Subtitle 1. General Provisions

Chapter 1 General Provisions

16-1-101. Recidivism definition and reporting.

  1. As used in this title, “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, § 3.

A.C.R.C. Notes. Acts 2013, No. 1030, § 4, provided: “Temporary legislation.

“(a) The Department of Community Correction shall prepare a report on the number of persons under its supervision for the last five (5) years who would be considered recidivists under the definition provided in this act.

“(b) The report shall be completed by October 1, 2013, and copies shall be sent to the Governor and Legislative Council.”

Chapter 2 Oaths And Affirmations

Cross References. Affirmation in lieu of oath, § 16-55-120.

Definition of “oath,” § 5-53-101.

Effective Dates. Acts 1945, No. 19, § 3: approved Feb. 6, 1945. Emergency clause provided: “It is hereby found as a fact that members of the armed services of the United States of America may acknowledge conveyances before commissioned officers of any branch of said armed services, regardless of the amount of any money or value of the property involved, yet they cannot verify a pleading or make oath to an affidavit before such an officer; that this condition results in hardship to and discrimination against the members of the armed services of the United States of America, especially those in foreign fields; that this act is necessary for the preservation of the public peace, health and safety; and that, therefore, this act shall take effect and be in force upon, from and after its passage.”

Research References

ALR.

Failure to swear or irregularity in swearing witnesses appearing before grand jury as ground for dismissal of indictment. 23 A.L.R.4th 154.

Am. Jur. 58 Am. Jur. 2d, Oath and Affirmation, § 1 et seq.

Ark. L. Rev.

Theory of Testimonial Competency and Privilege, 4 Ark. L. Rev. 377.

Witnesses, 27 Ark. L. Rev. 229.

C.J.S. 67 C.J.S., Oaths and Affirmations, § 1 et seq.

Subchapter 1 — General Provisions

16-2-101. Methods of administration.

  1. The usual mode of administering oaths practiced by the person who swears, laying his or her hand on and kissing the Gospels, shall be observed in all cases in which an oath is or may be required by law to be administered, except as otherwise provided in this chapter.
  2. Every person who shall desire it shall be permitted to swear with an uplifted hand in the following form: “You do solemnly swear, etc.”
  3. Every person who shall declare that he or she has conscientious scruples against taking an oath or swearing in any form shall be permitted to make his or her solemn declaration or affirmation in the following form: “You do solemnly and truly declare and affirm”.
  4. Whenever the court or magistrate by whom any person is about to be sworn, shall be satisfied that the person has any peculiar mode of swearing connected with or in addition to any of the forms mentioned in this section, which mode is more solemn and obligatory in the opinion of the person, the court or magistrate may adopt that mode of swearing.
  5. Every person believing in any religion other than the Christian religion shall be sworn according to the peculiar ceremonies of his or her religion, if there are any such ceremonies, instead of any of the other modes prescribed in this section.

History. Rev. Stat., ch. 105, §§ 1-5; C. & M. Dig., §§ 4175-4179; Pope's Dig., §§ 5185-5189; A.S.A. 1947, §§ 40-101 — 40-105.

Case Notes

Affidavit.

This section does not prescribe the only method of administering oaths. Signing an affidavit for the purpose of swearing to it may be sufficient to justify a finding that the party was sworn. Cox v. State, 164 Ark. 126, 261 S.W. 303 (1924).

Where affidavit supporting search warrant stated on its face that it was subscribed and sworn to before municipal judge and the judge testified that he questioned the witness about the contents of the affidavit, asked if the statements therein were true, and had witness sign in his presence, it was unimportant that the judge did not require the witness to raise his right hand and state orally that the statements in the affidavit were “the truth, the whole truth, and nothing but the truth, so help me God,” and the affidavit was properly sworn to under oath. Wilson v. State, 10 Ark. App. 176, 662 S.W.2d 204 (1983).

Cited: Thomas v. Hawkins, 217 Ark. 787, 233 S.W.2d 247 (1950).

16-2-102. Officials who may administer.

Every court and judge, including former judges of courts of record who served at least four (4) years, justices and clerks thereof, and all justices of the peace, shall have the power to administer oaths and affirmations to witnesses and others concerning any thing or proceeding pending before them.

History. Rev. Stat., ch. 105, § 9; C. & M. Dig., § 4180; Pope's Dig., § 5190; Acts 1983, No. 850, § 4; A.S.A. 1947, § 40-106.

16-2-103. Perjury.

In all cases in which an oath is required or authorized by law, it may be taken in any of the forms prescribed in this chapter. Every person swearing, affirming, or declaring in any such form, or any form authorized by law, shall be deemed to have been lawfully sworn and to be guilty of perjury for corruptly and falsely swearing, affirming, or declaring, in the same manner as if he or she had sworn by laying his or her hand on the Gospels and kissing them.

History. Rev. Stat., ch. 105, § 10; C. & M. Dig., § 4181; Pope's Dig., § 5191; A.S.A. 1947, § 40-107.

16-2-104. Persons in armed services.

  1. Any person in any branch of the armed services of the United States of America may make oath to any affidavit before any commissioned officer of any branch of the services, and the certificate of the officer before whom the oath may be made shall be proof of the making of the oath.
  2. The officer shall show in his or her certificate his or her rank, the branch of service in which he or she is an officer, his or her outfit, and, if and when permissible, the place where the oath was made.

History. Acts 1945, No. 19, § 1; A.S.A. 1947, § 40-108.

Subchapter 2 — Uniform Unsworn Foreign Declarations Act

16-2-201. Short title.

This subchapter may be cited as the Uniform Unsworn Foreign Declarations Act.

History. Acts 2017, No. 889, § 3.

16-2-202. Definitions.

In this subchapter:

  1. “Boundaries of the United States” means the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.
  2. “Law” includes the federal or a state constitution, a federal or state statute, a judicial decision or order, a rule of court, an executive order, and an administrative rule, regulation, or order.
  3. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  4. “Sign” means, with present intent to authenticate or adopt a record:
    1. to execute or adopt a tangible symbol; or
    2. to attach to or logically associate with the record an electronic symbol, sound, or process.
  5. “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.
  6. “Sworn declaration” means a declaration in a signed record given under oath. The term includes a sworn statement, verification, certificate, and affidavit.
  7. “Unsworn declaration” means a declaration in a signed record that is not given under oath, but is given under penalty of perjury.

History. Acts 2017, No. 889, § 3.

16-2-203. Applicability.

This subchapter applies to an unsworn declaration by a declarant who at the time of making the declaration is physically located outside the boundaries of the United States whether or not the location is subject to the jurisdiction of the United States. This subchapter does not apply to a declaration by a declarant who is physically located on property that is within the boundaries of the United States and subject to the jurisdiction of another country or a federally recognized Indian tribe.

History. Acts 2017, No. 889, § 3.

16-2-204. Validity of unsworn declaration.

  1. Except as otherwise provided in subsection (b), if a law of this state requires or permits use of a sworn declaration, an unsworn declaration meeting the requirements of this subchapter has the same effect as a sworn declaration.
  2. This subchapter does not apply to:
    1. a deposition;
    2. an oath of office;
    3. an oath required to be given before a specified official other than a notary public;
    4. a declaration to be recorded pursuant to:
      1. Title 16, Chapter 47;
      2. Title 18, Subtitle 2; or
      3. Title 26, Chapter 60; or
    5. an oath required by § 28-25-106.

History. Acts 2017, No. 889, § 3.

16-2-205. Required medium.

If a law of this state requires that a sworn declaration be presented in a particular medium, an unsworn declaration must be presented in that medium.

History. Acts 2017, No. 889, § 3.

16-2-206. Form of unsworn declaration.

An unsworn declaration under this subchapter must be in substantially the following form:

I declare under penalty of perjury under the law of Arkansas that the foregoing is true and correct, and that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.

Executed on the day of , , at

(date) (month) (year)

(city or other location, and state) (country)

(printed name)

(signature)

History. Acts 2017, No. 889, § 3.

16-2-207. 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 2017, No. 889, § 3.

16-2-208. Relation to Electronic Signatures In Global And National Commerce Act.

This subchapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., as it existed on January 1, 2017, but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), as it existed on January 1, 2017, or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b), as it existed on January 1, 2017.

History. Acts 2017, No. 889, § 3.

Chapter 3 Legal Notices And Advertisements

Cross References. Publication of laws, reports, etc., § 1-3-101 et seq.

Effective Dates. Acts 1891, No. 157, § 9: effective on passage.

Acts 1893, No. 181, § 3: effective on passage.

Acts 1899, No. 189, § 3: effective on passage.

Acts 1929, No. 92, § 3: Mar. 7, 1929.

Acts 1931, No. 32, § 3: approved Feb. 17, 1931. Emergency clause provided: “This act being for the immediate preservation of the public health, peace and safety, an emergency is declared and it is ordered that it be in force and take effect from and after its passage.”

Acts 1933, No. 66, § 3: approved Mar. 2, 1933. Emergency clause provided: “It is ascertained and hereby declared that the fees for the publication of legal notices and advertisements and advertisements of delinquent tax sales are unreasonably high, the payment of which works a hardship on large numbers of the citizens of this State, and an emergency is therefore hereby declared to exist and in order to immediately protect the public health, peace and safety, this act shall go into effect from and after its passage.”

Acts 1937, No. 169, § 2: effective on passage.

Acts 1937, No. 263, § 4: Mar. 17, 1937. Emergency clause provided: “Because of the frequent questions arising in the minds of the public of the proper publication in which to place legal advertising, this act is necessary for the immediate preservation of the public peace, health and safety and shall take effect and be in force from and after its passage and approval.”

Acts 1943, No. 57, § 3: effective on passage.

Acts 1979, No. 18, § 4: Jan. 30, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the requirement that legal notices must be published in newspapers published in the applicable town or county has resulted in an undue burden being placed upon persons attempting to comply with such acts due to the lack of newspapers being published in such towns and counties, and that this Act is necessary to immediately remedy this inequity. 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 take effect and be in force from the date of its approval.”

Acts 1988 (3rd Ex. Sess.), No. 34, § 3: Feb. 19, 1988. Emergency clause provided: “It is hereby found and determined by the General Assembly that when a legal newspaper surrenders its second-class mailing privilege and is subsequently sold, it is unclear as to what requirements must be met by the resulting newspaper in order to become a legal newspaper; that this Act clarifies the law in this respect; that until this act becomes effective the legal newspaper status of some successor newspapers will be in doubt; and that this Act should become effective immediately in order to eliminate the confusion as soon as possible. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the peace, health and safety shall be in full force and effect from and after its passage and approval.”

Research References

ALR.

General circulation newspaper, what constitutes within meaning of state statutes requiring publication of official notices and the like in such newspaper. 24 A.L.R.4th 822.

Am. Jur. 58 Am. Jur. 2d, Notice, § 1 et seq.

58 Am. Jur. 2d, Newsp., § 33 et seq.

C.J.S. 66 C.J.S., Notice, § 1 et seq.

66 C.J.S., Newsp., § 8 et seq.

16-3-101. Publication of required advertisements generally.

  1. All advertisements and orders of publication required by law or order of any court, or in conformity with any deed of trust, or real estate mortgage, or chattel mortgage where the amount therein received exceeds the sum of three hundred fifty dollars ($350), or power of attorney or administrators' notices, to be made, shall be published in at least one (1) newspaper published and having a bona fide circulation in the county in which the proceedings are had, to which the advertisement or order of publication shall pertain.
  2. If there is no newspaper published in the county, then publication shall be made by posting five (5) written or printed notices in five (5) of the most public places in the county.
  3. If there is more than one (1) legal newspaper in a county, publication may be made in each newspaper.
    1. As to amounts under three hundred fifty dollars ($350), written or printed notices may be posted in five (5) conspicuous places in the county.
    2. Notice shall be served in all cases upon the debtor as summons are served.
  4. This section shall not apply to warning orders governed by Rule 4(f) of the Arkansas Rules of Civil Procedure.

History. Acts 1891, No. 157, § 4, p. 269; 1893, No. 181, § 1, p. 329; 1899, No. 189, § 1, p. 333; C. & M. Dig., § 6807; Pope's Dig., § 8776; Acts 1969, No. 116, § 4; A.S.A. 1947, § 15-101; Acts 2003, No. 1185, § 37.

Case Notes

Authorized Newspaper.

The test whether a publication may be classed as a newspaper authorized to publish legal notices is whether the publication regularly carries a record of events of general interest to the public as a whole. Williamson v. Nixon, 187 Ark. 762, 62 S.W.2d 24 (1933).

A daily publication specializing in news relating to the courts and business transactions, having a yearly subscription rate, and carrying news of events of general public nature is a “newspaper” authorized to print legal advertisements. Williamson v. Nixon, 187 Ark. 762, 62 S.W.2d 24 (1933).

Compliance Presumed.

Where the record recited that notice was given in the manner prescribed by law, the presumption, in the absence of proof to the contrary, is that there has been compliance with this section. Smith v. First Nat'l Bank, 119 Ark. 235, 177 S.W. 895 (1915).

Contracts.

This section does not prohibit parties from contracting in regard to the manner of advertising mortgaged property for sale in case of default in payment of the debt. Clark v. Wommack, 192 Ark. 895, 95 S.W.2d 891 (1936).

Discretion of Court.

The time and place and notice of sale under this section are within the discretion of the trial court. Brown v. Merchants & Planters Bank & Trust Co., 202 Ark. 684, 152 S.W.2d 548 (1941).

Irregularities Cured.

After confirmation of sale, any irregularities of notice will be cured. Carpenter v. Zarbuck, 74 Ark. 474, 86 S.W. 299 (1905); Simmons v. A.C. Carter & Co., 125 Ark. 547, 189 S.W. 176 (1916).

Sufficiency of Notice.

Where a county has two judicial districts, a tax sale will be held invalid when the land lies in one judicial district and is advertised for sale in a newspaper published in the other judicial district. Wolf & Bailey v. Phillips, 107 Ark. 374, 155 S.W. 924 (1913).

Where a deed of trust given upon land was less than $300, in a proceeding to foreclose, the requirements were met by the trustee where he gave notice by publication in a newspaper only. Wilkinson v. Hudspeth, 134 Ark. 132, 203 S.W. 263 (1918).

Foreclosure sale under deed of trust held void for the reason that no service was had upon the debtor as required by subsection (e) (now subdivision (d)(2)) of this section. Hunt v. Boyce, 176 Ark. 303, 3 S.W.2d 342 (1928).

Cited: Yell County v. Wills, 83 Ark. 229, 103 S.W. 618 (1907); Gleason v. Boone, 123 Ark. 523, 185 S.W. 1093 (1916).

16-3-102. Time advertisement to run.

  1. When any legal advertisement or notice is required by law to be published and no definite time is given for it to run, it shall be construed to mean for one (1) week.
  2. When a definite time is specified, it shall be construed to mean once a week during the time so specified, except that when a definite time is specified for publication of constitutional amendments proposed by the General Assembly, it shall be construed to mean publication in four (4) weekly issues of some newspaper in each county as is provided by law.

History. Acts 1891, No. 157, § 6, p. 269; 1893, No. 181, § 2, p. 329; C. & M. Dig., § 6809; Pope's Dig., § 8785; Acts 1969, No. 116, § 5; A.S.A. 1947, § 15-106; Acts 1991, No. 798, § 2.

Case Notes

Applicability.

This section is general in its nature and operates upon the publication of notices under subsequent acts which come within its terms. Pope v. City of Nashville, 131 Ark. 429, 199 S.W. 101 (1917).

Initiative Measures.

Publication of initiative measures affecting local or county government is governed by the general law as to legal notices, and a local petition published in conformity therewith is sufficient. Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72 (1935).

Cited: Harrison Elec. Co. v. Citizens' Ice & Storage Co., 149 Ark. 502, 232 S.W. 932 (1921).

16-3-103. Payment and rates.

    1. When any notice or advertisement relating to any cause, matter, or thing in any court of record shall be required by law or the order of any court to be published, the notice or advertisement, when duly published, shall be paid for by the party at whose instance it was published. This payment, or so much thereof as is deemed reasonable, may be taxed as other costs otherwise allowed by the proper courts in the course of the proceedings to which the advertisement relates.
    2. Where there is more than one (1) newspaper published in any county, the advertisement shall be made in the newspaper designated by the attorney for the party causing the advertisement to be made.
  1. When any advertisement shall be made by a public officer thereunto authorized by law, the reasonable expense for advertising shall be allowed and paid out of the state or county treasury as other demands and charges of a like nature are allowed and paid.
  2. When a publication of a legal notice of any kind is allowed or required by law, except real property and personal property delinquent tax rates, a newspaper publishing the notice shall charge and receive not more than its regular classified advertising rate for publication.

History. Acts 1891, No. 157, §§ 1-3, p. 269; C. & M. Dig., §§ 6803-6805; Acts 1929, No. 92, § 1; 1933, No. 66, § 1; 1937, No. 169, § 1; Pope's Dig., §§ 8772-8774; Acts 1947, No. 123, § 1; 1955, No. 60, § 1; 1969, No. 116, § 1; 1977, No. 547, § 1; A.S.A. 1947, §§ 15-102 — 15-104.

Research References

Ark. L. Rev.

Rates for Legal Advertisements, 9 Ark. L. Rev. 394.

Case Notes

Liability for Fees.

Delivery by the circuit clerk of legal notices to the newspaper to be published as required by law did not make the clerk personally liable for the publisher's fees. Eddins v. Williams, 161 Ark. 226, 255 S.W. 868 (1923).

Rates.

In absence of stipulation to the contrary, publisher is entitled to charge the maximum rates. Reed v. Doniphan Lumber Co., 91 Ark. 303, 121 S.W. 275 (1909).

16-3-104. Proof of publication.

  1. When any notice or advertisement shall be required by law or the order of any court to be published in any newspaper or made in conformity with any mortgage, deed of trust, power of attorney, or administrator's notice, the affidavit of the editor, proprietor, manager, or chief accountant, with a copy of the advertisement annexed, stating the number of times and the date of the papers in which the advertisement was published, shall be sufficient evidence of publication.
  2. If the notice is given by five (5) written or printed notices, according to the provisions of § 16-3-101, then the affidavit of the party giving the notice, properly verified before some officer authorized to administer oaths and showing the time and manner of giving the notice, shall be sufficient evidence of publication.
  3. No editor, proprietor, manager, or chief accountant shall be required to make the affidavit until his or her legal fee is paid.

History. Acts 1891, No. 157, § 5, p. 269; 1899, No. 189, § 2, p. 333; C. & M. Dig., § 6808; Pope's Dig., § 8784; A.S.A. 1947, § 15-105.

Case Notes

Affidavits.

An affidavit so worded that the affiant swore only to the date and insertion of the publication, and merely stated his connection with the newspaper and its circulation, was defective. Baker v. York, 65 Ark. 142, 45 S.W. 57 (1898).

Affidavit made by an accountant, but not by the chief accountant, was defective in that it did not comply with this section. Miller County v. Gazola, 65 Ark. 353, 46 S.W. 423 (1898).

Although an affidavit is sufficient evidence under this section, an affidavit is not the exclusive evidence. Whitford v. Whitford, 100 Ark. 63, 139 S.W. 653 (1911); Allen v. Allen, 126 Ark. 164, 189 S.W. 841 (1916); Straughan v. Bennett, 153 Ark. 254, 240 S.W. 30 (1922); Mahan v. Wilson, 169 Ark. 117, 273 S.W. 383 (1925).

Amendment of Proof.

An amendment correcting proof of publication of a warning order to obtain constructive service on nonresident defendants can be filed after judgment. Blackwell Oil & Gas Co. v. Maddux, 181 Ark. 726, 27 S.W.2d 514 (1930).

Certified Copies.

In suit to confirm tax title, it was proper for court to admit in evidence a certified copy of the publication of the delinquent lands. Stout v. Healey, 216 Ark. 821, 228 S.W.2d 45 (1950).

Compliance.

Proof of publication of notice of sale held to be in substantial compliance with this section, and, if not, would be cured by confirmation. Christopher v. Wasson, 198 Ark. 297, 128 S.W.2d 1012 (1939).

Cited: Covington v. Berry, 76 Ark. 460, 88 S.W. 1005 (1905); Hildreth v. Taylor, 117 Ark. 465, 175 S.W. 40 (1915); Clarke v. Federal Land Bank, 197 Ark. 1094, 126 S.W.2d 601 (1939).

16-3-105. Authorized publications — Legal newspapers.

  1. As used in this section, “legal newspaper” means a publication bearing a fixed title or name, published at a fixed place of business, regularly issued at fixed intervals as frequently as one (1) time each week and having a second-class mailing privilege, and being not less than four (4) pages of five (5) columns each.
  2. The primary function of such a publication shall be to inform, instruct, enlighten, and entertain, and to be an intangible service to which the general public as a whole resorts for intelligence of passing events of a political, religious, commercial, or social nature, for local and general current happenings, editorial comment, announcements, miscellaneous reading matter, advertisements, and other notices.
    1. For a newspaper to be eligible to publish legal notices and to be classified as a legal newspaper, it shall have been published at regular intervals continuously during a period of at least twelve (12) months, following the securing of a second-class mailing privilege, or as a direct legal successor of such a publication issued during the immediate prior period of at least twelve (12) months, or, in the case of a legal newspaper which surrenders its second-class mailing privilege and is subsequently sold, the resulting newspaper under new ownership is a legal newspaper if the purchased newspaper had been a legal newspaper within twelve (12) months prior to its sale. The newspaper shall be circulated and distributed from an established place of business to subscribers and readers generally of all classes in the county or counties in which it is circulated for a definite price or consideration for each copy or at a fixed price per annum, which price or consideration shall be fixed by the publisher at what he or she considers the value of the publication based upon the news value and service value it contains and not upon the physical or concrete worth of the raw materials so sold.
    2. It is ascertained by the General Assembly that the value of a newspaper or other publication coming within the requisites of this section is in the service that it renders to the community or communities it serves.
    1. The circulation of a legal newspaper shall be proven bona fide by at least fifty percent (50%) of the subscribers thereto having paid cash for their subscriptions to the newspaper, or its agents, or through recognized news dealers, over a period of six (6) months.
    2. A legal newspaper must publish an average of forty percent (40%) news matter which has sufficient merit to have created a following of paid readers.
    1. The definition of “legal newspaper” provided in this section shall not be construed to classify as legal newspapers publications such as racing forms, shopping guides, and similar publications devoted primarily to advertising.
    2. Special class publications having a bona fide circulation such as patriotic organs, religious publications, construction journals, and other similar class publications shall not be affected under the provisions of this section.

History. Acts 1937, No. 152, §§ 1-5; 1937, No. 263, §§ 1, 2; Pope's Dig., §§ 8777-8781; Acts 1943, No. 57, §§ 1, 2; A.S.A. 1947, §§ 15-108 — 15-112; Acts 1988 (3rd Ex. Sess.), No. 34, § 1.

16-3-106. Authorized publications — Newspapers of general circulation.

All statutes requiring publication of legal notices by insertions in newspapers published either in the applicable town or county, and also requiring general circulation of the newspapers in the town or county, may be complied with, if no such newspaper is actually published in the town or county, by publication in a newspaper having general circulation in the town or county, irrespective of whether the newspaper is published and printed in the town or county or outside the boundaries of the State of Arkansas.

History. Acts 1979, No. 18, § 1; A.S.A. 1947, § 15-116.

16-3-107. Authorized publications — Weekly newspapers of patriotic organizations.

  1. Any weekly newspaper published in the State of Arkansas by any statewide patriotic organization and having a circulation of five hundred (500) or more in the county in which the newspaper is published is declared to be a medium or forum in which there may be published all legal and judicial advertisements, notices, orders, reports, judgments, decrees, and sales in the county.
  2. All legal and judicial advertisements, notices, orders, reports, judgments, decrees, and sales published in such weekly newspapers are, and shall be deemed to have been, properly published within the meaning of the acts governing the publication of legal and judicial advertisements, notices, orders, reports, judgments, decrees, and sales.

