal Justice Centers

A.C.R.C. Notes. Texas has enacted legislation contemplated by this subchapter. See Tex. Loc. Gov't. Code § 361.021 et seq.

Cross References. Bi-State Criminal Justice Center Compact, § 12-49-301.

12-41-201. Definitions.

As used in this subchapter:

  1. “Law” means a statute of a state, a written opinion of a court of record, a municipal ordinance, a county quorum court ordinance, or a rule authorized by and lawfully adopted pursuant to a statute; and
  2. “Municipality” means an incorporated city or town.

History. Acts 1981, No. 696, § 1; A.S.A. 1947, § 46-1601.

12-41-202. Authority to contract — Prerequisites.

  1. A county in this state and a municipality in that county, both located on the state line, may contract with an adjoining county and any municipality in that county located on the other side of the state line for the joint construction, financing, operation, and management of a justice center to be located on the state line.
  2. A county and a municipality in this state may contract with a county and a municipality in an adjoining state as provided by subsection (a) of this section and § 12-41-204 only if the other state enacts legislation relating to the establishment of a justice center pursuant to a contract as provided in those sections that:
    1. Provides for joint responsibility of the county sheriffs of the two (2) counties over the operation of a jail, lockup, or other detention facility in the center and persons in custody in the facility or for the hiring of a jailer with those responsibilities;
    2. Provides for the application and enforcement of the law of both states in the manner provided by § 12-41-206;
    3. Provides that a person in custody in the center under Arkansas law may be prosecuted for an offense against Arkansas law without extradition of that person, as provided by § 12-41-208;
    4. Provides that a person in custody in the center under Arkansas law may not be prosecuted for an offense against the law of the other state without extradition of that person or personally served with process in the center for a proceeding in the other state;
    5. Provides that a person summoned to appear in the center under Arkansas law may not be personally served with process in any part of the center for a proceeding in the other state and may be arrested in any part of the center for an offense against Arkansas law and prosecuted for that offense without extradition of the person if the person is physically present in any part of the center or in Arkansas at the time of the prosecution, as provided by § 12-41-209;
    6. Provides that a person summoned to appear in the center under Arkansas law may not be arrested in any part of the center for an offense against the law of the other state;
    7. Provides that center personnel or a peace officer of either state may transfer across the state line in the center a person in custody in the center under the law of either state and may exercise control over that person on both sides of the state line in the center, as provided by § 12-41-208;
    8. Provides that a person in the center who is not confined in the center, taken to the center under arrest, or summoned to appear in the center, may be arrested in any part of the center for an offense against the laws of either state without extradition of that person, and that extradition of a person who was arrested in the center under those circumstances is not required in order for the person to be prosecuted for an offense against the law of either state if the person is physically present in any part of the center or the state of the prosecution at the time of the prosecution, as provided by § 12-41-208;
    9. Authorizes a peace officer of either state, under Arkansas law, to arrest a person in any part of the center for an offense against Arkansas law if a peace officer of Arkansas would be authorized to make that arrest in the part of the center in Arkansas as provided by § 12-41-210; and
    10. Authorizes a peace officer of either state, under the law of the other state, to arrest a person in any part of the center for an offense against the law of the other state if a peace officer of the other state would be authorized to make that arrest in the part of the center in the other state, as provided by § 12-41-210.

History. Acts 1981, No. 696, §§ 2, 9; A.S.A. 1947, §§ 46-1602, 46-1609.

12-41-203. Terms of contract.

  1. The contract must provide that the county sheriffs of the two (2) counties are jointly responsible for operation of any jail, lockup, or other detention facility in the justice center and the custody, care, and treatment of persons in custody in the facility or must provide for the hiring of a jailer with those responsibilities.
  2. The contracting parties may specify in the contract the manner of determining the persons responsible for:
    1. The operation, alteration, maintenance, cleaning, and repair of the facilities;
    2. The employment of center personnel;
    3. The purchase of materials, supplies, tools, and other equipment to be jointly used by offices provided or used by the contracting parties;
    4. The preparing of reports to the governing bodies of the contracting parties;
    5. Joint recordkeeping, communications, or dispatch systems; and
    6. The performance of any other powers or duties relating to operation of the center.
  3. A county and municipality in this state may contract for the center to contain:
    1. Courtrooms and office space needed by county, district, and appellate courts;
    2. Jail, lockup, and other detention facilities;
    3. Federal, county, precinct, and municipal offices for prosecuting attorneys and other personnel as needed;
    4. Adult or juvenile probation offices;
    5. Any other offices that either the county or municipality is separately authorized or required to operate or provide; and
    6. Parking space, dining areas, and other facilities incidental to operation of the center.
  4. The contracting parties may provide in the contract the manner of determining the personnel policies and employment benefit programs for center personnel.

History. Acts 1981, No. 696, §§ 2, 4-6; A.S.A. 1947, §§ 46-1602, 46-1604 — 46-1606; Acts 2003, No. 1185, § 19.

12-41-204. Financing.

  1. The governing body of a municipality or county contracting, as provided by §§ 12-41-202 and 12-41-203, may finance its share of the construction, financing, operation, or management of the justice center by any means that it could finance the type of facilities in the center to be used or provided by the municipality or county.
  2. The contract may take advantage of the availability of federal funds to finance any part of the center.

History. Acts 1981, No. 696, § 3; A.S.A. 1947, § 46-1603.

12-41-205. Use of center by courts.

  1. A circuit court or district court having jurisdiction in the county or municipality in which a part of the justice center is located may maintain offices and courtrooms and hold proceedings at the center.
    1. A court of this state may not hold proceedings in the part of the center located in the other state.
    2. Courts of the other state may hold proceedings in the part of the center in this state if so authorized by the other state.

History. Acts 1981, No. 696, § 2; A.S.A. 1947, § 46-1602.

12-41-206. Determination of applicable law.

    1. Except as otherwise provided by this subchapter, the law of both states regarding rights, duties, liabilities, privileges, and immunities arising from conduct applies to conduct in any part of the justice center.
    2. If, however, it is impossible for a person to conform his or her conduct in the center to the law of both states, that person may choose which state's law governs that conduct.
    3. If a person chooses to conform his or her conduct in the center to the law of the other state, the conflicting law of this state does not apply to that conduct.
  1. The physical plant of the center and equipment and facilities used by personnel of both states employed at the center are constructively present in both states.
  2. Except as provided by subsection (d) of this section, property in any part of the center that is owned by or in the possession of a person in custody or summoned to appear in the center is constructively present in the state under the law of which the person was taken into custody or summoned to appear.
    1. Possession of property that constitutes an offense committed in the center is conduct to which subsection (a) of this section applies.
    2. A person's exercise of a duty in regard to property in the center is conduct to which subsection (a) of this section applies.
  3. Property that is ordered by a court to be produced in the center or that is in the possession of a peace officer or a party to a proceeding for use as evidence before a court holding a proceeding in the center is constructively present in the state of the court.
  4. Property in the center that is not covered by subsection (c), subsection (d), or subsection (e) of this section is constructively present in both states.
    1. The law of a state in which property is constructively present applies to that property to the same extent that such law would apply if the property were actually present in that state.
    2. If property is constructively present in only one (1) state, the law of the state in which the property is not constructively present may be applied to that property only to the extent that such law would apply if the property were actually outside that state.
    1. Except as otherwise provided by this subchapter, the courts of both states have concurrent jurisdiction over the geographic area of both states in the center, but the state in which a prosecution is first instituted for an offense committed in the center retains jurisdiction to apply that state's law to the exclusion of the other state's jurisdiction, unless the prosecution is terminated without jeopardy attaching under the law of the state of the first prosecution.
    2. For the purposes of this subchapter, a prosecution is commenced in this state on the filing of an indictment, information, or complaint as determined by applicable provisions of Arkansas law.

History. Acts 1981, No. 696, § 7; A.S.A. 1947, § 46-1607.

12-41-207. Custody in center.

  1. A person who is in the justice center in the custody of a peace officer or center personnel under Arkansas law:
    1. Is constructively present in Arkansas while that person is in custody in the part of the center in the other state;
    2. May be prosecuted for an offense against Arkansas law without extradition of that person; and
    3. May be personally served in any part of the center for a proceeding in Arkansas.
  2. A person who is in the center in the custody of a peace officer or center personnel under the law of the other state:
    1. Is constructively present in the other state while that person is in custody in the part of the center in Arkansas;
    2. May not be prosecuted for an offense against Arkansas law without extradition of that person; and
    3. May not be personally served with process in any part of the center for a proceeding in Arkansas.

History. Acts 1981, No. 696, § 8; A.S.A. 1947, § 46-1608.

12-41-208. Extradition and transfer.

  1. Arkansas agrees that a person who is in the justice center in the custody of a peace officer or center personnel under the law of the other state may be:
    1. Prosecuted for an offense against the law of the other state without extradition of that person; and
    2. Personally served with process in any part of the center for a proceeding in the other state.
  2. Center personnel or a peace officer of either state may transfer across the state line in the center a person in custody in the center under the law of either state and may exercise control over that person on both sides of the state line in the center.
    1. A person in the center who has not been confined in the center, taken to the center under arrest or summoned to appear in the center, may be arrested in any part of the center for an offense against the law of either state without extradition of that person.
    2. Extradition of a person who was arrested in the center under those circumstances is not required in order to prosecute the person for an offense against the law of either state if the person is physically present in any part of the center or the state of the prosecution at the time of the prosecution.
  3. Notwithstanding any law to the contrary, the Governor of this state may recognize a demand for the extradition of a person charged with a crime in the other state if the demand alleges that any element of the offense occurred in any part of the center.

History. Acts 1981, No. 696, § 8; A.S.A. 1947, § 46-1608.

12-41-209. Service of process.

    1. A person who is summoned to appear in the justice center under Arkansas law:
      1. Is constructively present in Arkansas while that person is appearing under the summons in the part of the center in the other state;
      2. Without extradition, may be arrested in any part of the center for an offense against Arkansas law and prosecuted for that offense if that person is physically present in any part of the center or in Arkansas at the time of the prosecution; and
      3. May be personally served with process in any part of the center for a proceeding in Arkansas.
    2. A person who is summoned to appear in the center under the law of the other state:
      1. Is constructively present in the other state while that person is appearing under the summons in the part of the center in Arkansas;
      2. Without extradition, may not be arrested under Arkansas law in any part of the center for an offense against Arkansas law; and
      3. May not be personally served with process in any part of the center for a proceeding in Arkansas.
    1. Arkansas agrees that a person who is summoned to appear in the center under the law of the other state may be arrested in any part of the center for an offense against the law of the other state and prosecuted for that offense without extradition if that person is physically present in any part of the center or the other state at the time of the prosecution.
    2. Arkansas agrees that a person who is summoned to appear in the center under the law of the other state may be personally served with process in any part of the center for a proceeding in the other state.
    1. If a person in the center is constructively present in one (1) state under this section, the law of the state in which the person is not constructively present may be applied to that person only to the extent that such law would apply if the person were actually outside that state.
    2. However, the law applicable to that person's conduct in the center is governed by § 12-41-206, and whether extradition is required to arrest or prosecute that person for an offense committed in the center is governed by this section.

History. Acts 1981, No. 696, § 8; A.S.A. 1947, § 46-1608.

12-41-210. Right of arrest.

  1. If the other state enacts legislation as provided in § 12-41-202, a peace officer of Arkansas may:
    1. Arrest a person under Arkansas law in the part of the center in the other state for an offense against Arkansas law if that peace officer would be authorized to make that arrest in the part of the center in Arkansas; and
    2. Arrest a person under the law of the other state in any part of the center for an offense against the law of the other state if a peace officer of the other state would be authorized to make that arrest in the part of the center in the other state.
  2. Arkansas agrees that a peace officer of the other state may arrest a person under:
    1. Arkansas law in any part of the center for an offense against Arkansas law if a peace officer of Arkansas would be authorized to make that arrest in the part of the center in Arkansas; and
    2. The law of the other state in the part of the center in Arkansas for an offense against the law of the other state if that peace officer would be authorized to make that arrest in the part of the center in the other state.

History. Acts 1981, No. 696, § 8; A.S.A. 1947, § 46-1608.

Subchapter 3 — County Houses of Correction

Publisher's Notes. This subchapter may be impliedly repealed by subchapter 5 of this chapter.

Cross References. County farm, § 12-42-103.

Effective Dates. Acts 1868, No. 27, § 21: effective on passage.

12-41-301. Purchase of land.

    1. The county courts of the several counties in this state shall purchase a farm or tract of land within the boundaries of the county and provide for the erection on the farm or tract of land a house of correction.
    2. However, the farm or tract of land shall not be purchased unless the taxpayers of each township in the county shall petition the county court to provide for the purchase. No farm shall be purchased unless a majority of all the taxpayers of the county sign the petitions.
    1. The county court may appoint three (3) discreet persons as commissioners, who shall be taxpayers and qualified voters of this state, to select and agree for the purchase of a farm or tract of land as provided in subsection (a) of this section.
    2. When the commissioners have made a selection and agreement concerning the farm or tract of land, they shall report their doings to the county court.
    3. If the court approves the selection and the stipulations of the commissioners concerning the payment for the land, then the court shall provide for the purchase of the land and take from the vendor of the land a good and sufficient deed of conveyance for the use of the county.
    4. The deed of conveyance shall be in such form and shall be taken in such manner as is provided by law in such cases.
  1. The farm or tract of land provided for in this section may be either improved or unimproved land, as the county court may in its discretion elect.
  2. The farm or tract of land provided for in this section shall consist of such number of acres as the county court may in its discretion determine.
  3. When the court determines to purchase the farm or tract of land, the court shall contract for the land on the most favorable terms possible to the county.
  4. The court shall pay for the farm, and for the erection of the house of correction, in the same manner that other public county improvements are paid for.

History. Acts 1868, No. 27, §§ 1-3, 6, p. 84; C. & M. Dig., §§ 1950-1955, 1959; Pope's Dig., §§ 2479-2484, 2488; A.S.A. 1947, §§ 46-601 — 46-603, 46-606.

Publisher's Notes. This section may be affected by § 12-42-103.

12-41-302. Construction of facility.

  1. When any farm or tract of land has been purchased by the county court as provided in § 12-41-301(a), the county court shall cause to be let out to the lowest bidder the contract for building and erecting on the tract of land a house of correction.
  2. The house of correction shall be so constructed as to secure, as nearly as may be, all persons sentenced to confinement therein and shall be composed of such material and of such form and dimensions as the court shall direct.
  3. The house of correction shall possess such means of ventilation and other sanitary arrangements as will promote the health of the prisoners therein confined.

History. Acts 1868, No. 27, §§ 4, 7, p. 84; C. & M. Dig., §§ 1956, 1957, 1960; Pope's Dig., §§ 2485, 2486, 2489; A.S.A. 1947, §§ 46-604, 46-607.

12-41-303. Contracts governed by existing laws.

All contracts, appropriations, and disbursements of money concerning the purchase of the land or farm provided for in § 12-41-301 and the erection of the house of correction shall be made according to and be governed by the laws concerning public county contracts, appropriations, and disbursements.

History. Acts 1868, No. 27, § 5, p. 84; C. & M. Dig., § 1958; Pope's Dig., § 2487; A.S.A. 1947, § 46-605.

12-41-304. Supervision by court.

  1. The county court shall have general supervisory control over the farm and house of correction and shall take means to correct any mismanagement of the facilities.
  2. With the advice of the superintendent, the county court shall prescribe, from time to time, such rules for the government and discipline of prisoners in the house of correction and for the discipline and control of the labor of the prisoner, as the county court shall deem most expedient and wholesome.

History. Acts 1868, No. 27, §§ 11, 14, p. 84; C. & M. Dig., §§ 1966, 1969; Pope's Dig., §§ 2495, 2498; A.S.A. 1947, §§ 46-611, 46-614.

12-41-305. Superintendent.

  1. The county court of any county in which any house of correction shall be erected shall appoint a discreet person, who shall be a qualified elector of this state and who shall be known as the superintendent of the house of correction.
  2. The superintendent shall have charge of the farm or lands attached to the house of correction and shall direct the labor of all persons sentenced to confinement in the house of correction.
  3. The superintendent shall be responsible to the county court for the correct treatment of all prisoners confined in the house of correction and for the faithful enforcement of the rules and discipline.
  4. For neglect of duty or other improper management of the house of correction, the county court may remove the superintendent.
  5. The county court shall determine the compensation of the superintendent.

History. Acts 1868, No. 27, §§ 10, 12, 20, p. 84; C. & M. Dig., §§ 1963-1965, 1967; Pope's Dig., §§ 2492-2494, 2496; A.S.A. 1947, §§ 46-610, 46-612, 46-620.

12-41-306. Commitment to house of correction.

  1. When any house of correction has been erected as provided for in § 12-41-302, all persons who shall be convicted of petit larceny or any other crime cognizable before justices of the peace, and sentenced to imprisonment, shall be sentenced to confinement in the house of correction instead of the county jail.
  2. All persons then confined in the county jail for the crime of petit larceny or for any other crime cognizable before justices of the peace shall be transferred by order of the county court to the house of correction.

History. Acts 1868, No. 27, § 8, p. 84; C. & M. Dig., § 1961; Pope's Dig., § 2490; A.S.A. 1947, § 46-608.

12-41-307. Labor of inmates.

  1. All persons sentenced to confinement in the house of correction shall be compelled to labor on the farm or lands on which the house of correction shall be situated in such manner as is provided for in subsection (c) of this section and for the term of their imprisonment.
  2. Prisoners confined in the house of correction shall labor for such number of hours each day as the county court may determine.
  3. The prisoners shall be compelled to perform any and all such labors as pertain to the clearing, improvement, and cultivation of the farm and garden or to mechanical pursuits.

History. Acts 1868, No. 27, §§ 9, 13, p. 84; C. & M. Dig., §§ 1962, 1968; Pope's Dig., §§ 2491, 2497; A.S.A. 1947, §§ 46-609, 46-613.

12-41-308. Products of labor — Application.

  1. The product of all labor of the prisoners confined in the house of correction shall be applied, under the direction of the county courts, to the payment of the expenses of the persons so confined and such other expenses as may be necessarily incurred in improving and keeping the house and farm in repair.
  2. If the product of labor of persons confined in the house of correction shall not be sufficient to defray the expenses indicated in subsection (a) of this section, then the deficit shall be supplied out of the county treasury in such manner as prisoners in the county jail are now supplied.
  3. If the products of the labor of persons confined in the house of correction shall be more than sufficient to defray the expenses indicated in subsection (a) of this section, then the surplus of such products shall be disposed of under the direction of the county court, and the proceeds thereof shall be paid into the county treasury.

History. Acts 1868, No. 27, §§ 15-17, p. 84; C. & M. Dig., §§ 1970-1972; Pope's Dig., §§ 2499-2501; A.S.A. 1947, §§ 46-615 — 46-617.

Subchapter 4 — City Jails

Cross References. County jail, use by municipality, § 14-55-602.

Effective Dates. Acts 1875, p. 1, § 95: effective on passage.

Acts 1895, No. 72, § 5: effective on passage.

12-41-401. Erection and maintenance.

  1. The city council shall have power to erect, establish, and maintain a city jail, which shall be in the keeping and under the control of the chief of police, under such rules and regulations as the city council may prescribe.
  2. The city council shall provide one (1) or more watch houses or stations and shall also provide suitable rooms for holding the district court.
  3. There shall be provided a separate apartment or ward for females in all city jails in cities of the first class.

History. Acts 1875, No. 1, § 55, p. 1; 1895, No. 72, § 4, p. 94; C. & M. Dig., §§ 7708, 7736; Pope's Dig., §§ 9851, 9932; A.S.A. 1947, §§ 46-701, 46-706.

12-41-402. Food for prisoners.

It shall be the duty of the keeper of the city jail, watch, and station houses to provide all persons confined therein for any offense with necessary food during their confinement, and the cost thereof, not exceeding thirty cents (30¢) per day to each person, shall be taxed as costs in the case and paid to the keeper of the jail, watch, or station house out of the city treasury, on the certificate of the chief of police and approval of the mayor, when audited by the city council.

History. Acts 1875, No. 1, § 55, p. 1; C. & M. Dig., § 7737; Pope's Dig., § 9933; A.S.A. 1947, § 46-702.

12-41-403. Police matron.

  1. In all cities of the first class there shall be elected by the city council each year immediately after the organization thereof, after each annual election, one (1) police matron, who shall be at least twenty-five (25) years of age and a woman of good character and deportment, who shall hold office until her successor is elected and qualified.
  2. The police matron shall be subject to the control of the chief of police and the mayor.
  3. The police matron shall, before entering upon the duties of her office, take the oath of office provided by the Arkansas Constitution for civil officers.
  4. She shall receive for her services such sum as may be prescribed by the ordinances of the city, not less than twenty-five dollars ($25.00) per month, payable as the salaries of other police of the city are paid.
    1. It shall be the duty of the police matron to take supervision of all girls or women who may be imprisoned in the city.
    2. It shall be her duty to examine the persons of such prisoners, and the police matron shall conduct the examination in private, in the absence of men and boys.
    3. She shall have exclusive control of the apartment for female prisoners, and it shall be her duty to keep the apartment in a clean and good sanitary condition.
    4. The police matron shall do and perform all such duties in reference to female prisoners as may be provided by law or the lawful ordinances of such city.

History. Acts 1895, No. 72, §§ 1-4, p. 94; C. & M. Dig., §§ 7707, 7708; Pope's Dig., §§ 9850, 9851; A.S.A. 1947, §§ 46-703 — 46-706.

12-41-404. Expenses of county prisoners held in municipal jail.

  1. The governing bodies in the various municipalities in this state may establish a daily fee to be charged counties for keeping prisoners of counties in the municipal jail.
  2. The fee shall be based upon the reasonable expenses which the municipality incurs in keeping such prisoners in the municipal jail.
  3. Counties whose prisoners are maintained in a municipal jail shall be responsible for paying the fee established.

History. Acts 1981, No. 796, § 2; A.S.A. 1947, § 46-707.

12-41-405. Management of city jail populations.

    1. The chief of police, or his or her designee, may determine if a person convicted and sentenced to the city jail shall serve his or her sentence on electronic monitoring or on weekends if the determination does not conflict with any court orders.
    2. If the chief of police, or his or her designee, determines that a person convicted and sentenced to the city jail shall serve his or her sentence on electronic monitoring or on weekends, an agreement shall be entered into between the chief of police, or his or her designee, and the convicted person outlining the conditions of the sentence.
  1. If the convicted person fails to follow the conditions of the agreement, the chief of police, or his or her designee, may cancel the agreement and return the convicted person to the city jail by any lawful means necessary to serve the sentence.

History. Acts 2005, No. 423, § 2.

Subchapter 5 — County Jails

Publisher's Notes. This subchapter may impliedly repeal subchapter 3 of this chapter.

Cross References. County farm, § 12-42-103.

County jail, use by municipality, § 14-55-602.

Effective Dates. Acts 1877, No. 72, § 2: effective on passage.

Acts 1927, No. 366, § 4: became law without Governor's signature, Mar. 31, 1927. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health, and safety, an emergency is hereby declared to exist for the reason that there is no law, either special or general, now in force regulating the fees for keeping prisoners in Crawford County, hence this act shall be in full force and effect from and after its passage.”

Acts 2007, No. 117, § 2: Feb. 16, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that county jails and regional detention facilities in this state lack sufficient operating funds; that the revenue derived as a result of this act will be used exclusively for the maintenance, operation, and capital expenditures of county jails and regional detention facilities, and that this act is necessary because the immediate collection of booking and administration fees will enable county jails and regional detention facilities to expedite efforts to increase the efficient administration of justice. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-41-501. [Repealed.]

Publisher's Notes. This section, concerning location of county jails, was repealed by Acts 1987, No. 881, § 2. The section was derived from Rev. Stat., ch. 81, § 1; C. & M. Dig., § 6206; Pope's Dig., § 8169; A.S.A. 1947, § 46-401.

12-41-502. Supervision.

The county sheriff of each county in this state shall have the custody, rule, and charge of the jail within his or her county and all prisoners committed in his or her county, and he or she may appoint a jailer for whose conduct he or she shall be responsible.

History. Rev. Stat., ch. 81, § 2; C. & M. Dig., § 6207; Pope's Dig., § 8170; A.S.A. 1947, § 46-402.

Case Notes

Inmate Safety.

Complaint that charged sheriff with violating county jail inmates' constitutional right to reasonably safe conditions during confinement could not be dismissed since it was possible for the inmates to prove that the sheriff had breached his duty to provide a reasonably safe place of confinement imposed by the United States Constitution, this section, and § 12-41-507. Hamilton v. Covington, 445 F. Supp. 195 (W.D. Ark. 1978).

Cited: Cain v. Woodruff County, 89 Ark. 456, 117 S.W. 768 (1909); Clay County v. Ruff, 192 Ark. 150, 90 S.W.2d 474 (1936); Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Gravett v. Villines, 314 Ark. 320, 862 S.W.2d 260 (1993).

12-41-503. Management of local jail populations.

  1. County sheriffs and other keepers or administrators of jails within the State of Arkansas are responsible for managing the populations and operations of their respective facilities in compliance with the laws and the Arkansas Constitution and within the requirements of the United States Constitution.
  2. Neither a county sheriff nor another keeper or administrator of a jail shall refuse to accept any prisoner lawfully arrested or committed within the jurisdiction of the supporting agency of the jail except as necessary to limit prisoner population in compliance with subsection (a) of this section.
    1. A county sheriff or his or her designee may determine if a convicted person sentenced to the county jail shall serve his or her sentence on electronic monitoring, on weekends, or by any other lawful alternative to continual detention in the county jail that rehabilitates the convicted person or benefits the county when this does not conflict with any court orders.
    2. If a county sheriff or his or her designee determines that a convicted person sentenced to the county jail shall serve his or her sentence on electronic monitoring, on weekends, or by any other lawful alternative to continual detention in the county jail that rehabilitates the convicted person or benefits the county, an agreement shall be entered into between the county sheriff or his or her designee and the convicted person outlining the conditions of the sentence.
    3. If the convicted person fails to follow the conditions of the agreement, the county sheriff or his or her designee may cancel the agreement and return the convicted person to the county jail by any lawful means necessary to serve the sentence.
  3. When more than one (1) legal jurisdiction, that is, counties or municipalities, share a common jail, the participating jurisdictions may enter into agreements to share the operational costs of the jail.
  4. When a shared jail is operated and a jurisdiction that is eligible to participate in the shared operation opts not to participate, then, in the event that the jurisdiction has prisoners committed to the shared jail, that jurisdiction may be required to pay fixed per diem charges, not to exceed actual costs, including capital costs, for each prisoner committed or housed in the jail.
  5. An agreement with an agency or a jurisdiction not eligible for participation in a shared jail operation project may be made for the housing of prisoners provided the charges assessed do not exceed the actual costs, including capital costs.
  6. Jails shall accept prisoners of the United States Government provided space and staffing are available and the delivering government agency agrees to pay a per diem charge not to exceed the actual costs, including capital costs.
  7. Nothing in this section prohibits any jurisdiction from entering into a contractual agreement with a private organization for the operation of a jail facility.

History. Acts 1997, No. 1097, § 1; 1999, No. 754, § 1; 2005, No. 423, § 1; 2007, No. 300, § 1; 2009, No. 165, § 14.

Publisher's Notes. Former § 12-41-503, concerning prisoners, was repealed by Acts 1997, No. 1097, § 3. The section was derived from Rev. Stat., ch. 81, § 3; C. & M. Dig., § 6208; Pope's Dig., § 8171; A.S.A. 1947, § 46-403.

Amendments. The 2005 amendment redesignated former (c) as present (c)(1); deleted “in counties with a population of over two hundred fifty thousand (250,000) persons” in (c)(1); and added (c)(2) and (c)(3).

The 2007 amendment inserted “or by any other lawful alternative to continual detention in the county jail that rehabilitates the inmate or benefits the county” in (c)(1) and (c)(2), and made related changes.

The 2009 amendment substituted “rehabilitates the convicted person” for “rehabilitates the inmate” in (c)(1) and (c)(2), and made stylistic changes.

12-41-504. Feeding and keeping prisoners.

The quorum court in each county shall prescribe the method and procedure for feeding and keeping prisoners confined in the county jail and shall provide for payment for food and services.

History. Acts 1977, No. 342, § 1; A.S.A. 1947, § 46-404.1.

Case Notes

Cited: Union County v. Warner Brown Hosp., 297 Ark. 460, 762 S.W.2d 798 (1989).

12-41-505. Expenses and support.

    1. Every person who is committed to the common jail of the county by lawful authority for any criminal offense or misdemeanor, if he or she is convicted, shall pay the expenses in carrying him or her to jail and also for his or her support from the day of his or her initial incarceration for the whole time he or she remains there.
    2. The expenses which accrue shall be paid as directed in the act regulating criminal proceedings.
    1. A person convicted of a felony or a Class A misdemeanor shall be assessed a booking and administration fee of forty dollars ($40.00).
      1. The booking and administration fee described in subdivision (b)(1) of this section shall be assessed upon the conviction of a defendant and included in the judgment of conviction entered by the court.
      2. If a court suspends imposition of sentence on a defendant or places him or her on probation and does not enter a judgment of conviction, the court shall impose the booking and administration fee as a cost.
    2. The booking and administration fee assessed under subdivision (b)(1) of this section shall be deposited into the county treasury by the collecting officer to be credited and used in the following manner:
      1. Ten percent (10%) of each booking and administration fee collected shall be deposited into or credited to the county sheriff's office fund described in § 12-41-105 by the county treasurer, and then transferred by check on a monthly basis using a uniform remittance form provided by the Treasurer of State, to the Treasurer of State for the Law Enforcement Training Fund; and
      2. The remaining funds shall be deposited into or credited to a special revenue fund and used for the maintenance, operation, and capital expenditures of a county jail or regional detention facility and for certificate pay for law enforcement and jailer personnel.
  1. The property of the person shall be subject to the payment of the expenses and the booking and administration fee.

History. Rev. Stat., ch. 81, §§ 5, 7; C. & M. Dig., §§ 6209, 6212; Pope's Dig., §§ 8172, 8175; A.S.A. 1947, §§ 46-404, 46-407; Acts 1999, No. 1128, § 1; 2007, No. 117, § 1; 2019, No. 372, § 2.

Amendments. The 2007 amendment inserted (b) and redesignated former (a) and (b) as (a)(1) and (a)(2); and added “and the booking and administration fee” at the end of (c).

The 2019 amendment, in the introductory language of (a)(1), substituted “is committed” for “may be committed”, and substituted “is convicted” for “shall be convicted”; substituted “forty dollars ($40.00)” for “twenty dollars ($20.00)” in (b)(1); and rewrote (b)(3).

Case Notes

Applicability.

Circuit court did not err in ordering appellant to pay $6,706.22 to a county pursuant to its “pay for stay” ordinance; plain reading of this section, which allowed the county to recoup certain expenses, did not establish that it applied only to those persons incarcerated in the Department of Corrections. Wickham v. State, 2009 Ark. 357, 324 S.W.3d 344 (2009).

Cited: Union County v. Warner Brown Hosp., 297 Ark. 460, 762 S.W.2d 798 (1989).

12-41-506. Expenses of municipal prisoners held in county jails.

    1. In the absence of an agreement on jail costs between a county and all municipalities having law enforcement agencies in the county, the quorum court in a county in this state may by ordinance establish a daily fee to be charged municipalities for keeping prisoners of municipalities in the county jail.
    2. The fee shall be based upon the reasonable expenses which the county incurs in keeping such prisoners in the county jail.
    1. Municipalities whose prisoners are maintained in the county jail shall be responsible for paying the fee established by the quorum court in the county.
    2. When a person is sentenced to a county jail for violating a municipal ordinance, the municipality shall be responsible for paying the fee established by an agreement or ordinance of the quorum court in the county.
    3. Municipalities may appropriate funds to assist the county in the maintenance and operation of the county jail.
    1. Each county sheriff shall bill each municipality monthly for the cost of keeping prisoners in the county jail.
    2. Each county sheriff shall remit to the county treasurer monthly the fees collected under this section, and such fees shall be credited to the county general fund.
  1. Counties shall give priority to in-county municipalities over contracts for out-of-county prisoners.

History. Acts 1981, No. 796, § 1; A.S.A. 1947, § 46-419.1; Acts 1993, No. 516, § 1; 1993, No. 1290, § 1; 1995, No. 555, § 1.

Case Notes

Construction.

In a dispute between a city and a county over the city's payment to the county of fees for incarcerating offenders in the county jail who were arrested by city police, the trial court erred in its interpretation of the term “prisoners of municipalities” in this section as limited to persons detained for violations of municipal ordinances; instead, the term includes offenders city police arrest and deliver to the county jail from intake until (a) charging on a felony, (b) sentencing on a misdemeanor, or (c) release on a municipal-ordinance violation. Miss. Cty. v. City of Blytheville, 2018 Ark. 50, 538 S.W.3d 822 (2018).

Offset.

In a dispute between a city and a county over the city's payment to the county of fees for incarcerating offenders in the county jail who were arrested by city police, the city could claim no offset of jail taxes paid by city residents against fees the city owed the county, because (1) the city had no standing, as the city did not show it was injured by paying the tax, and entities or citizens who paid the tax were not joined, and (2) a credit for a county tax paid by city residents, who were also county residents, was illogical and statutorily unauthorized. Miss. Cty. v. City of Blytheville, 2018 Ark. 50, 538 S.W.3d 822 (2018).

Res Judicata.

In a dispute between a city and a county over the city's payment to the county of fees for incarcerating offenders in the county jail who were arrested by city police, res judicata did not bar the trial court's definition of the term “prisoners of municipalities” in this section, because (1) the interpretation did not bind a city that was not a party to prior litigation, and (2) the public interest exception to res judicata was applicable. Miss. Cty. v. City of Blytheville, 2018 Ark. 50, 538 S.W.3d 822 (2018).

12-41-507. Securing of county jail.

  1. Whenever the county sheriff of any county of this state shall be of the opinion that the jail of his or her county is insufficient to secure the prisoners that may be therein committed, it shall be his or her duty to give notice thereof to the county court.
  2. If the jail cannot be immediately repaired and made safe and secure, the county court may, by an order to be entered on its minutes, direct the county sheriff to employ guards sufficient for the guarding and safe-keeping of the prisoners. However, the guards shall in no instance exceed three (3) persons.
  3. In case the insufficiency in the opinion of the county sheriff shall occur in vacation of the county court, it shall be the duty of the county sheriff to give notice to the county judge of such county and if the jail cannot be immediately repaired and made safe and secure, the county judge may, by an order in writing, direct the county sheriff to employ guards for the purpose, not exceeding the number provided for in subsection (b) of this section, for such length of time as he or she may deem necessary, not exceeding the second day of the actual meeting of the county court at any regular, adjourned, or special term.
  4. A guard shall not be allowed a sum to exceed two dollars ($2.00) for each twenty-four (24) hours.

History. Acts 1877, No. 72, § 1, p. 72; C. & M. Dig., § 6217; Pope's Dig., § 8180; A.S.A. 1947, § 46-412.

Case Notes

Inmate Safety.

Complaint that charged sheriff with violating county jail inmates' constitutional right to reasonably safe conditions during confinement could not be dismissed since it was possible for the inmates to prove that the sheriff breached his duty to provide a reasonably safe place of confinement imposed by the United States Constitution, this section, and § 12-41-502. Hamilton v. Covington, 445 F. Supp. 195 (W.D. Ark. 1978).

Individual quorum court members could be held liable in damages for injuries sustained by inmates of county jail only if they knew or reasonably should have known that county jail inmates have a constitutional right to have a jailer present for all except an insubstantial amount of time and knowingly took actions violative of this right. Hamilton v. Covington, 445 F. Supp. 195 (W.D. Ark. 1978).

No quorum court member or the county judge could be found liable in damages for injuries resulting from a fire in the county jail unless he personally knew that the jail was left completely unattended for more than insubstantial amounts of time or unless the sheriff notified the court of the need for an additional jailer and the individual court member, fully informed, deliberately voted against appropriating the necessary funds, if the funds could have been appropriated or allocated without violating any statutory provision. Hamilton v. Covington, 445 F. Supp. 195 (W.D. Ark. 1978).

12-41-508. Duty of grand jury.

  1. It shall be the duty of the grand jury at each term of the circuit court to visit the jail of their county, to examine into the condition thereof, to inquire into the treatment of the prisoners, and to report thereon to the circuit court.
  2. In their report the grand jury shall recommend improvements as may be necessary to put the jail in complete repair and render it secure.

History. Rev. Stat., ch. 81, § 8; C. & M. Dig., § 6213; Pope's Dig., § 8176; A.S.A. 1947, § 46-408.

Research References

Ark. L. Rev.

Gingerich, The Arkansas Grand Jury, etc., 40 Ark. L. Rev. 55.

Case Notes

Inmate Injuries.

Since the responsibility for the condition of county jails rests with the sheriff under § 12-41-502 and with the grand jury under this section, members of the quorum court could not be found liable in damages for injuries resulting from a fire in the county jail unless they personally knew that the jail was left completely unattended for more than insubstantial amounts of time. Hamilton v. Covington, 445 F. Supp. 195 (W.D. Ark. 1978).

12-41-509. Commitment to jail of another county.

    1. The county sheriff of any county in this state, where there is no jail in his or her county or the jail of the county is insufficient, may commit any person in his or her custody, either on criminal or civil process, to a jail in some other county located in this state, provided the county sheriff of the other county consents to receiving the person in custody.
    2. It shall be the duty of the county sheriff or keeper of the jail of the county to receive the person so committed and keep him or her safely, subject to the order of the circuit court of the county in which the prisoner was committed.
  1. It shall be the duty of the county sheriff committing any person to another county for any criminal offense to notify the circuit court judge of the county in which the prisoner is to be tried of the committing of the person to the jail of the other county. The county sheriff shall transmit to the judge at the same time the cause of the capture and detention of the person.
    1. It shall be the duty of the circuit court judge, at least fifteen (15) days preceding the first day of the next term of the circuit court of the county in which the person is to be tried, to issue a writ of habeas corpus. The writ shall be directed to the county sheriff or keeper of the jail of the county in which the person may be committed, commanding the county sheriff or keeper of the jail to have the body of the person, together with the day and cause of the person's capture and detention, before the circuit court of the proper county for the trial of the offense on the first day of the next term of the circuit court.
    2. It shall be the duty of the county sheriff or jailer to deliver, or cause to be delivered, the prisoner on the day and at the place mentioned in the writ.
    3. Any county sheriff or jailer failing or neglecting to make return of the writ and have there the body of the person, according to the command of the writ, shall be deemed guilty of a contempt and shall be liable to be attached therefor. The county sheriff or jailer shall forfeit to the person or party any sum not exceeding five hundred dollars ($500), to be recovered by the injured party by an action founded on this subchapter.
  2. For committing the person and for executing such writ of habeas corpus, the county sheriff shall be entitled to the same fees as are provided by law for similar services.
    1. In all cases in which a prisoner is committed from another county for a criminal offense under the provisions of this subchapter, the county shall pay the expenses in the same manner as if the commitment had been in the county where the offense was committed.
    2. In civil suits the plaintiff or defendant shall pay the expenses in the same manner as if the imprisonment had taken place in the county where the suit was commenced.

History. Rev. Stat., ch. 81, §§ 17-23; C. & M. Dig., §§ 6218-6224; Pope's Dig., §§ 8181-8187; A.S.A. 1947, §§ 46-413 — 46-419; Acts 1993, No. 456, § 1.

Case Notes

Constitutionality.

The due process clause does not in itself protect a convicted prisoner from transfer between jails in the state prison systems, nor does it protect a pretrial detainee from transfer from one prison to another; however, a detainee's constitutional rights may be infringed where the transfer interferes with his right to assistance of counsel, where the state has created a liberty interest in remaining in a particular facility, or where the nature and duration of the new form of incarceration exceeds the original purpose for which he was detained. Ervin v. Busby, 992 F.2d 147 (8th Cir.), cert. denied, 510 U.S. 879, 114 S. Ct. 220, 126 L. Ed. 2d 176 (1993).

In General.

This section is directory. Hart v. Howard County, 44 Ark. 560 (1884).

Interference with Counsel.

After a transfer, evidence of actual prejudice is necessary to show interference with the right to counsel. Ervin v. Busby, 992 F.2d 147 (8th Cir.), cert. denied, 510 U.S. 879, 114 S. Ct. 220, 126 L. Ed. 2d 176 (1993).

Liability for Expenses.

When a prisoner is taken for safekeeping to the jail of some county not in the same circuit, the county from whose jail he is so taken is liable for his expenses there, including necessary medical attention, to the same extent as if committed to a jail in the same circuit. Hart v. Howard County, 44 Ark. 560 (1884).

Liberty Interest.

This section does not contain mandatory language which limits prison officials' discretion, and thus it does not create a protectable liberty interest. Ervin v. Busby, 992 F.2d 147 (8th Cir.), cert. denied, 510 U.S. 879, 114 S. Ct. 220, 126 L. Ed. 2d 176 (1993).

Cited: Martin v. State, 162 Ark. 282, 257 S.W. 752 (1924).

12-41-510. United States prisoners.

    1. It shall be the duty of the keeper of the jail in each county and of the keeper or warden at the penitentiary walls to receive into his or her custody all persons who may, from time to time, be committed to his or her custody under the authority of the United States.
    2. The keeper of the jail shall safely keep every such prisoner according to the warrant or precept of such commitment until he or she shall be discharged by the due course of the laws of the United States.
  1. The keeper of every jail shall be subject to the same penalties for any neglect or failure of duty provided for in this section as he or she would be subject to by the laws of this state for the like neglect or failure in case of a prisoner committed under the authority of the laws of this state.

History. Rev. Stat., ch. 81, §§ 13-15; C. & M. Dig., §§ 6214-6216; Acts 1927, No. 366, § 3; Pope's Dig., §§ 8177-8179; A.S.A. 1947, §§ 46-409 — 46-411; Acts 1997, No. 1097, § 4.

12-41-511. Imprisonment of county sheriff.

  1. The county sheriff may be imprisoned in the jail of his or her own county.
  2. For the time the county sheriff shall be confined, the county coroner shall have the custody, rule, keeping, and charge of the jail and shall, by himself or herself and his or her securities, be answerable for the faithful discharge of his or her duties in that office.

History. Rev. Stat., ch. 81, § 24; C. & M. Dig., § 6225; Pope's Dig., § 8188; A.S.A. 1947, § 46-420.

Subchapter 6 — County Jail Revenue Bond Act of 1981

Effective Dates. Acts 1981, No. 879, § 16: Mar. 28, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the jail facilities in a number of counties in this state are inadequate or in many instances do not meet the standards for public jails as provided by law and that the immediate passage of this act is necessary to establish a procedure whereby counties, in the manner authorized in this act, may issue county jail and jail facilities revenue bonds to secure funds for construction, reconstruction, improvement, expansion, repair, and equipping of county jails and jail facilities. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

12-41-601. Title.

This subchapter may be referred to and cited as the “County Jail Revenue Bond Act of 1981”.

History. Acts 1981, No. 879, § 1; A.S.A. 1947, § 46-429.

12-41-602. Definitions.

As used in this subchapter:

  1. “Board” means the county jail board established under the provisions of this subchapter;
  2. “Bonds” means bonds and any series of bonds authorized by and issued pursuant to the provisions of this subchapter;
    1. “Construct” means to acquire, construct, reconstruct, remodel, install, and equip any lands, buildings, structures, improvements, or other real, personal, or mixed property useful in connection with the county jail or jail facilities, and to make other necessary expenditures in connection therewith, by such methods and in such manner as may be authorized by law.
    2. “Construct” also includes payment or provision for expenses incidental thereto;
  3. “Expansion” means any additions, extensions, or improvements to the county jail or jail facilities and may include any necessary or appropriate remodeling and improvement to the present jail and its facilities, with appropriate equipment and furnishings, as determined by the board;
  4. “Fees” means the fees authorized in this subchapter to be collected as additional costs in all convictions or any commitments to the county jail in the circuit court, probate division of circuit court, or district courts of the county;
  5. “Jail” means the county jail and jail facilities of the county; and
  6. “Pledged revenues” means all revenues authorized by this subchapter to be pledged for the security and payment of the bonds.

History. Acts 1981, No. 879, § 2; A.S.A. 1947, § 46-430.

12-41-603. Construction.

  1. This subchapter shall be construed liberally.
  2. The enumeration of any object, purpose, power, manner, method, and thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things.

History. Acts 1981, No. 879, § 13; A.S.A. 1947, § 46-441.

12-41-604. Adoption of ordinance.

Any county quorum court desiring to construct or expand county jail and jail facilities in the manner authorized in this subchapter may adopt an ordinance to establish a county jail board and authorize the board to issue revenue bonds to construct or expand the county jail or jail facilities in the manner authorized in this subchapter.

History. Acts 1981, No. 879, § 4; A.S.A. 1947, § 46-432.

12-41-605. County jail boards.

  1. Any county electing to issue county jail revenue bonds under the provisions of this subchapter shall, by ordinance adopted by the quorum court, establish a county jail board consisting of the county judge, the county sheriff, and the county clerk.
  2. The county judge shall serve as chair of the board.
  3. The board is authorized and empowered to:
    1. Construct a county jail and jail facilities or provide for the expansion of the existing county jail or jail facilities on a site or sites selected by the board;
    2. Arrange for the housing of prisoners during the period in which any of the facilities are undergoing construction or expansion;
    3. Construct or cause to be constructed parking facilities to serve the county jail and jail facilities and the public having business therein;
    4. Obtain the necessary funds for accomplishing the board's powers, purposes, and authorities;
    5. Purchase, lease, or rent and receive bequests or donations of or otherwise acquire, sell, trade, or barter any real, personal, or mixed property and convert into money or property any property not needed or which cannot be used in its then current form;
    6. Contract and be contracted with, apply for, receive, accept, and use any moneys and property from the United States Government, any state agency, any state or governmental body or political subdivision, any public or private corporation or organization of any nature, or any individual;
    7. Invest and reinvest any of the board's moneys and securities as authorized by law; and
    8. Take such other action, not inconsistent with law, as may be necessary and desirable to carry out the power, purposes, and authorities set forth in this subchapter and to carry out the intent of this subchapter.
  4. The board is authorized to employ an architect to prepare the lands, specifications, and estimates of costs for the construction or expansion of the county jails and jail facilities and to supervise and inspect such construction.
  5. In addition, the board is authorized to engage and pay professional, technical, and other help it shall deem to be necessary or desirable in assisting in effectively carrying out the powers, purposes, and authorities conferred and set forth in this subchapter.

History. Acts 1981, No. 879, §§ 3, 12; A.S.A. 1947, §§ 46-431, 46-440.

12-41-606. Bonds — Authority to issue.

The county jail board is authorized and empowered to issue bonds, at one (1) time or in series from time to time, and to use the proceeds thereof, together with any other funds, for financing the cost of construction or expansion of the county jail or jail facilities, together with all expenses incidental to and reasonably necessary in connection therewith, the expenses of the issuance of the bonds, the creating and maintenance of reserves to secure the payment of the bonds, if the board deems it necessary or desirable, and for providing for the payment of the interest on the bonds, if necessary or desirable, until sufficient funds are available therefor out of pledged revenues.

History. Acts 1981, No. 879, § 6; A.S.A. 1947, § 46-434.

12-41-607. Bonds — Authorizing resolution.

  1. The bonds shall be authorized by resolution of the county jail board.
  2. The authorizing resolution may contain any terms, covenants, and conditions that are deemed necessary or desirable by the board, including without limitation, those pertaining to:
    1. The creation and maintenance of various funds and reserves;
    2. The nature and extent of the security;
    3. The issuance of additional series of bonds and the priority of lien and pledge in that event; and
    4. The rights, duties, and obligations of the board and of the holders and registered owners of the bonds, all as the board shall determine.
  3. The authorizing resolution may provide for the execution of a trust indenture, with a bank or trust company located within or without the State of Arkansas, containing the terms, covenants, and conditions authorized by this subchapter.

History. Acts 1981, No. 879, § 6; A.S.A. 1947, § 46-434.

12-41-608. Bonds — Contract between parties — Enforcement.

  1. Each authorizing resolution or trust indenture, together with this subchapter and the ordinance of the quorum court acting pursuant to this subchapter, shall constitute a contract by and between the county jail board and the holders and registered holders of the bonds issued pursuant to this subchapter.
  2. The contract and all covenants, agreements, and obligations therein shall be properly performed in strict accordance with the terms and provisions thereof.
  3. The covenants, agreements, and obligations of the board may be enforced by mandamus or other appropriate proceedings at law or in equity.

History. Acts 1981, No. 879, § 9; A.S.A. 1947, § 46-437.

12-41-609. Bonds — Terms and conditions.

  1. As the county jail board shall determine, the bonds may:
    1. Be coupon bonds, payable to bearer, or be registrable as to the principal only, or be registrable as to both principal and interest;
    2. Contain exchange provisions;
    3. Be in a form and denomination as the board determines;
    4. Have such date or dates as the board determines;
    5. Be stated to mature at a time or times as the board determines;
    6. Bear interest payable at times and at rate or rates as the board determines;
    7. Be made payable at places within and without the State of Arkansas;
    8. Be made subject to terms of redemption in advance of maturity at times and at prices as the board determines; and
    9. Contain other terms and conditions as the board determines.
  2. The bonds shall have all the qualities of negotiable instruments under the laws of the State of Arkansas, subject to provisions as to registration of ownerships as set forth in subsection (a) of this section.
  3. It shall be plainly stated on the face of each bond that it has been issued under the provisions of this subchapter and under the provisions of the ordinance of the quorum court authorizing the issuance thereof.

History. Acts 1981, No. 879, §§ 6, 7; A.S.A. 1947, §§ 46-434, 46-435.

12-41-610. Bonds — Sale.

The bonds may be sold in such manner and at such price, including sale at a discount, as the county jail board may accept.

History. Acts 1981, No. 879, § 6; A.S.A. 1947, § 46-434.

12-41-611. Bonds — Coupons — Execution — Seal.

  1. Bonds issued pursuant to this subchapter shall be executed by the chair of the county jail board and the secretary of the board by manual or facsimile signature with at least one (1) manual signature.
  2. The coupons attached to the bonds shall be executed by the facsimile signature of the chair of the board.
  3. In case any of the officers whose signatures appear on the bonds or coupons shall cease to be officers before the delivery of the bonds or coupons, their signature shall, nevertheless, be valid and sufficient for all purposes.
  4. Each bond shall be sealed with the seal of the board.

History. Acts 1981, No. 879, § 6; A.S.A. 1947, § 46-434.

12-41-612. Bonds — Liability on.

  1. Bonds issued pursuant to this subchapter shall be obligations only of the county jail board, and in no event shall they constitute any indebtedness for which the faith and credit of the county issuing the bonds or any of its revenues, or of the state or any of its revenues, as used in Arkansas Constitution, Amendment 20, are pledged.
  2. The bonds shall not be secured by a mortgage or lien on any land, buildings, or property belonging to the county.
  3. No member of the board shall be personally liable on the bonds or for any damages sustained by anyone in connection with any contracts entered into or action taken in carrying out the powers, purposes, or authority of this subchapter or of the ordinance adopted by the quorum court unless he or she shall have acted with a corrupt intent.

History. Acts 1981, No. 879, § 7; A.S.A. 1947, § 46-435.

12-41-613. Bonds — Pledge of revenues — Funds.

  1. The principal, premiums, if any, interest, and trustee's and paying agent's fees in connection with all bonds issued under this subchapter shall be secured by a lien on and pledge of the fee revenues and the gross revenues derived from the fees levied under the provisions of § 12-41-617 [repealed].
  2. Such pledged revenues are specifically declared to be cash funds, restricted in their use and dedicated and to be used solely as provided in this subchapter.
    1. There is created a fund designated “county jail revenue bond fund” to be maintained at a depository as shall be specified by the county jail board. The county jail revenue bond fund shall be a trust fund.
    2. After the issuance of any bonds under this subchapter, the moneys in the county jail revenue bond fund shall be applied solely for the payment of the principal of, premiums, if any, interest on, trustee's and paying agent's fees in connection with the bonds at maturity and at redemption prior to maturity, except moneys that are withdrawn therefrom pursuant to the subsequent provisions of this section, all as shall be specified and subject to the terms and conditions set forth in the authorizing resolution or trust indenture.
  3. The pledged revenue shall not be deposited into the county treasury but, as and when received, shall be deposited into the county jail revenue bond fund.
  4. The principal of, premiums, if any, interest on, and trustee's and paying agent's fees in connection with the bonds shall be payable solely from the moneys in the county jail revenue bond fund and the moneys required by this subchapter to be deposited into the county jail revenue bond fund.
  5. The board is directed to insert appropriate provisions in the authorizing resolution or trust indenture for the investment and reinvestment of moneys in the county jail revenue bond fund in securities selected by the board, and all income derived from such investments shall be and become part of the county jail revenue bond fund.

History. Acts 1981, No. 879, § 8; A.S.A. 1947, § 46-436.

12-41-614. Bonds — Tax exemption.

Bonds issued under the provisions of this subchapter, and the interest thereon, shall be exempt from all state, county, and municipal taxes, and this exemption shall include income, inheritance, and estate taxes.

History. Acts 1981, No. 879, § 10; A.S.A. 1947, § 46-438.

12-41-615. Bonds — Investment by public entities.

  1. Any municipality, or any board, commission, or other governing authority established by ordinance of any municipality, or the governing authorities, respectively, of the local firefighters pension and relief fund and police officer's pension and relief fund of any such municipality or the governing authority of any retirement system created by the General Assembly or any agency in its discretion may invest any of its funds not immediately needed for its purposes in bonds issued under the provisions of this subchapter.
  2. Any bonds issued under the provisions of this subchapter shall be eligible to secure the deposit of public funds.

History. Acts 1981, No. 879, § 11; A.S.A. 1947, § 46-439.

12-41-616. Creation of rights.

This subchapter shall not create any right of any character, and no right of any character shall arise under the provisions of this subchapter, unless and until the bonds authorized by this subchapter, or the initial series, shall have been sold and delivered by the county jail board.

History. Acts 1981, No. 879, § 14; A.S.A. 1947, § 46-442.

12-41-617. [Repealed.]

Publisher's Notes. This section, concerning the county jail revenue bond fund, was repealed by Acts 1995, No. 1256, § 20, as amended by Acts 1995 (1st Ex. Sess.), No. 13, § 4. The section was derived from Acts 1981, No. 879, § 5; 1983, No. 226, § 1; 1985, No. 874, § 1; A.S.A. 1947, § 46-433; Acts 1989, No. 96, § 1; 1991, No. 904, §§ 3, 20.

Subchapter 7 — Jail Boards — Revenue Bonds

Effective Dates. Acts 1983, No. 918, § 16: Mar. 30, 1983. Emergency clause provided: “It is hereby found and determined by the Seventy-Fourth General Assembly that the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of this state, and that increasing the penalty for this dangerous conduct may serve as a deterrent to such behavior. Further, it is found that increased income derived from the levying of such penalties can best be utilized to provide immediate alcohol and drug safety and rehabilitation and treatment programs both to prevent an increase in the use of intoxicating alcoholic beverages and drugs and to rehabilitate persons convicted of related offenses. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after the date of its passage and approval.”

Acts 2003, No. 1772, § 5: Apr. 22, 2003. Emergency clause provided: “It is found and determined by the General Assembly that the counties, municipalities, public instrumentalities and other governmental entities of the State of Arkansas are experiencing severe jail overcrowding, and that existing jail facilities may not be in compliance with applicable state and federal regulations. It is further recognized that funding for jail renovation, improvement, and construction is extremely limited and oftentimes can be funded only through the implementation of new sales taxes, and that the failure to immediately address this problem could result in the possible closure of existing jail facilities, and the release of incarcerants prior to the schedule expiration of their terms. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-41-701. Definitions.

As used in this subchapter:

  1. “Board” means the county jail board, municipal jail board, or public instrumentality jail board, as the case may be, established by ordinance or resolution of the quorum court of the county or the governing body of the municipality or public instrumentality under the provisions of this subchapter;
  2. “Bonds” means bonds, series of bonds, or other evidences of indebtedness authorized by and issued by a board pursuant to the provisions of this subchapter;
    1. “Construct” or “construction” means to acquire, construct, reconstruct, remodel, install, and equip any lands, buildings, structures, improvements, or other real, personal, or mixed property used in connection with a jail and to make other necessary expenditures in connection therewith, by such methods and in such manner as may be authorized by law.
    2. “Construct” or “construction” also includes payment or provision for payment of expenses incidental thereto;
    1. “Expand” or “expansion” means to add, renovate, extend, or improve a jail and may include any necessary or appropriate remodeling or improvement to a present jail and shall include appropriate equipment and furnishings as determined by the board.
    2. “Expand” or “expansion” also includes payment or provision for payment of expenses incidental to expansion;
  3. “Fines” or “fines and penalties” means the fines, penalties, bonds against fines, court costs, filing fees, other court fees, and other sums payable by judicial order, statute, ordinance, or otherwise imposed by law and collected by a county, municipality, or public instrumentality or otherwise;
    1. “Jail” means a county jail or jails and jail facilities of a county, a municipal jail or jails and jail facilities of a municipality, or a public instrumentality jail or jails and jail facilities of a public instrumentality in this state.
    2. “Jail” also means a jail constructed and operated under a cooperative agreement between any two (2) or more municipalities, counties, or public instrumentalities in any combination for the housing of their respective misdemeanant incarcerants and other incarcerants awaiting trial;
  4. “Jail facilities” means all property of any nature, whether personal or real, tangible or intangible, related in any way to a jail and its functions;
  5. “Municipality” means any city of the first class or city of the second class and any incorporated town in this state;
  6. “Pledged revenues” means all revenues allocated by this subchapter to be pledged for the security and payment of the bonds; and
  7. “Public instrumentality” means any public facilities board, regardless of whether formed by county or municipal ordinance, and any other governmental or political subdivision of this state.

History. Acts 1983, No. 918, § 6; A.S.A. 1947, § 46-451; Acts 2001, No. 561, § 32; 2003, No. 1772, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

12-41-702. Method supplemental.

The method set forth in this subchapter for construction, renovation, or expansion of jails shall be supplemental to any other method authorized by law for construction, renovation, or expansion of jails.

History. Acts 1983, No. 918, § 5; A.S.A. 1947, § 46-452; Acts 2003, No. 1772, § 1.

12-41-703. Adoption of ordinance.

Any county quorum court or governing body of a municipality or public instrumentality desiring to construct, renovate, or expand a jail in the manner authorized in this subchapter may adopt an ordinance or resolution to establish a county jail board, municipal jail board, or public instrumentality jail board and to authorize the board to issue revenue bonds to construct, renovate, or expand the jail in the manner authorized in this subchapter.

History. Acts 1983, No. 918, § 8; A.S.A. 1947, § 46-454; Acts 2003, No. 1772, § 1.

12-41-704. Jail boards.

    1. Any county, municipality, or public instrumentality electing to form a county jail board, municipal jail board, or public instrumentality jail board for the purpose of issuing bonds under the provisions of this subchapter, shall, by ordinance or resolution adopted by the county quorum court or by the governing body of the municipality or public instrumentality, establish a board consisting of such members, not fewer than three (3) nor more than seven (7) in number, as provided in the ordinance or resolution.
    2. Any member of the board may be removed for misfeasance, malfeasance, or willful neglect of duty by the county quorum court, governing body of the municipality, or public instrumentality that created the board after reasonable notice and an opportunity for a hearing concerning the alleged grounds for removal.
  1. The county judge of the county shall serve as a member of a board created by the county, and the principal executive officer of the municipality or public instrumentality shall serve as a member of a board created by a municipality or public instrumentality unless the county judge or principal executive officer is removed as provided in this subchapter.
  2. The board is authorized and empowered to:
    1. Construct a jail or provide for the renovation or expansion of an existing jail on a site or sites selected by the board;
    2. Enter into contracts with the United States Government, any state agency, state or governmental body or political subdivision, public or private corporation or other legal entity or any individual or a combination of any of these entities and individuals to provide for the design, financing, construction, expansion, operation, and maintenance of all or any portion of a jail or for any combination of the services and functions;
    3. Arrange for the housing of incarcerants during the period in which any such jail is undergoing construction, renovation, or expansion;
    4. Construct or cause to be constructed parking facilities to serve the jail and the public having business therein;
    5. Obtain the necessary funds for accomplishing its powers, purposes, and authority;
    6. Purchase, lease, or rent and receive bequests or donations of or otherwise acquire, sell, trade, or barter any real, personal, or mixed property and convert into money or any property not needed or which cannot be used in its then current form;
    7. Contract and be contracted with, apply for, receive, accept, and use any moneys and property from the United States Government, any state agency, any state or governmental body or political subdivision, any public or private corporation of any nature, or any individual;
    8. Enter into long-term or short-term contracts with counties, municipalities, public instrumentalities, the State of Arkansas, agencies of the federal government, and other public entities under which the board shall provide nightly or other periodic housing of these entities' misdemeanant or other incarcerants for fee compensation or other consideration;
    9. Offer incarcerants the option in lieu of incarceration to participate in community service programs and all other forms of voluntary labor;
    10. To the extent allowed under applicable law, enter into contracts with third party governmental entities under which the board may receive compensation for supplying to those entities with the voluntary services and labor of incarcerants;
    11. Enter into jail management contracts with third party governmental or private organizations upon terms and conditions that the board determines appropriate;
    12. Pledge to the repayment of debt any and all contract receivables and revenues of any kind that are payable to the board;
    13. Mortgage real property and grant a security interest in all personal, intangible, or other property, including all contract receivables and revenues of any kind that are payable to the board;
    14. Borrow funds that shall be available for board use with an obligation to repay;
    15. Invest and reinvest any of its moneys and securities as authorized by law; and
    16. Take such other action not inconsistent with law as may be necessary and desirable to carry out the power, purposes, and authority set forth in this subchapter and to carry out the intent of this subchapter.

History. Acts 1983, No. 918, § 7; A.S.A. 1947, § 46-453; Acts 2003, No. 1772, § 1.

12-41-705. Bonds — Authority to issue.

The county jail board, municipal jail board, or public instrumentality jail board is authorized and empowered to issue bonds at one (1) time or in series from time to time and to use the proceeds thereof, together with any other funds, for financing the cost of construction, renovation, expansion of the jail together with all expenses incidental to and reasonably necessary in connection therewith, the expenses of the issuance of the bonds, the creating and maintenance of reserves to secure the payment of the bonds if the board deems it necessary or desirable, and for providing for the payment of the interest on the bonds if necessary or desirable until sufficient funds are available therefor out of pledged revenues.

History. Acts 1983, No. 918, § 10; A.S.A. 1947, § 46-456; Acts 2003, No. 1772, § 1.

12-41-706. Bonds — Authorizing resolution.

  1. The bonds shall be authorized by resolution of the county jail board, municipal jail board, or public instrumentality jail board.
  2. The authorizing resolution, as the board shall determine, may contain any terms, covenants, and conditions that are deemed necessary or desirable by the board including, without limitation, those pertaining to the:
    1. Creation and maintenance of various funds and reserves;
    2. Nature and extent of the security;
    3. Issuance of additional series of bonds and the priority of lien and pledge in that event; and
    4. Rights, duties, and obligations of the board and of the holders and registered owners of the bonds.
  3. The authorizing resolution may provide for the execution of a trust indenture with a bank or trust company located within or outside the State of Arkansas containing appropriate terms, covenants, and conditions.

History. Acts 1983, No. 918, § 10; A.S.A. 1947, § 46-456; Acts 2003, No. 1772, § 1.

12-41-707. Bonds — Contract between parties — Enforcement.

  1. Together with this subchapter and the ordinance or resolution of the quorum court or the governing body of the municipality or public instrumentality acting pursuant to this subchapter, each authorizing resolution or trust indenture shall constitute a contract by and between the county jail board, municipal jail board, or public instrumentality jail board and the holders and registered owners of the bonds issued pursuant to this subchapter.
  2. The contract and all covenants, agreements, and obligations therein shall be properly performed in strict accordance with the terms and provisions thereof.
  3. The covenants, agreements, and obligations of the bonds may be enforced by mandamus or other appropriate proceedings at law or in equity.

History. Acts 1983, No. 918, § 13; A.S.A. 1947, § 46-459; Acts 2003, No. 1772, § 1.

12-41-708. Bonds — Terms and conditions.

  1. As the county jail board, municipal jail board, or public instrumentality jail board shall determine, the bonds:
    1. Shall be registrable as to both principal and interest;
    2. May contain exchange provisions;
    3. May be in a form and denomination as the board determines;
    4. May be payable on a date or dates as the board determines;
    5. May be stated to mature at a time or times as the board determines;
    6. May bear interest payable at such times and at such rate or rates as the board determines;
    7. May be made payable at places within and without the State of Arkansas;
    8. May be made subject to terms of redemption in advance of maturity at times and at prices as the board determines; and
    9. May contain other terms and conditions as the board determines.
  2. The bonds shall have all the qualities of negotiable instruments under the laws of the State of Arkansas, subject to provisions as to registration or ownerships as set forth in subsection (a) of this section.
  3. It shall be plainly stated on the face of each bond that it has been issued under the provisions of this subchapter and under the provisions of the resolution of the board authorizing the issuance thereof.

History. Acts 1983, No. 918, §§ 10, 11; A.S.A. 1947, §§ 46-456, 46-457; Acts 2003, No. 1772, § 1.

12-41-709. Bonds — Sale — Disposition of proceeds.

  1. The bonds may be sold in such manner and at such prices, including sale at discount, as the county jail board, municipal jail board, or public instrumentality jail board may accept.
  2. The proceeds derived from the sale of revenue bonds by the board under the provisions of this subchapter shall be deposited into a board jail fund and shall be used for the purposes of constructing or expanding jails, and for all other expenses incidental to the issuance of the bonds, as authorized in this subchapter.

History. Acts 1983, No. 918, §§ 10, 15; A.S.A. 1947, §§ 46-456, 46-461; Acts 2003, No. 1772, § 1.

12-41-710. Bonds — Coupons — Execution — Seal.

  1. Bonds issued pursuant to this subchapter shall bear the manual or facsimile signature of the presiding officer of the county jail board, municipal jail board, or public instrumentality jail board and the manual authenticating signature of the trustee or paying agent of the bonds if the trustee or paying agent exists.
  2. In case any of the officers whose signatures appear on the bonds shall cease to be officers before delivery of the bonds, their signature shall, nevertheless, be valid and sufficient for all purposes.
  3. Each bond shall be sealed with the seal of the board.

History. Acts 1983, No. 918, § 10; A.S.A. 1947, § 46-456; Acts 2003, No. 1772, § 1.

12-41-711. Bonds — Liability on.

    1. Bonds issued pursuant to this subchapter shall be obligations only of the issuing county jail board, municipal jail board, or public instrumentality jail board.
    2. In no event shall they constitute any indebtedness for which the faith and credit of the county, municipality, or public instrumentality that created the board, any of their respective revenues, or of the State of Arkansas or any of its revenues, as used in Arkansas Constitution, Amendment 20, are pledged except that the fines and penalties described under this subchapter may be pledged.
  1. The bonds shall not be secured by a mortgage or lien on any land, buildings, or property belonging to the county, municipality, or public instrumentality that created the board but may be secured by the real and personal property owned by the board and all other revenues of whatever nature that are received by the board or otherwise generated as a result of the board's activities.
  2. No member of the board shall be personally liable on the bonds or for any damages sustained by anyone in connection with any contracts entered into or action taken in carrying out the powers, purposes, or authority of this subchapter or of the ordinance or resolution adopted by the quorum court or governing body of the municipality or public instrumentality unless he or she shall have acted with a corrupt intent.

History. Acts 1983, No. 918, § 11; A.S.A. 1947, § 46-457; Acts 2003, No. 1772, § 1.

12-41-712. Bonds — Pledge of revenues — Funds.

    1. The principal, premiums, if any, interest on, and trustees' and paying agents' fees in connection with all bonds issued under this subchapter shall be secured by a lien on and pledge of:
      1. The fee revenues and the gross revenues derived from revenues collected from fines or penalties for convictions of the offenses as defined in this subchapter;
      2. All real property and personal property owned by the county jail board, municipal jail board, or public instrumentality jail board; and
      3. All other collateral identified in the trust indenture pursuant to which the bonds are issued.
    2. The pledged revenues and the principal and interest are specifically declared to be cash funds, restricted in their use and dedication, and to be used solely as provided in this subchapter.
    3. Bonds may additionally be secured and collateralized by:
      1. The board's pledge of contract revenue receivables realized through the execution of contracts with third parties for incarcerant housing;
      2. Income received from supplying third parties with incarcerant services and labor; and
      3. All other revenues and income that the board may realize through its operations that are otherwise expressly pledged and identified in the bonds' trust indenture or authorizing resolution.
  1. There is created a fund designated the jail revenue bond fund, with respect to bonds issued under this subchapter to be maintained at such depository as shall be specified by the board.
  2. The jail revenue fund shall be a trust fund and, after the issuance of any bonds pursuant to this subchapter, the moneys therein shall be applied for the payment of the principal of, premiums, if any, and interest on the bonds, trustees' fees, paying agents' fees, and any other fees in connection with the bonds at maturity and at redemption prior to maturity, except moneys that are withdrawn therefrom pursuant to § 12-41-709(b), all as shall be specified and subject to the terms and conditions set forth in the authorizing resolution or trust indenture.
  3. The pledged revenues shall not be deposited into the county treasury, municipal treasury, or public instrumentality treasury but, when received, shall be deposited into the appropriate jail revenue bond fund.
  4. The principal, premiums, if any, and interest on the bonds and trustees' fees, paying agents' fees, and any other fees in connection with the bonds may be paid from the moneys in the jail revenue bond fund and the moneys required by this subchapter to be deposited into the jail revenue bond fund.
  5. The board is directed to insert appropriate provisions in the authorizing resolution or trust indenture for the investment and reinvestment of moneys in the jail revenue bond fund in securities selected by the board, and all income derived from the investment shall be and become part of the jail revenue bond fund.
  6. Any municipality, county, public instrumentality, or other governmental entity may pledge all or any portion of its fines, penalties, bonds against fines, court costs, filing fees, other court fees, and other sums payable by judicial order, statute, ordinance, or otherwise imposed by law and collected by the entity towards the repayment of any debt issued by a board or any public facilities board operating, owning, or administering a jail facility.

History. Acts 1983, No. 918, § 12; A.S.A. 1947, § 46-458; Acts 2003, No. 1772, § 1.

12-41-713. Bonds — Tax exemption.

Bonds and other evidences of indebtedness issued under the provisions of this subchapter and the interest thereon shall be exempt from all state, county, and municipal taxes, and this exemption shall include income, inheritance, and state taxes.

History. Acts 1983, No. 918, § 13; A.S.A. 1947, § 46-459; Acts 2003, No. 1772, § 1.

12-41-714. Bonds — Investments by public entities.

  1. Any municipality, board, commission, governing authority established by ordinance of any municipality, or governing authorities, respectively, of the local firefighter's pension and relief fund and police officer's pension and relief fund of any such municipality, the governing authority of any retirement system created by the General Assembly, or any agency may invest any of its funds not immediately needed for its purposes in bonds and other evidences of indebtedness issued under the provisions of this subchapter.
  2. Any bonds issued under the provisions of this subchapter shall be eligible to secure the deposit of public funds.

History. Acts 1983, No. 918, § 14; A.S.A. 1947, § 46-460; Acts 2003, No. 1772, § 1.

12-41-715. Fees, costs, etc. — Disposition.

  1. Any county, municipality, or public instrumentality may, by ordinance or resolution, provide that all or any identified portion of the revenues derived by the county, municipality, or public instrumentality from all or any identified portion of the fines or penalties as defined in this subchapter shall be remitted to and deposited by the county treasurer, municipal treasurer, or public instrumentality treasurer into one (1) or more banks doing business in the county, municipality, or county or municipality in which the public instrumentality is primarily located, to the credit of a jail revenue bond fund that may be created in connection with the issuance of debt to be used solely for the purposes as provided in this subchapter.
  2. If any person charged with a felony or misdemeanor for which a fine or penalty, as defined in this subchapter, is imposed shall post bond and forfeit it upon failure to appear on the date set for trial, the entire amount or any identified portion of the bond forfeiture may be deposited into the jail revenue bond fund as provided in this subchapter.
    1. All revenues derived from the fines collected under the provisions of this subchapter are determined to be fee revenues and are declared to be cash funds.
    2. The revenues shall not be deposited into the county treasury, municipal treasury, or public instrumentality treasury but shall be deposited into the bank or banks selected by the county jail board, municipal jail board, or public instrumentality jail board.
  3. The fee revenues as provided in this section shall be collected and applied as provided in this subchapter until the principal, premiums, if any, and interest on bonds issued under this subchapter, with trustees' and paying agents' fees shall be paid or adequate provision made for their payment.

History. Acts 1983, No. 918, § 9; A.S.A. 1947, § 46-455; Acts 2003, No. 1772, § 1.

12-41-716. Use of board jail fund for supervision and transportation of inmates.

In addition to any other purposes for which funds in a county jail board jail fund, municipal jail board jail fund, or public instrumentality jail board jail fund may be used, the funds may be used for the transportation and supervision of inmates assigned to outside work projects or for transporting inmates to a Division of Correction facility, as determined by the board.

History. Acts 1997, No. 643, § 1; 2003, No. 1772, § 1; 2019, No. 910, § 839.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction”.

12-41-717. Contract with governmental entities — Authority to create boards.

  1. Each county, municipality, public instrumentality, and other governmental entity of this state is authorized and empowered, upon ordinance or resolution of the governing body, to enter into long-term or short-term contracts with a county jail board, municipal jail board, or public instrumentality jail board under which the board provides nightly or other periodic housing of the entity's misdemeanants or other incarcerants for fee compensation or other consideration.
    1. Each county, municipality, and public instrumentality is authorized and empowered to adopt ordinances or resolutions that provide for the creation of boards under this subchapter.
    2. The boards shall constitute and comprise political subdivisions of the county or municipality that creates the boards or, in the case of public instrumentality boards, political subdivisions of the county or municipality that created the public instrumentality that creates the boards.

History. Acts 2003, No. 1772, § 2.

12-41-718. Sole and exclusive law.

  1. Except as provided under § 12-41-702, the provisions of this subchapter are intended to solely and exclusively govern the manner in which a county jail board, municipal jail board, or public instrumentality jail board is organized, operated, managed, and administered.
  2. No other laws of this state are applicable to the boards.

History. Acts 2003, No. 1772, § 2.

12-41-719. Repayment of debt.

Any municipality, county, public instrumentality, or other governmental entity may pledge all or any portion of its fines, penalties, bonds against fines, court costs, filing fees, other court fees, and other sums payable by judicial order, statute, ordinance, or otherwise imposed by law and collected by the entity towards the repayment of any debt issued by a jail board or any public facilities board operating, owning, or administering a jail facility.

History. Acts 2003, No. 1772, § 4.

Cross References. Public facilities boards — Powers — Bidding and appraisal requirements, § 14-137-111.

Subchapter 8 — Juvenile Detention Facilities Cooperative Development and Operations Act

A.C.R.C. Notes. Acts 1995, No. 899, §§ 1-9, as amended by Acts 1997, No. 76, § 1, provided:

“SECTION 1. There is hereby created the Intergovernmental Juvenile Detention Council of the Tenth Judicial District, hereinafter referred to as the Council. The Council shall be composed of the county judge of each of the five counties comprising the district, the prosecuting attorney of the district, and one municipal mayor from each of the five counties. The mayor member from each county shall be selected by majority vote of all the mayors of incorporated cities and towns in the county. The members of the Council shall select from their number a chairperson, vice chairperson and such other officers of the Council as it deems appropriate. The Council shall meet at least semiannually and at such other times as it shall deem necessary to carry out its powers, functions and duties.”

“SECTION 2. A majority of the full membership of the Council shall constitute a quorum for doing business. An affirmative vote of a majority of the membership shall be necessary to take any action. Members of the Council shall serve without compensation but may be reimbursed for actual expenses incurred in carrying out their official duties.

“SECTION 3. The Council shall have the following powers and duties:

“(a) To receive funds from the State of Arkansas, the U. S. Government, and any other source whatsoever, to be used for the construction, maintenance and operation of a juvenile detention facility in the Tenth Judicial District, hereinafter referred to as the detention facility.

“(b) To take title to, serve as custodian of, and to manage and operate the detention facility or to contract for its operation.

“(c) To receive funds from the resident school districts of juveniles committed to the detention facility to be used for the education of juveniles in the facility.

“(d) To seek additional funds for the expansion, maintenance and operation of the detention facility and for programs and activities at the facility through gifts, grants, and donations from any and all public and private sources and to administer and disburse all funds received for the construction, expansion, maintenance and operation of the detention facility and for all programs and activities of the facility.

“(e) To cooperate and coordinate with the regional jail in the Tenth Judicial District with respect to feeding inmates, providing laundry services to inmates, maintenance of facilities at the regional jail and the juvenile detention facility, purchase of supplies, and such other services and purchases as the Council and the officials of the regional jail feel appropriate.

“(f) To cooperate and contract with any and all educational institutions in the area for providing education resources for inmates at the detention facility.

“(g) To contract with any and all health providers in the area including the Arkansas Department of Health for providing health services to inmates of the detention facility.

“(h) To establish a schedule of fees or charges to be billed to the various political subdivisions for the detention of juveniles in the facility.

“SECTION 4.(a) The Council is authorized to employ a director and such other personnel as it deems necessary and appropriate to assure the effective and efficient operation of the detention facility.

“(b) The Council, by a majority vote of its members, may elect to participate in the Arkansas Public Employees Retirement System and to include its full-time employees within the membership of the Arkansas Public Employees Retirement System. The Council may pay the contributions as the Arkansas Public Employees Retirement System Board of Trustees shall prescribe.

“SECTION 5. The Council shall have the authority to adopt appropriate policies and practices regarding the operation of the detention facility as it deems necessary to assure the effective and efficient operation of the facility.

“SECTION 6. All provisions of this act of a general and permanent nature are amendatory to the Arkansas Code of 1987 Annotated and the Arkansas Code Revision Commission shall incorporate the same in the Code.

“SECTION 7. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.

“SECTION 8. All laws and parts of laws in conflict with this act are hereby repealed.

“SECTION 9. EMERGENCY. It is hereby found and determined by the General Assembly that funds have been made available for the construction and operation of a juvenile detention facility in the Tenth Judicial District; that it is urgent that such facility be established as soon as practical; that before such facility can be established and operational, an appropriate body must be established to provide for the construction and to supervise the operation of the facility; and that this act is designed to accomplish this purpose and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Effective Dates. Acts 1989, No. 486, § 10: Mar. 10, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is necessary to prohibit the unnecessary incarceration of juveniles, to prohibit such juveniles from being treated as criminals, to place such juveniles under proper care, and to prohibit juveniles from associating with hardened adult criminals; and that the immediate passage of this act is necessary for the protection of juveniles. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation and protection of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2001, No. 1468, § 4: Apr. 10, 2001. Emergency clause provided: “It is found and determined by the General Assembly that the continued operation of the juvenile detention centers located in Independence County, Yell County, Jefferson County, Washington and Miller Counties, is jeopardized by the obligation to repay existing revolving loans to the state. It is in the best interest of the public to abate these obligations to the state. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

12-41-801. Title.

This subchapter shall be referred to and may be cited as the “Juvenile Detention Facilities Cooperative Development and Operations Act”.

History. Acts 1989, No. 486, § 1.

12-41-802. Legislative findings and determinations.

  1. The General Assembly finds that adequate juvenile detention facilities are essential to the safety and welfare of the people of this state.
  2. It is legislatively determined that adequate juvenile detention facilities need to be made available and that a feasible and economic way of financing, constructing, acquiring, and operating the same is by authorizing cooperative endeavors for development and operation under the authority of this subchapter.

History. Acts 1989, No. 486, § 2.

12-41-803. Definitions.

As used in this subchapter:

  1. “Governing body” means the:
    1. City council or board of directors or comparable body for a city;
    2. Town council or board of directors or comparable body for a town; and
    3. Quorum court for a county;
  2. “Juvenile detention facility” means any facility for the temporary care of juveniles alleged to be delinquent, or adjudicated delinquent and awaiting disposition, who require secure custody in a physically restricting facility designed and operated with all entrances and exits under the exclusive control of the facility's staff, so that a juvenile may not leave the facility unsupervised or without permission;
  3. “Local governmental units” means a city of any class, a town, or a county; and
  4. “State” means the State of Arkansas.

History. Acts 1989, No. 486, § 3.

12-41-804. Regional detention facilities.

  1. Local governmental units are authorized to cooperate with other localities on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with geographic, economic, population, and other factors influencing the needs and development of local governmental units.
  2. Local governmental units may contract with the state through the Division of Youth Services of the Department of Human Services for the financing, acquisition, construction, and operation of juvenile detention facilities, in particular, in accordance with the provisions and procedures as outlined in the Interlocal Cooperation Act, § 25-20-101 et seq.

History. Acts 1989, No. 486, § 4.

12-41-805. [Repealed.]

Publisher's Notes. This section, concerning capital grant and revolving loan fund accounts, was repealed by Acts 2001, No. 1468, § 1. The section was derived from Acts 1989, No. 486, § 5.

12-41-806. Matching requirements.

    1. Grant and loan funds shall only be awarded under this subchapter upon submission of evidence of the ability to provide an amount of local public or private dollars, or both, equal to or greater than one-third (1/3) of the state's capital grant contribution to any project.
    2. In no event shall the state capital grant contribution to any project authorized under this subchapter exceed the sum of one hundred fifty thousand dollars ($150,000).
  1. Any revolving loan funds utilized in meeting the total cost of any project authorized under this subchapter shall be interest free and shall have terms not to exceed ten (10) years.
  2. Any award of funds under this section shall be subject to review and approval by the Division of Youth Services, which shall promulgate rules to effectuate the provisions of this section.

History. Acts 1989, No. 486, § 6; 2019, No. 315, § 914.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (c).

12-41-807. Operating fund account.

  1. There is hereby established an operating fund account not to exceed the amount of five hundred thousand dollars ($500,000) per annum, the express purpose of which is to provide a supplement to the local operations fund for the continuing operation of secure facilities for juveniles as alternatives to placement of juveniles in adult detention facilities.
    1. The allowable uses of the operating fund account shall be to provide up to but not to exceed one-third (1/3) of the annual operations costs for a juvenile detention facility as authorized in this subchapter.
    2. The funds shall be applied for the continuing operations of juvenile detention facilities as authorized in this subchapter together with such other general funds, if any, as may be provided by any governing body individually or in combination with each other, as established for the purposes authorized in this subchapter.
  2. The Division of Youth Services shall promulgate rules to effectuate the provisions of this section.

History. Acts 1989, No. 486, § 7; 2019, No. 315, § 915.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (c).

12-41-808. Abatement of loan balances.

Any loan balances accrued pursuant to the revolving loan fund account are abated.

History. Acts 2001, No. 1468, § 2.

A.C.R.C. Notes. The revolving loan fund account established pursuant to former § 12-41-805 has been repealed by Acts 2001, No. 1468, § 1.

12-41-809. Juvenile detention centers or facilities.

  1. Juvenile detention centers or juvenile detention facilities shall operate to provide pretrial detention and short term sanctions as provided for in § 9-27-330.
  2. The Division of Youth Services of the Department of Human Services has no obligation to utilize or fund juvenile detention centers or juvenile detention facilities.

History. Acts 2001, No. 1468, § 3.

Chapter 42 Labor of County and City Prisoners

Effective Dates. Acts 1877, No. 73, § 16: effective on passage.

Acts 1881, No. 81, § 16: effective on passage.

Acts 1883, No. 78, § 6: effective on passage.

Acts 1893, No. 120, § 5: effective on passage.

Acts 1899, No. 111, § 5: effective on passage.

Acts 1939, No. 118, § 9: approved Feb. 22, 1939. Emergency clause provided: “It is determined by the General Assembly that many counties, cities, and towns in the State of Arkansas do not have facilities for the safe-keeping of prisoners convicted of misdemeanor cases and that many prisoners convicted of misdemeanor cases are now abused because of being leased into private industry; therefore, an emergency is declared to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, will be in force from and after its passage.”

Acts 1961, No. 254, § 3: approved Mar. 14, 1961. Emergency clause provided: “It is hereby determined that there exist in the State of Arkansas certain counties having inadequate county farm facilities which affect the health and welfare of the citizens of said counties, and the health and welfare of the State of Arkansas, and this act being necessary for the preservation of the peace, health, and safety of the people of the State of Arkansas an emergency is hereby declared to exist and this act shall take effect and be in full force from and after the passage.”

12-42-101. Definition.

As used in §§ 12-42-109, 12-42-110, 12-42-112, 12-42-113, and 12-42-115, “county inmates” means persons convicted of misdemeanors or petty offenses and committed to jail in default of the payment of the fine and costs adjudged against them.

History. Acts 1877, No. 73, § 14, p. 73; C. & M. Dig., § 2059; Pope's Dig., § 2661; A.S.A. 1947, § 46-519; 2013, No. 295, § 7.

Amendments. The 2013 amendment substituted “‘county inmates’” for “‘county convicts’”.

12-42-102. Penalties.

A person who uses the work of a prisoner or enters into a contract to lease and use the work of a prisoner convicted of a misdemeanor in violation of §§ 12-42-10412-42-107 upon conviction is guilty of an unclassified misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than five thousand dollars ($5,000) and may be imprisoned not exceeding ninety (90) days.

History. Acts 1939, No. 118, § 7; A.S.A. 1947, § 46-512; Acts 2017, No. 845, § 5.

Amendments. The 2017 amendment deleted the (a) and (b) designations; and rewrote the section to clarify the language.

12-42-103. County farm — Purchase authorized.

Plenary power is conferred upon the county levying court at its regular or specially called meeting, to authorize the county court or the county judge thereof in vacation to purchase in the name and for the benefit of the county, a tract of land not to exceed two thousand (2,000) acres, or the levying court shall have the power, if it deem best, to direct the court or the county judge thereof in vacation, to lease in the name and for the benefit of the county, a farm upon which the county prisoners shall be worked under the provisions of this section or §§ 12-42-108, 12-42-114, 12-42-115, 16-90-405, and 16-96-504 [repealed].

History. Acts 1881, No. 81, § 11, p. 148; 1893, No. 120, § 4, p. 207; 1899, No. 111, § 1, p. 179; C. & M. Dig., § 2081; Pope's Dig., § 2683; Acts 1961, No. 254, § 2; A.S.A. 1947, § 46-520.

A.C.R.C. Notes. Section 16-96-504 was repealed by Acts 2005, No. 1994, § 558.

12-42-104. Leasing procedure exclusive.

It shall be unlawful for any county judge or mayor of any city or incorporated town or any person to lease or contract for the lease of any prisoner convicted of a misdemeanor, whether a violation of the laws of the state or ordinance of any municipality, except as provided in this subchapter.

History. Acts 1939, No. 118, § 1; A.S.A. 1947, § 46-501.

12-42-105. Workhouses and public works.

  1. Any person who may be convicted of a misdemeanor or petty offense by any court in this state and who shall be committed to jail to serve a sentence imposed by any court of competent jurisdiction or who shall be in default of the payment of the fine and costs adjudged against him or her may be required to discharge the sentence or fine and costs by manual labor in any workhouse, farm, street, road, bridge, or other public work in the county where the conviction and committal occurred.
  2. However, the workhouse, farm, road, street, bridge, or other public work shall be owned, operated, or conducted by the State of Arkansas, any county thereof, or a city or incorporated town within the State of Arkansas.

History. Acts 1939, No. 118, § 2; A.S.A. 1947, § 46-502.

Case Notes

Cited: Howerton v. Mississippi County, 361 F. Supp. 356 (E.D. Ark. 1973).

12-42-106. Contracts with other counties, cities, or towns — Liability.

    1. The county court or the county judge thereof in vacation, or the mayor of any city or incorporated town, when authorized to do so by an ordinance duly adopted by the city or town council or other governing body of the municipality, is authorized and empowered to make a contract with any other county, city, or town for the maintenance, safekeeping, and working of inmates committed to county or city jails except inmates awaiting trial.
    2. The county court, county judge, or mayor may make such contract as deemed in the best interests of the county, city, or incorporated town.
  1. For the purpose of making a contract to effectuate the provisions of this section and §§ 12-42-102, 12-42-104, 12-42-105, and 12-42-107, the county court or county judge of any county, and the mayor, with the approval of the city or town council, or other governing body of any municipality, is vested with plenary power.
  2. Any county, city, or town contracting for the safekeeping of inmates under the provisions of this section and §§ 12-42-102, 12-42-104, 12-42-105, and 12-42-107, shall obligate itself to furnish the inmates with good and wholesome food, comfortable clothing, and medicine when sick and shall not require them to work at unreasonable hours or for a longer time during any one (1) day than other laborers doing the same kind of labor are accustomed to do.
  3. A county sheriff, constable, mayor, or other officer to whom a person is committed for imprisonment to serve a sentence imposed for a misdemeanor or petty offense or in default of the payment of fine and costs therefor shall not be responsible for the health, safety, or welfare of the person if the county sheriff, constable, mayor, or other officer shall deliver the person to any county, city, or town other than that of which the former is an officer, pursuant to a contract for the maintenance, safekeeping, and working of inmates authorized by statute.

History. Acts 1939, No. 118, §§ 3, 6; 1965, No. 371, § 2; A.S.A. 1947, §§ 46-504, 46-511, 46-511.1; 2013, No. 295, § 8.

Amendments. The 2013 amendment substituted “inmates” for “prisoners” throughout the section; substituted “inmates” for “convicts” in (c); and, in (d), substituted “A” for “No” at the beginning and inserted “not” preceding “be responsible”.

Case Notes

Constitutionality.

The practice of contracting the work of inmates of penal institutions of other counties on public projects in a county is not equivalent to working of inmates to pay fines and costs and, therefore, does not violate equal protection secured by U.S. Const., Amend. 14. Howerton v. Mississippi County, 361 F. Supp. 356 (E.D. Ark. 1973).

12-42-107. Procedure when satisfactory contract cannot be made.

    1. If the county court or county judge thereof in vacation, or the mayor of any city or incorporated town, is unable to make a satisfactory contract with some county, city, or incorporated town, or if the contract does not necessarily, by its terms, cover all persons committed to jail to serve a sentence or in default of the payment of a fine and costs adjudged against him or her, in the county or city where the conviction is had, then the county court or county judge thereof may order the prisoners to be worked.
    2. The prisoners may be worked on the public roads, bridges, levees, or any other public improvement of the county or may perform any other lawful labor for the benefit of the county.
  1. The city or town council or the governing body of any municipality or the mayor thereof may order the prisoners worked on any public streets, alleys, public buildings, public parks, or any other public improvements of the city or may order them to perform any other lawful labor for the benefit of the city, under such rules and regulations not inconsistent with the provisions of this section or §§ 12-42-102 and 12-42-104 — 12-42-106, as the county court or county judge thereof, or the mayor and governing body of any municipality thereof may prescribe.

History. Acts 1939, No. 118, § 4; 1965, No. 371, § 1; A.S.A. 1947, § 46-505.

12-42-108. Superintendent.

  1. In the event that the county court or county judge thereof shall order the prisoners to be worked on roads, bridges, levees, or other county improvements, it shall be the duty of the county court or county judge thereof to appoint some suitable person as superintendent to take charge of, manage, and control the labor of the prisoners, who shall, for the purpose of working them, be authorized to employ such guards or adopt such means to prevent escapes as may be necessary.
  2. The superintendant shall have all the power of punishing for refusal to work given to contractors in this subchapter.
  3. Upon the order of the county judge, the county sheriff shall deliver to the superintendent all prisoners in his or her custody and receive them back from him or her whenever he or she shall return them for any purpose to the jail.
  4. The superintendent shall take an oath to faithfully discharge his or her duties and shall receive such compensation for his or her services as the court may fix.
  5. The superintendant may be at any time removed by the county court or county judge, and another may be appointed by the county judge in vacation, subject to approval at the next term of the county court.

History. Acts 1881, No. 81, § 12, p. 148; 1899, No. 111, § 2, p. 179; C. & M. Dig., §§ 2082, 2086; Pope's Dig., §§ 2684, 2688; A.S.A. 1947, §§ 46-506, 46-507.

Case Notes

Constitutionality.

This section is directory and not mandatory and therefore not in conflict with Ark. Const., Art. 7, § 28. State ex rel. Richardson v. Mack, 191 Ark. 350, 86 S.W.2d 11 (1935).

12-42-109. Management of inmates not hired.

  1. Unless the inmates are immediately hired out, the management and control of the county inmates shall be confined to county courts either in term time or in vacation by the county judge.
  2. The county court or county judge shall always have the right to require the aid of the county sheriff and constables of their respective counties. All lawful orders or process necessary to be issued and executed shall be executed by the county sheriff or constable.

History. Acts 1877, No. 73, § 12, p. 73; C. & M. Dig., § 2057; Pope's Dig., § 2659; A.S.A. 1947, § 46-517; 2013, No. 295, § 9.

Amendments. The 2013 amendment substituted “inmates” for “convicts” in the section heading, and twice in (a).

12-42-110. Labor on public works restricted.

A county inmate shall not be allowed to work on any public work or improvement whenever there may be danger of his or her escape, nor shall he or she be compelled to labor at any kind of business or in any avocation that would tend to impair his or her health or strength.

History. Acts 1877, No. 73, § 10, p. 73; C. & M. Dig., § 2055; Pope's Dig., § 2657; A.S.A. 1947, § 46-516; 2013, No. 295, § 10.

Amendments. The 2013 amendment substituted “A county inmate shall not be” for “No county convict shall be”.

12-42-111. Credit for labor.

  1. Every county court or a county official designated by the county court may utilize persons convicted and committed to the county jails to perform manual labor in any workhouse, farm, road, street, bridge, or other public work owned, operated, or conducted by the state or any county, city, or incorporated town within the state.
    1. An inmate performing such labor shall receive compensatory time in the amount of one (1) additional day's credit against his or her sentence for each day's labor.
    2. The county court shall determine what constitutes a day's labor.
  2. Furthermore, the county court or a county official designated by the county court shall determine which inmates may participate in this program and the extent of their participation.

History. Acts 1979, No. 27, § 1; 1985, No. 931, § 1; A.S.A. 1947, § 46-502.1.

12-42-112. Compensation of artisan or mechanic.

If any person so convicted is an artisan or mechanic and is put to labor in any manual labor workhouse, or on any bridge or other public improvement, the artisan or mechanic shall be allowed a reasonable compensation for the labor, but the compensation shall not be paid to the artisan or mechanic.

History. Acts 1877, No. 73, § 2, p. 73; C. & M. Dig., § 2047; Pope's Dig., § 2648; A.S.A. 1947, § 46-503.

12-42-113. Warrants for costs.

When inmates employed on public works or improvements or in public workhouses shall have paid the full amount of their fines and costs by their labor, then the county court shall issue a warrant in favor of each officer to whom costs may be due, for the amount of his or her costs, on the county treasurer, and it shall be paid if there are sufficient funds in the county treasury.

History. Acts 1877, No. 73, § 9, p. 73; C. & M. Dig., § 2054; Pope's Dig., § 2656; A.S.A. 1947, § 46-515; 2013, No. 295, § 11.

Amendments. The 2013 amendment substituted “inmates” for “convicts”.

Case Notes

Necessity for Prior Appropriation.

The county court had no authority to bind the county for the payment of costs of misdemeanor cases by employing county convicts upon public works unless the levying court had previously made an appropriation for the purpose. Johnson County v. Jamison, 85 Ark. 609, 109 S.W. 1025 (1908).

12-42-114. Arrest of escapees.

  1. If any prisoner shall escape from the contractor or superintendent, the contractor or superintendent shall have the right to arrest the prisoner, in person or through any county sheriff or constable, anywhere in the state.
  2. The prisoner, when arrested, shall be delivered to the contractor or county sheriff of the county, and shall be compelled to work out all costs in making his or her arrest, in the manner provided in this section and §§ 12-42-103, 12-42-108, 12-42-115, 16-90-405, and 16-96-504 [repealed].

History. Acts 1881, No. 81, § 14, p. 148; C. & M. Dig., § 2088; Pope's Dig., § 2690; A.S.A. 1947, § 46-513.

A.C.R.C. Notes. Section 16-96-504 was repealed by Acts 2005, No. 1994, § 558.

12-42-115. Records of inmates.

  1. The county court shall cause a record of all its proceedings under §§ 12-42-101, 12-42-109, 12-42-110, 12-42-112, 12-42-113, and this section to be recorded in a well-bound book to be provided for that purpose. The record shall contain:
    1. A descriptive list of all persons known as county inmates;
    2. How the inmate has been or is employed;
    3. The name of the party or parties hiring the inmate;
    4. The time when and the price at which the inmate has been employed;
    5. The amount paid or allowed for the employed or hired inmate;
    6. The amount due by the inmate as fine and costs; and
    7. Such other information as may be necessary and required under the rules adopted by the court.
  2. It shall be the duty of the contractor or superintendent to keep a record in which shall be stated the name of the prisoner, his or her height, race, age, complexion, color of eyes and hair, time of commitment, and the punishment adjudged by the court or justice, as well as the number of days the inmate may be held to labor and a record of the days worked by the prisoner.

History. Acts 1877, No. 73, § 13, p. 73; 1881, No. 81, § 15, p. 148; 1883, No. 78, § 4, p. 125; C. & M. Dig., §§ 2058, 2090; Pope's Dig., §§ 2660, 2692; A.S.A. 1947, §§ 46-514; 46-518; 2013, No. 295, § 12.

Publisher's Notes. This section, insofar as it relates to the hiring of convicts by private contractors, may be affected by § 12-42-104.

Amendments. The 2013 amendment substituted “inmates” for “convicts” in the section heading; and substituted “inmate” for “convict” and “inmates” for “convicts” throughout the section.

12-42-116. Work-study release — Definitions.

  1. As used in this section:
    1. “Chief executive officer” means the county sheriff of the county if the criminal detention facility is owned or operated by a county of this state or the chief of police if the criminal detention facility is owned or operated by a municipality of this state;
    2. “Legislative body” means the quorum court of the county in which the county-owned or operated criminal detention facility is located, or if the criminal detention facility is owned or operated by a municipality, it means whatever body is authorized to adopt ordinances for that jurisdiction; and
    3. “Work-release” means programs under which inmates selected to participate in such programs may be gainfully employed or attend schools outside of a jail.
  2. Any person who may be convicted by any court in this state and who is committed to a jail to serve a sentence imposed by any court of competent jurisdiction or in default of the payment of the fine and costs adjudged against him or her may be released for the purpose of participation in work-release programs under the conditions and procedures contained in subsections (c) and (d) of this section.
  3. The chief executive officer may allow inmates as described in subsection (b) of this section to participate in work-release programs in accordance with rules, regulations, and procedures adopted by the chief executive officer.
  4. Under any work-release program, earnings by the inmate shall be paid directly to the chief executive officer and applied as follows:
    1. The chief executive officer shall retain an amount to be established by the legislative body which will reasonably compensate the chief executive officer for the cost of feeding and housing the inmate;
    2. The chief executive officer shall determine if the inmate has persons depending upon him or her for their support and may remit to such persons that portion of the earnings which the chief executive officer considers reasonable; and
      1. The chief executive officer shall determine if the inmate has created victims of his or her criminal conduct who are entitled to restitution or reparations for physical injury or loss of or damage to property and may remit to such victims that portion of the earnings which the chief executive officer considers reasonable.
      2. However, in no case shall the portion of earnings remitted for restitution be in excess of twenty-five percent (25%) of the inmate's income remaining after deductions for the cost of care and custody and family support in subdivisions (d)(1) and (2) of this section.
      3. The names and addresses of the victims and the amount of restitution to be paid shall be provided to the chief executive officer by certificate of the trial court in which the defendant was convicted.

History. Acts 1977, No. 413, §§ 1-3; 1985, No. 1046, § 1; A.S.A. 1947, §§ 46-421 — 46-423.

Case Notes

Cited: Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981).

12-42-117. Voluntary labor.

  1. Any of the prisoners in the county jails located in counties having a population of between twenty-four thousand five hundred (24,500) and twenty-five thousand five hundred (25,500) and between forty-seven thousand five hundred (47,500) and forty-seven thousand six hundred (47,600) inhabitants may be permitted to voluntarily work in any cemetery or on any other public project in those counties.
  2. The prisoners shall be allowed a credit on any fine owed of five dollars ($5.00) for each day they perform such voluntary labor.

History. Acts 1967, No. 89, § 1; A.S.A. 1947, § 46-521.

12-42-118. Appropriations.

At its annual or specially called meeting for making appropriations, the county court shall make the necessary appropriations to carry out the purposes of this section and §§ 12-42-103, 12-42-108, 12-42-114, 12-42-115, 16-90-405, and 16-96-504 [repealed].

History. Acts 1899, No. 111, § 4, p. 179; C. & M. Dig., § 2084; Pope's Dig., § 2686; Acts 1961, No. 254, § 1; A.S.A. 1947, § 46-509.

A.C.R.C. Notes. Section 16-96-504 was repealed by Acts 2005, No. 1994, § 558.

Case Notes

Necessity for Prior Appropriation.

The county court had no authority to bind the county for the costs in misdemeanor cases by employing county convicts upon public works unless the levying court had previously made an appropriation for the purpose. Johnson County v. Jamison, 85 Ark. 609, 109 S.W. 1025 (1908).

Chapters 43-47 [Reserved.]

[Reserved.]

Chapter 48 Arkansas Adult Probation Commission

12-48-101 — 12-48-106. [Repealed.]

Publisher's Notes. This chapter was repealed by Acts 1993, No. 549, § 9. The chapter was derived from the following sources:

12-48-101. Acts 1983, No. 151, § 2; A.S.A. 1947, § 42-1302.

12-48-102. Acts 1983, No. 151, §§ 1, 3, 4, 6, 7; A.S.A. 1947, §§ 42-1301, 42-1303 — 42-1305.

12-48-103. Acts 1983, No. 151, §§ 9-17; 1985, No. 483, § 1; A.S.A. 1947, § 42-1307.

12-48-104. Acts 1983, No. 151, § 8; A.S.A. 1947, § 42-1306.

12-48-105. Acts 1983, No. 151, § 18; 1985, No. 483, § 2; A.S.A. 1947, § 42-1308.

12-48-106. Acts 1983, No. 151, §§ 19-24; A.S.A. 1947, § 42-1309.

Acts 1993, No. 549, § 7 provided that the Board of Correction and Community Punishment shall succeed to all powers, functions, and duties formerly vested in the State Penitentiary Board and Arkansas Adult Probation Commission.

Chapter 49 Interstate Compacts

Cross References. Interstate Commission for Adult Offender Supervision, § 12-51-101 et seq.

Subchapter 1 — Interstate Corrections Compact

12-49-101. Title.

This subchapter may be cited as the “Interstate Corrections Compact”.

History. Acts 1973, No. 315, § 1; A.S.A. 1947, § 46-1401.

Research References

ALR.

Construction and Application of Interstate Corrections Compact and Implementing State Laws — Equivalency of Conditions and Rights and Responsibilities of Parties. 56 A.L.R.6th 553.

12-49-102. Text of Interstate Corrections Compact.

The Interstate Corrections Compact is enacted into law and entered into by this state with any other states legally joining therein in the form substantially as follows:

INTERSTATE CORRECTIONS COMPACT

ARTICLE I Purpose and Policy

The party states, desiring by common action to fully utilize and improve their institutional facilities and provide adequate programs for the confinement, treatment, and rehabilitation of various types of offenders, declare that it is the policy of each of the party states to provide such facilities and programs on a basis of cooperation with one another, thereby serving the best interests of such offenders and of society and effecting economies in capital expenditures and operational costs. The purpose of this compact is to provide for the mutual development and execution of such programs of cooperation for the confinement, treatment, and rehabilitation of offenders with the most economical use of human and material resources.

ARTICLE II Definitions

As used in this compact, unless the context clearly requires otherwise:

  1. “State” means a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.
  2. “Sending state” means a state party to this compact in which conviction or court commitment was had.
  3. “Receiving state” means a state party to this compact to which an inmate is sent for confinement other than a state in which conviction or court commitment was had.
  4. “Inmate” means a male or female offender who is committed, under sentence to or confined in a penal or correctional institution.
  5. “Institution” means any penal or correctional facility, including but not limited to a facility for the mentally ill or mentally defective, in which inmates as defined in (d) above may lawfully be confined.

ARTICLE III Contracts

  1. Each party state may make one or more contracts with any one or more of the other party states for the confinement of inmates on behalf of a sending state in institutions situated within receiving states. Any such contract shall provide for:
    1. Its duration.
    2. Payments to be made to the receiving state by the sending state for inmate maintenance, extraordinary medical and dental expenses, and any participation in or receipt by inmates of rehabilitative or correctional services, facilities, programs, or treatment not reasonably included as part of normal maintenance.
    3. Participation in programs of inmate employment, if any; the disposition or crediting of any payments received by inmates on account thereof; and the crediting of proceeds from or disposal of any products resulting therefrom.
    4. Delivery and retaking of inmates.
    5. Such other matters as may be necessary and appropriate to fix the obligations, responsibilities, and rights of the sending and receiving states.
  2. The terms and provisions of this compact shall be a part of any contract entered into by the authority of or pursuant thereto, and nothing in any such contract shall be inconsistent therewith.

ARTICLE IV Procedures and Rights

  1. Whenever the duly constituted authorities in a state party to this compact, and which has entered into a contract pursuant to Article III, shall decide that confinement in, or transfer of an inmate to, an institution within the territory of another party state is necessary or desirable in order to provide adequate quarters and care of an appropriate program of rehabilitation or treatment, said officials may direct that the confinement be within an institution within the territory of said other party state, the receiving state to act in that regard solely as agent for the sending state.
  2. The appropriate officials of any state party to this compact shall have access, at all reasonable times, to any institution in which it has a contractual right to confine inmates for the purpose of inspecting the facilities thereof and visiting such of its inmates as may be confined in the institution.
  3. Inmates confined in an institution pursuant to the terms of this compact shall at all times be subject to the jurisdiction of the sending state and may at any time be removed therefrom for transfer to a prison or other institution within the sending state, for transfer to another institution in which the sending state may have a contractual or other right to confine inmates, for release on probation or parole, for discharge, or for any other purpose permitted by the laws of the sending state; provided that the sending state shall continue to be obligated to such payments as may be required pursuant to the terms of any contract entered into under the terms of Article III.
  4. Each receiving state shall provide regular reports to each sending state on the inmates of that sending state in institutions pursuant to this compact including a conduct record of each inmate and certify said record to the official designated by the sending state, in order that each inmate may have official review of his or her record in determining and altering the disposition of said inmate in accordance with the law which may obtain in the sending state and in order that the same may be a source of information for the sending state.
  5. All inmates who may be confined in an institution pursuant to the provisions of this compact shall be treated in a reasonable and humane manner and shall be treated equally with such similar inmates of the receiving state as may be confined in the same institution. The fact of confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending state.
  6. Any hearing or hearings to which an inmate confined pursuant to this compact may be entitled by the laws of the sending state may be had before the appropriate authorities of the sending state, or of the receiving state if authorized by the sending state. The receiving state shall provide adequate facilities for such hearings as may be conducted by the appropriate officials of a sending state. In the event such hearing or hearings are had before officials of the receiving state, the governing law shall be that of the sending state and a record of the hearing or hearings as prescribed by the sending state shall be made. Said record together with any recommendations of the hearing officials shall be transmitted forthwith to the official or officials before whom the hearing would have been had if it had taken place in the sending state. In any and all proceedings had pursuant to the provisions of this subdivision, the officials of the receiving state shall act solely as agents of the sending state and no final determination shall be made in any matter except by the appropriate officials of the sending state.
  7. Any inmate confined pursuant to this compact shall be released within the territory of the sending state unless the inmate, and the sending and receiving states, shall agree upon release in some other place. The sending state shall bear the cost of such return to its territory.
  8. Any inmate confined pursuant to the terms of this compact shall have any and all rights to participate in and derive any benefits or incur or be relieved of any obligations or have such obligations modified or his status changed on account of any action or proceeding in which he could have participated if confined in any appropriate institution of the sending state located within such state.
  9. The parent, guardian, trustee, or other person or persons entitled under the laws of the sending state to act for, advise, or otherwise function with respect to any inmate shall not be deprived of or restricted in his exercise of any power in respect of any inmate confined pursuant to the terms of this compact.

ARTICLE V Acts Not Reviewable in Receiving State: Extradition

  1. Any decision of the sending state in respect of any matter over which it retains jurisdiction pursuant to this compact shall be conclusive upon and not reviewable within the receiving state, but if at the time the sending state seeks to remove an inmate from an institution in the receiving state there is pending against the inmate within such state any criminal charge or if the inmate is formally accused of having committed within such state a criminal offense, the inmate shall not be returned without the consent of the receiving state until discharged from prosecution or other form of proceeding, imprisonment, or detention for such offense. The duly accredited officers of the sending state shall be permitted to transport inmates pursuant to this compact through any and all states party to this compact without interference.
  2. An inmate who escapes from an institution in which he is confined pursuant to this compact shall be deemed a fugitive from the sending state and from the state in which the institution is situated. In the case of an escape to a jurisdiction other than the sending or receiving state, the responsibility for institution of extradition or rendition proceedings shall be that of the sending state, but nothing contained herein shall be construed to prevent or affect the activities of officers and agencies of any jurisdiction directed toward the apprehension and return of an escapee.

ARTICLE VI Federal Aid

Any state party to this compact may accept federal aid for use in connection with any institution or program, the use of which is or may be affected by this compact or any contract pursuant hereto and any inmate in a receiving state pursuant to this compact may participate in any such federally aided program or activity for which the sending and receiving states have made contractual provision, provided that if such program or activity is not part of the customary correctional regimen, the express consent of the appropriate official of the sending state shall be required therefor.

ARTICLE VII Entry into Force

This compact shall enter into force and become effective and binding upon the states so acting when it has been enacted into law by any two states. Thereafter, this compact shall enter into force and become effective and binding as to any other of said states upon similar action by such states.

ARTICLE VIII Withdrawal and Termination

This compact shall continue in force and remain binding upon a party state until it shall have enacted a statute repealing the same and providing for the sending of formal written notice of withdrawal from the compact to the appropriate officials of all other party states. An actual withdrawal shall not take effect until one year after the notices provided in said statute have been sent. Such withdrawal shall not relieve the withdrawing state from its obligations assumed hereunder prior to the effective date of withdrawal. Before the effective date of withdrawal, a withdrawing state shall remove to its territory, at its own expense, such inmates as it may have confined pursuant to the provisions of this compact.

ARTICLE IX Other Arrangements Unaffected

Nothing contained in this compact shall be construed to abrogate or impair any agreement or other arrangement which a party state may have with a non-party state for the confinement, rehabilitation, or treatment of inmates nor to repeal any other laws of a party state authorizing the making of cooperative institutional arrangements.

ARTICLE X Construction and Severability

The provisions of this compact shall be liberally construed and shall be severable. If any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

History. Acts 1973, No. 315, § 2; A.S.A. 1947, § 46-1402.

Research References

ALR.

Validity, Construction, and Application of Interstate Corrections Compact and Implementing State Laws — Jurisdictional Issues, Governing Law, and Validity and Applicability of Compact. 54 A.L.R.6th 1.

Construction and Application of Interstate Corrections Compact and Implementing State Laws — Equivalency of Conditions and Rights and Responsibilities of Parties. 56 A.L.R.6th 553.

Case Notes

Credit for Time Served.

Prisoner who was transferred to Florida then returned to Arkansas pursuant to this section was entitled to good time and other benefits he earned while in Florida as if he had earned them in Arkansas. Hayes v. Lockhart, 754 F.2d 281 (8th Cir. 1985).

Habeas Corpus Jurisdiction.

Circuit court erred in concluding that it lacked jurisdiction to issue a writ of habeas corpus and make it returnable in the forum county; although appellant was incarcerated in an out-of-state correctional facility, under the terms of the Interstate Corrections Compact, he remained in the Arkansas Department of Correction's custody. Hundley v. Hobbs, 2015 Ark. 70, 456 S.W.3d 755 (2015).

Prisoners' Rights.

Although the defendant was housed in administrative segregation before his transfer from Arkansas to Florida, when he was released into the general prison population in Florida it was equivalent to a release into the general prison population in Arkansas, and, accordingly, when he was returned to Arkansas the Arkansas prison officials were required to follow the guidelines in the Department of Correction's administrative regulations before reassigning him to administrative segregation. Hayes v. Lockhart, 754 F.2d 281 (8th Cir. 1985).

12-49-103. Director's powers.

The Director of the Department of Correction is authorized and directed to do all things necessary or incidental to the carrying out of the compact in every particular, and he or she may in his or her discretion delegate this authority to other appropriate officials under his or her employ.

History. Acts 1973, No. 315, § 3; A.S.A. 1947, § 46-1403.

Research References

ALR.

Construction and Application of Interstate Corrections Compact and Implementing State Laws — Equivalency of Conditions and Rights and Responsibilities of Parties. 56 A.L.R.6th 553.

Subchapter 2 — South Central Interstate Corrections Compact

12-49-201. Signing and ratification — Terms.

The Governor on behalf of this state is authorized to execute a compact, in substantially the following form, with any one (1) or more of the states of Alabama, Florida, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, Tennessee, and Texas, and the General Assembly hereby signifies in advance its approval and ratification of the compact:

SOUTH CENTRAL INTERSTATE CORRECTIONS COMPACT

Article I Purpose

The party states find that special problems involved in the incarceration of women prisoners make it impracticable for each state to provide facilities and programs of sufficiently high quality for the confinement, treatment, and rehabilitation of women prisoners in accordance with recognized penological standards. Accordingly, it is the policy of each of the party states to provide such programs and facilities on a basis of co-operation with one another thereby making possible the operation and maintenance of correctional institutions for women on an efficient basis that will promote the best interest of women prisoners and of society as a whole. To these ends, the purpose of this Compact is to provide adequate care and rehabilitation of women prisoners, in the South Central States through effective interstate co-operation.

Article II Definitions

  1. As used in this Compact, the term “sending state” shall mean a state party to this Compact in which conviction was had.
  2. As used in this Compact, the term “receiving state” shall mean a state party to this Compact to which a prisoner is sent for incarceration other than the state in which conviction was had.
  3. A “woman prisoner” as used herein is any female prisoner who has been convicted of a criminal offense and is subject to commitment under the laws of a sending state.

Article III Board Created

There is hereby created the South Central Interstate Corrections Board, an agency of the states party to this Compact, with the powers and duties conferred upon it by this Compact. The Board shall be composed of two members from each party state to be designated and to serve as provided by the law of such state. At least one member from each party state shall be an officer of an administrative agency of such state dealing with penal or correctional institutions.

Article IV Board Powers and Duties

The Board shall have power to:

  1. Study interstate problems in the corrections fields and recommend such measures as it may deem necessary for administrative or legislative action by the party states.
  2. Study and recommend groupings of the party states with respect to the use of each Compact Institution as defined herein so as to facilitate the most efficient service of the area, use of the institution, and care and rehabilitation of the prisoners.
  3. Receive from time to time and review reports from each receiving state concerning costs, methods, practices, rehabilitation programs, and returns from programs of prisoner employment, if any, in the Compact Institutions and make general recommendations as to the administration of the interstate program in such institutions.
  4. Receive copies of all contracts between or among party states entered into pursuant to this Compact and make general recommendations as to procedures, practices, and contract provisions.
  5. Receive and expend for the purposes of this Compact any funds that a party state may from time to time appropriate and make such accounting therefor as the party state may require.
    1. Review party states' individual emergency plans and develop a plan which will determine the mechanism for the interstate management and provision of assistance concerning any potential emergency.
    2. Develop interstate procedures to fill any identified gaps and to resolve any identified inconsistencies or overlaps in existing or developed plans.
    3. Assist in warning communities adjacent to or crossing the state boundaries.
    4. Protect and assure uninterrupted delivery of services, medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services, and resources, both human and material.
    5. Inventory and set procedures for the interstate loan and delivery of human and material resources, together with procedures for reimbursement or forgiveness.
    6. Provide, to the extent authorized by law, for temporary suspension of any statutes or ordinances that restrict the implementation of the above responsibilities.

Article V Board Meetings, Rules, Expenses

The Board shall meet at least once each year and shall elect annually from among its members a chairman, vice-chairman, and secretary. The Board shall adopt rules and regulations for the conduct of its business. The expenses of each Board member and of such other persons who may attend meetings of the Board or its panels or committees on behalf of a state shall be met by that state in accordance with its law.

Article VI Contracts and Reports

  1. The appropriate administrative agencies of the party states may enter into contracts consistent with and embodying the standards contained in this Compact covering in specific terms the charge or charges of the receiving state for prisoner care and the obligations of the sending and receiving states for delivery and retaking of prisoners and for services which shall be rendered, for duration of contract, and for all other necessary matters.
  2. The representatives on the Board of any group of states which have entered into arrangements with respect to a Compact Institution may constitute a panel of the Board which shall have the power to make recommendations regarding that institution.
  3. An appropriate administrative officer in each state within which a Compact Institution is located shall make annual reports to the Board as to the loads, costs, methods, practices, rehabilitation programs, and returns from programs of prisoner employment, if any, in such Compact Institution including such recommendations as to these matters and as to the interstate program as such administrator may deem advisable.
  4. Copies of all contracts entered into under this article shall be filed with the Board in such manner as it may prescribe.

Article VII Reports to Governors and Legislatures

The Board shall report annually to the Governors and legislatures of the party states concerning all activities under this Compact and such recommendations for action by the party states as the Board shall deem necessary.

Article VIII Rights and Duties of Sending and Receiving States

  1. Whenever the duly constituted judicial or administrative authorities in a state party to the Compact and which has entered a contract under Article VI, shall decide that incarceration of a woman prisoner within the territory of another party state is necessary in order to provide adequate quarters and care or desirable in order to provide the best available program of rehabilitation said officials may direct that the incarceration be within a prison or other correctional institution within the territory of said other party state, such receiving state to act in that regard solely as agent for the sending state.
  2. Upon the request of the South Central Interstate Corrections Board established by Article III of this Compact, any state which adopts this Compact may designate a correctional institution for women within said state as a “Compact Institution” wherein other party states may incarcerate women prisoners whenever contracts therefor shall be made pursuant to Article VI of this Compact. The appropriate administrative and legislative officials of any state party to this Compact shall have access to any Compact Institution at all reasonable times for the purpose of inspecting the facilities thereof and visiting such of its prisoners as may be confined in the institution.
  3. Persons confined in a Compact Institution pursuant to the terms of this Compact shall at all times be subject to the jurisdiction of the sending state and may at any time be removed from said Compact Institution for transfer to a prison or other correctional institution within the sending state, for transfer to another Compact Institution, for release on probation or parole, for discharge, or for any other purpose permitted by the laws of the sending state, provided that the sending state shall continue to be obligated to such payments as may be provided pursuant to the terms of any contracts entered into under the provisions of Article VI.
  4. Each receiving state shall provide regular reports to each sending state on the inmates of that sending state in the Compact Institution including a conduct record of each inmate and certify said record to the official designated by the sending state, in order that each inmate may have the benefit of her record in determining and altering the disposition of said inmate in accordance with the law which may obtain in the sending state and in order that the same may be a source of information for the sending state.
  5. All persons who may be confined in a Compact Institution pursuant to the provisions of this Compact shall be treated in a reasonable and humane manner. The fact of incarceration in a receiving state shall not deprive any person so incarcerated of any legal rights which said person would have had if incarcerated in an appropriate institution of the sending state.
  6. Any hearing or hearings to which a prisoner incarcerated pursuant to this Compact may be entitled by the laws of the sending state may be had before the appropriate authorities of the sending state or of the receiving state if authorized by the sending state. The receiving state shall provide adequate facilities for such hearings as may be conducted by the appropriate officials of a sending state. In the event that such hearing or hearings are had before officials of the receiving state, the governing law shall be that of the sending state and a record of the hearing or hearings as prescribed by the sending state shall be made. Said record together with any recommendations of the hearing officials shall be transmitted forthwith to the official or officials before whom the hearing would have been had if it had taken place in the sending state. In any and all proceedings had pursuant to the provisions of this subdivision, the officials of the receiving state shall act solely as agents of the sending state and no final determination shall be made in any matter except by the appropriate officials of the sending state. Costs of records made pursuant to this subdivision shall be borne by the sending state.
  7. Any person incarcerated under the terms of this Compact shall be released within the territory of the sending state unless the prisoner and the sending and receiving states shall agree upon release in some other place. The sending state shall bear the cost of such return to its territory.

Article IX When Effective

This Compact shall enter into force and become effective and binding upon the states so acting when it has been enacted by any two of the States of Alabama, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, Tennessee, and Texas, and, thereafter, shall enter into force and become effective and binding as to any other of said states upon similar action by such other state.

Article X Withdrawal

This Compact shall continue in force and remain binding upon a party state until the legislature or Governor of such state, as its laws shall provide, takes action to withdraw therefrom. Such action shall not be effective until two years after the notice thereof has been sent by the Governor of the state desiring to withdraw to the Governors of all the other states then party to the Compact. Such withdrawal shall not relieve the withdrawing state from its obligations assumed hereunder prior to the effective date of withdrawal. Before the effective date of withdrawal a withdrawing state shall remove to its territory at its own expense such prisoners as it may have incarcerated pursuant to the provisions of this Compact.

Article XI Severability

The provisions of this Compact shall be severable and if any phrase, clause, sentence, or provision of this Compact is declared to be unconstitutional or the applicability thereof to any state, agency, person, or circumstance is held invalid, the constitutionality of this Compact and the applicability thereof to any other state, agency, person, or circumstance shall not be affected thereby. It is intended that the provisions of this Compact be reasonable and liberally construed.

History. Acts 1957, No. 361, § 1; A.S.A. 1947, § 46-1001.

12-49-202. When compact effective — Exchange of documents.

  1. When the Governor shall have executed the Compact on behalf of this state and, shall have caused a verified copy thereof to be filed with the Secretary of State, and, when the Compact shall have been ratified by one (1) or more of the states named in § 12-49-201, then the Compact shall become operative and effective as between this state and such other state or states.
  2. The Governor is authorized and directed to take such action as may be necessary to complete the exchange of official documents as between this state and any other state ratifying the Compact.

History. Acts 1957, No. 361, § 2; A.S.A. 1947, § 46-1002.

Subchapter 3 — Bi-State Criminal Justice Center Compact

Cross References. Criminal justice centers, § 12-41-201 et seq.

12-49-301. Text of Bi-State Criminal Justice Center Compact.

SECTION 1

Click to view form.The State of Arkansas hereby relinquishes exclusive jurisdiction over the portion of the plant and facility of the Bi-State Criminal Justice Center which is located within the geographical boundary of the said state.

SECTION 2

Click to view form.The State of Texas hereby relinquishes exclusive jurisdiction over the portion of the plant and facility of the Bi-State Criminal Justice Center which is located within the geographical boundary of the said state.

SECTION 3

Click to view form.The States of Arkansas and Texas hereby recognize the existence of concurrent jurisdiction over the geographical areas of both states which are within the Bi-State Criminal Justice Center.

SECTION 4

Click to view form.The State of Arkansas recognizes that an inmate apprehended and charged in Texas maintains a jurisdictional situs (with Texas) within his person and extending to objects under his control, while incarcerated in the Bi-State facility.

SECTION 5

Click to view form.The State of Texas recognizes that an inmate apprehended and charged in Arkansas maintains a jurisdictional situs (with Arkansas) within his person and extending to objects under his control, while incarcerated in the Bi-State facility.

SECTION 6

Click to view form.The States of Arkansas and Texas mutually agree to refrain from taking custody of any inmate, for an offense committed prior to incarceration in the Bi-State facility, while that inmate is in custody of the other state, except through proper extraditionary proceedings.

SECTION 7

Click to view form.The States of Arkansas and Texas mutually agree to refrain from serving any inmate of the Bi-State facility in the custody of the other state, with civil process relating to a suit arising before incarceration, except in accordance with proper civil procedure statutes.

SECTION 8

Click to view form.The State of Arkansas grants use of its facility to the State of Texas for the purposes of establishing the venue of Bowie County within the concurrent jurisdiction of the facility in courtrooms situated geographically on the Arkansas side.

SECTION 9

Click to view form.The State of Texas grants use of its facility to the State of Arkansas for the purpose of establishing the venue of Miller County within the concurrent jurisdiction of the facility in courtrooms situated geographically on the Texas side.

SECTION 10

Click to view form.This Compact shall come into force and become effective and binding upon the states when it has been enacted into law by both states.

History. Acts 1979, No. 19, §§ 1-10; A.S.A. 1947, § 46-1501.

Subchapter 4 — Emergency Management Assistance Compact [Transferred]

12-49-401. [Transferred.]

A.C.R.C. Notes. This subchapter has been transferred to § 12-76-201 et seq.

12-49-402. [Transferred.]

Effective Dates. Acts 1987, No. 427, § 13: Mar. 26, 1987. Emergency clause provided: “The General Assembly hereby finds and declares that adequate and modern facilities are essential to the safety and welfare of the people of this state; and that adequate and modern facilities need to be made available and that the most feasible and least expensive way of financing and acquiring the same is by authorizing cooperative endeavors and private management under the authority of this act. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall be effective upon its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-50-101. Title.

This chapter shall be referred to and may be cited as the “Corrections Cooperative Endeavors and Private Management Act”.

History. Acts 1987, No. 427, § 1.

Case Notes

Cited: Gravett v. Villines, 314 Ark. 320, 862 S.W.2d 260 (1993).

12-50-102. Legislative determination.

  1. The General Assembly finds that adequate and modern prison facilities are essential to the safety and welfare of the people of this state.
  2. It is legislatively determined that adequate and modern prison facilities need to be made available and that a feasible and economic way of financing, constructing, acquiring, and operating prison facilities is by authorizing cooperative endeavors and private management under the authority of this chapter.

History. Acts 1987, No. 427, § 2.

12-50-103. Definitions.

As used in this chapter:

  1. “Board” means the Board of Corrections;
  2. “Bond” or “bonds” means all bonds, notes, certificates, or other instruments or evidences of indebtedness issued by the Arkansas Development Finance Authority to finance prison facilities;
  3. “Correctional services” means the following functions, services, and activities when provided within a prison or otherwise:
    1. The operation of facilities, including management, custody of inmates, and providing security;
    2. Food services, commissary, medical services, transportation, sanitation, or other ancillary services;
    3. Development and implementation assistance for classification, management, information systems, or other information systems or services;
    4. Education, training, and jobs programs; and
    5. Counseling, special treatment programs, or other programs for special needs;
  4. “Department” means the Department of Correction;
  5. “Director” means the Director of the Department of Correction;
  6. “Governing body” means:
    1. The city council or board of directors or comparable body for a city;
    2. The town council or board of directors or comparable body for a town; or
    3. The quorum court for a county;
  7. “Local facilities” means those correctional facilities that are under the jurisdiction of a political subdivision;
  8. “Political subdivision” means a city of any class, a town, or a county;
  9. “Prison”, “facility”, or “prison facility” means any institution operated by or under the authority of the department or a political subdivision, public facilities board, redevelopment district, county sheriff, or chief of police and includes, whether obtained by purchase, lease, construction, reconstruction, restoration, improvement, alteration, repair, or other means, any physical betterment or improvement related to the housing of inmates or any preliminary plans, studies, or surveys relative thereto; land or rights to land; and any furnishings, machines, vehicles, apparatus, or equipment for use in connection with any prison facility;
  10. “Prison contractor” or “contractor” means any entity entering a contractual agreement to provide any correctional services to inmates under the custody of the state or a political subdivision, public facilities board, or redevelopment district;
  11. “Private correctional facility” means any prison, facility, or prison facility in which correctional services for inmates are provided by a prison contractor or contractor;
  12. “State” means the State of Arkansas; and
  13. “State facilities” means those correctional facilities that are under the jurisdiction of the department.

History. Acts 1987, No. 427, § 3; 2001, No. 616, § 1.

12-50-104. Construction.

    1. This chapter shall be liberally construed to accomplish the intent and purposes thereof and shall be the sole authority required for the accomplishment of those purposes.
    2. To this end, it shall not be necessary to comply with general provisions of other laws dealing with public commodities and public facilities, their acquisition, construction, leasing, encumbering, or disposition, if the Board of Corrections and the regional corrections commission shall comply with § 12-50-106.
  1. The enumeration of any object, purpose, power, manner, method, and thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things.

History. Acts 1987, No. 427, § 12.

12-50-105. Regional correctional commissions.

  1. Political subdivisions may individually, or in combination with each other, contract with the state through the Division of Correction or with prison contractors for the financing, acquisition, construction, and operation of facilities for the housing of inmates.
    1. In the event two (2) or more counties jointly enter into an agreement with the state or with a prison contractor, they shall form a regional corrections commission, which shall be composed of the county judge of each county or his or her or her designee.
    2. In the case of a commission having an even number of parties, the appointed representatives of the parties to the commission shall select an additional person, who is acceptable to all representatives to the commission, to serve on the commission.
    3. The members of the commission shall serve terms of three (3) years' duration, shall be eligible for reappointment, and may be removed only for cause by the quorum court of the county which they represent.
    4. In the event of a vacancy other than by expiration of term, the vacancy shall be filled by the governing body of the county of the representative unable to complete his or her term.
    1. In the event that any city or town, with or without one (1) or more counties, enters into an agreement with the state or with a prison contractor, the chief executive officer of each city or town or his or her designee shall serve on the commission.
    2. In the case of a commission having an even number of parties, the appointed representatives of the parties to the commission shall select an additional person, who is acceptable to all other members of the commission, to serve on the commission.
    3. The members of the commission shall serve terms of three (3) years' duration, shall be eligible for reappointment, and may be removed only for cause by the governing body of the city or town which they represent.
    4. In the event of a vacancy other than by expiration of term, the vacancy shall be filled by the governing body of the political subdivision of the representative unable to complete his or her term.
  2. In any contract for correctional services entered into pursuant to this chapter by a regional corrections commission, the commission members shall submit to the governing body of each political subdivision for approval the following contract terms:
    1. The fee to be paid by each political subdivision;
    2. The minimum financial guarantees of each political subdivision; and
    3. The method of billing.

History. Acts 1987, No. 427, § 4; 2019, No. 910, § 840.

Amendments. The 2017 amendment inserted “county or regional” before “detention facility” in (a)(1); in (a)(2)(B), substituted “The county sheriff's office fund and the transfer of funds under subdivision (a)(2)(A) of this section are not” for “As an agency fund, the transfer of funds is not”; and, in (a)(3), inserted “actions described in this subsection” following “review”.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a).

12-50-106. Contracts for correctional facilities.

  1. The Division of Correction, any regional corrections commission, and any political subdivision are authorized to enter into contracts with each other and with prison contractors for the financing, acquiring, constructing, and operating of facilities.
  2. Any contract for the financing, acquiring, constructing, or operating of facilities between the division and a prison contractor shall be approved by the Board of Corrections, subject to the advice and consent of the Legislative Council.
  3. Contracts entered into under the terms of this chapter shall be negotiated with the firm found most qualified. However, no contract for correctional services may be entered into unless the private contractor demonstrates that it has:
    1. The qualifications, experience, and management personnel necessary to carry out the terms of the contract;
    2. The financial strength and ability to provide indemnification for liability arising from large prison management projects;
    3. Evidence of past performance of similar contracts; and
    4. The ability to comply with applicable court orders and correctional standards.
  4. Contracts awarded under this section, including contracts for the provision of correctional services or for the lease or use of public lands or buildings for use in the operation of state or local facilities, may be entered into for a period of up to twenty (20) years, subject to the requirement for annual appropriation of funds by each political subdivision and subject to the requirement of annual appropriations by the state.
  5. Contracts awarded under the provisions of this section at a minimum shall comply with the following:
    1. Provide for internal and perimeter security to protect the public, employees, and inmates;
    2. Provide inmates with work or training opportunities while incarcerated. However, the contractor shall not benefit financially from the labor of inmates;
    3. Impose discipline on inmates only in accordance with applicable rules and procedures; and
    4. Provide proper food, clothing, housing, and medical care for inmates.
  6. No contract for correctional services shall be entered into unless the following requirements are met:
    1. The contractor provides audited financial statements for the previous five (5) years, or for each of the years the contractor has been in operation, if fewer than five (5) years and provides other financial information as requested; and
      1. The contractor provides an adequate plan of indemnification, specifically including indemnity for civil rights claims.
      2. The indemnification plan shall be adequate to protect the state, political subdivisions, and public officials, including county sheriffs and chiefs of police, from all claims and losses incurred as a result of the contract.
      3. Nothing in this section is intended to deprive a prison contractor, the state, or a political subdivision of the benefits of any law limiting exposure to liability or setting a limit on damages.

History. Acts 1987, No. 427, § 5; 2017, No. 250, § 27; 2019, No. 910, § 841.

Amendments. The 2017 amendment, in (d), deleted “the provisions of” before “this section” and substituted “annual appropriations” for “biennial appropriations”.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a); and substituted “division” for “department” in (b).

12-50-107. Authority of security employees — Applicability of criminal laws.

  1. Security employees of a prison contractor shall be allowed to use force and shall be licensed pursuant to the Private Security Agency, Private Investigator, and School Security Licensing and Credentialing Act, § 17-40-101 et seq. The security employees shall exercise their powers and authority only while:
    1. On the grounds of an institution under the supervision of the prison contractor;
    2. Transporting inmates; and
    3. Pursuing escapees from the institution.
  2. The provisions of § 5-54-101 et seq. and § 12-29-109 shall apply to offenses committed by or with regard to inmates assigned to facilities or programs for which a prison contractor is providing correctional services.

History. Acts 1987, No. 427, §§ 6, 7.

12-50-108. Nondelegable responsibilities.

No contract for correctional services shall authorize, allow, or imply a delegation of authority or responsibility of the Director of the Department of Correction or the county sheriff of any county or the police chief of any city or town to a prison contractor for any of the following:

  1. Developing and implementing procedures for calculating inmate release and parole eligibility dates;
  2. Developing and implementing procedures for calculating and awarding sentence credits;
  3. Approving inmates for furlough and work release;
  4. Approving the type of work inmates may perform and the wages or sentence credits which may be given the inmates engaging in that work; and
  5. Granting, denying, or revoking sentence credits.

History. Acts 1987, No. 427, § 8.

12-50-109. Financing — Contracts with Arkansas Development Finance Authority.

    1. The Board of Corrections and any regional corrections commission may cooperate and contract with the Arkansas Development Finance Authority to provide for the payment of the principal of, premium, if any, interest on, and trustee's and paying agent's fees in connection with bonds issued to finance the acquisition, construction, and operation of prison facilities authorized under this chapter to be secured by a lien on and pledge of one (1) or more of the following:
      1. All revenues derived from payments to be made by the Division of Correction for the housing of prisoners;
      2. All revenues derived from payments to be made by political subdivisions for the housing of prisoners; or
      3. Any other revenues authorized by the General Assembly or the governing body of any political subdivision.
      1. Any documents relating to a pledge under subdivision (a)(1) of this section shall state that the pledge is subject to annual appropriation by the governing body or annual appropriation of the General Assembly, respectively.
      2. It is not necessary to the perfection of the lien and pledge for those purposes that the trustee in connection with the bond issue or the holders of the bonds take possession of the collateral security.
  1. In addition to any other approved method of financing, counties may utilize the provisions of the County Jail Revenue Bond Act of 1981, § 12-41-601 et seq., as a permissible means of financing correctional facilities to be used pursuant to the contracts entered into under the provisions of this chapter.

History. Acts 1987, No. 427, § 9; 2017, No. 250, § 28; 2019, No. 910, § 842.

Amendments. The 2017 amendment, in (a)(1), substituted “may” for “are authorized and empowered to”; in (a)(2)(A), substituted “a pledge under subdivision (a)(1) of this section” for “those pledges” and “annual” for “biennial” preceding “appropriation of the General Assembly”; and, in (a)(2)(B), substituted “It is not” for “It shall not be”.

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a)(1)(A).

12-50-110. Hiring preference.

State and political subdivision employees whose employment becomes subject to a contract with a private prison contractor shall be given a hiring preference for available positions for which they qualify by the private prison contractor.

History. Acts 1987, No. 427, § 10.

12-50-111. Private correctional facilities.

    1. No private correctional facility in which inmates committed to the Division of Correction, out-of-state inmates, or federal inmates are to be housed shall be constructed nor shall any facility be renovated for the purpose of creating a private correctional facility in which inmates committed to the division, out-of-state inmates, or federal inmates are to be housed within the state without review and approval by the Board of Corrections and review and approval by the Legislative Council.
    2. Review of requests for construction at a minimum shall include:
      1. Consideration of the location, design, security level, and financing of the facility; and
      2. The nature of the inmates to be housed in the facility.
    1. Except as provided in subsection (e) of this section, no facility located within this state, except a facility operated by the United States Bureau of Prisons, may house out-of-state or federal inmates without approval of the board.
    2. Review of requests to house such inmates may include, among other factors, consideration of the design and security level of the facility and the nature of the inmates to be housed in the facility.
    3. Approval must be obtained at least annually.
      1. Except as provided in subsection (e) of this section, no facility located within this state, except a facility operated by the United States Bureau of Prisons, may house out-of-state or federal inmates unless the board has certified that the state does not need some or all of the capacity of the facility for state inmates.
      2. Such certification shall be obtained at least annually.
    1. The board shall also certify the custody levels of any facility housing out-of-state or federal inmates.
  1. The board, in its discretion, may declare an emergency and waive the provisions of subsection (a) of this section to make use of available space for housing state inmates.
  2. Subsections (b) and (c) of this section shall not be construed to prohibit the temporary detention in this state of any out-of-state or federal inmate transported to this state for the purpose of appearing in court or any suspected alien detained by authority of the United States Department of Homeland Security, nor shall subsections (b) and (c) of this section be construed to alter or affect the operation of any interstate compact or agreement between this state or any other state or the federal government regarding the detention and housing of inmates.

History. Acts 1999, No. 380, § 1; 2019, No. 910, § 843.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” twice in (a)(1).

Chapter 50 Corrections Cooperative Endeavors and Private Management Act

Chapter 51 Interstate Commission for Adult Offender Supervision

Cross References. Interstate Compacts, § 12-49-101 et seq.

Subchapter 1 — General Provisions

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-51-101. Purpose.

  1. The compacting states to this interstate compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized pursuant to the bylaws and rules of this compact to travel across state lines both to and from each compacting state in such a manner as to track the location of offenders, transfer supervision authority in an orderly and efficient manner, and when necessary return offenders to the originating jurisdictions. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. § 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. It is the purpose of this compact and the interstate commission created hereunder, through means of joint and cooperative action among the compacting states to provide the framework for the promotion of public safety and protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision, and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits and obligations of the compact among the compacting states. In addition, this compact will create an interstate commission which will establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, corrections or other criminal justice agencies which will promulgate rules to achieve the purpose of this compact; ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; establish a system of uniform data collection, access to information on active cases by authorized criminal justice officials, and regular reporting of compact activities to heads of state councils, state executive, judicial, and legislative branches and criminal justice administrators; monitor compliance with rules governing interstate movement of offenders and initiate interventions to address and correct non-compliance; and coordinate training and education regarding regulations of interstate movement of offenders for officials involved in such activity.
  2. The compacting states recognize that there is no “right” of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of this compact and bylaws and rules promulgated hereunder. It is the policy of the compacting states that the activities conducted by the interstate commission created herein are the formation of public policies and are therefore public business.

History. Acts 2001, No. 253, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Law Enforcement and Emergency Management, 24 U. Ark. Little Rock L. Rev. 501.

12-51-102. Definitions.

As used in this compact, unless the context clearly requires a different construction:

  1. “Adult” means both individuals legally classified as adults and juveniles treated as adults by court order, statute, or operation of law;
  2. “Bylaws” mean those bylaws established by the interstate commission for its governance, or for directing or controlling the interstate commission's actions or conduct;
  3. “Compact administrator” means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the interstate commission and policies adopted by the state council under this compact;
  4. “Compacting state” means any state which has enacted the enabling legislation for this compact;
  5. “Commissioner” means the voting representative of each compacting state appointed pursuant to Article III of this compact, i.e., § 12-51-103;
  6. “Interstate commission” means the Interstate Commission for Adult Offender Supervision established by this compact;
  7. “Member” means the commissioner of a compacting state or designee, who shall be a person officially connected with the commissioner;
  8. “Noncompacting state” means any state which has not enacted the enabling legislation for this compact;
  9. “Offender” means an adult placed under or subject to supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies;
  10. “Person” means any individual, corporation, business enterprise, or other legal entity, either public or private;
  11. “Rules” means acts of the interstate commission, duly promulgated pursuant to Article VIII of this compact, i.e., § 12-51-302, substantially affecting interested parties in addition to the interstate commission, which shall have the force and effect of law in the compacting states;
  12. “State” means a state of the United States, the District of Columbia and any other territorial possessions of the United States; and
  13. “State council” means the resident members of the State Council for Interstate Adult Offender Supervision created by each state under Article III of this compact, i.e., § 12-51-103.

History. Acts 2001, No. 253, § 1.

12-51-103. Interstate Commission for Adult Offender Supervision.

    1. The compacting states hereby create the “Interstate Commission for Adult Offender Supervision”.
    2. The interstate commission shall be a body corporate and joint agency of the compacting states.
    3. The interstate commission shall have all the responsibilities, powers, and duties set forth herein, including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
  1. The interstate commission shall consist of commissioners selected and appointed by resident members of a state council for interstate adult offender supervision for each state.
    1. In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners but who are members of interested organizations. Such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general and crime victims.
    2. All noncommissioner members of the interstate commission shall be ex-officio (nonvoting) members. The interstate commission may provide in its bylaws for such additional, ex-officio, nonvoting members as it deems necessary.
    1. Each compacting state represented at any meeting of the interstate commission is entitled to one (1) vote.
    2. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission.
    3. The interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of twenty-seven (27) or more compacting states, shall call additional meetings.
    4. Public notice shall be given of all meetings and meetings shall be open to the public.
    1. The interstate commission shall establish an executive committee which shall include commission officers, members, and others as shall be determined by the bylaws.
    2. The executive committee shall have the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rulemaking and/or amendment to the compact.
    3. The executive committee oversees the day-to-day activities managed by the executive director and interstate commission staff administers enforcement and compliance with the provisions of the compact, its bylaws, and as directed by the interstate commission and performs other duties as directed by the commission or set forth in the bylaws.

History. Acts 2001, No. 253, § 1.

12-51-104. The state council.

  1. An Arkansas State Council for the Interstate Commission for Adult Offender Supervision is created, which shall consist of the following members:
    1. One (1) nonelected person, chosen from a list of five (5) names submitted by the Director of the Division of Community Correction, who will act as the representative of the legislative branch of government, to be appointed by the President Pro Tempore of the Senate;
    2. One (1) representative of the judicial branch of government, who is not an acting judge, appointed by the Governor;
    3. The members of the Board of Corrections, who will act as representatives of the executive branch of government, appointed by the Governor;
    4. One (1) representative from a victims group appointed by the Governor; and
    5. The Director of the Division of Community Correction or his or her designee who, in addition to serving as a member of the council, shall be appointed by the Governor as the compact administrator for the state.
  2. The council shall appoint the compact administrator as the Arkansas commissioner to the interstate commission, who shall serve on the interstate commission in such capacity under or pursuant to the applicable law of this state.
  3. The council shall exercise oversight and advocacy concerning its participation in interstate commission activities and other duties as may be determined by the council, including development of policy concerning operations and procedures of the compact within this state.

History. Acts 2001, No. 253, § 1; 2005, No. 1153, § 1; 2017, No. 240, § 1; 2019, No. 910, §§ 844, 845.

Amendments. The 2005 amendment rewrote (a)(1).

The 2017 amendment inserted “or his or her designee” in (a)(5).

The 2019 amendment substituted “Division of Community Correction” for “Department of Community Correction” in (a)(1) and (a)(5).

12-51-105. Powers and duties of the interstate commission.

The Interstate Commission for Adult Offender Supervision shall have the following powers:

  1. To adopt a seal and suitable bylaws governing the management and operation of the interstate commission;
  2. To promulgate rules which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact;
  3. To oversee, supervise, and coordinate the interstate movement of offenders subject to the terms of this compact and any bylaws adopted and rules promulgated by the compact commission;
  4. To enforce compliance with compact provisions, interstate commission rules and bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process;
  5. To establish and maintain offices;
  6. To purchase and maintain insurance and bonds;
  7. To borrow, accept, or contract for services of personnel, including, but not limited to, members and their staffs;
  8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions, including, but not limited to, an executive committee as required by Article III, i.e., § 12-51-103, which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties hereunder;
  9. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications; and to establish the interstate commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation, and qualifications of personnel;
  10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of same;
  11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed;
  12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;
  13. To establish a budget and make expenditures and levy dues as provided in Article X, i.e., § 12-51-601 et seq., of this compact;
  14. To sue and be sued;
  15. To provide for dispute resolution among compacting states;
  16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact;
  17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission;
  18. To coordinate education, training, and public awareness regarding the interstate movement of offenders for officials involved in such activity; and
  19. To establish uniform standards for the reporting, collecting, and exchanging of data.

History. Acts 2001, No. 253, § 1.

Subchapter 2 — Organization and Operation of the Interstate Commission

12-51-201. Bylaws.