History. Acts 1931, No. 32, §§ 1, 2; Pope's Dig., §§ 8787, 8788; A.S.A. 1947, §§ 15-113, 15-114.

16-3-108. Authorized publications — Trade journals.

Whenever it appears to any state, county, or municipal agency or department that a special class of readers should be reached in order to obtain a wider range of bids, the department or agency may, in addition to the legal notices and advertising provided by law, place the advertising or notices in any recognized trade publication or construction journal published in the State of Arkansas reaching the special class. The rates regularly charged by the trade publication or construction journal may be paid by the state, county, or municipal department or agency.

History. Acts 1937, No. 222, § 1; Pope's Dig., § 8783; A.S.A. 1947, § 15-115.

Chapter 4 Uniform Interstate And International Procedure Act

Publisher's Notes. Acts 1963, No. 101, § 3, which concerned determination of foreign law, was superseded by the enactment of the Arkansas Rules of Civil Procedure, the Rules of Appellate Procedure, and the Rules for Inferior Courts pursuant to the supersession rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978. See Rule 44.1, ARCP. Some provisions of this chapter may have been similarly superseded.

Effective Dates. Acts 1993, No. 7, § 6: Feb. 1, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that when the General Assembly enacted Arkansas' long-arm statute, the Uniform Interstate and International Procedures Act (Arkansas Code Annotated §§ 16-4-101 et seq.), it was not intended to exclusively define the basis for jurisdiction over non-resident corporate defendants, but rather was intended to expand the jurisdiction of Arkansas Courts, it being long held by the Arkansas bench and bar that service upon an agent appointed by a foreign corporation to receive process in Arkansas confers personal jurisdiction in a transitory action regardless of the long-arm statute, which long-held concept appears to have been struck down by the Arkansas Supreme Court in Malone & Hyde, Inc. v. Chisley, 308 Ark. 308 (1992). 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.”

Research References

Ark. L. Rev.

Uniform Interstate and International Procedural Act, 17 Ark. L. Rev. 118.

Jurisdiction — Nonresident Corporation Doing Business Within the State, 17 Ark. L. Rev. 198.

Legislative Notes — No. 119 — Personal Jurisdiction Over Out-of-State Defendants, 18 Ark. L. Rev. 124.

Conflict of Laws — Arkansas 1959-64, 18 Ark. L. Rev. 135.

The Uniform Long-Arm Act in Arkansas. The Far Side of Jurisdiction, 22 Ark. L. Rev. 627.

Conflict of Laws — Arkansas 1964-68, 23 Ark. L. Rev. 1.

Conflict of Laws — Personal Jurisdiction and the Long-Arm Statute, 24 Ark. L. Rev. 106.

Civil Procedure — In Personam Jurisdiction Based Upon a Single Transaction, 24 Ark. L. Rev. 322.

Grounds for Venue in Arkansas — A Survey, 25 Ark. L. Rev. 468.

Civil Procedure — Arkansas' Non-Resident Motorist Statute — What is Sufficient Compliance?, 26 Ark. L. Rev. 63.

Conflict of Laws: Arkansas 1969-72, 27 Ark. L. Rev. 1.

Conflict of Laws: Arkansas — The Choice-Influencing Considerations, 28 Ark. L. Rev. 199.

Recent Developments: Long Arm Jurisdiction: Defendant's Motion to Quash Service Under State Long Arm Statute Shifts Burden of Proof to Moving Party. Hawes Firearm Co. v. Roberts, 263 Ark. 510, 565 S.W.2d 620 (1978), 32 Ark. L. Rev. 606.

Simmons, Hutson v. Fehr Bros., Inc.: A Step in the Wrong Direction, 33 Ark. L. Rev. 553.

Leflar, Conflict of Laws: Arkansas, 1978-82, 36 Ark. L. Rev. 191.

Watkins, The Arkansas Long-Arm Statute: Just How Long Is It?, 40 Ark. L. Rev. 21.

Leflar, Conflict of Laws: Arkansas, 1983-87, 41 Ark. L. Rev. 63.

Note, The Reach of the Long-Arm After Malone & Hyde, Inc. v. Chisley: Still a “Vague and Tangled” Area of the Law?, 47 Ark. L. Rev. 209.

U. Ark. Little Rock L.J.

Owen, Survey of Arkansas Law: Civil Procedure, 2 U. Ark. Little Rock L.J. 177.

Note, Quasi-in-rem Jurisdiction — Attachment of Insurer's Obligation to Nonresident Defendant (Seider Rule) Unconstitutional, 4 U. Ark. Little Rock L.J. 125.

Notes, Civil Procedure — Minimum Contacts — Eighth Circuit Survey. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651 (8th Cir. 1982), 5 U. Ark. Little Rock L.J. 553.

Arkansas Law Survey, Greene, Civil Procedure, 7 U. Ark. Little Rock L.J. 167.

Arkansas Law Survey, Nelson, Conflicts of Law, 7 U. Ark. Little Rock L.J. 173.

Arkansas Law Survey, Bradley, Civil Procedure, 8 U. Ark. Little Rock L.J. 107.

Case Notes

Constitutionality.

This chapter is procedural and not substantive and its retroactive application to a cause of action that accrued before its enactment is not unconstitutional. Safeway Stores, Inc. v. Shwayder Bros., 238 Ark. 768, 384 S.W.2d 473 (1964).

This chapter does not unconstitutionally discriminate between resident and nonresident defendants as to venue. Bowsher v. Digby, 243 Ark. 799, 422 S.W.2d 671 (1968).

In General.

This chapter is, at least in part, identical to ARCP 4(e). A.O. Smith Harvestore Prods., Inc. v. Burnside, 282 Ark. 27, 665 S.W.2d 288 (1984).

Cited: National Sur. Corp. v. Inland Properties, Inc., 286 F. Supp. 173 (E.D. Ark. 1968); Toronto-Dominion Bank v. Hall, 367 F. Supp. 1009 (E.D. Ark. 1973); Martin v. Kelley Elec. Co., 371 F. Supp. 1225 (E.D. Ark. 1974); Purser v. Corpus Christi State Nat'l Bank, 256 Ark. 452, 508 S.W.2d 549 (1974); Dutton-Lainson Co. v. McGee, 260 Ark. 494, 542 S.W.2d 739 (1976); Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976); Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

16-4-101. Personal jurisdiction of Arkansas courts.

  1. Definition of “Person”. As used in this section, “person” includes an individual or his or her executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state.
  2. Personal Jurisdiction. The courts of this state shall have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution.
  3. Service. When the exercise of personal jurisdiction is authorized by this section, service may be made either within or outside this state.
  4. Inconvenient Forum. When the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.

History. Acts 1963, No. 101, § 1; 1975, No. 252, § 1; A.S.A. 1947, § 27-2502; Acts 1993, No. 7, § 1; 1995, No. 486, § 1.

Publisher's Notes. Acts 1993, No. 7, § 2, provided that the provisions of this act, being procedural in nature, shall apply retroactively and prospectively.

Research References

Ark. L. Notes.

Copeland, A Brief Survey of Some Important 1991 and 1992 Insurance Law Decisions, 1992 Ark. L. Notes 85.

Ark. L. Rev.

Note, The Reach of the Long-Arm After Malone & Hyde, Inc. v. Chisley: Still a “Vague and Tangled” Area of the Law?, 47 Ark. L. Rev. 209.

Recent Developments, 48 Ark. L. Rev. 1093.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Note, Davis v. St. John's Health System, Inc.: General Jurisdiction, The Door is Ajar, But How Far Will It Open? 56 Ark. L. Rev. 647 (2003).

Rachel A. Orr, Recent Developments: Exercise of Personal Jurisdiction over Foreign Corporation Violates Due Process — Yanmar Co., Ltd. v. Slater , 65 Ark. L. Rev. 163 (2012).

Robin E. Wright, Case Note: Conspiring to Create Jurisdiction: Gibbs v. PrimeLending and the Conspiracy Theory of In Personam Jurisdiction in Arkansas, 65 Ark. L. Rev. 723 (2012).

Recent Developments: Contract Faxed to Arkansas by Non-Resident Defendants Is Sufficient To Establish Personal Jurisdiction, 66 Ark. L. Rev. 601 (2013).

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 16 U. Ark. Little Rock L.J. 85.

U. Ark. Little Rock L. Rev.

Kathy McCarroll, Note: Reassessing Personal Jurisdiction in Arkansas and the Eighth Circuit After Goodyear Dunlop Tires Operations v. Brown, 131 S. Ct. 2846 (2011) and J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), 36 U. Ark. Little Rock L. Rev. 229 (2014).

Case Notes

Constitutionality.

Former subdivision C.1.(e) does not violate Ark. Const., Art. 2, §§ 2, 3, or 8. Bowsher v. Digby, 243 Ark. 799, 422 S.W.2d 671 (1968).

In General.

The long-arm statute displaced the common law principle of the transitory cause of action as a rationale for asserting jurisdiction over corporate defendants and required that the cause of action arise out of prescribed conduct such as the transaction of business in Arkansas. To the extent that Running v. Southwest Freight Lines, 227 Ark. 839, 303 S.W.2d 578, (1957), stands for the principle that service upon an agent appointed by a foreign corporation to receive process in this state confers personal jurisdiction in a transitory action regardless of the long-arm statute, it is overruled. Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992).

Five-factor test previously used by the Supreme Court of Arkansas to assess specific personal jurisdiction is no longer applicable. Instead, the following criteria are necessary for specific personal jurisdiction: (1) the defendant must purposefully avail himself or herself of the privilege of acting in the forum state or causing a consequence in the forum state; (2) the cause of action must arise from or relate to the defendant's contacts with the forum state; and (3) the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of personal jurisdiction over the defendant reasonable. Lawson v. Simmons Sporting Goods, Inc., 2019 Ark. 84, 569 S.W.3d 865 (2019).

Construction.

This section should be liberally construed. Martin v. Kelley Elec. Co., 371 F. Supp. 1225 (E.D. Ark. 1974).

Although this section is to be liberally construed, there must still be some evidence upon which a prima facie showing of jurisdiction may be found to exist. Williams v. GMC, 573 F. Supp. 577 (E.D. Ark. 1983).

Burden of Proof.

A nonresident defendant filing a motion to dismiss or quash on grounds that there are not sufficient contacts within the state to be personally in the state, has the burden of going forward and offering proof to sustain the allegations of the motion, and if the motion is denied, this does not mean that the plaintiff is relieved from establishing jurisdiction; it merely means that at that point in the proceedings a prima facie case of jurisdiction sufficient to take the cause to trial has been made. Hawes Firearm Co. v. Roberts, 263 Ark. 510, 565 S.W.2d 620 (1978).

Under Arkansas law, the plaintiff has the burden of proving that a nonresident defendant has sufficient contacts with Arkansas to be sued in personam; however, the nonresident defendant filing a motion to dismiss or quash has the burden of going forward and offering proof to sustain the allegations of no jurisdiction. Jeanway Indus., Inc. v. Knudson Mfg. Co., 533 F. Supp. 678 (W.D. Ark. 1981).

Challenging a Finding of Jurisdiction.

A writ of prohibition will not lie in a case where the personal jurisdiction turns upon whether the activities of the defendant were sufficient to satisfy the “minimum contacts” test applied under this section in order to allow the court to exercise the maximum jurisdiction allowable by due process, since the “minimum contacts” test is a question of fact, and in cases where jurisdiction depends upon the establishment of facts, the issue of jurisdiction must be decided by the trial court, subject to correction on appeal rather than by a writ of prohibition. Wisconsin Brick & Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981).

When a trial court has made a determination that a person's contacts with Arkansas are sufficient to satisfy the minimum contacts requirement of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057 (1945), and former subdivision C.1.(a) of this section, the proper manner of challenging the decision is by appeal and not by a petition for a writ of prohibition. Fausett v. Host, 315 Ark. 527, 868 S.W.2d 472 (1994).

Contacts Found.

Circuit court did not err in denying a nonresident defendant's motion to dismiss based on a lack of personal jurisdiction where the protective order only prohibited the nonresident from contacting the resident plaintiff and did not impose any sort of affirmative duty on the nonresident. Beason v. Parks, 2015 Ark. App. 246, 459 S.W.3d 841 (2015).

Contacts Not Found.

Motion to dismiss was granted because although plaintiff argued that general personal jurisdiction was satisfied because auto parts manufactured by defendants were ultimately included in cars sold extensively in the state, this “stream of commerce” argument was not an adequate basis for the exercise of general jurisdiction. P.A.M. Transp., Inc. v. Faurecia Auto. Seating, Inc., No. 11-5130, 2011 U.S. Dist. LEXIS 124189 (W.D. Ark. Oct. 26, 2011).

Summary judgment was properly awarded to appellee, a resident of Hawaii, in an action for defamation filed by appellant, an Arkansas resident, because the exchange of an email between appellee and a resident of Mississippi did not meet the minimum-contacts test; exercise of jurisdiction would offend traditional notions of fair play and substantial justice. Morris v. Christopher, 2013 Ark. App. 312 (2013).

In an action for defamation, false light, violation of the Arkansas Deceptive Trade Practices Act, and interference with business expectancy, arising from two postings made on logistics industry websites concerning an allegedly nonconforming shipment of frozen chicken, the court did not have general jurisdiction over defendants given the limited scope of defendants' contacts with Arkansas. Sioux Transp., Inc. v. XPO Logistics, No. 5:15-CV-05265, LLC, 2015 U.S. Dist. LEXIS 171801 (W.D. Ark. Dec. 22, 2015).

In an action for defamation, false light, violation of the Arkansas Deceptive Trade Practices Act, and interference with business expectancy, defendants did not have sufficient contacts with Arkansas to confer specific jurisdiction on the court where (1) mail and telephone contacts alone were insufficient to confer personal jurisdiction, and (2) most of the performance relating to the parties' agreement occurred outside of Arkansas, on the road from Alabama to Michigan. Sioux Transp., Inc. v. XPO Logistics, No. 5:15-CV-05265, LLC, 2015 U.S. Dist. LEXIS 171801 (W.D. Ark. Dec. 22, 2015).

Circuit court did not err in determining that it lacked personal jurisdiction over appellee; she prepared only one Arkansas tax return for appellant, he did not claim that the form was improperly prepared, and as neither party was an Arkansas resident, there was no interest of the forum state in providing a forum for its residents, and there was nothing about the sole act of preparing and signing one tax return that would have caused appellee to reasonably anticipate being brought into an Arkansas court. Reveley v. Roth, 2016 Ark. App. 248, 491 S.W.3d 490 (2016).

Contracts.

Contractual relationships held sufficient to establish jurisdiction over nonresident. Waukesha Bldg. Corp. v. Jameson, 246 F. Supp. 183 (W.D. Ark. 1965); Dreyfus Co. v. Royster Co., 487 F. Supp. 531 (E.D. Ark. 1980); Mountaire Feeds, Inc. v. Agro Impex, 677 F.2d 651 (8th Cir. 1982); SD Leasing, Inc. v. Al Spain & Assocs., 277 Ark. 178, 640 S.W.2d 451 (1982); McMahen v. Paramount Holdings, Inc., 604 F. Supp. 1099 (E.D. Ark. 1985); Rice v. SD Leasing, Inc., 14 Ark. App. 180, 686 S.W.2d 450 (1985); Ultimatics, Inc. v. Minimatic, Inc., 715 F. Supp. 1448 (W.D. Ark. 1989).

Negotiations within the state leading up to the execution of the contract constituted such minimal contacts as were sufficient to give a court in Arkansas jurisdiction over a suit on such contract. Thompson v. Ecological Science Corp., 421 F.2d 467 (8th Cir. 1970); Arkansas-Best Freight Sys. v. Youngblood, 359 F. Supp. 1115 (W.D. Ark. 1973).

Contractual relationship held insufficient to establish jurisdiction over nonresident. Arkansas Poultry Coop. v. Red Barn Sys., 468 F.2d 538 (8th Cir. 1972); Williams v. GMC, 573 F. Supp. 577 (E.D. Ark. 1983); Moran v. Bombardier Credit, Inc., 39 Ark. App. 122, 839 S.W.2d 538 (1992).

Evidence did not establish a contract to supply services or things in Arkansas which would bring nonresident under Arkansas jurisdiction. Roger N. Joyce & Assocs. v. Paoli Steel Corp., 491 F. Supp. 1095 (E.D. Ark. 1980).

Agreement that lease would be governed by and construed under the laws of Arkansas did not give an Arkansas court personal jurisdiction in and of itself, but did provide another contact with this state which went to satisfy the minimum contacts requirement. SD Leasing, Inc. v. Al Spain & Assocs., 277 Ark. 178, 640 S.W.2d 451 (1982).

A single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state. SD Leasing, Inc. v. Al Spain & Assocs., 277 Ark. 178, 640 S.W.2d 451 (1982); Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 655 S.W.2d 468 (1983).

In an Arkansas resident's breach of contract suit alleging an agreement that the Arkansas resident would pursue a wrongful death action in Arkansas on a Virginia resident's behalf in return for fifty percent of the Virginia resident's award, an Arkansas trial court had personal jurisdiction over the Virginia resident under subdivision B. of this section because the Virginia resident had purposefully availed herself of the process and protection of the Arkansas courts to procure a large sum of money, and should have reasonably anticipated being required to appear in an Arkansas court if a dispute arose regarding an agreement, performed in Arkansas, that was an integral part in her procurement of that money. Roberts v. Bendos, 102 Ark. App. 358, 285 S.W.3d 687 (2008), rehearing denied, — Ark. App. —, — S.W.3d —, 2008 Ark. App. LEXIS 626 (Aug. 20, 2008).

Where a Bermuda corporation and its principal negotiated a contract in Arkansas with an Arkansas corporation to ship Arkansas poultry to Bermuda, the Arkansas court's exercise of personal jurisdiction under subdivisions A. and B. of this section over the Bermuda corporation and its principal in an action on the contract did not violate Fourteenth Amendment due process. Twin Springs Group, Inc. v. Karibuni, Ltd., 2009 Ark. App. 649, 344 S.W.3d 100 (2009).

Questions of fact remained as to whether an Arizona shipping company and transportation brokerage and their presidents were subject to personal jurisdiction in Arkansas by virtue of their contracting with and allegedly defrauding an Arkansas trucking company for the transportation of food from Arizona to the East Coast. Hotfoot Logistics v. Shipping Point Mktg., 2013 Ark. 130, 426 S.W.3d 448 (2013), overruled in part, Lawson v. Simmons Sporting Goods, Inc., 2019 Ark. 84, 569 S.W.3d 865 (2019).

Due Process.

The purpose of this section is to permit courts to exercise maximum in personam jurisdiction allowable by due process. Martin v. Kelley Elec. Co., 371 F. Supp. 1225 (E.D. Ark. 1974); SD Leasing, Inc. v. Al Spain & Assocs., 277 Ark. 178, 640 S.W.2d 451 (1982); Kilcrease v. Butler, 293 Ark. 454, 739 S.W.2d 139 (1987); F & M Bank v. Hamilton Hotel Partners Ltd. Partnership, 702 F. Supp. 1417 (W.D. Ark. 1988); Akin v. First Nat'l Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988); Gould v. P.T. Krakatau Steel, 957 F.2d 573 (8th Cir. 1992), cert. denied, Gould v. P. T. Krakatau Steel, 506 U.S. 908, 113 S. Ct. 304, 121 L. Ed. 2d 227 (1992); Brown v. PST Vans, Inc., 794 F. Supp. 299 (W.D. Ark. 1992).

Mechanical or quantitative evaluations of a defendant's activities in a state do not resolve the question of the reasonableness of personal jurisdiction, for whether due process is satisfied depends upon the quality and nature of the defendant's activity in relation to the fair and orderly administration of the laws. Hutson v. Fehr Bros., 584 F.2d 833 (8th Cir. 1978), cert. denied, Fehr Bros., Inc. v. Weissenfels, 439 U.S. 983, 99 S. Ct. 573, 58 L. Ed. 2d 654 (1978); Gould v. Empire Steel Trading Co., 765 F. Supp. 980 (E.D. Ark. 1991), aff'd, 957 F.2d 573 (8th Cir. 1992).

The use of arteries of interstate mail, telephone, railway, and banking facilities is insufficient, standing alone, to satisfy due process in asserting long-arm jurisdiction over a nonresident corporation. Mountaire Feeds, Inc. v. Agro Impex, 677 F.2d 651 (8th Cir. 1982).

Whether a trial court has in personam jurisdiction over nonresident defendants must be decided on the facts of each case. To make this determination, the court must decide whether the defendants' actions satisfy the “transacting business” requirement within the meaning of this section and whether the exercise of in personam jurisdiction is consistent with due process under the Fourteenth Amendment to the United States Constitution. Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 655 S.W.2d 468 (1983); Meachum v. Worthen Bank & Trust Co., 13 Ark. App. 229, 682 S.W.2d 763, cert. denied, 474 U.S. 844, 106 S. Ct. 132, 88 L. Ed. 2d 108 (1985); Capps v. Roll Serv., Inc., 31 Ark. App. 48, 787 S.W.2d 694 (1990).

Factors to be considered in determining whether due process requirements have been satisfied when personal jurisdiction has been exercised over nonresident defendants are: (1) The nature and quality of the contacts with the forum state; (2) the quantity of contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience to the parties. Meachum v. Worthen Bank & Trust Co., 13 Ark. App. 229, 682 S.W.2d 763, cert. denied, 474 U.S. 844, 106 S. Ct. 132, 88 L. Ed. 2d 108 (1985); Akin v. First Nat'l Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988); Ultimatics, Inc. v. Minimatic, Inc., 715 F. Supp. 1448 (W.D. Ark. 1989); Capps v. Roll Serv., Inc., 31 Ark. App. 48, 787 S.W.2d 694 (1990).

This section extends this state's jurisdiction over nonresidents to the limits permitted by the due process clause of the United States Constitution.Dudley v. Dittmer, 795 F.2d 669 (8th Cir. 1986); Byer v. Gordos Ark., Inc., 712 F. Supp. 149 (W.D. Ark. 1989).

The inquiry as to the existence of in personam “long-arm” jurisdiction requires a two-part analysis. The court must first determine whether the facts presented satisfy the requirements of the state “long-arm” statute. After that is determined, and only if that is determined affirmatively, the court must then determine whether the state's exercise of personal jurisdiction is consistent with the due process requirement of the Fourteenth Amendment. Ultimatics, Inc. v. Minimatic, Inc., 715 F. Supp. 1448 (W.D. Ark. 1989).

The U.S. Supreme Court has held that in order for state courts to maintain personal jurisdiction over a nonresident person under the Due Process Clause of the Fourteenth Amendment, a party must satisfy two prongs: (1) the party must show that the nonresident has had sufficient minimum contacts with this state; and (2) the party must show that the court's exercise of jurisdiction would not offend traditional notions of fair play and substantial justice. John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998).

Trial court erred in dismissing the Arkansas concrete company's action against the Kansas paint company because, even though the paint company had few ordinary business contacts with Arkansas, the paint company had filed a materialmen's lien against the concrete company's Arkansas real estate, which was sufficient contact to subject it to the jurisdiction of Arkansas courts; further, the lien filing also showed that the paint company had purposefully availed itself of the privilege of conducting activities in Arkansas. Concrete Wallsystems of Ark., Inc. v. Master Paint Indus. Coating Corp., 95 Ark. App. 21, 233 S.W.3d 157 (2006).

Nonresident sellers' presence in Arkansas for several days during which they consummated a large sales transaction that became the subject of litigation in the U.S. District Court for the Western District of Arkansas was a sufficient contact to give the sellers a reasonable anticipation of being haled into court in Arkansas, and thus subjected them to personal jurisdiction under the Arkansas long-arm statute under this section. Bogle v. Jackson, — F. Supp. 2d —, 2007 U.S. Dist. LEXIS 86776 (W.D. Ark. Nov. 13, 2007).