The Interstate Commission for Adult Offender Supervision shall, by a majority of the members, within twelve (12) months of the first interstate commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:

  1. Establishing the fiscal year of the interstate commission; and
  2. Establishing an executive committee and such other committees as may be necessary, providing reasonable standards and procedures:
    1. For the establishment of committees;
    2. Governing any general or specific delegation of any authority or function of the interstate commission;
    3. Providing reasonable procedures for calling and conducting meetings of the interstate commission, and ensuring reasonable notice of each such meeting; establishing the titles and responsibilities of the officers of the interstate commission; providing reasonable standards and procedures for the establishment of the personnel policies and programs of the interstate commission. Notwithstanding any civil service or other similar laws of any compacting state, the bylaws shall exclusively govern the personnel policies and programs of the interstate commission; and
    4. Providing a mechanism for winding up the operations of the interstate commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations; providing transition rules for “start up” administration of the compact; establishing standards and procedures for compliance and technical assistance in carrying out the compact.

History. Acts 2001, No. 253, § 1.

12-51-202. Officers and staff.

    1. The Interstate Commission for Adult Offender Supervision shall, by a majority of the members, elect from among its members a chair and a vice chair, each of whom shall have such authorities and duties as may be specified in the bylaws.
    2. The chair or, in his or her absence or disability, the vice chair, shall preside at all meetings of the interstate commission.
    3. The officers so elected shall serve without compensation or remuneration from the interstate commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission.
    1. The interstate commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the interstate commission may deem appropriate.
    2. The executive director shall serve as secretary to the interstate commission, and hire and supervise such other staff as may be authorized by the interstate commission, but shall not be a member.

History. Acts 2001, No. 253, § 1.

12-51-203. Corporate records of the interstate commission.

The Interstate Commission for Adult Offender Supervision shall maintain its corporate books and records in accordance with the bylaws.

History. Acts 2001, No. 253, § 1.

12-51-204. Qualified immunity, defense, and indemnification.

    1. The members, officers, executive director, and employees of the Interstate Commission for Adult Offender Supervision shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities; provided, that nothing in this subdivision (a)(1) of this section shall be construed to protect any such person from suit and/or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.
    2. The interstate commission shall defend the commissioner of a compacting state, or his or her representatives or employees, or the interstate commission's representatives or employees, in any civil action seeking to impose liability, arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities; provided, that the actual or alleged act, error, or omission did not result from intentional wrongdoing on the part of such person.
  1. The interstate commission shall indemnify and hold the commissioner of a compacting state, the appointed designee, or employees, or the interstate commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities; provided, that the actual or alleged act, error, or omission did not result from gross negligence or intentional wrongdoing on the part of such person.

History. Acts 2001, No. 253, § 1.

Subchapter 3 — Activities and Functions of the Interstate Commission

12-51-301. Activities of the interstate commission.

  1. The Interstate Commission for Adult Offender Supervision shall meet and take such actions as are consistent with the provisions of this compact.
  2. Except as otherwise provided in this compact and unless a greater percentage is required by the bylaws, in order to constitute an act of the interstate commission, such act shall have been taken at a meeting of the interstate commission and shall have received an affirmative vote of a majority of the members present.
    1. Each member of the interstate commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission.
      1. A member shall vote in person on behalf of the state and shall not delegate a vote to another member state.
      2. However, a state council shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting.
    2. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone, or other means of telecommunication or electronic communication, shall be subject to the same quorum requirements of meetings where members are present in person.
  3. The interstate commission shall meet at least once during each calendar year. The chair of the interstate commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.
    1. The interstate commission's bylaws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying.
    2. The interstate commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
    3. In promulgating such rules, the interstate commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.
    1. Public notice shall be given of all meetings, and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact.
    2. The interstate commission shall promulgate rules consistent with the principles contained in the “Government in Sunshine Act”, 5 U.S C. § 552(b), as may be amended.
    3. The interstate commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:
      1. Relate solely to the interstate commission's internal personnel practices and procedures;
      2. Disclose matters specifically exempted from disclosure by statute; disclose trade secrets or commercial or financial information which is privileged or confidential;
      3. Involve accusing any person of a crime, or formally censuring any person;
      4. Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
      5. Disclose investigatory records compiled for law enforcement purposes;
      6. Disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of, the interstate commission with respect to a regulated entity for the purpose of regulation or supervision of such entity;
      7. Disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity;
      8. Specifically relate to the interstate commission's issuance of a subpoena, or its participation in a civil action or proceeding.
    1. For every meeting closed pursuant to this provision, the interstate commission's chief legal officer shall publicly certify that, in his or her opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision.
    2. The interstate commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item, and the record of any roll call vote, reflected in the vote of each member on the question.
    3. All documents considered in connection with any action shall be identified in such minutes.
  4. The interstate commission shall collect standardized data concerning the interstate movement of offenders as directed through its bylaws and rules which shall specify the data to be collected, the means of collection, and data exchange and reporting requirements.

History. Acts 2001, No. 253, § 1.

12-51-302. Rulemaking functions of the interstate commission.

  1. The Interstate Commission for Adult Offender Supervision shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states.
    1. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto.
    2. Such rulemaking shall substantially conform to the principles of the Federal Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the Federal Advisory Committee Act, 5 U.S.C. app. 2, § 1 et seq., as may be amended, hereinafter “APA”.
    3. All rules and amendments shall become binding as of the date specified in each rule or amendment.
  2. If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.
  3. When promulgating a rule, the interstate commission shall:
    1. Publish the proposed rule stating with particularity the text of the rule which is proposed and the reason for the proposed rule;
    2. Allow persons to submit written data, facts, opinions, and arguments, which information shall be publicly available;
    3. Provide an opportunity for an informal hearing; and
    4. Promulgate a final rule and its effective date, if appropriate, based on the rulemaking record.
  4. Not later than sixty (60) days after a rule is promulgated, any interested person may file a petition in the United States District Court for the District of Columbia, or in the Federal District Court where the interstate commission's principal office is located for judicial review of such rule. If the court finds that the interstate commission's action is not supported by substantial evidence, as defined in the APA, in the rulemaking record, the court shall hold the rule unlawful and set it aside.
  5. Subjects to be addressed within twelve (12) months after the first meeting must at a minimum include:
    1. Notice to victims and opportunity to be heard;
    2. Offender registration and compliance;
    3. Violations or returns;
    4. Transfer procedures and forms;
    5. Eligibility for transfer;
    6. Collection of restitution and fees from offenders;
    7. Data collection and reporting;
    8. The level of supervision to be provided by the receiving state;
    9. Transition rules governing the operation of the compact and the interstate commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact; and
    10. Mediation, arbitration, and dispute resolution.
  6. The existing rules governing the operation of the previous compact superceded by this chapter shall be null and void twelve (12) months after the first meeting of the interstate commission created hereunder.
  7. Upon determination by the interstate commission that an emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the rule.

History. Acts 2001, No. 253, § 1.

Subchapter 4 — Oversight, Enforcement, and Dispute Resolution by the Interstate Commission

12-51-401. Oversight.

  1. The Interstate Commission for Adult Offender Supervision shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.
  2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the interstate commission, the interstate commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.

History. Acts 2001, No. 253, § 1.

12-51-402. Dispute resolution.

  1. The compacting states shall report to the Interstate Commission for Adult Offender Supervision on issues or activities of concern to them, and cooperate with and support the interstate commission in the discharge of its duties and responsibilities.
  2. The interstate commission shall attempt to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and noncompacting states.
  3. The interstate commission shall enact a bylaw or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

History. Acts 2001, No. 253, § 1.

12-51-403. Enforcement.

The Interstate Commission for Adult Offender Supervision in the reasonable exercise of its discretion shall enforce the provisions of this compact using any or all means set forth in Article XII, Section B, i.e., § 12-51-602, of this compact.

History. Acts 2001, No. 253, § 1.

Subchapter 5 — Finance

12-51-501. Expenses — Assessments — Accounts.

  1. The Interstate Commission for Adult Offender Supervision shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
    1. The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff which must be in a total amount sufficient to cover the interstate commission's annual budget as approved each year.
    2. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.
  2. The interstate commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
    1. The interstate commission shall keep accurate accounts of all receipts and disbursements.
    2. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission.

History. Acts 2001, No. 253, § 1.

12-51-502. Compacting states, effective date, and amendment.

    1. Any state, as defined in Article II of this compact, i.e., § 12-51-102, is eligible to become a compacting state.
    2. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five (35) of the states.
    3. The initial effective date shall be the later of July 1, 2001, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state.
    4. The governors of nonmember states or their designees will be invited to participate in Interstate Commission for Adult Offender Supervision activities on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
    1. Amendments to the compact may be proposed by the interstate commission for enactment by the compacting states.
    2. No amendment shall become effective and binding upon the interstate commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

History. Acts 2001, No. 253, § 1.

Subchapter 6 — Withdraw, Default, Termination, and Judicial Enforcement

12-51-601. Withdrawal.

  1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided, that a compacting state may withdraw from the compact as a “withdrawing state” by enacting a statute specifically repealing the statute which enacted the compact into law.
  2. The effective date of withdrawal is the effective date of the repeal.
    1. The withdrawing state shall immediately notify the chair of the Interstate Commission for Adult Offender Supervision in writing upon the introduction of legislation repealing this compact in the withdrawing state.
    2. The interstate commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt thereof.
  3. The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.
  4. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission.

History. Acts 2001, No. 253, § 1.

12-51-602. Default.

  1. If the Interstate Commission for Adult Offender Supervision determines that any compacting state has at any time defaulted as a “defaulting state” in the performance of any of its obligations or responsibilities under this compact, the bylaws, or any duly promulgated rules, the interstate commission may impose any or all of the following penalties:
    1. Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the interstate commission;
    2. Remedial training and technical assistance as directed by the interstate commission; and
    3. Suspension and termination of membership in the compact.
      1. Suspension shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted.
      2. Immediate notice of suspension shall be given by the interstate commission to the Governor, the Chief Justice or Chief Judicial Officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council.
    1. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, interstate commission bylaws, or duly promulgated rules.
    2. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate commission on the defaulting state pending a cure of the default.
    3. The interstate commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the interstate commission, in addition to any other penalties imposed herein, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of suspension.
    4. Within sixty (60) days of the effective date of termination of a defaulting state, the interstate commission shall notify the Governor, the Chief Justice or Chief Judicial Officer, and the majority and minority leaders of the defaulting state's legislature and the state council of such termination.
  2. The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including any obligations, the performance of which extends beyond the effective date of termination.
    1. The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the interstate commission and the defaulting state.
    2. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules.

History. Acts 2001, No. 253, § 1.

12-51-603. Judicial enforcement.

  1. The Interstate Commission for Adult Offender Supervision may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the interstate commission, in the Federal District where the interstate commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and bylaws, against any compacting state in default.
  2. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney's fees.

History. Acts 2001, No. 253, § 1.

12-51-604. Dissolution of compact.

  1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one (1) compacting state.
  2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission for Adult Offender Supervision shall be wound up and any surplus funds shall be distributed in accordance with the bylaws.

History. Acts 2001, No. 253, § 1.

Subchapter 7 — Severability and Construction

12-51-701. Severability and construction.

  1. The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
  2. The provisions of this compact shall be liberally constructed to effectuate its purposes.

History. Acts 2001, No. 253, § 1.

Subchapter 8 — Binding Effect of Compact and Other Laws

12-51-801. Other laws.

  1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
  2. All compacting states' laws conflicting with this compact are superseded to the extent of the conflict.

History. Acts 2001, No. 253, § 1.

A.C.R.C. Notes. Acts 2001, No. 253, § 1 also provided:

“(c) Arkansas Code 16-93-901 through 903 is repealed.”

12-51-802. Binding effect of the compact.

  1. All lawful actions of the Interstate Commission for Adult Offender Supervision, including all rules and bylaws promulgated by the interstate commission, are binding upon the compacting states.
  2. All agreements between the interstate commission and the compacting states are binding in accordance with their terms.
  3. Upon the request of a party to a conflict over meaning or interpretation of interstate commission actions, and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding such meaning or interpretation.
  4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the interstate commission shall be ineffective and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this compact becomes effective.

History. Acts 2001, No. 253, § 1.

Subchapter 9 — Responsible Agencies

12-51-901. Responsible agencies.

A fine, fee, or cost that may be levied against the state under the interstate compact under this chapter shall be paid by the entity that either failed to meet the obligation or responsibility of the interstate compact or failed to comply with a bylaw or rule of the Interstate Commission for Adult Offender Supervision, to the extent permitted by the interstate compact.

History. Acts 2019, No. 134, § 1.

Chapters 52-59 [Reserved.]

[Reserved.]

Subtitle 4. Military Affairs

Chapter 60 General Provisions

Effective Dates. Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

Acts 2019, No. 211, § 23: Feb. 26, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the removal of officers who are substandard in performance of duty or in conduct, deficient in character, or unsuited for military service is of paramount importance to the good order and discipline of the Arkansas National Guard and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

12-60-101. Title.

Chapters 60 through 64 of this title shall be known and may be cited as the “Military Code of Arkansas”.

History. Acts 1969, No. 50, § 1; A.S.A. 1947, § 11-101; Acts 2015, No. 1003, § 1.

Amendments. The 2015 amendment substituted “Chapters 60 through 64 of this title” for “This code” and inserted “and may be cited”.

12-60-102. Definitions.

As used in this code:

  1. “Accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused;
  2. “Active state duty” means duty in the active military service of the state under an order of the Governor issued pursuant to authority vested in him or her by law and while going to and returning from such duty;
  3. “Code” means the Military Code of Arkansas, Title 12, Chapters 60 through 64;
  4. “Commanding officer” includes only commissioned officers;
  5. “Commissioned officer” includes a commissioned warrant officer;
  6. “Convening authority” includes, in addition to the person who convened the court, a commissioned officer in command for the time being and successors in command;
  7. “Duty status” means the time from the date when a person is required by the terms of a call or order to obey the call or order and includes any of the following periods:
    1. Travel to and from a training site or duty station;
    2. Intervals between consecutive periods of inactive duty training on the same day;
    3. Intervals between inactive duty training on consecutive days; or
    4. The entire day that inactive duty training is performed;
  8. “Enemy” shall be deemed to include any person or persons engaged or participating in a riot, riotous activity, resistance to lawful process, insurrection, or rebellious assembly;
  9. “Enlisted member” means a person enlisted in, or inducted, called, or conscripted into, an armed force in an enlisted grade;
  10. “Extramarital conduct” means any of the following acts engaged in by two (2) persons of the same or opposite sex:
    1. Genital-to-genital sexual intercourse;
    2. Oral-to-genital sexual contact;
    3. Anal-to-genital sexual contact; or
    4. Oral-to-anal sexual contact;
  11. “Grade” means a step or degree in a graduated scale of office or military rank that is established and designated as a grade by law or rule;
  12. “Law officer” means an official of a general court-martial detailed in accordance with this code;
  13. “Military” refers to any or all of the armed forces;
  14. “Military court” means a court-martial, a court of inquiry, or a provost court;
  15. “Officer” means a commissioned or warrant officer;
  16. “Organized militia” means the National Guard of the state as defined in 32 U.S.C. § 101(3);
  17. “Rank” means the order of precedence among members of the armed forces;
  18. “Sexual conduct” means any act of:
    1. Sexual gratification involving penetration, however slight, of the anus or mouth of a person by the penis of another person;
    2. Sexual gratification involving penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person;
    3. Penetration, however slight, of the labia majora by a penis;
  19. “State Judge Advocate” means the commissioned officer responsible for supervising the administration of the military justice in the organized militia; and
  20. “Superior commissioned officer” means a commissioned officer superior in rank or command.

History. Acts 1969, No. 50, § 46; A.S.A. 1947, § 11-601; Acts 2015, No. 1003, § 2; 2019, No. 211, § 1; 2019, No. 315, § 916.

Amendments. The 2015 amendment deleted “unless the context otherwise requires” following “As used in this code” in the introductory language; added the definition for “Sexual conduct”; deleted definitions for “Duty status other than active state duty”, “May”, and “Shall”; arranged definitions in alphabetical order; substituted “the Military Code of Arkansas, Title 12, Chapters 60 through 64” for “this act” in (3); in (6), substituted “in command” for “commanding” and “and successors in command” for “or a successor in command”; and inserted “enlisted in, or inducted, called, or conscripted into, an armed force” in (8).

The 2019 amendment by No. 211 added the definitions for “Duty status” and “Extramarital conduct”.

The 2019 amendment by No. 315 substituted “rule” for “regulation” in (11).

Case Notes

Cited: Looper v. Thrash, 334 Ark. 212, 972 S.W.2d 250 (1998).

12-60-103. Persons subject to the code.

The following persons who are not in federal service are subject to this code:

  1. Members of the organized militia.
  2. All other persons lawfully ordered to a duty status in or with the organized militia, including the Army National Guard, Air National Guard, the Arkansas Guard, and all persons ordered to a duty status in or with any of the foregoing from the dates they are required by the terms of the order or other directive to obey the code.

History. Acts 1969, No. 50, § 47; A.S.A. 1947, § 11-602; Acts 2019, No. 211, § 2.

Amendments. The 2019 amendment substituted “to a duty status” for “to duty” twice in (2).

Cross References. Code to be explained, § 12-64-107.

12-60-104. Delegation of authority by the Governor or the commanding general of the organized militia.

  1. The Governor may delegate any authority vested in the Governor under this code, and may provide for the subdelegation of any such authority, except with respect to the power authorized in §§ 12-64-406(a) and 12-64-603(b) of this code.
  2. The commanding general of the organized militia may delegate any authority vested in the commanding general under this code, and may provide for the subdelegation of any such authority, except with respect to the power authorized in §§ 12-64-406(a) and 12-64-603(b) of this code.

History. Acts 1969, No. 50, § 174; A.S.A. 1947, § 11-685; Acts 2015, No. 1003, § 3.

Amendments. The 2015 amendment added “or the commanding general of the organized militia” in the section heading; in (a), substituted “the Governor” for “him” following “vested in” and substituted “authorized in” for “given him by”; and added (b).

Chapter 61 Military Forces

Cross References. Punitive articles, § 12-64-801 et seq.

Effective Dates. Acts 1997, No. 821, § 30: July 1, 1997. Emergency clause provided: “It is hereby found and determined by the Eighty-First General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1997 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1997 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997.”

Subchapter 1 — State Militia Generally

Effective Dates. Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

Acts 1977, No. 694, § 9: July 1, 1977. Emergency clause provided: “It is hereby found and determined by the Seventy-First General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1977 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1977 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1977.”

Acts 1983, No. 412, § 5: Mar. 13, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Governor should be granted the authority to designate certain military officers to administer the Oath of Enlistment to new members of the militia; that the crimes of assault and aggravated assault should be specifically provided for by the Military Code; that the jurisdiction of general, special, and summary courts-martial should be clarified; and that this act is immediately necessary to accomplish the same. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 670, § 11: Apr. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain disciplinary provisions of the state military code need to be strengthened; that this act results in the same and should be given effect prior to the 1985 annual training of the military personnel subject to the state military code; that April 1 is a reasonable date to expect that this act will have been passed by both houses and acted upon by the Governor and that a date certain is desirable for the effective date. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after April 1, 1985.”

Acts 1995, No. 639, § 26: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 2007, No. 47, § 11: Feb. 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are many members of the Arkansas National Guard and Reserves that are serving in active duty in Iraq and Afghanistan in the war on terror; that it is critical that Arkansas law be updated and be consistent with federal law and rules; and that this act is necessary to eliminate confusion regarding out-dated and inconsistent provisions in the Military Code of Arkansas. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Identical Acts 2016 (3rd Ex. Sess.), Nos. 2 and 3, § 128: July 1, 2016.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-61-101. Division and composition.

  1. The militia shall be divided into two (2) parts: the organized, consisting of the active and inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those persons of the militia not in the active or inactive Army National Guard or Air National Guard.
  2. The militia shall consist of all able-bodied male residents of the state between the ages of seventeen (17) and forty-five (45) years who are, or intend to become, citizens of the United States, unless exempt by law, together with all other acceptable volunteers, waiving necessary requirements.

History. Acts 1969, No. 50, §§ 2, 3; A.S.A. 1947, §§ 11-102, 11-103.

Publisher's Notes. Acts 1981, No. 45, §§ 4, 5, provided that the State Militia and the Arkansas Wing of the Civil Air Patrol, respectively, which were transferred by a type 2 transfer to the Department of Public Safety, Military Division, pursuant to Acts 1971, No. 38, § 14 [repealed], and all their powers, functions, duties, personnel, and funds would be detached from the Department of Public Safety (abolished by Acts 1981, No. 45, § 1) and restored to the State Militia and the State Military Department, the Arkansas Wing of the Civil Air Patrol to operate as a part of the State Military Department, all of which would operate and perform the same powers, functions, and duties as if they had never been transferred to the Department of Public Safety. The sections further provided that all members or heads of the State Militia, State Military Department, and the Arkansas Wing of the Civil Air Patrol would be appointed and serve as if the organizations had never been transferred to the Department of Public Safety. Section 4 provided, however, that the Adjutant General should be appointed as then provided by law.

The sections further provided that the act should not be so construed as to reduce any right that an employee of the State Militia, the State Military Department, or the Arkansas Wing of the Civil Air Patrol would have under any civil service or merit system.

Section 4 additionally provided that all the powers, functions, and duties added to the Military Division of the Department of Public Safety subsequent to the enactment of Acts 1971, No. 38 would be vested in and thereafter performed by the State Militia and the State Military Department.

Case Notes

Cited: Jones v. Clark, 278 Ark. 119, 644 S.W.2d 257 (1983).

12-61-102. Commander-in-Chief.

The Governor, by virtue of his or her office, shall be Commander-in-Chief of the militia, except the parts thereof as are ordered into the service of the United States.

History. Acts 1969, No. 50, § 4; A.S.A. 1947, § 11-104.

12-61-103. Governor's powers and duties generally.

    1. The Governor is authorized to make such rules governing the government, organization, discipline, and training of the militia as he or she may deem expedient.
    2. Such rules shall conform to the provisions of this code and, as nearly as practicable, to those governing the United States Armed Forces.
    3. When promulgated, the rules shall have the same force and effect as the provisions of this code.
    4. Such rules shall not be repealed, altered, amended, or added to, except with the approval of the Governor.
    5. The rules in force at the time of the passage of this code shall remain in force until new rules are approved and promulgated.
  1. The Governor may, by executive order, designate National Guard commissioned officers or warrant officers or active duty officers or warrant officers serving in armed forces recruiting offices inside or outside the State of Arkansas to administer the oath of enlistment to new members of the militia.
  2. Whenever he or she shall deem it necessary, the Governor may direct the members of the unorganized militia to present themselves for and submit to registration at such time and place and in such manner as may be prescribed by rule.

History. Acts 1969, No. 50, §§ 5, 199; 1983, No. 412, § 1; A.S.A. 1947, §§ 11-105, 11-1101; Acts 2019, No. 315, §§ 917, 918.

Amendments. The 2019 amendment deleted “and regulations” following “rules” throughout (a); and substituted “rule” for “regulations” in (c).

12-61-104. Custom and usage of the United States Armed Forces.

All matters relating to the organization, discipline, and government of the organized militia, not otherwise provided for in this code or in rules issued pursuant thereto, shall be as prescribed by the customs and usages of the appropriate force or forces of the United States.

History. Acts 1969, No. 50, § 200; A.S.A. 1947, § 11-1102; Acts 2019, No. 315, § 919.

Amendments. The 2019 amendment substituted “rules” for “regulations”.

12-61-105. Adjutant General — Qualifications — Salary.

  1. There shall be an Adjutant General of the state who shall be appointed by the Governor and shall be a commissioned officer in the Adjutant General's department of the National Guard of this state and shall have rank not higher than lieutenant general.
  2. To be eligible for appointment, he or she shall be a citizen of the United States and a resident of the State of Arkansas, and:
    1. He or she must be an officer in the active militia with not less than seven (7) successive years' service immediately next preceding his or her appointment; or
    2. He or she must have been in service in the active militia of this state as a commissioned officer for a period of fifteen (15) years, eight (8) of which were as a field grade officer or general officer, or both combined; or
    3. He or she must have held the rank of a field grade officer in the active militia and, as such, have been called into federal service and have commanded a unit during such service.
    1. The pay of the Adjutant General and the assistant adjutant general shall be the same as is allowed to officers of like grade, service, and rank by the pay tables of the United States Army or Air Force at the time such pay accrues.
    2. The Adjutant General is permitted to receive payments in addition to regular salary as provided by the Uniform Classification and Compensation Act, § 21-5-201 et seq., while serving in the federal position of technician while also serving as Adjutant General. Such additional payments are provided for in Title IV of the Intergovernmental Personnel Act of 1970, Pub. L. No. 91-648.

History. Acts 1969, No. 50, § 10; 1977, No. 694, § 6; A.S.A. 1947, §§ 11-110, 11-110.1; Acts 2007, No. 47, § 2.

U.S. Code. Title IV of the Intergovernmental Personnel Act of 1970, Pub. L. No. 91-648, is codified as 5 U.S.C. §§ 3371-3376.

12-61-106. Adjutant General — Powers and duties.

  1. In addition to being a state staff officer, the Adjutant General shall be the Chief-of-Staff to the Commander-in-Chief and the Secretary of the Department of the Military.
  2. He or she shall perform the duties prescribed for him or her in this code and in the rules issued thereunder and in the statutes of the United States.
  3. He or she shall direct and supervise the functions and duties of the chief-of-staff departments.
  4. He or she shall hold office as provided in the National Defense Act, as amended.
  5. He or she shall superintend the preparation of all returns and reports required by the United States from the state.
  6. He or she shall have the custody of all military records, correspondence, and other military documents.
  7. He or she shall be the medium of military correspondence with the Governor and perform all other duties pertaining to his or her office prescribed by law.
  8. He or she shall keep a register of all the officers of the military forces of the state.
  9. He or she shall keep in his or her office all records and papers required to be kept and filed therein. He or she shall make such reports to the Governor, at such times as the Governor may require, of all the transactions of his or her department, setting forth the number, strength, and condition of the active militia and such other matters as he or she may deem important, including a detailed statement of all the expenditures for military purposes during that fiscal year.
  10. He or she shall, at the expense of the state, when necessary, cause the military law, instruction pamphlets, orders, and the general regulations of the state and the United States to be printed, indexed, and distributed as deemed necessary.
  11. He or she shall cause to be prepared and issued all necessary blank books, blank forms, and notices required to carry into full effect the provisions of this code. All such books and blanks shall be and remain the property of the state.
  12. He or she shall procure and keep in his or her office a seal for the authentication of all certificates and other instruments emanating from his or her office, the device upon which such seal shall consist of a star with five (5) points with the words, “Office of the Adjutant General, State of Arkansas,” around the margin and shall deliver the seal to his or her successor. He or she shall attest all commissions issued to military officers.
  13. He or she shall keep a just and true account of all state expenses necessarily incurred, including pay of officers and enlisted personnel, allowances to officers and organizations, and any other moneys required to be disbursed by him or her and through his or her office, including subsistence of the militia, transportation of the militia and of all military property of the state; and such expenses shall be audited and paid in the same manner as other military accounts are audited and paid.
  14. The Adjutant General may, at his or her discretion, inspect all units of the militia.
  15. For the purpose of effectively carrying out the terms of this code, the Adjutant General shall have the power to prescribe such rules as he or she may from time to time deem necessary.

History. Acts 1969, No. 50, §§ 6, 204; A.S.A. 1947, §§ 11-110, 11-1106; Acts 2019, No. 315, §§ 920, 921; 2019, No. 910, § 5530.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b); and deleted “and regulations” following “rules” in (o).

The 2019 amendment by No. 910 substituted “Secretary of the Department of the Military” for “administrative head of the Military Department” in (a).

12-61-107. Employment of personnel.

  1. The Adjutant General shall have such assistance and such clerks, employees, and laborers as may be necessary from time to time who shall be appointed and may be removed by him or her at his or her discretion.
    1. The Adjutant General may designate those positions that require the employee to be a member of the National Guard.
    2. This subsection shall only apply to a person who begins employment with the State Military Department after August 12, 2005, and with the Department of the Military after July 1, 2019.

History. Acts 1969, No. 50, § 12; A.S.A. 1947, § 11-112; Acts 2005, No. 52, § 1; 2019, No. 910, § 5531.

A.C.R.C. Notes. As enacted by Acts 2005, No. 52, § 1, subdivision (b)(2) ended with “after the effective date of this act.”

Amendments. The 2019 amendment added “and with the Department of the Military after July 1, 2019” in (b)(2).

12-61-108. Deputy adjutants general.

    1. The Adjutant General is authorized to appoint, subject to the approval of the Governor, four (4) deputy adjutants general who will hold rank of not higher than one (1) grade below that held by the Adjutant General up to and including the rank of major general.
    2. Two (2) deputy adjutants general will be Army National Guard and two (2) deputy adjutants general will be Air National Guard.
    3. However, the foregoing shall not preclude the appointment of federally recognized lieutenant generals to perform the additional duties of deputy adjutants general.
  1. At the time of the appointment:
    1. He or she must be an officer in the active service in the Army National Guard or the Air National Guard of this state for three (3) successive years immediately preceding his or her appointment; or
    2. He or she must have been in the active service in the branch or arm for which appointed of the Army National Guard or Air National Guard as a commissioned officer; or
    3. If not in active National Guard service at the time of appointment, he or she must have had prior service of at least six (6) years in the branch or arm of the Army National Guard or Air National Guard of this state.
  2. The deputy adjutants general must have a thorough knowledge of the organization and missions of the departments and components of the armed forces of the United States.
  3. To be eligible for appointment as a Deputy Adjutant General for Air, the officer must be assigned to the Air National Guard in the rank of colonel, federally recognized.
  4. He or she shall subscribe to the oath of office prescribed for members of the Arkansas Army National Guard and Air National Guard, which oath shall be deposited in the office of the Adjutant General.
  5. He or she shall, during his or her term of office, be entitled to all rights, privileges, and immunities granted officers of like rank in the Arkansas National Guard.
  6. He or she shall aid the Adjutant General by the performance of such duties as may be assigned to him or her.

History. Acts 1969, No. 50, § 14; A.S.A. 1947, § 11-114; Acts 1987, No. 360, § 1; 1991, No. 510, § 1; 2007, No. 47, § 3.

12-61-109. Adjutant General — Delegation of authority.

The Adjutant General may designate by order any deputy adjutant general to act as the Adjutant General in the absence of the latter from his or her office or in case of his or her inability to perform the duties of his or her office. In the event of the inability of any deputy adjutant general to perform the duties of the Adjutant General, then the Adjutant General may appoint by order any qualified Army or Air Guard officer in the grade of colonel or above.

History. Acts 1969, No. 50, § 13; A.S.A. 1947, § 11-113; Acts 1989, No. 179, § 1; 1991, No. 510, § 2.

12-61-110. Property and finance officer.

  1. After consulting with the Adjutant General, the Governor shall appoint, designate, and detail, subject to the approval of the Secretary of the Army and confirmation by the Senate, an officer of the National Guard as the property and finance officer for the United States.
  2. He or she shall be a citizen of the United States, a resident of Arkansas, and shall have served on the active list as a commissioned officer of either the Army, Navy, Marine Corps, Air Force, or the National Guard of this state.
  3. He or she shall receive and account for all funds and property belonging to the United States in possession of the Arkansas National Guard and shall make such disbursements, returns, and reports as may be required by the Secretary of the Army.
  4. Before entering upon the performance of his or her duties, he or she shall be required to give good and sufficient bond to the United States in an amount determined by the Secretary of the Army for the faithful performance of his or her duties and for the safekeeping and proper disposition of the federal property and funds entrusted to him or her.

History. Acts 1969, No. 50, § 14; A.S.A. 1947, § 11-114; Acts 2015, No. 1100, § 9.

Amendments. The 2015 amendment, in (a), substituted “After consulting with the Adjutant General, the Governor” for “The Governor, upon recommendation of the Adjutant General” and inserted “and confirmation by the Senate”.

12-61-111. Ordering militia into service.

    1. The Governor shall have power to order into the active service of the state for such a period, to such extent, and in such manner as he or she may deem necessary, all or any part of the organized militia:
      1. In case of invasion, disaster, insurrection, riot, breach of the peace, or imminent danger thereof;
      2. To preserve the public health and security and maintain law and order;
      3. For the purpose of working with other state agencies in the planning and training for emergencies or disasters and to respond to emergencies or disasters; or
      4. For the purpose of addressing cybersecurity threats or cybersecurity vulnerabilities, including without limitation to protect:
        1. Critical infrastructure in the state;
        2. An information system owned or operated by the state;
        3. Information that is stored on, processed by, or transiting on an information system owned or operated by the state; or
        4. The state by identifying the source of a cybersecurity threat.
    2. Such power shall include the power to order the organized militia or any part thereof to function under the operational control of the United States Army, United States Navy, or United States Air Force commander in charge of the defense of any area within the state.
    1. Upon the request of either the judge or sheriff of a county or the mayor of a city, whenever it is made to appear to the Governor that there is a breach of the peace, riot, resistance to process of this state, or disaster or imminent danger thereof, the Governor may order into the active service of the state, for such period, to such extent, and in such manner as he or she may deem necessary, all or any part of the organized militia.
    2. The compensation of all officers and enlisted personnel while on duty or assembled pursuant to this subsection and all expenses incurred in connection with such duty or as a result thereof shall be paid in the manner prescribed by law.

History. Acts 1969, No. 50, §§ 6, 7; 1985, No. 670, § 1; A.S.A. 1947, §§ 11-106, 11-107; Acts 2009, No. 232, § 1; 2019, No. 149, § 1.

Amendments. The 2009 amendment, in (a)(1), inserted (C), rearranged and redesignated the remaining text, and made related changes.

The 2019 amendment added (a)(1)(D).

12-61-112. Powers, duties, and immunities of militia.

  1. Whenever such forces or any part thereof shall be ordered out for service of any kind, they shall have all powers, duties, and immunities of peace officers of the State of Arkansas in addition to all powers, duties, and immunities now otherwise provided by law.
  2. No officer or enlisted personnel of such forces shall be arrested on any warrant except for treason or felony while going to, remaining at, or returning from a place where they are ordered to attend for military duty.
  3. Whenever any part of the militia of the state is on active duty pursuant to the order of the Governor in the enforcement of the law or executing the orders of the Commander-in-Chief, the commanding officer of such troops may order the closing of any place where arms, ammunition, dynamite, or other explosives are sold and restrict or forbid the selling, bartering, lending, or giving away of any such articles so long as any of the troops remain on duty in such place, or in the vicinity where such place may be located, whether any civil officer has forbidden the same or not.
  4. The commanding officer of the organization on duty under this code will cooperate in aid of the civil power, but under the orders of the Commander-in-Chief or Adjutant General and not the civil authorities.

History. Acts 1969, No. 50, §§ 6, 7; A.S.A. 1947, §§ 11-106, 11-107.

12-61-113. Scope of duties — Service outside the state.

  1. The Governor may order the National Guard or any portion thereof to perform military duty of every description within the state. He or she may authorize participation in small arms and gunnery competitions by any part of the National Guard anywhere outside the state or outside the United States.
  2. Officers and enlisted personnel of the National Guard shall be subject to and governed by the provisions of this act while without this state under the order or authorization of the Governor under this section in like manner and to the same extent as when on duty within this state under orders of the Governor.

History. Acts 1969, No. 50, §§ 15, 16; A.S.A. 1947, §§ 11-115, 11-116.

12-61-114. Call to duty.

Officers and enlisted personnel may be ordered for duty either by stating the substance of the orders telephonically, personally, by mail, or in such other manner as may be prescribed by the Governor as he or she deems necessary to accomplish the purpose. Upon having given notice, there shall be a presumption that the officer or enlisted person was properly called to duty.

History. Acts 1969, No. 50, § 18; 1985, No. 670, § 2; A.S.A. 1947, § 11-118.

12-61-115. Proclamation of emergency.

  1. Whenever any portion of the militia is employed in aid of the civil authority, the Governor, if in his or her judgment the maintenance of law and order or preservation of the public health or security will thereby be promoted, may by proclamation declare the county, city, zone, or sector in which the troops are serving, or any specified portion thereof, to be in a state of insurrection or emergency.
  2. Should the Governor proclaim a state of insurrection or emergency hereunder and in the event the local courts or law enforcement officers are incapable of functioning, such legal functions in furtherance of the enforcement of the civil laws of the state shall be performed by the militia.
  3. This section does not authorize the seizure or confiscation of any firearm or ammunition from any individual who is lawfully carrying or possessing the firearm or ammunition.
  4. Any law enforcement officer or member of the militia who seizes or confiscates a firearm or ammunition from an individual under this section shall return the seized or confiscated firearm or ammunition to the individual unless:
    1. The individual is arrested for a criminal offense; or
    2. The seized firearm or ammunition is needed as evidence in the furtherance of an investigation of a criminal offense.

History. Acts 1969, No. 50, §§ 8, 20; A.S.A. 1947, §§ 11-108, 11-120; Acts 2007, No. 1578, § 1.

Case Notes

In General.

Subsection (a) of this section left the decision as to whether to issue a proclamation of a state of insurrection or emergency to the discretion of the Governor of Arkansas; however, the lack of such a proclamation did not mean that the National Guard's involvement in counterdrug surveillance was unlawful, particularly since the Governor had certified that the counterdrug plan complied with Arkansas law. United States v. Boyster, 436 F.3d 986 (8th Cir. 2006).

12-61-116. Excuse from duty.

  1. The officer ordering any military duty shall have the power to excuse any officer or enlisted person for absence therefrom upon good and sufficient grounds.
  2. The Governor, or commanding general of the National Guard with the approval of the Governor, may relieve any organization of the militia on active duty from the further performance of such duty and may order any other organization to perform such duty.
  3. However, the provisions of this section shall not curtail the rights of commanding officers to grant leaves of absence and furloughs as provided by rules unless they are specifically modified by orders from superior authority.

History. Acts 1969, No. 50, § 19; 1985, No. 670, § 2; A.S.A. 1947, § 11-119; Acts 2019, No. 315, § 922.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (c).

12-61-117. Draft of the unorganized militia — Failure to appear — Penalty.

  1. Whenever it shall be necessary in case of invasion, disaster, insurrection, riot, breach of the peace, or imminent danger thereof, or to maintain the organized militia or any force thereof at the number required for public safety or prescribed by the laws of the United States, the Governor may call for and accept from the unorganized militia as many volunteers as are required for service in the organized militia or he or she may direct the members of the unorganized militia or such of them as may be necessary to be drafted into the organized militia or any force thereof.
  2. Whenever it shall be necessary in such a case, the Governor may direct the members of the unorganized militia or such of them as may be necessary to be drafted, under such rules as he or she may prescribe, into the active service of the state to serve as directed by him or her.
  3. Any member of the unorganized militia who is ordered to register or to be drafted into the organized militia under the provisions of this code and who fails to appear at the time and place designated in such order shall be guilty of a misdemeanor and upon conviction by a civil court shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or imprisonment in the county jail for a term of not less than one (1) month nor more than one (1) year, or both.

History. Acts 1969, No. 50, § 9; A.S.A. 1947, § 11-109; Acts 2019, No. 315, § 923.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (b).

12-61-118. Resumption of National Guard service.

Upon the termination of any emergency for which the National Guard of Arkansas has been ordered into the military service of the United States, all enlisted personnel, upon being released under honorable conditions from the Army or Air Force of the United States, shall continue to serve in the National Guard of Arkansas until the dates upon which their enlistments prior to their active duty would have expired if uninterrupted. The commissioned officers shall resume their commissions in the National Guard of Arkansas in the respective grades held by them when ordered to active duty or in any higher grade which they may have attained while in service if appointed by the Governor to fill existing vacancies.

History. Acts 1969, No. 50, § 17; 1985, No. 670, § 2; A.S.A. 1947, § 11-117.

12-61-119. Credit for active federal service.

For all purposes under this code, members of the National Guard who entered the active military service of the United States in time of war or under a call, order, or draft by the President or who hereafter enter such service under like conditions or who enter and serve on active duty in the military service of the United States in time of peace or war and who thereafter return to the military service of the state shall be entitled to credit for time served as if such service had been rendered to the state.

History. Acts 1969, No. 50, § 27; A.S.A. 1947, § 11-207.

12-61-120. Credit for war service.

For all purposes under this code, officers and enlisted personnel of the National Guard who entered the active service of the United States in time of war or under a call or draft by the President or who enters such service under like conditions shall be entitled to credit for time so served as if such service had been rendered in the National Guard.

History. Acts 1969, No. 50, § 38; 1985, No. 670, § 4; A.S.A. 1947, § 11-406.

12-61-121. Awards, medals, etc.

    1. The Governor is authorized to award in the name of the State of Arkansas any medal, ribbon, or decoration for any exceptional or meritorious service rendered by any member of the organized militia.
    2. These include, but are not limited to, the “Arkansas Commendation Medal”, the “Arkansas Distinguished Service Medal”, and the “Arkansas Star of Honor”.
    3. The Department of the Military is authorized to promulgate necessary rules to establish the criteria under which any medal, ribbon, or decoration may be awarded.
  1. Whenever it shall appear to the satisfaction of the Adjutant General that any service medal duly issued by the State of Arkansas, in accordance with the military rules, to a member of the organized militia, has been lost or stolen, he or she may, in his or her discretion, and upon such terms as he or she may impose upon written application of the person originally entitled to such medal, issue a duplicate thereof.

History. Acts 1969, No. 50, §§ 201, 202; A.S.A. 1947, §§ 11-1103, 11-1104; Acts 1991, No. 550, § 1; 2007, No. 47, § 1; 2019, No. 315, §§ 924, 925; 2019, No. 910, § 5532.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (a)(3) and (b).

The 2019 amendment by No. 910 substituted “Department of the Military” for “State Military Department” in (a)(3).

12-61-122. National Guard associations.

  1. The officers or noncommissioned officers or members of any unit or units of the organized militia may organize themselves into an association or associations.
  2. The association or associations may adopt bylaws not inconsistent with the statutes of the state and alter and amend the bylaws and may take and hold such real and personal property as may be necessary for the purposes of the association.

History. Acts 1969, No. 50, § 203; A.S.A. 1947, § 11-1105.

12-61-123. Bureau of War Records.

  1. The Adjutant General may, at his or her discretion and with such funds as may be appropriated by the General Assembly, establish a Bureau of War Records.
  2. The bureau shall function in close connection with the Arkansas State Archives and shall gather items of military history of the Arkansas Militia for exhibition.
  3. The Adjutant General may adopt such reasonable and necessary rules as may be necessary to accomplish this purpose.

History. Acts 1969, No. 50, § 11; A.S.A. 1947, § 11-111; Acts 2016 (3rd Ex. Sess.), No. 2, § 96; 2016 (3rd Ex. Sess.), No. 3, § 96; 2019, No. 315, § 926.

A.C.R.C. Notes. Identical Acts 2016 (3rd Ex. Sess.), Nos. 2 and 3, § 1, provided:

“(a) The General Assembly finds:

“(1) State government provides vital functions that impact the lives of Arkansas citizens on a daily basis;

“(2) While these functions are important, it is equally important to ensure that state government operates efficiently and effectively to eliminate unnecessary spending of tax dollars and provide timely and quality services to Arkansas citizens; and

“(3) Issues such as the administrative organization of a governmental entity, the appointment structure of a governmental entity's governing board, and extraneous duties assigned to governmental entities hamper the operation of state government and result in unnecessary expenses and delays in the provision of state services.

“(b) It is the intent of this act to amend provisions of law applicable to certain agencies, task forces, committees, and commission to promote efficiency and effectiveness in the operations of state government as a whole.”

Amendments. The 2016 (3rd Ex. Sess.) amendment by identical acts Nos. 2 and 3 substituted “State Archives” for “History Commission” in (b).

The 2019 amendment substituted “rules” for “regulations” in (c).

12-61-124. National Guard Youth Challenge Program.

  1. The Adjutant General may, at his or her discretion and with such funds as may be appropriated by the General Assembly, or with such funds as may be provided by the United States, develop and implement a National Guard Youth Challenge Program for the purpose of providing training, education, health, welfare, rehabilitative, and other services to juveniles.
  2. The Adjutant General is authorized to enter into agreements, contracts, and memoranda of understanding with other state, federal, and local agencies, other persons, firms, and corporations for the purposes of providing training, education, health, welfare, rehabilitative, and other services to juveniles participating in the program.
  3. The Adjutant General may promulgate and issue such rules and other guidelines as may be necessary and proper to carry out the purposes and provisions of this section.
  4. [Repealed.]

History. Acts 1993, No. 375, § 1; 1995, No. 639, §§ 18, 19; 1997, No. 1201, § 2; 2019, No. 315, § 927; 2019, No. 910, § 5533.

Publisher's Notes. The 2019 amendment by No. 910 deleted the language “as may be implemented by the Adjutant General” from the end of subsection (b) without markup.

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “rules” in (c).

The 2019 amendment by No. 910 substituted “National Guard Youth Challenge Program” for “Civilian juvenile student training programs” in the section heading; substituted “a National Guard Youth Challenge Program” for “civilian juvenile student training programs” in (a); in (b), deleted “and the juvenile courts of this state” following “corporations”, and substituted “the program” for “such programs as may be implemented by the Adjutant General”; and deleted (d).

12-61-125. National Guard Youth Challenge Program — Stipend.

  1. Juvenile participants in the Arkansas National Guard Youth Challenge Program at Camp Joseph T. Robinson receiving services from the Arkansas National Guard are authorized to receive a monetary stipend, not to exceed fifteen dollars ($15.00) per week to defray personal hygiene and other personal necessities, and a monetary stipend not to exceed two thousand two hundred dollars ($2,200) upon graduation from the program to defray costs for additional job training or education.
  2. Juvenile participants are authorized to receive uniforms and clothing items as determined by the staff to be appropriate for effective participation in outdoor activities.

History. Acts 1995, No. 639, § 17; 1997, No. 821, § 21.

A.C.R.C. Notes. The 1997 act did not amend the section.

12-61-126. National Guard Youth Challenge Program — Transportation.

Transportation to support Arkansas National Guard Youth Challenge Program activities for juvenile participants and staff may be provided by commercial lease or purchase of motor vehicles not to exceed six (6) vehicles.

History. Acts 1995, No. 639 § 20; 1997, No. 821, § 24.

A.C.R.C. Notes. The 1997 act did not amend the section.

12-61-127. [Repealed.]

Publisher's Notes. This section, concerning Civilian Student Training Program stipend, uniforms, and clothing items, was repealed by Acts 2019, No. 910, § 5534, effective July 1, 2019. The section was derived from Acts 1995, No. 639, § 18; 1997, No. 821, § 22.

12-61-128. [Repealed.]

Publisher's Notes. This section, concerning Civilian Student Training Program transportation, was repealed by Acts 2019, No. 910, § 5535, effective July 1, 2019. The section was derived from Acts 1995, No. 639, § 19; 1997, No. 821, § 23.

Subchapter 2 — National Guard Generally

Cross References. Regulations governing use of national guard property, § 12-63-302.

Effective Dates. Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

Acts 1985, No. 670, § 11: Apr. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain disciplinary provisions of the state military code need to be strengthened; that this act results in the same and should be given effect prior to the 1985 annual training of the military personnel subject to the state military code; that April 1 is a reasonable date to expect that this act will have been passed by both houses and acted upon by the Governor and that a date certain is desirable for the effective date. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after April 1, 1985.”

Acts 2007, No. 47, § 11: Feb. 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are many members of the Arkansas National Guard and Reserves that are serving in active duty in Iraq and Afghanistan in the war on terror; that it is critical that Arkansas law be updated and be consistent with federal law and rules; and that this act is necessary to eliminate confusion regarding out-dated and inconsistent provisions in the Military Code of Arkansas. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-61-201. Commanding general of the organized militia.

  1. The organized militia shall be commanded by a general officer who shall be federally recognized or qualified for federal recognition in a rank not higher than lieutenant general.
  2. He or she shall be responsible for the military efficiency of the Arkansas organized militia.

History. Acts 1969, No. 50, § 21; A.S.A. 1947, § 11-201; Acts 2007, No. 47, § 4.

12-61-202. Army National Guard.

The land force of the organized militia shall be the Army National Guard as contemplated under the laws of the United States and shall comprise the army units which are a part of the Arkansas National Guard on February 12, 1969, and such other army units as may be allocated, accepted, and organized thereafter, including the personnel who are enlisted, appointed, or commissioned therein, provided that all persons who are members of the Army National Guard shall be federally recognized as such.

History. Acts 1969, No. 50, § 22; A.S.A. 1947, § 11-202.

Case Notes

Membership.

Upon the loss of his federal recognition, the Adjutant General lost his eligibility for membership in the Arkansas National Guard. Looper v. Thrash, 334 Ark. 212, 972 S.W.2d 250 (1998).

12-61-203. Air National Guard.

The air force of the organized militia shall be the Air National Guard as contemplated under the laws of the United States and shall comprise the air units which are a part of the Arkansas National Guard on February 12, 1969, and such other air units as may be allocated, accepted, and organized thereafter, including the personnel who are enlisted, appointed, or commissioned therein, provided that all persons who are members of the Air National Guard shall be federally recognized as such. The aviation units of the Army National Guard shall not be considered air units within the meaning of this code.

History. Acts 1969, No. 50, § 23; A.S.A. 1947, § 11-203.

12-61-204. Inactive National Guard.

The inactive National Guard shall consist of the persons commissioned, appointed, or enlisted therein on February 12, 1969, such officers and enlisted persons as may be thereafter transferred thereto from the Army National Guard and the Air National Guard, and such persons as may be commissioned or enlisted therein under the laws of the United States and the regulations thereunder.

History. Acts 1969, No. 50, § 28; 1985, No. 670, § 3; A.S.A. 1947, § 11-208.

12-61-205. Discipline, organization, and training.

  1. The system of discipline and training of the National Guard shall conform generally to that of the United States Armed Forces as it is now or may hereafter be prescribed by the President of the United States and conform to the provisions of the laws of the United States, except as otherwise provided in this code or by the rules issued by the Governor.
  2. The forces of the Army National Guard and Air National Guard shall be organized, equipped, armed, disciplined, governed, administered, and trained as prescribed by the laws of the United States and by this code and the regulations and rules issued thereunder.
  3. Pursuant to subsection (b) of this section, the Governor is authorized to organize, reorganize, or disband any unit, headquarters, or staff therein, to increase or decrease the number of commissioned officers, warrant officers and noncommissioned officers of any grade therein, and to increase or decrease the strength of the organized militia. However, no organization of the Army National Guard and Air National Guard, the members of which shall be entitled to and shall have received compensation under the provisions of the National Defense Act of 1916, as amended, shall be disbanded without the consent of the President of the United States, nor without such consent shall the commissioned or enlisted strength of any organization be reduced below the minimum that shall be prescribed therefor by the President of the United States.

History. Acts 1969, No. 50, §§ 24, 39; A.S.A. 1947, §§ 11-204, 11-407; Acts 2019, No. 315, § 928.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a); and inserted “and rules” following “regulations” in (b).

U.S. Code. The National Defense Act of 1916, referred to in this section, is Pub. L. No. 64-85, 39 Stat. 166. For current law, see generally Titles 10, 32, and 37 of the U.S. Code.

Research References

ALR.

Construction and Application of 37 U.S.C. § 206, Providing Compensation for Military Reserves and Members of National Guard with Respect to Inactive-Duty Training. 73 A.L.R. Fed. 2d 27.

12-61-206. Assemblies, annual training, and other duties.

  1. Members and units of the National Guard shall assemble for drill or other equivalent training, instruction, or duties during each year and shall participate in field training, encampments, maneuvers, schools, conferences, or other similar duties each year as may be prescribed by the laws of the United States and of the state and the regulations and rules issued thereunder. However, no assembly of any such unit of the organized militia shall be ordered in time of peace for any day during which a general election shall be held, except in case of riot, invasion, or insurrection or imminent danger thereof.
  2. Within the amount appropriated therefor, the Adjutant General may prescribe and order the number of days, if any, for assemblies or drills or other equivalent training, instruction, or duties to be performed annually by members of the National Guard for which they may receive pay and allowances.
  3. Within the amount appropriated therefor, the Adjutant General may prescribe and order the number of days, if any, of field training, encampments, maneuvers, schools, conferences, or other similar duties to be performed by members of the National Guard for which they may receive pay and allowances.
  4. Members of the National Guard may be ordered by the Governor or under his or her authority to perform special duty, including duty in a judicial proceeding or course of justice conducted pursuant to § 12-64-101 et seq., or as a member of or in any other capacity with any military board or as an investigating officer or as a medical examiner or as a judge advocate in the performance of legal services in any suit, action, or proceeding pertaining to the military.

History. Acts 1969, No. 50, § 25; A.S.A. 1947, § 11-205; Acts 2019, No. 315, § 929.

Amendments. The 2019 amendment inserted “and rules” following “regulations” in the first sentence of (a).

12-61-207. Female members.

The Governor may appoint, commission, and enlist female citizens of the state into the National Guard where the laws and regulations of the United States permit. While so serving, they will have the same status as male members of the military forces.

History. Acts 1969, No. 50, § 26; A.S.A. 1947, § 11-206.

Subchapter 3 — State Defense Force

Effective Dates. Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

Acts 1985, No. 670, § 11: Apr. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain disciplinary provisions of the state military code need to be strengthened; that this act results in the same and should be given effect prior to the 1985 annual training of the military personnel subject to the state military code; that April 1 is a reasonable date to expect that this act will have been passed by both houses and acted upon by the Governor and that a date certain is desirable for the effective date. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after April 1, 1985.”

12-61-301. Authority for calling.

The Arkansas State Defense Force may be called to active duty at the discretion of the Governor, when any part of the Arkansas National Guard shall have been called or ordered into federal service, or in any other emergency when the Governor shall deem it necessary to supplement the Arkansas National Guard.

History. Acts 1969, No. 50, § 40; 1985, No. 670, § 5; A.S.A. 1947, § 11-501; Acts 1989, No. 283, § 1.

A.C.R.C. Notes. In amending this subchapter, Acts 1989, No. 283, changed the name of the Arkansas State Guard to the Arkansas State Defense Force.

12-61-302. Organization and government.

  1. The Arkansas State Defense Force shall be organized and governed by the terms of this code and by such rules as may be promulgated from time to time.
  2. Except when otherwise provided, all provisions of this code and rules in respect to the Arkansas National Guard shall apply to the Arkansas State Defense Force.

History. Acts 1969, No. 50, § 41; A.S.A. 1947, § 11-502; Acts 2019, No. 315, § 930.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (a); and substituted “rules” for “regulations” in (b).

12-61-303. Duties, privileges, etc.

All duties imposed and all provisions relating to the privileges, immunities, and prohibitions of the Arkansas National Guard shall likewise apply to the Arkansas State Defense Force.

History. Acts 1969, No. 50, § 42; A.S.A. 1947, § 11-503.

12-61-304. Commander.

When organized for active state duty, the Arkansas State Defense Force shall be commanded by any general officer holding an Arkansas state commission, in a rank not above brigadier general, who shall be appointed by the Governor.

History. Acts 1969, No. 50, § 43; 1985, No. 670, § 6; A.S.A. 1947, § 11-504; Acts 1989, No. 283, § 2.

12-61-305. Assignments.

All officers and enlisted personnel of the organized militia not otherwise assigned may be assigned to the Arkansas State Defense Force for such time and in such manner as prescribed by rules promulgated by the Governor as he or she deems necessary.

History. Acts 1969, No. 50, § 44; 1985, No. 670, § 6; A.S.A. 1947, § 11-505; Acts 2019, No. 315, § 931.

Amendments. The 2019 amendment substituted “rules” for “regulations”.

12-61-306. Discharge and release.

Upon the release of officers and enlisted personnel from the Arkansas State Defense Force, they shall resume the status held by them prior to their activation.

History. Acts 1969, No. 50, § 45; 1985, No. 670, § 6; A.S.A. 1947, § 11-506; Acts 1989, No. 283, § 3.

Chapter 62 Military Personnel

Subchapter 1 — Officers

Effective Dates. Acts 2019, No. 148, § 2: Feb. 14, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the removal of officers who are substandard in performance of duty or in conduct, deficient in character, below medical standards for retention, or unsuited for military service is of paramount importance to the good order and discipline of the Arkansas National Guard and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

12-62-101. Appointment.

  1. All commissioned officers of the National Guard shall be appointed and promoted by the Governor upon recommendation of the Adjutant General and must be citizens of the United States eighteen (18) years of age or older.
  2. General officers above the grade of brigadier general shall be appointed and promoted by the Governor with the consent of the Senate. During the time that the Senate is not in session, the Governor may make such appointments subject to subsequent confirmation by the Senate.

History. Acts 1969, No. 50, § 29; A.S.A. 1947, § 11-301.

Publisher's Notes. Acts 1969, No. 50, § 31, provided that all the then-present commissioned officers and warrant officers of the National Guard would hold their respective commissions in the same grade and branch after the passage of the act, and that the commissions would be held in accordance with the provisions of the act.

12-62-102. Prerequisites to appointment — Disqualifications.

  1. No person shall be appointed or promoted as a commissioned officer in the National Guard unless he or she shall have passed such examination as to his or her physical, moral, and professional qualifications as may be prescribed by the United States and by this code and the regulations and rules issued thereunder.
  2. No person shall be recognized as a commissioned officer of the National Guard and no appointment as such shall become effective until he or she shall have taken and subscribed an oath of office.
  3. Any person who has been dismissed or dishonorably discharged from the National Guard of this or any other state or from the United States Armed Forces and has not been restored to duty or any commissioned officer who was discharged from the National Guard as a result of the findings of an efficiency examining board or whose resignation from the National Guard was accepted by the Governor at a time when such officer was under arrest or under charges for the commission of an offense punishable by a court-martial shall not be eligible for appointment as a commissioned officer in any force of the National Guard.

History. Acts 1969, No. 50, § 30; A.S.A. 1947, § 11-302; Acts 2019, No. 315, § 932.

Amendments. The 2019 amendment inserted “and rules” following “regulations” in (a).

12-62-103. Assignment and transfer.

Commissioned officers and warrant officers may be assigned, reassigned, transferred, or detailed to and from units within the National Guard as prescribed by the laws of the United States and this code and the regulations and rules issued thereunder.

History. Acts 1969, No. 50, § 32; A.S.A. 1947, § 11-304; Acts 2019, No. 315, § 933.

Amendments. The 2019 amendment inserted “and rules” following “regulations”.

12-62-104. Removal — Definition.

  1. The Adjutant General of the State of Arkansas shall have the power to remove an officer from the ranks of the Arkansas National Guard if the officer:
    1. Is refused federal recognition in the grade and branch to which he or she has applied;
    2. Has had federal recognition withdrawn in the grade and branch in which he or she was formerly recognized; or
    3. Has had state recognition withdrawn in the grade and branch in which he or she was formerly recognized.
  2. The Adjutant General shall adopt reasonable and necessary rules to accomplish this purpose, including without limitation a rule outlining the process required to have an officer's state recognition withdrawn as provided under subdivision (a)(3) of this section that is similar to the process for the withdrawal of federal recognition under 32 U.S.C. § 323, as it existed on January 1, 2019.
  3. As used in this section, “state recognition withdrawn” means the demotion of an officer of the Arkansas National Guard when it is determined that he or she is not qualified to be an officer in his or her current grade and branch based on a finding by a board of selection officers that the officer is:
    1. Substandard in the performance of his or her duty or in conduct;
    2. Deficient in character;
    3. Below medical standards for retention; or
    4. Unsuited for military service.

History. Acts 1989, No. 666, § 1; 2019, No. 148, § 1; 2019, No. 315, § 934.

Amendments. The 2019 amendment by No. 148 rewrote (a) and (b); and added (c).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b).

Subchapter 2 — Enlisted Personnel

Effective Dates. Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

Acts 1985, No. 670, § 11: Apr. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain disciplinary provisions of the state military code need to be strengthened; that this act results in the same and should be given effect prior to the 1985 annual training of the military personnel subject to the state military code; that April 1 is a reasonable date to expect that this act will have been passed by both houses and acted upon by the Governor and that a date certain is desirable for the effective date. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after April 1, 1985.”

12-62-201. Qualifications.

The qualifications for enlistment and reenlistment, the periods of enlistment, reenlistment, and voluntary extension of enlistment, the period of service, the form of oath to be taken, and the manner and form of transfer and discharge of enlisted personnel of the National Guard shall be those prescribed by the laws and regulations of the United States relating to the National Guard now or hereafter enacted.

History. Acts 1969, No. 50, § 33; A.S.A. 1947, § 11-401.

12-62-202. Extension of enlistments.

The Governor is authorized to extend the period of any enlistment, reenlistment, voluntary extension of enlistment and the period of service of enlisted personnel of the National Guard for a period not to exceed six (6) months after the termination of an emergency declared by him or her, the General Assembly, or Congress.

History. Acts 1969, No. 50, § 34; A.S.A. 1947, § 11-402.

12-62-203. Discharges.

An enlisted person discharged from service shall receive a discharge in writing in such form as may be prescribed by the Governor.

History. Acts 1969, No. 50, § 37; 1985, No. 670, § 4; A.S.A. 1947, § 11-405.

12-62-204. Dropping from the rolls.

An enlisted person of the National Guard may be dropped from the rolls under such regulations as the Governor may prescribe.

History. Acts 1969, No. 50, § 35; 1985, No. 670, § 4; A.S.A. 1947, § 11-403.

12-62-205. Restoration to duty.

An enlisted person dropped as a deserter may be restored to duty by the Governor and will thereafter serve for such period added to the time served prior to desertion as will amount to the full term for which that person enlisted.

History. Acts 1969, No. 50, § 36; 1985, No. 670, § 4; A.S.A. 1947, § 11-404.

Subchapter 3 — Pay and Allowances

Effective Dates. Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.

Acts 1975, No. 75, § 8: July 1, 1975. Emergency clause provided: “It is hereby found and determined by the Seventieth General Assembly that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two-year period; that the effectiveness of this act on July 1, 1975 is essential to the operation of the agency for which the appropriations in this act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1975 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1975.”

Acts 1975, No. 747, § 2: July 1, 1975. Emergency clause provided: “It is hereby found and determined by the Seventieth General Assembly that the employees, technicians and other contract personnel of the Arkansas National Guard should be afforded the same privileges as other state employees to be able to be included within membership of the Arkansas State Employees Retirement System. Therefore an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1975.”

Acts 1995, No. 1102, § 5: April 10, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly of the State of Arkansas that certain employees of the Arkansas National Guard failed to receive full credit service for their service time with the State of Arkansas; that this failure was due to an oversight on the part of the State of Arkansas and not through any fault of the National Guard employees affected; and that this situation in inequitable for the National Guard technicians and site contract employees involved. Therefore, in order to correct this inequitable situation, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 211, § 23: Feb. 26, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the removal of officers who are substandard in performance of duty or in conduct, deficient in character, or unsuited for military service is of paramount importance to the good order and discipline of the Arkansas National Guard and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

12-62-301. Pay generally.

Each officer, warrant officer, and enlisted person ordered for duty by the Governor or under his or her authority by the commanding general of the National Guard shall be paid by the state for every day actually on duty the same basic pay as officers and enlisted personnel of the United States Armed Forces of equal grade, rating, and length of service and such allowances as may be authorized in rules issued in accordance with the provisions of this code or at a flat daily rate of forty dollars ($40.00) for each day of twenty-four (24) hours or less actually spent on active duty, whichever is greater. However, officers and enlisted personnel shall not receive from the state the pay and allowances provided by this section when ordered on duty thereunder in compliance with instructions from the federal government for services for which they are to receive pay and allowances from federal funds.

History. Acts 1969, No. 50, § 184; 1981, No. 407, § 1; A.S.A. 1947, § 11-901; Acts 2019, No. 315, § 935.

Amendments. The 2019 amendment substituted “rules” for “regulations” in the first sentence.

12-62-302. Service on boards, commissions, and courts.

  1. Members of boards and commissions created by this code and all military personnel, detailed to serve on any board or commission ordered by the Governor, or under his or her authority by the commanding general of the National Guard, or on any court of inquiry, court-martial, or summary court, ordered by proper authority in pursuance of any provision of this code, shall be paid for each day actually employed in such board, commission, or court, or engaged in the business thereof, or in traveling to and from the same, and mileage necessarily traveled in going to and returning from such duty shall be allowed.
  2. The pay shall be the same as for officers and enlisted personnel of the United States Armed Forces of equal grade, rating, and length of service.
  3. Mileage payment shall be allowed for going and returning to serve any process or mandate of a military court, the distance to be computed from the place where it is served to the place where it is returnable.

History. Acts 1969, No. 50, § 186; 1981, No. 407, § 2; A.S.A. 1947, § 11-903; Acts 2019, No. 211, § 3.

Amendments. The 2019 amendment deleted “or at a flat daily rate of forty dollars ($40.00) for each day of twenty-four (24) hours or less actually spent on active duty, whichever is greater” following “service” in (b).

12-62-303. Special duty.

  1. Any commissioned officer assigned to special duty by the Governor or under his or her authority shall be paid for the time actually employed, and his or her necessary traveling expenses and subsistence, when such payment is authorized by the Governor.
  2. Judge advocates shall be paid, for services and necessary disbursements in bringing any suits provided for in this code and for services in actions or proceedings by habeas corpus, certiorari, or otherwise, such compensation as shall be approved by the Governor.
  3. All staff officers shall be paid for special service ordered by competent authority, with the approval of the Governor.
  4. Enlisted personnel on duty under the orders of the Governor, but not at the time serving with troops, shall receive pay, their actual traveling expenses, and subsistence.

History. Acts 1969, No. 50, § 187; A.S.A. 1947, § 11-904.

12-62-304. Pay and expenses — Civil disorders.

  1. All expenses incurred while on duty or assembled therefor by order of the Governor, upon the request of either the judge, sheriff of a county, or mayor of a city, in aid of the civil authorities, in case of riot, tumult, breach of peace, or resistance to process of this state, or to preserve the public health and safety; all expenses incurred in connection with such duty or as a result thereof, including quartering, caring for, warning for duty, and transporting and subsisting the troops; and all other expenses, including the expense incurred for pay, care, and subsistence of officers and enlisted personnel temporarily disabled in the line of duty, while on such duty, shall be paid by the county or city at the request of whose judge, sheriff, or mayor, as the case may be, the military forces of the state have been ordered out.
  2. If troops on duty in aid of the civil authorities render service in more than one (1) county or city, the expenses and compensation of the troops shall be apportioned among counties or cities in which the service is rendered by the officer who approves the vouchers and payrolls for such expenses and compensation, certified by the officers commanding the forces, and approved by the Governor. The Governor shall allow the expenses and direct that the claims be paid to the forces ordered to duty out of the general revenue of the county or city, as the case may be. However, where the troops are called out by the Governor to aid in the prevention or suppression of contagious diseases or other causes where the entire state is involved, the expenses shall be paid by the state.
  3. Any county treasurer or public officer who neglects or refuses to perform any of the duties required by this section shall be personally charged with the costs and all necessary disbursements of any action or proceeding brought to compel such performance, together with a reasonable additional allowance to the plaintiff or relator in the action or proceeding, to be fixed by the court.

History. Acts 1969, No. 50, § 185; A.S.A. 1947, § 11-902.

12-62-305. Pay and care — Service injury or disability.

Members of the Arkansas National Guard or militia, during the period in which they are in the active service of the state pursuant to orders of the Governor as provided by law, shall be entitled to coverage and benefits of the workers' compensation law for state employees, §§ 19-10-10119-10-103, 19-10-20219-10-210, and 19-10-40119-10-406.

History. Acts 1969, No. 50, § 189; A.S.A. 1947, § 11-906.

12-62-306. [Repealed.]

Publisher's Notes. This section, concerning uniform allowances, was repealed by Acts 1989, No. 667, § 1. The section was derived from Acts 1969, No. 50, § 188; A.S.A. 1947, § 11-905.

12-62-307. State employees.

Any member of the Arkansas National Guard who is also an employee of the State of Arkansas and is called to state military active duty and receives compensation therefor shall not be deemed to be receiving compensation in an amount greater than that established by the General Assembly as the maximum annual salary for the employee as provided in § 21-5-101(b)(3).

History. Acts 1975, No. 75, § 5.

12-62-308. Retirement system.

  1. The Board of Trustees of the Arkansas Public Employees' Retirement System is authorized to enter into agreements with the National Guard Bureau, or the appropriate federal agency, for including within the membership of the Arkansas Public Employees' Retirement System, as created by § 24-4-103, technicians employed by the Arkansas National Guard under authority of 32 U.S.C. § 709 and those contract personnel hired as state employees in accordance with the provisions of 10 U.S.C. § 2304(a)(10) [repealed].
  2. The Arkansas National Guard may pay the employer's share to the retirement system, or any part of the employer's contributions and interest, for credited service not credited to the employee by the Arkansas Public Employees' Retirement System from June 8, 1961, to July 1, 1975.
    1. Any employee of the National Guard included within the membership of the Arkansas Public Employees' Retirement System who was employed by the National Guard under the authority of 32 U.S.C. § 709, on July 1, 1961, shall be given credit for prior service rendered as an employee of the National Guard under the authority of 32 U.S.C. § 709, prior to July 1, 1957, if so employed by the National Guard on that date.
    2. Proof of such prior service shall be in such form as shall be required by the board of trustees.
    1. Arkansas National Guard technicians and site contract employees covered under the provisions of this section who have not received full credited service for their service time with the Arkansas National Guard from June 8, 1961, until July 1, 1975, may apply for and receive current service credit for service rendered as a full-time technician or site contract employee between June 8, 1961, and July 1, 1975.
    2. The employee shall receive credit only if the employee pays, or causes to be paid, to the Arkansas Public Employees' Retirement System Fund all necessary employer contributions and employee contributions that would have been paid had the employee been a member of the system during that time, together with interest thereon at the rate of six percent (6%) compounded annually from the date the contributions would have been paid until the payment is received by the system.
    3. The Arkansas National Guard may pay all or any part of the employer contributions and interest required.

History. Acts 1961, No. 47, §§ 1, 2; 1975, No. 747, § 1; A.S.A. 1947, §§ 11-909, 11-910; Acts 1995, No. 1102, § 1.

12-62-309. State-sponsored life insurance program — Definition.

  1. As used in this section, “state-sponsored life insurance program” means life insurance exclusively offered to the members of the Arkansas National Guard by the National Guard Association of Arkansas.
  2. The Adjutant General is the official sponsor of the Arkansas National Guard state-sponsored life insurance program and shall:
    1. Facilitate all efforts to make the state-sponsored life insurance program available to the members of the Arkansas National Guard;
    2. Provide an opportunity for members of the Arkansas National Guard to purchase state-sponsored life insurance program products;
    3. Allow state-sponsored life insurance program representatives to provide members of the Arkansas National Guard with state-sponsored life insurance program briefings during annual training and drill weekends to educate members of the Arkansas National Guard on the benefits of the state-sponsored life insurance program; and
    4. Allow, facilitate, and coordinate requested allotments with the appropriate United States Property and Fiscal Office for purposes of the state-sponsored life insurance program.

History. Acts 2019, No. 922, § 1.

Subchapter 4 — Privileges

Effective Dates. Acts 1943, No. 147, § 4: effective on passage. Emergency declared. Approved Mar. 4, 1943.

Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

Acts 1977, No. 86, § 4: Jan. 31, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that physicians, dentists, nurses, pharmacists, or other medical, dental, or nursing personnel should not be held personally liable for the performance of their official duties while engaged in official service as a member of the Arkansas National Guard, and that persons seeking remedies therefor should seek such remedies under the appropriate federal law or by filing a claim against the state, depending upon whether the service in the National Guard was on federal service on state service, and that the immediate passage of this act is necessary to clarify the law in this respect and thereby encourage medical, dental, and nursing personnel to engage in official service in the Arkansas National Guard. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2009, No. 956, § 34: Apr. 6, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that laws concerning juveniles need to be amended and updated; that the fair and efficient administration of juvenile law is highly important to society at large; and that this act is immediately necessary because the judiciary needs to begin addressing these changes in laws involving juveniles. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-62-401. Privilege from arrest.

The organized militia shall be privileged from arrest during their attendance at muster and attendance at drills and in going to and returning from attendance at muster and drills in all cases except treason, felony, and breach of the peace.

History. Acts 1969, No. 50, § 190; A.S.A. 1947, § 11-1001.

Cross References. Privilege from arrest, Ark. Const., Art. 11, § 3.

12-62-402. [Repealed.]

Publisher's Notes. This section, concering exemption from jury duty, was repealed by Acts 1997, No. 484, § 1. The section was derived from Acts 1969, No. 50, § 195; A.S.A. 1947, § 11-1006.

12-62-403. Exemption from civil process.

No person belonging to the organized militia shall be served with any civil process while going to, remaining at, or returning from any place at which he or she may be required to attend for military duty.

History. Acts 1969, No. 50, § 191; A.S.A. 1947, § 11-1002.

Case Notes

Constitutionality.

Because the parties did not dispute that service of process was improper under this section, which was constitutional, was substantive legislation, and thus, did not violate the separation of powers doctrine in Ark. Const., Art. 4, a circuit court's continued exercise of jurisdiction over a national guard member was a plain, manifest, clear, and gross abuse of discretion. Cato v. Craighead County Circuit Court, 2009 Ark. 334, 322 S.W.3d 484 (2009).

12-62-404. Civil or criminal liability for acts in scope of duty.

  1. Members of the militia ordered into the active service of the state by any proper authority shall not be civilly or criminally liable for any act or acts done by them in the performance of their duty.
    1. When an action or proceeding of any nature shall be commenced in any court by any person against any member of the militia for any act done by such officer in his or her official capacity in the discharge of any duty under this code or an alleged omission by him or her to do an act which it was his or her duty to perform or against any person acting under the authority or order of any such officer or by virtue of any warrant issued by him or her pursuant to law, the defendant may require the person instituting or prosecuting the action or proceeding to file security for the payment of costs that may be awarded to the defendant therein, and the defendant in all cases may make a general denial and give the special matter in evidence.
    2. A defendant, in whose favor a final judgment is rendered in an action or a final order is made in a special proceeding, shall recover treble costs.
    1. If any member of such forces is prosecuted by criminal action for any act performed or committed by such member while in the performance of military duty, all the expense of the defense of such action, including attorney's fees, witnesses' fees for the defense, defendant's court costs, and all costs for transcripts of records and abstracts thereof on appeal by the defense shall be paid by the state if:
      1. The Attorney General of the state shall be first consulted and approve the selection of the attorney for the defense;
      2. The Attorney General may, if he or she sees fit, assume the responsibility for the defense of such member and conduct the defense personally or by any one or more of his or her assistants.
    2. The expense of the defense, when not assumed by the Attorney General, shall be paid by the Adjutant General from funds appropriated to him or her upon vouchers and bills approved by the Attorney General.

History. Acts 1969, No. 50, § 197; A.S.A. 1947, § 11-1008.

12-62-405. Immunity of medical personnel from malpractice suits.

  1. No physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel, including medical and dental technicians, nursing assistants, and therapists, of the National Guard shall be liable for damages for personal injury, including death caused by negligence or wrongful acts or omission of any such physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel, including medical and dental technicians, nursing assistants, and therapists, while acting within the scope of his or her duties while on official duty as a member of the National Guard.
  2. Any person seeking damages from a physician, dentist, nurse, pharmacist, paramedical, or other supporting personnel, including medical and dental technicians, nursing assistants, and therapists, of the National Guard shall seek the remedies provided against the United States by 28 U.S.C. § 1346(b) if the cause of action arose while the member of the National Guard was in federal service or by filing a claim against the State of Arkansas if the alleged acts were performed by the member of the National Guard while on official state service.

History. Acts 1977, No. 86, § 1; A.S.A. 1947, § 11-1008.1; Acts 2005, No. 1962, § 52.

Cross References. Claims against state, § 19-10-101 et seq.

12-62-406. Stay of proceedings.

  1. All lawsuits pending in any court of this state in which any attorney for either party or any party is a member of the reserve components of the armed forces and who has been ordered to a period of active duty in the armed forces of the State of Arkansas or of the United States, pursuant to a written order issued by the authority of the President of the United States or the Governor of the State of Arkansas, upon written notice to the parties and the court, shall be stayed for a period of not less than fifteen (15) days preceding the period of active duty and for thirty (30) days following the period of active duty, unless for a time less as requested by the party or attorney. The proceedings shall be stayed without regard to the number of other attorneys also representing parties litigant. Judgments, decrees, sentences, or fines rendered or imposed in violation hereof after written notice for continuance has been filed hereunder shall be void and unenforceable.
    1. This section does not apply to any dependency-neglect actions.
    2. However, in dependency-neglect actions, a member of the National Guard or reserve component of the armed forces of the United States who has been ordered to a period of active duty in the armed forces of the State of Arkansas or the United States pursuant to a written order issued by the authority of the President of the United States or the Governor of the State of Arkansas shall be afforded the protections under the Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq., as in effect on February 1, 2011, to the same extent as if his or her duties were for federal military status.

History. Acts 1969, No. 50, § 198; A.S.A. 1947, § 11-1009; Acts 1991, No. 965, § 3; 2009, No. 956, § 30; 2011, No. 1170, § 1.

A.C.R.C. Notes. Acts 1991, No. 965, § 1, contained a preamble which read:

“The General Assembly finds that current law provides for continuances for members of the active militia who are parties or attorneys in lawsuits pending before the courts of this state and are called to active duty in service to the state, or to annual training, but there is no provision for continuances for members of the other reserve components of the armed forces, or for continuances where a soldier is called to active duty for purposes other than annual training.”

Acts 1991, No. 965, § 2, provided “The purpose of this act is to authorize a stay of proceedings in the courts of this state when a member of the reserve components of the armed forces, who is a party or attorney in the proceedings, is ordered to active duty pursuant to a written order.”

Amendments. The 2009 amendment added (b) and redesignated the existing text accordingly.

The 2011 amendment rewrote (b).

Research References

U. Ark. Little Rock L.J.

Survey — Property, 10 U. Ark. Little Rock L.J. 605.

12-62-407. Exemption from traffic laws.

The military forces of the organized militia with official insignia displayed, while on authorized duty, shall not be restricted by municipal traffic regulations. They shall have the right of way on any street or highway through which they may pass against all, except carriers of the United States mail, fire engines, police vehicles, and hospital ambulances in the necessary performance of their respective duties.

History. Acts 1991, No. 732, §§ 1-4, 6, 7.

12-62-408. Penalty for interference.

All others who shall hinder, delay, or obstruct any unit or portion of the organized militia wherever parading or performing any military duty, or who shall attempt to do so, shall be guilty of a misdemeanor and upon conviction shall be fined in any sum not less than fifty dollars ($50.00).

History. Acts 1969, No. 50, § 193; A.S.A. 1947, § 11-1004.

12-62-409. Free passage over toll bridges and ferries.

Any person belonging to the organized militia shall, together with the conveyance in his or her charge and property of the state in his or her charge, be allowed to pass free through all tollgates and over all ferries if he or she is in uniform or presents an order for duty or certificate of an order for duty.

History. Acts 1969, No. 50, § 194; A.S.A. 1947, § 11-1005.

12-62-410. Exemption from automobile tags, road taxes, and duties.

  1. In lieu of state and city automobile tags, each active member of the Arkansas Army National Guard and the Air National Guard shall be required to affix to their respective automobile or pick-up truck, if used as personal conveyance and not used for commercial purposes, a regulation tag to be supplied by the Adjutant General bearing a serial number and a National Guard designation.
  2. They shall likewise be exempt from the payment of any road tax and from any road duty whatsoever under the laws of this state.

History. Acts 1969, No. 50, § 195; A.S.A. 1947, § 11-1006.

12-62-411. Recordation of certificate of discharge.

  1. Any resident of the State of Arkansas who was in or called to military or naval service in the Army, Navy, Marine Corps, Coast Guard, Merchant Marine Corps, Women's Army Auxiliary Corps, Women's Auxiliary Volunteer for Emergency Service, Nurses, and all other branches of the armed forces of the United States during World War II, and has been discharged from such service, may present his or her certificate of discharge to the recorder of the county of his or her residence or from which he or she was called to service, and have the same recorded.
  2. It shall be the duty of the recorder in such county to record without charges and to index the discharge in a record book to be kept by him or her for that purpose.

History. Acts 1943, No. 147, §§ 1, 2; A.S.A. 1947, §§ 11-1705, 11-1706.

Publisher's Notes. As to recording of World War I certificates of discharge, see Acts 1919, No. 304.

12-62-412. Molestation of guard while on duty — Penalty.

  1. Any person who interrupts, molests, or insults by abusive words or behavior, or obstructs any officer or soldier of the organized militia while on duty, either at parade, drill meeting for military improvement, or other military duty may be immediately put and kept under guard by the officer in command until the duty is concluded.
  2. The officer may turn over such person to any peace officer of the city or place where the drill, parade, or meeting is being held, and the peace officer shall thereupon deliver the offender for examination and trial before any court having jurisdiction.
  3. Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction fined in any sum not less than fifty dollars ($50.00).

History. Acts 1969, No. 50, § 192; A.S.A. 1947, § 11-1003.

12-62-413. Employment protection for members of armed forces.

  1. A person who is called to active state duty as a member of the armed forces of this state or any other state, including without limitation the National Guard, a reserve component of the armed forces, or the militia, is afforded such employment and reemployment rights, privileges, benefits, and protections in employment as though that person had been called to active duty in the service of the United States and shall not be denied hiring, retention in employment, promotion, or other incidents or advantages of employment because of any obligation as a member of the armed forces.
  2. In any civil action to enforce the provisions of this section, the prevailing party may be allowed a reasonable attorney's fee to be assessed by the court and collected as costs.

History. Acts 1993, No. 925, § 1; 1993, No. 1036, § 1; 2011, No. 1164, § 2.

Amendments. The 2011 amendment, in (a), substituted “called to active state duty” for “called by the Governor to active state duty”, substituted “the armed forces of this state or any other state, including without limitation the National Guard, a reserve component of the armed forces, or the militia” for “the Arkansas National Guard or as a member of the militia”, and substituted “the armed forces” for “the Arkansas National Guard or the militia” at the end.

12-62-414. Extensions for renewing certain documents — Paying certain fees.

  1. A member of the National Guard or reserve component of the United States Armed Forces who is a resident of this state and who is ordered to active duty or state active duty to a duty station located outside of this state shall be allowed an extension for:
    1. Renewing a state:
      1. License;
      2. Permit;
      3. Registration;
      4. Credential; or
      5. Certificate; and
    2. Paying state:
      1. Taxes;
      2. Fees;
      3. Assessments; or
      4. Tuition.
  2. The extension shall be allowed without penalty or assessment of a late fee.
  3. The extension shall be effective for:
    1. The period that the service member is serving on active duty or state active duty at a duty station located outside of this state; and
    2. A period of at least ninety (90) days and not more than one (1) year after the service member is released from active duty or state active duty.
    1. Each department, division, office, board, commission, and institution of this state, including state-supported institutions of higher education, shall promulgate rules to establish the length of the extension.
    2. The extension established by rule shall be within the limits provided by this section.

History. Acts 2003, No. 996, § 1; 2019, No. 315, § 936; 2019, No. 462, §§ 11, 12.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (d)(1); and substituted “rule” for “regulation” in (d)(2).

The 2019 amendment by No. 462 inserted “or state active duty” in the introductory language of (a) and in (c)(1) and (c)(2).

Subchapter 5 — Arkansas National Guard Student Loan Repayment Program of 1995

Effective Dates. Acts 1995, No. 187, § 9: Feb. 7, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly that the 39th Bridgade of the Arkansas National Guard has been designated as an enhanced brigade carrier and will require additional personnel and that the immediate passage of this act is necessary to ensure the enlistment of qualified individuals. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 265, § 9: Feb. 13, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly of the State of Arkansas that the 39th Brigade of the Arkansas National Guard has been designated as an enhanced brigade carrier and will require additional personnel and that the immediate passage of this act is necessary to ensure the enlistment of qualified individuals. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-62-501. Legislative findings.

  1. The General Assembly recognizes that:
    1. Modern warfare and the corresponding advancements in weapons require a higher level of intelligence and skill and, therefore, a better educated soldier. Minimum enlistment criteria are increasing with the passage of time and the advent of new technology;
    2. While enlistment incentives have remained the same for Reserve forces, they have steadily declined or have been eliminated for the National Guard;
    3. States surrounding Arkansas have increased incentives to National Guard members, including tuition exemptions and waivers of out-of-state tuition for qualified active National Guard members;
    4. Other states have lost National Guard units but, because of Arkansas's historically high strength, the state has been selected to receive high-priority, high-strength units, actually increasing strength requirements for certain high-readiness units;
    5. The combined effect of these factors has caused assigned personnel strength relative to authorized strength levels in the Arkansas National Guard to decline steadily since early 1994; and
    6. As educational requirements increase, there are fewer enlistees who can qualify for critical specialties and as officer candidates.
  2. The General Assembly further recognizes that:
    1. In the absence of additional incentives, Arkansas's potential enlistees and current members will be attracted to active duty or to Reserve or National Guard units in surrounding states;
    2. While tuition incentives may replace other incentives that have been eliminated and may encourage college-qualified persons to enlist and continue their education, a loan repayment program encourages personal responsibility and long-term commitment to pursuit of educational goals;
    3. Utilizing a combined program of education loans and tuition incentives for new recruits and education loans for eligible existing members encourages a better-educated population while rewarding bright and responsible young persons for long-term community service in the National Guard; and
    4. An incentive that is targeted as an educational loan repayment has the dual benefit of encouraging and assisting the pursuit of postsecondary education while making enlistment in the Arkansas National Guard more attractive. The program also brings Arkansas's incentives for enlistment more in parity with surrounding states.

History. Acts 1995, No. 187, § 1; 1995, No. 265, § 1.

12-62-502. Definitions.

As used in this subchapter:

  1. “Approved institution” means an Arkansas public or private postsecondary institution that is accredited or has achieved candidacy status from the Higher Learning Commission or is a technical institute or comprehensive lifelong learning center under the supervision of the Division of Higher Education;
  2. “Eligible member” means both nonprior service and prior service persons who are otherwise qualified, whether or not currently serving, who are enlisting or extending their enlistment in the Arkansas National Guard for a period of at least six (6) years;
  3. “High personnel readiness units” means those units with special manpower needs as designated by the Adjutant General pursuant to rule, based upon:
    1. The mobilization priority of the unit;
    2. The difficulty of attracting, qualifying, and enlisting new members;
    3. The ability to maintain acceptable strength levels within the unit; and
    4. Such other factors as the Adjutant General may deem appropriate; and
  4. “Qualified applicant” means an eligible member who:
    1. Has met all requirements for enlistment or reenlistment and has enlisted in a position vacancy in a unit designated as a high personnel readiness unit;
    2. Has a sufficient score to be rated as category IIIA or higher based upon scores on standard military tests (score of 50 or higher on the Armed Services Vocational Aptitude Battery or equivalent);
    3. Meets and continues to meet Good Soldier or Good Airman criteria as set by the Adjutant General;
    4. Is a secondary school graduate or is expected to graduate from secondary school within two (2) years;
    5. Is not currently pursuing a postgraduate degree;
    6. Is not a permanent civilian technician or member of the active National Guard or Reserve, or extending or enlisting for the purpose of becoming either; and
    7. Meets the current scholastic criteria of and is currently approved to receive a student loan under any state or federal program approved by the Division of Higher Education, and is, or will be upon approval of such loan, enrolled as a full-time student in good standing at an approved institution.

History. Acts 1995, No. 187, § 2; 1995, No. 265, § 2; 2019, No. 315, § 937; 2019, No. 910, §§ 2228, 2229.

Amendments. The 2019 amendment by No. 315 substituted “rule” for “regulation” in the introductory language of (3).

The 2019 amendment by No. 910 substituted “Division of Higher Education” for “Department of Workforce Education” in (1); and substituted “Division of Higher Education” for “Department of Higher Education” in (4)(G).

12-62-503. Arkansas National Guard Student Loan Repayment Program.

  1. There is established the Arkansas National Guard Student Loan Repayment Program, which shall provide for the repayment of loans secured by qualified applicants who are eligible members of the Arkansas National Guard in amounts of up to one thousand dollars ($1,000) in principal per annum or five hundred dollars ($500) per semester, plus all related accrued interest, up to a maximum total loan principal of five thousand dollars ($5,000).
    1. No payment may be made for any loan that is in default at the time of application or award.
    2. Student loan repayment awards must be used at an approved institution.
    3. Student loan repayment awards are available only for payment toward undergraduate studies, when used at a college or university.
    4. Eligible members must enlist for at least six (6) years in a unit identified as a high readiness unit by the Adjutant General and have completed training and been awarded a military occupation specialty or Air Force skill code before payment may be made.
  2. In order to be eligible for a second or any subsequent semester award, a student must continue in good standing at an approved institution and must continue as a satisfactory participant in a high personnel readiness unit in the Arkansas National Guard, meeting Good Soldier or Good Airman requirements, as certified by his or her unit commander.

History. Acts 1995, No. 187, § 3; 1995, No. 265, § 3.

12-62-504. Application process.

    1. Qualified applicants for the Arkansas National Guard Student Loan Repayment Program may apply by obtaining an application form from, and signed by, his or her unit commander.
    2. The application shall include as an attachment a certification by an appropriate officer of the approved institution verifying that the applicant has been accepted or remains in good standing as a full-time student for the school year in which the loan repayment is sought, and must include certification from a qualified lending institution that a loan has been approved and is not in default.
      1. Qualified applicants must obtain an additional certification from the approved institution verifying his or her continued enrollment as a full-time student in good standing in order to receive the second or any subsequent semester award.
      2. Such certification shall be presented to the unit commander within thirty (30) days of the beginning of the semester for which a loan repayment is sought.
    1. Verification from a qualified lending institution that an approved loan is in place and not in default must accompany each subsequent certification.
    1. It shall be the responsibility of the unit to forward completed applications, including recertifications from an approved institution and verifications from the lender, to the Arkansas National Guard Incentive Officer for processing and payment.
    2. Payment shall be made directly to the approved institution, on behalf of and for the benefit of the qualified applicant, in a manner as may be established by rule of the Adjutant General.

History. Acts 1995, No. 187, § 4; 1995, No. 265, § 4; 2019, No. 315, § 938.

Amendments. The 2019 amendment substituted “rule” for “regulation” in (c)(2).

12-62-505. Rules.

    1. The Adjutant General shall establish, implement, and enforce such administrative rules as are necessary for implementation of the Arkansas National Guard Student Loan Repayment Program.
    2. The rules shall include criteria for selection from among applicants in those circumstances in which the number of applicants exceeds appropriated funding for the calendar year.
  1. In establishing rules relating to academic qualification, certification, recertification, and payment, the Adjutant General shall obtain the advice of the Division of Higher Education.
  2. To the extent possible, the division shall include the program among other existing financial aid programs and shall monitor the program and enforce policies, as necessary, to conform with division rules.

History. Acts 1995, No. 187, § 5; 1995, No. 265, § 5; 2019, No. 315, § 939; 2019, No. 910, § 2230.

Amendments. The 2019 amendment by No. 315 substituted “Rules” for “Regulations” in the section heading, and in (a)(2), (b), and (c); and deleted “and regulations” following “rules” in (a)(1).

The 2019 amendment by No. 910 substituted “Division of Higher Education” for “Department of Higher Education” in (b); and substituted “division” for “department” twice in (c).

Subchapter 6 — Arkansas National Guard Tuition Incentive Program

A.C.R.C. Notes. For current law, see § 6-60-214.

Acts 2017, No. 471, § 4, provided: “An eligible service member who is enrolled in an approved institution that is a private postsecondary institution and receiving a tuition incentive under the Arkansas National Guard Tuition Incentive Program as of the effective date of this act [March 13, 2017] shall continue to receive the tuition incentive under § 12-62-601 et seq., as it existed on January 1, 2017.”

12-62-601 — 12-62-605. [Repealed.]

Publisher's Notes. This subchapter, concerning the Arkansas National Guard Tuition Incentive Program, was repealed by Acts 2017, No. 471, § 3. The subchapter was derived from the following sources:

12-62-601. Acts 1995, No. 186, § 1; 1995, No. 346, § 1.

12-62-602. Acts 1995, No. 186, § 2; 1995, No. 346, § 2; 2009, No. 214, § 1; 2013, No. 1012, § 1; 2015, No. 865, § 13.

12-62-603. Acts 1995, No. 186, § 3; 1995, No. 346, § 3; 2009, No. 214, § 2.

12-62-604. Acts 1995, No. 186, § 4; 1995, No. 346, § 4.

12-62-605. Acts 1995, No. 186, § 5; 1995, No. 346, § 5; 2009, No. 214, § 3.

Subchapter 7 — Arkansas Soldiers' and Airmen's Civil Relief Act

12-62-701. Title.

This subchapter may be referred to as the Arkansas Soldiers' and Airmen's Civil Relief Act.

History. Acts 2003, No. 1003, § 1.

12-62-702. Findings.

  1. Soldiers and airmen of the Arkansas National Guard who are called into active military service for the State of Arkansas are ineligible for civil relief under federal law, namely, the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App. § 501 et seq.
  2. Relief should be provided to the soldiers and airmen when they are called into extended active military service for the State of Arkansas.

History. Acts 2003, No. 1003, § 2.

12-62-703. Purpose.

The purpose of this subchapter is to provide civil relief to soldiers and airmen of the Arkansas National Guard who are called into the extended active military service of the State of Arkansas.

History. Acts 2003, No. 1003, § 3.

12-62-704. Applicability.

This subchapter and the benefits of this subchapter apply to and may be claimed by a soldier, airman, or the spouse of a soldier or airman of the Arkansas National Guard who meets one (1) of the following requirements:

  1. The soldier or airman is ordered into the active military service of the State of Arkansas by the Governor under state law for a period of more than one hundred eighty (180) continuous days;
  2. The soldier or airman is ordered into the active military service of the State of Arkansas by the Governor under the provisions of Title 32, United States Code, for a period of more than one hundred eighty (180) continuous days; or
  3. The soldier or airman is ordered into active duty by the Governor under state law or under Title 32 of the United States Code for any period of time as a direct result of the execution of an Emergency Management Assistance Compact or proclamation by the Governor.

History. Acts 2003, No. 1003, § 4; 2019, No. 462, § 13.

Amendments. The 2019 amendment added (3).

Case Notes

Cited: Cato v. Craighead County Circuit Court, 2009 Ark. 334, 322 S.W.3d 484 (2009).

12-62-705. Residential leases.

When a soldier or airman is ordered to active military service of the State of Arkansas for more than one hundred eighty (180) days under § 12-62-704, the soldier or airman, or the spouse of the soldier or airman, is entitled to terminate and cancel the lease for the primary residence of the soldier, airman, or spouse of the soldier or airman as follows:

  1. The airman or soldier, the spouse of the soldier or airman, or his or her attorney-in-fact or lawfully appointed agent shall deliver a written notice to the lessor or the lessor's agent by any manner of mail, courier, or personal delivery accompanied by a written receipt as evidence of delivery;
  2. The notice shall state:
    1. The beginning date, and the ending date if known, that the soldier or airman has been ordered into the military service of the state;
    2. The unit name, address, and telephone number of the soldier's or airman's commanding officer or military superior who may verify the authenticity of the orders and where the soldier, airman, or spouse may be written; and
    3. That the soldier or airman, or spouse of the soldier or airman, claims the benefits of this subchapter and gives notice that his or her residential lease will be terminated as provided by this subchapter; and
    1. The notice shall be accompanied by:
      1. Payment of the current month's rent and any monthly charges regularly assessed as a monthly consideration of the lease; and
      2. Payment of the next month's rent and any monthly charges regularly assessed as a monthly consideration of the lease that shall accrue through the last day of the next month following the month during which the notice was mailed or delivered.
    2. Any prepaid monthly consideration, security deposit, or other sums held by the lessor may be deducted from the payment amounts.

History. Acts 2003, No. 1003, § 5.

12-62-706. Reopening default judgments.

  1. A default judgment rendered in any civil action against a service member during a period of military service or within thirty (30) days after termination of the military service may be set aside if:
    1. The person was prejudiced by reason of his or her military service in making a defense to the action;
    2. Application by the person or his or her legal representative is made to the court rendering the judgment not later than sixty (60) days after the termination of the military service; and
    3. The application provides enough facts that it appears that the person has a meritorious or legal defense to the action or some part of the action.
  2. Vacating, setting aside, or reversing any judgment because of any of the provisions of this subchapter may not impair any right or title acquired by any bona fide purchaser for value under the judgment.

History. Acts 2003, No. 1003, § 6.

12-62-707. Stay of proceedings.

  1. If at any point during an action or proceeding it appears that a plaintiff or defendant is a service member and in the conduct of the proceedings may be adversely affected by his or her military service, the court may, on its own motion, stay the proceedings.
  2. The court may stay the proceedings if the service member or another person on his or her behalf makes a request in writing to the court, unless the court determines on the record that the ability of the plaintiff to pursue the action or the defendant to conduct his or her defense is not materially affected by reason of his or her military service.

History. Acts 2003, No. 1003, § 7.

12-62-708. Fines and penalties on contracts.

  1. If compliance with the terms of a contract is stayed under this subchapter, a fine or penalty may not accrue by reason of failure to comply during the period of the stay.
  2. If a service member has not obtained a stay and a fine or penalty is imposed for nonperformance of an obligation, a court may relieve enforcement if the service member was in military service when the penalty was incurred and his or her ability to pay or perform was materially impaired.

History. Acts 2003, No. 1003, § 8.

12-62-709. Exercise of rights not to affect future financial transactions.

Application by a service member in military service for, or receipt of, a stay, postponement, or suspension under this subchapter in the payment of any fine, penalty, insurance premium, or other civil obligation or liability may not be used for any of the following:

  1. A determination by any lender or other person that the service member is unable to pay any civil obligation or liability in accordance with its terms;
  2. With respect to a credit transaction between a creditor and a service member:
    1. A denial or revocation of credit by the creditor;
    2. A change by the creditor in the terms of an existing credit arrangement; or
    3. A refusal by the creditor to grant credit to the service member in substantially the amount or on substantially the terms requested; or
  3. An adverse report relating to the creditworthiness of the service member by or to any person or entity engaged in the practice of assembling or evaluating consumer credit information.

History. Acts 2003, No. 1003, § 9.

12-62-710. Stay of execution of judgment.

Unless the court determines on the record that the ability of the service member to comply with the judgment or order entered or sought is not materially affected by reason of his or her military service, the court may, on its own motion, or upon application to it by the service member or another person on his or her behalf:

  1. Stay the execution of any judgment or order entered against the service member, as provided in this subchapter; and
  2. Vacate or stay any attachment or garnishment of property, money, or debts in the hands of another, whether before or after judgment as provided in this subchapter.

History. Acts 2003, No. 1003, § 10.

12-62-711. Duration of stay.

  1. Any stay of an action, proceeding, attachment, or execution ordered by any court under this subchapter may be ordered for the period of military service, plus sixty (60) days after its termination or any part of that time period.
  2. Where the service member in military service is a codefendant with others, the plaintiff, with leave of the court, may proceed against the others.

History. Acts 2003, No. 1003, § 11.

12-62-712. Statutes of limitations affected by military service.

The period of military service is not included in computing any period limited by law, rule, or order for bringing an action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his or her heirs, executors, administrators, or assigns, whether the cause of action or the right or privilege to institute the action or proceeding has accrued before or during the period of military service.

History. Acts 2003, No. 1003, § 12.

Case Notes

Cited: Cato v. Craighead County Circuit Court, 2009 Ark. 334, 322 S.W.3d 484 (2009).

12-62-713. Maximum rate of interest for state active military service.

  1. An obligation or liability bearing interest at a rate in excess of six percent (6%) per year incurred by a service member in military service before his or her entry into state active military service may not bear interest at a rate in excess of six percent (6%) per year during any part of the period of military service unless, in the opinion of the court and upon application to the court by the obligee, the ability of the service member to pay interest on the obligation or liability at a rate in excess of six percent (6%) per year is not materially affected by reason of his or her service.
  2. The court may make any order in the action that, in its opinion, is just.

History. Acts 2003, No. 1003, § 13.

12-62-714. Eviction or distress of dependents of state active military service members.

    1. Except as provided in subdivision (a)(2) of this section, a landlord may not evict or take and hold property of a service member or his or her dependents for nonpayment of rent during the service member's period of military service if the rent on the premises occupied by the service member or his or her dependents is less than one thousand two hundred dollars ($1,200) per month.
    2. If the landlord petitions the court for an order affecting the service member or his or her dependent's right of possession, then a court may allow the landlord to evict and hold the property of a service member or his or her dependents under this subdivision (a)(2).
  1. In any action affecting the right of possession, the court on its own motion may stay the proceedings for not longer than three (3) months or make any order the court determines to be reasonable and just under the circumstances unless the court finds that the ability of the tenant to pay the agreed rent is not materially affected by reason of the service member's military service.
  2. When a stay is granted or other order is made by the court, the owner of the premises shall be entitled, upon application, to relief with respect to the premises to the extent and for any period as the court determines to be just and reasonable under the circumstances.
  3. Any person who knowingly takes part, or attempts to do so, in any eviction or distress otherwise than as provided in subsection (a) of this section is guilty of an unclassified misdemeanor.
  4. The Governor may order an allotment of the pay of a service member in military service in reasonable proportion to discharge the rent of premises occupied for dwelling purposes by any dependents of the service member.

History. Acts 2003, No. 1003, § 14.

12-62-715. Installment contracts.

  1. The creditor of a service member who, before entry into military service, has entered into an installment contract for the purchase of real or personal property shall not terminate the contract or repossess the property for nonpayment or any breach occurring during military service without an order from a court of competent jurisdiction.
  2. The court, upon application to it under this section, unless the court finds on the record that the ability of the service member to comply with the terms of the contract is not materially affected by reason of his or her military service, may:
    1. Order repayment of any prior installments or deposits as a condition of terminating the contract and resuming possession of the property;
    2. Order a stay of the proceedings on its own motion or on a motion by the service member or another person on his or her behalf; or
    3. Make any other disposition of the case it considers to be equitable to conserve the interests of all parties.
  3. Any person who knowingly repossesses property that is the subject of this section other than as provided in subsection (a) of this section is guilty of an unclassified misdemeanor.

History. Acts 2003, No. 1003, § 15.

Cross References. Misdemeanors, § 5-1-107.

12-62-716. Mortgage foreclosures.

  1. The creditor of a service member who, before entry into military service, has entered into a mortgage contract with the service member or his or her dependent for the purchase of real or personal property may not foreclose on the mortgage or repossess the property for nonpayment or any breach occurring during military service without an order from a court of competent jurisdiction.
  2. The court, upon application under this section, unless the court finds on the record that the ability of the service member to comply with the terms of the mortgage is not materially affected by reason of his or her military service, may:
    1. Order repayment of any prior installments or deposits as a condition of terminating the contract and resuming possession of the property;
    2. Order a stay of the proceedings on its own motion or on motion by the service member or another person on his or her behalf; or
    3. Make any other disposition of the case as it considers to be equitable to conserve the interests of all parties.
  3. In order to come within the provisions of this section, the service member or dependent shall establish the following:
    1. The relief is sought on an obligation secured by a mortgage, trust deed, or other security in the nature of a mortgage on either real or personal property;
    2. The obligation originated before the service member's entry into military service;
    3. The property was owned by the service member or his or her dependent before the commencement of military service; and
    4. The property is still owned by the service member or his or her dependent at the time relief is sought.
  4. Any person who knowingly forecloses on property which is the subject of this section other than as provided in subsection (a) of this section is guilty of an unclassified misdemeanor.

History. Acts 2003, No. 1003, § 16.

Cross References. Misdemeanors, § 5-1-107.

12-62-717. Application for relief.

  1. A person, at any time during his or her period of military service or within sixty (60) days after discharge or termination, may apply to a court for relief in respect of any obligation or liability incurred by the person before his or her period of military service.
  2. The court, after appropriate notice and hearing, unless in its opinion the ability of the applicant to comply with the terms of the obligation or liability has not been materially affected by reason of his or her military service, may grant the following relief:
    1. In the case of an obligation payable under its terms in installments under a contract for the purchase of real estate or secured by a mortgage or other instrument in the nature of a mortgage upon real estate, a stay of the enforcement of the obligation during the applicant's period of military service, and from the date of termination of the period of military service or from the date of application if made after termination of military service, for a period equal to the period of the remaining life of the installment contract or other instrument plus a period of time equal to the period of military service of the applicant, or any part of the combined period, subject to payment of the balance of principal and accumulated interest due and unpaid at the date of termination of the period of military service or from the date of application, in equal installments during the combined period at the rate of interest on the unpaid balance as is prescribed in the contract, or other instrument evidencing the obligation, for installments paid when due, and subject to any other terms as the court may consider just; or
    2. In the case of any other obligation or liability, a stay of the enforcement during the applicant's period of military service, and from the date of termination of the period of military service or from the date of application, if made after termination of the period of military service, for a period of time equal to the period of military service of the applicant or any part of that period, subject to payment of the balance of principal and accumulated interest due and unpaid at the date of termination of the period of military service or the date of application, in equal periodic installments during the extended period at the rate of interest prescribed for the obligation or liability if paid when due, and subject to other terms the court considers to be reasonable and just.
  3. When any court has granted a stay as provided in this section, a fine or penalty may not be accrued for failure to comply with the terms or conditions of the obligation or liability for which the stay was granted during the period with which the terms and conditions of the stay are complied.

History. Acts 2003, No. 1003, § 17.

12-62-718. Storage liens.

    1. A person may not exercise any right to foreclose or enforce any lien for storage of household goods, furniture, or personal effects of a service member in military service during the service member's period of military service and for sixty (60) days after termination or discharge, except upon an order previously granted by a court upon application and a return to the court made and approved by the court.
    2. In the proceeding after hearing the matter, unless in the opinion of the court the ability of a service member to pay storage charges due is not materially affected by reason of his or her military service, the court on its own motion may, and shall on application to it by a service member in military service or another person on his or her behalf:
      1. Stay the proceedings as provided in this subchapter; or
      2. Make any other disposition the court considers to be equitable to conserve the interest of all the parties.
  1. Any person who knowingly takes any action contrary to the provisions of this section, or attempts to do so, is guilty of a misdemeanor.

History. Acts 2003, No. 1003, § 18.

Cross References. Misdemeanors, § 5-1-107.

Subchapter 8 — Military Service Protection Act

Effective Dates. Acts 2005, No. 920, § 2: Mar. 18, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that since September 11, 2001, the country has an increased need for soldiers to protect against terrorist acts and threats to our national security posed by other countries; that members of the National Guard and Reserves risk their lives to protect and defend our country at home and abroad; that military service is honorable and citizens who choose to serve their country deserve respect and to be treated fairly; that members of the National Guard and Reserves are being denied employment and being discriminated against in other ways because of their status as soldiers; and that this act is immediately necessary to protect the citizens who choose to honor their country by serving in the military from being denied employment or being discriminated against in other ways because of their military service. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-62-801. Title.

This subchapter shall be known and may be cited as the “Military Service Protection Act”.

History. Acts 2005, No. 920, § 1.

12-62-802. Definitions.

As used in this subchapter:

    1. “Back pay” means the amount of compensation that an employee would have earned if the employer had not engaged in conduct prohibited under this subchapter.
    2. “Back pay” shall not include any compensation that would have been earned before two (2) years from the date that the cause of action permitted under this subchapter is initially filed;
  1. “Compensatory damages” means damages for:
    1. Back pay and interest on back pay;
    2. Mental anguish;
    3. Loss of dignity; or
    4. Other intangible injuries;
    1. “Employee” means a person who performs work or service of any type for compensation on a full-time or part-time basis.
    2. “Employee” includes an applicant for a position to perform work or service for compensation.
    3. “Employee” does not include:
      1. Any individual employed by his or her parents, spouse, or child;
      2. An individual participating in a specialized employment training program conducted by a nonprofit sheltered workshop or rehabilitation facility;
      3. An individual employed outside the State of Arkansas; or
      4. An independent contractor;
  2. “Employer” means a person or entity who employs five (5) or more employees in the State of Arkansas in each of twenty (20) or more calendar weeks in the current or preceding calendar year before the cause of action arose, or any agent of the person;
  3. “Military service” means current honorable service or honorable discharge from service within six (6) months from the date of the alleged discrimination in any active or reserve component of the United States armed forces; and
  4. “Religious organization” means a church or other place of worship that:
    1. Is located in the state; and
    2. Provides religious services to its congregation.

History. Acts 2005, No. 920, § 1.

12-62-803. Applicability.

    1. This subchapter shall not be applicable to any of the following:
      1. The State of Arkansas;
      2. A state agency;
      3. A political subdivision;
      4. A city of the first class, a city of the second class, or an incorporated town;
      5. A county;
      6. A school district;
      7. A public official; or
      8. An agency, commission, board, committee, council, or department of any of the entities stated in this subdivision (a)(1).
    2. This subchapter shall not be construed as creating a cause of action against an entity stated in subdivision (a)(1) of this section.
  1. The provisions of this subchapter relating to employment shall not be applicable with respect to employment by a religious organization or other religious entity.
  2. This subchapter shall not apply to matters regulated by the Arkansas Insurance Code or the Trade Practices Act, § 23-66-201 et seq.

History. Acts 2005, No. 920, § 1.

Publisher's Notes. For codification of the Arkansas Insurance Code, see note at § 23-60-101.

12-62-804. Construction.

  1. Nothing in this subchapter shall be construed to waive the sovereign immunity of the State of Arkansas.
    1. When construing this subchapter as it relates to employment matters, a court may look for guidance to the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq., as in effect on January 1, 2005, as well as federal decisions interpreting the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq., as in effect on January 1, 2005.
    2. When construing this subchapter as it relates to all other matters, a court may look for guidance to state and federal decisions interpreting the Civil Rights Act of 1871, 42 U.S.C. § 1983, as in effect on January 1, 2005.

History. Acts 2005, No. 920, § 1.

12-62-805. Rights stated — Cause of action created.

    1. The right of an otherwise qualified person to be free from discrimination because of military service is recognized as and declared to be a civil right.
    2. This right shall include, but not be limited to:
      1. The right to obtain and hold employment without discrimination;
      2. The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;
      3. The right to engage in property transactions without discrimination;
      4. The right to engage in credit and other contractual transactions without discrimination; and
      5. The right to vote and participate fully in the political process.
  1. A person who is injured by an intentional act of discrimination in violation of subsection (a) of this section may bring a civil action in a circuit court of competent jurisdiction.
    1. An employee who is discriminated against by an employer in violation of subdivision (a)(2)(A) of this section may bring a civil action in a circuit court of competent jurisdiction.
    2. The employee may seek back pay and interest on back pay in addition to the other remedies provided for under this section.
    1. Subject to the limitations on damages in subdivision (d)(2) of this section, a person may seek the following relief for a violation of a civil right under this subchapter:
      1. An order prohibiting the discriminatory practice;
      2. Affirmative relief from the effects of the practice, including, but not limited to, reemployment;
      3. An injunction to enjoin further violations;
      4. An order to recover compensatory and punitive damages; and
      5. An order to recover the cost of litigation and a reasonable attorney's fee, in the discretion of the court.
    2. The total compensatory and punitive damages awarded under this section shall not exceed:
      1. The sum of fifteen thousand dollars ($15,000) in the case of an employer who employs no fewer than five (5) but fewer than fifteen (15) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year before the cause of action arose;
      2. The sum of fifty thousand dollars ($50,000) in the case of an employer who employs more than fourteen (14) but fewer than one hundred one (101) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year before the cause of action arose;
      3. The sum of one hundred thousand dollars ($100,000) in the case of an employer who employs more than one hundred (100) but fewer than two hundred one (201) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year before the cause of action arose;
      4. The sum of two hundred thousand dollars ($200,000) in the case of an employer who employs more than two hundred (200) but fewer than five hundred one (501) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year before the cause of action arose; and
      5. The sum of three hundred thousand dollars ($300,000) in the case of an employer who employs more than five hundred (500) employees in each of twenty (20) or more calendar weeks in the current or preceding calendar year before the cause of action arose.

History. Acts 2005, No. 920, § 1.

12-62-806. Limitation of action.

  1. Except as provided under subsection (b) of this section, an action under this subchapter shall be brought within one (1) year after the alleged violation or discriminatory conduct occurs.
  2. However, if a service member is deployed for active duty at any time during the one-year period, then an action under this subchapter shall be brought within one (1) year after the end of his or her mobilization.

History. Acts 2005, No. 920, § 1.

12-62-807. Retaliation — Interference — Remedies.

  1. It is unlawful under this subchapter for a person or entity to retaliate or discriminate against a person because the person in good faith:
    1. Opposed any act or practice made unlawful under this subchapter; or
    2. Made a claim, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
  2. It is unlawful to coerce, intimidate, threaten, or interfere with a person in his or her exercise of any right granted or protected under this subchapter.
  3. A person may avail himself or herself of the same procedures and remedies available under § 12-62-805 for violations of this section.

History. Acts 2005, No. 920, § 1.

12-62-808. Defenses.

  1. It is a defense under this subchapter if an employer establishes that the employer's actions were based on legitimate, nondiscriminatory factors and not on reasons related to military service.
  2. Provided the conduct at issue is based on a bona fide business judgment and is not a pretext for discrimination that is prohibited under this subchapter, this subchapter shall not be construed to prohibit or restrict:
    1. An insurer, hospital, medical service company, health maintenance organization, or any agent or entity that administers benefit plans or any bank, savings and loan, or other lender from underwriting insurance or lending risks or administering such risks that are based on or are not inconsistent with federal or state law;
    2. A person covered by this subchapter from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or are not inconsistent with federal or state law; or
    3. A person covered by this subchapter from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that is not subject to federal or state laws that regulate insurance.

History. Acts 2005, No. 920, § 1.

Chapter 63 Military Property

Subchapter 1 — General Provisions

Effective Dates. Acts 1992 (1st Ex. Sess.), No. 55, § 5: Mar. 17, 1992. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that recent natural disasters have created a need for cooperation between the Arkansas National Guard and National Guard units of surrounding states regarding the use of equipment needed to respond to the emergency situations created by the natural disasters. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

12-63-101. Reciprocal agreements.

The Adjutant General is authorized to enter into reciprocal agreements with the Adjutant General of any surrounding state regarding the loan, lease, or exchange of Arkansas National Guard equipment under his or her authority and control.

History. Acts 1992 (1st Ex. Sess.), No. 55, § 1.

12-63-102. Legislative findings of fact.

    1. The United States Congress has directed the United States Army to close certain military training posts. Fort Chaffee will be operated by the Adjutant General as a reserve component military training facility. Other agencies, departments, and political subdivisions of the United States or the State of Arkansas will or have indicated an interest to acquire or occupy portions of Fort Chaffee that are not needed for military purposes.
    2. The Adjutant General is best suited to act as the executive agent of the state to negotiate with the Secretary of the Army and the various tenant agencies for the orderly administration of Fort Chaffee.
  1. It is necessary for the state to amend certain laws concerning military reservations and to authorize particular activities on Fort Chaffee in order to facilitate administration and operation of Fort Chaffee as a military reservation.

History. Acts 1997, No. 1201, § 1.

12-63-103. Fort Chaffee Redevelopment Authority Public Trust.

  1. The State of Arkansas acknowledges and endorses the establishment of the Fort Chaffee Redevelopment Authority Public Trust, created by Sebastian County, on February 19, 1997, as set forth in the Fort Chaffee Redevelopment Authority Indenture of Trust and pursuant to the provisions of the laws of the state, including specifically § 28-72-201 et seq.
  2. The Fort Chaffee Redevelopment Authority Public Trust is recognized by the state as the entity to:
    1. Prepare a comprehensive study of all issues related to the closure and redevelopment of Fort Chaffee Military Base surplus properties and to ensure proper planning and optimal use of the property embodied therein;
    2. Manage, own, and operate such portions of the base as the United States Department of Defense deems unnecessary to its overall military mission so as to yield the maximum benefit to the residents of affected counties and communities in the state after conversion of those portions; and
    3. Act for other purposes as enabled and set forth in the Fort Chaffee Redevelopment Authority Indenture of Trust that are in the public interest and serve a public purpose and can best be accomplished by the creation of a public trust vested with the powers and duties specified in the Fort Chaffee Redevelopment Authority Indenture of Trust.

History. Acts 1997, No. 1201, § 14.

Case Notes

Scope of Authority.

Redevelopment authority created by statute had the sole authority to determine the use of the land for which it was created, including parts of that land previously annexed by a city. City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105, 60 S.W.3d 443 (2001).

Subchapter 2 — Policing and Regulation

Effective Dates. Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

Acts 1979, No. 895, § 13: Apr. 16, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the State of Arkansas owns and has a substantial investment in Camp Joseph T. Robinson and the lands and improvements devoted to their functions; that doubts exist concerning the right to police and regulate certain activities which should be regulated for the protection of lives and property on the Camp Joseph T. Robinson Military Reservation; that urgent reasons exist for providing for the adequate police authority which this enactment will achieve; and that only by the immediate passage of this act may these objectives be achieved. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety and for the protection of the public property, shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 852, § 11: Mar. 28, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Arkansas Adjutant General's authority to employ police officers for military reservations, and the authority of such police officers, is in need of clarification, and this act is necessary to so provide. Therefore, an emergency is hereby declared to exist and this act, being immediately necessary for the preservation of the public health, peace, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2003, No. 1355, § 5: Apr. 15, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Adjutant General has been tasked by the United States and agencies of the State of Arkansas with the responsibility of providing security services and police protection to real properties adjoining military reservations that are owned by or under the control of instrumentalities of the United States and of the State of Arkansas; and that this act is immediately necessary to preserve domestic peace and provide security in the State of Arkansas due to the increased threats of terrorism in our country since September 11, 2001. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2015, No. 682, § 3: Mar. 24, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the security of military reservations and enforcement of regulations thereupon are of paramount importance to the continued safety and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-63-201. Definition.

For the purpose of this subchapter, the term “military reservation” shall apply to and encompass all lands, buildings, and improvements used for military training purposes on:

  1. Camp Joseph T. Robinson, both that portion owned by the State of Arkansas and used by the National Guard and that portion owned by the United States, which consists of thirty-one and one-half (31.5) acres more or less, and used by the United States Army Reserve, the United States Navy Reserve, and the United States Marine Corps Reserve;
  2. Properties licensed by the United States to the State of Arkansas to use and occupy for year-round training and support of the Arkansas Air National Guard;
  3. Taxiways, runways, and other airport land and improvements used by military aircraft in conjunction with and adjacent to those properties described in subdivision (2) of this section; and
  4. Fort Chaffee, including that part owned, leased, licensed, operated, maintained, occupied, or controlled by the Adjutant General and that part owned, leased, licensed, operated, maintained, occupied, or controlled by any other component of the active or reserve military forces of the United States, or any other part that is leased, licensed, operated, maintained, occupied, or controlled by any political subdivision, agency, person, firm, corporation, or association for use by the active or reserve military forces of the State of Arkansas and the United States.

History. Acts 1979, No. 895, § 6; 1983, No. 852, § 6; A.S.A. 1947, § 11-1817; Acts 1997, No. 1201, § 3.

12-63-202. Police officers — Appointment — Qualifications — Removal.

    1. The Adjutant General, as custodian of military reservations identified in § 12-63-201, may designate and appoint one (1) or more employees as a police officer or officers for each military reservation, who are peace officers under the laws of this state.
    2. The police officers appointed under this section shall have all the powers provided by law for city police, county sheriffs, and state police officers, to be exercised as required for maintaining the peace, order, the regulation of traffic, and the security of state and federal property on the following:
      1. The military reservation; and
      2. Other real property that:
        1. Adjoins a military reservation;
        2. Is owned, leased, or is otherwise under the legal control of an instrumentality of the United States or an instrumentality of the State of Arkansas; and
        3. The Adjutant General of the State of Arkansas has undertaken to provide with police or security services.
  1. All police officers appointed pursuant to this subchapter shall meet the standards and qualifications established by the Arkansas Commission on Law Enforcement Standards and Training created by § 12-9-103.
  2. The Adjutant General shall have the authority to remove such employee or employees from the execution of such designated duties at his or her pleasure, and the termination of employment as a police officer shall forthwith terminate all peace officer authority of such person.

History. Acts 1979, No. 895, §§ 1, 11; 1983, No. 852, §§ 1, 9; A.S.A. 1947, §§ 11-1812, 11-1821; Acts 2003, No. 1355, § 1.

Amendments. The 2003 amendment, added the subsection designations in (a); added (a)(2)(B); in present (a)(1), inserted “the State of” preceding “Arkansas” and substituted “may” for “is authorized and empowered to” and “who are peace” for “who shall be and are constituted peace”; in (a)(2), substituted “The police officers appointed under this section shall have” for “and shall have” and added “the following added” to the end; and made related changes.

12-63-203. Police officers — Powers and duties.

    1. Except to the extent otherwise limited by the Adjutant General, a police officer appointed under this subchapter shall:
      1. Protect property;
      2. Preserve and maintain proper order and decorum;
      3. Prevent unlawful assemblies and disorderly conduct;
      4. Exclude and eject persons detrimental to the well-being of the military reservation;
      5. Prevent trespasses; and
      6. Regulate the operation and parking of motor vehicles upon and in all of the grounds, buildings, improvements, streets, alleys, and sidewalks of the military reservation.
    2. All of the duties of police officers listed in subdivision (a)(1) of this section apply equally on other real property that has all of the following characteristics:
      1. Adjoins a military reservation;
      2. Is owned, leased, or otherwise under the legal control of an instrumentality of the United States or an instrumentality of the State of Arkansas; and
      3. Is real property upon which the Adjutant General has undertaken to provide police or security services.
    1. The police officer may exercise police supervision on the following:
      1. Military reservations;
      2. Other real property that:
        1. Adjoins a military reservation;
        2. Is owned, leased, or otherwise under the legal control of an instrumentality of the United States or an instrumentality of the State of Arkansas; and
        3. Is real property upon which the Adjutant General has undertaken to provide police or security services.
    2. As a peace officer, the police officer may:
      1. Arrest, with or without warrant, any person upon or in the areas described in this subsection who is or is reasonably believed to be committing offense against any law of the State of Arkansas on the military reservation; and
      2. Deliver that person before any court of competent jurisdiction to be dealt with according to law.
    3. The police officer may summon a posse comitatus, if necessary.

History. Acts 1979, No. 895, § 2; 1983, No. 852, § 2; A.S.A. 1947, § 11-1813; Acts 2003, No. 1355, § 2.

Amendments. The 2003 amendment redesignated former (a) as present (a)(1); added (a)(2); in (a)(1), substituted “under” for “pursuant to the authority contained in”; rewrote (b); and made related changes.

12-63-204. Police officers — Evidence of authority.

    1. Military reservation police officers shall be identified by a shield or badge bearing the name of the military reservation and the words “police officer”.
    2. The shield or badge shall be conspicuously worn when the police officer is on duty.
  1. The police officer's authorization shall be further evidenced by a certificate of appointment issued by the Adjutant General and carried on his or her person at all times when on duty.

History. Acts 1979, No. 895, § 1; 1983, No. 852, § 1; A.S.A. 1947, § 11-1812.

12-63-205. Police officers — Liability.

  1. A police officer appointed and designated under this subchapter and any other employees authorized under this subchapter, who perform the duties under this subchapter are not personally liable for injuries to persons or for damage to property that occurs while acting within the scope of their authority on behalf of the State of Arkansas on the military reservation.
  2. A police officer appointed and designated under this subchapter and any other employees authorized under this subchapter who perform the duties under this subchapter are not personally liable for injuries to persons or for damage to property that occurs while acting within the scope of their authority on behalf of the State of Arkansas on other real property that has all of the following characteristics:
    1. Adjoins a military reservation;
    2. Is owned, leased, or otherwise under the legal control of an instrumentality of the United States or an instrumentality of the State of Arkansas; and
    3. Is real property upon which the Adjutant General has undertaken to provide police or security services.

History. Acts 1979, No. 895, § 9; 1983, No. 852, § 8; A.S.A. 1947, § 11-1820; Acts 2003, No. 1355, § 3.

Amendments. The 2003 amendment inserted the subdivision (a) designation and rewrote the subsection; and added (b).

12-63-206. Jurisdiction of law enforcement officers.

  1. The appointment or designation of any police officer or officers under the authority of this subchapter shall not be deemed to supersede in any way the present authority of the Department of Arkansas State Police, that of the county sheriffs, or that of the peace officers of the jurisdiction in which the military reservation or portions thereof shall be located and on other real property that has all of the following characteristics:
    1. Adjoins a military reservation;
    2. Is owned, leased, or otherwise under the legal control of an instrumentality of the United States or an instrumentality of the State of Arkansas; and
    3. Is real property upon which the Adjutant General has undertaken to provide police or security services.
  2. None of the present jurisdiction or powers of the county sheriffs or the department shall be ceded to the police officers or over the land or property or persons on the land.

History. Acts 1979, No. 895, §§ 1, 8; 1983, No. 852, §§ 1, 7; A.S.A. 1947, §§ 11-1812, 11-1819; Acts 2003, No. 1355, § 4.

Amendments. The 2003 amendment, in the introductory language of (a), substituted “Department of Arkansas State Police” for “state police” and added “and on other real property that has all of the following characteristics”; added (a)(1) through (a)(3); and made minor punctuation changes.

12-63-207. Motor vehicle rules generally.

  1. The Adjutant General is authorized and empowered to promulgate rules, and to amend or change them from time to time as he or she shall deem necessary, providing for the operation and parking of motor vehicles upon the grounds, streets, drives, and alleys on a military reservation, including, but not limited to, the following:
    1. Limiting the rate of speed;
    2. Assigning parking spaces and designating parking areas and their use or uses;
    3. Prohibiting parking as he or she deems necessary;
    4. Removing motor vehicles parked in violation of the rules at the expense of the violator who shall pay the expense before the motor vehicle is released;
    5. Instituting a system of motor vehicle registration for the identification and regulation of motor vehicles regularly using the military reservation premises; and
    6. Instituting a process for administrative adjudication for the violation of a military reservation rule promulgated under this section on a military reservation, which shall include the determination of:
      1. A reasonable civil penalty;
      2. The enforcement process for the collection of the civil penalty; and
      3. A reasonable sanction for noncompliance.
  2. Rules, together with any amendments thereto, which may from time to time be adopted by the Adjutant General for the regulation of operation and parking of motor vehicles shall be filed with the Secretary of State and shall be printed with copies thereof available at convenient locations at the military reservation or at any separate portion thereof.
  3. Speed limits shall be posted at reasonable intervals, and traffic and parking directions and prohibitions shall be indicated by signs.
  4. From and after the promulgation of the rules provided for in this section, it shall be unlawful for any person to operate or to park a motor vehicle in violation thereof.

History. Acts 1979, No. 895, §§ 4, 5; 1983, No. 852, §§ 4, 5; A.S.A. 1947, §§ 11-1815, 11-1816; Acts 2015, No. 682, § 1; 2019, No. 315, § 940.

Amendments. The 2015 amendment inserted “motor” preceding “vehicles” and “vehicle” in (a)(4); substituted “regulation of motor vehicles” for “regulation of vehicles” in (a)(5); and added (a)(6).

The 2019 amendment substituted “rules” for “regulations” in the section heading; deleted “and regulations” following “rules” in the introductory language of (a), (a)(4), (b), and (d); and deleted “or regulation” following “rule” in (a)(6).

12-63-208. Violations of motor vehicle rules.

    1. Persons violating rules promulgated under § 12-63-207 shall, at the option of the police officer, be charged under the military reservation's system of charges or summoned to appear before any court of competent jurisdiction to be dealt with according to law.
    2. A person adversely affected by any administrative determination shall have a right to appeal to the appropriate district court where the matter shall be heard de novo.
  1. Notice placed on the motor vehicle shall be sufficient as a summons for the purpose of this subchapter.

History. Acts 1979, No. 895, § 4; 1983, No. 852, § 4; A.S.A. 1947, § 11-1815; Acts 2015, No. 682, § 2; 2019, No. 315, § 941.

Amendments. The 2015 amendment, in (a)(1), deleted “while using a motor vehicle registered as provided under § 12-63-207(a)(5)” following “under § 12-63-207”, and inserted “military”; in (a)(2), deleted “as described” following “determination” and “therefrom” following “appeal”; deleted former (b) and redesignated (c) as (b); and inserted “motor” preceding “vehicle” in (b).

The 2019 amendment deleted “and regulations” following “rules” in (a)(1).

12-63-209. Criminal trespass upon a military reservation — Penalty.

  1. A person commits the offense of criminal trespass upon a military reservation if he or she purposefully, and without authority, enters upon or remains unlawfully upon any military reservation, military armory, or other military building or property owned, leased, licensed, operated, occupied, maintained, or under the control or management of the State of Arkansas under the control and management of the Department of Military.
  2. Criminal trespass upon a military reservation or other military property is a Class A misdemeanor.

History. Acts 1979, No. 895, § 3; 1983, No. 852, § 3; A.S.A. 1947, § 11-1814; Acts 1995, No. 951, § 1; 1997, No. 1201, § 4; 2019, No. 910, § 5536.

Amendments. The 2019 amendment substituted “Department of the Military” for “State Military Department” in (a).

Cross References. Fines, § 5-4-201.

Imprisonment, § 5-4-401.

12-63-210. Arrest of trespassers.

The commanding officer upon any occasion of duty may place under arrest during the continuance thereof any person who shall trespass upon the camp ground, parade ground, armory, or other place devoted to such duty, shall in any way or manner interrupt or molest the orderly discharge of duty by those under arms, or shall disturb or prevent the orderly passage of troops going to or returning from any such duty.

History. Acts 1969, No. 50, § 196; A.S.A. 1947, § 11-1007.

12-63-211. Prohibition of sales, auctions, and gambling.

The commanding officer may prohibit and prevent the holding of auction or huckster sales, and all gambling within the limits of the post, camp grounds, place of encampment, parade, or drill under his or her command or within limits not exceeding one (1) mile therefrom as he or she may prescribe. He or she may in his or her discretion abate as common nuisances all such sales.

History. Acts 1969, No. 50, § 196; A.S.A. 1947, § 11-1007.

12-63-212. Prosecution of violations — Disposition of fines.

  1. The prosecuting attorney shall appear and prosecute all actions arising in any court under the provisions of this subchapter.
  2. All fines which may be collected by any court on account of violations of § 12-63-207 or § 12-63-209 shall be paid into the same fund as are fines levied for the same or similar violations by the court hearing the matter.

History. Acts 1979, No. 895, § 7; A.S.A. 1947, § 11-1818.

Subchapter 3 — Armories, Landing Fields, and Hangars

Effective Dates. Acts 1969, No. 50, § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

12-63-301. Purchase and construction.

  1. The Adjutant General is given authority to purchase or construct armories, landing fields, or hangars, in the name of the State of Arkansas for the use and benefit of the Arkansas National Guard, at a place or places in the state as he or she may deem proper.
  2. To enable the Adjutant General to carry into effect the power and authority conferred upon him or her, he or she is given authority to sign rental contracts, employ professional assistance, execute construction contracts and contracts of purchase, and take deeds and contracts of purchase or donations of property for the purposes herein specified in the name of the State of Arkansas for the use and benefit of the Arkansas National Guard.
  3. Authority is granted the Adjutant General, the Treasurer of State, or other appropriate state officer to accept any federal grants or funds which are now or which may hereafter be available for the construction of armories or facilities in this state.

History. Acts 1969, No. 50, §§ 177, 181; A.S.A. 1947, §§ 11-801, 11-805.

12-63-302. Rules for use.

  1. The Adjutant General shall issue rules governing the use of armories, landing fields, and hangars acquired under the provisions of this code.
  2. The Adjutant General is authorized to appoint one (1) or more persons at the location of each armory, landing field, or hangar, who shall have charge of such property and govern the use of it in accordance with the rules issued by the Adjutant General.

History. Acts 1969, No. 50, § 179; A.S.A. 1947, § 11-803; Acts 2019, No. 315, § 942.

Amendments. The 2019 amendment substituted “Rules” for “Regulations” in the section heading; and deleted “and regulations” following “rules” in (a) and (b).

12-63-303. Easements.

In addition to the foregoing, the Adjutant General, by and with the approval of the Governor, may, when he or she deems it necessary, grant utilities easements across any and all military reservations under his or her jurisdiction in such manner and under such conditions as he or she may impose, provided that the granting of such easements does not impair the use of the military reservation for military purposes.

History. Acts 1969, No. 50, § 183; A.S.A. 1947, § 11-807.

12-63-304. Renting of currently used readiness centers — Disposition of proceeds.

  1. The Adjutant General, acting for and on behalf of the Arkansas National Guard, shall issue rules concerning the rental and use of a National Guard readiness center or its facilities or portions thereof to any person, organization, firm, corporation, or governmental agency for any legal use for short periods of time, provided the renting of the readiness center or its facilities or portions thereof does not interfere with its use by the National Guard for training or other military purposes.
  2. All such rentals shall be in writing and shall contain appropriate clauses permitting immediate termination or cancellation of the rental agreement on order of the Adjutant General should the public interest or National Guard purposes necessitate the termination.
  3. A readiness center or its facilities or portions thereof shall not be rented for less than an amount sufficient to cover all expenses, including custodian fees, utility bills, janitor service, and any repairs occasioned by such use.
    1. Readiness center funds are those funds derived from the use of the facilities by an individual, agency, or organization other than the official users of the facilities by National Guard units quartered therein. Social meetings for members of a unit and their families, sponsored by the unit, are considered official.
    2. A full and complete record of funds received and disbursed shall be maintained by the senior officer of the official using the unit and shall be subject to audit as may be required by the Adjutant General.
    3. The Adjutant General shall publish rules governing the expenditure of such rental funds to ensure that the state expenses are recovered from the rental funds and that rental funds are used for Arkansas National Guard morale, welfare, and recreation events.

History. Acts 1969, No. 50, § 180; 1979, No. 422, § 1; A.S.A. 1947, § 11-804; Acts 2013, No. 1013, § 1; 2019, No. 315, §§ 943, 944.

Amendments. The 2013 amendment substituted “readiness center” for “armory” or “armories” throughout; inserted “or its facilities or portions thereof” twice in (a); substituted “or its facilities or portions thereof” for “or facility” in (c); and substituted “to ensure that the state expenses are recovered from the rental funds and that rental funds are used for Arkansas National Guard morale, welfare, and recreation events” for “with a limitation of ten percent (10%) of the annual income limited to unit social purposes” in (d)(3).

The 2019 amendment deleted “and regulations” following “rules” in (a) and (d)(3).

12-63-305. Conveyance or disposal of military real property.

      1. If the Adjutant General of the State of Arkansas determines that any military reservation, armory, landing field, hangar, or any other estate in real property owned or possessed by the State of Arkansas for the use and benefit of the Arkansas National Guard or the armed forces of the United States is no longer useful or necessary for National Guard or other military purposes, the Adjutant General shall then have authority to sell, convey, or otherwise dispose of the property.
      2. The Adjutant General may sell, convey, or otherwise dispose of property under this section by deed, lease, license, permit, or other instrument executed by him or her on behalf of and in the name of the State of Arkansas.
      3. The Adjutant General shall approve the price, consideration, and other terms and conditions related to the sale, conveyance, or other disposal of property under this section.
    1. The Adjutant General may also enter into agreements with cities, counties, school boards, other political subdivisions of the state, or any other public entity, body, board, commission, agency, or governmental corporation to convey an estate in real property or other improvements formerly used for National Guard purposes to the political subdivision or public entity in the event the Adjutant General determines that the transfer would be in the better interest of the National Guard and the local community, subject to any reversionary interest that may exist with respect to the estate in favor of the State of Arkansas or of the United States.
    2. Any conveyance under this section is subject to the approval of the Secretary of the Army or the Secretary of the Air Force, as the case may be, and in compliance with applicable regulations and instructions.
    1. When and if, in the judgment of the Adjutant General, the use of any parcel of real property or any armory, warehouse, or other improvements thereon located owned by or leased to the State of Arkansas for the use and benefit of the National Guard or any portion thereof is temporarily not required and not necessary for National Guard purposes, the Adjutant General shall have authority to lease or sublease any real property or portion thereof for such a rental and on such terms and conditions and for such a period of time as the Adjutant General shall deem to the best interest of the National Guard. The lease or sublease contract shall be executed by the Adjutant General for and in the name and behalf of the State of Arkansas.
    2. Every lease contract shall contain suitable provision for the immediate suspension or termination of the contract in the event of the occurrence of an emergency rendering the use of the property by the National Guard necessary for its military purposes and may provide for a refund out of the Special Military Fund to the lessee or sublessee of a rental paid in advance for the period covered by the lease during which the lessee or sublessee is by reason of the emergency deprived of the use of the property.
      1. Before the Adjutant General shall lease, rent, sell, convey, or otherwise dispose of any estate in any real property or improvement on the property other than a lease or rental for thirty (30) days or less for the use of real property, buildings, armories, airfields, or other improvements that are temporarily not required for military purposes, he or she shall publish a notice one (1) time in some newspaper published and having a general circulation in the state at least ten (10) days before the date on which the property is offered for conveyance or disposal.
      2. The notice shall describe the estate or property and notify all interested persons that the estate or property will be conveyed or disposed of and of the conditions, terms, time, and place at which bids or requests for proposals shall be received for the estate or property.
    1. Bids or proposals for the conveyance, disposal, purchase, lease, or other disposition of the estate in any real property substantially on the terms specified in the notice shall be received by the Adjutant General at the time and place specified in the notice in the form of open or sealed bids or requests for proposals, as the Adjutant General may direct.
    2. Subject to the Adjutant General's right to reject all bids and proposals, the property shall be conveyed to the person, firm, or corporation submitting the bid or proposal which in the judgment of the Adjutant General, taking into consideration the amount to be paid and the terms and conditions of the conveyance, is most advantageous to the security and interests of the State of Arkansas and the United States.
    1. The purchase price, rental, or other moneys to be paid for the conveyance of the estate or property for a period of more than thirty (30) days under the terms, conditions, and consideration of the conveyance shall be deposited into the State Treasury.
    2. The moneys shall be credited to the Special Military Fund, to be used by the Adjutant General for the purposes of constructing, repairing, or maintaining hangars, armories, or other property held by the State of Arkansas for the use and benefit of its National Guard, subject to any priority interest of the United States in such proceeds.

History. Acts 1969, No. 50, §§ 178, 182; 1977, No. 516, § 1; A.S.A. 1947, §§ 11-802, 11-806; Acts 2003, No. 1094, § 3.

A.C.R.C. Notes. Acts 2003, No. 1094, §§ 1 and 2 provided:

“SECTION 1. Purpose. The purpose of this act is to clarify that the Adjutant General of the State of Arkansas has the authority, acting in the best interests of the security and defense of the state and of the United States, to convey any estate in military real property of which the Adjutant General is custodian by any lawful method of conveyance upon the terms and conditions as he or she may deem appropriate and subject to the approval of the United States.

“SECTION 2. Findings.

The General Assembly finds that:

“(1) The Adjutant General of the State of Arkansas is the custodian of the military reservations and military property of the State of Arkansas;

“(2) The United States retains a reversionary estate in all of the military reservations, and furthermore the United States retains various regulatory interests in and to other military properties located within the State of Arkansas;

“(3) A conveyance of unneeded excess military real properties is subject to the consent of the United States acting by and through the Secretary of the Army or the Secretary of the Air Force;

“(4) The disposal of military real properties property is presently restricted by law to the disadvantage of the best interests of the people of the State of Arkansas;

“(5) The authority of the Adjutant General to convey estates in military real property is unreasonably restricted; and

“(6) The restrictions at law should be removed.”

Amendments. The 2003 amendment rewrote this section.

Subchapter 4 — Camp Joseph T. Robinson

A.C.R.C. Notes. Acts 2015, No. 716, § 18, provided:

“CAMP ROBINSON — VARIOUS STATE MILITARY LAKES. The State Military Department is hereby authorized to stock various State Military Lakes on Camp Robinson post each year with fish for special events by using wildlife funds and rental income, no State General Revenue will be used.

“The provisions of this section shall be in effect only from July 1, 2015 through June 30, 2016.”

Acts 2016, No. 196, § 18, provided:

“CAMP ROBINSON — VARIOUS STATE MILITARY LAKES. The State Military Department is hereby authorized to stock various State Military Lakes on Camp Robinson post each year with fish for special events by using wildlife funds and rental income, no State General Revenue will be used.

“The provisions of this section shall be in effect only from July 1, 2016 through June 30, 2017.”

Preambles. Acts 1951, No. 121 contained a preamble which read:

“Whereas, An efficient national guard is an integral part of the defense of this state and of the United States, and

“Whereas, Camp Joseph T. Robinson is necessary for training grounds for said National Guard, and

“Whereas, the United States Government, acting by and through the Secretary of Army, under authority of an Act of Congress, approved June 30, 1950, styled and cited as Public Law No. 593, 81st Congress, Second Session, did grant, transfer and convey to the State of Arkansas, all rights, title and interest of the United States of America in and to substantially all of the real property comprising Camp Joseph T. Robinson by deed, said deed being of record in the County of Pulaski, Book Volume No. 447, page 343, and in the County of Faulkner, Book Volume No. 119, page 571, together with the buildings and improvements thereon, and all appurtenances and utilities belonging or appertaining thereto including a water pipe line to Camp Joseph T. Robinson, said property to be used primarily for training the National Guard, and for other military purposes;

“Now, therefore….”

Acts 1955, No. 381 contained a preamble which read:

“Whereas, the State of Arkansas accepted title to Camp Joseph T. Robinson from the federal government for the training of the Arkansas National Guard and for other military purposes, as provided by Act 121 of 1951, and

“Whereas, certain tracts of said Camp Joseph T. Robinson, including area generally known as the Hospital Area, were not originally included in the deed described in said Act 121; and

“Whereas, title to said tracts has now revested in the United States and it is anticipated that Federal legislation will be introduced authorizing a transfer of title to the property to the State of Arkansas without cost and subject to the same restrictions as that portion transferred under provisions of said Act 121;

“Now, therefore….”

Effective Dates. Acts 1951, No. 121, § 3: Feb. 20, 1951. Emergency clause provided: “In view of the international situation, it is of the utmost importance to the safety of the people of the State of Arkansas and of the United States, that title to Camp Joseph T. Robinson be accepted by the State of Arkansas, and that the rental, leases, and sales from said camp be in turn reinvested in the maintenance and upkeep of said camp to the end that the National Guard shall have adequate facilities for proper training. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall have effect and be in full force from and after its passage and approval.”

Acts 1955, No. 381, § 3: Mar. 24, 1955. Emergency clause provided: “In view of the fact that immediate legal control and supervision of all portions of Camp Joseph T. Robinson are of utmost importance in preservation and security of government property located therein, an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health, and safety, shall have effect and be in full force from and after its passage and approval.”

Acts 1977, No. 489, § 9: Mar. 18, 1977. Emergency clause provided: “It has been found and determined by the General Assembly that Camp Joseph T. Robinson, a former United States Military Reservation, now operated by the State of Arkansas, is necessary for the training and maintaining of an efficient Arkansas National Guard as an integral part of the defense of this state and of the United States and that the immediate passage of this act is necessary to increase and maintain the morale and efficiency of the entire National Guard. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and welfare, shall be in effect from and after the date of its passage and approval.”

Acts 1983, No. 137, § 4: Feb. 10, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that Department of Defense technicians and full-time employees of the Arkansas Military Department and other persons designated by the governing board of the military canteen at Camp Joseph T. Robinson should have the privilege of purchasing at the Camp Robinson Canteen; that present law does not provide such privilege, and this act is immediately necessary to cure such inequity. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 781, § 3: Apr. 7, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is some question concerning the right of dependents of military personnel, Department of Defense technicians and employees of the Arkansas Military Department to make purchases at the military canteen at Camp Joseph T. Robinson; that this Act is designed to assure that such dependents who hold proper identification cards will be permitted to make such purchases and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 732, § 11: Mar. 25, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly that conflicting regulations are causing unnecessary expense in the operation of the Camp Joseph T. Robinson Canteen. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 924, § 5: Apr. 7, 1993, and No. 1034, § 5: Apr. 12, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that Camp Joseph T. Robinson operated by the State of Arkansas is necessary for the training and maintaining of an efficient Arkansas National Guard and this act is necessary to increase and maintain the morale and efficiency of the Arkansas National Guard. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-63-401. Title accepted.

  1. The State of Arkansas accepts title to the property, improvements, and appurtenances situated at Camp Joseph T. Robinson.
  2. The State of Arkansas authorizes the Adjutant General to accept title to, enter into leases, licenses, and operating agreements for, or otherwise acquire on behalf of the State of Arkansas real property, improvements, and appurtenances from the United States upon such terms and conditions as may be mutually agreed between the United States Government and the Adjutant General acting in behalf of the State of Arkansas.
  3. The State of Arkansas authorizes the Adjutant General to accept title to, enter into leases, licenses, and operating agreements for, or otherwise acquire on behalf of the State of Arkansas real property, improvements, and appurtenances adjoining or as an adjunct to Camp Joseph T. Robinson or adjoining or as an adjunct to other real property owned or held by the Adjutant General upon terms and conditions as may be agreed to between the Adjutant General, acting on behalf of the State of Arkansas, and the owner of such real property.
  4. Interests in real property shall not be purchased or acquired by the Adjutant General except by gift or for a consideration of not greater than ten dollars ($10.00) except upon an appropriation by the General Assembly or with such funds provided from the United States authorized to be expended for such purposes.
  5. The Adjutant General is authorized to establish and operate upon such lands military training and support facilities, canteens, morale, welfare, and recreational facilities, service clubs, and other facilities as may be necessary and proper for military purposes, or which are customary in the military services, and to conduct upon such lands such other activities and operate such facilities as may be ordered by the Governor or be required by law.
  6. Such military training and support facilities, canteens, morale, welfare, and recreational facilities, service clubs, and other facilities as may be established and operated by the Adjutant General shall be operated in accordance with applicable regulations of the United States armed forces, subject to the orders, directions, regulations, and general supervision of the Adjutant General, and subject to such restrictions and requirements as provided by state law governing other military training facilities, recreational facilities, and service clubs operated by the Adjutant General.