Japanese traction machine manufacturer's Fed. R. Civ. P. 12(b)(2) dismissal motion was denied because it had sufficient contacts with the Eastern District of Arkansas to warrant the court's exercising personal jurisdiction over it: (1) the Arkansas long-arm statute authorized the exercise of jurisdiction over foreign corporations to the fullest extent allowed by the U.S. Const., Amend. XIVDue Process Clause; (2) due process required that the manufacturer have minimum contacts with Arkansas, such that the maintenance of the suit did not offend traditional notions of fair play and substantial justice; and (3) the manufacturer had sufficient contacts to render it subject to the court's jurisdiction in a products liability suit brought in the Eastern District of Arkansas because it did more than simply place its machine in the stream of commerce, it authorized a U.S. distributor to be the exclusive distributor of its products in the U.S., it provided a user manual in English with its machines, it placed no limitation on where the machines could be sold, it visited the distributor in the U.S. to discuss the sale of its products, and it was aware that its products were being sold throughout the U.S., including in Arkansas. Piggee v. Patterson Med. Prods., Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 50785 (E.D. Ark. Apr. 29, 2008).

In a suit for fraud, unauthorized practice of law, breach of fiduciary duty, and civil conspiracy, personal jurisdiction over the out-of-state corporate officers of related insurance marketing entities was established under subdivision B. of this section because the officers held Arkansas insurance licenses and the corporations they led solicited business in Arkansas. Birts v. Vermillion, — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 87205 (W.D. Ark. Sept. 23, 2009).

In a suit for fraud, unauthorized practice of law, breach of fiduciary duty, and civil conspiracy, personal jurisdiction over out-of-state residents who were not employed by, or lacked ownership interests in, related insurance marketing entities was not established under subdivision B. of this section because minimum contacts were lacking. Birts v. Vermillion, — F. Supp. 2d —, 2009 U.S. Dist. LEXIS 87205 (W.D. Ark. Sept. 23, 2009).

Based upon the allegations in the complaint and the employee's affidavit that his only contacts with Arkansas were by telephone and correspondence, the employee's contacts with Arkansas were insufficient to establish minimum contacts so as to justify exercise of personal jurisdiction. U.S. Bank Nat'l Ass'n ND v. Elender Escrow, Inc., No. 4:11CV00123 JMM, 2011 U.S. Dist. LEXIS 134690 (E.D. Ark. Nov. 21, 2011).

Co-conspirators' contacts with Arkansas were insufficient to establish the requisite minimum contacts to justify exercise of personal jurisdiction over them or conspiracy jurisdiction over their co-conspirators. Conspiracy jurisdiction only applied when at least one of the conspirators had minimum contacts with Arkansas in furtherance of the conspiracy and such contacts had not been pled. U.S. Bank Nat'l Ass'n ND v. Elender Escrow, Inc., No. 4:11CV00123 JMM, 2011 U.S. Dist. LEXIS 134690 (E.D. Ark. Nov. 21, 2011).

Personal jurisdiction based on the conspiracy theory did not violate due process. As such, the use of the conspiracy theory of in personam jurisdiction does not violate this section, Arkansas's long arm statute. Gibbs v. Primelending, 2011 Ark. 255, 381 S.W.3d 829 (2011).

Court properly exercised personal jurisdiction over the judgment debtors, because the complaint arose out of and was directly related to the 2003 judgments, which were entered in Arkansas and remain unsatisfied; the debtors entered into or guaranteed several loan contracts with an Arkansas bank and pledged Arkansas real estate as collateral, and the debtors defaulted on the loans and an Arkansas court entered judgments against them. Hauser v. Sims, 2012 Ark. App. 295, 423 S.W.3d 104 (2012).

Circuit court erred in finding that it could properly exercise jurisdiction over a Virginia attorney and his law firm sued for conversion, because they lacked sufficient “minimum contacts” with Arkansas, where the attorney acted as counsel for an out-of-state escrow agent, and the earnest money in question had been wired to the attorney by a Georgia company in connection with a purchase agreement between the Georgia company, as purchaser, and the Arkansas plaintiff, as seller. The Arkansas plaintiff was not a party to the escrow agreement between the Georgia company and the escrow agent, and the Court of Appeals could not say that the attorney “purposefully availed” himself of the benefits and protection of the laws of Arkansas. Goodwin v. Magness Oil Co., 2018 Ark. App. 303, 552 S.W.3d 26 (2018).

—Contacts Found.

Nonresident held to have had sufficient contacts with state to bring it within state's jurisdiction without denying due process. Davis v. Triumph Corp., 258 F. Supp. 418 (E.D. Ark. 1966); Lauck v. E.C.K. Chivers & Assocs., 320 F. Supp. 463 (E.D. Ark. 1970); Commercial Bank & Trust Co. v. Dixie Sound & Communications, Inc., 468 F. Supp. 578 (E.D. Ark. 1979); Meachum v. Worthen Bank & Trust Co., 13 Ark. App. 229, 682 S.W.2d 763, cert. denied, 474 U.S. 844, 106 S. Ct. 132, 88 L. Ed. 2d 108 (1985).

Although Honda R & D makes no direct revenue from Arkansas, the Honda Corporate family does, and Honda R & D enjoys the revenues received by the Honda family. Therefore, plaintiff submitted sufficient information to conclude that defendant Honda R & D derives substantial revenue from the State of Arkansas, and that exercising jurisdiction over Honda R & D satisfies due process. Hawes v. Honda Motor Co., 738 F. Supp. 1247 (E.D. Ark. 1990).

The fact that the corporation was neither present nor doing business in Arkansas and merely owned a subsidiary in Arkansas did not sufficiently connect the corporation to Arkansas to bring it within the state's personal jurisdiction under Arkansas's long-arm statute. Epps v. Stewart Info. Servs. Corp., 327 F.3d 642 (8th Cir. 2003).

Court of appeals reversed the dismissal of a product liability suit for lack of jurisdiction over a French manufacturer where the manufacturer actively distributed and sold aircraft in the forum and operated a closely related business in the forum, which activities were sufficient to enforce long-arm jurisdiction over the manufacturer. Anderson v. Dassault Aviation, 361 F.3d 449 (8th Cir. 2004), rehearing denied, — F.3d —, 2004 U.S. App. LEXIS 6948 (8th Cir. Apr. 9, 2004), cert. denied, 543 U.S. 1015, 125 S. Ct. 606, 160 L. Ed. 2d 484 (2004).

An insurance policy's territory-of-coverage clause, insuring a manufacturer against property damage from occurrences in the United States, established defendant insurer's sufficient contact to Arkansas to satisfy due process under subdivision B. of this section and the Due Process Clause of the Fifth Amendment in plaintiff Arkansas farmer's indemnity suit against the insured. Ferrell v. West Bend Mut. Ins. Co., 393 F.3d 786 (8th Cir. 2005).

Putative father's contacts with Arkansas were sufficient to meet due process requirements under § 9-17-201(8), this section, and U.S. Const., Amend. XIV, based on his agreement to submit to a paternity test in Arkansas and given the fact that he drove to Arkansas for the test that was administered in Arkansas. Moreover, the father could have reasonably anticipated being haled into court in Arkansas because a person submitting to a paternity test could foresee the possibility that a paternity suit and support action could have been brought there, and finally, the exercise of jurisdiction over the father did not offend traditional notions of fair play and substantial justice when the burden of litigating the action was in no way unreasonable and the state had an interest in protecting its minor children and ensuring the payment of child support. Payne v. France, 373 Ark. 175, 282 S.W.3d 760 (2008), overruled, Lawson v. Simmons Sporting Goods, Inc., 2019 Ark. 84, 569 S.W.3d 865 (2019).

Circuit court erred in granting summary judgment to a shipper and its officers because the contacts between a broker and the shipper were sufficient and the shipper and the officers should not have been surprised to be haled into court in Arkansas because the broker was an Arkansas corporation, the parties entered into a legally binding contract through the bill of lading, and the broker's breach-of-contract cause of action arose directly from the contacts between the shipper and the broker. Hotfoot Logistics, LLC v. Shipping Point Mktg., 2014 Ark. 460, 447 S.W.3d 592 (2014).

In an action alleging fraud and other claims related to an investment agreement, the federal district court erred in dismissing plaintiff's action for lack of personal jurisdiction because defendants, a California resident and his California-based business, had sufficient contacts with Arkansas to establish personal jurisdiction; the facts suggested that the individual defendant's contacts with Arkansas were not random, fortuitous, or attenuated, but rather were central to an alleged scheme to purposely avail himself of the privilege of conducting activities in Arkansas, and the individual defendant's actions in and affecting Arkansas were central to plaintiffs' allegations of fraud and misrepresentation and supported a finding of specific jurisdiction. Whaley v. Esebag, 946 F.3d 447 (8th Cir. 2020).

In a suit to recover legal fees, there was personal jurisdiction consistent with due process because the guarantor's contacts were such that he should have anticipated being haled into court in Arkansas since he negotiated the legal services contract, made hundreds of calls and emails to the Arkansas law firm, and visited the state regarding the litigation. Henry Law Firm v. Cuker Interactive, LLC, 949 F.3d 1101 (8th Cir. 2020).

—Contacts Not Found.

Contacts of nonresident with state held to be insufficient to support personal jurisdiction. Frank v. Steel, 253 Ark. 338, 485 S.W.2d 737 (1972); Carter Oil Co. v. Apex Towing Co., 532 F. Supp. 364 (E.D. Ark. 1981); Janni v. Janni, 271 Ark. 953, 611 S.W.2d 785 (1981); Eagle Material Handling of Ark., Inc. v. Acme Dock Specialists, Inc., 273 Ark. 362, 616 S.W.2d 716 (1981); Marchant v. Peeples, 274 Ark. 233, 623 S.W.2d 523 (1981); Cotton v. Cotton, 3 Ark. App. 158, 623 S.W.2d 540 (1981); Lomanco, Inc. v. Missouri Pac. R.R., 566 F. Supp. 846 (E.D. Ark. 1983); Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 655 S.W.2d 468 (1983); Kilcrease v. Butler, 293 Ark. 454, 739 S.W.2d 139 (1987); Gould v. P.T. Krakatau Steel, 957 F.2d 573 (8th Cir. 1992), cert. denied, Gould v. P. T. Krakatau Steel, 506 U.S. 908, 113 S. Ct. 304, 121 L. Ed. 2d 227 (1992).

Where a resident of another state has no contacts with Arkansas and engages in no activities that would establish a “presence” in Arkansas to render him amenable to suit, he is not subject to the in personam jurisdiction of this state. Carter v. Wilson, 279 Ark. 58, 648 S.W.2d 472 (1983).

There were insufficient contacts between the nonresident guarantors and Arkansas to subject the guarantors to the jurisdiction of the Arkansas courts, for the mere fact that the individual defendants guaranteed an obligation to an Arkansas corporation did not subject the guarantors to jurisdiction in Arkansas. Nor did the guarantors' status as shareholders in the debtor corporation, or the more remote connection between some of the guarantors and California corporation, establish the minimum contacts between the guarantors and Arkansas necessary to satisfy due process. Arkansas Rice Growers Coop. Ass'n v. Alchemy Indus., Inc., 797 F.2d 565 (8th Cir. 1986).

Where company's single act was to guarantee a debt between an Arkansas company and a nonresident corporation, and the record was devoid of evidence of even mail or telephone transactions to bring the company within this state's jurisdiction, such contacts were insufficient to sustain personal jurisdiction. Moran v. Bombardier Credit, Inc., 39 Ark. App. 122, 839 S.W.2d 538 (1992).

In an action to collect on student loan notes, where defendant was a Tennessee resident, never resided or engaged in business in Arkansas, signed student guarantee notes in Tennessee, and his children, for whose benefit the notes were executed, went to school in Tennessee, and where defendant's only contacts with Arkansas were that the guaranteed loan was made by an Arkansas bank and the guarantor was an Arkansas corporation, the connection was too tenuous to support a finding of personal jurisdiction. Glenn v. Student Loan Guarantee Found., 53 Ark. App. 132, 920 S.W.2d 500 (1996).

A nonresident manufacturer is not subject to the jurisdiction of this state simply because its product is shipped there; there must be some showing that the manufacturer purposefully availed itself of the privilege of doing business in this state or in some manner directed its activities at the forum state. Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356 (W.D. Ark. 1997).

Personal jurisdiction not shown where the only contact that defendant had with Arkansas prior to the plaintiff's claim was the filing of an Oklahoma judgment against an Arkansas resident and the issuance of a writ of execution based on that judgment; such brief encounters with the state for the purpose of enforcing a judgment are not the type of continuous, systematic, and substantial contacts envisioned by the U.S. Supreme Court to satisfy due process considerations. John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998).

General personal jurisdiction not shown where corporation was not registered in Arkansas, had no employees here, had no agent for service in Arkansas, and had never initiated contact with people in Arkansas, and where the only contact that the corporation had had with this state had been sales to Arkansas residents, set in motion by Arkansas residents and merchandise delivered to Arkansas residents by mail or UPS. John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998).

A federal court in Arkansas did not have personal jurisdiction over a Kentucky bank whose only contact with Arkansas was to issue a cashier's check payable to an Arkansas bank and then, it was alleged, wrongfully dishonor the check. First Nat'l Bank of Lewisville v. First Nat'l Bank of Clinton, 258 F.3d 727 (8th Cir. 2001).

In a personal injury action brought by a man and his wife where the man was injured when an all-terrain vehicle (ATV) turned over on him there were insufficient contacts with Arkansas for the trial court to exercise personal jurisdiction; although there were a series of transaction involving the ATV, the injured party and his wife were residents of Louisiana, where they had purchased the ATV, and they brought the ATV to Arkansas for recreational purposes. Ganey v. Kawasaki Motors Corp., 366 Ark. 238, 234 S.W.3d 838 (2006), overruled in part on other grounds, Lawson v. Simmons Sporting Goods, Inc., 2019 Ark. 84, 569 S.W.3d 865 (2019).

Eastern District of Arkansas district court properly concluded that it could not exercise specific personal jurisdiction over a Japanese corporation because doing so would not comport with due process: (1) an Arkansas widow filed a wrongful death suit against the corporation after her husband was killed in Tennessee, while unloading electrodes that the corporation had manufactured in Japan; (2) the Arkansas long-arm statute conferred jurisdiction on the district court to the fullest extent permitted by the Due Process Clause; (3) due process required minimum contacts with the forum state and a finding that maintenance of the suit did not offend traditional notions of fair play and substantial justice; (4) the corporation's only contacts with Arkansas were the annual visits made by its representatives to an Arkansas customer; (5) the widow's wrongful death claims did not arise from those contacts; (5) the corporation was not directly involved in the packing, shipping, or unloading of the electrodes, which activities were related to the worker's death; and (6) the inconvenience to the parties and the witnesses was also a factor weighing against the exercise of personal jurisdiction over the corporation because essentially all of the witnesses and documents concerning the packaging, shipping, and unloading of the electrodes were located in Japan and/or outside of Arkansas. Miller v. Nippon Carbon Co., 528 F.3d 1087 (8th Cir. 2008).

Court dismissed plaintiff's complaint for lack of personal jurisdiction because defendant's only contact with Arkansas was the filing of a Utah judgment against plaintiff in the state, and it went too far to suggest that defendant's registration of the Utah judgment against plaintiff was sufficient alone to satisfy the Arkansas long-arm statute and Fourteenth Amendment due process considerations. Barnett v. Centennial Bank, Inc., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 11256 (E.D. Ark. Feb. 4, 2008).

District court did not have personal jurisdiction over defendants, an Iowa citizen and limited liability company, because the only contact with Arkansas was a single meeting by the parties in Arkansas; because defendants' trip to Arkansas (and their failure to obtain permission to use plaintiff's mark) did not cause or otherwise precipitate the alleged infringement, and nothing in the record showed any other connection to Arkansas, the contact with Arkansas was insufficient to permit the exercise of personal jurisdiction consistent with the Due Process Clause. Pangaea, Inc. v. Flying Burrito LLC, 647 F.3d 741 (8th Cir. 2011).

—Question of Fact.

In order for a valid judgment to be rendered against a nonresident not served within the forum state, due process requires that certain minimum contacts exist between the nonresident and the state, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice; the contacts with the forum state must be such that the nonresident defendant should reasonably anticipate being “haled” into an Arkansas court. A single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state; whether the “minimum contacts” requirement has been satisfied is a question of fact. Akin v. First Nat'l Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988).

The existence of a state-created corporate form did not operate as a limitation on personal jurisdiction; it is necessary to utilize a case-by-case examination of the individual's contact with the forum. Ripplemeyer v. National Grape Coop. Ass'n, 807 F. Supp. 1439 (W.D. Ark. 1992).

The Eighth Circuit Court of Appeals has established a five-factor test for determining the sufficiency of a defendant's contacts with the forum state so as to result in personal jurisdiction: (1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties. John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998).

Effect of Amendments.

The 1994 version of this section provided certain listed bases for personal jurisdictions; after its 1995 amendment, this section, in subdivision B., embraced all actions consitutionally permitted. Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356 (W.D. Ark. 1997).

Enduring Relationship.

Subdivision B. of this section was not applicable where there was no showing that the defendant ever was domiciled in the state. Jenkins v. Jenkins, 257 Ark. 137, 514 S.W.2d 701 (1974).

Federal Law.

Federal court properly exercised jurisdiction over defendant, a bail bondsman, who submitted to state court an affidavit of intention to surrender accused requesting plaintiff's arrest, that lead to plaintiff's arrest and his suit for malicious prosecution and false imprisonment. Dean v. Olibas, 129 F.3d 1001 (8th Cir. 1997).

Where none of the jurisdictional factors prescribed by 10 U.S.C. § 1408 were satisfied, and the federal statute preempted the application of the “minimum contacts” provisions of this section, the chancellor lacked personal jurisdiction to divide party's military pension. Pender v. Pender, 57 Ark. App. 305, 945 S.W.2d 395 (1997).

Foreign Company.

An Arkansas court has authority, under this section and the due process clause, U.S. Const. Amend. 14, to exercise jurisdiction over a foreign insurance company in a suit by the insured to recover under the insurance policy's uninsured motorist clause for damages arising out of an accident in Arkansas with an uninsured Arkansas motorist. Szalay v. Handcock, 307 Ark. 232, 819 S.W.2d 232 (1991).

Business owner met his burden of prima facie showing that the district court could exercise general personal jurisdiction over an international company under the Arkansas long-arm statute, subdivision B. of this section, because the owner presented evidence showing that the international company had purposely availed itself of the privilege of conducting business activities within Arkansas, thereby invoking the benefits and protections of the state's laws: (1) the international company owned a security company that had promised to provide monitoring, alarm, and security services for the owner's Arkansas business; (2) statements on the international company's website and a prior lawsuit brought against the international company by the Securities and Exchange Commission provided proof that the international company manipulated and controlled the security company and that it received income from the security company's sale of security systems and services in the State of Arkansas; (3) the international company's contacts with Arkansas, through the security company, were the type of continuous and systematic contacts that established general jurisdiction even if the owner's claims did not specifically arise out of business activities directed at Arkansas; and (4) it would not violate the U.S. Const., Amend. XIVDue Process Clause to exercise jurisdiction over the international company because it could hardly be inconvenient for the international company to defend itself in a state where it was otherwise proud to conduct business. Duffer v. TYCO Int'l Ltd., — F. Supp. 2d —, 2008 U.S. Dist. LEXIS 74476 (W.D. Ark. Sept. 26, 2008).

Arkansas did not have general jurisdiction over a Japanese manufacturer pursuant to subdivision (B) of this section in a wrongful-death suit arising from a tractor accident because the manufacturer was not itself doing business in Arkansas and did not dominate and control its American subsidiary, which sold tractors in Arkansas through authorized dealers, such that personal jurisdiction could be predicated on an alter ego relationship. Yanmar Co., Ltd. v. Slater, 2012 Ark. 36, 386 S.W.3d 439 (2012).

Forum Convenience.

Although this section may affect venue because of its provisions relating to jurisdiction and service of process, the provision that the court in which the action is filed has broad powers under the principle of forum non conveniens demonstrates that the statute is basically a jurisdiction-giving statute rather that a venue-fixing one. Ozark Supply Co. v. Glass, 261 Ark. 750, 552 S.W.2d 1 (1977).

Considerations usually associated with forum convenience were pertinent to federal court's decision that Arkansas' exercise of jurisdiction over foreign corporation would offend traditional notions of fair play and substantial justice protected by the Fourteenth Amendment. Hutson v. Fehr Bros., 584 F.2d 833 (8th Cir. 1978), cert. denied, Fehr Bros., Inc. v. Weissenfels, 439 U.S. 983, 99 S. Ct. 573, 58 L. Ed. 2d 654 (1978).

Court may raise the doctrine of forum non conveniens on its own. Country Pride Foods Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983).

The trial court's discretion in determining whether to dismiss an action due to an inconvenient forum must necessarily be based upon such factors as convenience to the parties in obtaining documents and witnesses, the expense involved in trying the case, questions of foreign law, trial docket, and other matters. Although the application of forum non conveniens lies within the sound discretion of the trial court and will be disturbed only upon a showing of abuse of discretion, the record must show the matters considered by the court in applying the doctrine. Country Pride Foods Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983).

Where contract was executed in Arkansas and most of the parties were residents of the state, the convenience of the parties was best served by the hearing of the case in Arkansas. Meachum v. Worthen Bank & Trust Co., 13 Ark. App. 229, 682 S.W.2d 763, cert. denied, 474 U.S. 844, 106 S. Ct. 132, 88 L. Ed. 2d 108 (1985).

There is no requirement that plaintiff's claim be dismissed because of a prior pending action in federal court, nor is there any requirement that the court exercise the forum non conveniens discretion given it by subsection E. Helm v. Mid-America Indus., Inc., 301 Ark. 521, 785 S.W.2d 209, cert. denied, Helm v. Mid-America Industries, Inc., 498 U.S. 850, 111 S. Ct. 142, 112 L. Ed. 2d 108 (1990).

The application of forum non conveniens lies within the sound discretion of the trial court; only if this discretion is abused will be reviewing court reverse. Life of Am. Ins. Co. v. Baker-Lowe-Fox Ins. Mktg., Inc., 316 Ark. 630, 873 S.W.2d 537 (1994).

Because an insurer was the first party to file suit, and it chose to do so in the county in which it had its principal office, pursuant to § 16-55-213(a), a circuit judge erred by applying the doctrine of forum non conveniens under subdivision D. of this section, effectively overruling the insurer's choice of venue. Farm Bureau Mut. Ins. Co. of Ark. v. Gadbury-Swift, 2010 Ark. 6, 362 S.W.3d 291 (2010).

It was not an abuse of discretion to dismiss a wrongful death complaint under the doctrine of forum non conveniens because the trial court weighed the parties' interests and the complaint's procedural posture and concluded it was best for a related federal court complaint to proceed; thus, the court did not exercise its discretion thoughtlessly or without due consideration. Silkman v. Evangelical Lutheran Good Samaritan Soc'y, 2015 Ark. 422, 474 S.W.3d 74 (2015).

Internet Contacts.

Manufacturer's advertisement on the World Wide Web was insufficient contact with this state to subject it to personal jurisdiction. Smith v. Hobby Lobby Stores, Inc., 968 F. Supp. 1356 (W.D. Ark. 1997).

Matters Outside Pleadings.

Circuit court did not err in considering matters outside the pleadings in reaching its conclusions regarding personal jurisdiction. Reveley v. Roth, 2016 Ark. App. 248, 491 S.W.3d 490 (2016).