History. Acts 1951, No. 121, § 1; 1955, No. 381, § 1; A.S.A. 1947, §§ 11-1801, 11-1803; Acts 1993, No. 924, § 1; 1993, No. 1034, § 1.

12-63-402. Adjutant General as custodian.

  1. The Adjutant General of the State of Arkansas is the custodian of all military property and military reservations located within the State of Arkansas, and which are owned, leased, licensed, operated, occupied, or maintained by the State of Arkansas for the purpose of training the active or reserve military forces of the United States or any of any state.
    1. The Adjutant General is not the custodian of any military property or military reservation which is reserved to the exclusive legislative jurisdiction and sovereignty of the United States or which is reserved to exclusive legislative authority of the United States Secretary of the Army, United States Secretary of the Navy, or United States Secretary of the Air Force, pursuant to the Constitution and laws of the United States.
    2. Specifically, the Adjutant General is not the custodian of Little Rock Air Force Base and Pine Bluff Arsenal, except such parts thereof that are owned, leased, licensed, operated, occupied, or maintained pursuant to a deed, lease, license, or agreement for the exclusive control by the Adjutant General and units of the Army National Guard or Air National Guard, in accordance with the respective agreements between the Adjutant General and the United States Secretary of the Army or the United States Secretary of the Air Force.
    1. The Adjutant General shall not enter into or accept any contract, deed, license, lease, permit, memorandum of understanding, memorandum of agreement, obligation, gift, or donation of any real property whereby the State of Arkansas shall incur or undertake to incur financial liability for or assume financial liability with, or for, or on behalf of an agency or instrumentality of the United States, for such agency's or instrumentality's past or continuing violation or violations of:
      1. The environmental protection laws of the State of Arkansas or of the United States;
      2. The laws, regulations, rules, or orders of the Division of Environmental Quality or the United States Environmental Protection Agency; or
      3. Any other law, regulation, rule, or order of any agency and instrumentality of the State of Arkansas or of the United States which is charged with the responsibility of enforcing the environmental law.
    2. This prohibition shall not be applicable if:
      1. The Adjutant General shall be authorized by federal law or regulation to accept such responsibility for remediation of past or continuing violations and the Adjutant General is provided, appropriated, allocated, or apportioned adequate funds from the United States required to remediate such violations;
      2. The Attorney General, after conferring with the Director of the Division of Environmental Quality, shall advise the Governor in writing that the potential financial liability of the state for environmental remediation is de minimus, and if the Governor shall so approve and concur in the Attorney General's advice; or
      3. The laws of the United States prescribe and fix sole financial liability for such violation or violations upon an agency or instrumentality of the United States to the exclusion of the state.

History. Acts 1951, No. 121, § 2; 1955, No. 381, § 2; A.S.A. 1947, §§ 11-1802, 11-1804; Acts 1997, No. 1201, § 5; 1999, No. 1164, § 120; 2019, No. 910, §§ 3027, 3028.

Amendments. The 1999 amendment substituted “Department of Environmental Quality” for “Department of Pollution Control and Ecology” in (c)(1) and in (c)(2)(B); and made stylistic changes.

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (c)(1)(B) and (c)(2)(B).

12-63-403. Lease or sale — Disposition of funds.

  1. The Adjutant General shall have authority to lease or sublease property or portions thereto for such rentals, on such terms and conditions, and for such period of time as he or she shall deem to be in the best interest of the National Guard and the State of Arkansas.
  2. The lease or sublease or contracts for sale of property which is not needed for military purposes shall be executed by the Adjutant General for and in the name and behalf of the State of Arkansas.
  3. The contracts or leases shall contain suitable provisions for the immediate termination in the event of the occurrence of an emergency rendering the use of the property for military purposes.
  4. Funds received or derived from leases, rentals, and sales of real property or from severed personal property derived from Camp Joseph T. Robinson shall be used for operations, maintenance, improvements, and personnel costs of Camp Joseph T. Robinson.
  5. Funds received or derived from leases, rentals, and sales of real property or from severed personal property derived from Fort Chaffee shall be used for operations, maintenance, improvements, and personnel costs of Fort Chaffee.

History. Acts 1951, No. 121, § 2; A.S.A. 1947, § 11-1802; Acts 1997, No. 1201, § 6.

12-63-404. Canteen — Establishment and operations.

  1. The Adjutant General, as custodian of military properties and military reservations, is authorized to institute and operate military-type canteens and exchanges similar to those operated by armed forces of the United States on any military reservation, and he or she shall have authority to designate suitable buildings and lands located on a military reservation for such purposes.
    1. Except as otherwise provided in subdivision (b)(2) of this section, every military-type canteen established or operated pursuant to the authority granted under this section shall be subject to similar procedures, policies, limitations, and restrictions governing such canteens and exchanges of the Army and Air Force Exchange Service, as the Adjutant General may deem advisable, necessary, or expedient.
      1. Military canteens and exchanges established or operated pursuant to the authority granted under this section shall not sell, trade, exchange, market, or vend automobiles, household appliances, furniture, building products, motorcycles, and bicycles.
      2. Military canteens and exchanges may contract with one (1) or more automobile rental agencies to provide leased or rented vehicles for use by uniformed service members, trainees, and other temporary residents of military reservations.

History. Acts 1977, No. 489, § 1; 1983, No. 137, § 1; A.S.A. 1947, § 11-1805; Acts 1997, No. 1201, § 7.

12-63-405. Canteens and exchanges — Adjutant General's powers and duties.

  1. The Adjutant General shall have the authority:
    1. To hire and set the salaries or compensation of sufficient employees for the operation of canteens and exchanges;
    2. To enter into contracts or agreements with wholesalers, distributors, or suppliers of inventory items for stocking the canteens and exchanges;
    3. To prescribe a system of bookkeeping, accounting, and auditing procedures for the proper handling of funds derived from the operations of canteens and exchanges; and
    4. To prescribe rules governing the operation of the canteens and exchanges on military reservations and military properties.
  2. Employees of canteens and exchanges are not subject to the Uniform Classification and Compensation Act, § 21-5-201 et seq.

History. Acts 1977, No. 489, § 2; A.S.A. 1947, § 11-1806; Acts 1997, No. 1201, § 8; 2019, No. 315, § 945.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a)(4).

12-63-406. Canteen — Inventory and sales — Tax exemption.

  1. The Adjutant General, acting for and on behalf of the Arkansas National Guard, shall have authority to purchase normally regarded canteen inventory items, subject to the limitations prescribed in § 12-63-404.
  2. The sale of items shall be made only to:
    1. Active and retired members of the Army National Guard and Air National Guard;
    2. Active, retired, and reserve members of the United States Armed Forces;
    3. United States Department of Defense employees;
    4. Full-time employees of the Department of the Military;
    5. Students attending training programs at Camp Joseph T. Robinson or Fort Chaffee;
    6. Contractors and their employees performing work pursuant to a contract with the United States or the State of Arkansas on Camp Joseph T. Robinson or Fort Chaffee;
    7. Employees of tenant government agencies located on Camp Joseph T. Robinson or Fort Chaffee; and
    8. Dependents of the persons in subdivisions (b)(1)-(7) of this section who hold identification cards evidencing their status, as may be found acceptable to the Adjutant General.
  3. The items sold shall be exempt from the imposition of any taxes levied by the State of Arkansas or by any political subdivision thereof.

History. Acts 1977, No. 489, § 3; 1979, No. 362, § 1; 1983, No. 137, § 2; A.S.A. 1947, § 11-1807; Acts 1987, No. 781, § 1; 1995, No. 521, § 1; 1997, No. 1201, § 9; 2019, No. 910, § 5537.

Amendments. The 2019 amendment substituted “Department of the Military” for “State Military Department” in (b)(4).

Cross References. Sales of alcoholic beverages under the post exchange package permit, § 3-4-703.

12-63-407. Canteens — Camp Robinson and Fort Chaffee.

  1. The General Assembly finds that the Adjutant General is subject to conflicting laws of the State of Arkansas and regulations of the United States Department of the Army and the National Guard Bureau, requiring the Adjutant General to reconcile conflicting laws and regulations.
  2. The purpose of this section is to eliminate duplicated and conflicting laws, reconcile state law to United States Department of the Army, United States Department of the Air Force, and National Guard Bureau regulations, and to reduce operating expenses of the Camp Joseph T. Robinson and Fort Chaffee canteens.
  3. The Adjutant General is authorized to operate the Camp Joseph T. Robinson and Fort Chaffee canteens in accordance with the regulations of the United States Department of the Army, United States Department of the Air Force, and the National Guard Bureau governing morale, welfare, and recreation fund activities as he or she may determine to be applicable.
    1. Nothing in this section shall be construed to eliminate the restrictions on the types of goods or services the Camp Joseph T. Robinson and Fort Chaffee canteens may offer for sale, trade, exchange, market, or vend.
    2. This section shall not be construed to expand or broaden the authority of the Camp Joseph T. Robinson and Fort Chaffee canteens to sell goods and services to any person other than to:
      1. Active, retired, and reserve members of the armed services;
      2. Full-time employees of the Department of the Military and the United States Department of Defense;
      3. Employees of contractors performing contracts or services on either Camp Joseph T. Robinson or Fort Chaffee; or
      4. Employees of other government agencies, students, and other tenants of either Camp Joseph T. Robinson or Fort Chaffee.
    1. The Adjutant General shall cause an external annual audit of the Camp Joseph T. Robinson and Fort Chaffee canteens.
    2. The audit shall be conducted by a certified public accountant.
  4. The Adjutant General shall, within ten (10) days of receipt, submit a copy of the annual audits and any other audits of the Camp Joseph T. Robinson and Fort Chaffee canteens conducted in accordance with regulations of the United States Department of the Army, the United States Department of the Air Force, and the National Guard Bureau to Arkansas Legislative Audit.

History. Acts 1991, No. 732, §§ 1-4, 6, 7; 1997, No. 1201, § 10; 2019, No. 910, § 5538.

Publisher's Notes. Former § 12-63-407, concerning canteen — annual audit, was repealed by Acts 1991, No. 732, § 5. The former section was derived from Acts 1977, No. 489, § 4; A.S.A. 1947, § 11-1808.

Amendments. The 2019 amendment substituted “Department of the Military and the United States Department of Defense” for “Arkansas Military Department and Department of Defense” in (d)(2)(B).

12-63-408. [Repealed.]

Publisher's Notes. This section, concerning canteen — state regulations, was repealed by Acts 1991, No. 732, § 5. The section was derived from Acts 1977, No. 489, § 5; A.S.A. 1947, § 11-1809.

12-63-409. Canteen — Use of funds.

All nonappropriated funds derived from the operation of the Camp Joseph T. Robinson and Fort Chaffee canteens shall be used exclusively for improvements on, to, or for Camp Joseph T. Robinson, Fort Chaffee, or any other military reservation, armory, airfield, or for the general welfare of the units and members of the Arkansas National Guard.

History. Acts 1977, No. 489, § 6; A.S.A. 1947, § 11-1810; Acts 1997, No. 1201, § 11.

12-63-410. Canteen — Conditional termination.

  1. If the Adjutant General deems it to be in the best interest of the military forces of this state or of the United States, the Adjutant General may enter into an agreement or agreements with the Army and Air Force Exchange Service for the institution, maintenance, and operation by the Army and Air Force Exchange Service of post exchanges on Camp Joseph T. Robinson or Fort Chaffee, or both.
    1. Upon the execution of the agreement or agreements and the institution by the Army and Air Force Exchange Service of a post exchange on Camp Joseph T. Robinson or Fort Chaffee, the operation of the military-style canteen or canteens, as the case may be, by the Adjutant General, as provided in §§ 12-63-404 — 12-63-409 and this section, shall terminate.
    2. The termination of the operation of one (1) or more canteens shall not mandate that other canteens at other locations be closed.

History. Acts 1977, No. 489, § 8; 1979, No. 362, § 2; A.S.A. 1947, § 11-1811; Acts 1997, No. 1201, § 12.

Subchapter 5 — Military Service Clubs

Cross References. Fort Chaffee military service club, § 3-4-706.

12-63-501. Ebbing Air National Guard Field.

  1. The Adjutant General is authorized to establish and operate a military service club at Ebbing Air National Guard Field.
    1. Any military service club established at Ebbing Air National Guard Field shall be operated at no cost to the State of Arkansas and shall be generally operated in accordance with applicable military regulations of the United States Air Force pertaining to military service clubs, and in accordance with the orders, directions, and general supervision of the Adjutant General.
    2. The laws of the state and the rules of the Alcoholic Beverage Control Division shall apply to the operation of the military service club.
    3. To the extent there is a conflict between applicable regulations of the United States Air Force pertaining to military service clubs and the laws and regulations of the state, state laws and regulations shall control.
  2. Any military service club established at Ebbing Air National Guard Field shall obtain all requisite state and local permits required for its operation and shall pay any taxes due from its operation to the state and local governments that apply to its operation.

History. Acts 1993, No. 1074, § 1; 2019, No. 315, § 946.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (b)(2).

Chapter 64 Military Justice

Effective Dates. Acts 1969, No. 50. § 207: approved Feb. 12, 1969. Emergency clause provided: “Emergency declared to exist. Because the present general laws pertaining to the militia of the state have in many instances become obsolete; in other instances, sections thereof have been in conflict with the laws of the United States; in other cases, many conflicting, unworkable and redundant provisions exist; and because the recodification of the laws governing the state militia will correct the foregoing; an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in force and effect on and after its passage.”

Subchapter 1 — General Provisions

Publisher's Notes. For Comments regarding the Uniform Code of Military Justice, see Commentaries Volume B.

Effective Dates. Acts 2019, No. 211, § 23: Feb. 26, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the removal of officers who are substandard in performance of duty or in conduct, deficient in character, or unsuited for military service is of paramount importance to the good order and discipline of the Arkansas National Guard and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-64-101. Territorial applicability.

  1. This code applies to all persons while they are serving inside or outside the state.
  2. Courts-martial may be convened and held in units of the organized militia while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.

History. Acts 1969, No. 50, § 50; A.S.A. 1947, § 11-605; Acts 2015, No. 1003, § 4.

Amendments. The 2015 amendment deleted “of the code” following “applicability” in the section heading; rewrote (a); and deleted “and courts of inquiry” following “Courts-martial” in (b).

12-64-102. Jurisdiction to try certain personnel.

  1. Jurisdiction of courts-martial shall be coextensive with the jurisdiction provided for similar courts of the United States Army and United States Air Force while accounting for the differences in the types of duty status of members of the organized militia.
    1. A person discharged from the organized militia who is later charged with having fraudulently obtained his or her discharge is subject to trial by court-martial under this code.
    2. A person convicted under subdivision (b)(1) of this section is subject to trial by court-martial for all offenses under this code committed before the fraudulent discharge.
  2. No person who has deserted from the organized militia may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service.

History. Acts 1969, No. 50, § 48; A.S.A. 1947, § 11-603; Acts 2015, No. 1003, § 4; 2019, No. 211, § 4.

Amendments. The 2015 amendment added present (a) and redesignated former (a) as (b)(1) and (b)(2) and former (b) as (c); and substituted “A person convicted under subdivision (b)(1) of this section” for “Upon conviction of that charge, he” in (b)(2).

The 2019 amendment added “while accounting for the differences in the types of duty status of members of the organized militia” in (a).

12-64-103. [Repealed.]

Publisher's Notes. This section, concerning courts of inquiry, was repealed by Acts 2015, No. 1003, § 5. The section was derived from Acts 1969, No. 50, § 163; A.S.A. 1947, § 11-674.

12-64-104. Judge advocates and legal officers.

    1. The Governor shall appoint an officer of the organized militia as State Judge Advocate subject to confirmation by the Senate.
    2. To be eligible for appointment, an officer must be a member of the bar of the highest court of the state and must have been a member of the bar of the state for at least five (5) years.
    3. The Governor shall consult the Adjutant General before making an appointment under this subsection.
  1. The Adjutant General may appoint as many assistant state judge advocates as he or she shall deem necessary, which assistant state judge advocates shall be officers of the organized militia and members of the bar of the state.
  2. The State Judge Advocate or his or her assistants shall make frequent inspections in the field in supervision of the administration of military justice.
  3. Convening authorities may communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice, and the staff judge advocate or legal officer of any command may communicate directly with the staff judge advocate or legal officer of a superior or subordinate command or with the State Judge Advocate.
  4. No person who has acted as member, law officer, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer, or who has been a witness for either the prosecution or defense in any case may later act as staff judge advocate or legal officer to any reviewing authority upon the same case.

History. Acts 1969, No. 50, § 51; A.S.A. 1947, § 11-606; Acts 2015, No. 1100, § 10.

Amendments. The 2015 amendment, in (a)(1), deleted “on the recommendation of the Adjutant General” preceding “shall appoint” and added “subject to confirmation by the Senate”; and added (a)(3).

12-64-105. Oaths — Affidavits.

  1. The following persons of the organized militia may administer oaths for those purposes of military administration, including military justice, and affidavits may be taken for those purposes before those persons who shall have the general powers of a notary public:
    1. The State Judge Advocate and all assistant state judge advocates;
    2. All summary courts-martial;
    3. All adjutants, assistant adjutants, acting adjutants, and personnel adjutants;
    4. All legal officers;
    5. The president, law officer, trial counsel, and assistant trial counsel for all general and special courts-martial;
    6. The president and the counsel for the court of any court of inquiry;
    7. All officers designated to take a disposition;
    8. All persons detailed to conduct an investigation; and
    9. All other persons designated by rules of the Governor.
  2. The signature without seal of any such person, together with the title of his or her office, is prima facie evidence of this authority.

History. Acts 1969, No. 50, § 164; A.S.A. 1947, § 11-675; Acts 2019, No. 315, § 947.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a)(9).

12-64-106. [Repealed.]

Publisher's Notes. This section, concerning dismissal of commissioned officers, was repealed by Acts 2015, No. 1003, § 6. The section was derived from Acts 1969, No. 50, § 49; A.S.A. 1947, § 11-604; Acts 1989, No. 178, § 1.

12-64-107. Code to be explained.

    1. Sections 12-60-103, 12-64-102, 12-64-107, 12-64-109, 12-64-201 — 12-64-203, 12-64-205 — 12-64-207, 12-64-301, 12-64-302, 12-64-407, 12-64-410, 12-64-509, 12-64-601, and 12-64-801 — 12-64-848 of this code shall be carefully explained to every enlisted member at the time of his or her enlistment or transfer or induction into, or at the time of his or her order to duty in or with any of the forces of the organized militia or within thirty (30) days thereafter.
    2. They shall also be explained annually to each unit of the organized militia.
  1. A complete text of this code and of the rules prescribed by the Governor thereunder shall be made available to any member of the organized militia, upon his or her request, for his or her personal examination.

History. Acts 1969, No. 50, § 165; A.S.A. 1947, § 11-676; Acts 2015, No. 1003, § 7; 2019, No. 315, § 948.

Amendments. The 2015 amendment, in (a)(1), substituted “12-64-107, 12-64-109” for “12-64-107 – 12-64-109”, substituted “12-64-201 – 12-64-203, 12-64-205 – 12-64-207, 12-64-301” for “12-64-201 – 12-64-207”, deleted “12-64-408” preceding “12-64-410”, and substituted “12-64-848” for “12-64-842”.

The 2019 amendment substituted “rules” for “regulations” in (b).

12-64-108. [Repealed.]

Publisher's Notes. This section, concerning injury to property, was repealed by Acts 2015, No. 1003, § 8. The section was derived from Acts 1969, No. 50, § 167; A.S.A. 1947, § 11-678.

12-64-109. Complaint against superior officer.

Any member of the organized militia who believes himself or herself wronged by his or her commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the Governor or Adjutant General.

History. Acts 1969, No. 50, § 166; A.S.A. 1947, § 11-677.

12-64-110. Appropriations — Department of the Military Fund Account-Military Justice Fund.

  1. There shall be appropriated annually, for the Department of the Military, the sum of twenty thousand dollars ($20,000) for the State Judge Advocate to pay for the administration of military justice.
  2. For the foregoing purposes, there is created in the State Treasury a fund to be designated the “Department of the Military Fund Account-Military Justice Fund”, from which expenses of military justice shall be paid in the amounts and manner prescribed by law.

History. Acts 1969, No. 50, § 170; A.S.A. 1947, § 11-681; Acts 2015, No. 1003, § 9; 2019, No. 910, § 5539.

Amendments. The 2015 amendment substituted “State Military Department Fund Account” for “Courts-Martial Fund” in the section heading; rewrote (a); and, in (b), inserted “Account-Military Justice Fund”, deleted “all” preceding “expenses”, and substituted “military justice” for “courts-martial”.

The 2019 amendment substituted “Department of the Military” for “State Military Department” in the section heading and in (b); substituted “Department of the Military” for “military department” in (a); and made stylistic changes.

Subchapter 2 — Apprehension and Restraint

Publisher's Notes. For Comments regarding the Uniform Code of Military Justice, see Commentaries Volume B.

12-64-201. Apprehension generally.

  1. “Apprehension” is the taking of a person into custody.
  2. Any person authorized by this code or by rules issued pursuant thereto to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant to the provisions of this code, and any peace officer authorized to do so by law may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.
  3. Commissioned officers, warrant officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this code and to apprehend persons subject to this code who take part therein.

History. Acts 1969, No. 50, § 52; A.S.A. 1947, § 11-607; Acts 2019, No. 315, § 949.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (b).

12-64-202. Apprehension of deserters.

Any civil officer having authority to apprehend offenders upon the laws of the United States or of a state, territory, commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter from the organized militia and deliver him or her into the custody of the organized militia. If an offender is apprehended outside the state, his or her return to the area must be in accordance with normal extradition procedures or reciprocal agreement.

History. Acts 1969, No. 50, § 53; A.S.A. 1947, § 11-608.

12-64-203. Restraint.

Subject to the orders or rules of the Adjutant General, commanders of the organized militia may restrain persons under their jurisdiction to the same extent as military commanders in service to the United States.

History. Acts 1969, No. 50, § 54; A.S.A. 1947, § 11-609; Acts 2015, No. 1003, § 10; 2019, No. 315, § 950.

Amendments. The 2015 amendment substituted “Restraint” for “Imposition of restraint” in the section heading; and rewrote the section.

The 2019 amendment substituted “rules” for “regulations” in (b).

12-64-204. [Repealed.]

Publisher's Notes. This section, concerning restraint of persons charged with offenses, was repealed by Acts 2015, No. 1003, § 11. The section was derived from Acts 1969, No. 50, § 55; A.S.A. 1947, § 11-610.

12-64-205. Reports and receiving of prisoners.

  1. No provost marshal, commander of a guard, master at arms, warden, keeper, or officer of a city or county jail or any other jail, penitentiary, or prison designated under this code may refuse to receive or keep any prisoner committed to his or her charge when the committing person furnishes a statement signed by him or her of the offenses charged against the prisoner.
  2. Every commander of a guard, master at arms, warden, keeper, or officer of a city or county jail or of any other jail, penitentiary, or prison designated under this code, to whose charge a prisoner is committed, shall within twenty-four (24) hours after that commitment or as soon as he or she is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against him or her, and the name of the person who ordered or authorized the commitment.

History. Acts 1969, No. 50, § 56; A.S.A. 1947, § 11-611.

Cross References. Management of local jail populations, § 12-41-503.

12-64-206. Pretrial restraint as punishment prohibited.

Pretrial restraint is not punishment and shall not be used as punishment.

History. Acts 1969, No. 50, § 57; A.S.A. 1947, § 11-612; Acts 2015, No. 1003, § 12.

Amendments. The 2015 amendment inserted “restraint as” in the section heading; and rewrote the section.

12-64-207. Delivery of offenders to civil authorities.

  1. Under such rules as may be prescribed under this code, a person on active militia duty who is accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial.
  2. When delivery hereunder is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender, after having answered to the civil authorities for his or her offense, shall, upon the request of competent military authority, be returned to military custody for the completion of his or her sentence.

History. Acts 1969, No. 50, § 58; A.S.A. 1947, § 11-613; Acts 2019, No. 315, § 951.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a).

Subchapter 3 — Nonjudicial Punishment

Publisher's Notes. For Comments regarding the Uniform Code of Military Justice, see Commentaries Volume B.

Effective Dates. Acts 1981, No. 656, § 4: Mar. 23, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that present Arkansas law authorizing summary courts martial for the state's military personnel does not provide due process and that this act is immediately necessary to provide such process by allowing a full hearing before a general court martial. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 670, § 11: Apr. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain disciplinary provisions of the state military code need to be strengthened; that this act results in the same and should be given effect prior to the 1985 annual training of the military personnel subject to the state military code; that April 1 is a reasonable date to expect that this act will have been passed by both houses and acted upon by the Governor and that a date certain is desirable for the effective date. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after April 1, 1985.”

Acts 2007, No. 47, § 11: Feb. 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are many members of the Arkansas National Guard and Reserves that are serving in active duty in Iraq and Afghanistan in the war on terror; that it is critical that Arkansas law be updated and be consistent with federal law and rules; and that this act is necessary to eliminate confusion regarding out-dated and inconsistent provisions in the Military Code of Arkansas. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-64-301. Nonjudicial punishment generally.

  1. Under such rules as the Governor may prescribe, a company grade commanding officer may, in addition to or in lieu of admonition or reprimand, impose not more than two (2) of the following disciplinary punishments for minor offenses without the intervention of a court-martial:
    1. Upon officers of his or her command:
      1. Withholding of privileges for not more than two (2) consecutive weeks;
      2. Restriction to certain specified limits, with or without suspension from duty, for not more than two (2) consecutive weeks; or
        1. A fine or a forfeiture in an amount that does not exceed ten (10) days of the officer's base pay.
        2. The payment or collection of the fine or the withholding of the forfeiture under this subdivision (a)(1)(C) shall not exceed an amount equal to five (5) days of base pay during any calendar month; or
    2. Upon other military personnel of his or her command:
      1. Withholding of privileges for not more than two (2) consecutive weeks;
      2. Restriction to certain specified limits, with or without suspension from duty, for not more than two (2) consecutive weeks;
      3. Extra duties for not more than two (2) consecutive weeks and not to exceed two (2) hours per day, holidays included;
      4. Reduction to next inferior grade if the grade from which demoted was established by the command or an equivalent or lower command;
      5. If imposed upon a person attached to or embarked in a vessel, confinement for not more than seven (7) consecutive days; or
        1. A fine or a forfeiture in an amount that does not exceed ten (10) days of the soldier's or airman's base pay.
        2. The payment or collection of the fine or the withholding of the forfeiture under this subdivision (a)(2)(F) shall not exceed an amount equal to five (5) days of base pay during any calendar month.
  2. Under such rules as the Governor may prescribe, a field grade commanding officer may, in addition to or in lieu of admonition or reprimand, impose not more than two (2) of the following disciplinary punishments for a minor offense without the intervention of a court-martial:
    1. Upon officers of his or her command:
      1. Withholding of privileges for not more than two (2) consecutive weeks;
      2. Restriction to certain specified limits, with or without suspension from duty, for not more than two (2) consecutive weeks; or
        1. A fine or a forfeiture in an amount that does not exceed thirty (30) days of the officer's base pay.
        2. The payment or collection of the fine or the withholding of the forfeiture under this subdivision (b)(1)(C) shall not exceed an amount equal to fifteen (15) days of base pay during any calendar month; or
    2. Upon other military personnel of his or her command:
      1. Withholding of privileges for not more than two (2) consecutive weeks;
      2. Restriction to certain specified limits, with or without suspension from duty, for not more than two (2) consecutive weeks;
      3. Extra duties for not more than two (2) consecutive weeks and not to exceed two (2) hours per day, holidays included;
      4. Reduction to next inferior grade if the grade from which demoted was established by the command or an equivalent or lower command;
      5. If imposed upon a person attached to or embarked in a vessel, confinement for not more than seven (7) consecutive days; or
        1. A fine or a forfeiture in an amount that does not exceed thirty (30) days of the soldier's or airman's base pay.
        2. The payment or collection of the fine or the withholding of the forfeiture under this subdivision (b)(2)(F) shall not exceed an amount equal to fifteen (15) days of base pay during any calendar month.
  3. However, except in the case where confinement has not been excluded as a punishment option, a member of the organized militia may not demand trial by court-martial in lieu of nonjudicial punishment.
  4. The Governor or commanding general may, by order or rule, place limitations on the powers granted by this subchapter with respect to the kind and amount of punishment authorized and the categories of commanding officers authorized to exercise those powers.
  5. An officer in charge of a detached unit or section may, for minor offenses, impose on officers, soldiers, or airmen assigned to the unit of which he or she is in charge the punishment authorized to be imposed by commanding officers as the Governor or commanding general may by order or rule specifically prescribe, as provided in subsections (a)-(d) of this section.
  6. Whenever nonjudicial punishment of forfeiture of an amount of base pay is imposed under this section, the forfeiture may apply to the base pay only and before any deduction, withholding, assignment, or forfeiture then due or becoming due on or after the date that punishment is imposed and to any pay accrued before that date.

History. Acts 1969, No. 50, § 59; 1981, No. 656, § 1; 1985, No. 670, § 7; A.S.A. 1947, § 11-614; Acts 2007, No. 47, § 5; 2015, No. 1003, § 13; 2019, No. 315, § 952.

Amendments. The 2015 amendment rewrote (c); in (d) and (e), inserted “or commanding general” following “Governor” and inserted “order or” preceding “regulation”; and substituted “An officer in charge” for “A field grade officer in charge or executive officer” in (e).

The 2019 amendment substituted “rules” for “regulations” and made similar changes in (a), the introductory language of (b), and in (d) and (e).

12-64-302. Appeal.

  1. A person punished under this subchapter who considers his or her punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority.
  2. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged.
  3. The officer who imposes the punishment, his or her successor in command, and superior authority may suspend, set aside, or remit any part or amount of the punishment and restore all rights, privileges, and property affected.

History. Acts 1969, No. 50, § 59; 1981, No. 656, § 1; A.S.A. 1947, § 11-614.

12-64-303. Court-martial not barred.

The imposition and enforcement of disciplinary punishment under this subchapter for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission and not properly punishable under this subchapter. However, the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

History. Acts 1969, No. 50, § 59; 1981, No. 656, § 1; A.S.A. 1947, § 11-614.

Subchapter 4 — Courts-Martial

Publisher's Notes. For Comments regarding the Uniform Code of Military Justice, see Commentaries Volume B.

Cross References. Pay of personnel serving on courts-martial, § 12-62-302.

Effective Dates. Acts 1981, No. 656, § 4: Mar. 23, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that present Arkansas law authorizing summary courts-martial for the state's military personnel does not provide due process and that this act is immediately necessary to provide such due process by allowing a full hearing before a general court-martial. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 670, § 11: Apr. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain disciplinary provisions of the state military code need to be strengthened; that this act results in the same and should be given effect prior to the 1985 annual training of the military personnel subject to the state military code; that April 1 is a reasonable date to expect that this act will have been passed by both houses and acted upon by the Governor and that a date certain is desirable for the effective date. Therefore, an emergency is hereby declared to exist and this act being immediatley necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after April 1, 1985.”

Acts 1985 (1st Ex. Sess.), No. 9, § 3: June 22, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 670 of 1985 which amended various provisions of the Arkansas Military Justice Code inadvertently omitted from the law language concerning the rights of persons charged with court-martial offenses; that it is essential that such language be reinstated in order to assure that those persons charged with court-martial offenses receive due process of law; that this act is designed to reinstate the language inadvertently omitted in the 1985 Act and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 2007, No. 47, § 11: Feb. 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are many members of the Arkansas National Guard and Reserves that are serving in active duty in Iraq and Afghanistan in the war on terror; that it is critical that Arkansas law be updated and be consistent with federal law and rules; and that this act is necessary to eliminate confusion regarding out-dated and inconsistent provisions in the Military Code of Arkansas. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 211, § 23: Feb. 26, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the removal of officers who are substandard in performance of duty or in conduct, deficient in character, or unsuited for military service is of paramount importance to the good order and discipline of the Arkansas National Guard and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

12-64-401. Classifications of courts-martial.

There shall be three (3) kinds of courts-martial in each of the forces of the organized militia, namely:

  1. General courts-martial, which shall consist of:
    1. A military judge and:
      1. Any number of members not less than eight (8); or
      2. Six (6) or seven (7) members if after impanelment as required by subdivision (1)(A)(i) of this section there are challenges or excusals; or
    2. Only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves;
  2. Special courts-martial, consisting of:
    1. A military judge and not less than four (4) members; or
    2. Only a military judge, if one has been detailed to the court, and the accused, under the conditions prescribed in subdivision (1)(B) of this section, so requests, or if referred by the convening authority under the United States Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., subject to applicable limitations; and
  3. Summary courts-martial which shall consist of one (1) officer.

History. Acts 1969, No. 50, § 60; A.S.A. 1947, § 11-615; Acts 1987, No. 125, § 1; 2019, No. 211, § 5.

Amendments. The 2019 amendment substituted “not less than eight (8); or” for “not less than five (5)” in (1)(A)(i); added (1)(A)(ii); deleted former (2)(A) and redesignated (2)(B) and (C) as (2)(C) and (D), respectively; substituted “not less than four (4); or” for “not less than three (3)” in (2)(A); and inserted “or if referred by the convening authority under the United States Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., subject to applicable limitations” in (2)(B).

12-64-402. Jurisdiction generally.

  1. Each force of the organized militia has court-martial jurisdiction and powers over all persons subject to this code and shall follow the forms and procedures provided for similar courts of the United States Army and United States Air Force unless specifically enumerated in the Arkansas Code or by the Governor as the chief executive officer and Commander-in-Chief of the organized militia.
  2. The exercise of jurisdiction by one force over personnel of another force shall be in accordance with rules prescribed by the Governor.
  3. The jurisdiction of the military courts and boards established by this code shall be presumed and the burden of proof rests on any person seeking to oust those courts or boards of jurisdiction in any action or proceeding.

History. Acts 1969, No. 50, §§ 61, 173; A.S.A. 1947, §§ 11-616, 11-684; Acts 2015, No. 1003, § 14; 2019, No. 211, § 6; 2019, No. 315, § 953.

Amendments. The 2015 amendment, in (a), inserted “and powers” and added “and shall follow the forms and procedures provided for similar courts of the United States Army and United States Air Force.”

The 2019 amendment by No. 211 added “unless specifically enumerated in the Arkansas Code or by the Governor as the chief executive officer and Commander-in-Chief of the organized militia” in (a).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b).

12-64-403. General courts-martial punishments.

General courts-martial may, under such limitations as the Governor may prescribe, adjudge one (1) or more of the following punishments for each specification:

  1. Confinement with hard labor that shall not exceed the lowest sentence limitations established in the Manual for Courts-Martial, United States (2019 Edition), as it existed on January 1, 2019, for the offense or three hundred sixty-five (365) days;
  2. A fine or forfeiture in an amount that shall not exceed the lowest sentence limitations established in the Manual for Courts-Martial, United States (2019 Edition), as it existed on January 1, 2019, for the offense or three hundred sixty-five (365) days of the service member's base pay and allowances;
  3. Dishonorable discharge, bad conduct discharge, or dismissal;
  4. Reprimand; and
  5. Reduction of enlisted persons to a lower grade.

History. Acts 1969, No. 50, § 62; 1985, No. 670, § 8; A.S.A. 1947, § 11-617; Acts 2007, No. 47, § 8; 2015, No. 1003, § 14; 2019, No. 211, § 7.

Amendments. The 2015 amendment substituted “General courts-martial punishments” for “Jurisdiction of general courts-martial” in the section heading; in the introductory language, deleted “Subject to § 12-64-402” at the beginning, deleted “have jurisdiction to try persons subject to this code for any offense made punishable by this code and” following “courts-martial”, and substituted “one (1) or more” for “any”; and deleted (6).

The 2019 amendment added “for each specification” in the introductory language; and rewrote (1) and (2).

12-64-404. Special courts-martial punishments.

A special court-martial may, under such limitations as the Governor may prescribe, adjudge one (1) or more of the following punishments:

  1. Confinement with hard labor that shall not exceed the lowest of the sentence limitations established in the Manual for Courts-Martial, United States (2019 Edition), as it existed on January 1, 2019, for the offense or one hundred eighty (180) days;
  2. A fine or forfeiture of pay and allowances in an amount that shall not exceed the lowest of the sentence limitations established in the Manual for Courts-Martial, United States (2019 Edition), as it existed on January 1, 2019, for the offense or one hundred eighty (180) days of the service member's base pay and allowances;
  3. Bad conduct discharge;
  4. Reprimand; and
  5. Reduction of enlisted persons to a lower grade.

History. Acts 1969, No. 50, § 63; 1985, No. 670, § 8; A.S.A. 1947, § 11-618; Acts 2007, No. 47, § 9; 2015, No. 1003, § 14; 2019, No. 211, § 8.

Amendments. The 2015 amendment substituted “Special courts-martial punishments” for “Jurisdiction of special courts-martial” in the section heading; and rewrote the section.

The 2019 amendment substituted “that shall not exceed the lowest of the sentence limitations established in the Manual for Courts-Martial, United States (2019 Edition), as it existed on January 1, 2019, for the offense or one hundred eighty (180) days” for “for not more than one hundred (100) days” in (1); and substituted “the lowest of the sentence limitations established in the Manual for Courts-Martial, United States (2019 Edition), as it existed on January 1, 2019, for the offense or one hundred eighty (180) days” for “one hundred (100) days” in (2).

12-64-405. Summary courts-martial punishments.

  1. Officers and warrant officers may not be tried by summary courts-martial.
  2. No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he or she objects thereto. If objection to a trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate.
  3. A summary court-martial may, under such limitations as the Governor may prescribe, adjudge one (1) or more of the following punishments:
    1. Confinement with hard labor not exceeding thirty (30) days;
    2. A fine or forfeiture of pay and allowances in an amount that shall not exceed thirty (30) days of the service member's base pay and allowances;
    3. Reprimand; and
    4. Reduction of enlisted persons to a lower grade.

History. Acts 1969, No. 50, § 64; 1981, No. 656, § 2; 1985, No. 670, § 8; 1985 (1st Ex. Sess.), No. 9, § 1; A.S.A. 1947, § 11-619; Acts 2007, No. 47, § 10; 2015, No. 1003, § 14; 2019, No. 211, § 9.

Amendments. The 2015 amendment substituted “Summary courts-martial punishments” for “Jurisdiction of summary courts-martial” in the section heading; rewrote (a); in the introductory language of (c), inserted “under such limitations as the Governor may prescribe” and substituted “one (1) or more” for “any”; and deleted (c)(5).

The 2019 amendment substituted “thirty (30) days” for “twenty-five (25) days” in (c)(1); and substituted “thirty (30) days” for “one hundred (100) days” in (c)(2).

12-64-406. Convening courts-martial.

  1. General, special, and summary courts-martial may be convened by the Governor or the commanding general of the organized militia.
  2. Special courts-martial may be convened by the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops are on duty, or of a brigade, regiment, wing, group, detached battalion, separate squadron, or other detached command.
    1. Summary courts-martial consisting of one (1) commissioned officer may be convened by the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where the troops are on duty, or of a brigade, regiment, wing, group, detached battalion, squadron, company, or other detachment.
    2. The proceedings shall be informal.

History. Acts 1969, No. 50, §§ 68-70; A.S.A. 1947, §§ 11-623 – 11-625; Acts 2015, No. 1003, § 14; 2017, No. 250, § 29.

Amendments. The 2015 amendment, in (a), inserted “special, and summary” and added “or the commanding general of the organized militia”; in (b), added “Special courts-martial may be convened by the” and deleted “may convene special courts-martial” following “command”; deleted (b)(2); added “Summary courts-martial may be convened by” in (c)(1); deleted former (c)(2) and redesignated “The proceedings shall be informal” as present (c)(2); and deleted (c)(3).

The 2017 amendment, in (c)(1), inserted “consisting of one (1) commissioned officer”, substituted “troops are on” for “troops on”, and deleted “may convene a summary court-marital consisting of one (1) commissioned officer” at the end.

12-64-407. Service on courts-martial.

  1. Any commissioned officer of or on duty with the organized militia is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.
  2. Any warrant officer of or on duty with the organized militia is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.
      1. Any enlisted member of the organized militia is eligible to serve on general and special courts-martial for the trial of any enlisted member who may lawfully be brought before such courts for trial, but he or she shall serve as a member of a court only if before the convening of the court the accused personally has requested in writing that enlisted members serve on it.
      2. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third (1/3) of the total membership of the court unless eligible members cannot be obtained on account of physical conditions or military exigencies.
      3. If such members cannot be obtained, the court may be convened and the trial held without them, but the convening authority shall make a detailed written statement to be appended to the record stating why they could not be obtained.
    1. In this subsection the word, “unit” means any regularly organized body of the organized militia not larger than a company, a squadron, or a body corresponding to one of them.
  3. When it can be avoided, no person subject to this code shall be tried by a court-martial any member of which is junior to him or her in rank or grade.
  4. When convening a court-martial, the convening authority shall detail as members thereof such members as in his or her opinion are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.
  5. No member is eligible to serve as a member of a general or special court-martial when he or she is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.

History. Acts 1969, No. 50, § 71; A.S.A. 1947, § 11-626; 2019, No. 211, § 10.

Amendments. The 2019 amendment deleted “who is not a member of the same unit as the accused” following “militia” in (c)(1)(A).

12-64-408. [Repealed.]

Publisher's Notes. This section, concerning appointment of president of a special court-martial, was repealed by Acts 2015, No. 1003, § 15. The section was derived from Acts 1969, No. 50, § 71; A.S.A. 1947, § 11-626; Acts 1987, No. 125, § 2.

12-64-409. Military judge.

  1. A military judge shall be detailed to each general and special court-martial.
  2. The military judge shall be a commissioned officer who is a member of the bar of the highest court of a state or a member of the bar of a federal court and who is certified to be qualified for that duty by the State Judge Advocate.
  3. The military judge shall be detailed by the State Judge Advocate.
  4. Neither the convening authority nor any member of his or her staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed which relates to his or her performance of duty as a military judge.
  5. No person shall be eligible to act as military judge in a case if he or she is the accuser or a witness for the prosecution or has acted as investigating officer or as a counsel in the same case.
  6. The military judge of a court-martial may not consult with the members of the court, except in the presence of the accused, trial counsel, and defense counsel, nor may he or she vote with the members of the court.

History. Acts 1969, No. 50, § 72; A.S.A. 1947, § 11-627; Acts 1987, No. 125, § 3; 2015, No. 1003, § 16.

Amendments. The 2015 amendment, in (a), inserted “and special” and deleted the former second sentence; deleted (b) and redesignated the remaining subsections accordingly; in (c), deleted “of a general court-martial” following “judge”, substituted “detailed” for “designated”, and deleted “or his designee in accordance with such regulations as may be prescribed under subsection (a) of this section” following “Advocate”; and deleted the former second sentence of (d).

12-64-410. Trial and defense counsel.

  1. For each general and special court-martial, the authority convening the court shall detail trial counsel and defense counsel.
    1. A person who has acted as investigating officer, military judge, or court member in any case shall not later act as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, defense counsel or assistant defense counsel in the same case.
    2. A person who has acted for the prosecution shall not act later in the same case for the defense.
    3. A person who has acted for the defense shall not act later in the same case for the prosecution.
    1. If a victim of a crime committed subject to this code has a special victims' counsel provided at the expense of an appropriate government agency, the special victims' counsel shall be afforded all of the rights and privileges offered to counsel at similar courts of the United States Army and the United States Air Force.
    2. A judge advocate certified to practice before military courts is fully certified and qualified to serve as a special victims' counsel for the courts convened under this code, without regard to the judge advocate's licensing state.
    3. Any counsel furnished at the expense of the United States Government or the state government shall be qualified to serve as a special victims' counsel under this section and, if qualified, shall be exempt from any fees or additional requirements.

History. Acts 1969, No. 50, § 73; A.S.A. 1947, § 11-628; Acts 1987, No. 125, § 4; 2015, No. 1003, § 16; 2019, No. 211, § 11.

Amendments. The 2015 amendment deleted “and such assistance as he considers appropriate” at the end of (a); in (b), inserted the (3) designation and made stylistic changes; and deleted (c) and (d).

The 2019 amendment added (c).

12-64-411. Court reporters — Interpreters.

  1. Under such rules as the Governor may prescribe, the convening authority of a general or special court-martial shall detail or employ qualified court reporters who shall record the proceedings of and testimony taken before that court.
  2. Under like rules or regulations, the convening authority of a military court may detail or employ interpreters or other professional experts who shall interpret for and assist the court.
  3. Under like rules or regulations, the convening authority of a general or special court-martial shall detail a military court clerk who shall serve in that role in any appeal prescribed by § 12-64-714.

History. Acts 1969, No. 50, § 74; A.S.A. 1947, § 11-629; Acts 2015, No. 1003, § 17; 2019, No. 211, § 12; 2019, No. 315, § 954.

Amendments. The 2015 amendment deleted “or court of inquiry” following “court-martial” in (a).

The 2019 amendment by No. 211 added (c).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a); and inserted “rules or” preceding “regulations” in (b).

12-64-412. Marshals.

  1. The military judge of a general and special court-martial and a summary court officer may each appoint by warrant, and at any time remove, one (1) or more marshals.
  2. Each marshal shall perform the usual duties of a similarly appointed marshal and shall execute any process, mandate, or order issued by the military judge or court or officer and perform all acts and duties imposed or authorized by this code to be performed by a sheriff, marshal, or constable.

History. Acts 1969, No. 50, § 175; A.S.A. 1947, § 11-686; Acts 2015, No. 1003, § 18.

Amendments. The 2015 amendment substituted “military judge” for “president” in (a); in (b), substituted “a similarly appointed marshall” for “such marshals”, “the military judge” for “such president”, and “imposed or authorized by this code” for “by this code imposed on or authorized”; and deleted (c).

12-64-413. Immunity of court and officers.

No action or proceeding may be prosecuted against the convening authority or a member of a military court or officer or person acting under its authority or reviewing its proceedings because of the approval, imposition, or execution of any sentence or the imposition or collection of a fine or penalty, or the execution of any process or mandate of a military court.

History. Acts 1969, No. 50, § 172; A.S.A. 1947, § 11-683.

12-64-414. Absent and additional members.

  1. No member of a general or special court-martial shall be absent or excused after the accused has been arraigned except for physical disability or as a result of a challenge or by order of the convening authority for good cause.
    1. Whenever a general court-martial is reduced below six (6) members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than six (6) members.
    2. When the new members have been sworn, the trial may proceed after the recorded testimony of each witness previously examined has been read to the court in the presence of the military judge, the accused, and the counsel.
    1. Whenever a special court-martial is reduced below four (4) members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than four (4) members.
    2. When the new members have been sworn, the trial shall proceed as if no evidence has previously been introduced unless a verbatim record of the testimony of previously examined witnesses or a stipulation thereof is read to the court in the presence of the accused and counsel.

History. Acts 1969, No. 50, § 75; A.S.A. 1947, § 11-630; Acts 1987, No. 125, § 5; 2019, No. 211, § 13.

Amendments. The 2019 amendment substituted “six (6) members” for “five (5) members” twice in (b)(1); and substituted “four (4) members” for “three (3) members” twice in (c)(1).

Subchapter 5 — Procedure

Publisher's Notes. For Comments regarding the Uniform Code of Military Justice, see Commentaries Volume B.

Effective Dates. Acts 1987 (1st Ex. Sess.), No. 30, § 3: June 12, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that in amending the Military Code during the 1987 Regular Session, some wording was unintentionally left out of a portion of the Military Code; that such error should be corrected immediately in order to give proper meaning to the section amended; and that this Act will reinsert such unintentionally deleted language. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 211, § 23: Feb. 26, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the removal of officers who are substandard in performance of duty or in conduct, deficient in character, or unsuited for military service is of paramount importance to the good order and discipline of the Arkansas National Guard and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-64-501. Statutes of limitations.

  1. A person charged with desertion or absence without leave in time of war or with aiding the enemy or with mutiny may be tried and punished at any time without limitation.
  2. Except as otherwise provided in this section, a person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five (5) years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command.
  3. A person charged with an offense is not liable to be punished by nonjudicial punishment if the offense was committed more than two (2) years before the imposition of nonjudicial punishment.
  4. Periods in which the accused was absent from territory in which the state has authority to apprehend him or her, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this section.

History. Acts 1969, No. 50, § 89; A.S.A. 1947, § 11-644; Acts 2017, No. 76, § 1.

Amendments. The 2017 amendment, in (b), substituted “an offense” for “desertion in time of peace or with perjury” and “five (5) years” for “three (3) years”; in (c), substituted “A person charged with an offense” for “Except as otherwise provided in this section a person charged with any offense” and deleted “before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or” following “two (2) years”.

12-64-502. Charges and specifications.

  1. Charges and specifications shall be signed by a person subject to this code under oath before a person authorized by this code to administer oaths and shall state:
    1. That the signer has personal knowledge of, or has investigated the matters set forth therein; and
    2. That they are true in fact to the best of his or her knowledge and belief.
  2. Upon the preferring of charges:
    1. The proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline; and
    2. The person accused shall be informed of the charges against him or her as soon as practicable.

History. Acts 1969, No. 50, § 76; A.S.A. 1947, § 11-631.

12-64-503. Compulsory self-incrimination prohibited.

  1. No person subject to this code may compel any person to incriminate himself or herself or to answer any question, the answer to which may tend to incriminate him or her.
  2. No person subject to this code may interrogate or request any statement from an accused or a person suspected of an offense without first informing him or her of the nature of the accusation and advising him or her that he or she does not have to make any statement regarding the offense of which he or she is accused or suspected and that any statement made by him or her may be used as evidence against him or her in a trial by court-martial.
  3. No person subject to this code may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him or her.
  4. No statement obtained from any person in violation of this section or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him or her in a trial by court-martial.

History. Acts 1969, No. 50, § 77; A.S.A. 1947, § 11-632.

12-64-504. Investigation.

  1. A preliminary hearing shall be held in accordance with 10 U.S.C. § 832 et seq., as it existed on January 1, 2019, before the referral of charges and specifications for trial by general court-martial.
    1. Under rules prescribed by the Governor, a preliminary hearing is not required if the accused submits a written waiver of the preliminary hearing to the convening authority and the convening authority grants the waiver.
    2. The purpose of the preliminary hearing shall be limited to determining the following:
      1. Whether or not the specification alleges an offense under this chapter;
      2. Whether or not there is probable cause to believe that the accused committed the offense charged;
      3. Whether or not the convening authority has court-martial jurisdiction over the accused and over the offense; and
      4. A recommendation as to the disposition that should be made of the case.
    3. The rights of the accused and the rights of the victim shall be the same as provided under 10 U.S.C. § 832 et seq., as it existed on January 1, 2019.

History. Acts 1969, No. 50, § 78; A.S.A. 1947, § 11-633; Acts 2019, No. 211, § 14.

Amendments. The 2019 amendment rewrote the section.

12-64-505. Reference for trial.

  1. Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the State Judge Advocate for consideration and advice.
  2. The convening authority shall not refer a charge to a general court-martial for trial unless he or she has found that the charge alleges an offense under this code and is warranted by evidence indicated in the report of the investigation.
  3. If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections and such changes in the charges and specifications as are needed to make them conform to the evidence may be made.

History. Acts 1969, No. 50, § 80; A.S.A. 1947, § 11-635.

12-64-506. Forwarding of charges.

When a person is held for trial by general court-martial, the commanding officer shall, within eight (8) days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the Governor. If that is not practicable, he or she shall report in writing to the Governor the reasons for delay.

History. Acts 1969, No. 50, § 79; A.S.A. 1947, § 11-634.

12-64-507. Service of charges.

  1. The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused, or the defense counsel, a copy of the charges upon which trial is to be held.
  2. In time of peace, no person may, against his or her objection, be brought to trial before a general court-martial within a period of five (5) days after the service of the charges upon him or her or before a special court-martial within a period of three (3) days after the service of the charges upon him or her.

History. Acts 1969, No. 50, § 81; A.S.A. 1947, § 11-636; Acts 2019, No. 211, § 15.

Amendments. The 2019 amendment inserted “or the defense counsel” in (a).

12-64-508. Procedural rules.

The procedures used by general, special, and summary courts-martial shall be similar to those established by the United States Congress for similar courts of the United States Army and United States Air Force; however, the Governor has executive authority over the military courts of the organized militia and may implement state-specific procedural rules when necessary and practical.

History. Acts 1969, No. 50, § 82; A.S.A. 1947, § 11-637; Acts 2015, No. 1003, § 19; 2017, No. 75, § 1; 2019, No. 211, § 16.

Amendments. The 2015 amendment substituted “Procedural” for “Governor may prescribe” in the section heading; and rewrote the section.

The 2017 amendment substituted “The procedures” for “The procedure” and “established by the United States Congress for” for “used by”, and added “however, the Governor has executive authority over the military courts of the organized militia.”

The 2019 amendment substituted “similar to those established” for “the same as those established”, and added “and may implement state-specific procedural rules when necessary and practical.”

12-64-509. Unlawfully influencing action of court.

  1. No authority convening a general, special, or summary court-martial nor any other commanding officer or officer serving on the staff thereof may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or his or her functions in the conduct of the proceeding.
  2. No person subject to this code may attempt to coerce or by any unauthorized means influence the action of the court-martial or any other military tribunal or any member thereof in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to his or her judicial acts.

History. Acts 1969, No. 50, § 83; A.S.A. 1947, § 11-638; Acts 1987, No. 125, § 6; 1987 (1st Ex. Sess.), No. 30, § 1.

12-64-510. Duties of trial and defense counsel.

  1. The trial counsel of a general or special court-martial shall prosecute in the name of the state and shall, under the direction of the court, prepare the record of the proceedings.
  2. The accused has the right to be represented in his or her defense before a general or special court-martial by:
    1. Civilian counsel if provided by the accused;
    2. Military counsel of the accused's own selection if reasonably available; or
    3. The defense counsel detailed under this code.
  3. In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters as he or she feels should be considered in behalf of the accused on review including any objection to the contents of the record which he or she considers appropriate.
    1. An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he or she is qualified to be a trial counsel as required by this code, perform any duty imposed by law, rule, regulation, or the custom of the service upon the trial counsel of the court.
    2. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.
  4. An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he or she is qualified to be the defense counsel as required by this code, perform any duty imposed by law, rule, regulation, or the custom of the service upon counsel for the accused.

History. Acts 1969, No. 50, § 84; A.S.A. 1947, § 11-639; Acts 1987, No. 125, § 7; 2015, No. 1003, § 20; 2019, No. 315, § 955.

Amendments. The 2015 amendment rewrote (b).

The 2019 amendment inserted “rule” preceding “regulation” in (d)(1) and (e).

12-64-511. Sessions — Records of proceedings.

  1. Whenever a general or special court-martial deliberates or votes, only the members of the court may be present.
  2. After a general court-martial has finally voted on the findings, the court may request the military judge and the reporter to put the findings in proper form; and those proceedings shall be on the record.
  3. All other proceedings, including any consultation of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge if one is assigned to the case.

History. Acts 1969, No. 50, § 85; A.S.A. 1947, § 11-640; Acts 1987, No. 125, § 8.

12-64-512. Continuances.

A court-martial may, for reasonable cause, grant a continuance to any party for such time and as often as may appear to be just.

History. Acts 1969, No. 50, § 86; A.S.A. 1947, § 11-641.

12-64-513. Challenges.

    1. Members of a general or special court-martial and the military judge of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court.
    2. The court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one (1) person at a time.
    3. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.
  1. Each accused and the trial counsel is entitled to one (1) peremptory challenge, but the military judge may not be challenged except for cause.

History. Acts 1969, No. 50, § 87; A.S.A. 1947, § 11-642; Acts 1987, No. 125, § 9.

Research References

U. Ark. Little Rock L.J.

Note, Peremptory Challenges After Purkett. v. Elem, 115 S. Ct. 1769, 514 U.S. 765, 131 L. Ed. 2d 834 (1995): How to Judge a Book By Its Cover Without Violating Equal Protection, 19 U. Ark. Little Rock L.J. 249.

12-64-514. Oaths.

  1. The military judge, interpreters, and, in general and special courts-martial, members, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, and reporters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully.
  2. Each witness before a military court shall be examined on oath or affirmation.

History. Acts 1969, No. 50, § 88; A.S.A. 1947, § 11-643; Acts 1987, No. 125, § 10.

12-64-515. Pleas of the accused.

If an accused arraigned before a court-martial makes an irregular pleading, or enters a plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he or she fails or refuses to plead, a plea of not guilty shall be entered in the record and the court shall proceed as though he or she had pleaded not guilty.

History. Acts 1969, No. 50, § 91; A.S.A. 1947, § 11-646.

12-64-516. Obtaining witnesses and other evidence.

  1. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such rules as the Governor may prescribe.
  2. The military judge, the president of a court-martial, or a summary court officer may:
    1. Issue a warrant for the arrest of any accused person who, having been served with a warrant and copy of the charges, disobeys a written order by the convening authority to appear before the court;
    2. Issue subpoenas duces tecum and other subpoenas;
    3. Enforce by attachment the attendance of witnesses and the production of books and papers; and
    4. Sentence for refusal to be sworn or to answer as provided in actions before civil courts of the state.
  3. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall run to any part of the state.

History. Acts 1969, No. 50, § 92; A.S.A. 1947, § 11-647; Acts 1987, No. 125, § 11; 2019, No. 315, § 956.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a).

12-64-517. Depositions.

    1. At any time after charges have been signed as provided herein, any party may take oral or written depositions unless an authority competent to convene a court-martial for the trial of those charges forbids it for good cause.
    2. If a deposition is to be taken before charges are referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.
  1. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.
  2. Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths.
  3. A duly authenticated deposition taken upon reasonable notice to the other parties so far as otherwise admissible under the rules of evidence may be read in evidence before any court-martial or in any proceeding before a court of inquiry if it appears:
    1. That the witness resides or is beyond the state in which the court-martial or court of inquiry is ordered to sit or beyond the distance of one hundred (100) miles from the place of trial or hearing;
    2. That the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause is unable or refuses to appear and testify in person at the place of trial or hearing; or
    3. That the present whereabouts of the witness is unknown.

History. Acts 1969, No. 50, § 95; A.S.A. 1947, § 11-650.

12-64-518. Issuance of process, subpoenas, etc.

  1. Military courts may issue all process and mandates necessary to carry into effect the powers vested in those courts.
  2. The courts may issue subpoenas and subpoenas duces tecum and enforce by attachment attendance of witnesses and production of books and records when the courts are sitting within the state and the witnesses, books, and records sought are also located.
  3. Such process and mandates may be issued by summary courts-martial or the president or military judge of other military courts and may be directed to and may be executed by the marshals of the military court or any peace officer and shall be in such form as may be prescribed by rules issued under this code.
    1. All officers to whom such process or mandates may be so directed shall execute them and make return of their acts thereunder according to the requirements of those documents.
    2. Except as otherwise specifically provided in this code, no such officer may demand or require payment of any fee or charge for receiving, executing, or returning such a process or mandate or for any service in connection therewith.
  4. Any sheriff, constable, jailer, marshal, or other civil officer named in this code, who shall neglect or refuse to obey, execute, or return the lawful warrant or other process of a military court or make a false return thereon, shall be guilty of a misdemeanor and in addition to the penalties attaching thereto, shall forfeit fifty dollars ($50.00) for each offense or neglect of duty, the money to be recovered in a civil action against the officer and his or her official sureties by the Attorney General for the benefit of the Department of the Military Fund.

History. Acts 1969, No. 50, §§ 169, 176; A.S.A. 1947, §§ 11-680, 11-687; Acts 2017, No. 77, § 1; 2019, No. 315, § 957; 2019, No. 910, § 5540.

Amendments. The 2017 amendment inserted “or military judge” in (c).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (c).

The 2019 amendment by No. 910 substituted “Department of the Military” for “State Military Department” in (e).

Cross References. Misdemeanors, § 5-1-107.

12-64-519. Refusal to appear or testify.

Any person not subject to this code is guilty of an offense against the state and may be punished in the same manner as if committed before civil courts of the state if he or she:

  1. Has been duly subpoenaed to appear as a witness or to produce books and reports before a military court or before any military or civil officer designated to take a deposition to be read in evidence before such a court;
  2. Has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the circuit court of the state; and
  3. Willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce.

History. Acts 1969, No. 50, § 93; A.S.A. 1947, § 11-648.

12-64-520. Contempt.

  1. A military court may punish for contempt a person who uses a menacing word, sign, or gesture in its presence, or who disturbs its proceedings by riot or disorder.
  2. The punishment may not exceed confinement for thirty (30) days or a fine of five hundred dollars ($500), or both.

History. Acts 1969, No. 50, § 94; A.S.A. 1947, § 11-649; Acts 2017, No. 322, § 1.

Amendments. The 2017 amendment substituted “five hundred dollars ($500)” for “one hundred dollars ($100)” in (b); and made stylistic changes.

12-64-521. [Repealed.]

Publisher's Notes. This section, concerning admissibility of records of courts of inquiry, was repealed by Acts 2015, No. 1003, § 21. The section was derived from Acts 1969, No. 50, § 96; A.S.A. 1947, § 11-651.

12-64-522. Votes and rulings.

    1. Voting by members of a general or special court-martial upon question of challenge, on the findings, and on the sentence shall be by secret written ballot.
    2. The junior member of the court shall in each case count the votes.
    3. The count shall be checked by the president who shall forthwith announce the result of the ballot to the members of the court.
    1. The military judge of a general or special court-martial and the president of a special court-martial without a military judge shall rule upon interlocutory questions other than challenges arising during the proceedings.
    2. Any such ruling made by the military judge of a general or special court-martial who is a member of the bar of the state upon an interlocutory question of accused's sanity is final and constitutes the ruling of the court. However, the military judge or president may change the ruling at any time during the trial except a ruling on a motion for a finding of not guilty that was granted.
    3. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in this code beginning with the junior in rank.
  1. Before a vote is taken on the findings, the military judge of a general or special court-martial and the president of a special court-martial without a military judge, in the presence of the accused and counsel, shall instruct the court as to the elements of the offense and charge the court:
    1. That the accused must be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond reasonable doubt;
    2. That in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused, and he or she must be acquitted;
    3. That if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
    4. That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state.

History. Acts 1969, No. 50, § 97; A.S.A. 1947, § 11-652; Acts 1987, No. 125, § 12.

12-64-523. Convictions, sentences, etc. — Number of votes required.

  1. No person may be convicted of an offense except by the concurrence of three-fourths (¾) of the members present at the time the vote is taken.
  2. All sentences shall be determined by the concurrence of three-fourths (¾) of the members present at the time that the vote is taken.
  3. All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote.
    1. A tie vote on a challenge disqualifies the member challenged.
    2. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a determination against the accused.
    3. A tie vote on any other question is a determination in favor of the accused.

History. Acts 1969, No. 50, § 98; A.S.A. 1947, § 11-653; Acts 2019, No. 211, § 17.

Amendments. The 2019 amendment substituted “three-fourths (3/4)” for “two-thirds (2/3)” in (a) and (b).

12-64-524. Announcement of action.

  1. In all trials, the court-martial shall announce a finding for each charge and specification that is not dismissed or withdrawn by the prosecution to the parties as soon as the findings are determined.
  2. In all trials before members, the court-martial shall announce a single sentence as to confinement, fines or forfeitures, discharge or dismissal, and reprimand and reduction in rank for all charges and specifications for which the accused was found guilty.
  3. In all trials before a judge alone, the court-martial shall announce a separate sentence as to confinement, fines or forfeitures, discharge or dismissal, and reprimand and reduction in rank for each charge and specification for which the accused was found guilty.

History. Acts 1969, No. 50, § 99; A.S.A. 1947, § 11-654; Acts 2019, No. 211, § 18.

Amendments. The 2019 amendment rewrote the section.

12-64-525. Record of trial.

  1. Each general, special, and summary court-martial shall keep a separate record of the proceedings of the trial of each case brought before it.
  2. The record of proceedings shall be prepared and authenticated in the same manner as similar courts of the United States Army and United States Air Force.

History. Acts 1969, No. 50, § 100; A.S.A. 1947, § 11-655; Acts 1987, No. 125, § 13; 2015, No. 1003, § 22.

Amendments. The 2015 amendment, in (a), inserted “general, special, and summary” and deleted “The record shall be authenticated by the signature of the president and the military judge if one is assigned” at the end; deleted (a)(2) and (3); added present (b); and deleted former (b) and (c).

12-64-526. Double jeopardy.

  1. No person may without his or her consent be tried a second time in any court of the state for the same offense.
  2. No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed.
  3. A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this section.

History. Acts 1969, No. 50, § 90; A.S.A. 1947, § 11-645.

Subchapter 6 — Sentencing

Publisher's Notes. For Comments regarding the Uniform Code of Military Justice, see Commentaries Volume B.

Effective Dates. Acts 2007, No. 47, § 11: Feb. 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are many members of the Arkansas National Guard and Reserves that are serving in active duty in Iraq and Afghanistan in the war on terror; that it is critical that Arkansas law be updated and be consistent with federal law and rules; and that this act is necessary to eliminate confusion regarding out-dated and inconsistent provisions in the Military Code of Arkansas. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-64-601. Cruel and unusual punishments prohibited.

  1. Punishment by flogging or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this code.
  2. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

History. Acts 1969, No. 50, § 101; A.S.A. 1947, § 11-656.

12-64-602. Maximum limits.

The punishment which a court-martial may direct for an offense may not exceed limits prescribed by this code.

History. Acts 1969, No. 50, § 102; A.S.A. 1947, § 11-657.

12-64-603. Sentence of dismissal or discharge.

  1. A dishonorable discharge, bad conduct discharge, or dismissal shall not be adjudged by any court-martial unless a complete record of the proceedings and testimony before the court has been made.
  2. No sentence of dismissal or dishonorable discharge may be executed until it is approved by the Governor or the commanding general of the organized militia.

History. Acts 1969, No. 50, §§ 65, 66; A.S.A. 1947, §§ 11-620, 11-621; Acts 2015, No. 1003, § 23.

Amendments. The 2015 amendment, in the section heading, deleted “dishonorable” preceding “discharge” and deleted “etc.” at the end; and added “or the commanding general of the organized militia” in (b).

12-64-604. Effective date of sentences.

    1. Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority.
    2. No forfeiture may extend to any pay or allowance accrued before that date.
    1. Rules prescribed by the Governor may provide that sentences of confinement may not be effective or executed until approved by designated officers.
    2. Periods during which confinement is suspended shall be excluded in computing the service of the term of confinement.
  1. All other sentences of courts-martial are effective on the date ordered executed.

History. Acts 1969, No. 50, § 103; A.S.A. 1947, § 11-658; Acts 2015, No. 1003, § 24; 2019, No. 315, § 958.

Amendments. The 2015 amendment rewrote (b).

The 2019 amendment substituted “Rules” for “Regulations” in (b)(1).

12-64-605. Execution or suspension of sentence.

  1. Except as otherwise provided, a court-martial sentence, unless suspended, may be ordered executed by the convening authority when approved by the convening authority in accordance with rules prescribed by the Governor.
  2. The convening authority shall approve the sentence or such part, amount, or commuted form of the sentence as the convening authority sees fit and may suspend the execution of the sentence.

History. Acts 1969, No. 50, § 105; A.S.A. 1947, § 11-660; Acts 2015, No. 1003, § 25; 2019, No. 315, § 959.

Amendments. The 2015 amendment redesignated the section as (a) and (b); substituted “by the convening authority in accordance with regulations prescribed by the Governor” for “by him” in (a); and, in (b), substituted “the convening authority” for “he” twice and deleted “as approved by him” at the end.

The 2019 amendment substituted “rules” for “regulations” in (a).

12-64-606. Execution of confinement.

  1. A sentence of confinement adjudged by a military court, whether or not the sentence includes a discharge or dismissal and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the forces of the organized militia or in any jail, penitentiary, or prison designated for that purpose.
  2. Persons so confined in a jail, penitentiary, or prison are subject to the same discipline and treatment as persons confined or committed to the jail, penitentiary, or prison by the courts of the state or of any political subdivision thereof.
  3. The omission of the words “hard labor” from any sentence or punishment of a court-martial adjudging confinement does not deprive the authority executing that sentence or punishment of the power to require hard labor as a part of the punishment.
  4. The keepers, officers, and wardens of city or county jails and of other jails, penitentiaries, or prisons designated by the Governor, or by such person as he or she may authorize shall receive persons ordered into confinement before trial and persons committed to confinement by a military court and shall confine them according to law.

History. Acts 1969, No. 50, § 104; A.S.A. 1947, § 11-659.

12-64-607. Execution of process and sentence.

  1. In the organized militia not in federal service, the processes and sentences of its courts-martial when issued may be executed by the civil officers prescribed by the laws of the state.
  2. When the sentence of a court-martial adjudges confinement and the reviewing authority has approved the sentence in whole or in part, the reviewing authority or the commanding officer for the time being, as the case may be, shall issue a warrant of commitment to the sheriff of the county in which the court-martial was held directing the sheriff to take the body of the person so sentenced and confine him or her in the county jail of the county for the period named in the sentence, as approved, or until he or she may be directed to release him or her for proper authority. The confinement shall be carried out as prescribed for confinement in jail by the code of criminal procedure of this state.

History. Acts 1969, No. 50, § 168; A.S.A. 1947, § 11-679; Acts 2015, No. 1003, § 26.

Amendments. The 2015 amendment substituted “may” for “shall” in (a).

12-64-608. General or special court-martial — Authorized sentence after declaration of war prior to jurisdiction of United States Code of Military Justice.

A general or special court-martial convened for the trial of a person charged with committing an offense after the declaration of a war or national emergency and before the time when he or she is brought under the jurisdiction of the United States Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., may, upon conviction, adjudge such punishment as may be appropriate except that it may not exceed that authorized for a similar offense by the United States Uniform Code of Military Justice.

History. Acts 1969, No. 50, § 67; A.S.A. 1947, § 11-622.

12-64-609. Fines and forfeitures.

  1. Fines may be paid to a military court or to an officer executing its process.
    1. The amount of a fine may be noted upon any state roll or account for pay of the delinquent and deducted from any pay or allowance due or thereafter to become due him or her, until the fine is liquidated.
    2. Any sum so deducted shall be turned in to the military court which imposed the fine and shall be paid over by the officer receiving it in like manner as provided for other fines and moneys collected under a sentence of a summary court-martial.
    1. Notwithstanding any other law, a fine or penalty imposed by a military court upon an officer or enlistee shall be paid by the officer collecting it within thirty (30) days to the Treasurer of State and shall become a part of, be credited to, and be spent from, the Department of the Military Fund.
    2. The Treasurer of State shall then report the amount thereof to the Adjutant General and shall pay it over in appropriate warrant.
  2. If a punishment of fine or forfeiture of an amount of base pay and allowance is imposed by a court-martial, the amount of the fine or forfeiture shall apply to any type or category of pay and allowances then due or becoming due on or after the date that the punishment is imposed before any deduction, withholding, assignment, previous forfeiture, or collection from the pay and allowances, and to any pay and allowances accrued before that date.

History. Acts 1969, No. 50, § 171; A.S.A. 1947, § 11-682; Acts 2007, No. 47, § 6; 2019, No. 910, § 5541.

Amendments. The 2019 amendment, in (c)(1), substituted “Treasurer of State” for “Treasurer of State of Arkansas” and “Department of the Military” for “State Military Department”.

12-64-610. Delinquent fines or forfeitures.

    1. When a fine or forfeiture is delinquent for a period of ninety (90) days or more, the Department of the Military shall have a cause of action against the person and property liable for the delinquent portion of the fine or forfeiture, costs of collection, penalties, and interest to which the Department of the Military is entitled, plus a reasonable attorney's fee.
    2. The Department of the Military shall have a lien on all property subject to forfeiture.
  1. The action shall be brought in the Pulaski County Circuit Court.
  2. The judgment awarded the Department of the Military under this section shall be enforceable to the same extent and in the same manner as other civil judgments.