Circuit court may consider evidence outside the pleadings on a motion under Ark. R. Civ. P. (12)(b)(2) alleging lack of personal jurisdiction. If the circuit court considers evidence outside the pleadings, the Rule (12)(b)(2) motion is not converted to a summary judgment motion, and previous cases that have taken a contrary position are overruled, see, e.g., Ganey v. Kawasaki Motors Corp., U.S.A., 366 Ark. 238 (2006); Payne v. France, 373 Ark. 175 (2008); and Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc., 2013 Ark. 130. Lawson v. Simmons Sporting Goods, Inc., 2019 Ark. 84, 569 S.W.3d 865 (2019).

Principal and Agent.

Nonresident principal acting through agent in state held to be transacting business so as to subject principal to jurisdiction. Wichman v. Hughes, 248 Ark. 121, 450 S.W.2d 294 (1970); Nix v. Dunavant, 249 Ark. 641, 460 S.W.2d 762 (1970); F & M Bank v. Hamilton Hotel Partners Ltd. Partnership, 702 F. Supp. 1417 (W.D. Ark. 1988).

Former subdivision C.1. of this section would only enable the court to exercise jurisdiction over the principal on whose behalf the agent acted, based upon the conduct of the agent as it falls within this section. This section does not similarly authorize exercise of jurisdiction over an agent based upon the conduct of his principal, since the actions of an agent acting for a disclosed principal bind only the principal and not the agent, subjecting only the principal to jurisdiction on the basis of contact with the forum. Williams v. GMC, 573 F. Supp. 577 (E.D. Ark. 1983).

Real Property.

A court of the county where real estate was located had jurisdiction over the person of a nonresident owner under former subdivision C.1.(e) of this section in an action by a real estate broker against the nonresident owner to recover a commission for the sale of the real estate. Bowsher v. Digby, 243 Ark. 799, 422 S.W.2d 671 (1968).

A nonresident of Arkansas who contracted to buy Arkansas land is subject to the personal jurisdiction of an Arkansas court in a foreclosure suit on the land. Ratliff v. Thompson, 267 Ark. 349, 590 S.W.2d 291 (1979).

State courts had personal jurisdiction over persons who not only owned the property in the state that was the subject of foreclosure, but also lived on the property when they negotiated and consummated the defaulted loan, which was the basis of the suit. Horne v. Savers Fed. Sav. & Loan Ass'n, 295 Ark. 182, 747 S.W.2d 580 (1988).

Special Appearance.

Special appearance in an Arkansas court to contest the jurisdiction of the court and move for continuance did not subject nonresident to “long arm” personal jurisdiction. Cotton v. Cotton, 3 Ark. App. 158, 623 S.W.2d 540 (1981).

Tortious Injury.

Nonresident putative father was not subject to personal jurisdiction under former subdivision C.1.(c) of this section on ground that child was conceived in Arkansas, since sexual intercourse between consenting adults is not a “tortious act” so as to confer jurisdiction. Howard v. County Court, 272 Ark. 205, 613 S.W.2d 386 (1981).

In a suit against United States for damages for death of enlisted person due to sexual harassment by sergeant, former subdivision C.1.(c) of this section did not provide basis for jurisdiction over sergeant who had no contacts with Arkansas. Stubbs v. United States, 593 F. Supp. 521 (E.D. Ark. 1984), aff'd, 744 F.2d 58 (8th Cir. 1984).

While nonresident driver committed a tortious injury in Arkansas which served as a basis for personal jurisdiction over him in action for personal injuries, that tortious act did not give rise to cause of action for failure to settle under driver's insurance policy, which failure was an act of insurer and not of driver; the trial court erred in holding that driver's conduct was sufficient to support personal jurisdiction under this section in that action. Franklin v. Griffith, 282 Ark. 271, 668 S.W.2d 518 (1984).

When personal jurisdiction is based solely upon the provisions that “only a cause of action or claim for relief arising from acts enumerated in this section may be asserted” against a defendant, there must be a relationship between the defendant's connection with Arkansas and the injury complained of. Slocum v. Sandestin Beach Resort Hotel, 679 F. Supp. 899 (E.D. Ark. 1988).

In order to exercise jurisdiction under former subdivision C.1.(d) of this section, the tortious injury must occur in Arkansas, but the business activities of the defendant need not be related to the tortious injury. Brown v. PST Vans, Inc., 794 F. Supp. 299 (W.D. Ark. 1992).

A fair interpretation of the allegations made by plaintiff allowed the conclusion that her inability to find a job in Arkansas resulted from allegedly defamatory statements attributed to defendant; therefore, regarding the claim of defamation, the amended complaint stated a claim as to personal jurisdiction under this statute. Brown v. PST Vans, Inc., 794 F. Supp. 299 (W.D. Ark. 1992).

Personal jurisdiction over an out-of-state trucking company was not dependent on this section where, at trial, the proof was not in dispute as to the situs of the collision; thus, Arkansas acquired personal jurisdiction over the defendant under § 16-58-120 because the plaintiff's cause of action arose directly from an act committed in this state by the agent of the defendant. Watkins Motor Lines v. Hedrick, 316 Ark. 683, 873 S.W.2d 814 (1994).

—Injury in State Caused by Action Outside State.

Under former subdivision C.1.(d) of this section, an Arkansas court had jurisdiction over foreign corporations in action for tort and breach of warranty even though the corporations had no offices or agents within the state and their products entered the state only through being incorporated in the products of others sold within the state or through sale by manufacturer's agents and independent brokers. Pennsalt Chem. Corp. v. Crown Cork & Seal Co., 244 Ark. 638, 426 S.W.2d 417 (1968).

Nonresident corporation deriving substantial revenue from goods sold in Arkansas held subject to jurisdiction. International Harvester Co. v. Hendrickson Mfg. Co., 249 Ark. 298, 459 S.W.2d 62 (1970); Jeanway Indus., Inc. v. Knudson Mfg. Co., 533 F. Supp. 678 (W.D. Ark. 1981); Marshall Constr. Co. v. M. Berger Co., 533 F. Supp. 793 (W.D. Ark. 1982).

Where nonresident manufacturer engaged in a persistent course of conduct or derived substantial revenue from use of its goods in Arkansas, there were sufficient substantial contacts with the state for this section to apply, and this result was not changed by the fact that the complaint sounded in warranty rather than negligence or strict liability since former subdivision C.1.(d) of this section applies both to actions for breach of warranty and to actions in tort. Trace X Chem., Inc. v. Gulf Oil Chems. Co., 519 F. Supp. 826 (W.D. Ark. 1981).

Defendant's contacts with the state, which were the mailing of monthly payments to, and maintaining an escrow account at, the plaintiff bank within the state, were insufficient to render her subject to personal jurisdiction under former subdivision C.1.(d) of this section. Union Nat'l Bank v. Thornton, 293 Ark. 385, 738 S.W.2d 103 (1987).

—Injury Outside State.

Arkansas courts held not to have jurisdiction over nonresident defendant where injury occurred in another state. Krone v. AMI, Inc., 367 F. Supp. 1141 (E.D. Ark. 1973); Jeanway Indus., Inc. v. Knudson Mfg. Co., 533 F. Supp. 678 (W.D. Ark. 1981); Williams v. GMC, 573 F. Supp. 577 (E.D. Ark. 1983); Carter v. Wilson, 279 Ark. 58, 648 S.W.2d 472 (1983).

To confer jurisdiction on court under this section, the connection between defendant's activities in Arkansas and plaintiff's injuries in another state must be actual and not merely antecedent. Martin v. Kelley Elec. Co., 371 F. Supp. 1225 (E.D. Ark. 1974).

Where nonresident manufacturer engaged in a persistent course of conduct or derived substantial revenue from use of its goods in Arkansas, there were sufficient substantial contacts with the state for this section to apply, and this result was not changed by the fact that the complaint sounded in warranty rather than negligence or strict liability since former subdivision C.1.(d) of this section applies both to actions for breach of warranty and to actions in tort. Trace X Chem., Inc. v. Gulf Oil Chems. Co., 519 F. Supp. 826 (W.D. Ark. 1981).

Tortious acts in Arkansas held to confer jurisdiction over nonresident defendant where injury occurred in another state. Wright v. Newman, 539 F. Supp. 1331 (W.D. Ark. 1982), vacated, 735 F.2d 1073 (8th Cir. Mo. 1984).

The failure to allege facts connecting the transaction of Arkansas business to the accident in a foreign state was fatal to the cause of action, where such allegations were required by the long-arm statute to establish personal jurisdiction over a nonresident defendant. Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992).

In a premises liability case arising from an injury that occurred in defendant's Louisiana store, the contacts between the defendant company and the Arkansas plaintiff were sufficient to warrant personal jurisdiction over the company, which should not have been surprised to be haled into court in Arkansas because it sought to have Arkansas residents patronize its Louisiana store; and the company was located roughly 30 miles from the forum, so the argument regarding an inconvenient forum was weak. Lawson v. Simmons Sporting Goods, 2017 Ark. App. 44, 511 S.W.3d 883 (2017), vacated, remanded, 138 S. Ct. 237, 199 L. Ed. 2d 2 (U.S. 2017) (remanded for further consideration in light of Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 582 U.S. ___, 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017)).

Circuit court properly dismissed a customer's premises liability suit against a Louisiana retail sporting-goods store that advertised and conducted promotional activities in Arkansas for lack of specific personal jurisdiction. A fundamental connection did not exist between the cause of action and Arkansas, as the cause of action did not arise from or relate to defendant's contact with Arkansas as required under Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 582 U.S. __, 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017). The customer's trip and fall undisputedly occurred in Louisiana, and any alleged negligence related to the incident in Louisiana did not arise out of or relate to the defendant's contacts with Arkansas. Lawson v. Simmons Sporting Goods, Inc., 2019 Ark. 84, 569 S.W.3d 865 (2019).

Transacting Business.

Neither marriage nor living with a person constitutes transacting any business in the state on which personal jurisdiction can be exercised by the chancery court in a divorce action. Jenkins v. Jenkins, 257 Ark. 137, 514 S.W.2d 701 (1974).

Nonresident defendant held to have transacted business in state so as to confer jurisdiction on Arkansas courts. Shannon v. Fidelity Nat'l Bank, 259 Ark. 186, 531 S.W.2d 958 (1976); Stivers v. Pacific Bldg., Inc., 269 Ark. 294, 601 S.W.2d 822 (1980); Helm v. Mid-America Indus., Inc., 301 Ark. 521, 785 S.W.2d 209, cert. denied, Helm v. Mid-America Industries, Inc., 498 U.S. 850, 111 S. Ct. 142, 112 L. Ed. 2d 108 (1990); American Gen. Fire & Cas. v. Wal-Mart Stores, Inc., 791 F. Supp. 763 (W.D. Ark. 1992).

Nonresident defendant held not to have transacted business in state so as to subject itself to Arkansas jurisdiction. Hutson v. Fehr Bros., 584 F.2d 833 (8th Cir. 1978), cert. denied, Fehr Bros., Inc. v. Weissenfels, 439 U.S. 983, 99 S. Ct. 573, 58 L. Ed. 2d 654 (1978); Roger N. Joyce & Assocs. v. Paoli Steel Corp., 491 F. Supp. 1095 (E.D. Ark. 1980); Pearrow v. National Life & Accident Ins. Co., 703 F.2d 1067 (8th Cir. 1983); Williams v. GMC, 573 F. Supp. 577 (E.D. Ark. 1983); Davis v. Kroger Co., 576 F. Supp. 1156 (W.D. Ark. 1983).

Where a Pennsylvania corporation began transacting business within this state, those transactions would not render the corporation subject to the in personam jurisdiction of an Arkansas court in a suit arising from activities which occurred prior to that time. Carter Oil Co. v. Apex Towing Co., 532 F. Supp. 364 (E.D. Ark. 1981).

The purpose of the “transacting business” provision is to permit the trial court to exercise the maximum personal jurisdiction over nonresident defendant allowable by due process, and the provision should be given a broad and liberal interpretation. Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 655 S.W.2d 468 (1983); Moran v. Bombardier Credit, Inc., 39 Ark. App. 122, 839 S.W.2d 538 (1992); Glenn v. Student Loan Guarantee Found., 53 Ark. App. 132, 920 S.W.2d 500 (1996).

The Arkansas legislature intended the term “transacting business” to be construed to expand jurisdiction to the modern constitutional limit. Meachum v. Worthen Bank & Trust Co., 13 Ark. App. 229, 682 S.W.2d 763, cert. denied, 474 U.S. 844, 106 S. Ct. 132, 88 L. Ed. 2d 108 (1985); F & M Bank v. Hamilton Hotel Partners Ltd. Partnership, 702 F. Supp. 1417 (W.D. Ark. 1988).

In an action by a local broker against the president of a commodities brokerage business for fraud and market manipulation under the Commodities Exchange Act, the district court properly asserted personal jurisdiction over the defendant where the defendant telephoned and visited the local broker's office to trade on both customer accounts and personal accounts. Dudley v. Dittmer, 795 F.2d 669 (8th Cir. 1986).

Although the Arkansas legislature intended the term “transacting business” to be construed to expand the in personam jurisdiction of its courts over nonresident defendants to the maximum allowed by due process, the use of arteries of interstate mail and telephone is insufficient, standing alone, to satisfy due process. Slocum v. Sandestin Beach Resort Hotel, 679 F. Supp. 899 (E.D. Ark. 1988).

Where the defendant has created continuing obligations between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by the benefits and protections of the forum's laws, it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. Ultimatics, Inc. v. Minimatic, Inc., 715 F. Supp. 1448 (W.D. Ark. 1989).

Where defendant's employee, pursuant to contract for jointly purchased aircraft engine, stopped in Marion, Arkansas while en route from Texas to Indiana on other business, and attempted delivery to plaintiff but left none of the engine because a dispute arose over identity of property agreed upon, defendant engaged in a purposeful act sufficiently substantial to subject it to long-arm jurisdiction in Arkansas. Papachristou v. Turbines Inc., 902 F.2d 685 (8th Cir. 1990).

Telephone and mail transactions of foreign company not qualified to do business in Arkansas do not, standing alone, satisfy the minimum contacts required by due process to bring company within Arkansas's jurisdiction. CDI Contractors v. Goff Steel Erectors, Inc., 301 Ark. 311, 783 S.W.2d 846 (1990).

Where nonresident defendant had no offices, agents, or property in Arkansas, was not licensed to conduct business in Arkansas and contended it did not, and at no time did any employee or representative of defendant come to Arkansas to deal with plaintiff, defendant's activities did not rise to the status of transacting any business in this state and did not have the minimum contacts required with the State of Arkansas for purposes of the Fourteenth Amendment. Dickson v. Hawker-Siddeley Power Eng'g, Inc., 763 F. Supp. 1006 (W.D. Ark. 1991).

In this action for action for invasion of privacy and intentional infliction of emotional distress, the dismissal of plaintiff's claims against the publisher for lack of personal jurisdiction was reversed and remanded where (1) the fact that defendant publisher contracted to receive monthly sales reports, especially if these reports were to display sales on a state by state basis, would permit an inference that the publisher had reasonable expectations and knowledge that its products were going to be offered in the Arkansas market; and (2) there was also evidence that the publisher was actively involved in marketing plans and promotions of books placed in stores. Steinbuch v. Cutler, 518 F.3d 580 (8th Cir.), cert. denied, 555 U.S. 939, 129 S. Ct. 223, 172 L. Ed. 2d 242 (2008).

In this action for action for invasion of privacy and intentional infliction of emotional distress, the dismissal of plaintiff's claims against one corporate entity was affirmed where (1) the entity argued that it did not contract with the staff member, did not publish the novel, and was not party to the distribution agreement; and (2) plaintiff offered no credible evidence that the entity had any involvement in the publication or distribution of the novel and instead made merely conclusory allegations about the entity's alleged role. Steinbuch v. Cutler, 518 F.3d 580 (8th Cir.), cert. denied, 555 U.S. 939, 129 S. Ct. 223, 172 L. Ed. 2d 242 (2008).

Facts alleged in a company's breach of contract complaint provided a sufficient basis to subject defendant to specific personal jurisdiction in Arkansas under subsection B. of this section; defendant reached into Arkansas and initiated contact with the company in order to conduct business. Pritchett v. Evans, 2013 Ark. App. 679, 430 S.W.3d 223 (2013).

Cited: Rose's Mobile Homes, Inc. v. Rex Financial Corp., 383 F. Supp. 937 (W.D. Ark. 1974); William Penn Fraternal Ass'n v. Hickman, 256 Ark. 308, 506 S.W.2d 823 (1974); Turner v. McClain, 459 F. Supp. 898 (E.D. Ark. 1978); United States v. Blackmon, 496 F. Supp. 1250 (E.D. Ark. 1980); Oden Optical Co. v. Optique Du Mond, Ltd., 268 Ark. 1105, 598 S.W.2d 456 (1980); Burton v. Bank of Tuckerman, 276 Ark. 538, 637 S.W.2d 577 (1982); Tucker Enters., Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983); SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983); Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985); Zolper v. AT&T Info. Sys., 289 Ark. 27, 709 S.W.2d 74 (1986); Keene v. National Medical Care, Inc., 700 F. Supp. 458 (E.D. Ark. 1988); Akin v. First Nat'l Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988); Yeldell v. Tutt, 913 F.2d 533 (8th Cir. 1990); Miller v. Tony & Susan Alamo Found., 924 F.2d 143 (8th Cir. 1991); Carpetland of N.W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991); Brown v. PST Vans, Inc., 794 F. Supp. 299 (W.D. Ark. 1992); Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996); National Bank of Commerce v. Dow Chem. Co., 327 Ark. 504, 938 S.W.2d 847 (1997);

Janni v. Janni, 271 Ark. 953, 611 S.W.2d 785 (1981); Eagle Material Handling of Ark., Inc. v. Acme Dock Specialists, Inc., 273 Ark. 362, 616 S.W.2d 716 (1981); Marchant v. Peeples, 274 Ark. 233, 623 S.W.2d 523 (1981); Cotton v. Cotton, 3 Ark. App. 158, 623 S.W.2d 540 (1981); Lomanco, Inc. v. Missouri Pac. R.R., 566 F. Supp. 846 (E.D. Ark. 1983); Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 655 S.W.2d 468 (1983); Kilcrease v. Butler, 293 Ark. 454, 739 S.W.2d 139 (1987); Gould v. P.T. Krakatau Steel, 957 F.2d 573 (8th Cir. 1992).

16-4-102. Service.

A. Manner and Proof of Service.

  1. When the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:
  2. Proof of service outside this state may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court.
  3. Service under this section does not, of itself, require the recognition or enforcement of an order, judgment, or decree rendered outside this state.
  1. By personal delivery in the manner prescribed for service within this state;
  2. In the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction;
  3. By any form of mail addressed to the person to be served and requiring a signed receipt;
  4. As directed by the foreign authority in response to a letter rogatory; or
  5. As directed by the court.

B. Individuals Eligible to Make Service. Service outside this state may be made by any individual permitted to make service of process under the law of this state or the law of the place in which the service is made or who is designated by a court of this state. In addition, any attorney for a party is eligible to make service of process in the manner prescribed in subparagraphs (c) and (e) of paragraph 1 of subsection A. of this section.

C. Individuals to Be Served; Special Cases. When the law of this state requires that in order to effect service, one (1) or more designated individuals be served, service outside this state under this section must be made upon the individual or individuals.

D. Assistance to Tribunals and Litigants Outside this State.

1. Any court of record of this state may order service upon any person who is domiciled or can be found within this state of any document issued in connection with a proceeding in a tribunal outside this state. The order may be made upon application of any interested person or in response to a letter rogatory issued by a tribunal outside this state and shall direct the manner of service.

2. Service in connection with a proceeding in a tribunal outside this state may be made within this state without an order of court.

E. Other Provisions of Law Unaffected. This section does not repeal or modify any other law of this state permitting another procedure for service.

History. Acts 1963, No. 101, § 2; 1973, No. 37, § 1; A.S.A. 1947, § 27-2503.

Cross References. Method of service, §§ 16-58-12016-58-128, § 16-58-130.

Summons, ARCP 4(c).

Case Notes

Alternative Service.

Where, under the circumstances, plaintiff was denied in its efforts to give defendants actual or personal service provided for out-of-state persons under the methods set forth under subdivision A.1. of this section and ARCP 4(e), plaintiff was relegated to obtain service of process on defendants under ARCP 4(f), which is another effective procedure for service under this section, the long-arm law; subsection E. of this section provides this section does not repeal or modify any other law of this state permitting another procedure for service. Horne v. Savers Fed. Sav. & Loan Ass'n, 295 Ark. 182, 747 S.W.2d 580 (1988).

Individuals Eligible to Make Service.

Summons could be served by the sheriff of the county in which property was located. Stivers v. Pacific Bldg., Inc., 269 Ark. 294, 601 S.W.2d 822 (1980).

Refusal of Summons.

One who is subject to the long-arm jurisdiction of a court of Arkansas cannot defeat jurisdiction by the simple expedient of refusing to accept a registered letter containing a summons. Merriott v. Whitsell, 251 Ark. 1031, 476 S.W.2d 230 (1972).

Service on Agent.

The long-arm statute displaced the common law principle of the transitory cause of action as a rationale for asserting jurisdiction over corporate defendants and required that the cause of action arise out of prescribed conduct such as the transaction of business in Arkansas. To the extent that Running v. Southwest Freight Lines, 227 Ark. 839, 303 S.W.2d 578 (1957), stands for the principle that service upon an agent appointed by a foreign corporation to receive process in this state confers personal jurisdiction in a transitory action regardless of the long-arm statute, it is overruled. Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992).

Validity of Service.

In a personal injury action arising from an automobile accident, where a copy of the complaint and summons, which was mailed to the out-of-state address of defendant's brother, was returned marked “undelivered,” plaintiff failed to exercise the reasonable diligence required in determining defendant's last known address and, therefore, the default judgment based on the purported service was void. Canal Ins. Co. v. Hall, 259 Ark. 797, 536 S.W.2d 702 (1976).

If a summons misstated the amount of time allowed for an answer, that discrepancy would not render the summons fatally defective so as to prevent service under this section. Stivers v. Pacific Bldg., Inc., 269 Ark. 294, 601 S.W.2d 822 (1980).

Nonresident corporation not authorized to do business in Arkansas was not properly served with notice under this section where the attempt to use the Secretary of State resulted in the notice being returned. A.O. Smith Harvestore Prods., Inc. v. Burnside, 282 Ark. 27, 665 S.W.2d 288 (1984).

Cited: Arkansas-Best Freight Sys. v. Youngblood, 359 F. Supp. 1115 (W.D. Ark. 1973); Renault Cent., Inc. v. International Imports of Fayetteville, Inc., 266 Ark. 155, 583 S.W.2d 10 (1979); Watling Ladder Co. v. Aldridge, 3 Ark. App. 27, 621 S.W.2d 499 (1981); Mountaire Feeds, Inc. v. Agro Impex, 677 F.2d 651 (8th Cir. 1982); Miller v. Tony & Susan Alamo Found., 924 F.2d 143 (8th Cir. 1991).

16-4-103. [Reserved.]

Publisher's Notes. The Uniform Interstate and International Procedure Act (U.L.A.), Article III, which concerns the taking of depositions, was not adopted in Arkansas.

16-4-104. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that this section, concerning proof of official records, was deemed superseded by the Arkansas Rules of Civil Procedure. The section was derived from Acts 1963, No. 101, § 4; A.S.A. 1947, § 27-2505.

16-4-105. Other provisions of law unaffected.

Except as otherwise provided herein, this chapter does not repeal or modify any law of this state:

  1. Authorizing the exercise of jurisdiction on any bases other than the bases specified in § 16-4-101;
  2. Permitting a procedure for service or for obtaining testimony, documents, or other things for use in this state or in a tribunal outside this state other than the procedures prescribed in § 16-4-102; or
  3. Authorizing the proof of official records or any entry or lack of entry therein by any method other than the methods prescribed in § 16-4-104 [superseded].