History. Acts 2015, No. 1003, § 27; 2019, No. 910, § 5542.

Amendments. The 2019 amendment substituted “Department of the Military” for “State Military Department” throughout the section.

Subchapter 7 — Review of Courts-Martial

Publisher's Notes. For Comments regarding the Uniform Code of Military Justice, see Commentaries Volume B.

Effective Dates. Acts 2019, No. 211, § 23: Feb. 26, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the removal of officers who are substandard in performance of duty or in conduct, deficient in character, or unsuited for military service is of paramount importance to the good order and discipline of the Arkansas National Guard and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

12-64-701. Initial action on the record.

After a trial by court-martial, the record shall be forwarded to the convening authority, as reviewing authority, and action thereon may be taken by the person who convened the court, a commissioned officer commanding for the time being, a successor in command, or by the Governor.

History. Acts 1969, No. 50, § 106; A.S.A. 1947, § 11-661.

12-64-702. General court-martial records.

The convening authority shall refer the record of each general court-martial to the State Judge Advocate, who shall submit his or her written opinion thereon to the convening authority. If the final action of the court has resulted in an acquittal of all charges and specifications, the opinion shall be limited to questions of jurisdiction.

History. Acts 1969, No. 50, § 107; A.S.A. 1947, § 11-662.

12-64-703. Reconsideration and revision.

  1. If a specification before a court-martial has been dismissed on motion and the ruling does not amount to a finding of not guilty, the convening authority may return the record to the court for reconsideration of the ruling and any further appropriate action.
    1. Where there is an apparent error or omission in the record or where the record shows improper or inconsistent action by a court-martial with respect to a finding or sentence which can be rectified without material prejudice to the substantial rights of the accused, the convening authority may return the record to the court for appropriate action.
    2. In no case, however, may the record be returned:
      1. For reconsideration of a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;
      2. For reconsideration of a finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some section of this code; or
      3. For increasing the severity of the sentence unless the sentence prescribed for the offense is mandatory.

History. Acts 1969, No. 50, § 108; A.S.A. 1947, § 11-663.

12-64-704. Review of records — Disposition.

  1. If the convening authority is the Governor, his or her action on the review of any record of trial is final.
    1. In all cases not convened by the Governor, if the sentence approved by the convening authority includes a dishonorable discharge, bad-conduct discharge, or dismissal, whether or not suspended, the entire record shall be sent to a staff judge advocate to be reviewed in the manner prescribed by the Governor.
    2. The record and the opinion of the staff judge advocate or legal officer shall then be sent to the State Judge Advocate for review.
  2. All other court-martial records shall be sent to a judge advocate and shall be acted upon, transmitted, and disposed of as shall be prescribed by the Governor.
    1. The State Judge Advocate shall review the record of trial in each case sent to him or her for review.
    2. The State Judge Advocate shall take final action in any case reviewable by him or her.
    3. In a case reviewable by the State Judge Advocate under this section, the State Judge Advocate may act only with respect to the findings and sentence as approved by the convening authority.
  3. If the final action of the court-martial has resulted in an acquittal of all charges and specifications, the opinion of the State Judge Advocate shall be limited to questions of jurisdiction.
    1. He or she may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as he or she finds correct in law and fact and determines, on the basis of the entire record, should be approved.
    2. In considering the record, he or she may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.
    1. If the State Judge Advocate sets aside the findings and sentence, he or she may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing.
    2. If he or she sets aside the findings and sentence and does not order a rehearing, he or she shall order that the charges be dismissed.
    3. In a case reviewable by the State Judge Advocate under this section, he or she shall instruct the convening authority to act in accordance with his or her decision on the review.
    4. If he or she has ordered a rehearing but the convening authority finds a rehearing impracticable, he or she may dismiss the charges.
    1. The State Judge Advocate:
      1. May order one (1) or more boards of review, each composed of not less than three (3) commissioned officers of the organized militia, each of whom must be a member of the bar of the highest court of the state; and
      2. Shall order a board of review to hear the appeal of any court-martial demanded under § 12-64-714.
    2. Each board of review shall review the record of any trial by court-martial referred to it by the State Judge Advocate.
    3. Boards of review have the same authority on review as the State Judge Advocate has under this section.

History. Acts 1969, No. 50, § 111; A.S.A. 1947, § 11-666; Acts 2015, No. 1003, §§ 28, 29.

Amendments. The 2015 amendment rewrote (b) and (c); inserted the (h)(1)(A) designation; added (h)(1)(B); and, in (h)(2), deleted “special” preceding “court-martial” and deleted “including a sentence to a bad conduct discharge” following “court-martial”.

12-64-705. Approval by convening authority.

In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he or she finds correct in law and fact and as he or she in his or her discretion determines should be approved. Unless he or she indicates otherwise, approval of the sentence is approval of the findings and sentence.

History. Acts 1969, No. 50, § 110; A.S.A. 1947, § 11-665.

12-64-706. Error of law — Lesser included offense.

  1. A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
  2. Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm so much of the finding as includes a lesser included offense.

History. Acts 1969, No. 50, § 112; A.S.A. 1947, § 11-667.

12-64-707. Rehearings.

    1. If the convening authority disapproves the findings and sentence of a court-martial he or she may, except where there is lack of sufficient evidence in the record to support the findings, order a rehearing.
    2. In such a case he or she shall state the reasons for disapproval.
    3. If he or she disapproves the findings and sentence and does not order a rehearing, he or she shall dismiss the charges.
    1. Each rehearing shall take place before a court-martial composed of members not members of the court-martial which first heard the case.
    2. Upon a rehearing the accused may not be tried for any offense of which he or she was found not guilty by the first court-martial; and no sentence in excess of or more severe than the original sentence may be imposed, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings or unless the sentence prescribed for the offense is mandatory.

History. Acts 1969, No. 50, § 109; A.S.A. 1947, § 11-664.

12-64-708. Change in sentence.

  1. A convening authority may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures.
  2. The Governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

History. Acts 1969, No. 50, § 116; A.S.A. 1947, § 11-671.

12-64-709. Vacation of suspension of sentence.

    1. Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation.
    2. The probationer shall be represented at the hearing by counsel if he or she so desires.
    3. The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the Governor in cases involving a general court-martial sentence and to the commanding officer of the force of the organized militia of which the probationer is a member in all other cases covered by subsection (a) of this section.
    4. If the Governor or commanding officer vacates the suspension, any unexecuted part of the sentence except a dismissal shall be executed.
  1. The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

History. Acts 1969, No. 50, § 114; A.S.A. 1947, § 11-669.

12-64-710. Review counsel.

The accused has the right to be represented during a review of records under this subchapter by:

  1. Civilian counsel if provided by the accused;
  2. Military counsel of the accused's own selection if reasonably available; or
  3. The defense counsel detailed under this code.

History. Acts 1969, No. 50, § 113; A.S.A. 1947, § 11-668; Acts 2015, No. 1003, § 30; 2017, No. 250, § 30.

Amendments. The 2015 amendment rewrote the section.

The 2017 amendment added “or” at the end of (2).

12-64-711. Finality of proceedings, findings, and sentences.

  1. The proceedings, findings, and sentences of courts-martial as reviewed and approved, as required by this code, and all dismissals and discharges carried into execution under sentences by courts-martial following review and approval, as required herein, are final and conclusive.
  2. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the state, subject only to action upon a petition for a new trial or appeal as provided in this subchapter.

History. Acts 1969, No. 50, § 118; A.S.A. 1947, § 11-673; Acts 2015, No. 1003, § 31.

Amendments. The 2015 amendment, in (b), inserted “or appeal” and substituted “in this subchapter” for “herein”.

12-64-712. Petition for a new trial.

At any time within two (2) years after approval by the convening authority of a court-martial sentence which extends to dismissal, dishonorable or bad-conduct discharge, the accused may petition the Governor for a new trial on ground of newly discovered evidence or fraud on the court-martial.

History. Acts 1969, No. 50, § 115; A.S.A. 1947, § 11-670.

12-64-713. New trial — Effect on sentence.

  1. Under such rules as the Governor may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.
  2. If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Governor shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his or her enlistment.
    1. If a previously executed sentence of dismissal is not imposed on a new trial, the Governor shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the Governor alone to such commissioned grade and with such rank as in the opinion of the Governor that former officer would have attained had he or she not been dismissed.
    2. The reappointment of such a former officer may be made if a position vacancy is available under applicable tables of organization.
    3. All times between the dismissal and the reappointment shall be considered as service for all purposes.

History. Acts 1969, No. 50, § 117; A.S.A. 1947, § 11-672; Acts 2019, No. 315, § 960.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a).

12-64-714. Appeal.

      1. When an accused has exhausted all other rights of review within the organized militia, the accused may appeal a conviction and sentence of a court-martial that sentences the accused to incarceration to:
        1. The Supreme Court; or
        2. If the rules of the Supreme Court provide, the Court of Appeals.
      2. The Arkansas Rules of Appellate Procedure-Criminal shall apply to all appeals to the Supreme Court and Court of Appeals under this code.
    1. When an accused has exhausted all other rights of review with the organized militia, the accused may appeal the conviction and sentence of any court-martial that does not sentence the accused to incarceration to a board of review as provided under § 12-64-704.
  1. The proceedings for an appeal shall be initiated by filing a notice of appeal with the Adjutant General. The notice of appeal shall be served on the Adjutant General personally or by certified mail. It shall be unnecessary to serve other parties. Any appeal shall be filed with the Adjutant General no more than thirty (30) days after the effective date of the sentence under § 12-64-604.
  2. The record of any court-martial conviction and sentence appealed shall be lodged in the office of the clerk of the court within the time prescribed by law or court rule for filing an appeal of a criminal conviction in a circuit court in this state, and not thereafter, and only after the party appealing has paid to the Adjutant General the costs for preparation of the certified transcripts and to the military court clerk the filing costs, except for paupers as provided for by the appellate court rules.
  3. In all cases of appeal to the Supreme Court or Court of Appeals, the appeal shall be taken on the record in the case, consisting of pertinent documents and papers, any transcript of evidence, and the findings and orders. The appellate jurisdiction of the Supreme Court and Court of Appeals shall extend only to questions of law, as in criminal cases appealed from the circuit courts.
  4. Upon request of the defendant and a showing of indigency, the State Judge Advocate may appoint an attorney having the qualifications prescribed in § 12-64-410 to represent the defendant in the appeal of his or her court-martial conviction and sentence to the Supreme Court or Court of Appeals.
  5. On an appeal under subdivision (a)(1) of this section, the state shall be represented by the Attorney General or his or her designee.

History. Acts 1987, No. 125, § 14; 2015, No. 1003, § 32; 2019, No. 211, § 19.

Amendments. The 2015 amendment deleted “to Supreme Court or Court of Appeals” following “Appeal” in the section heading; redesignated (a) as (a)(1)(A) and inserted designations (i) and (ii); in the introductory language of (a)(1)(A), substituted “other” for “of his”, substituted “the accused” for “he”, and inserted “that sentences the accused to incarceration”; added (a)(1)(B) and (a)(2); deleted “State” preceding “Adjutant” throughout (b); added “except for paupers as provided for by the appellate court rules” in (c); in (e), inserted “and a showing of indigency” and deleted “(c)” following “§ 12-64-410”; and, in (f), deleted “Indigent defendants shall have the same right to appointed appellate defense counsel as accused persons not in the military” at the beginning and inserted “under subdivision (a)(1) of this section”.

The 2019 amendment, in (c), substituted “certified transcripts” for “transcript” and inserted “military”.

Subchapter 8 — Punitive Articles

Publisher's Notes. For Comments regarding the Uniform Code of Military Justice, see Commentaries Volume B.

Effective Dates. Acts 1983, No. 412, § 5: Mar. 13, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Governor should be granted the authority to designate certain military officers to administer the Oath of Enlistment to new members of the militia; that the crimes of assault and aggravated assault should be specifically provided for by the Military Code; that the jurisdiction of general, special, and summary courts-martial should be clarified; and that this act is immediately necessary to accomplish the same. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 2007, No. 47, § 11: Feb. 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are many members of the Arkansas National Guard and Reserves that are serving in active duty in Iraq and Afghanistan in the war on terror; that it is critical that Arkansas law be updated and be consistent with federal law and rules; and that this act is necessary to eliminate confusion regarding out-dated and inconsistent provisions in the Military Code of Arkansas. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 211, § 23: Feb. 26, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the removal of officers who are substandard in performance of duty or in conduct, deficient in character, or unsuited for military service is of paramount importance to the good order and discipline of the Arkansas National Guard and security of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto”.

12-64-801. Persons to be tried or punished.

A person shall not be tried or punished for any offense provided for in this code unless the offense was committed while in a duty status or in conjunction with a fraudulent or unlawful enlistment or appointment.

History. Acts 1969, No. 50, § 119; A.S.A. 1947, § 11-701; Acts 2015, No. 1003, § 33.

Amendments. The 2015 amendment substituted “A person shall not” for “No person may”, substituted “the offense” for “it”, deleted “he was” preceding “in a duty status”, and added “or in conjunction with a fraudulent or unlawful enlistment or appointment”.

12-64-802. Principals.

Any person subject to this code is a principal, if he or she:

  1. Commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission; or
  2. Causes an act to be done which if directly performed by him or her, would be punishable by this code.

History. Acts 1969, No. 50, § 120; A.S.A. 1947, § 11-702.

12-64-803. Accessory after the fact.

Any person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his or her apprehension, trial, or punishment shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 121; A.S.A. 1947, § 11-703.

12-64-804. Conviction of lesser included offense.

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.

History. Acts 1969, No. 50, § 122; A.S.A. 1947, § 11-704.

12-64-805. Attempts.

  1. An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending, even though failing to effect its commission, is an attempt to commit that offense.
  2. Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court-martial may direct, unless otherwise specifically prescribed.
  3. Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

History. Acts 1969, No. 50, § 123; A.S.A. 1947, § 11-705.

12-64-806. Conspiracy.

Any person subject to this code who conspires with any other person to commit an offense under this code shall, if one (1) or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 124; A.S.A. 1947, § 11-706.

12-64-807. Solicitation.

  1. Any person subject to this code shall be punished as a court-martial may direct if with the purpose of promoting or facilitating the commission of a specific offense, the person commands, urges, or requests another person to engage in specific conduct that would:
    1. Constitute that offense;
    2. Constitute an attempt to commit that offense;
    3. Cause the result specified by the definition of that offense; or
    4. Establish the other person's complicity in the commission or attempted commission of that offense.
  2. It is an affirmative defense to a prosecution under this section that the defendant prevented the commission of the offense solicited under circumstances manifesting a voluntary and complete renunciation of the defendant's criminal purpose.

History. Acts 1969, No. 50, § 125; A.S.A. 1947, § 11-707; Acts 2015, No. 1003, § 34.

Amendments. The 2015 amendment rewrote the section.

12-64-808. Fraudulent or unlawful enlistment, appointment, or separation.

  1. Any person shall be punished as a court-martial may direct if he or she:
    1. Procures his or her own enlistment or appointment in the organized militia by knowingly false representation or deliberate concealment as to his or her qualifications for that enlistment or appointment and receives pay or allowances thereunder; or
    2. Procures his or her own separation from the organized militia by knowingly false representation or deliberate concealment as to his or her eligibility for that separation.
  2. Any person subject to this code who effects an enlistment or appointment in or a separation from the organized militia of any person who is known to him or her to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, rule, or order shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, §§ 126, 127; A.S.A. 1947, §§ 11-708, 11-709; Acts 2019, No. 315, § 961.

Amendments. The 2019 amendment substituted “rule” for “regulation” in (b).

12-64-809. Desertion.

  1. Any member of the organized militia is guilty of desertion if he or she:
    1. Without authority goes or remains absent from his or her unit, organization, or place of duty with intent to remain away therefrom permanently;
    2. Quits his or her unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important services; or
    3. Without being regularly separated from one (1) of the forces of the organized militia enlists or accepts an appointment in the same or another one of the forces of the organized militia without fully disclosing the fact that he or she has not been regularly separated.
  2. Any commissioned officer of the organized militia who, after tender of his or her resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.
  3. Any person found guilty of desertion or attempt to desert shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 128; A.S.A. 1947, § 11-710.

12-64-810. Absence without leave.

Any person subject to this code shall be punished as a court-martial may direct if he or she, without authority:

  1. Fails to go to his or her appointed place of duty at the time prescribed;
  2. Goes from that place; or
  3. Absents himself or herself or remains absent from his or her unit, organization, or place of duty at which he or she is required to be at the time prescribed.

History. Acts 1969, No. 50, § 129; A.S.A. 1947, § 11-711.

12-64-811. Missing movement.

Any person subject to this code who through neglect or design misses the movement of a military unit with which he or she is required in the course of duty to move shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 130; A.S.A. 1947, § 11-712.

12-64-812. Contempt towards officials.

Any person subject to this code who uses contemptuous words against the President, the Governor, the General Assembly, or the governor or legislature of any state, territory, commonwealth, or possession wherein that person may be serving shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 131; A.S.A. 1947, § 11-713.

12-64-813. Disrespect towards superior commissioned officer.

Any person subject to this code who behaves with disrespect towards his or her superior commissioned officer shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 132; A.S.A. 1947, § 11-714.

12-64-814. Assault generally.

A person subject to this code shall be punished as a court-martial may direct if he or she unlawfully and with force or violence:

  1. Attempts to do bodily harm to another person;
  2. Offers to do bodily harm to another person; or
  3. Does bodily harm to another person.

History. Acts 1969, No. 50, § 133; 1983, No. 412, § 2; A.S.A. 1947, § 11-715; Acts 2019, No. 211, § 20.

Amendments. The 2019 amendment substituted “shall be punished as a court-martial may direct if he or she unlawfully and with force or violence” for “who attempts, or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated is guilty of assault and shall be punished as a court-martial may direct” in the introductory language; added (1), (2) and (3), and made a stylistic change.

12-64-815. Assaulting or willfully disobeying superior commissioned officer.

Any person subject to this code shall be punished as a court-martial may direct if he or she:

  1. Strikes his or her superior commissioned officer or draws or lifts up any weapon or offers any violence against him or her while he or she is in the execution of his or her office; or
  2. Willfully disobeys a lawful command of his or her superior commissioned officer.

History. Acts 1969, No. 50, § 133; 1983, No. 412, § 2; 1985, No. 670, § 9; A.S.A. 1947, § 11-715.

12-64-816. Insubordinate conduct towards any noncommissioned officer.

Any enlisted member shall be punished as a court-martial may direct if he or she:

  1. Strikes or assaults a noncommissioned officer while that noncommissioned officer is in the execution of his or her office;
  2. Willfully disobeys the lawful order of a noncommissioned officer; or
  3. Treats with contempt or is disrespectful in language or deportment towards a noncommissioned officer while that noncommissioned officer is in the execution of his or her office.

History. Acts 1969, No. 50, § 134; A.S.A. 1947, § 11-716.

12-64-817. Failure to obey order or rule.

Any person subject to this code shall be punished as a court-martial may direct if he or she:

    1. Violates or fails to obey any lawful order or rule. A lawful order or rule is a written, electronic, nonverbal or oral communication by a member of the armed forces acting within the scope of official military duties regarding instruction, decision, rule, judgment, directive, procedure, statement or command, and which primarily affects the action, organization, training, good order, discipline, property, welfare, administration, operation, and procedure of the armed forces.
    2. Lawful orders and rules shall not be subject to the requirements of the Arkansas Administrative Procedure Act, § 25-15-201 et seq.;
  1. Having knowledge of any other lawful order issued by a member of the organized militia, which it is his or her duty to obey, fails to obey the order; or
  2. Is derelict in the performance of his or her duties.

History. Acts 1969, No. 50, § 135; A.S.A. 1947, § 11-717; Acts 1993, No. 926, § 1; 1993, No. 1035, § 1; 2019, No. 315, § 962.

Amendments. The 2019 amendment substituted “rule” for “regulation” in the section heading and twice in (1)(A); and made a similar change in (1)(B).

12-64-818. Cruelty and maltreatment.

Any person subject to this code who is guilty of cruelty toward or oppression or maltreatment of any person subject to his or her orders shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 136; A.S.A. 1947, § 11-718.

12-64-819. Mutiny or sedition.

    1. Any person subject to this code is guilty of mutiny if he or she, with intent to usurp or override lawful military authority refuses, in concert with any other person, to obey orders or otherwise do his or her duty or creates any violence or disturbance.
    2. Any person subject to this code is guilty of sedition if he or she, with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority.
    3. Any person subject to this code is guilty of a failure to suppress or report a mutiny or sedition if he or she fails to do his or her utmost to prevent and suppress a mutiny or sedition being committed in his or her presence, or fails to take all reasonable means to inform his or her superior commissioned officer or commanding officer of a mutiny or sedition which he or she knows or has reason to believe is taking place.
  1. A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 137; A.S.A. 1947, § 11-719.

12-64-820. Resistance, break of arrest, and escape.

A person subject to this code who resists apprehension or breaks arrest or who escapes from physical restraint, custody, or confinement lawfully imposed shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 138; A.S.A. 1947, § 11-720; Acts 2015, No. 1003, § 35.

Amendments. The 2015 amendment inserted “custody, or confinement”.

12-64-821. Releasing prisoner without proper authority.

Any person subject to this code who, without proper authority, releases any prisoner committed to his or her charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.

History. Acts 1969, No. 50, § 139; A.S.A. 1947, § 11-721.

12-64-822. Unlawful detention of another.

Any person subject to this code who, except as provided by law or regulation, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 140; A.S.A. 1947, § 11-722.

12-64-823. Noncompliance with procedural rules.

Any person subject to this code shall be punished as a court-martial may direct if he or she:

  1. Is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this code; or
  2. Knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused.

History. Acts 1969, No. 50, § 141; A.S.A. 1947, § 11-723.

12-64-824. Misbehavior before the enemy.

Any person subject to this code shall be punished as a court-martial may direct if he or she, before or in the presence of the enemy:

  1. Runs away;
  2. Shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his or her duty to defend;
  3. Through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
  4. Casts away his or her arms or ammunition;
  5. Is guilty of cowardly conduct;
  6. Quits his or her place of duty to plunder or pillage;
  7. Causes false arms in any command, unit, or place under control of the armed forces of the United States or the organized militia;
  8. Willfully fails to do his or her utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his or her duty so to encounter, engage, capture, or destroy; or
  9. Does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies, to this state, or to any other state, when engaged in battle.

History. Acts 1969, No. 50, § 142; A.S.A. 1947, § 11-724.

12-64-825. Subordinate compelling surrender.

Any person subject to this code who compels or attempts to compel the commander of any force of the organized militia of this state, or of any other state, to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 143; A.S.A. 1947, § 11-725.

12-64-826. Improper use of countersign.

Any person subject to this code who in time of war discloses the parole or countersign to any person not entitled to receive it, or who gives to another who is entitled to receive and use the parole or countersign, a different parole or countersign from that which, to his or her knowledge, he or she was authorized and required to give, shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 144; A.S.A. 1947, § 11-726.

12-64-827. Captured or abandoned property.

  1. All persons subject to this code shall secure all public property taken from the enemy for the service of the State of Arkansas or the United States and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
  2. Any person subject to this code shall be punished as a court-martial may direct if he or she:
    1. Fails to carry out the duties prescribed in subsection (a) of this section;
    2. Buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he or she receives or expects any profit, benefit, or advantage to himself or herself or another directly or indirectly connected with himself or herself; or
    3. Engages in looting or pillaging.

History. Acts 1969, No. 50, § 145; A.S.A. 1947, § 11-727.

12-64-828. Aiding the enemy.

Any person subject to this code shall be punished as a court-martial may direct if he or she:

  1. Aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
  2. Without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds an intercourse with the enemy, either directly or indirectly.

History. Acts 1969, No. 50, § 146; A.S.A. 1947, § 11-728.

12-64-829. Misconduct as a prisoner.

Any person subject to this code shall be punished as a court-martial may direct if he or she, while in the hands of the enemy in time of war:

  1. For the purpose of securing favorable treatment by his or her captors, acts without proper authority in a manner contrary to law, custom, rule, or regulation, to the detriment of other of whatever nationality held by the enemy as civilian or military prisoners; or
  2. While in a position of authority over such persons, maltreats them without justifiable cause.

History. Acts 1969, No. 50, § 147; A.S.A. 1947, § 11-729; Acts 2019, No. 315, § 963.

Amendments. The 2019 amendment inserted “rule” in (1).

12-64-830. False official statements.

Any person subject to this code who, with intent to deceive, signs any false record, return, regulation, rule, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 148; A.S.A. 1947, § 11-730; Acts 2019, No. 315, § 964.

Amendments. The 2019 amendment inserted “rule”.

12-64-831. Misuse of military property.

Any person subject to this code shall be punished as a court-martial may direct if, without proper authority, he or she:

  1. Sells or otherwise disposes of;
  2. Willfully or through neglect damages, destroys, or loses; or
  3. Willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of;

any military property of the United States or of the state.

History. Acts 1969, No. 50, § 149; A.S.A. 1947, § 11-731.

12-64-832. Misuse of nonmilitary property.

Any person subject to this code who, while in a duty status, willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of the state shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 150; A.S.A. 1947, § 11-732.

12-64-833. Improper hazarding of vessel or vehicle.

  1. A person subject to this code who willfully and wrongfully hazards or suffers to be hazarded any vessel or vehicle of the United States Armed Forces or of the organized militia shall be punished as a court-martial may direct.
  2. A person subject to this code who negligently hazards or suffers to be hazarded any vessel or vehicle of the United States Armed Forces or of the organized militia shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 151; A.S.A. 1947, § 11-733; Acts 2015, No. 1003, § 36.

Amendments. The 2015 amendment added “or vehicle” in the section heading; and, in (a) and (b), inserted “or vehicle” and substituted “United States Armed Forces” for “armed forces of the United States”.

12-64-834. Drunken or reckless driving.

Any person subject to this code who operates any vehicle while under the influence of intoxicants or drugs, or in a reckless or wanton manner, shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 152; A.S.A. 1947, § 11-734.

12-64-835. Misbehavior while at post.

Any person subject to this code who is found drunk on duty or sleeping upon his or her post, or who leaves his or her post before he or she is regularly relieved, shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 153; A.S.A. 1947, § 11-735.

12-64-836. Dueling or fighting.

A person subject to this code who fights, without authority, or promotes, or is concerned in or connives at fighting or dueling, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 154; A.S.A. 1947, § 11-736; Acts 2015, No. 1003, § 37.

Amendments. The 2015 amendment inserted “without authority” and substituted “or dueling” for “a duel”.

12-64-837. Malingering.

Any person subject to this code shall be punished as a court-martial may direct if he or she, for the purpose of avoiding work, duty, or service in the organized militia:

  1. Feigns illness, physical disablement, mental lapse, or derangement; or
  2. Intentionally inflicts self-injury.

History. Acts 1969, No. 50, § 155; A.S.A. 1947, § 11-737.

12-64-838. Riot or breach of peace.

Any person subject to this code who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 156; A.S.A. 1947, § 11-738.

12-64-839. Provoking speeches or gestures.

Any person subject to this code who uses provoking or reproachful words or gestures towards any other person subject to this code shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 157; A.S.A. 1947, § 11-739.

12-64-840. Perjury.

Any person subject to this code who in a judicial proceeding or in a course of justice conducted under this code willfully and corruptly gives, upon a lawful oath or in any form allowed by law to be substituted for an oath, any false testimony material to the issue or matter of inquiry is guilty of perjury and shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 158; A.S.A. 1947, § 11-740.

12-64-841. Frauds against the government.

Any person subject to this code shall, upon conviction, be punished as a court-martial may direct if he or she:

  1. Knowing it to be false or fraudulent makes any claim against the United States, the state or any officer thereof; or presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States, the state or any officer thereof;
  2. For the purpose of obtaining approval, allowance, or payment of any claim against the United States, the state or any officer thereof makes or uses any writing or other paper knowing it to contain any false or fraudulent statements; makes any oath to any fact or to any writing or other paper knowing the oath to be false; or forges or counterfeits any signature upon any writing or other paper or uses any such signature knowing it to be forged or counterfeited;
  3. Having charge, possession, custody, or control of any money or other property of the United States or the state, furnished or intended for the armed forces of the United States or the organized militia or any force thereof, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he or she receives a certificate or receipt; or
  4. Being authorized to make or deliver any paper certifying the receipt of any property of the United States or the state, furnished or intended for the armed forces of the United States or the organized militia or any force thereof, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or the state.

History. Acts 1969, No. 50, § 159; A.S.A. 1947, § 11-741.

12-64-842. Stealing property.

A person subject to this code who wrongfully and fraudulently takes and carries away or exercises unauthorized control over the property of another with intent to deprive the owner of the property shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 160; A.S.A. 1947, § 11-742; Acts 2015, No. 1003, § 38.

Amendments. The 2015 amendment substituted “property” for “goods of not more than thirty-five dollars’ value” in the section heading; inserted “or exercises unauthorized control over”; substituted “property” for “personal goods”; deleted “of the value of not more than thirty-five dollars ($35.00)” following “another”; and substituted “deprive the owner of the property” for “steal it”.

12-64-843. Conduct unbecoming an officer and a gentleman.

Any commissioned officer who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

History. Acts 1969, No. 50, § 161; A.S.A. 1947, § 11-743.

12-64-844. General article — Offenses cognizable by courts-martial.

Though not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the organized militia, all conduct of a nature to bring discredit upon the organized militia, and crimes and offenses not capital, of which persons subject to this code may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

History. Acts 1969, No. 50, § 162; 1983, No. 412, § 3; A.S.A. 1947, § 11-744; Acts 2007, No. 47, § 7.

12-64-845. Sexual misconduct.

A person subject to this code who engages in sexual contact with unlawful force, abuse of authority, or violence is guilty of sexual misconduct and shall be punished as a court-martial may direct.

History. Acts 2009, No. 207, § 1; 2015, No. 1003, § 39.

Amendments. The 2015 amendment substituted “engages in” for “attempts or offers to cause bodily harm to another person through”; and deleted (b).

12-64-846. Sexual harassment.

A person subject to this code shall be punished as a court-martial may direct if the person:

  1. Repetitively engages in behavior that involves unwelcome sexual advances;
  2. Requests sexual favors from or offers sexual favors to a subordinate; or
  3. Engages in other verbal or physical conduct of a sexual nature if:
    1. Submission to or rejection of the conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career;
    2. Submission to or rejection of the conduct by a person is used as a basis for career or employment decisions affecting that person; or
    3. The conduct has the purpose or effect of unreasonably interfering with a person's work performance or creates an intimidating, hostile, or offensive working environment.

History. Acts 2009, No. 207, § 1; 2015, No. 1003, § 40.

Amendments. The 2015 amendment substituted “the person” for “he” in the introductory language; substituted “Repetitively engages” for “Engages” in (1); and added “from or offers sexual favors to a subordinate; or” in (2).

12-64-847. Use or possession of a controlled substance.

  1. As used in this section, “controlled substance” means:
    1. Amphetamine;
    2. Cocaine;
    3. Heroin;
    4. Lysergic acid diethylamide;
    5. Marijuana;
    6. Methamphetamine;
    7. Opium;
    8. Phencyclidine;
    9. Barbituric acid, including phenobarbital and secobarbital; or
    10. Any substance that is included in Schedules I-VI established by the Controlled Substances Act of 1970, 21 U.S.C. § 812, or the Uniform Controlled Substances Act, § 5-64-101 et seq.
  2. A person subject to this code who wrongfully uses, is under the influence of, or possesses a controlled substance shall be punished as a court-martial may direct.
  3. A person subject to this code who wrongfully possesses the metabolites of a controlled substance in his or her blood or urine shall be punished as a court-martial may direct.

History. Acts 2011, No. 820, § 1.

12-64-848. Adultery.

A person subject to this code shall be punished as a court-martial directs if:

  1. He or she wrongfully engages in extramarital conduct with another person;
  2. At the time the extramarital conduct occurs he or she is married to someone else or knows that the other person is married to someone else; and
  3. Under the circumstances, his or her conduct is to the prejudice of good order and discipline required by a member of the United States Armed Forces or is of a nature that brings discredit upon the United States Armed Forces.

History. Acts 2015, No. 1003, § 41; 2019, No. 211, § 21.

Amendments. The 2019 amendment substituted “A person subject to this code shall be punished as a court-martial directs if” for “A married person subject to this code who has sexual conduct with a person not his or her spouse under circumstances that prejudice good order and discipline may be punished as a court-martial may direct” in the introductory language; and added (1), (2) and (3).

12-64-849. Retaliation.

A person subject to this code shall be punished as a court-martial may direct if he or she, with the intent to retaliate against a person for reporting or planning to report a criminal offense, or with the intent to discourage any person from reporting a criminal offense:

  1. Wrongfully takes or threatens to take adverse personnel action against any person; or
  2. Wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person.

History. Acts 2019, No. 211, § 22.

12-64-850. Fraudulent use of credit cards, debit cards, and other access devices.

A person subject to this code shall be punished as a court-martial may direct if the person knowingly and with the intent to defraud obtains anything of value using a:

  1. Stolen credit card, debit card, or other access device;
  2. Revoked, canceled, or otherwise invalid credit card, debit card, or other access device; or
  3. Credit card, debit card, or other access device without the authorization of the person authorized to use the credit card, debit card, or other access device.

History. Acts 2019, No. 211, § 22.

12-64-851. Prohibited activities by person in position of special trust.

  1. An officer, a noncommissioned officer, or a petty officer shall be punished as a court-martial may direct for abuse of a training leadership position if he or she:
    1. Is in a training leadership position with respect to a specially protected junior member of the armed forces; and
    2. Engages in prohibited sexual activity with the specially protected junior member of the armed forces.
  2. A military recruiter shall be punished as a court-martial may direct for abuse of a position as a military recruiter if he or she engages in prohibited sexual activity with:
    1. An applicant he or she is recruiting to enlist in military service; or
    2. A specially protected junior member of the armed forces who enlisted under a delayed entry program.
  3. Consent is not a defense for any prohibited conduct at issue in a prosecution under this section.

History. Acts 2019, No. 211, § 22.

Chapters 65-74 [Reserved.]

[Reserved]

Subtitle 5. Emergency Management

Chapter 75 Arkansas Emergency Services Act of 1973

Publisher's Notes. Acts 1973, No. 511, § 25, provided that this chapter repealed Act 156 of 1959 and was not to be deemed to repeal any other existing laws pertaining to emergency services, but should be cumulative thereto.

Acts 1973, No. 511, § 28, provided that this chapter should not impair or affect any act done, offense committed, or right accruing, accrued, or acquired, or liability, penalty, forfeiture, or punishment incurred prior to the effective date of the act.

Cross References. Arkansas Earthquake Preparedness Act of 1989, § 12-77-101 et seq.

Arkansas Hazardous and Toxic Materials Emergency Notification Act, § 12-79-101 et seq.

Arkansas HAZMAT Emergency Management Act, § 12-84-101 et seq.

Hazardous substance emergencies remedial action trust fund, § 8-7-501 et seq.

Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq.

Effective Dates. Acts 1973, No. 511, § 29: Mar. 30, 1973. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that there is an immediate necessity to hasten the completion of plans to prepare this State and people thereof against the possibilities of disaster resulting from enemy attack, sabotage or other hostile action, from natural disasters, such as fire, flood, earthquake, or other natural causes, and from man-caused peacetime emergencies, and that enactment of this bill will hasten completion of such plans. Therefore, an emergency is declared to exist, this act being necessary for the preservation of the public peace, health, and safety, shall take effect and be in force and operation from the date of its approval.”

Acts 1981, No. 891, § 7: Mar. 28, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 511 of 1973, the Arkansas Emergency Services Act, is in urgent need of revision and clarification to enable the State Office of Emergency Services to more effectively and efficiently carry out its responsibilities under said act; that this act is designed to accomplish this purpose and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 629, § 4: Mar. 27, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 511 of 1973, the Arkansas Emergency Services Act, is in urgent need of revision and clarification to enable the State Office of Emergency Services to more effectively and efficiently carry out its responsibilities under said act; that this act is designed to accomplish this purpose and should be given effect immediately. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 687, § 11: Mar. 27, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 511 of 1973, the Arkansas Emergency Services Act, is in urgent need of revision and clarification to enable the State Office of Emergency Services to more effectively and efficiently carry out its responsibilities under said act; that this act is designed to accomplish this purpose and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 978, § 11: Apr. 15, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 511 of 1973, the Arkansas Emergency Services Act, is in urgent need of revision and clarification to enable the State Office of Emergency Services to more effectively and efficiently carry out its responsibilities under said act; that this act is designed to accomplish this purpose and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 1028, § 20: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Subchapter 1 — General Provisions

A.C.R.C. Notes. Acts 2003, No. 1366, as amended by Acts 2005, No. 1823, §§ 1, 2, Acts 2007, No. 432, § 1, Acts 2009, No. 560, § 1, Acts 2011, No. 723, § 1, Acts 2015, No. 347, § 1, and Acts 2019, No. 599, § 1, provides:

“SECTION 1. Findings.

“The Arkansas General Assembly finds that:

“(1) The threat of terrorism and the use of weapons of mass destruction has become a reality in the United States and the State of Arkansas, the emergency service agencies of state and local government have had to assume the new and serious responsibilities of protecting the citizenry from these threats from both domestic and international sources;

“(2) It is incumbent upon emergency service agencies of this state to assess vulnerabilities, make plans, and develop operational procedures to prevent, investigate, and respond to these threats; and

“(3) It is of the utmost importance that those who may engage in acts of terrorism or employ weapons of mass destruction against the people and property of this state not have access to the information designed to prevent and defeat them.

“SECTION 2. Definitions.

“As used in this act:

“(1) ‘Catastrophe’ means a man-made event that causes disastrous property damage, death, or serious physical injury to multiple people by explosion, fire, flood, avalanche, collapse of building, distribution of poison, radioactive material, bacteria, virus, or other dangerous and difficult to confine force or substance;

“(2) ‘Cybersecurity incident’ means an actual or threatened event that jeopardizes the security, integrity, confidentiality, or availability of the following if owned or used by state or local government:

“(A) Computers, information, or communications systems or networks; or

“(B) Data or other physical or virtual infrastructure controlled by computers or information systems;

“(3) ‘Emergency service agency’ means an agency or department of the State of Arkansas or any county, city, or the State of Arkansas that has first responder or investigative responsibilities in the event of a cybersecurity incident or catastrophe or use of a weapon of mass destruction; and

“(4) ‘Weapon of mass destruction’ means an explosive, chemical, radioactive, or biological agent, or any other substance or device capable of causing extensive property damage, death, or serious physical injury to multiple persons in a single act or series of acts.

“SECTION 3. Threat assessments and plans.

“(a)(1) The threat assessments, plans, operational policies or procedures, and training developed or maintained by any emergency service agency for the purpose of preventing, investigating, or responding to a cybersecurity incident, catastrophe, or use of weapons of mass destruction are not subject to public disclosure as public records except if the disclosure is determined in the best public interest by the head of the emergency service agency.

“(2) Any document or information received by an emergency service agency from an agency of the United States government, another state, or its political subdivisions that is not subject to disclosure under the laws governing the source agency is not subject to public disclosure as a public record from the Arkansas agency.

“(3) Investigative files of emergency service agencies relating to a cybersecurity incident, catastrophe, or use of a weapon of mass destruction are not subject to public disclosure until after final adjudication.

“SECTION 4. Sunset Clause.

“This act expires on July 1, 2023.”

Acts 2019, No. 599, § 2, provided: “It is found and determined by the General Assembly of the State of Arkansas that this act should be enacted to extend the current protections of the citizens of Arkansas; and that this act is necessary due to the threat to the security of emergency service agency plans and threat assessments. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Acts 2019, No. 397, § 1, provided: “Title. This act shall be known as the ‘Security Protocol Act for Arkansas Public Events'.”

Acts 2019, No. 397, § 2, provided: “Uniform Security Protocol for Arkansas Public Events Committee — Creation — Membership — Duties.

“(a) There is created the Uniform Security Protocol for Arkansas Public Events Committee.

“(b)(1) The committee shall consist of ten (10) members to be appointed as follows:

“(A) One (1) member who is a law enforcement employee of the University of Arkansas to be appointed by the President of the University of Arkansas;

“(B) One (1) member who is a law enforcement employee of Arkansas State University to be appointed by the President of Arkansas State University;

“(C) One (1) member who is a law enforcement employee of the University of Central Arkansas to be appointed by the President of the University of Central Arkansas;

“(D) One (1) member who is a law enforcement employee of a higher education institution in Arkansas that is a member of the Great American Conference to be appointed by the Governor;

“(E) The Executive Director of the Arkansas Activities Association or his or her designee;

“(F) One (1) member who is a security employee of Verizon Arena to be appointed by the Governor;

“(G) The Director of the Department of Parks and Tourism or his or her designee;

“(H) The Director of the Department of Arkansas State Police or his or her designee;

“(I) The Director of the Arkansas Department of Emergency Management or his or her designee; and

“(J) A representative of Oaklawn Racing and Gaming appointed by the Governor.

“(2) All appointments under this act shall be made within thirty (30) days of the effective date of this act [July 24, 2019].

“(3) If a vacancy occurs on the committee, the vacancy shall be filled by the same process as the original appointment.

“(4) Members of the committee shall serve without compensation but may receive reimbursement under Arkansas Code § 25-16-902, through the Arkansas Department of Emergency Management.

“(c)(1) The Director of the Arkansas Department of Emergency Management shall call the first meeting of the committee no later than September 30, 2019.

“(2) At the first meeting of the committee, the members of the committee shall elect from its membership a chair and other officers as needed for the transaction of its business.

“(3) The committee shall conduct its meetings in Pulaski County at the State Capitol or another facility that allows for public access and teleconferencing capabilities.

“(4) Meetings of the committee shall be held at least one (1) time every two (2) months but may occur more often at the call of the chair.

“(d) The Arkansas Department of Emergency Management shall provide staff and materials for the committee.

“(e)(1) The committee shall establish rules and procedures for conducting its business.

“(2) A majority of the membership shall constitute a quorum.

“(3) A majority vote of the members present shall be required for any action by the committee.

“(f)(1)(A) The committee shall develop a suggested standard security protocol of best practices for admission procedures for public events, whether ticketed or unticketed, held at arenas, stadiums, auditoriums, and other facilities designed to hold large numbers of people for public events.

“(B) In developing the protocol, the committee shall consider without limitation:

“(i) Each applicable venue's size and capacity;

“(ii) Whether the event is ticketed or unticketed;

“(iii) Whether the venue is indoors or outside; and

“(iv) Any other factor relevant to determining the appropriate security regulations for the different types of events and locations throughout the state.

“(2) The protocol specifications shall include without limitation:

“(A) Designation of the types and sizes of items that may be brought into an event;

“(B) Standards for purses, bags, sacks, backpacks, and other implements designed to carry other items; and

“(C) Standards and recommendations for secure admissions to public events.

“(g)(1) The committee shall report its findings and recommendations to the Arkansas Department of Emergency Management on or before December 31, 2019.

“(2)(A) The department shall notify the arenas, stadiums, auditoriums, and other facilities represented by the members of the committee by publication of the findings and recommendations of the committee on its website.

“(B) Upon request to the department, the findings and recommendations of the committee will be made available to any public entity for use at a ticketed or unticketed event.

“(h) The committee expires on December 31, 2019.”

Effective Dates. Acts 1999, No. 449, § 13: Mar. 8, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly, that funds provided by the General Assembly for the operations of the Department of Finance and Administration — Disbursing Officer are, due to unforeseen circumstances, insufficient for the Department of Finance and Administration — Disbursing Officer to continue to provide essential governmental services; that the provisions of this act will provide the necessary monies for the Department of Finance and Administration — Disbursing Officer to continue such services; and that a delay in the effective date of this Act could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after the date of its passage and approval. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2007, No. 751, § 38: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act dissolves and transfers the duties of the Executive Chief Information Officer, Chief Information Officer, and Office of Information Technology; and that dissolving the offices at the beginning of the state's fiscal year will result in a more efficient transfer of responsibilities and funds. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2007.”

Acts 2007, No. 1290, § 95: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 2007 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 2007 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2007.”

Acts 2013, No. 169, § 3: Feb. 26, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that weather in Arkansas in early spring and summer has the potential for volatility; that this bill addresses the roles and responsibilities of those declaring emergencies locally; and that this act is immediately necessary because the state needs to be prepared for natural disasters and other emergencies. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 702, § 3: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of the Arkansas Department of Emergency Management; that these revisions impact the expenses and operations of the Arkansas Department of Emergency Management; and that the provisions of this act should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety, shall become effective on July 1, 2019”.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Cross References. Powers of county judge generally, § 14-14-1101.

12-75-101. Title.

This chapter may be cited as the Arkansas Emergency Services Act of 1973.

History. Acts 1973, No. 511, § 1; A.S.A. 1947, § 11-1934.

12-75-102. Policy and purposes.

  1. Because of the existing and increasing possibility of the occurrence of a major emergency or a disaster of unprecedented size and destructiveness resulting from enemy attack, natural or human-caused catastrophes, or riots and civil disturbances and in order to ensure that this state will be prepared to deal with such contingencies in a timely, coordinated, and efficient manner and generally to provide for the common defense and protect the public peace, health, safety and preserve the lives and property of the state, it is found and declared to be necessary to:
    1. Create from the present Office of Emergency Services and current adjunct offices the Arkansas Department of Emergency Management and authorize and direct the creation of comparable local organizations within the political subdivisions of the state;
    2. Confer upon the Governor and upon the executive heads of the political subdivisions of the state the emergency powers provided herein;
    3. Provide for the rendering of mutual aid among the political subdivisions of the state and with other states and to cooperate with the federal government with respect to carrying out emergency management functions;
    4. Direct the establishment of emergency management liaison offices within each state department and agency with an emergency management role or responsibility; and
    5. Provide for workers' compensation benefits for emergency management workers performing emergency management operations.
  2. It is further declared to be the purpose of this chapter and the policy of the state to authorize and provide for a disaster management system embodying all aspects of predisaster preparedness and post-disaster response by requiring all:
    1. State and local government offices to coordinate emergency management activities through the department in order to coordinate personnel, equipment, and resources for the most effective and economical use; and
    2. Emergency management-related functions of this state be coordinated to the maximum extent with comparable functions of the federal government, including its various departments and agencies, with other states and localities, and with private agencies of every type, to the end that the most effective preparation and use may be made of the state and national personnel, resources, and facilities for dealing with any disaster that may occur.
    1. The protection of lives and property is the responsibility of all levels of government.
    2. Except as noted in this chapter, county and municipal governments bear primary responsibility for initial actions and activities related to disaster preparedness, response, and recovery for the county and the municipalities in the county through their local offices of emergency management, with support from the department.
      1. When events have exceeded, or will exceed, local government's ability to respond or recover without state assistance, the chief executive officer shall declare a local state of disaster or emergency as prescribed in this chapter to signify his or her intent to request resources of the state or federal government, or both.
      2. Where time constraints are critical to the saving of lives and property, the local chief executive officer may verbally declare a local state of disaster or emergency to the Director of the Arkansas Department of Emergency Management, to be followed by a written declaration as soon as practicable.
      1. Only upon such declaration may the resources of the state be provided, and then may the state request that the assistance and resources of the federal government be provided, unless and except where the magnitude of the disaster is of such severity that the functions of local government have ceased or the chief executive officer of the municipal or county government, or both, and his or her designated successor have become incapacitated.
      2. Under such conditions the Governor may declare a state of disaster or emergency on behalf of the specified local jurisdiction and direct emergency functions until such time as local government is restored.

History. Acts 1973, No. 511, § 2; 1981, No. 891, § 1; 1985, No. 687, § 1; 1985, No. 978, § 1; A.S.A. 1947, § 11-1935; Acts 1999, No. 646, §§ 4-6; 2007, No. 197, § 1; 2009, No. 165, §§ 15-19.

A.C.R.C. Notes. The reference in subdivision (a)(1) of this section to the “present Office of Emergency Services” is a reference to the former State Office of Emergency Services which was renamed the Arkansas Department of Emergency Management by Acts 1999, No. 646, § 1.

Amendments. The 1999 amendment substituted “from the present Office of Emergency Services and current adjunct offices the Arkansas Department of Emergency Management” for “a State Office of Emergency Services” in (a)(1); rewrote (b)(1); and added (c) and (d).

The 2009 amendment substituted “management” for “service” in (a)(3) and twice in (a)(5); in (b)(2), substituted “management-related” for “service-related” and “personnel” for “manpower”; inserted “Except as noted in this chapter” in (c)(2); substituted “this chapter” for “this subchapter” in (d)(1)(A); and made related and stylistic changes.

12-75-103. Definitions.

As used in this chapter:

  1. “Chief executive” means a head of government, the Governor, a county judge, and a mayor or city manager of incorporated places, dependent on the form and level of government;
  2. “Disaster” means any tornado, storm, flood, high water, earthquake, drought, fire, radiological incident, air or surface-borne toxic or other hazardous material contamination, or other catastrophe, whether caused by natural forces, enemy attack, or any other means which:
    1. In the determination of the Governor or the Director of the Arkansas Department of Emergency Management or his or her designee is or threatens to be of sufficient severity and magnitude to warrant state action or to require assistance by the state to supplement the efforts and available resources of local governments and relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby, and with respect to which the chief executive of any political subdivision in which the disaster occurs or threatens to occur certifies the need for state assistance and gives assurance of the local government for alleviating the damage, loss, hardship, or suffering resulting from such disaster; or
      1. Results in an interruption in the delivery of utility services when emergency declarations are required and when delays in obtaining an emergency declaration from the Governor or the director or his or her designee would hamper and delay restoration of utility service.
      2. In those instances, the Governor or the director or his or her designee may make such emergency determination subsequent to the initiation of the restoration work;
  3. “Emergency jurisdiction” means any one (1) of the seventy-five (75) counties or specified local offices of emergency management or interjurisdictional offices of emergency management in the state;
    1. “Emergency management” means disaster or emergency preparedness, mitigation, response, recovery, and prevention by state and local governments other than functions for which military forces are primarily responsible to prevent, minimize, and repair injury and damage resulting from major emergencies or from disasters caused by enemy attack, domestic or foreign terrorist attacks, natural causes, human-made catastrophes, or civil disturbances.
    2. These functions include, without limitation:
      1. Fire fighting;
      2. Law and order;
      3. Medical and health;
      4. Rescue;
      5. Engineering;
      6. Warning;
      7. Communications;
      8. Radiological, chemical, biological, or other special material identification, measurement, and decontamination;
      9. Evacuation or relocation of persons from stricken areas;
      10. Emergency social services such as housing, feeding, and locator services;
      11. Emergency transportations;
      12. Plant protection;
      13. Damage assessment and evaluation;
      14. Temporary restoration of public facilities;
      15. Emergency restoration of publicly owned utilities, or privately owned utilities serving the public good;
      16. Debris clearance;
      17. Hazard vulnerability and capability analysis; and
      18. Other functions related to the protection of the people and property of the state, together with all other activities necessary or incidental to the preparedness, mitigation, response, recovery, and prevention for all the functions in this subdivision (4)(B);
  4. “Emergency management requirements” means specific actions, activities, and accomplishments required for funding of state offices of emergency management or established local offices of emergency management, or both, under applicable state and federal emergency management program guidance and regulations;
  5. “Emergency management standards” means standards of training, education, and performance established by the director for employees of the state offices of emergency management and established local offices of emergency management designed to ensure competency and professionalism and to determine minimum qualifications for the receipt of federal or state emergency management funding, or both;
    1. “Emergency responder” means any paid or volunteer person or entity:
      1. With special skills, qualifications, training, knowledge, or experience in the public or private sectors that would be beneficial to an emergency jurisdiction in an emergency declared under § 12-75-108 or training exercises authorized by the United States Department of Homeland Security, the Arkansas Department of Emergency Management, or an emergency jurisdiction; and
      2. Who is:
        1. Requested by a participating emergency jurisdiction to respond or assist with a declared emergency or with authorized training exercises;
        2. Authorized to respond or assist a participating emergency jurisdiction with a declared emergency or with authorized training exercises; or
        3. Both requested and authorized to respond or assist a participating emergency jurisdiction with a declared emergency or with authorized training exercises.
    2. An emergency responder may include, without limitation, the following types of personnel:
      1. Law enforcement officers;
      2. Firefighters;
      3. Hazardous material response personnel;
      4. Decontamination response personnel;
      5. Certified bomb technicians;
      6. Emergency medical services personnel;
      7. Physicians;
      8. Nurses;
      9. Public health personnel;
      10. Emergency management personnel;
      11. Public works personnel;
      12. Members of community emergency response teams;
      13. Emergency personnel of nongovernmental organizations; and
      14. Persons with specialized equipment operations skills or training or any other skills valuable to responding or assisting a participating emergency jurisdiction with a declared emergency or with authorized training exercises.
    3. “Emergency responder” includes any full-time or part-time paid, volunteer, or auxiliary employee of the state, another state, a territory, a possession, the District of Columbia, the federal government, any neighboring country, or any political subdivision thereof, or of any agency or organization performing emergency management services at any place in this state subject to the order or control of, or pursuant to, a request of the state government or any political subdivision;
  6. “Governing body” means a county quorum court, a city council, and a city board of directors;
    1. “Hazard mitigation assistance” means funds and programs to correct, alleviate, or eliminate a condition or situation which poses a threat to life, property, or public safety from the effects of a disaster.
    2. Hazard mitigation assistance may include, but is not limited to, raising, replacing, removing, rerouting, or reconstructing existing public facilities such as roads, bridges, buildings, equipment, drainage systems, or other public or private nonprofit property, as defined in the Disaster Relief Act of 1974, 38 U.S.C. § 3720 and 42 U.S.C. § 5121 et seq.;
  7. “Individual assistance” means funds and programs to provide for the immediate needs, including, but not limited to, food, clothing, and shelter for individuals and families;
    1. “Interjurisdictional agreement” means a mutual agreement between two (2) or more established local offices of emergency management that is approved by executive order of the Governor in accordance with this chapter to merge, integrate, or otherwise combine the functions of the respective established local offices of emergency management for more effective, economical, and efficient use of available personnel and resources.
    2. An interjurisdictional agreement shall include specific provisions addressing the appointment, funding, administration, and operational control of the emergency management coordinator and staff of the interjurisdictional office of emergency management;
  8. “Interjurisdictional office of emergency management” means an office of emergency management formed by two (2) or more local offices of emergency management under an interjurisdictional agreement;
  9. “Local office of emergency management” means a county or municipal office of emergency management created and established in accordance with the provisions of this chapter to perform local emergency management functions within the existing political subdivisions of the state;
  10. “Major emergency” means a condition which requires the activation of emergency response at the state or local levels, either in anticipation of a severe disaster such as an imminent enemy attack, potential civil disturbance, forecast major natural or human-caused disaster, or actual onset of conditions requiring the use of such forces which exceed the day-to-day response and activities of such forces and requires the coordinating of a complement of local, state, federal, or volunteer organizations;
      1. “Operational control” means the assigning of missions and the exercising of immediate command and overall management of all resources committed by state or local government to a disaster operation or major emergency.
      2. Unless otherwise delegated by executive order, the chief executive of the state or local governments, the director, or head of the local office of emergency management as the chief executive's direct representative will exercise operational control of the occurrence and assign missions.
    1. Each agency, department, or organization will exercise control and authority over its personnel and resources to accomplish the assigned mission.
      1. Each agency, department, or organization will coordinate activities through the Arkansas Department of Emergency Management or local office of emergency management exercising operational control of the occurrence.
      2. Operational control does not imply, nor is it intended to include, administrative management, which will remain with the parent organization;
  11. “Participating emergency jurisdiction” means an emergency jurisdiction participating in the statewide mutual aid system established in § 12-75-119;
  12. “Political subdivision” means all duly formed and constituted governing bodies created and established under the authority of the Arkansas Constitution and laws of this state;
  13. “Public assistance” means funds and programs to make emergency repairs or restoration of public facilities, to include, but not be limited to, publicly owned or maintained facilities such as roads, streets, bridges, utilities, schools, and other structures and facilities;
    1. “Public safety agency” means an agency of the State of Arkansas or a functional division of a political subdivision that provides firefighting and rescue, natural or human-caused disaster or major emergency response, law enforcement, and ambulance or emergency medical services.
    2. State offices of emergency management and local offices of emergency management are considered in the context and definition of public safety agencies for performance or coordination of functions defined as emergency management to the extent necessary for mitigation of, planning for, response to, and recovery from disasters or major emergencies;
  14. “Public safety officer” means those positions of state offices of emergency management and local offices of emergency management approved by the director in state and local staffing patterns and authorized by him or her to perform or coordinate emergency management functions to the extent necessary for mitigation of, planning for, response to, recovery from, or prevention of disasters or major emergencies within limitations of this chapter;
  15. “Response assistance” means funds to defray the costs of response to an emergency that does not necessarily result in a disaster of the magnitude and scope described in this section, but which requires the deployment and utilization of state and local government and private emergency personnel, equipment, and resources to protect and preserve lives and property and for the welfare of the citizens of Arkansas; and
  16. “Utility services” means the transmission of communications or the transmission, distribution, or delivery of electricity, water, or natural gas for public use.

History. Acts 1973, No. 511, § 3; 1985, No. 629, § 1; 1985, No. 687, § 2; 1985, No. 978, § 2; A.S.A. 1947, § 11-1936; Acts 1993, No. 1049, §§ 1, 2; 1995, No. 116, § 1; 1999, No. 646, §§ 7-11; 1999, No. 913, § 1; 2005, No. 1179, § 1; 2007, No. 197, § 2; 2009, No. 165, §§ 20-27.

A.C.R.C. Notes. As enacted by Acts 1993, No. 1049, § 2, subdivision (9)(B) ended:

“as defined in PL 93-288, as amended by PL 100-707.”

Amendments. The 1999 amendment by No. 913 substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” throughout the section; rewrote (1); deleted “occurring anywhere in the state” following “other means” in (2) and made minor punctuation changes; in (2)(A), substituted “In” for “in” at the beginning and inserted “or the Director of the” and “or his or her designee”; added (2)(B); added (23); and made stylistic changes.

The 1999 amendment by No. 646 rewrote (1), (7), (13), (14), (18), and (20); and made stylistic changes.

The 2009 amendment inserted “offices of emergency management” following “state” in (5) and (6), deleted (B) and added present (7)(C); substituted “management” for “services” twice in (11)(B); added present (12); substituted “of” for “for” in present (13); inserted “offices of emergency management” in present (19)(B) and (20), and substituted “management” for “services” in present (19)(B); deleted former (20) and (22); and made minor stylistic changes.

Case Notes

Disaster.

City employee, who was a registered emergency services worker for the county and was killed at scene of brush fire, was not entitled to workers' compensation under § 12-75-129 because no disaster or catastrophe existed as defined by this section. Office of Emergency Servs. v. Home Ins. Co., 2 Ark. App. 185, 618 S.W.2d 573 (1981).

12-75-104. Scope of chapter — Limitations.

Nothing in this chapter shall be construed to:

  1. Interfere with the course or conduct of a labor dispute, except that actions otherwise authorized by this chapter or other laws may be taken when necessary to forestall or mitigate imminent or existing danger to public health and safety;
    1. Interfere with dissemination of news or comment on public affairs.
    2. However, any communications facility or organization, including, but not limited to, radio and television stations, wire services, and newspapers may be required to transmit or print public service messages furnishing information or instructions in connection with a disaster emergency;
    1. Affect the jurisdiction or responsibilities of units of the United States Armed Forces or of any personnel thereof, when on active duty, or the day-to-day operations of law enforcement agencies or firefighting forces.
    2. However, state, local, and interjurisdictional disaster or emergency operations plans shall place emphasis upon maximum utilization of forces available for performance of functions related to disaster and major emergency occurrences; or
  2. Limit, modify, or abridge the authority of the Governor to proclaim martial law or of the Governor or chief executive of a political subdivision to exercise any other powers vested in him or her under the Arkansas Constitution or statutes or common law of this state independent of, or in conjunction with, any provision of this chapter.

History. Acts 1973, No. 511, § 4; 1985, No. 687, § 3; 1985, No. 978, § 3; A.S.A. 1947, § 11-1937.

12-75-105. [Repealed.]

Publisher's Notes. This section, concerning status of civil defense employees, was repealed by Acts 2007, No. 197, § 3. The section was derived from Acts 1973, No. 511, § 23; A.S.A. 1947, § 11-1956; Acts 1999, No. 646, § 12.

12-75-106. Enforcement.

  1. Each state office of emergency management and local office of emergency management and the officers of each state office of emergency management and local office of emergency management shall execute and enforce such orders and rules as may be made by the Governor under authority of this chapter.
  2. Each state office of emergency management and local office of emergency management shall make available for inspection at its office all orders and rules made by the Governor or made under his or her authority.

History. Acts 1973, No. 511, § 27; A.S.A. 1947, § 11-1957; Acts 2009, No. 165, § 28; 2019, No. 315, § 965.

Amendments. The 2009 amendment, in (a), substituted “state office of emergency management and local office of emergency management” for “organization for emergency services” and for “thereof”; substituted “state office of emergency management and local office of emergency management” for “such organization” in (b); and made related and minor stylistic changes.

The 2019 amendment substituted “orders and rules” for “orders, rules, and regulations” in (a) and (b).

12-75-107. Declaration of disaster emergencies.

    1. A disaster emergency shall be declared by executive order or proclamation of the Governor if he or she finds a disaster has occurred or that the occurrence or the threat of disaster is imminent.
    2. When time is critical because of rapidly occurring disaster emergency events, the Governor may verbally declare for immediate response and recovery purposes until the formalities of a written executive order or proclamation can be completed in the prescribed manner.
    1. The state of disaster emergency shall continue until:
      1. The Governor finds that the threat or danger has passed and terminates the state of disaster emergency by executive order or proclamation; or
      2. The disaster has been dealt with to the extent that emergency conditions no longer exist and the employees engaged in the restoration of utility services have returned to the point of origin.
    2. No state of disaster emergency may continue for longer than sixty (60) days unless renewed by the Governor.
    1. The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.
    2. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency.
    1. All executive orders or proclamations issued under this section shall indicate the nature of the disaster, the area or areas threatened, and the conditions which have brought it about or which make possible termination of the state of disaster emergency.
    2. In the case of a disaster, each provider of utility services whose services were interrupted shall prepare a report describing:
      1. The type of disaster emergency;
      2. The duration of the disaster emergency, which includes the time the utility personnel is dispensed to the work site and returns to the personnel's point of origin; and
      3. The personnel utilized in responding to the disaster emergency.
  1. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and, unless the circumstances attendant upon the disaster prevent or impede, filed promptly with the Secretary of State.
  2. An executive order or proclamation of a state of disaster emergency shall activate the disaster response and recovery aspects of the state, local, and interjurisdictional disaster emergency plans applicable to the political subdivision or area in question and be authority for the deployment and use of any forces to which the plan or plans apply and for use or distribution of any supplies, equipment, and materials and facilities assembled, stockpiled, or arranged to be made available pursuant to this chapter or any other provision of law relating to disaster emergencies.

History. Acts 1973, No. 511, § 8; A.S.A. 1947, § 11-1941; Acts 1999, No. 646, §§ 13, 14; 1999, No. 913, § 2; 2001, No. 1278, § 1; 2007, No. 197, § 4.

12-75-108. Local disaster emergencies — Declaration.

    1. A local disaster emergency may be declared only by the chief executive or his or her designee of a political subdivision.
    2. If time is critical because of a rapidly occurring disaster emergency event, the chief executive verbally may declare a local disaster emergency for immediate response and recovery purposes until the formalities of a written declaration can be completed in the prescribed manner.
    3. A declaration of a local disaster emergency shall not be continued or renewed for a period in excess of one hundred twenty (120) days except by or with the consent of the governing body of the political subdivision.
    4. Any order or proclamation declaring, continuing, or terminating a local disaster emergency shall be given prompt and general publicity and shall be filed promptly with the city or county clerk, as applicable.
    1. The effect of a declaration of a local disaster emergency is to activate the response and recovery aspects of any and all applicable local or interjurisdictional disaster emergency plans, to authorize the furnishing of aid and assistance thereunder, and to initiate emergency management functions under this chapter.
      1. In addition to other powers conferred on the chief executive declaring a local disaster emergency, the chief executive may suspend the provisions of any local regulatory ordinances or regulations for up to thirty (30) days if strict compliance with the ordinance provisions would prevent, hinder, or delay necessary actions to cope with the disaster emergency.
      2. Local regulatory ordinances include, but are not limited to:
        1. Zoning ordinances;
        2. Subdivision regulations;
        3. Regulations controlling the development of land;
        4. Building codes;
        5. Fire prevention codes;
        6. Sanitation codes;
        7. Sewer ordinances;
        8. Historic district ordinances; and
        9. Any other regulatory type ordinances.
    1. An interjurisdictional office of emergency management or official of an interjurisdictional office of emergency management shall not declare a local disaster emergency unless expressly authorized by the interjurisdictional agreement under which the interjurisdictional office of emergency management functions.
    2. However, an interjurisdictional office of emergency management shall provide aid and services in accordance with the interjurisdictional agreement under which it functions.
  1. If a county judge uses county labor and equipment on private property to provide services that are required as a result of the natural disaster, the county judge shall notify the owner of the private property by any possible method as soon as practicable of:
    1. The amount of private property necessary to provide services;
    2. The nature of labor and equipment to be used on the private property;
    3. The estimated amount of time the private property will be used to provide services; and
      1. The estimated amount of compensation the county will provide to the owner of the private property as a result of damage to the private property caused by the county.
      2. Within sixty (60) days from the removal of county labor and equipment from the private property, the county shall compensate the owner of the private property for reasonable damage to the property.

History. Acts 1973, No. 511, § 13; A.S.A. 1947, § 11-1946; Acts 2001, No. 568, § 1; No. 1278, § 2; 2007, No. 197, § 5; 2007, No. 465, § 2; 2009, No. 165, §§ 29, 30; 2013, No. 169, § 1; 2013, No. 973, § 1.

Amendments. The 2001 amendment by No. 568 redesignated the former (b) as the present (b)(1); inserted (b)(2); and redesignated the former (c) as the present (c)(1) and (c)(2).

The 2001 amendment by No. 1278 substituted “sixty (60) days” for “seven (7) days” in (a)(2).

The 2009 amendment substituted “A declaration of a local disaster emergency” for “It” in (a)(3); and rewrote (c).

The 2013 amendment by No. 169 added “and to initiate emergency management functions under this subchapter” at the end of (b)(1).

The 2013 amendment by No. 973 added (d).

12-75-109. Division of Emergency Management — Establishment — Personnel.

  1. The Division of Emergency Management is established as a public safety agency of the State of Arkansas.
    1. The Division of Emergency Management shall have a Director of the Division of Emergency Management who is appointed by the Governor, with the advice and consent of the Senate, and who shall serve at the pleasure of the Governor.
    2. The director shall report to the Secretary of the Department of Public Safety.
    1. The division shall have such professional, technical, secretarial, and clerical employees and may make such expenditures within its appropriations or from any federal or other funds made available to it from any source whatsoever for the purpose of emergency services, as may be necessary to carry out the purposes of this chapter.
    2. All such employees shall be in job positions as approved by the secretary and the Office of Personnel Management.
    1. There is created within the division an emergency reserve cadre to be composed of trained and available specialists to assist regular employees during declared disaster response and recovery operations.
    2. The director shall establish training and professional standards required to supplement state personnel based on state and federal disaster recovery program needs and shall establish a list of persons with those qualifications and make available to emergency reserve cadre personnel such additional training and education opportunities as may be needed to maintain currency and proficiency in the needed skills.
      1. Emergency reserve cadre personnel shall be reimbursed at the current state classified entry level salary rate for the position they are temporarily employed to fill and meet such additional training, experience, and qualifications as established by the director for the grade level of the position for which they are employed.
      2. Emergency reserve cadre personnel shall:
        1. Be paid from disaster management funds or administrative funds, or both;
        2. Be limited to salary, logistical, and travel expenses only; and
        3. Not accrue ordinary leave, sick leave, or other employee benefits except for workers' compensation eligibility for injuries or death suffered in the line of duty.
      1. Emergency reserve cadre personnel may be called to active duty upon declaration of a disaster emergency as stipulated in this chapter or the Disaster Relief Act of 1974, Pub. L. No. 93-288, or both, or by executive order of the Governor upon recommendation by the director for due cause or pending emergency needs or for disaster-related assistance to the division as determined by the director and shall remain on active duty no longer than the maximum allowed by the office for part-time employment status.
      2. Based on the size, impact, and magnitude of the disaster event, the director shall determine the minimum number of emergency reserve cadre personnel required to effectively supplement regular state emergency management personnel.
    3. While in service described in subdivision (d)(4)(A) of this section, the emergency reserve cadre personnel have the same immunities as regular state employees for good faith performance of their designated and assigned official duties under state sovereignty laws and practices.

History. Acts 1973, No. 511, § 5; 1977, No. 408, § 1; 1985, No. 687, § 4; 1985, No. 978, § 4; A.S.A. 1947, § 11-1938; Acts 1999, No. 646, § 15; 2001, No. 1278, § 3; 2007, No. 197, § 6; 2009, No. 165, § 31; 2013, No. 169, § 2; 2019, No. 910, § 5875.

Publisher's Notes. Acts 1981, No. 45, § 10, provided, in part, that the Office of Emergency Services, which was established as a division of the Arkansas Department of Public Safety, and all its powers, functions, duties, personnel, and funds would be separated from the Department of Public Safety (abolished by Acts 1981, No. 45, § 1) and would thereafter function as a separate agency to be known as the Office of Emergency Services.

The section further provided that the act should not be construed to reduce any right that an employee of the Office of Emergency Services of the Arkansas Department of Public Safety would have under any civil service or merit system.

Acts 1999, No. 646, § 1, provided that:

“The State Office of Emergency Services shall hereafter be known as the Arkansas Department of Emergency Management. Any provisions of the Arkansas Code not corrected by this act shall be corrected by the Arkansas Code Revision Commission to reflect the title ‘Arkansas Department of Emergency Management’ instead of ‘State Office of Emergency Services’ or any similar titles that now apply to the State Office of Emergency Services.”

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a); substituted “department” for “office” in (b) and (c); added (d); and made stylistic changes.

The 2001 amendment added (e).

The 2009 amendment, in (d), inserted “emergency” preceding “reserve cadre personnel” in (d)(2), substituted “Emergency reserve cadre” for “Qualified” in (d)(3)(A), for “Such” in (d)(3)(B), for “Such persons” in (d)(4)(A), and for “individuals so employed” in (d)(5), inserted “emergency” and “cadre” in (d)(4)(B), inserted “described in subdivision (d)(4)(A) of this section” in (d)(5), and made minor stylistic changes.

The 2013 amendment rewrote (d)(4)(A); and deleted “and report these numbers to the Governor for approval” at the end of (d)(4)(B).

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in the section heading and throughout the section; redesignated former (b) as (b)(1); substituted “Director of the Division of Emergency Management who is” for “director” in (b)(1); added (b)(2); inserted “secretary and the” in (c)(2); deleted “of the Division of Management Services of the Department of Finance and Administration“ following “Office of Personnel Management” in (c)(2) and in (d)(4)(A); and substituted “director” for “Director of the Arkansas Department of Emergency Management” in (d)(2).

Cross References. Emergency Volunteer Reserve Act of 1995, § 12-83-101 et seq.

12-75-110. Division of Emergency Management — State emergency operations plan.

  1. The Division of Emergency Management shall coordinate and maintain a state emergency operations plan and keep it current, which plan may include:
    1. Prevention and minimization of injury and damage caused by disaster;
    2. Measures for prompt and effective response to disasters;
    3. Emergency relief;
    4. Identification of areas particularly vulnerable to disasters;
    5. Recommendations for zoning, building, and other land use controls, safety measures for securing mobile homes or other nonpermanent or semipermanent structures, and other preventive and preparedness measures designed to eliminate or reduce disasters or their impact;
    6. Assistance to local officials in designing local emergency action plans;
    7. Authorization and procedures for the erection or other construction of temporary works designed to protect against or mitigate danger, damage, or loss from flood, conflagration, or other disasters;
    8. Preparation and distribution to appropriate state and local officials of state catalogues of federal, state, and private assistance programs;
    9. Organization of personnel and the establishment of chains of command;
    10. Coordination of federal, state, and local disaster activities;
    11. Coordination of the state emergency operations plan with the operations plans of the federal government, including without limitation, the National Response Framework;
    12. Establishment of the criteria and definitions for determining catastrophic losses suffered by both individuals and public entities and the enhanced levels of assistance to be provided upon the declaration of a catastrophic loss disaster; and
    13. Other necessary matters.
    1. In preparing and revising the state emergency operations plan, the division shall seek the advice and assistance of state agencies, local government, business, labor, industry, agriculture, civic, and volunteer organizations, and community leaders.
    2. In advising local and jurisdictional agencies, the division shall encourage them also to seek advice from the entities listed in subdivision (b)(1) of this section.
  2. The state emergency operations plan or any part of the state emergency operations plan may be incorporated in rules of the division or executive orders that have the force and effect of law.