History. Acts 1963, No. 101, § 5; A.S.A. 1947, § 27-2506.

16-4-106. Uniformity of interpretation.

This chapter shall be so interpreted and construed as to effectuate its general purposes to make uniform the laws of those states which enact it.

History. Acts 1963, No. 101, § 6; A.S.A. 1947, § 27-2507.

16-4-107. Severability.

If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

History. Acts 1963, No. 101, § 7; A.S.A. 1947, § 27-2507n.

16-4-108. Short title.

This chapter may be cited as the “Uniform Interstate and International Procedure Act”.

History. Acts 1963, No. 101, § 8; A.S.A. 1947, § 27-2501.

16-4-109, 16-4-110. [Reserved.]

Publisher's Notes. Uniform Interstate and International Procedure Act (U.L.A.), §§ 6.05 and 6.06, which concern repeal and time of taking effect, respectively, were not adopted in Arkansas.

Chapter 5 Nonliability Of Volunteer Fire Fighters, Etc.

Effective Dates. Acts 1987, No. 189, § 3: Mar. 13, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that volunteer firefighters, fire department board members and administrative personnel of volunteer fire departments should not suffer civil liability for personal injuries or property damage resulting from acts or omissions of volunteer firefighters while engaged in carrying out their responsibilities as firefighters provided that such acts or omissions were performed in good faith and did not constitute gross negligence; that the law does not now provide such civil immunity; that the present state of the law results in inequitable burdens being placed upon such persons, and that this Act is immediately necessary to eliminate such inequity. 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.”

16-5-101. Volunteer firefighters, etc. — Nonliability.

  1. No volunteer firefighter or board member of a volunteer fire department nor administrative personnel of a volunteer fire department shall be civilly liable for personal injury or property damage resulting from any act or omission of a volunteer firefighter in carrying out his or her official duties as a firefighter if the act or omission was in good faith and did not constitute gross negligence.
  2. The provisions of this section shall not apply to volunteer fire departments of incorporated cities or towns.

History. Acts 1987, No. 189, § 1.

Cross References. Dues for volunteer fire departments, § 14-20-108.

16-5-102. Damage resulting from installation of free smoke alarms — Liability.

  1. No volunteer firefighter shall be civilly liable for personal injury or property damage resulting from any act or omission in the installation of a smoke alarm provided free of charge if the act or omission did not constitute intentional wrongdoing.
  2. No board member of any fire department nor administrative personnel of any fire department shall be civilly liable for personal injury or property damage resulting from any act or omission of a volunteer firefighter in installation of a smoke alarm provided free of charge.

History. Acts 1991, No. 891, § 1.

Chapter 6 Volunteer Immunity

Cross References. Liabilities of attorneys, § 16-22-301 et seq.

Division of Volunteerism, § 25-10-128.

Effective Dates. Acts 1987, No. 390, § 8: Mar. 25, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that many persons contribute their valuable knowledge and services as unpaid volunteers in the promotion and performance of various programs administered by State and local agencies which are designed to meet the needs of the State and the several communities and that such persons should not be held civilly liable for their acts or omissions in carrying out their authority and responsibilities as volunteers if such acts or omissions were performed in good faith and did not constitute gross negligence; that the law does not now specifically provide such civil immunity; that the present state of the law results in inequitable burdens being placed upon such persons; and that this Act is immediately necessary to eliminate 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.”

Research References

U. Ark. Little Rock L.J.

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

Case Notes

Charitable Immunity.

Although Arkansas still recognizes the common-law doctrine of charitable immunity, it is very narrowly construed; the following list is illustrative but not determinative of the factors used to determine whether an organization is entitled to charitable immunity: (1) whether the organization's charter limits it to charitable or eleemosynary purposes; (2) whether the organization's charter contains a “not-for-profit” limitation; (3) whether the organization's goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its service free of charge to those unable to pay; and (8) whether the directors and officers receive compensation. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

Subchapter 1 — Volunteers Generally

A.C.R.C. Notes. Because Acts 1997, No. 276 enacted a subchapter 2, the existing provisions of this chapter have been designated as subchapter 1.

16-6-101. Title.

This subchapter may be cited as the “Arkansas Volunteer Immunity Act”.

History. Acts 1987, No. 390, § 2.

Research References

Ark. L. Notes.

Sampson, Nonprofit Risk; Nonprofit Insurance, 2008 Ark. L. Notes 83.

16-6-102. Purpose.

Since the spirit of volunteerism has long animated citizens of this state to give of their time and abilities to help others, the State of Arkansas would be wise to ensure that qualified volunteers shall not be civilly liable for personal injury or property damage resulting from any act or omission in carrying out their authority or responsibilities as volunteers. While there are no known recent instances in Arkansas where a volunteer has been subjected to personal liability for negligence in performing volunteer duties and there are no cases presently known to be pending, the recent publicity generated in relation to the perceived insurance crisis has heightened concern among many who would provide volunteer services, making it more difficult to provide certain important services, cultural and educational events, and other opportunities to the citizens of the State of Arkansas through voluntary services. This subchapter limits and defines the liability of volunteers in order to diminish their concern with regard to personal liability associated with volunteer work in order that the state might maximize this important human resource.

History. Acts 1987, No. 390, § 1.

16-6-103. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Qualified volunteer” means any person who of free will provides goods or services without financial compensation to or through any volunteer agency in connection with a volunteer program;
  2. “Volunteer agency” means any volunteer program of all departments, institutions, and divisions of state government, community volunteer organization, or any not-for-profit corporation which has received a 501(c)(3) designation from the United States Internal Revenue Service, other than one established principally for the recreational benefit of its stockholders or members; and
  3. “Volunteer activity” means any activity within the scope of any project, program, effort, or other regular activity sponsored by a volunteer agency with the intent to effect a charitable purpose or confer other public benefit, including, but not limited to, enhancement of the cultural, civic, religious, educational, scientific, or economic resources of the community.

History. Acts 1987, No. 390, § 3.

U.S. Code. The phrase “a 501(c)(3) designation” refers to an exemption codified at 26 U.S.C. § 501(c)(3).

16-6-104. Volunteer not vicariously liable — Construction of subchapter.

  1. A qualified volunteer shall not be held vicariously liable for the negligence of another in connection with or as a consequence of his or her volunteer activities.
  2. Nothing in this subchapter shall be construed to limit the liability of a person acting outside the scope of the volunteer program.
  3. Nothing in this subchapter shall be construed to limit the liability of any volunteer agency.

History. Acts 1987, No. 390, §§ 4, 6, 7.

Case Notes

Volunteer Agency.

A juvenile rehabilitation camp housing juvenile offenders, as a volunteer agency, was not entitled to immunity under this subchapter, nor entitled to charitable immunity under the common-law doctrine of charitable immunity. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

16-6-105. Nonliability for damages — Exceptions.

A qualified volunteer shall not be liable in damages for personal injury or property damage sustained by one who is a participant in or a recipient, consumer, or user of the services or benefits of a volunteer by reason of any act or omission of a qualified volunteer in connection with the volunteer except as follows:

  1. Where the qualified volunteer is covered by a policy of insurance, in which case liability for ordinary negligence is limited to the amount of coverage provided;
  2. Where the qualified volunteer acts in bad faith or is guilty of gross negligence;
    1. Where the qualified volunteer negligently operates a motor vehicle, aircraft, boat, or other powered mode of conveyance.
    2. If the actionable conduct of the qualified volunteer is covered by a policy of liability insurance, his or her liability for ordinary negligence shall be limited to the amount of the coverage provided; or
    1. Where the qualified volunteer negligently performs professional services extended to an individual which the qualified volunteer is licensed under state law to perform, including, but not limited to, legal, engineering, and accounting services.
      1. If the volunteer agency either provides or requires its professional volunteers to carry professional liability insurance in an amount customarily carried by a member of the profession involved, liability for ordinary negligence in rendering professional service shall be limited to the amount of coverage available or the amount required by the agency, whichever is larger.
      2. This exception does not apply to nurses or similar health care providers rendering health care services or other professionals rendering professional services to a government entity, business, or volunteer agency.

History. Acts 1987, No. 390, § 5; 1997, No. 276, § 2.

Publisher's Notes. Pursuant to § 16-6-201(d), the provisions of this section regarding licensed medical professionals are superseded by § 16-6-201.

Cross References. Volunteer immunity for licensed health care professionals, § 16-6-201.

Case Notes

Cited: King v. Little Rock Sch. Dist., 301 Ark. 148, 782 S.W.2d 574 (1990); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).

Subchapter 2 — Healthcare Professionals

A.C.R.C. Notes. References to “this chapter” in subchapter 1 may not apply to this subchapter which was enacted subsequently.

Cross References. Immunity from liability for volunteer services by retired physicians and surgeons, § 17-95-106.

Effective Dates. Acts 2007, No. 120, § 2: Feb. 16, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that indigent individuals in this state are in need of professional dental care; that dental professionals are not sufficiently protected from liability for rendering their services voluntarily to indigent individuals; and that this act is immediately necessary because the lack of immunity causes dental professionals to be reluctant to provide dental services voluntarily and without compensation. 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.”

16-6-201. Indigent care — Rules — Definition.

  1. As used in this section, “healthcare professional” means a person who:
    1. Is licensed or certified under Subtitle 3 of Title 17; or
    2. Is a student or resident of a healthcare profession program leading to a professional degree, a license, or certification under Subtitle 3 of Title 17 who is:
      1. Providing services within the scope of the training of that student or resident; and
      2. Under the supervision of a person who is licensed in the healthcare profession for which the student is seeking a degree, a license, or a certification.
  2. A healthcare professional who renders healthcare services voluntarily and without compensation to any person at any free or low-cost healthcare clinic located in the State of Arkansas and registered by the State Board of Health that accepts no insurance payments and provides healthcare services free of charge to persons unable to pay or provides healthcare services for a nominal fee shall not be liable for any civil damages for any act or omission resulting from the rendering of the healthcare services unless the act or omission was the result of the healthcare professional's gross negligence or willful misconduct.
    1. The board may promulgate rules necessary to provide for the registration of free or low-cost healthcare clinics under this section.
    2. The rules shall require that each person to whom healthcare services are provided:
      1. Has been fully informed before any treatment by the healthcare professional providing the services or by the staff of the healthcare clinic of the immunity from civil suit provisions of this section; and
      2. Has acknowledged that fact in writing on a form approved or designated by the Department of Health.
  3. The board and its members and the department and its agents and employees are exempt and immune from liability for any claims or damages when performing their duties under this section.
  4. The provisions of this section supersede the exception for licensed medical professionals under the Arkansas Volunteer Immunity Act, § 16-6-101 et seq.

History. Acts 1997, No. 276, § 1; 2007, No. 120, § 1; 2007, No. 837, § 1; 2019, No. 315, § 1286.

Amendments. The 2007 amendment substituted “health care” for “medical” throughout the section; substituted “Physicians, dentists, or other health care professionals” for “Physicians and health care professionals” in (a); substituted “health care professional” for “physician” in (b)(2); inserted “and Human Services” in (b)(2)(B) and (c); and added (e).

The 2019 amendment substituted “rules” for “regulations” in the introductory language of (c)(2).

Cross References. Program for indigent medical care, § 20-77-107.

Chapter 7 Dispute Resolution

Preambles. Acts 1993, No. 641 contained a preamble which read:

“WHEREAS, formal judicial process can on occasion be disproportionately time consuming and costly for adequate resolution of certain kinds of disputes which arise in this state; and

“WHEREAS, the cumulative burden of disputes for which formal judicial proceedings are inadequate can be substantial; and

“WHEREAS, the ensuing frustrations springing from unresolved disputes vex our citizens, and neglected disputes have the potential for escalating into more serious social consequences; and

“WHEREAS, the various forms of dispute resolution processes can increase access of the public to enhanced dispute resolution opportunities, and thereby amplify public regard and usage of the legal system and reduce the volume of matters which encumber the court system of this state.

“Therefore, ….”

Research References

Am. Jur. Am. Jur. 2d (new topic service), Alt. Disp. Res. § 1 et seq.

Subchapter 1 — Arkansas Alternative Dispute Resolution Commission

A.C.R.C. Notes. Due to the enactment of subchapter 1 of this chapter by Acts 1995, No. 673, the former provisions of this chapter have been redesignated as subchapter 2.

Effective Dates. 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 [sic], 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. 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.”

Research References

Ark. L. Notes.

Kilpatrick, How Much Do You Know (or Care) About Alternative Disputer Resolution?, 1996 Ark. L. Notes 53.

16-7-101. Purpose.

The purpose of this subchapter is to encourage, promote, and develop voluntary alternative processes throughout the state to resolve disputes, cases, and controversies of all kinds.

History. Acts 1995, No. 673, § 1.

Publisher's Notes. Former § 16-7-101 has been renumbered as § 16-7-201.

16-7-102. Arkansas Alternative Dispute Resolution Commission established — Terms of members — Meetings — Rules — Quorum.

      1. There is hereby created the Arkansas Alternative Dispute Resolution Commission, which shall consist of seven (7) members.
        1. Three (3) members shall be attorneys appointed by the Chief Justice of the Supreme Court, one (1) of whom shall have been recommended to the court by the Arkansas Bar Association.
        2. One (1) member shall be appointed by the Speaker of the House of Representatives.
        3. One (1) member shall be appointed by the President Pro Tempore of the Senate.
        4. Two (2) members shall be appointed by the Governor.
    1. All members shall have demonstrated prior interest or involvement in alternative dispute resolution.
    2. At least one (1) commission member shall be an Arkansas resident considered to be a representative of voluntary or nonprofit alternative dispute resolution programs in the State of Arkansas.
    3. Each member shall serve for six (6) years.
    4. If any member dies, resigns, or is otherwise unable to serve prior to the expiration of the term, the appointing entity shall appoint a successor to serve the unexpired portion of the term.
    5. The members of the commission shall elect a chair.
  1. Members of the commission may receive expense reimbursement in accordance with § 25-16-902.
  2. The commission shall hold regular quarterly meetings each year on dates fixed by the commission and such special meetings as the commission determines are necessary.
  3. The commission may issue rules and shall publish rules for the regulation of its proceedings.
  4. A majority of the commission shall constitute a quorum.

History. Acts 1995, No. 673, §§ 2-5; 1997, No. 250, § 115; 1997, No. 1354, § 34; 2001, No. 1288, § 13; 2019, No. 315, § 1287.

A.C.R.C. Notes. Former § 16-7-102 has been renumbered as § 16-7-202.

As enacted by Acts 1995, No. 673, subdivision (a)(4) began:

“The first members of the commission shall draw for terms of two (2), four (4), or six (6) years and shall serve until their successors are appointed. Thereafter, …”

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

16-7-103. Staffing.

  1. General staff support, facilities, and operating assistance for the Arkansas Alternative Dispute Resolution Commission shall be provided by the Administrative Office of the Courts from funds appropriated for that purpose by the General Assembly.
  2. The commission shall select a Coordinator of Alternative Dispute Resolution Programs who shall be an employee of the Administrative Office of the Courts.
  3. Other employees may be added by the commission as are needed to carry out the purposes of this subchapter.

History. Acts 1995, No. 673, § 6.

A.C.R.C. Notes. Former § 16-7-103 has been renumbered as § 16-7-203.

16-7-104. Powers and duties of commission.

The Arkansas Alternative Dispute Resolution Commission shall have the authority and responsibility to:

  1. Promote in a systematic manner the appropriate use of alternative dispute resolution;
  2. Provide education to the courts, other government agencies, and the public on the methods, advantages, and applications of alternative dispute resolution;
    1. Establish standards and rules for the certification, professional conduct, discipline, and training of persons who shall be eligible and qualified to serve as compensated mediators, negotiators, conciliators, arbitrators, or other alternative dispute resolution neutrals in and for state and local courts.
    2. However, nothing in this subchapter or in the standards and rules promulgated by the commission shall in any way prevent the parties to the litigation from utilizing any recognized voluntary or nonprofit program of dispute resolution;
  3. Develop recommended guidelines, including the types of disputes which may be subject to alternative dispute resolution and standard procedures for mediation, and other forms of alternative dispute resolution;
  4. Assist state and local courts and governmental and other agencies with the development and implementation of alternative dispute resolution programs;
  5. Develop standardized forms for use in state and local courts and governmental and other agencies for the reference of cases to alternative dispute resolution and for the purpose of monitoring the use of alternative dispute resolution in the state;
  6. Establish fees to be levied by the courts and governmental and other agencies and paid by parties utilizing alternative dispute resolution processes;
  7. Apply for and accept gifts or grants from any public or private source for use in maintaining and improving alternative dispute resolution programs in the state; and
  8. Collect fees for tuition and registration of educational programs and to assist in maintaining a roster of third-party neutrals.

History. Acts 1995, No. 673, § 7; 1999, No. 602, § 1; 2019, No. 315, § 1288.

A.C.R.C. Notes. Former § 16-7-104 has been renumbered as § 16-7-204.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (3)(B).

16-7-105 — 16-7-107. [Transferred.]

A.C.R.C. Notes. Former §§ 16-7-10516-7-107 have been renumbered as §§ 16-7-20516-7-207, respectively.

Subchapter 2 — Dispute Resolution Processes

A.C.R.C. Notes. Due to the enactment of subchapter 1 of this chapter by Acts 1995, No. 673, the former provisions of this chapter have been redesignated as subchapter 2.

Preambles. Acts 1993, No. 641 contained a preamble which read:

“WHEREAS, formal judicial process can on occasion be disproportionately time consuming and costly for adequate resolution of certain kinds of disputes which arise in this state; and

“WHEREAS, the cumulative burden of disputes for which formal judicial proceedings are inadequate can be substantial; and

“WHEREAS, the ensuing frustrations springing from unresolved disputes vex our citizens, and neglected disputes have the potential for escalating into more serious social consequences; and

“WHEREAS, the various forms of dispute resolution processes can increase access of the public to enhanced dispute resolution opportunities, and thereby amplify public regard and usage of the legal system and reduce the volume of matters which encumber the court system of this state.

“Therefore, ….”

Research References

Ark. L. Notes.

Kilpatrick, How Much Do You Know (or Care) About Alternative Disputer Resolution?, 1996 Ark. L. Notes 53.

16-7-201. Legislative purpose and intent.

It is the intent of the General Assembly to:

  1. Encourage and authorize the use of dispute resolution processes throughout this state to resolve disputes, cases, and controversies of all kinds. Such processes include, but are not limited to, negotiation, mediation, conciliation, arbitration, private judging, moderated settlement conferences, mediation-arbitration, fact finding, mini-trials, and summary jury trials;
  2. Encourage the development of new and the improvement of existing processes in this state; and
  3. Encourage the courts, the officers and employees of the courts of this state, state and local officers, departments, state and local governments and administrative agencies, state and local enforcement officers and agencies, prosecuting authorities and public defenders, and all other state and local officials, agencies, districts, and authorities to become versed in, accept, use, develop, and improve processes appropriate to the fair, just, and efficient resolution of disputes, cases, and controversies of all kinds in this state.

History. Acts 1993, No. 641, § 1.

A.C.R.C. Notes. This section was formerly codified as § 16-7-101.

Research References

Ark. L. Rev.

Moberly and Levine, The New Arkansas Appellate-Mediation Program, 61 Ark. L. Rev. 429.

Case Notes

Cited: Wynne-Ark., Inc. v. Richard Baughn Constr., 2020 Ark. App. 140, 597 S.W.3d 114 (2020).

16-7-202. Duty and authority of the courts.

    1. It is the duty of each trial and appellate court of this state and each court is hereby vested with the authority to encourage the settlement of cases and controversies pending before it by suggesting the referral of a case or controversy to an appropriate dispute resolution process agreeable to the parties.
    2. On motion of all the parties, the court must make such an order of reference and continue the case or controversy pending the outcome of the selected dispute resolution process.
  1. In addition, each circuit and appellate court of this state is vested with the authority to order any civil, juvenile, probate, or domestic relations case or controversy pending before it to mediation.
  2. If a case or controversy is ordered to mediation, the parties may:
    1. Choose an appropriate mediator from a roster provided by the Arkansas Alternative Dispute Resolution Commission of those mediators who meet the commission's requirement guidelines for that type of case; or
    2. Select a mediator not on the commission's roster, if approved by the court.
    1. A party may move to dispense with the order to mediate for good cause shown.
    2. For purposes of this subsection, “good cause shown” shall include, but not be limited to, a party's inability to pay the costs of mediation.
  3. Each court is further granted the discretionary authority to make at the request of a party appropriate orders to confirm and enforce the results produced by the dispute resolution process.

History. Acts 1993, No. 641, § 2; 2003, No. 1179, § 1.

A.C.R.C. Notes. This section was formerly codified as § 16-7-102.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Practice, Procedure, and Courts, Mediation, 26 U. Ark. Little Rock L. Rev. 448.

Case Notes

Constitutionality.

Writ of prohibition was denied in a case challenging the constitutionality of subsection (b) of this section because a circuit court had jurisdiction to hear a motion relating to estate administration due to Ark. Const., Amend. 80, § 6, and the constitutionality of a statute could have been heard by a circuit court and appealed. Ellis v. Reynolds, 368 Ark. 572, 247 S.W.3d 845 (2007).

Abuse of Discretion.

After the parties failed to reach an agreement during mediation and did not agree on which issues had been mediated, the circuit court abused its discretion in failing to hold a hearing and in dismissing portions of the wife's motion to compel concerning issues that the parties agreed were mediated. Smyth v. Smyth, 2019 Ark. App. 12, 570 S.W.3d 472 (2019).

Circuit court's directive was to schedule mediation within 10 days, which was done, but when the circuit court learned the mediation was not scheduled to occur for approximately two and a half months, it amended the directive to have the mediation take place within 10 days; dismissing the wife's contempt petition because mediation did not take place within 10 days was an abuse of discretion, as the wife was not dilatory in scheduling the mediation, and this short window was punitive. Smyth v. Smyth, 2019 Ark. App. 12, 570 S.W.3d 472 (2019).

16-7-203. Duty and authority of state and local officers and agencies and governments.

  1. It is the duty of all the elements of government expressed or implied by § 16-7-201(3), and they are hereby authorized, to use dispute resolution processes in resolving any and all disputes, cases, or controversies in which they may be directly or indirectly involved, whether between themselves and members of the public or between any other state or local officer, agency, government, or entity of this state or of any other state or any element or entity of the federal government.
  2. The elements of government expressed or implied by § 16-7-201 are authorized to use arbitration, private judging, mediation-arbitration, fact finding, mini-trials, and summary jury trials in resolving any and all disputes, cases, or controversies in which they may be directly or indirectly involved, whether between themselves and members of the public, or their employees or bona fide employee organizations, or corporations, or nonprofit organizations, or any other state or local officer, agency, government, or entity of this state or of any other state or any element or entity of the federal government, so long as the parties have agreed to participate. This subsection is permissive and not mandatory.

History. Acts 1993, No. 641, § 3; 2007, No. 1206, § 1.

A.C.R.C. Notes. This section was formerly codified as § 16-7-103.

Amendments. The 2007 amendment added (b) and made a related change.

16-7-204. Counseling by attorneys.

An attorney licensed in this state when practicing in this state is encouraged to advise his or her client about the dispute resolution process options available to him or her and to assist him or her in the selection of the technique or procedure, including litigation, deemed appropriate for dealing with the client's dispute, case, or controversy.

History. Acts 1993, No. 641, § 4.

A.C.R.C. Notes. This section was formerly codified as § 16-7-104.

16-7-205. Duty to keep records of dispute resolution efforts and to file annual reports.

The courts and all the other elements of government expressed or implied by § 16-17-201(3) may keep information concerning all their efforts to use dispute resolution processes, whether or not such efforts lead to successful outcomes.