History. Acts 1973, No. 511, § 5; 1977, No. 408, § 1; A.S.A. 1947, § 11-1938; Acts 1999, No. 449, § 6; 1999, No. 646, § 16; 2007, No. 197, § 7; 2009, No. 165, §§ 32, 33; 2019, No. 910, §§ 5876, 5877.

Amendments. The 1999 amendment by No. 449 added current (a)(12); and made stylistic changes.

The 1999 amendment by No. 646 substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” throughout the section; substituted “department” for “office” in (b)(2); and made stylistic changes.

The 2009 amendment substituted “personnel” for “manpower” in (a)(9); substituted “the entities listed in subdivision (b)(1) of this section” for “these sources” in (b)(2); substituted “rules” for “regulations” in (c); and made minor stylistic and punctuation changes.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in the introductory language of (a); and substituted “division” for “department” in (b)(1), (b)(2), and (c).

12-75-111. Division of Emergency Management — Other powers and duties.

  1. The Division of Emergency Management shall, with the assistance and cooperation of other state and local government agencies:
    1. Determine requirements of the state and its political subdivisions for food, clothing, and other necessities in event of an emergency;
    2. Procure and pre-position supplies, medicines, materials, and equipment;
    3. Promulgate standards and requirements for local and interjurisdictional emergency operations plans;
    4. Periodically review local and interjurisdictional emergency operations plans;
    5. Provide for mobile support units;
    6. Establish and operate or assist political subdivisions, their local offices of emergency management, and interjurisdictional offices of emergency management to establish and operate training programs and programs of public information;
    7. Make surveys of industries, resources, and facilities within the state, both public and private, as are necessary to carry out the purposes of this chapter;
    8. Plan and make arrangements for the availability and use of any private facilities, services, and property and, if necessary and if in fact used, provide for payment for use under terms and conditions agreed upon;
    9. Establish a register of persons with types of training and skills important in emergency prevention, preparedness, response, and recovery;
    10. Establish a register of mobile and construction equipment and temporary housing available for use in a disaster emergency;
    11. Prepare for issuance by the Governor of executive orders, proclamations, and rules as necessary or appropriate in coping with disasters;
    12. Cooperate with the federal government and any public or private agency or entity in achieving the purpose of this chapter and in implementing programs for disaster prevention, preparation, response, and recovery; and
    13. Do other things necessary, incidental, or appropriate for the implementation of this chapter.
    1. The division shall take an integral part in the development and revision of local and interjurisdictional emergency operations plans prepared under § 12-75-118.
      1. To meet the requirements of subdivision (b)(1) of this section, the division shall employ or otherwise secure the services of professional and technical personnel capable of providing expert assistance to political subdivisions, their local offices of emergency management, interjurisdictional planning, and interjurisdictional offices of emergency management.
      2. Personnel described in subdivision (b)(2)(A) of this section shall consult with political subdivisions, local offices of emergency management, and interjurisdictional offices of emergency management on a regularly scheduled basis and shall make field examinations of the area, circumstances, and conditions to which particular local and interjurisdictional emergency operations plans are intended to apply and may suggest or require revisions.
    1. The division shall administer and operate the Arkansas Wireless Information Network.
    2. The division shall perform all functions necessary to maintain and operate the Arkansas Wireless Information Network, including without limitation:
      1. Employ personnel;
      2. Manage, maintain, and acquire all equipment and assets;
      3. Enter into contracts and lease agreements on behalf of the Arkansas Wireless Information Network; and
      4. Administer the budget, expenditures, and all funding of the Arkansas Wireless Information Network.

History. Acts 1973, No. 511, § 5; 1977, No. 408, § 1; A.S.A. 1947, § 11-1938; Acts 1999, No. 646, § 17; 2007, No. 197, § 8; 2009, No. 165, §§ 34, 35; 2019, No. 315, § 966; 2019, No. 702, § 2; 2019, No. 910, §§ 5878, 5879.

A.C.R.C. Notes. Acts 2019, No. 702, § 1, provided: “Transfer of the Arkansas Wireless Information Network to the Arkansas Department of Emergency Management.

“(a) The Arkansas Wireless Information Network is transferred to the Arkansas Department of Emergency Management.

“(b) All authority, powers, duties, functions, records, personnel, property, unexpended balances of appropriations, allocations, and other funds, including the functions of budgeting and purchasing of the Arkansas Wireless Information Network, are transferred to the Arkansas Department of Emergency Management.”

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in the introductory paragraph of (a) and (b)(1); and made stylistic changes.

The 2009 amendment substituted “local offices of emergency management” and “offices of emergency management” for two instances of “disaster agencies” in (a)(6); and rewrote (b)(2).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a)(11).

The 2019 amendment by No. 702 added (c).

The 2019 amendment by No. 910 substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in the introductory language of (a); and substituted “division” for “department” in (b)(1) and (b)(2)(A).

12-75-112. Communications networks.

  1. The Division of Emergency Management shall operate and maintain information systems which will make available both voice and data links with federal agencies, other states, and state agencies as are assigned an emergency management role in the state emergency operations plan and local offices of emergency management.
  2. In addition to the minimum requirements of subsection (a) of this section, additional information systems networks may be established as deemed necessary by the Director of the Division of Emergency Management.

History. Acts 1973, No. 511, § 5; 1977, No. 408, § 1; 1985, No. 687, § 4; 1985, No. 978, § 4; A.S.A. 1947, § 11-1938; Acts 1999, No. 646, § 18; 2007, No. 197, § 9; 2009, No. 165, § 36; 2019, No. 910, § 5880.

Amendments. The 1999 amendment rewrote this section.

The 2009 amendment inserted “of subsection (a) of this section” in (b), and made a minor stylistic change.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a) and (b).

12-75-113. Emergency response vehicles.

  1. Due to the time-critical nature of response to the scene of a disaster or major emergency occurrence, the Director of the Division of Emergency Management may designate appropriate vehicles as requested in the staffing patterns of the state offices of emergency management and local offices of emergency management and designate other state agency vehicles with an emergency management response requirement as emergency response vehicles.
  2. Designated state and local government emergency response vehicles under this chapter shall share the same privileges and immunities regarding traffic laws and ordinances as other emergency vehicles as defined by state law.
  3. Emergency vehicles authorized by this chapter shall be identified by a flashing light or rotating beacon which will be green in color.
  4. When responding to an emergency, the designated emergency vehicle shall have flashing lights or rotating beacon activated and must be equipped with and operating a siren device.

History. Acts 1973, No. 511, § 8; 1985, No. 687, § 6; 1985, No. 978, § 6; A.S.A. 1947, § 11-1941; Acts 1999, No. 646, § 19; 2009, No. 165, § 37; 2019, No. 910, § 5881.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a).

The 2009 amendment substituted “emergency management” for “emergency services” or variant twice near the end of (a), and made minor stylistic changes.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a).

12-75-114. Governor — Disaster emergency responsibilities.

  1. The Governor is responsible for meeting and mitigating, to the maximum extent possible, dangers to the people and property of the state presented or threatened by disasters.
    1. Under this chapter, the Governor may issue executive orders, proclamations, and rules and amend or rescind them.
    2. Executive orders, proclamations, and regulations have the force and effect of law.
    1. There is created within the office of the Governor a disaster response fund, a disaster recovery fund, a catastrophic loss fund, and a hazard mitigation fund, which shall be separate and apart from the Governor's standard emergency fund.
    2. The initial amount of the disaster response fund shall be in the amount of two million dollars ($2,000,000), solely for use to defray the cost of immediate emergency response.
    3. The disaster recovery fund shall be in the amount of five million dollars ($5,000,000), with:
      1. The sum of two million dollars ($2,000,000) from the disaster recovery fund solely for use in individual assistance; and
      2. The sum of three million dollars ($3,000,000) from the disaster recovery fund solely for use in public assistance.
    4. The hazard mitigation fund shall be in the amount of three million dollars ($3,000,000), solely for use in hazard mitigation assistance.
    5. The sum of three million two hundred fifty thousand dollars ($3,250,000) from the catastrophic loss fund solely for use in catastrophic losses suffered by both individuals and public entities.
    6. The Governor's disaster fund may be increased from time to time at the discretion of the Governor.
    7. Expenditures from the individual assistance and public assistance funds may only be made in the event of a disaster as defined in § 12-75-103 and only upon proclamation by the Governor.
    8. Expenditures from the emergency response fund shall be made by executive order of the Governor, upon recommendation and verification by the Director of the Division of Emergency Management, and may only be made to defray immediate costs associated with response activities by emergency forces of state and local governments and private nonprofit forces duly registered in accordance with § 12-75-129.
      1. Expenditures from the hazard mitigation fund shall be made by executive order of the Governor.
      2. The director shall establish and maintain a current hazard vulnerability analysis of key critical public facilities eligible for assistance under the Governor's hazard mitigation fund.
      1. Expenditures from the catastrophic loss fund may only be made in the event of a federally declared disaster, as well as a disaster as defined in § 12-75-103, and only upon a separate proclamation by the Governor that a disaster has occurred in which catastrophic losses have been suffered by individuals or public entities in the state, or both.
      2. The director shall establish and maintain such criteria as are necessary to administer the funds authorized for catastrophic loss.
    1. During the continuance of any state of disaster emergency, the Governor is Commander-in-Chief of all forces available for emergency duty.
    2. To the greatest extent practicable, the Governor shall delegate or assign operational control by prior arrangement embodied in appropriate executive orders or rules, but nothing in this section restricts the Governor's authority to do so by orders issued at the time of the disaster emergency.
  2. In addition to any other powers conferred upon the Governor by law, the Governor may:
    1. Suspend the provisions of any regulatory statutes prescribing the procedures for conduct of state business, or the orders or rules of any state agency, if strict compliance with the provisions of any statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency;
    2. Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the disaster emergency;
    3. Transfer the direction, personnel, or functions of state departments and agencies or units of state departments and agencies for the purpose of performing or facilitating emergency management;
    4. Subject to any applicable requirements for compensation under § 12-75-124, commandeer or utilize any private property if he or she finds this necessary to cope with the disaster emergency;
    5. Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if the Governor deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery;
    6. Prescribe routes, modes of transportation, and destinations in connection with evacuation;
    7. Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;
    8. Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles; and
    9. Make provision for the availability and use of temporary emergency housing.

History. Acts 1973, No. 511, § 8; 1985, No. 629, § 2; A.S.A. 1947, § 11-1941; Acts 1993, No. 1049, § 3; 1995, No. 116, § 2; 1999, No. 449, § 7; 1999, No. 646, §§ 20, 21; 2001, No. 1278, § 4; 2007, No. 1290, § 86; 2009, No. 165, §§ 38, 39; 2013, No. 547, § 1; 2019, No. 315, §§ 967-969; 2019, No. 910, § 5882.

Amendments. The 1999 amendment by No. 449 rewrote (c)(2); substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (c)(5) and (c)(6)(B); added (c)(7); and made stylistic changes.

The 1999 amendment by No. 646 rewrote (c)(2); and substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (c)(5) and (c)(6).

The 2001 amendment, in (c)(2), substituted “one million dollars ($1,000,000)” for “five hundred thousand dollars ($500,000)” in the introductory language and in (c)(2)(D), substituted “three million dollars ($3,000,000)” for “two million dollars ($2,000,000)” in the introductory language; substituted “two million two hundred fifty thousand dollars ($2,250,000)” for “two million dollars ($2,000,000)” in (c)(2)(C); substituted “three million two hundred fifty thousand dollars ($3,250,000)” for “four million dollars ($4,000,000)” in (c)(2)(E); and made stylistic changes throughout the section.

The 2009 amendment substituted “§ 12-75-129” for “§ 12-75-127” in (c)(8); substituted “management” for “services” in (e)(3); and made a minor stylistic change.

The 2013 amendment deleted “firearms” preceding “explosives” in (e)(8).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b)(1) and (d)(2); and in (e)(1), substituted “orders or rules” for “orders, rules, or regulations” and substituted “order, or rule” for “order, rule, or regulation”.

The 2019 amendment by No. 910 substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (c)(8).

12-75-115. Disaster prevention generally.

    1. In addition to disaster prevention measures as included in the state, local, and interjurisdictional emergency operations plans, the Governor shall consider on a continuing basis steps that could be taken to prevent or reduce the harmful consequences of disasters.
    2. At the Governor's direction, and pursuant to any other authority and competence state agencies have, including, but not limited to, those charged with responsibilities in flood plain management, stream encroachment and flow regulation, weather modification, fire prevention and control, air quality, public works, land use and land use planning, and construction standards shall make studies of disaster prevention-related matters.
    3. Studies under subdivision (a)(2) of this section shall be furnished to the Governor and the Division of Emergency Management as soon as possible after completion and shall concentrate on means of reducing or avoiding damage caused by possible disasters or the consequences of possible disasters.
    4. The Governor, from time to time, shall make recommendations to the General Assembly, local government, and other appropriate public and private entities as may facilitate measures for prevention or reduction of the harmful consequences of disasters.
    1. If the division believes, on the basis of the studies or other competent evidence, that an area is susceptible to a disaster of catastrophic proportions without adequate warning, that existing building standards and land use control in that area are inadequate and could add substantially to the magnitude of the disaster, and that changes in zoning regulations, other land use regulations, or building requirements are essential in order to further the purposes of this section, it shall specify the essential changes to the Governor.
    2. If the Governor, upon review of the recommendation, finds after public hearing that the changes are essential, he or she shall so recommend to the agencies or local governments with jurisdiction over the area and subject matter.
    3. If no action or insufficient action pursuant to the Governor's recommendations is taken within the time specified by the Governor, he or she shall so inform the General Assembly and request legislative action appropriate to mitigate the impact of disaster.
    1. At the same time that the Governor makes his or her recommendations pursuant to subsection (b) of this section, the Governor may suspend the standard or control which he or she finds to be inadequate to protect the public safety and by rule place a new standard or control in effect.
    2. The new standard or control shall remain in effect until rejected by concurrent resolution of both houses of the General Assembly or amended by the Governor.
    3. During the time it is in effect, the standard or control contained in the Governor's rule shall be administered and given full effect by all relevant regulatory agencies of the state and local governments to which it applies.
    4. The Governor's action is subject to judicial review in accordance with the Arkansas Administrative Procedure Act, § 25-15-201 et seq., but shall not be subject to temporary stay pending litigation.

History. Acts 1973, No. 511, § 14; 1977, No. 408, § 5; 1981, No. 891, § 3; A.S.A. 1947, § 11-1947; Acts 1999, No. 646, §§ 22, 23; 2007, No. 197, § 10; 2009, No. 165, § 40; 2019, No. 315, §§ 970, 971; 2019, No. 910, §§ 5883, 5884.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a)(3) and (b)(1); and made a stylistic change.

The 2009 amendment substituted “Studies under subdivision (a)(2) of this section shall” for “These studies will” in (a)(3), and made minor stylistic changes.

The 2019 amendment by No. 315 substituted “rule” for “regulation” in (c)(1) and (c)(3).

The 2019 amendment by No. 910 substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(3); and substituted “division” for “department” in (b)(1).

12-75-116. State and local governmental entities — Liaison officers.

    1. It is the policy of this chapter that each department, commission, agency, or institution of state and local government actively and aggressively support the state offices of emergency management and local offices of emergency management to the end of providing the best possible preparation for response to or recovery from any emergency situation that may occur.
    2. In furtherance of the policy described in subdivision (a)(1) of this section, the head of each state department, commission, agency, or institution with an emergency management role or responsibility shall appoint a member or members of his or her staff as agency emergency management liaison officer or officers to act on his or her behalf in ensuring the agency's capability to fulfill its role in emergency management activities and shall ensure that the Division of Emergency Management is notified of any change in the appointment.
  1. The agency emergency management liaison officer shall:
    1. Maintain close and continuous liaison with the division, as applicable;
    2. Prepare agency annexes to the state and, as applicable, local emergency operations plans which are compatible with this chapter and with guidance provided by the division;
    3. Report to the State Emergency Operations Center as required for any disaster training or exercises or emergency training or exercises;
    4. Maintain files of agency resources to include personnel, facilities, and equipment available for disaster operation;
    5. Ensure that the agency can respond promptly and cooperatively with other agencies in any disaster or major emergency situation under the overall management of the division;
    6. Advise, assist, and evaluate the capabilities of counterpart local or federal government agencies in preparing for and carrying out disaster operations;
    7. Designate personnel available for assignment to mobile support units and train such personnel in the tasks to be performed; and
    8. Perform other related functions necessary to carry out the purpose of this chapter.
  2. As conditions or situations may require or dictate, the Director of the Division of Emergency Management may request a state department, agency, or institution not currently participating in the emergency management liaison officer program to appoint an officer in accordance with this section.
  3. Nothing in subsections (a)-(c) of this section shall be interpreted as relieving or otherwise abridging the responsibility and authority of agency directors in carrying out disaster operations for which their agencies are solely responsible.

History. Acts 1973, No. 511, § 7; 1985, No. 687, § 5; 1985, No. 978, § 5; A.S.A. 1947, § 11-1940; Acts 1993, No. 1049, § 4; 1999, No. 646, § 24; 2007, No. 197, § 11; 2009, No. 165, §§ 41, 42; 2019, No. 910, §§ 5885-5888.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” throughout (b) and (c); and inserted “such” in (b)(6).

The 2009 amendment, in (a), inserted “offices of emergency management” in (a)(1), and in (a)(2), inserted “described in subdivision (a)(1) of this section” and substituted “emergency management activities” for “emergency services activities”; in (b), rewrote the introductory language, which read: “It will be the responsibilities of this officer to”; and made minor stylistic changes.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(2) and (c); and substituted “division” for “department” in (b)(1), (b)(2), and (b)(5).

12-75-117. Interjurisdictional disaster planning and service areas.

      1. By executive order, the Governor may combine two (2) or more established local offices of emergency management as an interjurisdictional office of emergency management.
        1. Before a combination under subdivision (a)(1)(A) of this section, the jurisdictions involved shall prepare for the Governor's approval a written mutual interjurisdictional agreement that specifies how and by whom the emergency management coordinator shall be appointed.
        2. The interjurisdictional agreement shall also include specific provisions addressing the funding, administration, staff, and operational control of the interjurisdictional office of emergency management.
      2. The interjurisdictional office of emergency management shall meet the same minimum standards and requirements as a single-jurisdiction local office of emergency management in order to maintain eligibility for state and federal emergency management funding and program assistance.
    1. A finding of the Governor pursuant to this subsection shall be based on an assessment conducted by the Director of the Division of Emergency Management using one (1) or more factors related to the difficulty of maintaining an efficient, effective, and economical system for disaster and emergency preparedness, mitigation, response, and recovery such as:
      1. Small or sparse population;
      2. Limitations on public financial resources severe enough to make maintenance of a separate established local office of emergency management unreasonably burdensome;
      3. Unusual vulnerability to disasters and emergencies based on geographical, geological, hydrological, meteorological, or technological disaster potential; and
      4. Other relevant conditions or circumstances.
    1. If the Governor finds that a vulnerable area lies only partly within this state and includes territory in another state or states and that it would be desirable to establish an interstate relationship, mutual aid, or an area organization for disaster, he or she shall take steps toward that end as may be desirable.
    2. If this action is taken with jurisdictions having enacted the Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq., any resulting agreement or agreements may be considered supplemental agreements pursuant to Article VI of that compact.
      1. If the other jurisdiction or jurisdictions with which the Governor proposes to cooperate pursuant to subdivisions (b)(1) and (2) of this section have not enacted that compact, then he or she may negotiate a special agreement with the jurisdiction or jurisdictions.
      2. Any agreement, if sufficient authority for the making thereof does not otherwise exist, becomes effective only after its text has been communicated to the General Assembly and neither house of the General Assembly has disapproved it by adjournment of the next ensuing session competent to consider it or within thirty (30) days of its submission, whichever is longer.

History. Acts 1973, No. 511, § 11; A.S.A. 1947, § 11-1944; Acts 1993, No. 1049, § 5; 1999, No. 646, § 25; 2007, No. 197, § 12; 2009, No. 165, § 43; 2019, No. 910, § 5889.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in the introductory paragraph of (a)(2).

The 2009 amendment, in (a)(1), inserted “under subdivision (a)(1)(A) of this section” in (a)(1)(B)(i), inserted “interjurisdictional” in (a)(1)(B)(i) and (a)(1)(B)(ii), inserted “local” and substituted “management” for “services” in (a)(1)(C), and made minor stylistic changes.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in the introductory language of (a)(2).

12-75-118. Local and interjurisdictional offices of emergency management and services.

    1. Each political subdivision within this state shall be within the jurisdiction of and served by the Division of Emergency Management and by a local office of emergency management or interjurisdictional office of emergency management.
    2. A local office of emergency management or interjurisdictional office of emergency management shall be established as a public safety agency of its respective political subdivision or political subdivisions and shall be under the direction and control of the appropriate chief executive for the purposes of mitigation of, planning for, response to, and recovery from disaster and major emergency occurrences and for operation of public safety information networks.
    1. Each county within the state and those municipalities specifically designated by the Governor shall establish, fund, and maintain an established local office of emergency management or, as necessary, make arrangements through an interjurisdictional agreement to receive emergency management.
    2. Unless a municipality has been specifically designated as a local office of emergency management, it shall receive emergency management support from the county or counties where its corporate limits are situated.
    1. The Governor shall determine if additional municipal local offices of emergency management or interjurisdictional offices of emergency management are required based on an assessment conducted by the Director of the Division of Emergency Management using one (1) or more of the factors enumerated in § 12-75-117(a).
    2. The division shall publish and keep current a list of municipalities required to have local offices of emergency management or interjurisdictional offices of emergency management under this subsection.
  1. The Governor may require a political subdivision to establish and maintain a local office of emergency management or an interjurisdictional office of emergency management jointly with one (1) or more contiguous political subdivisions if he or she finds that the establishment and maintenance of any agency or participation in an agency is made necessary by circumstances or conditions that make it unusually difficult to provide disaster or major emergency prevention, preparedness, response, or recovery services under other provisions of this chapter.
  2. Each political subdivision that does not have a local office of emergency management and has not made arrangements to secure or participate in the emergency management of an agency shall have a liaison officer designated to facilitate the cooperation and protection of that political subdivision in the work of disaster and major emergency prevention, preparedness, response, and recovery.
    1. The chief executive of each political subdivision shall exercise comparable authority within his or her political subdivision, and within the limits of the Arkansas Constitution and laws of the state, as the Governor exercises over the state government during disasters and major emergencies. The chief executive shall ensure to the maximum extent possible, that his or her jurisdiction meets the minimum expected capability for disaster and emergency mitigation, planning, response, and recovery.
    2. The chief executive of a political subdivision shall notify the division of the manner in which the political subdivision is providing or securing disaster planning and emergency management, provide a staffing pattern for the local office of emergency management, identify the person who heads the local office of emergency management, and furnish additional information relating thereto as the division requires.
    1. Each local office of emergency management and interjurisdictional office of emergency management shall prepare and keep current an emergency operations plan for its area.
      1. The emergency operations plan and all annexes must be approved by the local office of emergency management of the political subdivision and receive concurrence of the chief executive of the political subdivision.
      2. The emergency operations plan shall then be submitted to the division for approval prior to implementation.
      3. The emergency management coordinator shall act for and on behalf of the appropriate chief executive to manage and coordinate the functions, duties, and activities of the established local office of emergency management.
  3. The local office of emergency management or interjurisdictional office of emergency management, as the case may be, shall prepare a clear and complete statement of the emergency responsibilities of all local agencies and officials and of the disaster and major emergency chain of command. This statement shall be distributed to all appropriate officials in written form.
    1. (1)(A) The county judge of each county and the chief executive of those municipal jurisdictions specifically designated as established local offices of emergency management shall appoint an emergency management coordinator for their respective local offices of emergency management.

(B) The written mutual interjurisdictional agreement between the participating jurisdictions in an interjurisdictional office of emergency management, executed under § 12-75-117(a), shall govern the appointment of the emergency management coordinator of the interjurisdictional office of emergency management.

(2) The emergency management coordinator and such supporting staff of an established local office of emergency management as may be employed in part, or in whole, by state and federal emergency management program funds, shall be responsible for meeting all standards and requirements stipulated for funding under the programs.

(3)(A) The director shall establish and periodically review criteria necessary to ensure compliance with minimum standards and requirements.

(B) Failure to meet or maintain minimum standards and requirements or noncompliance with any part of this chapter by an established local office of emergency management may result in a decision by the director to reduce, withhold, or terminate partial or full funding for any or all local offices of emergency management programs in which the political subdivision participates or for which it may be otherwise eligible.

(j)(1) Local offices of emergency management shall operate and maintain as a minimum an information systems link with the division.

(2)(A) When authorized by the chief executive of the political subdivision and properly staffed, the local office of emergency management may operate a public safety communications center for the purposes of coordination, dispatch, and information services for local government public safety agencies and private or volunteer agencies with an emergency management mission.

(B) The public safety communications center must be staffed by paid local office of emergency management public safety officers of the political subdivision and operate on a continuous basis if it is to serve as a law enforcement or fire dispatch and service center.

History. Acts 1973, No. 511, § 10; 1977, No. 408, § 4; 1985, No. 687, § 7; 1985, No. 978, § 7; A.S.A. 1947, § 11-1943; Acts 1993, No. 1049, § 6; 1999, No. 646, §§ 26-31; 2007, No. 197, § 13; 2009, No. 165, § 44; 2019, No. 910, §§ 5890-5894.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” throughout the section; in (a)(2), substituted “management” for “services” and “information” for “communication”; substituted “department” for “state office” in (f)(2); rewrote (j)(1); and made stylistic changes.

The 2009 amendment rewrote the section to clarify references to offices of emergency management.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(1) and (c)(1); and substituted “division” for “department” in (c)(2), twice in (f)(2), in (g)(2)(B), and in (j)(1).

12-75-119. Statewide mutual aid system.

    1. All emergency jurisdictions shall participate in the statewide mutual aid system, except as provided in subdivision (a)(2) of this section.
      1. An emergency jurisdiction may elect not to participate in the statewide mutual aid system.
      2. In order to make the election, the governing body of the emergency jurisdiction shall enact a resolution declaring that the emergency jurisdiction elects not to participate in the statewide mutual aid system.
      3. The chief executive officer of the governing body shall provide a copy of the resolution to the Division of Emergency Management within ten (10) days of the enactment of the resolution.
  1. Within its own emergency jurisdiction, a participating emergency jurisdiction shall:
    1. Identify potential problems and hazards that could affect the emergency jurisdiction using an identification system common to all participating emergency jurisdictions;
    2. Conduct joint planning, intelligence sharing, and threat assessment development with contiguous participating emergency jurisdictions;
    3. Conduct joint training exercises with contiguous participating emergency jurisdictions at least one (1) time every other year;
    4. Identify and inventory, at least annually, current services, equipment, supplies, personnel, and other resources related to planning, prevention, mitigation, and response and recovery activities of the participating emergency jurisdiction; and
    5. Adopt and implement an incident management system consistent with Homeland Security Presidential Directive-5, as it existed on January 1, 2005.
    1. The chief executive officer of the governing body of a participating emergency jurisdiction or his or her designee may request assistance from another participating emergency jurisdiction:
      1. To prevent, mitigate, or respond and recover from a local emergency declared under § 12-75-108; or
      2. To conduct joint training exercises.
      1. A request for assistance may be made verbally or in writing.
      2. Verbal requests shall be followed with written confirmation as soon as practical.
      1. A request for assistance is not required to be reported to the division in advance of or concurrent with the request.
      2. However, a request for assistance shall be reported to the division in writing as soon as practical.
  2. A participating emergency jurisdiction's obligation to provide assistance to another participating emergency jurisdiction with the prevention, mitigation, and response and recovery activities related to a declared emergency or training exercises is subject to the following conditions:
    1. There must be a local emergency declared under § 12-75-108 or a plan to conduct training exercises;
    2. A responding participating emergency jurisdiction may withhold its resources to the extent necessary to provide reasonable protection and services for its own emergency jurisdiction;
      1. An emergency responder from a participating emergency jurisdiction responding to a request for assistance from another participating emergency jurisdiction shall remain under the command control of his or her home jurisdiction, including use of medical protocols, standard operating procedures, and other protocols and procedures identified by the division.
      2. However, for the duration of the assistance, the emergency responder shall be under the operational control of the participating emergency jurisdiction requesting assistance in accordance with the incident management system of that participating emergency jurisdiction; and
        1. Equipment and supplies belonging to a participating emergency jurisdiction responding to a request for assistance from another participating emergency jurisdiction shall remain under the command control of the responding participating emergency jurisdiction.
        2. However, for the duration of the assistance, the equipment and supplies shall be under the operational control of the participating emergency jurisdiction requesting assistance in accordance with the incident management system of that participating emergency jurisdiction.
      1. A participating emergency jurisdiction providing assistance may donate equipment, supplies, or any other kind of asset to another participating emergency jurisdiction.
  3. If an emergency responder holds a license, certificate, or other permit issued by a participating emergency jurisdiction or the state evidencing qualification in a professional, mechanical, or other skill and the assistance of the emergency responder is requested by a participating emergency jurisdiction, the emergency responder shall be deemed to be licensed, certified, or permitted in the participating emergency jurisdiction requesting assistance for the duration of the declared emergency or training exercises, subject to any limitations and conditions imposed by the chief executive officer of the governing body of the participating emergency jurisdiction receiving the assistance.
      1. A participating emergency jurisdiction receiving assistance under the statewide mutual aid system shall reimburse a participating emergency jurisdiction responding to a request for assistance for all expenses associated with providing the assistance other than regular salaries and benefits.
      2. A request for reimbursement shall be made in accordance with procedures developed by the Arkansas Homeland Security Advisory Group and adopted by the division as a rule under the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
      3. The division shall not provide reimbursement for expenses associated with training exercises except in accordance with applicable rules.
        1. If a participating emergency jurisdiction disagrees with another participating emergency jurisdiction regarding reimbursement, the participating emergency jurisdiction asserting the dispute shall notify in writing the chief executive officer of the governing body of the participating emergency jurisdiction with which the dispute exists.
        2. The notification shall be sent by certified mail, return receipt requested.
        1. The participating emergency jurisdictions involved in the dispute shall make every effort to resolve the dispute within thirty (30) days of receipt of the written notice by the noncomplaining participating emergency jurisdiction.
        2. In the event that the dispute is not resolved within ninety (90) days of receipt of written notice of the dispute, either participating emergency jurisdiction may request binding arbitration.
        3. Arbitration conducted under this subdivision (f)(2)(B) shall be conducted under the commercial arbitration rules of the American Arbitration Association, as in effect on January 1, 2005.
    1. An emergency responder who assists a participating emergency jurisdiction that is not the emergency responder's home emergency jurisdiction and who sustains injury or death in the course of, and arising out of, the emergency responder's employment is entitled to all applicable benefits normally available from the emergency responder's home emergency jurisdiction.
    2. An emergency responder may receive additional state benefits as provided by law for death in the line of duty.
    1. All activities performed under this section are deemed to be governmental functions.
      1. For the purposes of liability, an emergency responder acting under the operational control of a participating emergency jurisdiction requesting assistance is deemed to be an employee of the participating emergency jurisdiction requesting assistance and exercising operational control.
      2. Except in cases of willful misconduct, gross negligence, or bad faith, neither the participating emergency jurisdiction providing assistance nor its employees shall be liable for the death of or injury to persons or for damage to property when complying or attempting to comply with the request of a participating emergency jurisdiction for assistance under the statewide mutual aid system.
  4. This section shall not be construed to prohibit a participating emergency jurisdiction from entering into interjurisdictional agreements with one (1) or more other emergency jurisdictions or emergency services entities and shall not affect any other agreement to which an emergency jurisdiction may be a party.

History. Acts 1973, No. 511, § 12; 1985, No. 687, § 8; 1985, No. 978, § 8; A.S.A. 1947, § 11-1945; Acts 1993, No. 1049, § 7; 1999, No. 646, § 32; 2001, No. 1278, § 5; 2005, No. 1179, § 2; 2019, No. 910, §§ 5895-5898.

A.C.R.C. Notes. The text of the Homeland Security Presidential Directive-5, referred to in subdivision (b)(5) of this section, can be found on the website of the United States Department of Homeland Security.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a)(1); and made stylistic changes.

The 2001 amendment added (f).

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(2)(C); and substituted “division” for “department” in (c)(3)(A), (c)(3)(B), (d)(3)(A), (f)(1)(B), and (f)(1)(C).

12-75-120. [Repealed.]

Publisher's Notes. This section, concerning mobile support units, was repealed by Acts 2007, No. 197, § 14. The section was derived from Acts 1973, No. 511, § 9; 1977, No. 408, § 3; 1981, No. 891, § 2; A.S.A. 1947, § 11-1942.

12-75-121. Utilization of existing services and facilities.

  1. In carrying out the provisions of this chapter, the Governor and the chief executives or designees of the political subdivisions of the state are directed to utilize the services, equipment, supplies, and facilities of existing departments, offices, and agencies of the state and of the political subdivisions thereof to the maximum extent practicable.
  2. The officers and personnel of all such departments, offices, and agencies are directed to cooperate with and extend such services and facilities to the Governor and to the emergency management organization of the state upon request.

History. Acts 1973, No. 511, § 19; A.S.A. 1947, § 11-1952; Acts 2007, No. 197, § 15.

12-75-122. Political activity prohibited.

An emergency management organization established under the authority of this chapter shall not:

  1. Participate in any form of political activity; or
  2. Be employed directly or indirectly for political purposes.

History. Acts 1973, No. 511, § 20; A.S.A. 1947, § 11-1953; Acts 2009, No. 165, § 45.

Amendments. The 2009 amendment redesignated the section, substituted “emergency management organization” for “organization for emergency services” in the introductory language, and made related and stylistic changes.

12-75-123. Appropriations and authority to accept services, gifts, grants, and loans.

  1. Each political subdivision may make appropriations in the manner provided by law for making appropriations for the ordinary expenses of such political subdivision for the payment of expenses of its local office of emergency management.
    1. If the federal government or any agency or officer of the federal government offers to the state, or through the state to any political subdivision, services, equipment, supplies, materials, or funds by way of gift, grant, or loan, for purposes of emergency management or disaster relief, the state, acting through the Governor, or the political subdivision, acting with the consent of the Governor and through its chief executive or governing body, may accept the offer.
    2. Upon such acceptance, the Governor of the state or chief executive or governing body of such political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive such services, equipment, supplies, materials, or funds on behalf of the state or such political subdivision and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer.
    1. Whenever any person, firm, or corporation shall offer to the state, or to any political subdivision thereof, services, equipment, supplies, materials, or funds by way of gift, grant, or loan for purposes of emergency management, the state, acting through the Governor, or such political subdivision, acting through its chief executive or governing body, may accept such offer.
    2. Upon such acceptance, the Governor of the state, or chief executive or governing body of such political subdivision may authorize any officer of the state, or of the political subdivision, as the case may be, to receive such services, equipment, supplies, materials, or funds on behalf of the state, or such political subdivision and subject to the terms of the offer.

History. Acts 1973, No. 511, § 18; A.S.A. 1947, § 11-1951; Acts 2007, No. 197, § 16; 2009, No. 165, §§ 46, 47.

Amendments. The 2009 amendment substituted “office of” for “organization for” in (a); substituted “emergency management” for “emergency services” in (b)(1); and made minor stylistic changes.

12-75-124. Compensation for services and property.

    1. Each person within this state shall conduct himself or herself and keep and manage his or her affairs and property in ways that will reasonably assist and will not unreasonably detract from the ability of the state and the public to successfully meet disaster emergencies. This obligation includes appropriate personal service and use or restriction on the use of property in time of disaster emergency.
    2. This chapter neither increases nor decreases these obligations but recognizes their existence under the Arkansas Constitution and statutes of this state and the common law.
    3. Compensation for services or for the taking or use of property shall be only to the extent that obligations recognized in this chapter are exceeded in a particular case and then only to the extent that the claimant may not be deemed to have volunteered his or her services or property without compensation.
  1. The state, any agency of the state, and any political subdivision shall not compensate any personal services except pursuant to statute or local law or ordinance.
  2. Compensation for property shall be only if the property was commandeered or otherwise used in coping with a disaster emergency and its use or destruction was ordered by the Governor or a member of the disaster emergency forces of this state.
  3. Any person claiming compensation for the use, damage, loss, or destruction of property under this chapter shall file a claim therefor with the Arkansas State Claims Commission in the form and manner the commission provides.
  4. Unless the amount of compensation on account of property damaged, lost, or destroyed is agreed between the claimant and the commission, the amount of compensation shall be calculated in the same manner as compensation due for a taking of property pursuant to the condemnation laws of this state.
  5. Nothing in this section applies to or authorizes compensation for the destruction or damaging of standing timber or other property in order to provide a fire break or to the release of waters or the breach of impoundments in order to reduce pressure or other danger from actual or threatened flood.

History. Acts 1973, No. 511, § 15; A.S.A. 1947, § 11-1948; Acts 2009, No. 165, § 48.

Amendments. The 2009 amendment substituted “The state, any agency of the state, and any political subdivision shall not compensate any personal services” for “No personal services may be compensated by the state or any subdivision or agency thereof” in (b).

12-75-125. Donation of property or equipment — Immunity.

  1. Any person owning or controlling real estate or other premises who voluntarily and with or without compensation grants a license or privilege, or otherwise permits the designation or use of the whole or any part or parts of such real estate or premises for the purpose of sheltering persons during an actual, impending, mock, or practice attack shall, together with his or her successors in interest, if any, not be civilly liable for negligently causing the death of, or injury to, any person on or about such real estate or premises for loss of or damage to the property of such person.
  2. The immunity in subsection (a) of this section shall extend to those persons who have voluntarily and with or without compensation granted the use of automotive vehicles, boats or similar equipment, or aircraft for use under the circumstances described in subsection (a) of this section.

History. Acts 1973, No. 511, § 17; A.S.A. 1947, § 11-1950.

12-75-126. Public safety officers.

  1. No person shall be employed or associated in any capacity in any emergency management organization established under this chapter who:
    1. Advocates or has advocated a change by force or violence in the constitutional form of the United States Government or of this state or the overthrow of any government in the United States by force or violence; or
    2. Has pleaded guilty or nolo contendere to or been found guilty of any subversive act against the United States or is under indictment or information charging any subversive act against the United States.
  2. The Director of the Division of Emergency Management and persons he or she may designate from the state and local offices of emergency management staffing patterns shall be sworn public safety officers as defined and limited by this chapter.
    1. Before entering upon his or her duties, each person who is selected to serve as a public safety officer in an organization of emergency management shall take an oath in writing before a person authorized to administer oaths in this state.
    2. The oath required in subdivision (c)(1) of this section shall be substantially as follows:
      1. The director may determine what constitutes the Division of Emergency Management uniform for division personnel.
      2. The chief executive of a local office of emergency management may determine what constitutes a uniform for his or her jurisdiction.
    1. The uniform may include a badge or identification card, or both, of appropriate design and dimensions to identify local office of emergency management personnel as bona fide emergency management workers within their jurisdiction and division personnel as bona fide emergency workers for the state.
  3. Any person issued or provided a badge, identification, or uniform described in subsection (d) of this section shall wear, carry, or display it at such times and places as shall be designated or required by the chief executive of the local jurisdiction for local office of emergency management personnel and by the director for division personnel.

“I, ________, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of Public Safety Officer, upon which I am now about to enter.”

History. Acts 1973, No. 511, § 21; 1985, No. 687, § 9; 1985, No. 978, § 9; A.S.A. 1947, § 11-1954; Acts 1999, No. 646, § 33; 2007, No. 197, § 17; 2019, No. 910, §§ 5899-5902.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a); and made a stylistic change.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (b); substituted “the Division” for “an Arkansas Department” in (d)(1)(A); and substituted “division” for “department” in (d)(1)(A), (d)(2), and (e).

12-75-127. [Repealed.]

Publisher's Notes. This section, concerning emergency servicers workers' eligibility, oath, and uniform, was repealed by Acts 2007, No. 197, § 18. The section was derived from Acts 1973, No. 511, § 21; A.S.A. 1947, § 11-1954; Acts 1989, No. 853, § 1; 1999, No. 646, § 34.

12-75-128. Emergency responders — Immunities and exemptions.

  1. All functions under this chapter and all other activities relating to emergency management are declared to be governmental functions.
  2. No emergency responder, except in cases of willful misconduct, gross negligence, or bad faith, when complying with or reasonably attempting to comply with this chapter, or any other rule or regulation promulgated pursuant to the provisions of this section or pursuant to any ordinance relating to blackout or other precautionary measures enacted by any political subdivision of the state, shall be liable for the death of or injury to persons, or for damage to property, as a result of any such activity.
  3. The immunity in subsection (b) of this section shall extend to both emergency responders who are employees and to qualified emergency responders who are volunteers.
  4. The provisions of this section shall not affect the right of any person to receive benefits to which he or she would otherwise be entitled to under this chapter, under the Workers' Compensation Law, § 11-9-101 et seq., or under the retirement system laws of Arkansas nor the right of any such person to receive any benefits or compensation under any act of the United States Congress.
    1. Any requirement for a license to practice any professional, mechanical, or other skill does not apply to any authorized emergency management worker who in the course of performing his or her duties as an emergency management worker practices the professional, mechanical, or other skill during an emergency.
      1. Subdivision (e)(1) of this section does not apply to a license issued to a health practitioner, as defined in § 12-87-102.
      2. However, a health practitioner license issued by another state is recognized in this state to the extent provided under this chapter, the Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq., the Uniform Emergency Volunteer Health Practitioners Act, § 12-87-101 et seq., and other laws of this state.
  5. Any emergency responder performing emergency preparedness services at any place in this state pursuant to agreements, compacts, or arrangements for mutual aid and assistance, to which the state or a political subdivision of the state is a party, shall possess the same powers, duties, immunities, and privileges he or she would ordinarily possess if performing his or her duties in the state, province, or political subdivision of the state or province in which normally employed or rendering services.
    1. An emergency responder is not required by this chapter to possess a license, certificate, permit, or other official recognition for his or her expertise in a particular field or area of knowledge.
    2. However, to the extent that an emergency responder engages in a professional activity that by law requires a license, certificate, permit, or other official recognition in order to engage in the professional activity, the emergency responder shall possess the appropriate professional license, certificate, permit, or other official recognition.

History. Acts 1973, No. 511, § 16; 1981, No. 891, § 4; A.S.A. 1947, § 11-1949; Acts 2005, No. 1962, § 53; 2007, No. 197, § 19; 2009, No. 165, §§ 49-52; 2009, No. 432, § 2.

Amendments. The 2009 amendment by No. 165 substituted “emergency management” for “emergency services” or variant in (a) and (e); substituted “an emergency management worker practices the” for “such, practice such” in (e); deleted (f); added (h); and made minor stylistic and punctuation changes.

The 2009 amendment by No. 432 rewrote (e)(2).

12-75-129. Emergency responders — Workers' compensation benefits.

    1. A person appointed and regularly enrolled in an accredited emergency management organization and covered by this chapter is limited to the Workers' Compensation Law, § 11-9-101 et seq., for benefits payable for an injury to or death of the person, if:
      1. The person is regularly employed by a local government or the state; and
      2. The injury or death occurs while the person is:
    2. If a person described in subdivision (a)(1) of this section is a qualified emergency responder of the state or a local office of emergency management, then recovery is limited as provided in this section.
  1. The remedy provided in this section shall be the exclusive remedy as against the state and political subdivisions thereof.
    1. For the purpose of workers' compensation coverage in cases of injury to or death of an individual, all duly qualified emergency responders shall be deemed local government or state employees and shall receive compensation, and their survivors shall receive death benefits in like manner as regular local government or state employees for injury or death arising out of and in the course of their activities as emergency responders.
    2. If an emergency responder is injured or killed while subject to the order or control of a local government, compensation and benefits shall be charged against the applicable local government's experience rate and paid from the appropriate state workers' compensation fund.
    3. If the emergency responder was under the order or control of a state agency when injured or killed, compensation and benefits shall be charged against the experience rate of the state agency who exercised order or control at the time of injury or death and paid from the appropriate state workers' compensation fund.
    1. For the purpose of subsection (c) of this section, the weekly compensation benefits for such emergency responders who receive no monetary compensation for services rendered as such workers shall be calculated based upon the wages received from their regular or usual employments, the same as a regular local or state employee, with respect to injury, disability, or death.
    2. The reimbursement per day for approved out-of-pocket expenses incurred in response to an emergency situation, such as gasoline, oil, uniforms, required equipment, and other items is not considered monetary compensation for the volunteer emergency responder.
    1. In the event that any person who is entitled to receive benefits through the application of subsection (c) of this section receives, in connection with the injury, disability, or death giving rise to such entitlement, benefits under an act of the United States Congress or federal program providing benefits for emergency responders or their survivors, then the benefits payable under this section shall be reduced to the extent of the benefits received under such other act or program.
    2. Any person who performs the duties of a member or trainee as an adjunct to his or her regular employment and who otherwise would be entitled to receive workers' compensation benefits for his or her injury, disability, or death, if injured in the performance of such duties, shall be deemed to have been injured, disabled, or killed in the course of his or her regular employment.
  2. An emergency responder shall be deemed duly registered and qualified when he or she is a member of and has on file in either a local office of emergency management or in the division the following information:
    1. Name and address;
    2. Date enrolled; and
    3. Class of service assigned.
  3. Payments and death and disability benefits as provided in this section shall be made from the Workers' Compensation Revolving Fund for state employees.

History. Acts 1973, No. 511, § 22; 1977, No. 408, § 6; 1981, No. 891, § 5; A.S.A. 1947, § 11-1955; Acts 1999, No. 646, §§ 35, 36; 2007, No. 197, § 20; 2009, No. 165, §§ 53-55; 2019, No. 910, §§ 5903, 5904.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a)(1) and the introductory paragraph of (f); and made stylistic changes.

The 2009 amendment rewrote (a); substituted “emergency responder” for “worker” in (d)(2); substituted “office of emergency management” for “emergency management office” in (f); and made minor stylistic changes.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(1)(B)(ii) (b) ; and substituted “division” for “Arkansas Department of Emergency Management” in the introductory language of (f).

Case Notes

Events Not Covered.

Although decedent was a registered emergency services worker for the county and was killed at scene of brushfire, he was not entitled to workers' compensation under this section because no disaster or catastrophe existed as defined by § 12-75-103. Office of Emergency Servs. v. Home Ins. Co., 2 Ark. App. 185, 618 S.W.2d 573 (1981).

12-75-130. Call-up of retired law enforcement officers.

  1. In emergency situations the Governor, county sheriff, or municipal police chief may authorize and request retired law enforcement officers, including game wardens, to perform law enforcement functions.
  2. In such instances, the retirement benefits of such retired law enforcement officers shall not be interrupted, reduced, or otherwise adversely affected.

History. Acts 1981, No. 31, § 1; A.S.A. 1947, § 11-1958.

Cross References. Retirement of state employees, § 24-4-101 et seq.

12-75-131. Disaster relief pay.

    1. The Division of Emergency Management is authorized to provide special compensation to certain employees for each full pay period of eighty (80) hours worked in a job which requires the provision of on-site emergency disaster relief services in cases of wartime, human-made, or natural disasters.
    2. This disaster relief pay covers employees who may be exposed to hazardous or disastrous conditions during the performance of their job duties.
      1. The rate of pay will be five and one-half percent (5.5%) above the regular authorized pay or rate of pay.
      2. Payment will be controlled through personnel actions by the Director of the Division of Emergency Management.
  1. The rate of pay for individuals who work less than a full pay period of eighty (80) hours or transfer to other work areas not defined in this section, or both, will not receive any enhanced rate of pay for that or subsequent pay periods.
  2. A monthly report shall be made to the Legislative Council describing all payments made to employees under the provisions of this section.

History. Acts 1995, No. 1028, § 14; 1999, No. 646, §§ 37, 38; 2019, No. 910, §§ 5905, 5906.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a)(1) and (a)(3)(B).

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(1) and (a)(3)(B).

12-75-132. Arkansas Homeland Security Advisory Group — Created.

  1. There is created an advisory body to the Division of Emergency Management, to be known as the “Arkansas Homeland Security Advisory Group”.
  2. The advisory group shall consist of representatives of federal, state, and local agencies and professional associations as determined by the Director of the Division of Emergency Management. The advisory group shall include, at a minimum, representatives of the following:
    1. Division of Emergency Management;
    2. The Arkansas Ambulance Association;
    3. Arkansas Association of Chiefs of Police;
    4. Arkansas Association of Fire Chiefs;
    5. Arkansas Citizen Corps Point of Contact;
    6. Division of Environmental Quality;
    7. Department of Health;
    8. Arkansas Emergency Management Association, Inc.;
    9. Arkansas Highway Police Division of the Arkansas Department of Transportation;
    10. Department of Agriculture;
    11. Arkansas Municipal League;
    12. National Guard;
    13. 61st Civil Support Team of the Arkansas National Guard;
    14. Arkansas Sheriffs' Association;
    15. Division of Arkansas State Police;
    16. County Judges Association of Arkansas;
    17. Centers for Disease Control and Prevention;
    18. Division of Information Systems;
    19. Federal Bureau of Investigation;
    20. Health Resources and Services Administration of the United States Department of Health and Human Services;
    21. United States Secret Service;
    22. United States Attorney for the Eastern District of Arkansas; and
    23. United States Attorney for the Western District of Arkansas.
  3. A representative of the Division of Emergency Management shall serve as chair of the advisory group.
  4. The advisory group shall develop and maintain comprehensive guidelines and procedures that address requirements for the following:
    1. Requesting and providing assistance through the statewide mutual aid system;
    2. Recordkeeping for all participating emergency jurisdictions;
    3. Reimbursement for assistance provided through the statewide mutual aid system; and
    4. Any other process necessary to implement the statewide mutual aid system.
  5. The advisory group shall meet as often as required to:
    1. Review the progress and status of statewide emergency programs;
    2. Assist in developing methods to track and evaluate activation of the statewide mutual aid system; and
    3. Examine issues facing emergency jurisdictions regarding the implementation and management of the statewide mutual aid system.
    1. The advisory group shall prepare at least annually a report on the condition and effectiveness of the statewide mutual aid system and other emergency programs in the state.
    2. The report shall include recommendations with regard to correcting any deficiencies identified by the advisory group in the statewide mutual aid system.
    3. The advisory group shall submit the report annually to the director and to the House Committee on State Agencies and Governmental Affairs and the Senate Committee on State Agencies and Governmental Affairs.

History. Acts 2005, No. 1179, § 3; 2007, No. 751, § 6; 2009, No. 165, § 56; 2017, No. 707, § 21; 2019, No. 910, §§ 5907, 5908.

Amendments. The 2009 amendment, in the introductory language of (d), deleted “By January 1, 2006” at the beginning, inserted “and maintain,” and made related changes.

The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (b)(9).

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a), in the introductory language of (b), in (b)(1), in (c), and in (f)(3); added “The” in (b)(2); substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b)(6); substituted “Department of Agriculture” for “Arkansas Livestock and Poultry Commission” in (b)(10); substituted “Arkansas National Guard” for “National Guard” in (b)(13); substituted “Division of Arkansas State Police” for “Department of Arkansas State Police” in (b)(15); deleted (b)(16) and redesignated the remaining subdivisions accordingly; and substituted “Division of Information Systems” for “Department of Information Systems” in (b)(18).

12-75-133. Position transfer.

Upon approval of the Chief Fiscal Officer of the State, the Arkansas Department of Emergency Management may transfer positions between appropriations as may be required:

  1. If a disaster occurs that results in a presidential disaster proclamation; or
  2. When an employee occupies one (1) position that is to be paid from two (2) or more appropriations during a single fiscal year.

History. Acts 2009, No. 165, § 57.

Subchapter 2 — Employees

12-75-201. [Repealed.]

Publisher's Notes. This section was repealed by Acts 2009, No. 165, § 58. The section was derived from Acts 1997, No. 1069, § 19; 1999, No. 1427, § 16.

For current law, see § 12-75-133.

Chapter 76 Interstate Compacts

Subchapter 1 — Interstate Civil Defense and Disaster Compact

Cross References. Arkansas Emergency Services Act of 1973, § 12-75-101 et seq.

Effective Dates. Acts 1989, No. 247, § 10: Feb. 24, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that this Act is designed to charge the Office of Emergency Services with full responsibility of administering the Earthquake Preparedness Program and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

12-76-101. Title.

This chapter may be cited as the “Interstate Civil Defense and Disaster Compact”.

History. Acts 1973, No. 232, § 1; A.S.A. 1947, § 11-2001.

12-76-102. Enactment of compact into law.

The Interstate Civil Defense and Disaster Compact is enacted into law and entered into with all jurisdictions legally joining therein in the form substantially as follows:

INTERSTATE CIVIL DEFENSE AND DISASTER COMPACT

ARTICLE I

The purpose of this compact is to provide mutual aid among the states in meeting any emergency or disaster from enemy attack, natural cause, or other cause. The prompt, full, and effective utilization of the resources of the respective states, including such resources as may be available from the United States Government or any other source, are essential to the safety, care, and welfare of the people thereof in the event of enemy action or other emergency, and any other resources including personnel, equipment, or supplies shall be incorporated into a plan or plans of mutual aid to be developed among the civil defense agencies or similar bodies of the states that are parties hereto. The Directors of Civil Defense of all party states shall constitute a committee to formulate plans to take all necessary steps for the implementation of this contract.

ARTICLE II

It shall be the duty of each party state to formulate civil defense plans and programs for application within such state. There shall be frequent consultation between the representatives of the states and with the United States Government and the free exchange of information and plans, including inventories of any materials and equipment available for civil defense. In carrying out such civil defense plans and programs, the party states shall, so far as possible, provide and follow uniform standards, practices, and rules and regulations including:

  1. Insignia and any other distinctive articles to designate and distinguish the different civil defense services;
  2. Mobilization of civil defense forces and other tests and exercises;
  3. Warnings and signals for drills or attacks and the mechanical devices to be used in connection therewith;
  4. Shutting off water mains, gas mains, electric power connections, and the suspension of all other utility services;
  5. All materials or equipment used or to be used for civil defense purposes in order to assure that such materials and equipment will be easily and freely interchangeable when used in or by any other party state;
  6. The conduct of civilians and the movement and cessation of movement of pedestrians and vehicular traffic, prior, during, and subsequent to drills or attacks or disasters;
  7. The safety of public meetings or gatherings;
  8. Standardized data bank of response and recovery resources; and
  9. Disaster forecasts and reports.

ARTICLE III

Any party state requested to render mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms hereof; provided that it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for such state. Each party state shall extend to the civil defense forces of any other party state, while operating within its state limits under the terms and conditions of this compact, the same powers (except that of arrest unless specifically authorized by the receiving state), duties, rights, privileges, and immunities as if they were performing their duties in the state in which normally employed or rendering services. Civil defense forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the civil defense authorities of the state receiving assistance.

ARTICLE IV

Whenever any person holds a license, certificate, or other permit issued by any state evidencing the meeting of qualifications for professional, mechanical, or other skills, such person may render aid involving such skill in any party state to meet an emergency or disaster, and such state shall give due recognition to such license, certificate, or other permit as if issued in the state in which aid is rendered.

ARTICLE V

No party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged, or on account of the maintenance or use of any equipment or supplies in connection therewith.

ARTICLE VI

Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two (2) or more states may differ from that appropriate among other states party hereto, this instrument contains elements of a broad base common to all states, and nothing herein contained shall preclude any state from entering into supplementary agreements with another state or states. Such supplementary agreements may complement, but shall not be limited to, provisions for evacuation and reception of injured and other persons, and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation, and communications personnel, equipment and supplies.

ARTICLE VII

Each party state shall provide for the payment of compensation and death benefits to injured members of the civil defense forces of that state and the representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within such state.

ARTICLE VIII

Any party state rendering aid in another state pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to, or expense incurred in, the operation of any equipment answering a request for aid, and for the cost incurred in connection with such requests, including amounts paid under Article VII; provided, that any aiding party state may assume in whole or in part such loss, damage, expense, or other cost, or may loan such equipment or donate such services to the receiving party state without charge or cost; and provided further that any two (2) or more party states may enter into supplementary agreements establishing a different allocation of costs as among those states. The United States Government may relieve the party state receiving aid from any liability and reimburse the party state supplying civil defense forces for compensation paid to and the transportation, subsistence, and maintenance expenses of such forces during the time of the rendition of such aid or assistance outside the state and may also pay fair and reasonable compensation for the use or utilization of the supplies, materials, equipment, or facilities so utilized or consumed. The State of Arkansas will only honor reimbursement claims from other states rendering aid to Arkansas to the same level of reimbursement and for the same items or areas of cost as each of those states' interstate compact laws provide to requesting states.

ARTICLE IX

Plans for the orderly evacuation and reception of the civilian population as the result of an emergency or disaster shall be worked out from time to time between representatives of the party states and the various local civil defense areas thereof. Such plans shall include the manner of transporting such evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing, and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of such evacuees to other areas or the bringing in of additional materials, supplies, and all other relevant factors. Such plans shall provide that the party state receiving evacuees shall be reimbursed generally for the out-of-pocket expenses incurred in receiving and caring for such evacuees, for expenditures for transportation, food, clothing, medicines and medical care, and like items. Such expenditures shall be reimbursed by the party state of which the evacuees are residents, or by the United States Government under plans approved by it. After the termination of the emergency or disaster, the party state of which the evacuees are resident shall assume the responsibility for the ultimate support or repatriation of such evacuees.

ARTICLE X

This compact shall be available to any state, territory, or possession of the United States, and the District of Columbia. The term “state” may also include any neighboring foreign country or province or state thereof.

ARTICLE XI

The committee established pursuant to Article I of this compact may request the Federal Emergency Management Agency, or its successor, of the United States Government to act as an informational and coordinating body under this compact, and representatives of such agency of the United States Government may attend meetings of such committee.

ARTICLE XII

This compact shall become operative immediately upon its ratification by any state as between it and any other state or states so ratifying and shall be subject to approval by Congress unless prior congressional approval has been given. Duly authenticated copies of this compact and of supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states and the Federal Emergency Management Agency, or its successor, and other appropriate agencies of the United States Government.

ARTICLE XIII

This compact shall continue in force and remain binding on each party state until the legislature or the Governor of such party state takes action to withdraw therefrom. Such action shall not be effective until thirty (30) days after notice thereof has been sent by the Governor of the party state desiring to withdraw to the Governors of all other party states.

ARTICLE XIV

This compact shall be construed to effectuate the purposes stated in Article I hereof. If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of this compact and the applicability thereof to other persons and circumstances shall not be affected thereby.

ARTICLE XV

It has been found and declared by the General Assembly of Arkansas that there is an immediate necessity to hasten the completion of plans to prepare this state and people thereof against the possibilities of disaster resulting from enemy attack, sabotage, or other hostile action or from natural disasters, such as fire, flood, earthquake, or other natural causes, and that enactment of this bill will hasten completion of such plans. Therefore, an emergency is declared to exist, this chapter being necessary for the preservation of the public peace, health, and safety, shall take effect and be in force and operation from the date of its approval.

ARTICLE XVI

DEFINITIONS:

  1. “Civil defense” shall be used here to be synonymous with emergency services, emergency management, or future terms denoting an emergency or disaster response organization or capability with the chief goal of protecting life, limb, and/or property of citizens that could be lost because of a disaster agent.
  2. “Civil defense forces” means all state, county, and local government agencies, departments, offices, and personnel, qualified emergency service workers as defined by § 12-75-103, and all private volunteer citizens called upon by state officials to provide emergency service in response to a disaster agent or to one that is pending.
  3. “State employees” include all persons paid wages or salaries by the State of Arkansas, all qualified emergency service workers as defined by § 12-75-103, and all private volunteer Arkansas citizens called upon by state officials to provide emergency services.

History. Acts 1973, No. 232, § 2; A.S.A. 1947, § 11-2002; Acts 1989, No. 247, §§ 3-6.

Publisher's Notes. The Interstate Civil Defense and Disaster Compact was approved by the General Assembly on March 7, 1973.

Subchapter 2 — Emergency Management Assistance Compact

A.C.R.C. Notes. This subchapter was formerly codified as § 12-49-401 et seq.

Due to the transfer of former § 12-49-401 et seq. to this chapter, the preexisting provisions of this chapter have been designated as Subchapter 1.

Effective Dates. Acts 1997, No. 959, § 3: Mar. 31, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that due to the potential danger posed to the citizens of the State of Arkansas by natural, man-made disaster, or act of war, there is an immediate need to implement the provisions of this act in the interest of public safety and welfare. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

12-76-201. Short title.

This subchapter may be cited as the “Emergency Management Assistance Compact”.

History. Acts 1997, No. 959, § 1.

12-76-202. Text of Compact.

The Emergency Management Assistance Compact is hereby enacted into law and entered into with all other states which adopt the compact in a form substantially as follows:

Emergency Management Assistance Compact

ARTICLE I — PURPOSE AND AUTHORITIES

This compact is made and entered into by and between the participating member states which enact this compact, hereinafter called party states. For the purposes of this agreement, the term “states” is taken to mean the several states, the Commonwealth of Puerto Rico, the District of Columbia, and all U.S. territorial possessions.

The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency or disaster that is duly declared by the governor of the affected state(s), whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency, or enemy attack.

This compact shall also provide for mutual cooperation in emergency- related exercises, testing, or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisions of party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states' National Guard forces, either in accordance with the National Guard Mutual Assistance Compact or by mutual agreement between states.

ARTICLE II — GENERAL IMPLEMENTATION

Each party state entering into this compact recognizes many emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential in managing these and other emergencies under this compact. Each state further recognizes there will be emergencies which require immediate access and present procedures to apply outside resources to make a prompt and effective response to such an emergency. This is because few, if any, individual states have all the resources they may need in all types of emergencies or the capability of delivering resources to areas where emergencies exist.

The prompt, full and effective utilization of resources of the participating states, including any resources on hand or available from the Federal Government or any other source, that are essential to the safety, care, and welfare of the people in the event of any emergency or disaster declared by a party state, shall be the underlying principle on which all articles of this compact shall be understood.

On behalf of the governor of each state participating in the compact, the legally designated state official who is assigned responsibility for emergency management will be responsible for formulation of the appropriate interstate mutual aid plans and procedures necessary to implement this compact.

ARTICLE III — PARTY STATE RESPONSIBILITIES

  1. It shall be the responsibility of each party state to formulate procedural plans and programs for interstate cooperation in the performance of the responsibilities listed in this article. In formulating such plans, and in carrying them out, the party states, insofar as practical, shall:
  2. The authorized representative of a party state may request assistance of another party state by contacting the authorized representative of that state. The provisions of this agreement shall only apply to requests for assistance made by and to authorized representatives. Requests may be verbal or in writing. If verbal, the request shall be confirmed in writing within 30 days of the verbal request. Requests shall provide the following information:
  3. There shall be frequent consultation between state officials who have assigned emergency management responsibilities and other appropriate representatives of the party states with affected jurisdictions and the United States Government, with free exchange of information, plans, and resource records relating to emergency capabilities.
  1. Actually engaged in emergency management duties either during training or during a period of emergency; and
  2. Subject to the order or control of or pursuant to a request of and under the supervision and instruction of the:
    1. Governor;
    2. Division of Emergency Management; or
    3. Chief executive or the designated director of a department, county, or an accredited local government unit making use of emergency management volunteer workers.
  3. Review individual state hazards analyses and, to the extent reasonably possible, determine all those potential emergencies the party states might jointly suffer, whether due to natural disaster, technological hazard, man-made disaster, emergency aspects of resource shortages, civil disorders, insurgency, or enemy attack.

i. A description of the emergency service function for which assistance is needed, such as but not limited to fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue.

ii. The amount and type of personnel, equipment, materials and supplies needed, and a reasonable estimate of the length of time they will be needed.

iii. The specific place and time for staging of the assisting party's response and a point of contact at that location.

ARTICLE IV — LIMITATIONS

Any party state requested to render mutual aid or conduct exercises and training for mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms hereof; provided that it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for such state.

Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers (except that of arrest unless specifically authorized by the receiving state), duties, rights, and privileges as are afforded forces of the state in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the emergency services authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state of emergency or disaster by the governor of the party state that is to receive assistance or commencement of exercises or training for mutual aid and shall continue so long as the exercises or training for mutual aid are in progress, the state of emergency or disaster remains in effect or loaned resources remain in the receiving state(s), whichever is longer.

ARTICLE V — LICENSES AND PERMITS

Whenever any person holds a license, certificate, or other permit issued by any state party to the compact evidencing the meeting of qualifications for professional, mechanical, or other skills, and when such assistance is requested by the receiving party state, such person shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the governor of the requesting state may prescribe by executive order or otherwise.

ARTICLE VI — LIABILITY

Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence, or recklessness.

ARTICLE VII — SUPPLEMENTARY AGREEMENTS

Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party hereto, this instrument contains elements of a broad base common to all states, and nothing herein contained shall preclude any state from entering into supplementary agreements with another state or affect any other agreements already in force between states. Supplementary agreements may comprehend, but shall not be limited to, provisions for evacuation and reception of injured and other persons and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, and equipment and supplies.

ARTICLE VIII — COMPENSATION

Each party state shall provide for the payment of compensation and death benefits to injured members of the emergency forces of that state and representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within their own state.

ARTICLE IX — REIMBURSEMENT

Any party state rendering aid in another state pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to or expense incurred in the operation of any equipment and the provision of any service in answering a request for aid and for the costs incurred in connection with such requests; provided, that any aiding party state may assume in whole or in part such loss, damage, expense, or other cost, or may loan such equipment or donate such services to the receiving party state without charge or cost; and provided further, that any two or more party states may enter into supplementary agreements establishing a different allocation of costs among those states. Article VIII expenses shall not be reimbursable under this provision.

ARTICLE X — EVACUATION

Plans for the orderly evacuation and interstate reception of portions of the civilian population as the result of any emergency or disaster of sufficient proportions to so warrant, shall be worked out and maintained between the party states and the emergency management/services directors of the various jurisdictions where any type of incident requiring evacuations might occur. Such plans shall be put into effect by request of the state from which evacuees come and shall include the manner of transporting such evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing, and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of such evacuees to other areas or the bringing in of additional materials, supplies, and all other relevant factors. Such plans shall provide that the party state receiving evacuees and the party state from which evacuees come shall mutually agree as to reimbursement of out-of-pocket expenses incurred in receiving and caring for such evacuees, for expenditures for transportation, food, clothing, medicines and medical care, and like items. Such expenditures shall be reimbursed as agreed by the party state from which the evacuees come. After the termination of the emergency or disaster, the party state from which the evacuees come shall assume the responsibility for the ultimate support of repatriation of such evacuees.

ARTICLE XI — IMPLEMENTATION

  1. This compact shall become operative immediately upon its enactment into law by any two (2) states; thereafter, this compact shall become effective as to any other state upon its enactment by such state.
  2. Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until 30 days after the governor of the withdrawing state has given notice in writing of such withdrawal to the governors of all other party states. Such action shall not relieve the withdrawing state from obligations assumed hereunder prior to the effective date of withdrawal.
  3. Duly authenticated copies of this compact and of such supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states and with the Federal Emergency Management Agency and other appropriate agencies of the United States Government.

ARTICLE XII — VALIDITY

This Act shall be construed to effectuate the purposes stated in Article I hereof. If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of the Act and the applicability thereof to other persons and circumstances shall not be affected thereby.

ARTICLE XIII — ADDITIONAL PROVISIONS

Nothing in this compact shall authorize or permit the use of military force by the National Guard of a state at any place outside that state in any emergency for which the President is authorized by law to call into federal service the militia, or for any purpose for which the use of the Army or the Air Force would in the absence of express statutory authorization be prohibited under Section 1385 of Title 18, United States Code.

History. Acts 1997, No. 959, § 2.

Chapter 77 Arkansas Earthquake Preparedness Act of 1989

Effective Dates. Acts 1989, No. 247, § 10: Feb. 24, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that this Act is designed to charge the Office of Emergency Services with full responsibility of administering the Earthquake Preparedness Program and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Cross References. Arkansas Emergency Services Act of 1973, § 12-75-101 et seq.

Earthquake activity, § 15-21-601 et seq.

12-77-101. Title.

This chapter may be cited as the Arkansas Earthquake Preparedness Act of 1989.

History. Acts 1989, No. 247, § 1.

12-77-102. Purpose.

    1. It is found and determined by the General Assembly that:
      1. There exists a history of violent seismic activity within the central United States seismic zone which includes the New Madrid Fault, the southern branch of the New Madrid Fault being at or about Marked Tree, Arkansas, and extends northeast into Missouri and Tennessee;
      2. That a recurrence of the 1811-1812 earthquake swarm, whereby fifty-five (55) of the approximate two thousand ten (2,010) earthquakes occurring during a three-month period that had surface wave magnitudes of 6.0 — 8.7 on the Richter scale, estimated to have affected in excess of eight hundred thousand (800,000) square miles, is again possible; and
      3. That it is essential for the protection of life and limb of the citizens of this state, and particularly those approximately six hundred fifty thousand (650,000) citizens on and in close proximity of the fault, that a program be initiated to provide for continuous mitigation, preparedness, response, and recovery capability for violent seismic activity.
    2. The General Assembly further determines that it is appropriate to amend the Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq., to be in concert with the Central United States Earthquake Consortium efforts to develop an Interstate Earthquake Emergency Compact.
  1. Therefore, it is the purpose and intent of this chapter to initiate a program to deal with this matter and to charge the Arkansas Department of Emergency Management, Earthquake Preparedness Program, with the responsibility of carrying out the program requiring the full cooperation of all other state and local government agencies, departments, offices, and personnel and requiring that all earthquake mitigation, preparedness, response, and recovery-related functions of Arkansas be coordinated to the maximum extent with comparable functions of the federal government, including its various departments and agencies, with other states and localities, and with private agencies of every type, to the end that the most effective earthquake mitigation, preparation, response, and recovery capabilities may be accomplished.

History. Acts 1989, No. 247, § 2; 1999, No. 646, § 39.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (b).

12-77-103. Arkansas earthquake program.

    1. The Arkansas Department of Emergency Management, Earthquake Preparedness Program, shall coordinate an earthquake program designed to protect the lives and property of persons of this state, to the fullest possible extent, from the direct effects of seismic activity affecting Arkansas as well as from secondary effects created by such occurrence.
    2. The program shall coordinate all activities involved in mitigation and preparedness regarding seismic events. Toward that end, the program shall include but not be limited to:
      1. Continued assessment from proper scientific authorities of the seismic risk to the state;
      2. Training and education of state and local government officials, employees, and citizens of Arkansas regarding preparation and protective measures that can be taken before, during, and after an earthquake;
      3. Planning coordination, guidance, and assistance to all state and local government officials in preparation for, response to, and recovery from earthquakes;
      4. Coordination of earthquake program activities with comparable agencies of the federal government and other states; and
      5. Dissemination of information to the public pertaining to earthquake hazards, especially to Arkansans living near the New Madrid Fault, protective measures, seismic resistance in building construction, and appropriate actions to be taken before, during, and after an earthquake, and other matters the Arkansas Department of Emergency Management shall determine to be necessary or appropriate to educate, inform, and equip citizens in this state to deal with any earthquake.
  1. In order to carry out the responsibilities provided for in this section, the program is authorized to employ such personnel as deemed necessary to the extent that funds are appropriated therefor by the General Assembly.

History. Acts 1989, No. 247, § 7; 1999, No. 646, §§ 40-42; 2009, No. 711, § 1.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a)(1), (a)(2)(E) and (b).

The 2009 amendment inserted “especially to Arkansans living near the New Madrid Fault” in (a)(2)(E), and made a related change.

12-77-104. Compliance with the Arkansas Emergency Services Act.

  1. It is the intention of the General Assembly that this chapter shall be in compliance with the Arkansas Emergency Services Act of 1973, § 12-75-101 et seq., to the extent that if this chapter or any provision of it or application thereof to any person or circumstance is held in opposition to or out of compliance with the Arkansas Emergency Services Act of 1973, § 12-75-101 et seq., then such provisions of this chapter are invalid.
  2. However, the invalidity of a provision or provisions of this chapter shall not affect other provisions or application of this chapter which can be given effect without the invalid provision, provisions, or their application.

History. Acts 1989, No. 247, § 8.

12-77-105. Purpose.

The purpose of this section and §§ 12-77-106 and 12-77-107 is to:

  1. Increase disaster preparedness in Arkansas; and
  2. Increase earthquake preparedness in all areas along the New Madrid Fault that have significant earthquake risk but a low level of public awareness.

History. Acts 2009, No. 711, § 2.

12-77-106. Duties.