History. Acts 1993, No. 641, § 5.

A.C.R.C. Notes. This section was formerly codified as § 16-7-105.

16-7-206. Confidentiality of communications in dispute resolution procedures.

  1. Except as provided by subsection (c) of this section, a communication relating to the subject matter of any civil or criminal dispute made by a participant in a dispute resolution process, whether before or after the institution of formal judicial proceedings, is confidential and is not subject to disclosure and may not be used as evidence against a participant in any judicial or administrative proceeding.
  2. Any record or writing made at a dispute resolution process is confidential, and the participants or third party or parties facilitating the process shall not be required to testify in any proceedings related to or arising out of the matter in dispute or be subject to process requiring disclosure or production of information or data relating to or arising out of the matter in dispute.
  3. If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the court having jurisdiction of the proceedings to determine in camera whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure.

History. Acts 1993, No. 641, § 6.

A.C.R.C. Notes. This section was formerly codified as § 16-7-106.

Case Notes

Construction.

While this section does prevent revealing the particulars of the communications relating to the subject matter of the mediation, the Court of Appeals does not read this section to mean that the circuit court is prevented from knowing the subject matter of the mediation; otherwise, the circuit court could never know if there had been an attempt to mediate issues before motions were filed in the circuit court. Here, the circuit court refused to hold a hearing to make this determination. Smyth v. Smyth, 2019 Ark. App. 12, 570 S.W.3d 472 (2019).

Discovery.

It was error to grant at this point in the case defendant subcontractor's motion to compel discovery of the confidential settlement agreement between plaintiff and defendant general contractor that resulted from mediation, when the subcontractor sought contribution and apportionment of fault, because (1) any right of contribution does not arise until one joint tortfeasor pays more than the tortfeasor's share of liability, and no damages had been awarded yet, and (2) it was error to find the general contractor and subcontractor were joint tortfeasors before any evidence was presented. Contrary to plaintiff's argument, however, the Civil Justice Reform Act, § 16-55-201 et seq., did not eliminate contribution among “joint tortfeasors”. Wynne-Ark., Inc. v. Richard Baughn Constr., 2020 Ark. App. 140, 597 S.W.3d 114 (2020).

16-7-207. Immunity of impartial third parties.

No impartial third party administering or participating in a dispute resolution process shall be held liable for civil damages for any statement or decision made in connection with or arising out of the conduct of a dispute resolution process unless the person acted in a manner exhibiting willful or wanton misconduct.

History. Acts 1993, No. 641, § 7.

A.C.R.C. Notes. This section was formerly codified as § 16-7-107.

Chapters 8, 9 [Reserved.]

[Reserved]

Subtitle 2. Courts and Court Officers

Chapter 10 General Provisions

A.C.R.C. Notes. References to “this chapter” in subchapters 1 and 2 may not apply to subchapters 3-10 which were enacted subsequently.

Research References

Ark. L. Rev.

Smith, The Influence of the Arkansas Supreme Court's Opinions on Policy Made by the General Assembly: A Case Study, 18 U. Ark. Little Rock L.J. 441.

U. Ark. Little Rock L.J.

Gingerich, Out of the Morass: The Move to State Funding of the Arkansas Court System, 17 U. Ark. Little Rock L.J. 249.

Subchapter 1 — General Provisions

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Preambles. Acts 1959, No. 5 contained a preamble which read:

“Whereas, Canon 30 of the Canons of Judicial Ethics of the American Bar Association provides that if a judge should decide to become a candidate for any office not judicial, he should resign in order that it cannot be said that he is using the power or prestige of his judicial position to promote his own candidacy;

“Whereas, the Canons of Professional Ethics and Judicial Ethics have been approved by the bench and bar of the State of Arkansas….”

Acts 1981, No. 477 contained a preamble which read:

“Whereas there are approximately 30,000 deaf citizens residing in the State of Arkansas; and

“Whereas, there is no provision in the laws of this State providing for an impartial and verbatim translation of court proceedings wherein deaf persons are either parties thereto or called as witnesses therein; and

“Whereas, this Act is necessary in order to insure the integrity of our judicial process in the eyes and minds of our deaf citizens;

“Now, therefore….”

Effective Dates. Acts 1931, No. 153, § 5: effective on passage.

Acts 1971, No. 536, § 2: Apr. 5, 1971. Emergency clause provided: “The General Assembly hereby finds that backlogs of criminal cases existing in some circuits may require the assignment of additional judges to said circuits in accordance with Act 496 of 1965; that it may be excessively time consuming and expensive to select a jury panel for said judges unless this act is passed; that this Act is necessary to fully implement Act 496 0f 1965; therefore, this Act being necessary for the expeditious dispatch of criminal cases within the State of Arkansas, an emergency is hereby declared to exist and this Act shall be in full force and effect from and after the date of its passage and approval.”

Acts 1971, No. 599, § 3: Apr. 7, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that the salary of the executive secretary of the Judicial Department should be fixed from time to time by the General Assembly and the Appropriation Act establishing the biennial appropriation for the Judicial Department; and that the retirement benefits of the executive secretary should be clarified; and that only by the immediate passage of this Act may such objectives be accomplished. 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. 209, § 4: Feb. 21, 1977. Emergency clause provided: “Because of drastic increases in the price of gasoline and other travel expenses in recent years and many judges are now suffering personal losses, 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 1979, No. 82, § 3: Feb. 7, 1979; Acts 1980 (1st Ex. Sess.), No. 2, § 3: Jan. 25, 1980. Emergency clauses provided: “It is hereby found and determined by the General Assembly that in some courts in the State there is a serious backlog of cases, some of which have been pending in excess of a year; that it is essential to the effective administration of justice that civil matters which have been pending on court dockets for a long period of time be heard and disposed of as soon as possible; that this Act is designed to provide a procedure for the prompt disposition of those cases that have been pending in the courts a year or more 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. 357, § 3: became law without Governor's signature, Mar. 5, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the caseload for many courts in this State results in lengthy delays in the disposition of civil cases; that the appointment of licensed attorneys to litigate claims on agreement of the parties would greatly relieve the courts of this State from the burden of overcrowded dockets; and that this Act is immediately necessary to provide such relief. 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. 981, § 4: became law without Governor's signature, Apr. 8, 1981. Emergency clause provided: “Because of drastic increases in the costs and maintenance of an automobile and in the price of gasoline and other travel expenses, and in the costs of supplies, equipment and other actual expenses in the performance of judicial duties in recent years, and that many judges are now suffering personal losses by being forced to pay the expenses of carrying on judicial duties from their salaries, 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. 334, § 6: 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 (2) 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. 569, § 3: Mar. 26, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that there has been a tremendous increase in the number of offenses perpetrated against children in this State, that children of very tender years have increasing difficulty remembering past events necessary for a criminal prosecution the longer the length of time between the event and the trial, and that offenses against children are especially serious as to require, as nearly as possible, immediate removal of the offender from society. Therefore, this Act is necessary to shorten the time between the occurrence of the criminal offense and the trial and punishment of the perpetrator. 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 (1st Ex. Sess.), No. 11, § 4: June 22, 1985. Emergency clause provided: “It is hereby found and determined by the Seventy-Fifth General Assembly, meeting in Extraordinary Session, that because of drastic increases in the costs and maintenance of an automobile and in the price of gasoline and other travel expenses, and in the costs of supplies, equipment and other actual expenses in the performance of judicial duties in recent years, and that many judges are now suffering personal losses by being forced to pay the expenses of carrying on judicial duties from their salaries, 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. 4, § 15: July 1, 1993. Emergency clauses 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 1995, No. 3, § 17: 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. 1256, § 23: Apr. 13, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state; and it is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible, and the lack of reliable data on the current costs of the state judicial system prohibits any comprehensive change in the funding of the system at this time. 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. 209, § 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 1997, No. 788, § 36: became law without the Governor's signature. Noted Mar. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 1997, No. 1341, § 35: became law without the Governor's signature. Noted Apr. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 1999, No. 1508, § 19: Apr. 15, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act makes various technical corrections in the Arkansas Code; that this act further clarifies the law to provide that the Arkansas Code Revision Commission may correct errors resulting from enactments of prior sessions; and that this act should go into effect immediately in order to be applicable during the codification process of the enactments of this 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 2001, No. 1314, § 2: Apr. 5, 2001. 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, 2001 is essential to the operation of the state court system, 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 progress. 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. 932, § 6: 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 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 2015, No. 268, § 16: July 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the act entitled ‘AN ACT TO MAKE AN APPROPRIATION FOR PERSONAL SERVICES AND OPERATING EXPENSES FOR THE ADMINISTRATIVE OFFICE OF THE COURTS FOR THE OFFICIAL COURT REPORTERS AND TRIAL COURT ADMINISTRATORS OF THE CIRCUIT COURTS FOR THE FISCAL YEAR ENDING JUNE 30, 2016; AND FOR OTHER PURPOSES.’ requires the passage of this act; that the effectiveness of this act on July 1, 2015, is essential to the operation of the Administrative Office of the Courts, and that in the event of an extension of the legislative session, the delay in the effective date of this act beyond July 1, 2015, could work irreparable harm upon the proper administration and provision of essential governmental programs. 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 on and after July 1, 2015.”

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 2017, No. 698, § 2: Mar. 27, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Director of the Administrative Office of the Courts provides a vital function concerning the operation of the judiciary; that the position of Director of the Administrative Office of the Courts will soon be vacant due to the departure of the current director; and that this act is immediately necessary because the Supreme Court feels it is necessary to consider as many qualified persons as necessary to fill the position. 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.”

Research References

ALR.

Disqualification, for bias, of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Delaying or obstructing discovery as basis for contempt proceeding. 8 A.L.R.4th 1181.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Failure of attorney to attend court, or tardiness, as contempt. 13 A.L.R.4th 122.

Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case. 16 A.L.R.4th 550.

Practice of law: statute prohibiting judge from engaging in. 17 A.L.R.4th 829.

Disqualification of judge because of assault or threat against him by party or person associated with party. 25 A.L.R.4th 923.

Failure to rise in courtroom as constituting criminal contempt. 28 A.L.R.4th 1250.

Oral communications insulting to particular state judge, made to third party out of judge's physical presence, as criminal contempt. 30 A.L.R.4th 155.

Attorney's use of objectionable questions and examination of witness in state judicial proceeding as contempt of court. 31 A.L.R.4th 1279.

Contrary order issued by another court: contempt based on violation of original court order. 36 A.L.R.4th 978.

Disqualification of judge in state proceedings to punish contempt against or involving himself in open court and in his actual presence. 37 A.L.R.4th 1004.

Failure to rise in state courtroom as constituting criminal contempt. 38 A.L.R.4th 563.

Intoxication as contempt of court. 46 A.L.R.4th 238.

Am. Jur. 20 Am. Jur. 2d, Courts, § 16 et seq.

Ark. L. Rev.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

Administration of the Courts in Arkansas: Challenge, Performance, and Prospects, 30 Ark. L. Rev. 235.

C.J.S. 21 C.J.S., Courts, § 1 et seq.

U. Ark. Little Rock L.J.

Gingerich, Out of the Morass: The Move to State Funding of the Arkansas Court System, 17 U. Ark. Little Rock L.J. 249.

16-10-101. Administrative responsibilities of the Supreme Court.

  1. The Supreme Court shall have general superintending control over the administration of justice in all courts in the State of Arkansas. The Chief Justice of the Supreme Court shall be directly responsible for the efficient operation of the judicial branch and of its constituent courts and for the expeditious dispatch of litigation therein and the proper conduct of the business of the courts.
    1. Under rules prescribed by the Supreme Court, the Chief Justice may require reports from all courts of the state and may issue such orders, rules, and regulations as may be necessary for the efficient operation of those courts to ensure the prompt and proper administration of justice and may assign, reassign, and modify assignments of circuit and district court judges to hold, upon a temporary basis, regular or special sessions for the transaction of civil or criminal business within any other such court.
    2. The lower courts shall keep such adequate and uniform records as are required by law or as may be required by rule or order of the Supreme Court.
  2. The Supreme Court, with the assistance of the Director of the Administrative Office of the Courts, shall devise a uniform system of numbering, cataloging, and classifying cases in all the courts of record in this state, and the courts of record shall utilize the system in conducting the business of the courts.
  3. In the event of the absence of the Chief Justice or his or her inability to perform the duties described in this section, or as required by rule or order of the Supreme Court, the duties may be performed by the several associate justices of the Supreme Court in the order of their seniority of service on the Supreme Court.

History. Acts 1965, No. 496, § 1; 1973, No. 237, § 1; 1981, No. 489, § 1; A.S.A. 1947, § 22-142; Acts 1989, No. 760, § 1; 2003, No. 1185, § 38; 2019, No. 315, § 1289.

A.C.R.C. Notes. Acts 2003, No. 1711, § 1, provided:

“(a) In order to assist the Arkansas General Assembly and the Arkansas Supreme Court with the respective duties and responsibilities which they are assigned under the Arkansas Constitution to establish the jurisdiction of state courts and to set the number and boundaries of circuit court districts, there is created the Circuit Court Apportionment Commission to be composed of the following persons:

“(1) The Chairman of the Senate Interim Committee on Judiciary or his or her designee, plus two (2) other members of the committee to be selected by the President Pro Tempore of the Senate;

“(2) The Chairman of the House Interim Committee on Judiciary or his or her designee, plus two (2) other members of the committee to be selected by the Speaker of the House;

“(3) The Chief Justice of the Arkansas Supreme Court or his or her designee, who shall serve as chair of the commission;

“(4) The President of the Arkansas Judicial Council;

“(5)(A) Two (2) circuit judges appointed by the Arkansas Judicial Council, one (1) of whom shall be a minority.

“(B) The judges shall be from different congressional districts;

“(6) The President of the Arkansas Bar Association or his or her designee; and

“(7) Two (2) persons appointed by the Governor, one (1) of whom shall be a minority.

“(b) In addition to the voting members identified in subsection (a) of this section, the following persons shall serve as nonvoting ex-officio members of the commission:

“(1) The Prosecutor Coordinator or his or her designee;

“(2) The Executive Director of the Public Defender Commission or his or her designee;

“(3) The dean of the University of Arkansas at Fayetteville School of Law, or his or her designee; and

“(4) The dean of the University of Arkansas at Little Rock School of Law or his or her designee.

“(c) The commission shall meet at the call of the chair and hold hearings between July 1, 2004, and December 31, 2004.

“(d) The commission shall review the current jurisdiction of state courts and the number and location of circuit court districts and make a recommendation to the Eighty-Fifth General Assembly and the Arkansas Supreme Court.

“(e) The Administrative Office of the Courts shall provide necessary meeting space, staff, clerical support, and technical assistance to the commission.”

Publisher's Notes. Acts 1981 (1st Ex. Sess.), No. 38, § 3, provided that the additional circuit-chancery judgeship created in each of the Eighth, Twelfth, and Nineteenth Circuit and Chancery Districts and the additional circuit judgeship created in the Sixth Circuit and Chancery District by § 1 of the act would be subject to the assignment authority of the Chief Justice, pursuant to this section, and requested that the Chief Justice utilize the services of these circuit-chancery judges in alleviating heavy caseloads in other circuit and chancery districts by use of such assignments.

As to name changes involving the Administrative Office of the Courts, see Publisher's Notes, § 16-10-102.

Amendments. The 2019 amendment inserted “rules” preceding “and regulations” in (b)(1).

Case Notes

Assignments.

It is the parties' or trial court's responsibility to apprise the Supreme Court as to whether an assignment is necessary under this section. Once that assignment is made, that responsibility continues. Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995), overruled in part, Smith v. Wright, 2015 Ark. 189, 461 S.W.3d 687 (2015).

Newly Elected Judges.

Fact that a new circuit judge had been elected after judge's assignments did not, in itself, suggest the new circuit judge was not recused from trying the case. Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995), overruled in part, Smith v. Wright, 2015 Ark. 189, 461 S.W.3d 687 (2015).

Special Judges.

The exchange of circuits upon agreement of the circuit judges or the appointment of a judge by the Chief Justice were alternative methods of selecting a judge to preside over the impaneling of a grand jury to investigate the trial judge of the circuit court. State v. George, 250 Ark. 968, 470 S.W.2d 593 (1971).

Where special judge, lawfully elected pursuant to Ark. Const., Art. 7, § 21 [repealed], had already exercised jurisdiction over pending case, his judgment would take priority over the judgments of a judge assigned at a later date pursuant to this section. Wessell Bros. Foundation Drilling Co. v. Crossett Public School Dist., 287 Ark. 415, 701 S.W.2d 99 (1985).

Cited: Henry v. Powell, 262 Ark. 763, 561 S.W.2d 296 (1978); Weston v. State, 265 Ark. 58, 576 S.W.2d 705; Hall v. Lowery, 545 F. Supp. 1152 (E.D. Ark. 1982); Burris v. Britt, 281 Ark. 225, 663 S.W.2d 715 (1984); Arkansas Dep't of Human Servs. v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989); Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993); Lee v. Lee, 330 Ark. 310, 954 S.W.2d 231 (1997); State v. Armstrong, 331 Ark. 294, 960 S.W.2d 451 (1998); Smith v. Wright, 2015 Ark. 189, 461 S.W.3d 687 (2015).

16-10-102. Administrative Office of the Courts — Director — Cooperation of court officers.

    1. There shall be an office for the administration of the nonjudicial business of the judicial branch which shall be known as the “Administrative Office of the Courts”.
    2. There shall be a Director of the Administrative Office of the Courts who shall be nominated by the Chief Justice of the Supreme Court, subject to the approval of the Supreme Court and the Arkansas Judicial Council, Inc. Subsequent to the appointment, the director shall hold office at the pleasure of the Supreme Court.
  1. The director shall meet the qualifications as determined by the Supreme Court.
  2. The director shall receive such salary as may be fixed from time to time by the biennial appropriations salary act for the Administrative Office of the Courts.
  3. The director shall not engage directly or indirectly in the practice of law and shall hold no other office or employment.
  4. The director, subject to the direction of the Supreme Court, shall perform the following functions:
    1. Examine the administrative methods of the courts and make recommendations to the Supreme Court for their improvement;
    2. Examine the state of the dockets of the courts, secure information as to their needs for assistance, if any, prepare statistical data and reports of the business of the courts, and advise the Supreme Court to the end that proper action may be taken;
    3. Examine the estimates of the courts of the state for appropriations and present to the Supreme Court recommendations concerning them;
    4. Examine the statistical systems of the courts and make recommendations to the Supreme Court for a uniform system of judicial statistics;
    5. Collect, analyze, and report to the Supreme Court statistical and other data concerning the business of the courts;
    6. With the approval of the Supreme Court and at the request of the Arkansas Judicial Council, Inc., the director shall act as Secretary of the Arkansas Judicial Council, Inc., and shall perform such duties as may be assigned to him or her;
    7. Examine the data processing needs of the courts and make recommendations to the Supreme Court as to the purchase and use of hardware and software for computer systems, telecommunications systems, and microfilming systems, and provide education to the courts on the use of such systems so as to improve the quality and efficiency of justice in the state;
    8. Assist the Supreme Court in the operation of the Supreme Court Library; and
    9. Attend to the other nonjudicial business of the judicial branch under such rules as the Supreme Court may by order adopt.
  5. The director shall, with the approval of the Supreme Court, appoint such assistants as may be necessary. He or she shall be provided with such office facilities as may be required.
  6. The director shall advise and assist clerks of trial courts in the keeping of records of their proceedings and shall make reports and recommendations in connection therewith to the Supreme Court, the trial judges, and the clerks of those courts.
  7. The clerks, officers, and employees of the courts shall comply with all requests of the director for information and statistical data relating to the business of the courts and the expenditure of public funds for their maintenance and operation. The director shall notify the Supreme Court of any noncompliance with such requests.

History. Acts 1965, No. 496, § 2; 1971, No. 599, § 1; 1973, No. 237, § 2; A.S.A. 1947, § 22-143; Acts 1989, No. 760, § 2; 2017, No. 698, § 1; 2019, No. 315, § 1290.

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.”

Act 2015, No. 598, § 5, provided: “AOC RESPONSIBILITY FOR COURT REPORTERS AND TRIAL COURT ADMINISTRATORS.

“(a) The Administrative Office of the Courts shall be responsible for the financial oversight of the Official Court Reporters of the Circuit Courts and Trial Court Administrators, which shall include but not be limited to biennial and annual budget requests, all budgeting activities, monitoring expenses, travel, substitute expenses, indigent transcript payments and to ensure projected annual expenditures do not exceed total available funding.

“(b) The Administrative Office of the Courts with assistance from the Arkansas Judicial Council shall establish an official procedure or rules for all new hires, terminations and salary adjustments for Trial Court Administrators and Official Court Reporters. The official procedures or rules shall be implemented prior to July 1, 2015 and shall be administered for all Trial Court Administrators and Official Court Reporters.

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

Act 2015, No. 598, § 6, provided: “FUNDING FROM THE ADMINISTRATION OF JUSTICE FUND.

“(a)(i) The Administrative Office of the Courts shall be responsible for requesting and verifying the need for any additional appropriation, any position change level, and any increase in the Administration of Justice Fund Allocation Section as authorized annually through special language in the Department of Finance and Administration's Disbursing Act, for the Trial Court Administrators and Official Court Reporters.

“(ii) Any annual or biennial request for an increase in the Administration of Justice Fund allocation section for Trial Court Administrators and/or Official Court Reporters shall not exceed the total or projected total revenues available for the Trial Court Administrator Fund or the Court Reporter's Fund from the Administration of Justice Fund as determined by the Administrative Office of the Courts with assistance from the Department of Finance and Administration.

“(b)(i) During a fiscal year the Administrative Office of the Courts shall not approve any change level in salary, operating expense and other distributions for Trial Court Administrators which will exceed actual or projected fund balances in the Trial Court Administrator Fund.

“(ii) During a fiscal year the Administrative Office of the Courts shall not approve any change level in salary, operating expense and other distributions for Court Reporters which will exceed actual or projected fund balances in the Court Reporter's Fund.

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

Act 2016, No. 80, § 5, provided: “AOC RESPONSIBILITY FOR COURT REPORTERS AND TRIAL COURT ADMINISTRATORS.

“(a) The Administrative Office of the Courts shall be responsible for the financial oversight of the Official Court Reporters of the Circuit Courts and Trial Court Administrators, which shall include but not be limited to biennial and annual budget requests, all budgeting activities, monitoring expenses, travel, substitute expenses, indigent transcript payments and to ensure projected annual expenditures do not exceed total available funding.

“(b) The Administrative Office of the Courts with assistance from the Arkansas Judicial Council shall establish an official procedure or rules for all new hires, terminations and salary adjustments for Trial Court Administrators and Official Court Reporters. The official procedures or rules shall be implemented prior to July 1, 2015 and shall be administered for all Trial Court Administrators and Official Court Reporters.

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

Act 2016, No. 80, § 6, provided: “FUNDING FROM THE ADMINISTRATION OF JUSTICE FUND.

“(a)(i) The Administrative Office of the Courts shall be responsible for requesting and verifying the need for any additional appropriation, any position change level, and any increase in the Administration of Justice Fund Allocation Section as authorized annually through special language in the Department of Finance and Administration's Disbursing Act, for the Trial Court Administrators and Official Court Reporters.

“(ii) Any annual or biennial request for an increase in the Administration of Justice Fund allocation section for Trial Court Administrators and/or Official Court Reporters shall not exceed the total or projected total revenues available for the Trial Court Administrator Fund or the Court Reporter's Fund from the Administration of Justice Fund as determined by the Administrative Office of the Courts with assistance from the Department of Finance and Administration.

“(b)(i) During a fiscal year the Administrative Office of the Courts shall not approve any change level in salary, operating expense and other distributions for Trial Court Administrators which will exceed actual or projected fund balances in the Trial Court Administrator Fund.

“(ii) During a fiscal year the Administrative Office of the Courts shall not approve any change level in salary, operating expense and other distributions for Court Reporters which will exceed actual or projected fund balances in the Court Reporter's Fund.

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

Publisher's Notes. Acts 1989, No. 761, § 1, provided:

“(a) From and after the passage of this act, the ‘Arkansas Judicial Department’ shall be known and designated as the ‘Administrative Office of the Courts’, and the ‘Executive Secretary’ of the Arkansas Judicial Department shall be known as the ‘Director’ of the Administrative Office of the Courts.

“(b) Any and all statutes of the State of Arkansas now in force in which the institution now designated as ‘Arkansas Judicial Department’ shall be construed to refer to the ‘Administrative Office of the Courts.’ Said ‘Administrative Office of the Courts’ shall succeed to all rights and benefits and assume all the responsibilities of said ‘Arkansas Judicial Department.’

“(c) Any and all statutes of the State of Arkansas now in force in which the official now designated as ‘executive secretary’ of the Arkansas Judicial Department shall be construed to refer to the ‘director’ of the Administrative Office of the Courts. Said ‘director’ shall succeed to all rights and benefits and assume all the responsibilities of said ‘executive secretary’.”

The Per Curiam Order of the Supreme Court of Arkansas, dated June 28, 1993, provided, in part:

“All Supreme Court Committees, the Supreme Court Library, and the Director of Professional Programs will hereafter operate under the Administrative Office of the Courts and subject to the administrative authority of the Director of that Office. We do not place the constitutional offices of Supreme Court Reporter and Supreme Court Clerk, see Ark. Const. art. 7, § 7, under the Administrative Office of the Courts. They will remain directly responsible to the Supreme Court although we may choose to transfer certain administrative functions which have been handled by the Clerk to the Administrative Office of the Courts.”

Amendments. The 2017 amendment substituted “meet the qualifications as determined by the Supreme Court” for “possess the same qualifications and shall be subject to the same restrictions as district judges” in (b).

The 2019 amendment deleted “and regulations” following “rules” in (e)(9).

Case Notes

Cited: Hall v. Lowery, 545 F. Supp. 1152 (E.D. Ark. 1982).

16-10-103. Training and education of court personnel.

  1. The state's responsibility for training and providing additional judicial education to circuit judges, district judges, city judges, circuit clerks, municipal clerks, case coordinators, court reporters, and all other personnel directly associated with the state's courts shall be administered by the Administrative Office of the Courts.
  2. The Administrative Office of the Courts shall have the authority to assess and collect fees for tuition and registration for educational programs it offers.

History. Acts 1985, No. 334, § 3; A.S.A. 1947, § 22-158; Acts 2001, No. 1314, § 1.

16-10-104. Courts of record.

The Supreme Court, Court of Appeals, and all circuit and county courts shall be courts of record and shall keep just and faithful records of their proceedings.

History. Rev. Stat., ch. 43, § 13; A.S.A. 1947, § 22-101; Acts 2003, No. 1185, § 39.

Case Notes

Applicability.

This section applies to county courts. Adams v. Tackett, 236 Ark. 171, 365 S.W.2d 125 (1963).

Unauthorized Practice of Law.

Circuit court did not err in dismissing a company's tax assessment appeal for lack of jurisdiction when its tax manager, a nonlawyer, initiated the appeal on its behalf because the company invoked the legal process and its nonattorney representative engaged in the unauthorized practice of law; the company, through a nonlawyer, lodged its appeal in the county court, initiating the appeal process in a court of record. Desoto Gathering Co., LLC v. Hill, 2017 Ark. 326, 531 S.W.3d 396 (2017).

Cited: Edens v. State, 258 Ark. 734, 528 S.W.2d 416 (1975).

16-10-105. Sittings of courts to be public.

The sittings of every court shall be public, and every person may freely attend the sittings of every court.

History. Rev. Stat., ch. 43, § 19; C. & M. Dig., § 2103; Pope's Dig., § 2707; A.S.A. 1947, § 22-109.

Research References

Ark. L. Notes.

Watkins, Keeping the Courthouse Doors Open, 1984 Ark. L. Notes 51.

Ark. L. Rev.

Watkins, Open Meetings Under the Arkansas Freedom of Information Act, 38 Ark. L. Rev. 268.

Notes, The Free Press-Fair Trial Controversy: A New Standard for Closure Motions in Criminal Proceedings, 38 Ark. L. Rev. 403.

Case Notes

Applicability.

This section prohibits a trial court judge from excluding members of the public from a “Denno” hearing conducted pursuant to § 16-89-107 and from excluding a newspaper reporter unless she agrees to a censorship of any story she might write about the hearing. Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979).

Jury Selection.

Jury selection is a stage of the proceedings where openness is particularly appropriate under the guarantee of a public trial provided for in U.S. Const., Amend. 6, Ark. Const., Art. 2, § 10, and this section. Memphis Publishing Co. v. Burnett, 316 Ark. 176, 871 S.W.2d 359 (1994).

Presence of Officers.

In trials attracting large audiences, it is not improper to have enough officers to enforce order and to protect the accused from violence and to prevent his escape or possible rescue. Thus, in prosecution for murder, presence in the courtroom of numerous officers in uniform as well as certain United States Marines who attended either as spectators or as witnesses, the deceased having been a Marine, was a matter within the discretion of the trial court. Rayburn v. State, 200 Ark. 914, 141 S.W.2d 532 (1940).

Pretrial Proceedings.

In order to overcome the presumption of open pretrial hearings, the proponent of closure must demonstrate a substantial probability that (1) irreparable damage to the defendant's fair trial right will result from an open hearing, and (2) alternatives to closure will not adequately protect the right to a fair trial. Additionally, the trial court's findings must be articulated and sufficiently specific to demonstrate on review that these requirements have been satisfied. Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983).

Pretrial proceedings and their record must be open to the public, including representatives of the news media, and before an exception to that general rule is made, the test set out in Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983), must be met; if that standard is met and a pleading is ordered sealed, it must be opened to the public as soon as the probability of irreparable damage to the accused's right to a fair trial no longer exists. Arkansas Newspaper, Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984).

Pretrial proceedings should not have been closed to the public where there was no showing that a substantial probability that irreparable damage to the defendant's fair trial right would result from an open hearing and that alternatives to closure would not adequately protect the right to a fair trial. Arkansas Newspaper, Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984).

Requirement Met.

Circuit court's decision to hold the trial in chambers over a corporation's objection was affirmed where the trial was transcribed by a court reporter, the public had access to the proceedings so that it could ascertain whether the court was properly carrying out its duties responsibly, and counsel for the corporation admitted in oral argument that he could not say whether the in-chambers trial affected the outcome of the case. Ashley Bancstock Co. v. Meredith, 2017 Ark. App. 598, 534 S.W.3d 762 (2017).

Voir Dire.

The trial court lacks the authority to prohibit the public and press from the voir dire examination. Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977).

In accordance with this section and Ark. Const., Art. 2, § 10, the voir dire examination of the jury must be held in open court; the right to an open trial may be asserted by the public, the press, and the accused. Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984).

Cited: In re Arkansas Bar Ass'n, 271 Ark. 358, 609 S.W.2d 28 (1980); Ark. Dep't of Human Servs. v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).

16-10-106. Power to issue writs and process.

All courts shall have power to issue all writs and process which may be necessary in the exercise of their respective jurisdiction, according to the principles and usages of law.

History. Rev. Stat., ch. 43, § 20; C. & M. Dig., § 2104; Pope's Dig., § 2708; A.S.A. 1947, § 22-110.

Case Notes

Contempt.

Failure to comply with order of county court could be punished as contempt by proper proceeding. Penix v. Shaddox, 165 Ark. 152, 263 S.W. 389 (1924).

Scope of Authority.

Although this section provides that all courts shall have the power to issue process which may be necessary in the exercise of their respective jurisdictions, it does not provide the trial court with carte blanche authority to issue orders of body attachment, detention, and custody, while ignoring portions of statutory provisions relating to contempt proceedings, such as § 16-10-108(c), and without affording procedural protections of due process of law to the parties being placed in arrest and custody. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994).

Supersedeas.

The circuit court may issue supersedeas to stay proceedings in case appealed to that court in order to preserve the status quo. Reese v. Steel, 73 Ark. 66, 83 S.W. 335 (1904); Williams v. Buchanan, 84 Ark. 404, 106 S.W. 202 (1907); Strangways v. Ringgold, 106 Ark. 433, 153 S.W. 619 (1913).

Cited: Hunter Wasson Pulpwood v. Banks, 270 Ark. 404, 605 S.W.2d 753 (Ct. App. 1980).

16-10-107. Process and proceedings to be in English language.

All writs, process, proceedings, and records in any court shall be in the English language, except that the proper and known name of process and technical words may be expressed in the language commonly used. They shall be made out on paper or parchment, in a fair and legible character, in words at length and not abbreviated; but such abbreviations as are commonly used in the English language may be used. Numbers may be expressed by Arabic figures or Roman numerals in the customary way.

History. Rev. Stat., ch. 43, § 18; C. & M. Dig., § 2102; Pope's Dig., § 2706; A.S.A. 1947, § 22-108.

16-10-108. Contempt.

  1. Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:
    1. Disorderly, contemptuous, or insolent behavior committed during the court's sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority;
    2. Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings;
    3. Willful disobedience of any process or order lawfully issued or made by it;
    4. Resistance willfully offered by any person to the lawful order or process of the court; and
    5. The contumacious and unlawful refusal of any person to be sworn as a witness and when so sworn a similar refusal to answer any legal and proper interrogatory.
    1. Punishment for contempt is a Class C misdemeanor.
    2. A court shall always have power to imprison until its adjournment.
    3. When any person is committed to prison for the nonpayment of any such fine, he or she shall be discharged at the expiration of thirty (30) days.
  2. Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.
    1. Whenever any person is committed for a contempt under the provisions of this section, the substance of his or her offense shall be set forth in the order or warrant of commitment.
    2. Nothing in subdivision (d)(1) of this section shall be construed to extend to any proceedings against parties or officers, as for contempt, for the purpose of enforcing any civil right or remedy.
  3. A person punished for contempt under subsections (a)-(d) of this section shall, notwithstanding, be liable to an indictment for the contempt if the contempt is an indictable offense, but the court before which a conviction may be had on such an indictment shall, in forming its sentence, take into consideration the punishment previously inflicted.

History. Rev. Stat., ch. 43, §§ 37-42; C. & M. Dig., §§ 1484-1489; Pope's Dig., §§ 1784-1789; A.S.A. 1947, §§ 34-901 — 34-906; Acts 2005, No. 1994, § 410.

Amendments. The 2005 amendment rewrote (b)(1); inserted “or she” in (b)(3); and inserted “or her” in (c) and (d)(1).

Cross References. Contempts not committed in presence or hearing of courts, or in disobedience of process, Ark. Const., Art. 7, § 26.

Research References

Ark. L. Notes.

Becker, The Remedial Side of Contempt When Injunctions are Disregarded, 1983 Ark. L. Notes 5.

Brill, A Proposed Arkansas Contempt Statute, 1984 Ark. L. Notes 29.

Gitelman, The Zealous Advocate and Contempt of Court: Attorney Contempt in Arkansas and the Need for Change, 1984 Ark. L. Notes 39.

Ark. L. Rev.

Attorneys — Contempt — Language in a Motion as Direct Contempt, 8 Ark. L. Rev. 172.

Legal Liability for the Exercise of Free Speech, 10 Ark. L. Rev. 155.

Crabtree, Contempt Law in Arkansas, 51 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Survey — Constitutional Law, 11 U. Ark. Little Rock L.J. 161.

U. Ark. Little Rock L. Rev.

Annual Survey of Case Law: Practice, Procedure, and Courts, 29 U. Ark. Little Rock L. Rev. 905.

Case Notes

Constitutionality.

This section, which sets forth the powers of the court in punishing criminal contempt, is not a limitation on the power of the court to inflict punishment for disobedience of process, for, under Ark. Const., Art. 7, § 26, the legislature cannot abridge the power of the courts to punish for contempt in disobedience of their process; the constitution specially reserved this inherent power in the courts when delegating authority to the legislature to regulate punishments for contempts. Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988).

Where a juvenile was deprived of his right to counsel during a contempt proceeding because the juvenile only had the services of an attorney ad litem and not a defense attorney, the juvenile's due process rights were violated and the court's orders were invalid. Ark. Dep't of Human Servs. v. Mainard, 358 Ark. 204, 188 S.W.3d 901 (2004).

In General.

Contempt is divided into criminal contempt and civil contempt. In determining whether a particular action by a judge constitutes a finding of criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Criminal contempt carries an unconditional penalty, and the contempt cannot be purged. Ark. Dep't of Human Servs. v. Dowdy, 2018 Ark. 307, 558 S.W.3d 847 (2018).

Arkansas law also distinguishes between direct and indirect contempt, the former being committed in the presence of the court. Ark. Dep't of Human Servs. v. Dowdy, 2018 Ark. 307, 558 S.W.3d 847 (2018).

Purpose.

The purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. A civil contempt proceeding is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

Applicability.

Subsection (b) of this section does not apply to contempts committed by offering physical violence to judge at time when court is not in session. Weldon v. State, 150 Ark. 407, 234 S.W. 466 (1921).

Evidence was sufficient to support a finding of contempt against the attorney where the attorney frequently interrupted the judge and argued with him; however, the appellate court found that the justification for contempt would be served by reducing the attorney's jail sentence from 10 days to three days, with credit given for time served. McCullough v. State, 353 Ark. 362, 108 S.W.3d 582 (2003).

Contrary to the attorney's argument, the father, through his guardian ad litem, did not file a motion for contempt under subsection (c) of this section, but rather filed a motion to quash the deposition, which contained a request for sanctions under Ark. R. App. P. Civ. 11; the trial court did not enter a contempt order against the attorney, but he argued such on appeal and did not develop an argument regarding the Rule 11 sanctions, and because he failed to do so, the court refused to develop an argument for him and thus the court affirmed. McDermott v. Sharp, 371 Ark. 462, 267 S.W.3d 582 (2007).

A judge's power to punish for criminal contempt is not limited by this section. Morris v. State, 2017 Ark. 157, 518 S.W.3d 70 (2017).

When the circuit court found an attorney in contempt for failing to appear on time for a first-degree murder trial and fined him $4,000, the circuit court was acting under its inherent power and was not constrained by the $500 limit that the Legislature has authorized for a Class C misdemeanor; however, as the purpose of the contempt punishment would be accomplished by a lesser fine, the appellate court reduced the fine to $2,000. Morris v. State, 2017 Ark. 157, 518 S.W.3d 70 (2017).

Actions Constituting Contempt.

Interfering with property in custody of law with or without consent of the attaching officer is contempt. Atkins v. Swope, 38 Ark. 528 (1881).

Preventing a party from attending court is contempt. Turk v. State, 123 Ark. 341, 185 S.W. 472 (1916).

—Disobeying Order.

Court may refuse to hear a party in contempt for disobeying its order. Pickett v. Ferguson, 45 Ark. 177 (1885).

It is a contempt of the Supreme Court for a clerk to contumaciously disobey an order to furnish a transcript of the record in a case when commanded by writ of error, mandamus, or other legal method. Barstow v. Pine Bluff, M. & N.O.R.R., 54 Ark. 551, 16 S.W. 574 (1891).

When a receiver has been appointed and has taken possession of property under his appointment, it is a contempt to attempt to deprive him of that possession by force or by judicial proceedings without the permission of the court that made the appointment. Walker v. Geo. Taylor Comm'n Co., 56 Ark. 1, 18 S.W. 1056 (1892).

Party held guilty of contempt for willful disobedience of court's order. Hervey v. Hervey, 186 Ark. 179, 52 S.W.2d 963 (1932); Hall v. State, 237 Ark. 293, 372 S.W.2d 603 (1963).

Where the failure or refusal to abide by an order of the court is the issue, the appellate court does not look behind the order to determine whether the order is valid. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).

Attorney's actions in disobeying the court's order fell within the inherent powers of the court to punish for contempt under Ark. Const., Art. 7, § 26 and the court was not bound by the limitations set out in this section. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).

Attorney jailed five days for criminal contempt for his willful and continued disobedience of the Supreme Court's per curiam orders directing him to file the abstract and brief in a criminal appeal. Pipkin v. State, 320 Ark. 159, 896 S.W.2d 432 (1995).

Attorneys, found in contempt for failing to comply with directives, demonstrated not only mismanagement of their client's affairs, but also an inability to fulfill their obligations to the Supreme Court in failing to file a brief, even after extensions of time were granted to do so. Stone v. State, 321 Ark. 501, 902 S.W.2d 231 (1995).

Actions in violating orders enjoining parties' massive Christmas light displays fell within the inherent power of the court to punish for contempt. Osborne v. Power, 322 Ark. 229, 908 S.W.2d 340 (1995).

The court denied a petition for writ of certiorari on the issue of whether a citation for contempt was appropriate where a circuit court held two prosecuting attorneys in contempt and incarcerated them after they refused to proceed with the jury trial in a criminal case in contravention of the scheduling order. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000).

In a criminal contempt case under subdivision (a)(3) of this section, substantial evidence supported the trial court's determination that defendant willfully violated the court's orders requiring her to make restitution payments because defendant testified that she received a monthly disability check in the amount of $633 but did not use the money to make restitution payments. Summers v. State, 2012 Ark. App. 247 (2012).

In a case in which an attorney appealed a circuit court's order finding him in contempt and fining him $100, he unsuccessfully argued that he did not interrupt the court but that the rhythms of the colloquy reflected the normal ebb and flow of a sometimes tense discussion. He had repeatedly interrupted the judge despite numerous warnings not to interrupt, and both the transcript and the audio recording of the hearing showed that the circuit's court's decision was supported by substantial evidence. Benca v. Benton County Circuit Court, 2013 Ark. 448 (2013).

Attorney was properly held in contempt because the attorney admittedly asked witnesses about issues into which an order barred the attorney from inquiring. James v. Pulaski County Circuit Court, 2014 Ark. 305, 439 S.W.3d 19 (2014).

Substantial evidence supported the circuit court's decision finding a county supervisor in contempt where a caseworker testified that the supervisor told her to release the emergency hold, the circuit court found the caseworker credible, and the emergency-hold order was clear that the child was to be taken into Department of Human Services custody. Ark. Dep't of Human Servs. v. Hellyer, 2017 Ark. App. 294, 521 S.W.3d 158 (2017).

Circuit court did not err in holding father in contempt for violating the terms of the paternity order to provide health insurance for the child. Williams v. Lofton, 2018 Ark. App. 606, 569 S.W.3d 872 (2018).

—Disobeying Process.

Where a party having actual notice of the issuance of a writ of injunction against him evades the service of the writ and violates the injunction, he is guilty of contempt, if the court had jurisdiction to make the order. Pitcock v. State, 91 Ark. 527, 121 S.W. 742 (1909).

One who, even without force or intimidation or direct refusal to obey process, hinders or prevents the prompt service thereof by deception or artifice is guilty of contempt of court. Bryan v. State, 99 Ark. 163, 137 S.W. 561 (1911).

Petitioner held guilty of contempt for failure to respond to subpoena. Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971).

Process, in the sense of this section, is a comprehensive term which includes all writs, rules, orders, executions, warrants, or mandates issued during the progress of an action, even those used to carry a judgment into effect, including a commitment to prison for a criminal offense or for contempt. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978).

The portion of a commitment order of the court concerning custody of defendant constituted process of the court. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978).

This section is not a limitation on the power of the courts to impose punishment for disobedience of process, because under Ark. Const., Art. 7, § 26 the legislature cannot abridge the power of the courts to punish for contempt in disobedience of their process. Ark. Dep't of Human Servs. v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991).

Refusal to comply with a court order was “disobedience of process” even though the order was not in writing. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).

Substantial evidence supported the circuit court's finding that appellant willfully disobeyed or resisted the process or order of the court; when confronted with registration and lien information, appellant denied ownership of the vehicles, and he took steps to avoid execution of a writ to the sheriff to take possession of the vehicles. Burrow v. J.T. White Hardware & Lumber Co., 2018 Ark. App. 212, 547 S.W.3d 500 (2018).

—Failure to Answer Question.

A witness adjudged in contempt for failure to answer, after stating that to answer would criminate himself, was denied an appeal. Cossart v. State, 14 Ark. 538 (1854).

The fact that the questions asked a witness are irrelevant or improper furnishes no reason for impeaching the commitment for contempt. Ex parte Butt, 78 Ark. 262, 93 S.W. 992 (1906).

—Intoxication.

Defendant who appeared in court intoxicated was guilty of contempt even if defendant intended no disrespect. Burradell v. State, 326 Ark. 182, 931 S.W.2d 100 (1996).

—Publications.

Any citizen has the right to comment upon proceedings and decisions of the court, to discuss their correctness and the fitness or unfitness of the judges, but he has no right to degrade the court by libelous publications which are an abuse of the liberty of the press. State v. Morrill, 16 Ark. 384 (1855).

Distribution of pamphlet tended to interfere with the orderly conduct of the judiciary by creating a clear and present danger to the administration of justice, and provided basis for contempt conviction. Tupy v. State, 234 Ark. 821, 354 S.W.2d 728 (1962).

—Statements.

It was a contempt of court for an attorney to assert in open court that he had heard the court was corrupt. Davies v. State, 73 Ark. 358, 84 S.W. 633 (1903).

Mere spoken words to a lawyer out of the presence of the court, which make no threat or attempt to interfere in any proceeding, do not amount to criminal contempt. Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984).

Attorney's argument that the chancellor was biased and had already made her mind up about the case, that she had allowed a worst case scenario to take place, and that she would not even listen to him, was disrespectful and tended to impair the respect due the court's authority. Thus, it was contumacious. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).

Actions Not Constituting Contempt.

Filing repeated motions which are thought to be for the purpose of vexation or delay does not constitute contempt. Johnson v. State, 87 Ark. 45, 112 S.W. 143 (1908).

Evidence insufficient to establish contempt. Ex parte Winn, 105 Ark. 190, 150 S.W. 399 (1912).

Motion asking judge to recuse himself which contained allegations of criminal misconduct was not contemptuous and was not sufficient to form the basis of a conviction for criminal contempt. Clark v. State, 291 Ark. 405, 725 S.W.2d 550 (1987).

Trial court had not issued an order commanding defense attorney from raising issue of informant's prior arrest and misdemeanor convictions for the purpose of showing informant's motive, plan or intent and could not find him in contempt for doing so. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989).

Attorney was wrongly held in contempt because an order barring the attorney's inquiry into witnesses' juvenile probation or juvenile offenses did not bar the attorney's inquiry into the witnesses' states of mind at the time of an occurrence. James v. Pulaski County Circuit Court, 2014 Ark. 305, 439 S.W.3d 19 (2014).

Trial court erred in holding a former husband in contempt because he did not willfully disobey the requirements of a final order since it was not definite in its commands regarding the notice to be given and did not clearly express what duties it imposed; the express terms of the order requiring notice of a proposed sale for purposes of the other party's right of first refusal did not require the seller to give “market information” about a mere offer that was presented. Elder v. Elder, 2018 Ark. App. 276, 549 S.W.3d 919 (2018).

Actions Outside Court's Presence.

In contempts not committed in the court's presence, the court may initiate the proceeding to punish the contemnor by a statement or order spread upon the record, but notice thereof should be given to the defendant and a reasonable time afforded him to make his defense. Lee v. State, 102 Ark. 122, 143 S.W. 909 (1912).

There must be an accusation in court and notice to accused when contempt is committed outside presence of the court. Ex parte Coulter, 160 Ark. 550, 255 S.W. 15 (1923).