The Arkansas Department of Emergency Management shall coordinate a Disaster Preparedness Program designed to protect the lives and property of Arkansas citizens in case of flooding and other disasters and create public preparedness materials that can be disseminated to the public, including without limitation:

  1. Training and education of state and local government officials, school districts, personnel, and citizens of Arkansas regarding preparation and protective measures that can be taken before, during, and after an earthquake;
  2. Planning coordination, guidance, and assistance to all state and local government officials in preparation for, response to, and recovery from flooding; and
  3. Coordination of the Disaster Preparedness Program activities with comparable agencies of the federal government and other states.

History. Acts 2009, No. 711, § 2.

12-77-107. Reports.

  1. The Arkansas Department of Emergency Management shall present a report on disaster preparedness including a review of the New Madrid Fault.
  2. The department shall make recommendations for improvements to the cochairs of the Legislative Council on or before November 1 each year.

History. Acts 2009, No. 711, § 2.

Chapter 78 Emergency Communications Act of 1991

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-78-101. Title.

This chapter may be cited as the Emergency Communications Act of 1991.

History. Acts 1991, No. 554, § 1.

12-78-102. Policy and purpose.

Because of the potential for a natural, technological, or national emergency-related disaster of catastrophic size and devastating impact requiring rapid and effective communications and warning to coordinate city, county, state, federal, and private sector emergency response personnel, equipment, and resources for the protection of lives, property, and institutions of the people of the state, and because technologically advanced state-of-the-art communications and data exchange equipment must be systematically procured, installed, and operated to ensure compatibility and effective use, it is found and declared to be necessary to provide:

  1. For the periodic review of the statewide emergency communications system to ensure maximum operational effectiveness and recommend such improvements as may be required to keep pace with increasing emergency needs and advancing technology;
  2. A system to review and recommend the procurement of equipment and systems to local offices of emergency services and to state, federal, and private sector emergency communications operators to ensure compatibility of equipment; and
  3. A source of funding and administer funding made available from federal, state, and private sources to ensure prioritized, equitable, economical, and fair distribution of funding and to ensure all required fiscal controls and reviews are in compliance with appropriate state and federal guidelines.

History. Acts 1991, No. 554, § 2.

12-78-103. Definitions.

As used in this chapter:

  1. “Arkansas Department of Emergency Management” or “local office of emergency management” shall refer to:
    1. The state agency; and
    2. Those jurisdictions authorized under the Arkansas Emergency Services Act of 1973, § 12-75-101 et seq., for the performance of emergency and disaster mitigation, planning, response, or recovery at the state and local level, respectively; and
  2. “Emergency warning and communications systems” shall refer to the emergency communications nets operated under the control, management, supervision, and license of the Arkansas Department of Emergency Management which may include local offices of emergency services, designated components of state or federal agencies, and duly accredited private sector organizations assigned to an emergency role under the provisions of the State of Arkansas Emergency Operations Plan.

History. Acts 1991, No. 554, § 3.

12-78-104. Management of funds.

The Arkansas Department of Emergency Management shall ensure that a system to manage appropriated funds shall provide that:

  1. Upon achieving operational status, the warning and communications shall be operated in accordance with the rules, regulations, and laws governing emergency warning and communications systems as promulgated by the Federal Communications Commission, Federal Emergency Management Agency, and the department;
  2. Equipment shall be maintained in a continuing operational status by local offices of emergency management or the chief executive officer of the jurisdiction and by the responsible supervisor or manager of other recipients and the offices, jurisdictions, or agencies who shall provide supervision and training to those individuals designated to operate the equipment; and
  3. Failure to maintain or operate the equipment in accordance with the minimum standards set forth in guidance by the department shall require repayment to the State Treasury that portion of the initial grant of state funds based upon a depreciation rate of fourteen percent (14%) per annum effective from the date of installation and acceptance.

History. Acts 1991, No. 554, § 5; 1999, No. 646, § 43.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” throughout this section.

12-78-105. Implementation — Equipment purchases.

    1. From funds appropriated therefor, the Division of Emergency Management shall provide to eligible local offices of emergency management and key state agencies assigned an emergency role under the State of Arkansas Emergency Operations Plan matching grants not to exceed fifty percent (50%) of the cost of the acquisition of the emergency warning and communications equipment.
    2. The grant shall be awarded only for the acquisition of equipment for which the Director of the Division of Emergency Management has granted specific approval.
  1. The equipment shall be purchased only in accordance with the current approved purchasing procedures of the county or city having authority over the local office of emergency management or the approved purchasing procedures for the governmental agencies or private sector agencies.

History. Acts 1991, No. 554, § 4; 1999, No. 646, § 44; 2019, No. 910, § 5909.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a)(1) and (a)(2); and made stylistic changes.

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(1) and (a)(2).

Chapter 79 Arkansas Hazardous and Toxic Materials Emergency Notification Act

Effective Dates. Acts 1991, No. 917, § 10: Mar. 29, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that hazardous and toxic materials are being transported along our public streets and highways in Arkansas; that accidents and incidents involving the release of these hazardous and toxic materials periodically occur and threatens the public health and safety of the citizens of Arkansas; and that there is no current system of centralized reporting and response for these HAZMAT emergencies. Therefore, in order to create a centralized reporting to relieve the threat to the public health and safety, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-79-101. Title.

This chapter may be known and cited as the “Arkansas Hazardous and Toxic Materials Emergency Notification Act”.

History. Acts 1991, No. 917, § 1.

12-79-102. Creation.

Because of the existing and increasing possibility of a major disaster or emergency from the release of hazardous and toxic substances into the environment while in transport, during manufacturing, and in storage, and because of the immediate need to notify state and local emergency response and recovery forces and other governmental entities mandated to perform certain actions related to a release of hazardous or toxic substances into the environment, it is found and declared to be necessary to:

  1. Create within the Arkansas Department of Emergency Management a system to notify local, state, and federal emergency response and recovery forces and those other governmental and private sector entities with a mandated responsibility for emergency services; and
  2. Require any business, manufacturer, refiner, retailer, wholesaler, transporter in the private sector, or governmental entity at the local, state, or federal level to report as soon as possible any known incident involving the release of hazardous and toxic materials into the environment which requires, or may require, emergency response or recovery actions by public safety forces of local or state governmental entities, including volunteer emergency services such as, but not limited to, firefighters, law enforcement, emergency medical services, and other first responders.

History. Acts 1991, No. 917, § 2; 1999, No. 646, § 45.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in the first sentence of (1).

12-79-103. Definitions.

As used in this chapter:

  1. [Repealed.]
  2. “Fixed facility” means any refinery, factory, storage site, assembly plant, warehouse, wholesaler, retailer, or other facility which receives, stores, processes, or ships hazardous and toxic materials;
  3. “Hazardous and toxic materials” means:
    1. Those substances, except natural gas, manufactured, refined, or found in their natural state which, when released into the environment, by any means, have an immediate or potential threat to human, animal, or plant life and meet other criteria established under federal regulations, guidelines, or laws defining hazardous and toxic substances in a quantity and form which may pose an unreasonable risk to health and safety or property when transported in commerce, and which is designated as “hazardous material” in regulations prescribed by the United States Secretary of Transportation under Title 49 of the Code of Federal Regulations; and
    2. Any other substance or pollutant designated by rules of the Director of the Division of Emergency Management promulgated under this chapter;
  4. “HAZMAT” means the abbreviation of “hazardous and toxic materials”;
  5. “Incident” or “accident” means the spilling, leaking, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of hazardous and toxic materials into the environment;
  6. “System for notification” means those communications facilities currently existing, or that may be later established, for direction, warning, and control of emergency response and recovery forces at the federal, state, and local levels;
  7. “Transport” means the movement of any hazardous and toxic material regardless of the mode of transportation from one place to another place and any loading, unloading, and storage incidental thereto; and
  8. “Transporter” means any person, firm, association, partnership, corporation, or other legal entity who transports or ships in a motor vehicle, rail freight car, freight container, cargo tank, rail tank car, pipeline other than a natural gas pipeline, aircraft, vessel, or other means of transportation any hazardous and toxic materials as a common carrier, contract carrier, or carrier for private use.

History. Acts 1991, No. 917, § 3; 1999, No. 646, § 46; 2019, No. 315, § 972; 2019, No. 910, § 5910.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (1); and made a stylistic change.

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (3)(B).

The 2019 amendment by No. 910 repealed (1).

12-79-104. HAZMAT incident or accident reporting system.

  1. The Director of the Division of Emergency Management shall:
    1. In cooperation with the State Emergency Response Commission, establish a HAZMAT incident or accident reporting system within the State Emergency Operations Center for disseminating information to the appropriate agencies and emergency first responders for any release of a hazardous and toxic material that might present either an immediate or potential threat to the safety, health, and welfare of the public; and
    2. Operate and maintain on a continuing basis emergency direction, control, and warning systems sufficient to meet the minimum requirements of this chapter.
  2. The HAZMAT incident or accident reporting systems shall meet the minimum federal requirements specified in federal regulations and guidelines for hazardous and toxic materials emergency reporting and shall operate within the provisions established under the Arkansas Emergency Services Act of 1973, § 12-75-101 et seq., and the State of Arkansas Emergency Operations Plan to provide the most expeditious and practical means to notify state, local, and private sector entities assigned an emergency response or recovery role under this chapter.
  3. Each agency, office, bureau, or commission of the State of Arkansas or its political subdivisions having a role or responsibility for HAZMAT planning, response, recovery, or mitigation, or providing public safety services or having regulatory or oversight authority shall establish guidelines and procedures to ensure prompt and accurate reporting of any accident, incident, or known or suspected release of toxic or hazardous materials within the State of Arkansas in violation of any state or federal environmental or health protective statutes, regulations, rules, or guidelines.

History. Acts 1991, No. 917, § 4; 1999, No. 646, § 47; 2019, No. 315, § 973; 2019, No. 910, § 5911.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in the introductory paragraph of (a).

The 2019 amendment by No. 315 inserted “rules” following “regulations” in (c).

The 2019 amendment by No. 910 substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in the introductory language of (a).

12-79-105. Accidents or incidents.

Any fixed facility operator or any transporter involved in an accident or incident during refining, manufacturing, processing, storage, loading, unloading, transporting, or a related activity which involves the release of hazardous and toxic materials into the environment or any public safety emergency first responders from the local, state, or federal level, who have confirmed that the incident or accident has not been previously reported to the State Emergency Operations Center shall report immediately, by telephone, radio, or the most expeditious means available to the center any incident or accident which:

  1. Involves a fatality due to fire, explosion, or exposure to any hazardous and toxic materials;
  2. Results in the hospitalization of any person due to fire, explosion, or exposure to any hazardous and toxic materials;
  3. Results in a continuing danger to life, health, or property at the place of the accident or incident; and
  4. Results in the release of hazardous and toxic materials, in any amount, by any transporter onto public or private property, including roads, highways, or thoroughfares maintained by local, state, and federal government entities and upon regulated commerce rights-of-way.

History. Acts 1991, No. 917, § 5.

12-79-106. Penalties.

Any person who pleads guilty or nolo contendere to or is found guilty of violating any provisions of this chapter or any rule promulgated hereunder shall be guilty of a misdemeanor and be fined not more than five hundred dollars ($500) per day of violation or imprisoned for not more than one (1) year, or both.

History. Acts 1991, No. 917, § 6; 2019, No. 315, § 974.

Amendments. The 2019 amendment substituted “rule” for “regulation”.

Chapter 80 Earthquake Resistant Design for Public Structures

Cross References. Earthquake activity, § 15-21-601 et seq.

Earthquake Preparedness Act, § 12-77-101 et seq.

Effective Dates. Identical Acts 2016 (3rd Ex. Sess.), Nos. 22 and 23, § 2: May 23, 2016. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that seismic design requirements found in the Arkansas Fire Prevention Code are overly restrictive; that the nature of these restrictions require businesses to expend significant resources; and that this act is immediately necessary to correct this restriction, to ease the burden on businesses considering construction in Arkansas, and to promote local economic development efforts. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

12-80-101. Purpose.

It is the purpose of this chapter to protect the public by requiring that all public structures be designed and constructed to resist destructive forces when an earthquake occurs in the New Madrid Seismic Zone.

History. Acts 1991, No. 1100, § 1.

12-80-102. Definitions.

As used in this chapter:

  1. “Add to” means adding to the original existing buildings or structures more than four thousand square feet (4,000 sq. ft.) in gross floor area and all areas of increased building height;
  2. “Alter”, “retrofit”, and “remodel” mean any alteration or repair of a building which when completed will increase the market value of the building by one hundred percent (100%) or more;
  3. “Owner” means any agency of the state, county, city, township, town, village, or private entity, partnership, business, or corporation;
    1. “Public structure” means any building intended, or adaptable, for public employment, assembly, or any other use if it will be open to the public.
    2. Also included in this definition are certain building types as defined under the term “public works” projects;
    1. “Public works” means works, whether of construction or adaptation, undertaken and carried out by the national, state, county, school district, or municipal authorities, and designed to serve some purpose of public necessity, use, or convenience such as public buildings, roads, aqueducts, parks, and all other fixed works constructed for public use.
    2. The term relates to the construction of public improvements and not to their maintenance or operation;
  4. “Seal” means the Arkansas seal issued to signify certification of registration to practice architecture or engineering;
  5. “Seismic” means pertaining to an earthquake or earth tremor, i.e., vibrations; and
  6. “Structural elements” means all structural load-carrying members of a building or structure required to transmit loads, i.e., forces within the building or between the building and the ground.

History. Acts 1991, No. 1100, § 2; 1999, No. 1485, § 1.

Amendments. The 1999 amendment inserted “the original” in (1); and made stylistic changes.

12-80-103. Seismic zones established.

    1. Areas within the boundaries of this state shall be divided into zones of anticipated damage that will occur in various locations with respect to the New Madrid Seismic Zone.
    2. This division will be based on the Arkansas Fire Prevention Code.
    1. Zone 3, the area of greatest anticipated seismic damage, shall include the following counties: Clay, Greene, Craighead, Mississippi, Poinsett, Cross, Crittenden, St. Francis, Randolph, Lawrence, Jackson, Woodruff, and Lee.
    2. Zone 2, the area of moderate anticipated seismic damage, shall include the following counties: Sharp, Independence, White, Lonoke, Prairie, Arkansas, Monroe, Phillips, Fulton, Izard, Stone, and Cleburne.
    3. Zone 1, the area of low anticipated seismic damage, shall include all remaining counties within the boundaries of this state.

History. Acts 1991, No. 1100, § 3; 1999, No. 1485, § 2; 2005, No. 1290, § 1.

Amendments. The 1999 amendment rewrote this section.

12-80-104. Design requirements.

    1. Neither the state or any county, city, township, village, or private entity shall construct, add to, alter, retrofit, or remodel any public structure unless the structural elements are designed to resist the anticipated forces of the designated seismic zone in which the structure is located.
      1. Design loads and seismic design requirements shall be, as a minimum, those listed in the Chapter of Structure Loads and referenced chapters from the Arkansas Fire Prevention Code.
        1. Buildings or other structures classified as Category I or Category II occupancies as described in Table 1604.5, Arkansas Fire Prevention Code, Volume II, 2012 Edition, or in American Society of Civil Engineers Standard 7-10, Table 1.5-1, that are constructed for manufacturing or industrial occupancy or for public works may be designed using the mapped ground motion response accelerations for a ten-percent probability of exceeding the design seismic event in a fifty-year period based on United States Geological Survey data, instead of the mapped ground motion response accelerations for a two-percent or other probability of exceeding the design seismic event in a fifty-year period as set out in the Arkansas Fire Prevention Code, 2012 Edition, or subsequent editions of the Arkansas Fire Prevention Code if the alternate design standard has been properly adopted by ordinance in the locality in which the building or other structure is to be constructed.
        2. Under subdivision (a)(2)(B)(i) of this section, SDS shall equal SMS and SD1 shall equal SM1 in lieu of the two-thirds adjustment indicated in Equation 16-39 and Equation 16-40 of the Arkansas Fire Prevention Code, Volume II, 2012 Edition, and the design seismic base shear V in any given direction shall be not less than that determined in accordance with Section 1607, Standard Building Code, 1997 Edition.
        3. As used in subdivision (a)(2)(B)(ii) of this section, “SDS”, “SMS”, “SD1”, and “SM1” mean the same as defined in the Arkansas Fire Prevention Code, Volume II, 2012 Edition.
    1. All construction plans for public buildings and structures shall comply with the Arkansas Architectural Act, § 17-15-101 et seq.
    2. The design of structural elements of public buildings and structures shall be performed by a professional engineer as defined in § 17-30-101 who is competent in seismic structural design according to current standards of technical competence.
    3. The structural plans of each public building or structure shall bear the engineer's Arkansas seal and signature and a statement of reference to what seismic zone the structure is designed to satisfy.
    4. Educational and institutional structures in Seismic Hazard Exposure Group III shall have nonstructural interior components, such as bookshelves, light fixtures, shelving, hot water tanks, oxygen tanks, etc., to meet earthquake resistant guidelines.

History. Acts 1991, No. 1100, § 4; 1999, No. 1485, § 3; 2011, No. 897, § 10; 2016 (3rd Ex. Sess.), No. 22, § 1; 2016 (3rd Ex. Sess.), No. 23, § 1.

Amendments. The 1999 amendment rewrote (a)(2); added (b)(4); and made stylistic changes.

The 2011 amendment substituted “as defined in § 17-30-101” for “registered in the State of Arkansas” in (b)(2).

The 2016 (3rd Ex. Sess.) amendment by identical acts Nos. 22 and 23 added (a)(2)(B).

12-80-105. Exemptions.

  1. Certain building types shall not be included in the requirements of this chapter, such as:
    1. Single family residential;
    2. Duplexes;
    3. Triplexes;
    4. Fourplexes;
    5. Agricultural structures; and
    6. The following wood frame, metal, or both, construction business occupancies of four thousand square feet (4,000 sq. ft.) or less:
      1. Business occupancy of less than forty (40);
      2. Mercantile occupancy with a load less than one hundred (100); and
      3. Storage.
    1. The park and recreational facilities of the State of Arkansas, any of its agencies or departments, or any city, town, or county government or any school district shall not be included in the requirements of this chapter.
    2. As used in this subsection, “park and recreational facilities” shall mean any facilities which are generally open structures and have three (3) or fewer sides and are used for athletics, recreation, relaxation, entertainment, cultural development, and other recreational activities, including, without limitation, park pavilions, amphitheaters, covered stage areas, camping centers, tennis courts, golf course shelters, athletic fields, baseball fields and dugouts, and various other similar park and recreational facilities.

History. Acts 1991, No. 1100, § 5; 1995, No. 520, § 1; 1997, No. 1228, § 1; 1999, No. 1485, § 4.

Amendments. The 1999 amendment rewrote (a); deleted former (c); and made stylistic changes.

12-80-106. Violations and penalties.

  1. Any owner knowingly constructing a public building within this state without complying with the provisions of this chapter shall be guilty of a violation and shall upon conviction be sentenced to pay a fine of not less than one thousand dollars ($1,000).
  2. Each day of the unlawful construction practice shall constitute a distinct and separate offense.

History. Acts 1991, No. 1100, § 6; 2005, No. 1994, § 79.

A.C.R.C. Notes. As enacted by Acts 1991, No. 1100, § 6, subsection (a) between “state” and “without” read:

“after September 1, 1991,”.

12-80-107. Exemptions for roads and bridges.

None of the highway, road, street, or bridge facilities in this state shall be included in the requirements of this chapter.

History. Acts 1995, No. 569, § 1.

Chapter 81 Commission to Assist Persons Who Have Suffered Catastrophic Financial Loss [Repealed.]

12-81-101. [Repealed.]

Publisher's Notes. This chapter, concerning members of a catastrophic financial loss assistance commission, was repealed by Acts 1999, No. 1133, § 2. The chapter was derived from Acts 1991, No. 269, § 1.

Chapter 82 Arkansas SERC/LEPC Act

Effective Dates. Acts 1993, No. 567, § 8: Mar. 17, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that the danger of personal injury and subsequent liability that might be incurred requires rapid implementation of the provisions of this act. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-82-101. Title.

This chapter may be known and cited as the Arkansas SERC/LEPC Act.

History. Acts 1993, No. 567, § 1.

12-82-102. Purpose.

Because of existing and increasing accidents, incidents, and events involving hazardous and toxic materials in transport, manufacturing, storage, refining, and usage and because of federal mandates imposed upon state and local governments under the provisions of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq., it is found and declared to be necessary to:

  1. Create a State Hazardous Materials Emergency Response Commission which shall be empowered to take the necessary actions and activities required under state and federal laws, rules, and regulations related to emergency planning, training, response, and recovery activities for hazardous and toxic materials;
  2. Administer the provisions of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; and
  3. Authorize the commission to investigate, review, implement, and manage such standards and requirements as may be needed for the certification of public emergency responders and other related emergency personnel as may be subject to emergency response and recovery actions related to hazardous and toxic materials incidents, accidents, or events.

History. Acts 1993, No. 567, § 2.

12-82-103. Definitions.

As used in this chapter:

  1. “Certification” means a formal document acknowledging that an individual has reached the minimum level of formal training and education, required under federal regulations and guidance provided through the State Hazardous Materials Emergency Response Commission, to perform his or her normally assigned duties for hazardous and toxic materials emergency response;
  2. “Emergency responder” means a person or persons enrolled in organizations which are entities of state or local government, or acting in behalf of state or local government, including, but not limited to, professional or volunteer law enforcement, firefighting, emergency medical, emergency services, or other public emergency response personnel who respond to the scene of a disaster with an assigned role in public safety and emergency services;
  3. “Emergency response and recovery” means those actions required at the scene of a disaster or emergency, as described in the Arkansas Emergency Services Act of 1973, § 12-75-101 et seq., for public safety, health, and welfare;
  4. “Hazardous and toxic materials” or “HAZMAT” means:
    1. Extremely hazardous substances under 42 U.S.C. § 11002, hazardous chemicals under 42 U.S.C. §§ 11021 and 11022, and toxic chemicals under 42 U.S.C. § 11023; and
    2. Such other hazardous and toxic substances as may later be designated by federal regulatory agencies; and
  5. “State Emergency Response Commission” or “SERC” refers to the State Hazardous Materials Emergency Response Commission as specified in this chapter.

History. Acts 1993, No. 567, § 3.

U.S. Code. 42 U.S.C. §§ 11002, 11021, 11022 and 11023 are sections of the Superfund Amendments and Reauthorization Act of 1986.

12-82-104. State Emergency Response Commission.

    1. The State Emergency Response Commission shall be composed of:
      1. The executive heads of the Department of Health, the Division of Environmental Quality, the Division of Arkansas State Police, the Division of Emergency Management, the Division of Labor, the Arkansas Fire Training Academy, and the Arkansas Department of Transportation, and the Adjutant General, or their designated representatives;
      2. One (1) individual representing the local emergency planning committees;
      3. Two (2) individuals from regulated entities;
      4. One (1) individual from an unregulated entity with knowledge of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; and
      5. One (1) private citizen to represent the public at large.
      1. The chair of the commission shall be elected by the members of the commission and shall serve for a two-year period.
        1. Each commission member designated in subdivisions (a)(1)(B)-(E) of this section shall serve for a term of four (4) years and shall serve at the pleasure of the Governor.
        2. The term of any member designated in subdivisions (a)(1)(B)-(E) of this section may be extended for a period of one (1) year to prevent the terms of all members from expiring in the same year.
  1. The commission shall establish local emergency planning committees within the authorized and established local emergency services jurisdiction of the state as prescribed in §§ 12-75-101 — 12-75-129.
  2. Local emergency planning committee membership, functions, and duties shall be in accordance with the federal guidelines prescribed in the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.
  3. The commission may promulgate such rules and guidelines as deemed necessary or desirable:
    1. For the training and certification of public emergency response and recovery personnel, as defined in this chapter;
    2. To ensure compliance with the appropriate federal guidelines and law governing public emergency response and recovery personnel; and
    3. To adequately administer the requirements of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq., in accordance with the provisions of the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
  4. Any person who is denied training certification under this chapter may appeal such decision to the commission by notifying the commission in writing within fifteen (15) days after the denial of certification.

History. Acts 1993, No. 567, § 4; 1995, No. 626, § 1; 1999, No. 646, § 48; 1999, No. 1164, § 121; 2017, No. 707, § 22; 2019, No. 315, § 975; 2019, No. 910, §§ 3029, 5912.

Amendments. The 1999 amendment, in (a)(1)(A), substituted “Arkansas Department of Environmental Quality” for “Department of Pollution Control and Ecology” and substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services”.

The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a)(1)(A).

The 2019 amendment by No. 315 deleted “regulations” following “rules” in the introductory language of (d).

The 2019 amendment by No. 910, in (a)(1)(A), substituted “executive heads” for “directors” and substituted “Division of Environmental Quality, the Division of Arkansas State Police, the Division of Emergency Management, the Division of Labor” for “Arkansas Department of Environmental Quality, the Department of Arkansas State Police, the Arkansas Department of Emergency Management, the Department of Labor”.

Chapter 83 Emergency Volunteer Reserve Act of 1985

Effective Dates. Identical Acts 1995, Nos. 115 and 169, § 9: Feb. 1, 1995 and Feb. 6, 1995, respectively. Emergency clause provided: “It is hereby found and determined by the General Assembly that threat of disaster emergency and the need for immediate response and recovery to protect the lives, health and welfare of the people of Arkansas require these functions to be authorized immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-83-101. Title.

This chapter may be cited as the Emergency Volunteer Reserve Act of 1995.

History. Acts 1995, No. 115, § 1; 1995, No. 169, § 1.

Cross References. Arkansas Department of Emergency Management, §§ 12-75-10912-75-111.

12-83-102. Policy and purpose.

Because the potential for a natural, technological, or national emergency-related disaster of catastrophic proportions and devastating impact requires extensive use of highly trained and skilled personnel experienced in disaster response and recovery actions, and whereas such needs and requirements may exceed the normal forces available to the State of Arkansas to prevent death and injury to its citizens and extensive loss of property, it is found and declared necessary:

  1. To establish within the Division of Emergency Management an Emergency Volunteer Reserve Cadre of persons trained and experienced in certain functions related to disaster response and recovery operations;
  2. To provide authority to the Director of the Division of Emergency Management to call the emergency volunteer reserve personnel into active service upon declaration of a state of disaster emergency by the Governor or the President of the United States or when, in the opinion of the director, a pending natural, technological, or national emergency may require the immediate services of the personnel;
  3. To provide the authority to the director to reimburse members of the cadre, when called to active duty, for out-of-pocket expenses for lodging, food, and travel at the current rate and under the provisions for reimbursement applicable to state employees of like grade and responsibility during the period of active service to the state; and
  4. To provide to the cadre the same privileges and immunities as are applicable to state employees when performing their duties on behalf of the state.

History. Acts 1995, No. 115, § 2; 1995, No. 169, § 2; 1999, No. 646, § 49; 2019, No. 910, § 5913.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (1), (2), and (3).

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (1) and (2).

12-83-103. Definitions.

As used in this chapter:

  1. “Director” means the Director of the Arkansas Department of Emergency Management, including any acting director, when such position is authorized by the Governor, and those persons officially authorized to act for the director in his or her absence or incapacitation; and
  2. “Emergency Volunteer Reserve Cadre” means persons recruited as volunteers to serve in time of emergency and to supplement the regular employees of the Arkansas Department of Emergency Management in disaster response and recovery operations.

History. Acts 1995, No. 115, § 3; 1995, No. 169, § 3; 1999, No. 646, § 50.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (1) and (2).

12-83-104. Recruitment — Service — Deployment — Discharge.

    1. The Division of Emergency Management shall establish a system to recruit personnel with special skills or experience related to emergency response and recovery operations and provide initial familiarization training and periodic proficiency training as necessary for members of the Emergency Volunteer Reserve Cadre to ensure their readiness for immediate deployment for response and recovery activities.
    2. The personnel shall be enrolled as emergency responder volunteers in accordance with § 12-75-129, and shall be eligible for immunities and exemptions in accordance with § 12-75-128 and workers' compensation benefits in accordance with § 12-75-129.
  1. The division shall establish an administrative management system to recruit and maintain qualified personnel and establish a fiscal management system to ensure prompt and reasonable reimbursement of authorized expenses.
  2. Persons recruited for the cadre may provide, but are not limited to providing, services in disaster application centers, disaster field offices, disaster survey teams, and fixed or mobile emergency operating centers and communications facilities, and may utilize other specific skills for which they may qualify or be trained to assume.
  3. Members are subject to deployment within the State of Arkansas and may, upon invocation of mutual aid agreements with other states, accompany state employees at host state or federal expense on out-of-state services.
  4. When called into active service by the Director of the Division of Emergency Management, members of the cadre shall be under the operational and administrative management of the division and such employees of that office who may be designated to supervise their duties.
    1. The director shall have the authority to immediately relieve members of the cadre for actual misconduct, perceived incompetence, or inability to perform their assigned duties.
    2. When relieved by authority other than the director's, members shall have the right of appeal to the director for reinstatement.

History. Acts 1995, No. 115, § 4; 1995 No. 169, § 4; 1999, No. 646, §§ 51-53; 2009, No. 165, § 59; 2019, No. 910, §§ 5914–5916.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in (a)(1), (b), and (e).

The 2009 amendment, in (a)(2), substituted “responder” for “services” and “12-75-129” for “12-75-127.”

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(1) and (e); and substituted “division” for “department” in (b) and (e).

12-83-105. Reimbursement.

    1. Any persons seeking enrollment into the Emergency Volunteer Reserve Cadre shall be notified that no salary, retainer, emoluments, or other monetary reimbursement shall be made for their services, except reimbursement for food, lodging, and travel utilizing a privately owned vehicle when so authorized by the Director of the Division of Emergency Management.
    2. Reimbursement shall be made in accordance with current state travel rules and at the prescribed rates in effect at the time of their services.
  1. However, this shall not disqualify any persons from future employment as emergency hires or full-time employees when hired through the prescribed state employment procedures applicable to the positions they are seeking.

History. Acts 1995, No. 115, § 4; 1995, No. 169, § 4; 2019, No. 315, § 976; 2019, No. 910, § 5917.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a)(2).

The 2019 amendment by No. 910 substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (a)(1).

Chapter 84 Arkansas HAZMAT Emergency Management Act

A.C.R.C. Notes. As to the Arkansas Department of Emergency Management superseding the Office of Fire Protection Services and the State Office of Hazardous Materials, see § 12-75-109.

Effective Dates. Acts 1995, No. 634, § 12: Mar. 14, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that due to the potential danger posed to the citizens of the State of Arkansas by the transport and storage of hazardous materials within the State of Arkansas it has been found and declared by the General Assembly that there is an immediate need to implement the provisions of this act in the interests of public safety and welfare. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

12-84-101. Title.

This chapter may be known and cited as the “Arkansas HAZMAT Emergency Management Act”.

History. Acts 1995, No. 634, § 1.

12-84-102. Applicability.

  1. Nothing in this chapter shall be construed as regulatory authority over acts, laws, rules, regulations, or guidelines of other state or federal agencies related to their designated responsibilities and duties as regulatory authorities over concerns of environmental, health, law enforcement, firefighting, medical, or other areas of responsibility.
  2. The provisions of this chapter are intended to be supplemental to current provisions of Arkansas law, and shall not be construed as repealing or superseding any other laws applicable thereto.

History. Acts 1995, No. 634, §§ 7, 8.

12-84-103. Definitions.

As used in this chapter:

  1. “Emergency management” means those activities related to disaster and emergency planning, mitigation, training, response, and recovery as prescribed in the Arkansas Emergency Services Act of 1973, § 12-75-101 et seq.;
  2. “Hazardous and toxic materials” or “HAZMAT” means those extremely hazardous substances described under 42 U.S.C. § 11023, and such other hazardous or toxic substances as may later be designated by federal regulatory agencies;
  3. “Local emergency planning committee” means those local entities authorized under the provisions of the Arkansas SERC/LEPC Act, § 12-82-101 et seq., and in accordance with the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.;
  4. “State Hazardous Materials Emergency Response Commission” means that entity created under the provisions of the Arkansas SERC/LEPC Act, § 12-82-101 et seq., and in accordance with the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; and
  5. “Superfund Amendments and Reauthorization Act of 1986, Title III” refers to the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq. and activities mandated therein.

History. Acts 1995, No. 634, § 2.

12-84-104. State Office of Hazardous Materials Emergency Management.

  1. There is created by this chapter a State Office of Hazardous Materials Emergency Management within and under the administrative and operational control of the Arkansas Department of Emergency Management.
  2. The office shall perform the necessary actions and activities as required under current federal and state laws, rules, and regulations related to emergency planning, training, response, and recovery and, as specified in the Arkansas Emergency Services Act of 1973, § 12-75-101 et seq., relating to accidental, deliberate, or act-of-God releases of hazardous or toxic materials which might threaten the public health, safety, welfare, environment, or property of the citizens of Arkansas.

History. Acts 1995, No. 634, § 3; 1999, No. 646, § 54.

Amendments. The 1999 amendment substituted “Arkansas Department of Emergency Management” for “State Office of Emergency Services” in this section.

12-84-105. Powers and duties.

The State Office of Hazardous Materials Emergency Management shall:

  1. Collect, file, and establish an accessible database and make available information derived from the required reports in 42 U.S.C. §§ 11022 and 11023, and in accordance with the laws, regulations, and guidelines established by the federal government and the State of Arkansas;
  2. Establish, staff, and manage an administrative, fiscal, and operational office to manage all programs and funds required under this chapter and in accordance with the current, accepted practices prescribed by the State of Arkansas and participating federal agencies;
  3. Establish and manage a system to train and certify emergency first responders at the minimum prescribed levels of competency and proficiency as required by federal or state law or regulation;
  4. Assist, as requested or directed by the State Hazardous Materials Emergency Response Commission's local emergency planning committees in meeting the minimum standards for planning, training, or exercising as required under the provisions of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.;
  5. Establish a system to certify local emergency planning committees as being in compliance with required actions and activities, as prescribed by the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq., and other governing directives, laws, or regulations;
  6. Manage federal or state funding programs that provide direct fiscal assistance to certified local emergency planning committees for planning, training, exercising, or administration, to ensure program and fiscal compliance with current federal and state law;
  7. Perform, manage, and oversee such other hazardous or toxic materials emergency management-related functions as may later be implemented, as directed by the Governor, the commission, and other state authority;
  8. Collect and administer fees provided in this chapter and such federal funding as may be specifically earmarked for the program of the office, in accordance with current federal and state laws, regulations, and rules and as recommended by the commission to ensure minimum compliance with federal mandates related to hazardous or toxic materials emergency preparedness;
  9. Provide a point of contact for state agencies, offices, and bureaus to assist with the coordination of specific emergency planning and training and other hazardous or toxic materials emergency management-related activities;
  10. Provide direct emergency management support to local emergency planning committees to assist them with local hazardous or toxic materials emergency management activities and to assist them with reaching and maintaining compliance with federal mandates for these programs; and
  11. Manage, as designated by the Governor or the commission, such other hazardous or toxic materials emergency management programs as may later be mandated by federal or state law, regulation, or guidance.

History. Acts 1995, No. 634, § 4.

12-84-106. Fees.

    1. Each facility required to report to the State Hazardous Materials Emergency Response Commission under the provisions of 42 U.S.C. §§ 11022 and 11023, shall pay the following annual fees to the State Office of Hazardous Materials Emergency Management:
      1. For each facility required to file one (1) or more hazardous chemical inventory reports under 42 U.S.C. § 11022, an annual fee of fifty dollars ($50.00), and an additional fee of ten dollars ($10.00) for each report filed annually, with a maximum limit of one thousand dollars ($1,000) annually for each reporting facility; and
      2. For each facility required to file one (1) or more toxic chemical release forms under the provisions of 42 U.S.C. § 11023, an annual fee of three hundred dollars ($300) and an additional fee of fifty dollars ($50.00) for each report, with a maximum limit of one thousand dollars ($1,000) annually for each reporting facility.
    2. Any business or other outlet which sells gasoline, diesel, and other motor fuel only at retail to the public shall be exempt from paying the fees outlined in this subsection.
  1. The commission shall periodically assess the adequacy of the fees established in this section, and may, through the public hearing process, modify the fees imposed for each individual report, not to exceed the stated maximum limit for each reporting facility as indicated in subsection (a) of this section.
  2. Reports under the provisions of 42 U.S.C. §§ 11022 and 11023 shall be submitted to the office in accordance with, and within the specified time frames of the the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq., and shall include a company check issued by the facility or its parent corporation for the appropriate amount of each submission, as specified in this section, and the check shall be made payable to the office.
  3. Any facility or person failing to provide the reports and pay the fees, as specified in this section, shall be liable for civil penalties in such amount as the office shall find appropriate, not to exceed ten thousand dollars ($10,000) per violation, and for payment of any expenses reasonably incurred by the state therefrom.

History. Acts 1995, No. 634, § 5; 2013, No. 996, § 1; 2015, No. 944, § 1.

Amendments. The 2013 amendment substituted “under 42 U.S.C. § 11022, an annual fee of fifty dollars ($50.00), and an additional fee of ten dollars ($10.00) for each report filed annually, with a maximum limit of one thousand dollars ($1,000)” for “under the provisions of 42 U.S.C. § 11022, an annual fee of twenty-five dollars ($25.00) and an additional fee of five dollars ($5.00) for each report filed annually, with a maximum limit of two hundred dollars ($200)” in (a)(1)(A); and substituted “three hundred dollars ($300) and an additional fee of fifty dollars ($50.00)” for “one hundred fifty dollars ($150) and an additional fee of twenty-five dollars ($25.00)” in (a)(1)(B).

The 2015 amendment substituted “one thousand dollars ($1,000)” for “four hundred dollars ($400)” in (a)(1)(B).

12-84-107. Office of Hazardous Materials Emergency Management Revolving Fund.

  1. There is created on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State a special revenue fund account to be known as the “Office of Hazardous Materials Emergency Management Revolving Fund”.
  2. All moneys collected under this subchapter shall be deposited to the credit of that fund as special revenues and shall be used by the State Office of Hazardous Materials Emergency Management to operate the office and enforce this chapter.

History. Acts 1995, No. 634, § 6.

Cross References. Office of Hazardous Materials Emergency Management Revolving Fund, § 19-6-418.

Chapter 85 Disaster Service Volunteer Leave Act

Effective Dates. Acts 1997, No. 268, § 7: Feb. 25, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas: (1) that disasters can occur at any time, as demonstrated by recent tornadoes in Mount Pleasant, Mountain View, Van Buren, and Fort Smith; (2) that State employees who want to offer their services in a disaster must now do so at great personal sacrifice; (3) that because of the great personal cost involved many state employees are unable to participate in disaster relief; (4) that certain state employees already possess many of the skills needed during times of disaster; (5) that this act provides a mechanism for state employees to contribute to disaster relief without losing personal financial support; and (6) that this act will increase the State's ability to respond to disasters by providing instant access to specifically trained disaster workers who know the State's bureaucracy and resources. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1999, No. 383, § 6: Mar. 2, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that due to the recent damage caused by tornadoes in this state the additional leave grant by this act will enable more personnel to participate in the disaster relief efforts. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date of the last house overrides the veto.”

12-85-101. Definitions.

As used in this chapter:

  1. “Certified disaster service volunteer” means a person who has completed the necessary training for being and has been certified as a disaster service technician, specialist, coordinator, or officer by the American Red Cross;
  2. “Disaster” means a natural or technological event as defined in § 12-75-103(2) in which victims cannot recover without assistance when such disaster is designated at Level II or above in the American National Red Cross Regulations and Procedures;
  3. “Specialized disaster relief” means one (1) or more of the following American Red Cross service categories in which a certified disaster service volunteer is trained:
    1. Shelter management;
    2. Mass feeding;
    3. Family services;
    4. Health services;
    5. Public assistance inquiries;
    6. Damage assessment;
    7. A support function for services provided under subdivisions (3)(A)-(F) of this section; and
    8. Any other service performed for the American Red Cross for which training is required; and
    1. “State agency” means any agency, authority, board, bureau, commission, council, department, office, or officer of the state receiving an appropriation by the General Assembly.
    2. The term does not include state-supported institutions of higher learning or any county, municipality, school district, or other political subdivision of the State of Arkansas.

History. Acts 1997, No. 268, § 1.

12-85-102. Terms of leave.

  1. An employee of a state agency or an employee of a state-supported institution of higher learning may be granted leave from work with pay for not more than fifteen (15) working days in any calendar year to participate in specialized disaster relief, without loss of seniority, pay, annual leave, sick leave, compensatory time, offset time, or overtime wages if the employee:
    1. Is trained and certified as a disaster service volunteer by the American Red Cross;
    2. Has specialized disaster relief services that are requested by the American Red Cross in connection with a disaster; and
    3. Obtains consent from the chief executive officer of his or her state agency or state-supported institution of higher learning.
  2. The state agency or state-supported institution of higher learning shall compensate an employee granted leave under this section at the employee's regular rate of pay for those regular work hours during which the employee is absent from work.
  3. Leave under this subchapter shall be granted only for disaster relief services occurring within the State of Arkansas or for disaster relief services occurring within states contiguous to the State of Arkansas.
  4. An employee deemed to be on leave under this chapter shall not be deemed to be an employee of the state or of a state-supported institution of higher learning for purposes of workers' compensation.

History. Acts 1997, No. 268, § 2; 1999, No. 383, § 1; 1999, No. 489, § 1.

Amendments. The 1999 amendment by No. 383, inserted “or state-supported institution of higher learning” in (a) and (b); in (a), inserted “or an employee of a state-supported institution of higher learning” and “or her”; inserted “or of a state-supported institution of higher learning” in (d); and made stylistic changes.

The 1999 amendment by No. 489, substituted “calendar year” for “twelve-month period” in (a); and made a minor stylistic change.

Cross References. Attendance and leave, § 21-4-101 et seq.

Workers' Compensation, § 11-9-101 et seq.

12-85-103. Limitation on certified volunteers — Lists, reports, guidelines, etc.

    1. Notwithstanding the provisions of § 12-85-102, the number of state employees and employees of state-supported institutions of higher learning certified as disaster service volunteers shall not exceed one hundred (100) participants at any one (1) time.
    2. A list of such employees shall be maintained by the American Red Cross, with pertinent information provided to the state employer or state-supported institution of higher learning of each disaster service volunteer.
  1. Within sixty (60) days of any request made by the American Red Cross, a report shall be prepared by the American Red Cross and submitted to the Department of Finance and Administration stating the reasons and needs for any request made.
  2. The American Red Cross and the respective agencies with employees participating in the disaster service volunteer program shall promulgate necessary guidelines and directives to implement this chapter.

History. Acts 1997, No. 268, § 3; 1999, No. 383, § 2.

Amendments. The 1999 amendment inserted “and employees of state-supported institutions of higher learning” in (a)(1); inserted “or state-supported institution of higher learning” in (a)(2); and made stylistic changes.

Chapter 86 Emergency Preparedness

Subchapter 1 — General Provisions

[Reserved]

Subchapter 2 — Emergency Preparedness for Child Care Facilities Act

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-86-201. Title.

This subchapter shall be known and may be cited as the “Emergency Preparedness for Child Care Facilities Act”.

History. Acts 2007, No. 816, § 1.

12-86-202. Legislative intent.

The General Assembly finds that:

  1. Early care and education facilities at which children from birth to four (4) years of age and school-age children may spend part or all of their days may not be known to emergency preparedness agencies and thus may be overlooked in first response activities and in recovery planning following major disasters;
  2. The health and social-emotional, cognitive, and physical development of young children may be compromised by severe traumatic experiences;
  3. Teachers and caregivers of young children will improve the children's health and well being by being prepared for orderly evacuations and rapid reunification of young children with their parents during emergencies;
  4. Child care facilities are crucial to the economic redevelopment of communities following major disasters; and
  5. State child care and emergency management agencies should take steps to share data and coordinate planning, response, and recovery of child care facilities during and after major disasters.

History. Acts 2007, No. 816, § 2.

12-86-203. Division of Child Care and Early Childhood Education policies.

The Director of the Division of Child Care and Early Childhood Education of the Department of Human Services shall coordinate efforts with other state agencies and appropriate organizations to:

    1. Share with the Arkansas Department of Emergency Management on a quarterly basis an integrated list of all licensed child care facilities and all known license-exempt child care facilities, including without limitation physical addresses, maximum capacity, emergency contact information, and hours of operation.
    2. The integrated list is to be sorted by county;
  1. Include early childhood emergency preparedness courses and workshops that address specific risk factors and evacuation procedures in particular geographic areas among approved courses and workshops for meeting requirements for in-service training for licensed child care providers in those geographic areas;
  2. Incorporate specific indicators of emergency preparedness linked to specific disaster risk factors in licensed child care providers' geographic areas into each level of any quality ratings above minimum licensing standards; and
    1. Require a child care facility to have a written plan for evacuation in the event of fire, natural disaster, or other threatening situation that may pose a health or safety hazard to the children in the child care facility.
    2. Require the plan to include without limitation:
      1. A designated relocation site and evacuation route;
      2. Procedures for notifying parents of the relocation and ensuring family reunification;
      3. Procedures to address the needs of individual children, including children with special needs;
      4. Instructions relating to the training of staff or the reassignment of staff duties, as appropriate;
      5. Coordination with local emergency management officials; and
      6. A program to ensure that appropriate staff are familiar with the plan's components.

History. Acts 2007, No. 816, § 3; 2009, No. 165, § 60; 2009, No. 801, § 1.

A.C.R.C. Notes. Pursuant to § 1-2-207(b) and Acts 2009, No. 165, § 62, the amendments to former subdivisions (2)-(4) of this section by Acts 2009, No. 165, § 60, are superseded by the amendments to those subdivisions by Acts 2009, No. 801, § 1.

Amendments. The 2009 amendment by No. 165 inserted “designated emergency” near the end of (2) and (3) and in (4); inserted “licensed child care” near the end of (4) and in (6); in (2), inserted “child-care” following ”license-exempt” and “emergency” following “three (3) designated”; and substituted “Arkansas Department of Emergency Management” for “state emergency management agency” in (3).

The 2009 amendment by No. 801 deleted “and status as tuition subsidy, meal subsidy, state-fund pre-kindergarten, and quality-rated facilities” at the end of (1)(A); deleted (2) through (4) and redesignated the remaining subdivision; added present (4); and made related changes.

12-86-204. Division of Emergency Management policies.

The Director of the Division of Emergency Management shall coordinate efforts with other state agencies and appropriate organizations to:

  1. Disseminate county-level lists of all licensed childcare facilities and all known license-exempt childcare facilities, including without limitation physical address, maximum capacity, hours of operation, and emergency contact information, to county governments for use in search and rescue during emergencies and disasters;
  2. Share a periodically updated statewide list of designated emergency shelters, both local shelters and mass evacuation shelters, with the Division of Child Care and Early Childhood Education, state child care subsidy program, and state child and adult nutrition program when the list is available; and
  3. Include all licensed childcare facilities and all known license-exempt childcare facilities where critical facilities such as schools, hospitals, and nursing homes are mentioned in the state response plan, emergency preparedness exercises, or other guiding documents and activities.

History. Acts 2007, No. 816, § 4; 2009, No. 165, § 61; 2019, No. 910, § 5918.

Amendments. The 2009 amendment inserted “child care” following “license-exempt” in (1); substituted “Division of Child Care and Early Childhood Education of the Department of Human Services” for “state child care licensing agency” in (2); and inserted “all licensed child care facilities and all known license-exempt” in (3).

The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in the introductory language.

Chapter 87 Uniform Emergency Volunteer Health Practitioners Act

Cross References. Arkansas Emergency Services Act of 1973, § 12-75-101 et seq.

Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq.

12-87-101. Title.

This chapter may be cited as the “Uniform Emergency Volunteer Health Practitioners Act”.

History. Acts 2009, No. 432, § 1.

12-87-102. Definitions.

In this chapter:

  1. “Disaster relief organization” means an entity that provides emergency or disaster relief services that include health or veterinary services provided by volunteer health practitioners and that:
    1. is designated or recognized as a provider of those services pursuant to a disaster response and recovery plan adopted by an agency of the federal government or the Arkansas Department of Emergency Management; or
    2. regularly plans and conducts its activities in coordination with an agency of the federal government or the Arkansas Department of Emergency Management.
  2. “Emergency” means an event or condition that is a disaster emergency under § 12-75-107 or § 12-75-108.
  3. “Emergency declaration” means a declaration of emergency issued by a person authorized to do so under the laws of this state, executive order or proclamation of the Governor, or § 12-75-107 or § 12-75-108.
  4. “Emergency Management Assistance Compact” means the interstate compact approved by Congress by Public Law No. 104-321, 110 Stat. 3877, codified at § 12-49-401 et seq.
  5. “Entity” means a person other than an individual.
  6. “Health facility” means an entity licensed under the laws of this or another state to provide health or veterinary services.
  7. “Health practitioner” means an individual licensed under the laws of this or another state to provide health or veterinary services.
  8. “Health services” means the provision of treatment, care, advice or guidance, or other services, or supplies, related to the health or death of individuals or human populations, to the extent necessary to respond to an emergency, including:
    1. The following, concerning the physical or mental condition or functional status of an individual or affecting the structure or function of the body:
      1. preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care; and
      2. counseling, assessment, procedures, or other services;
    2. Sale or dispensing of a drug, a device, equipment, or another item to an individual in accordance with a prescription; and
    3. Funeral, cremation, cemetery, or other mortuary services.
  9. “Host entity” means an entity operating in this state which uses volunteer health practitioners to respond to an emergency.
  10. “License” means authorization by a state to engage in health or veterinary services that are unlawful without the authorization. The term includes authorization under the laws of this state to an individual to provide health or veterinary services based upon a national certification issued by a public or private entity.
  11. “Person” means an individual, corporation, business trust, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  12. “Scope of practice” means the extent of the authorization to provide health or veterinary services granted to a health practitioner by a license issued to the practitioner in the state in which the principal part of the practitioner's services are rendered, including any conditions imposed by the licensing authority.
  13. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
  14. “Veterinary services” means the provision of treatment, care, advice or guidance, or other services, or supplies, related to the health or death of an animal or to animal populations, to the extent necessary to respond to an emergency, including:
    1. diagnosis, treatment, or prevention of an animal disease, injury, or other physical or mental condition by the prescription, administration, or dispensing of vaccine, medicine, surgery, or therapy;
    2. use of a procedure for reproductive management; and
    3. monitoring and treatment of animal populations for diseases that have spread or demonstrate the potential to spread to humans.
  15. “Volunteer health practitioner” means a health practitioner who provides health or veterinary services, whether or not the practitioner receives compensation for those services. The term does not include a practitioner who receives compensation pursuant to a preexisting employment relationship with a host entity or affiliate which requires the practitioner to provide health services in this state, unless the practitioner is not a resident of this state and is employed by a disaster relief organization providing services in this state while an emergency declaration is in effect.

History. Acts 2009, No. 432, § 1.

12-87-103. Applicability to volunteer health practitioners.

This chapter applies to volunteer health practitioners registered with a registration system that complies with § 12-87-105 and who provide health or veterinary services in this state for a host entity while an emergency declaration is in effect.

History. Acts 2009, No. 432, § 1.

12-87-104. Regulation of services during emergency.

  1. While an emergency declaration is in effect, the Department of Health may limit, restrict, or otherwise regulate:
    1. the duration of practice by volunteer health practitioners;
    2. the geographical areas in which volunteer health practitioners may practice;
    3. the types of volunteer health practitioners who may practice; and
    4. any other matters necessary to coordinate effectively the provision of health or veterinary services during the emergency.
  2. An order issued pursuant to subsection (a) may take effect immediately, without prior notice or comment, and is not a rule within the meaning of the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
  3. A host entity that uses volunteer health practitioners to provide health or veterinary services in this state shall:
    1. consult and coordinate its activities with the Department of Health to the extent practicable to provide for the efficient and effective use of volunteer health practitioners; and
    2. comply with any laws other than this chapter relating to the management of emergency health or veterinary services, including the Emergency Medical Services Revolving Fund Act, § 20-13-101 et seq.

History. Acts 2009, No. 432, § 1.

12-87-105. Volunteer health practitioner registration systems.

  1. To qualify as a volunteer health practitioner registration system, a system must:
    1. accept applications for the registration of volunteer health practitioners before or during an emergency;
    2. include information about the licensure and good standing of health practitioners which is accessible by authorized persons;
    3. be capable of confirming the accuracy of information concerning whether a health practitioner is licensed and in good standing before health services or veterinary services are provided under this chapter; and
      1. be designated by the Arkansas Department of Emergency Management as a registration system for purposes of this chapter.
      2. The Arkansas Department of Emergency Management may consider and may approve a request for the designation of a registration system submitted by a disaster relief organization, licensing board, national or regional association of licensing boards or healthcare practitioners, health facility that provides comprehensive inpatient and outpatient healthcare services, or host entity, and may on its own initiative approve registration systems established by this state or other states funded through the United States Department of Health and Human Services under Section 3197 of the Public Health Services Act, 42 U.S.C. § 247d, or by medical reserve corps units formed under Section 2801 of the Public Health Services Act, 42 U.S.C. § 300hh.
  2. While an emergency declaration is in effect, the Arkansas Department of Emergency Management, a person authorized to act on behalf of the Arkansas Department of Emergency Management, or a host entity, may confirm whether volunteer health practitioners utilized in this state are registered with a registration system that complies with subsection (a). Confirmation is limited to obtaining identities of the practitioners from the system and determining whether the system indicates that the practitioners are licensed and in good standing.
  3. Upon request of a person in this state authorized under subsection (b), or a similarly authorized person in another state, a registration system located in this state shall notify the person of the identities of volunteer health practitioners and whether the practitioners are licensed and in good standing.
  4. A host entity is not required to use the services of a volunteer health practitioner even if the practitioner is registered with a registration system that indicates that the practitioner is licensed and in good standing.

History. Acts 2009, No. 432, § 1.

A.C.R.C. Notes. Subdivision (a)(4) of this section significantly differs from Section 5(a)(4) of the official version of the Uniform Emergency Volunteer Health Practitioners Act drafted by the National Conference of Commissioners on Uniform State Laws.

12-87-106. Recognition of volunteer health practitioners licensed in other states.

  1. While an emergency declaration is in effect, a volunteer health practitioner, registered with a registration system that complies with § 12-87-105 and licensed and in good standing in the state upon which the practitioner's registration is based, may practice in this state to the extent authorized by this chapter as if the practitioner were licensed in this state.
  2. A volunteer health practitioner qualified under subsection (a) is not entitled to the protections of this chapter if the practitioner is licensed in more than one state and any license of the practitioner is suspended, revoked, or subject to an agency order limiting or restricting practice privileges, or has been voluntarily terminated under threat of sanction.

History. Acts 2009, No. 432, § 1.

12-87-107. No effect on credentialing and privileging.

  1. In this section:
    1. “Credentialing” means obtaining, verifying, and assessing the qualifications of a health practitioner to provide treatment, care, or services in or for a health facility.
    2. “Privileging” means the authorizing by an appropriate authority, such as a governing body, of a health practitioner to provide specific treatment, care, or services at a health facility subject to limits based on factors that include license, education, training, experience, competence, health status, and specialized skill.
  2. This chapter does not affect credentialing or privileging standards of a health facility and does not preclude a health facility from waiving or modifying those standards while an emergency declaration is in effect.

History. Acts 2009, No. 432, § 1.

12-87-108. Provision of volunteer health or veterinary services — Administrative sanctions.

  1. Subject to subsections (b) and (c), a volunteer health practitioner shall adhere to the scope of practice for a similarly licensed practitioner established by the licensing provisions, practice acts, or other laws of this state.
  2. Except as otherwise provided in subsection (c), this chapter does not authorize a volunteer health practitioner to provide services that are outside the practitioner's scope of practice, even if a similarly licensed practitioner in this state would be permitted to provide the services.
  3. The Arkansas Department of Emergency Management may modify or restrict the health or veterinary services that volunteer health practitioners may provide pursuant to this chapter. An order under this subsection may take effect immediately, without prior notice or comment, and is not a rule within the meaning of the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
  4. A host entity may restrict the health or veterinary services that a volunteer health practitioner may provide pursuant to this chapter.
  5. A volunteer health practitioner does not engage in unauthorized practice unless the practitioner has reason to know of any limitation, modification, or restriction under this section or that a similarly licensed practitioner in this state would not be permitted to provide the services. A volunteer health practitioner has reason to know of a limitation, modification, or restriction or that a similarly licensed practitioner in this state would not be permitted to provide a service if:
    1. the practitioner knows the limitation, modification, or restriction exists or that a similarly licensed practitioner in this state would not be permitted to provide the service; or
    2. from all the facts and circumstances known to the practitioner at the relevant time, a reasonable person would conclude that the limitation, modification, or restriction exists or that a similarly licensed practitioner in this state would not be permitted to provide the service.
  6. In addition to the authority granted by law of this state other than this chapter to regulate the conduct of health practitioners, a licensing board or other disciplinary authority in this state:
    1. may impose administrative sanctions upon a health practitioner licensed in this state for conduct outside of this state in response to an out-of-state emergency;
    2. may impose administrative sanctions upon a practitioner not licensed in this state for conduct in this state in response to an in-state emergency; and
    3. shall report any administrative sanctions imposed upon a practitioner licensed in another state to the appropriate licensing board or other disciplinary authority in any other state in which the practitioner is known to be licensed.
  7. In determining whether to impose administrative sanctions under subsection (f), a licensing board or other disciplinary authority shall consider the circumstances in which the conduct took place, including any exigent circumstances, and the practitioner's scope of practice, education, training, experience, and specialized skill.

History. Acts 2009, No. 432, § 1.

12-87-109. Relation to other laws.

  1. This chapter does not limit rights, privileges, or immunities provided to volunteer health practitioners by laws other than this chapter. Except as otherwise provided in subsection (b), this chapter does not affect requirements for the use of health practitioners pursuant to the Emergency Management Assistance Compact.
  2. The Arkansas Department of Emergency Management, pursuant to the Emergency Management Assistance Compact and the Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq., may incorporate into the emergency forces of this state volunteer health practitioners who are not officers or employees of this state, a political subdivision of this state, or a municipality or other local government within this state.

History. Acts 2009, No. 432, § 1.

A.C.R.C. Notes. This section differs from Section 9 of the official version of the Uniform Emergency Volunteer Health Practitioners Act drafted by the National Conference of Commissioners on Uniform State Laws. This section includes a reference to the Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq., that is not in the official version. However, the Legislative Note to the official version indicates that a state should reference any emergency compacts in which the state is a party.

12-87-110. Regulatory authority.

The Arkansas Department of Emergency Management may promulgate rules to implement this chapter. In doing so, the Arkansas Department of Emergency Management shall consult with and consider the recommendations of the entity established to coordinate the implementation of the Emergency Management Assistance Compact, and the Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq. and shall also consult with and consider rules promulgated by similarly empowered agencies in other states to promote uniformity of application of this chapter and make the emergency response systems in the various states reasonably compatible.

History. Acts 2009, No. 432, § 1.

A.C.R.C. Notes. This section differs from Section 10 of the official version of the Uniform Emergency Volunteer Health Practitioners Act drafted by the National Conference of Commissioners on Uniform State Laws. This section includes a reference to the Interstate Civil Defense and Disaster Compact, § 12-76-101 et seq., that is not in the official version. However, the Legislative Note to the official version indicates that a state should reference any emergency compacts in which the state is a party.

12-87-111. Limitations on civil liability for volunteer health practitioners.

  1. Subject to subsection (b), a volunteer health practitioner who receives compensation of five hundred dollars ($500) or less per year for providing health or veterinary services pursuant to this chapter is not liable for damages for an act or omission of the practitioner in providing those services. Reimbursement of, or allowance for, reasonable expenses, or continuation of salary or other remuneration while on leave, is not compensation under this subsection.
  2. This section does not limit the liability of a volunteer health practitioner for:
    1. willful misconduct or wanton, grossly negligent, reckless, or criminal conduct;
    2. an intentional tort;
    3. breach of contract;
    4. a claim asserted by a host entity or by an entity located in this or another state which employs or uses the services of the practitioner; or
    5. an act or omission relating to the operation of a motor vehicle, vessel, aircraft, or other vehicle.
  3. A person that, pursuant to this chapter, operates, uses, or relies upon information provided by a volunteer health practitioner registration system is not liable for damages for an act or omission relating to that operation, use, or reliance unless the act or omission is an intentional tort or is willful misconduct or wanton, grossly negligent, reckless, or criminal conduct.

History. Acts 2009, No. 432, § 1.

A.C.R.C. Notes. This section adopts Alternative B of Section 11 of the official version of the Uniform Emergency Volunteer Health Practitioners Act drafted by the National Conference of Commissioners on Uniform State Laws. An optional subsection (d) in Alternative B was not adopted.

12-87-112. Workers' compensation coverage.

  1. In this section, “injury” means a physical or mental injury or disease for which an employee of this state who is injured or contracts the disease in the course of the employee's employment would be entitled to benefits under the workers' compensation or occupational disease law of this state.
  2. A registered volunteer health practitioner who dies or is injured as the result of providing health or veterinary services pursuant to this chapter is deemed to be an employee of this state for the purpose of receiving benefits for the death or injury under the workers' compensation or occupational disease law of this state if:
    1. the practitioner is not otherwise eligible for such benefits for the injury or death under the law of this or another state; and
    2. the practitioner, or in the case of death the practitioner's personal representative, elects coverage under the workers' compensation or occupational disease law of this state by making a claim under that law; and
    3. the practitioner is acting under the control or direction of the Arkansas Department of Emergency Management, the Governor, or another state government agency.
  3. The Arkansas Department of Emergency Management shall certify to the Public Employee Claims Division of the State Insurance Department the names and registration information for each registered volunteer health practitioner working in this state under this chapter.
    1. Benefits payable for the injury or death of a registered volunteer health practitioner covered by this chapter shall be limited to the provisions of the Workers' Compensation Law, § 11-9-101 et seq. Benefits are payable if the injury or death occurred while the person was:
      1. actually engaged in emergency service duties, either during training or during a period of emergency; and
      2. under the supervision and instruction and subject to the order or control of, or serving pursuant to a request of, the Governor, the Arkansas Department of Emergency Management, or the chief executive officer of a county or local government unit making use of registered volunteer health practitioners.
    2. The remedy provided in this section shall be the exclusive remedy as against the state and political subdivisions of the state.
      1. For the purpose of workers' compensation coverage in cases of injury to or death of an individual, a registered volunteer health practitioner is deemed a state employee and shall receive compensation and a survivor of a registered volunteer health practitioner shall receive death benefits in the same manner as a regular state employee for injury or death arising out of and in the course of activities as registered volunteer health practitioners.
      2. If the registered volunteer health practitioner was under the order or control of a state agency when injured or killed, compensation and benefits shall be charged against the experience rate of the Arkansas Department of Emergency Management and paid from the appropriate state workers' compensation fund.
      1. For the purpose of subdivision (d)(3) of this section, the weekly compensation benefits for a registered volunteer health practitioner who receives no monetary compensation for services rendered as a worker under this chapter shall be calculated based upon the wages received from his or her regular or usual employment, the same as a regular state employee, with respect to injury, disability, or death.
      2. The reimbursement of twenty-five dollars ($25.00) or less for out-of-pocket expenses for gasoline, oil, uniforms, required equipment, or similar expenses incurred in response to an emergency situation shall not be construed to be monetary compensation for the registered volunteer health practitioner.

History. Acts 2009, No. 432, § 1.

A.C.R.C. Notes. This section significantly differs from Section 12 of the official version of the Uniform Emergency Volunteer Health Practitioners Act drafted by the National Conference of Commissioners on Uniform State Laws. Subdivision (b)(3) of this section is not in the official version, subsection (c) of this section does not match the subsection (c) in the official version, and subsection (d) of this section is not in the official version. Some of these differences may be attributed to the Legislative Notes to the official version indicating that states should clarify how this section fits within existing state workers' compensation or occupational disease laws.

12-87-113. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History. Acts 2009, No. 432, § 1.

12-87-114. [Reserved.]

This chapter takes effect October 1, 2009.

History. Acts 2009, No. 432, § 1.

12-87-115. Effective date.

Chapter 88 Business Rapid Response to State Disasters Facilitation Act

Effective Dates. Acts 2015, No. 864, § 2: Mar. 31, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that disasters and emergencies cause significant damage to Arkansas's economy and the residents of the state; that it is in the best interests of the state to enable people and businesses to repair the damage caused by disasters and emergencies as efficiently as possible; that it is in the best interests of the state to encourage people and businesses outside of Arkansas to aid the state in repairing damage caused by disasters and emergencies by removing certain tax and regulatory requirements; and that this act is immediately necessary for the efficient recovery of the state and its residents from disasters and emergencies. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

12-88-101. Title.

This chapter shall be known and may be cited as the “Business Rapid Response to State Disasters Facilitation Act”.

History. Acts 2015, No. 864, § 1.

12-88-102. Legislative findings.

The General Assembly finds that:

  1. During times of storm, flood, fire, earthquake, hurricane, and other disasters or emergencies, many businesses bring resources and personnel from other states into Arkansas on a temporary basis to expedite the often enormous and overwhelming task of cleaning up, restoring, and repairing damaged buildings, equipment, and property and building replacement facilities in the state;
  2. These disaster-response activities may require out-of-state businesses, including out-of-state affiliates of businesses based in the state, to bring in resources, property, and personnel that previously have had no connection to the state to perform activities in the state, including without limitation repairing, renovating, installing, and building facilities and rendering services and other business activities for which personnel may be located in the state for extended periods of time;
  3. During the temporary period of time out-of-state businesses are operating in the state solely for the purpose of helping the state recover from a disaster or emergency, these out-of-state businesses and the individual employees of the out-of-state businesses should not be burdened by regulatory requirements and taxes that would normally apply to the activities that the out-of-state businesses and their employees are conducting in the state;
  4. The state's nexus and residency thresholds are intended for businesses and individuals in the state as part of the conduct of regular business operations and those who intend to reside in the state, and these thresholds should not be directed at out-of-state businesses and individuals coming into the state on a temporary basis to provide help and assistance in response to a declared state disaster or emergency; and
  5. To ensure that out-of-state businesses may focus on providing a quick response to the needs of the state and its citizens during a declared state disaster or emergency, it is appropriate for the General Assembly to determine that certain activities performed for a reasonable time before, during, and after a state disaster or emergency is declared to repair the often devastating damage to critical infrastructure in the state should not establish presence, residency, or doing business in the state or any other criteria for purposes of state and local taxes, licensing, and regulatory requirements.

History. Acts 2015, No. 864, § 1.

12-88-103. Definitions.

As used in this chapter:

  1. “Critical infrastructure” means property and equipment, including without limitation buildings, offices, lines, poles, pipes, and structures, owned or used by the following:
    1. A communications network;
    2. An electric generation, transmission, or distribution system;
    3. A gas distribution system;
    4. A water pipeline; or
    5. A support facility that is related to an entity listed in subdivisions (1)(A)–(D) of this section and services multiple customers or persons;
  2. “Declared state disaster or emergency” means a disaster or emergency event:
    1. For which a Governor's executive order or proclamation has been issued;
    2. For which a presidential declaration of a major disaster or emergency has been issued; and
    3. Within the state:
      1. For which a good faith response effort is required; and
      2. That the Director of the Division of Emergency Management designates as a disaster or emergency upon request of and notification by a registered business;
  3. “Disaster-related or emergency-related work” means repairing, renovating, installing, building, and rendering services or other business activities that relate to critical infrastructure that has been damaged, impaired, or destroyed by a declared state disaster or emergency;
  4. “Disaster response period” means a period that begins ten (10) days before the first day of the earlier of the Governor's executive order or proclamation, the President's declaration of a major disaster or emergency, or designation by the director and extends until the later of sixty (60) calendar days after the declared state disaster or emergency or the date authorized by the director;
    1. “Out-of-state business” means a business entity:
      1. That, except for providing disaster-related or emergency-related work:
        1. Has no presence in this state;
        2. Conducts no business in this state; and
        3. Has no registration, tax filing, or nexus in this state during the tax year immediately preceding the declared state disaster or emergency; and
      2. The services of which are requested by a registered business, a state government, or a local government for purposes of performing disaster-related or emergency-related work in the state.
    2. “Out-of-state business” includes without limitation:
      1. A business entity that is affiliated with a registered business in the state solely through common ownership; and
      2. The employees of the business entity;
  5. “Out-of-state employee” means an individual who does not work in the state except for providing disaster-related or emergency-related work during a disaster response period; and
  6. “Registered business” means a business entity that is registered to do business in Arkansas before the relevant declared state disaster or emergency occurs.

History. Acts 2015, No. 864, § 1; 2019, No. 910, § 5919.

Amendments. The 2019 amendment substituted “Division of Emergency Management” for “Arkansas Department of Emergency Management” in (2)(C)(ii).

12-88-104. Exemptions from certain taxes and regulatory requirements.

    1. An out-of-state business that conducts operations within the state for the purpose of performing work or services related to a declared state disaster or emergency during a disaster response period is exempt from:
      1. Registering, filing, and remitting state or local taxes; and
      2. Complying with state licensing, certification, and registration requirements.
    2. The exemptions provided in subdivision (a)(1) of this section apply to state and local business and occupational licensing and registration requirements and state and local taxes or fees, including without limitation:
      1. Unemployment insurance contributions;
      2. State and local occupational licensing fees and privilege taxes;
      3. State and local income taxes;
      4. State and local sales and use taxes on property temporarily brought into the state for use during the disaster response period and subsequently removed from the state; and
      5. State licensing, certification, and registration requirements.
      1. For purposes of a state or local tax on or measured by, in whole or in part, net or gross income or receipts, all activity of the out-of-state business that is conducted in this state under this chapter is exempt from filing requirements for the state or local tax, including without limitation any filing required for a unitary or combined group of which the out-of-state business may be a part.
      2. For the purpose of apportioning income, revenue, or receipts, the performance by an out-of-state business of disaster-related or emergency-related work under this chapter shall not be sourced to or otherwise impact or increase the amount of income, revenue, or receipts apportioned to this state.
  1. During a disaster response period, an out-of-state employee is not:
    1. Required to file or pay Arkansas income taxes;
    2. Subject to Arkansas income tax withholdings; or
    3. Required to file or pay any other state or local tax or fee, including related state or local employer withholding and remittance obligations but not including transaction taxes or fees described in § 12-88-105.
  2. However, out-of-state businesses and out-of-state employees are subject to any applicable ad valorem taxes.

History. Acts 2015, No. 864, § 1.

12-88-105. Application of transaction taxes and fees.

An out-of-state business and an out-of-state employee shall pay state and local transaction taxes and fees, including without limitation:

  1. Motor fuel taxes;
  2. Distillate special fuel taxes;
  3. Sales and use taxes on materials and services consumed or used in the state;
  4. Hotel taxes;
  5. Car rental taxes and fees; and
  6. Any other tax or fee that applies to goods or services that the out-of-state business or out-of-state employee purchases for use or consumption in this state during the disaster response period, unless the tax or fee is otherwise exempt during the disaster response period.

History. Acts 2015, No. 864, § 1.

12-88-106. Business or employee activity after disaster response period.

The exemptions provided under this chapter do not apply to an out-of-state business or out-of-state employee that remains in the state after a disaster response period with respect to activities conducted in this state after the disaster response period.

History. Acts 2015, No. 864, § 1.

12-88-107. Notification required.

    1. An out-of-state business that enters the state, upon request, shall provide to the Arkansas Department of Emergency Management a statement that the out-of-state business is in the state for the purpose of responding to a disaster or emergency.
    2. The statement required under subdivision (a)(1) of this section shall include the out-of-state business's:
      1. Name;
      2. State of domicile;
      3. Principal business address;
      4. Federal tax identification number;
      5. Date of entry into the state; and
      6. Contact information.
    1. Upon request by the department, a registered business shall provide the information required in subsection (a) of this section for an affiliate that is an out-of-state business.
    2. In addition to the information required under subsection (a) of this section, the notification provided under subdivision (b)(1) of this section shall include the contact information for the registered business.

History. Acts 2015, No. 864, § 1.

12-88-108. Supplemental.

This chapter is supplemental to the Arkansas Emergency Services Act of 1973, § 12-75-101 et seq., and any other law applicable to businesses and individuals acting as emergency responders.

History. Acts 2015, No. 864, § 1.

12-88-109. Administration — Rules.

The Arkansas Department of Emergency Management shall:

    1. Promulgate rules necessary to administer and implement this chapter.
    2. The Arkansas Department of Emergency Management shall consult with the Department of Finance and Administration in promulgating rules relating to the application of and exemption from state and local taxes to out-of-state businesses and out-of-state employees under this chapter;
  1. Develop and issue forms and procedures to facilitate the implementation of this chapter; and
  2. Maintain a public record of any designations of disasters or emergencies in the state.

History. Acts 2015, No. 864, § 1.