Contempt, as defined in this section, also includes breach of the peace in matters occurring outside the courtroom which tend to interrupt its proceedings; of course, willful disobedience of any lawful order of the court is considered contumacious conduct. Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984).

This section merely requires, where the contempt is not committed in the court's presence, that the party charged be notified and have reasonable time to make this defense. Nelson v. Nelson, 20 Ark. App. 85, 723 S.W.2d 849 (1987).

Persons accused of criminal attempt committed outside the court's view must be first notified by a writing, sufficiently definite to inform them to a reasonable degree of certainty of the charge against them, and then be afforded a reasonable time and opportunity to prepare and defend themselves against the charge. Arkansas Dep't of Human Servs. v. Shipman, 25 Ark. App. 247, 756 S.W.2d 930 (1988).

An attorney's conduct in failing to appear occurs outside of presence of court and thus is indirect contempt which may not be summarily punished. Allison v. Dufresne, 340 Ark. 583, 12 S.W.3d 216 (2000).

Appeal.

All criminal contempt cases are to be reviewed by appeal instead of certiorari. Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985).

The proper procedure for the review of a citation holding a party's attorney in criminal contempt is for the attorney, not the party, to appeal the conviction. Marsh v. Hoff, 15 Ark. App. 272, 692 S.W.2d 270 (1985).

In an appeal of a case of criminal contempt, the appellate court will view the record in the light most favorable to the decision of the trial judge and sustain that decision if it is supported by substantial evidence. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).

The Arkansas Supreme Court has jurisdiction of appeals in cases involving the discipline of attorneys-at-law, including contempt citations, pursuant to S. Ct. & Ct. App. Rule 1-2(a)(5). Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994).

A writ of prohibition is not an appropriate vehicle for requesting that a contempt citation be reviewed and set aside. Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994).

Attorney's Fees.

Evidence that appellant actively and knowingly interfered with the process of court was of sufficient force and character for the circuit court to have held appellant in criminal contempt. Because the evidence supported the circuit court's finding of criminal contempt, which is subject to a higher standard of review than a finding of civil contempt, the circuit court did not err when it awarded attorney's fees, which are in the nature of civil contempt. Burrow v. J.T. White Hardware & Lumber Co., 2018 Ark. App. 212, 547 S.W.3d 500 (2018).

Authority of Court.

The right to punish for contempt is inherent in all courts. Neel v. State, 9 Ark. 259 (1849); Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984).

This section is merely declaratory of what the law was before its passage; the prohibiting clause is entitled to respect as an opinion of the legislature but is not binding upon the courts. State v. Morrill, 16 Ark. 384 (1855).

Courts may go beyond the powers given by statute to enforce their constitutional powers when acts in contempt invade them. Lee v. State, 102 Ark. 122, 143 S.W. 909 (1912).

Subsection (b) of this section is not a limitation on power of courts to punish for contempt for disobedience of process. Spight v. State, 155 Ark. 26, 243 S.W. 860 (1922).

Order of chancery court appointing committee to investigate a law firm on charges of contempt and alleged violation of Code of Professional Ethics exceeded jurisdiction of court. Davis v. Merritt, 252 Ark. 659, 480 S.W.2d 924 (1972).

The fact that the actions on which the charge is based may constitute a criminal offense does not affect the jurisdiction of the court to punish the offender for contempt. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978).

Power to punish for contempt includes the right to inflict reasonable and appropriate punishment upon an offender against the authority and dignity of the court. Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984).

Inherent power to punish for contempt resides in all courts, and such power cannot be removed by enactment of laws to the contrary. Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989).

The standard regarding the inherent power of the court to sentence someone for contempt under this section is included in Ark. Const., Art. 7, § 26. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).

Subdivision (a)(3) of this section is not a limitation on the power of the court to impose punishment for disobedience of process. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).

Although § 16-10-106 provides that all courts shall have the power to issue process which may be necessary in the exercise of their respective jurisdictions, it does not provide the trial court with carte blanche authority to issue orders of body attachment, detention, and custody, while ignoring portions of statutory provisions relating to contempt proceedings, such as subsection (c) of this section, and without affording procedural protections of due process of law to the parties being placed in arrest and custody. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994).

Whether or not defendant's behavior falls into one of the five categories in subsection (a) of this section, a court has inherent power to punish contemptuous behavior committed in its presence, without regard to the restrictions imposed by subsection (a); summary punishment for contempt committed in the presence of the court is an inherent power reserved to the judiciary and cannot be abridged by legislation. Burradell v. State, 326 Ark. 182, 931 S.W.2d 100 (1996).

Attorney was wrongly held in contempt as to certain citations because the citations were issued one and four days after the alleged contempt, so subsection (c) of this section required notice and a chance to defend, which were absent. James v. Pulaski County Circuit Court, 2014 Ark. 305, 439 S.W.3d 19 (2014).

Court Orders.

Before a person may be held in contempt for violating a court order, that order must be in definite terms as to the duties thereby imposed upon him, and the command must be expressed rather than implied. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989).

When an attorney was held in contempt for inquiring into areas which the attorney was barred from asking about, the attorney could not claim, on appeal, that the attorney's cross-examination was unconstitutionally limited because the attorney was required to follow the order, whether or not the order was erroneous. James v. Pulaski County Circuit Court, 2014 Ark. 305, 439 S.W.3d 19 (2014).

Issuing a contempt order on Sunday did not invalidate the order because a verdict was received at the same time. James v. Pulaski County Circuit Court, 2014 Ark. 305, 439 S.W.3d 19 (2014).

Direct Contempt.

Summary punishment for contempt committed in the presence of the court is an inherent power reserved to the judiciary and cannot be abridged by legislation. Ark. Dep't of Human Servs. v. Dowdy, 2018 Ark. 307, 558 S.W.3d 847 (2018).

In a matter involving direct contempt, the circuit court's decision to hold an attorney for the Department of Human Services (DHS) and a DHS caseworker in contempt was supported by substantial evidence and reasonable inferences therefrom, when the attorney directed the caseworker to leave court to prevent the other parties and the court from presenting or considering evidence in a dependency-neglect hearing concerning change of custody. Ark. Dep't of Human Servs. v. Dowdy, 2018 Ark. 307, 558 S.W.3d 847 (2018).

Because the conduct in question occurred in the presence of the circuit court judge, the contempt was direct; thus, the circuit court's decision was not subject to the restrictions outlined in subsection (a) of this section, and the circuit court was within its power to punish the alleged contempt summarily. Ark. Dep't of Human Servs. v. Dowdy, 2018 Ark. 307, 558 S.W.3d 847 (2018).

Viewing the record in the light most favorable to the circuit court's decision, substantial evidence supported holding an attorney in contempt and imposing a fine; when the circuit court told the attorney the court would not proceed with a guardianship hearing without a written medical report, the attorney questioned the judge's integrity in open court, persisted with that theory after the court explained the court's reasoning, interrupted the court at least three times, and was unwilling to reconsider the accusation after being given an opportunity, displaying a lack of regard for the court's integrity and demonstrating disrespect. Streit v. State (In re Bevill), 2019 Ark. 218, 576 S.W.3d 27 (2019).

Due Process.

The Due Process Clause, as applied in criminal proceedings, requires that an alleged contemnor be notified that a charge of contempt is pending against him and be informed of the specific nature of that charge, and where notice of the charge and the nature thereof are not given, the judgment of conviction for contempt must be reversed. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

Appellant was not denied due process in contempt proceedings where he was afforded the rights required under this section, appellant acknowledged receipt of the motions which explained how he failed to comply with the order requiring him to provide certain financial information, he was given notice of the contempt hearing, and he was given the opportunity to present a defense at that hearing. Stilley v. Fort Smith Sch. Dist., 367 Ark. 193, 238 S.W.3d 902 (2006).

Circuit court erred in holding an attorney in contempt for obtaining its signature on an amended judgment and commitment order by misrepresenting the state's approval and consent because a letter the circuit court addressed to the attorney provided adequate notice that a hearing would occur, but it did not give the attorney adequate notice that criminal contempt charges were pending against her; both Arkansas law and the Fourteenth Amendment to the United States Constitution were clear that the attorney was entitled to notice not only that the circuit court was investigating the possibility of her misrepresentation but also that it was considering holding her in criminal contempt for alleged misrepresentation. Bloodman v. State, 2010 Ark. 169, 370 S.W.3d 174 (2010).

Circuit court did not err in finding a witness in criminal contempt because he did not inform counsel for a legislative audit committee that he had a conflict, but merely left a voicemail that he was not going to appear at the hearing, his reasons for failing to answer a subpoena did not amount to good cause, the petition and order to show cause sufficiently provided the witness with notice that he was accused of criminal contempt, and he did not preserve his sufficiency-of-the-evidence claim. Valley v. Pulaski County Circuit Court, 2014 Ark. 112, 431 S.W.3d 916 (2014).

Holding an attorney in contempt did not violate the attorney's rights to notice and an opportunity to be heard because the attorney willfully violated a court order in the court's presence, so the attorney could be summarily punished. James v. Pulaski County Circuit Court, 2014 Ark. 305, 439 S.W.3d 19 (2014).

Wife was afforded due process in a contempt proceeding where case law, subsection (c) of this section, and constitutional law required only that she be notified of the accusation and given a reasonable time to make her defense, and the order to show cause clearly gave notice that her failure to abide by the divorce decree regarding spending her daughter's funds subjected her to the possibility of being held in contempt and provided nearly two months' preparation time. Coleman v. Coleman, 2016 Ark. App. 324, 497 S.W.3d 688 (2016).

County supervisor's due process claim was rejected as the motion for contempt provided the supervisor sufficient notice that she personally faced contempt charges, she and the Department of Human Services were represented at the contempt hearing, she testified at the hearing, and there was no requirement for a verified petition or affidavit. Ark. Dep't of Human Servs. v. Hellyer, 2017 Ark. App. 294, 521 S.W.3d 158 (2017).

Erroneous Contempt Finding.

It was error to hold a father in indirect contempt for failure to pay child support because the Office of Child Support Enforcement presented no evidence of noncompliance, as counsel's unsworn statements that the father had not paid were not testimony or evidence required to prove indirect contempt occurring outside the court's presence, so there was no such evidence before the court. Williams v. State Office of Child Support Enforcement, 2015 Ark. App. 225, 459 S.W.3d 321 (2015).

Jurisdiction.

Trial court erred in finding the defendant in contempt of court at his third probation revocation hearing because it lost jurisdiction to do so after it executed his sentence at his second revocation hearing by accepting his guilty plea and ordering him to pay a balance of fines, fees, and court costs. Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001), superseded by statute as stated in, Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002), superseded by statute as stated in, Mills v. State, — Ark. App. —, — S.W.3d —, 2004 Ark. App. LEXIS 128 (Feb. 11, 2004), superseded by statute as stated in, Rudder v. State, — Ark. App. —, — S.W.3d —, 2005 Ark. App. LEXIS 466 (June 15, 2005).

Notice.

In action for contempt of court where accused was informed of the basis of the alleged contempt in the attachment, was further advised of facts constituting the charge at the outset of the hearing, and was given an opportunity to make his defense, which he presented, that procedure was in full compliance with this section. Hall v. State, 237 Ark. 293, 372 S.W.2d 603 (1963).

Contempt order held deficient and set aside where it failed to inform defendant with reasonable certainty of the facts constituting the offense. Taliaferro v. Taliaferro, 252 Ark. 1078, 483 S.W.2d 189 (1972).

Notice held sufficient. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978).

There is no statutory requirement that the accused be given notice prior to the issuance of an order to show cause. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978); Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985).

Notice held waived. Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985).

Where defendant, who had appeared for a hearing on a petition to revoke a suspended sentence, was then first made aware of a criminal contempt charge and the nature and degree of the offense charged, his conviction of criminal contempt was reversed. Sellers v. State, 50 Ark. App. 32, 901 S.W.2d 853 (1995).

The Department of Human Services received constitutionally adequate notice of a show cause order on contempt; although it did not receive written notice of the first scheduled hearing, it was served with notice of the second scheduled hearing. Ark. Dep't of Human Servs. v. R. P., 333 Ark. 516, 970 S.W.2d 225 (1998).

Notice of a criminal contempt proceeding was adequate where (1) the contemnor was personally served with a show cause order for the first hearing, (2) although the order did not describe the offense or order that was violated, she was present at the hearing where the matter was discussed, and (3) she was informed by telephone of the date of the second hearing. Ark. Dep't of Human Servs. v. R. P., 333 Ark. 516, 970 S.W.2d 225 (1998).

Defendant attorney had to be notified of the accusation of criminal contempt and be afforded a reasonable time to make his defense, and the finding that the petition for order to show cause was deposited with the U.S. Postal Service with first-class mail postage was not sufficient to provide defendant with notice that he was accused of criminal contempt for his failure to appear at a client's hearing; as the record failed to show constitutionally sufficient notice, the judgment was reversed. Thompson v. State, 2016 Ark. 383, 503 S.W.3d 62 (2016).

Because a former husband's alleged contemptuous actions occurred outside the immediate view and presence of the trial court, the husband was entitled to notice of the accusation and a reasonable time to make his defense; the former wife's motion did not contain the term “contempt”, and the husband's responding to the wife's motion and appearing before the trial court to defend against it was not synonymous with being notified of and defending against a specific contempt charge. Elder v. Elder, 2018 Ark. App. 276, 549 S.W.3d 919 (2018).

Circuit court erred in finding the father in contempt for nonpayment of child support because he was entitled to notice of the contempt accusation and a reasonable time to defend it, which he did not receive, as the mother did not file a motion for contempt on the issue of the child-support arrearages. Wadley v. Wadley, 2019 Ark. App. 549, 590 S.W.3d 754 (2019).

Circuit court's criminal contempt finding against former wife did not violate due process or this section because the former husband's contempt petition and the wife's response to it belied her argument that she was not informed of the alleged misconduct—not making timely child support payments—or of the possible consequences of it. Crowe v. Crowe, 2020 Ark. App. 37 (2020).

Penalty.

An unconditional penalty is criminal in nature because it is solely and exclusively punitive in character whereas a conditional penalty is civil because it is specifically designed to compel the doing of some act. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

Where a fine is unconditional and is to be paid to the court, the punishment is punitive in nature as it has no coercive or compensatory aspect, and the contempt proceeding is criminal in nature. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

Where a circuit court judge held two prosecuting attorneys in contempt after they refused to proceed with the jury trial in a criminal case in contravention of the scheduling order and ordered them incarcerated, the court modified the contempt punishment to time already served in jail and assessed a $100 fine against each prosecutor. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000).

Punishment.

Imprisonment for contempt in disobeying an order to turn over specific funds found to be in defendant's hands is not an imprisonment for debt. Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906).

An order for the restitution of specific property or funds will be enforced by punishment for contempt only where the court has first found that such property or funds are in possession or under the control of the person ordered to make the restitution. Dodson v. Butler, 101 Ark. 416, 142 S.W. 503 (1912).

Punishment held excessive. Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971).

Only contempts committed in the immediate view and presence of the trial court may be summarily punished; in all other cases, the party charged with contempt shall be notified of the accusation and afforded a reasonable time to make a defense. Harvell v. Harvell, 36 Ark. App. 24, 820 S.W.2d 463 (1991).

A sentence of 90 days in jail was held excessive. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993).

It was not an abuse of discretion to deny defendant's mistrial motion when defendant's alibi witness was arrested in the jury's presence because the witness disobeyed a court order in the jury's presence; thus, the court was entitled to summarily punish the witness. Thacker v. State, 2015 Ark. App. 573, 473 S.W.3d 583 (2015).

Imposing 20 days' incarceration on a wife who admittedly violated a divorce decree requiring her to notify the court before spending her daughter's funds was not an abuse of discretion where the wife admittedly and repeatedly violated a known court order over several years, and the court could have imposed up to 30 days' of incarceration under § 5-4-401(b)(3). Coleman v. Coleman, 2016 Ark. App. 324, 497 S.W.3d 688 (2016).

Circuit court's punishment of an unconditional penalty (eight hours of community service and a one-page paper) is treated by the law as criminal contempt. Ark. Dep't of Human Servs. v. Dowdy, 2018 Ark. 307, 558 S.W.3d 847 (2018).

Relation to Other Law.

Criminal contempt findings do not violate an automatic bankruptcy stay. Crowe v. Crowe, 2020 Ark. App. 37 (2020).

Right to Appeal.

Because defendant was convicted of a misdemeanor of criminal contempt, he had the right to appeal under § 16-91-101 and Rule 1(a) of the Rules of Appellate Procedure—Criminal. The mootness doctrine did not bar a direct appeal, despite the fact that he had already served his criminal contempt sentence. Thompson v. State, 2016 Ark. 383, 503 S.W.3d 62 (2016).

Defendant was clearly convicted of a misdemeanor because this section, which he was found guilty of violating, states that punishment for contempt is a Class C misdemeanor. Thompson v. State, 2016 Ark. 383, 503 S.W.3d 62 (2016).

A defendant's right to a direct appeal from his criminal conviction continues after his service of confinement. Thus, Swindle v. State, 373 Ark. 519, 285 S.W.3d 200 (2008), was clearly wrong to the extent that it conflicted with the Supreme Court's present holding that the mootness doctrine did not bar defendant's direct appeal of his criminal contempt conviction. Thompson v. State, 2016 Ark. 383, 503 S.W.3d 62 (2016).

Right to Jury Trial.

Wife was not entitled to a jury trial after the circuit court found her in indirect criminal contempt because there was no dispute that the sentence imposed on the wife for the five counts was less than six months and that §§ 16-10-108 and 5-4-401 did not authorize a sentence in excess of six months, and, while the court did not provide a statutory cap as requested, there was nothing to indicate from the court's colloquy with the wife's counsel that the court contemplated imposing a sentence greater than six months. Damron v. Damron, 2019 Ark. App. 160, 574 S.W.3d 166 (2019).

Service of process.

Service in a criminal contempt proceeding was governed by this section, rather than ARCrP 6.3. Ark. Dep't of Human Servs. v. R. P., 333 Ark. 516, 970 S.W.2d 225 (1998).

Time of Hearing.

Circuit court's order finding an attorney in contempt for violating an order was affirmed; although the attorney argued that the contempt hearing was held less than 20 days after the motion was filed, in violation of Ark. R. Civ. P. 6(c), this section sets no fixed time for a party's response to a charge of contempt and the attorney failed to identify any prejudice. Jackson v. Stratton, 2016 Ark. App. 6 (2016).

Cited: Hilton Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980); Arkansas Dep't of Human Servs. v. Gruber, 39 Ark. App. 112, 839 S.W.2d 543 (1992).

16-10-109. Reading of record — Signing.

Full entries of the orders and proceedings of all courts of record of each day shall be read in open court on the morning of the succeeding day. However, on the last day of the term, the minutes shall be read and signed at the rising of the court.

History. Rev. Stat., ch. 43, § 16; C. & M. Dig., § 2100; Pope's Dig., § 2704; A.S.A. 1947, § 22-106.

Case Notes

Judgments.

This section contemplates that the judgments entered do not become the pronouncements of the court until they have been approved by the court. Stanton v. Arkansas Democrat Co., 194 Ark. 135, 106 S.W.2d 584 (1937).

Signing.

This section does not require the circuit judge to sign the record of the preceding day every morning, but only at the close of the term, and the omission of the judge to sign the record at the close of the term will not invalidate judgments and decrees of the term, though such omission would be gross negligence and subject the judge to animadversion. Ex parte Slocomb Richards & Co., 9 Ark. (4 English) 375 (1849).

16-10-110. Seals.

  1. The Supreme Court and each of the circuit, district, city, and county courts shall preserve and keep a seal, with such emblems and devices as the court shall think proper.
  2. The impression of the seal of any court by stamp shall be sufficient sealing in all cases where sealing is required.
  3. When no official seal is provided, the clerk may use his or her private seal for the authentication of any record, process, or proceeding required by law to be authenticated by the seal of his or her court. The attestation of the clerk stating that he or she has no seal of office and that he or she has affixed his or her private seal shall be received as sufficient authentication without requiring any proof of the private seal or that it was affixed by the clerk.

History. Rev. Stat., ch. 43, §§ 8, 11, 12; C. & M. Dig., §§ 2095, 2097, 2098; Pope's Dig., §§ 2699, 2701, 2702; A.S.A. 1947, §§ 22-102 — 22-104; Acts 2003, No. 1185, § 40.

Cross References. Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Official seals, § 1-4-108.

Case Notes

Cited: Edens v. State, 258 Ark. 734, 528 S.W.2d 416 (1975); Unimeks, LLC v. Purolite, 2012 Ark. 20, 386 S.W.3d 419 (2012).

16-10-111. [Repealed.]

Publisher's Notes. This section, concerning failure to hold court on first day of term, was repealed by Acts 2003, No. 1185, § 41. The section was derived from Rev. Stat., ch. 43, §§ 25-27; C. & M. Dig., §§ 2108, 2109, 2209, 2210; Pope's Dig., §§ 2713, 2714, 2850, 2851; A.S.A. 1947, §§ 22-115 — 22-117.

16-10-112. Proceedings not affected by lapse of term.

No writ, process, plea, or proceeding whatsoever, civil or criminal, shall be deemed discontinued or abated by the failure of any term or session of any court, nor by the failure to enter a continuance of any suit or cause on the record. The suit or cause shall be continued and proceed as if no such failure had happened.

History. Rev. Stat., ch. 43, § 35; C. & M. Dig., § 2110; Pope's Dig., § 2715; A.S.A. 1947, § 22-118.

16-10-113. Change of term not to affect proceedings.

When any change is made by law in the times of holding any court in this state, the change shall in no way operate to affect or impair, avoid, annul, or discontinue any suit, action, appeal, recognizance, bail bond, notice, or process, original, mesne, or final, taken, instituted, or pending in that court, or returnable to or in that court. However, the suit, action, appeal, etc., shall be and stand valid and effectual in the court at the new term, in every respect, as if no change had been made in the time of holding court.

History. Acts 1856, § 3, p. 27; C. & M. Dig., § 2111; Pope's Dig., § 2716; A.S.A. 1947, § 22-119.

16-10-114. Courts not to open on Sunday — Exceptions.

  1. No court shall be opened or transact business on Sunday unless it is for the purpose of receiving a verdict or discharging a jury.
  2. Every adjournment of a court on Saturday shall always be to some other day than Sunday, except such adjournment as may be made after a cause has been committed to a jury.
  3. This section shall not prevent the exercise of the jurisdiction of any magistrate when it may be necessary in criminal cases to preserve the peace or arrest the offenders; nor shall this section inhibit the exercise of the jurisdiction of any magistrate on Sunday in disposing of misdemeanor cases where the defendant desires to and does enter a plea of guilty or a plea of nolo contendere.

History. Rev. Stat., ch. 43, § 36; C. & M. Dig., § 2113; Pope's Dig., § 2718; Acts 1955, No. 30, § 1; A.S.A. 1947, § 22-120.

Research References

Ark. L. Rev.

Courts Not to Be Open on Sunday — Exceptions, 9 Ark. L. Rev. 393.

Case Notes

Accepting Plea on Sunday.

Where the trial court accepted appellant's plea for capital felony murder on a Sunday, the statutory violation did not affect the trial court's jurisdiction over the matter; further, a petition for writ of habeas corpus was not the proper method with which to claim a statutory violation. Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006).

Administrative Boards.

An order of the Board of Chiropractic Examiners suspending a chiropractor's license made at the conclusion of a hearing held on Sunday was void. Chester v. Ark. State Bd. of Chiropractic Exmrs., 245 Ark. 846, 435 S.W.2d 100 (1968).

Receiving Verdict on Sunday.

Court, after receiving verdict on Sunday, may adjourn court over to some other day. Eyer v. State, 112 Ark. 37, 164 S.W. 756 (1914).

Issuing a contempt order on Sunday did not invalidate the order because a verdict was received at the same time. James v. Pulaski County Circuit Court, 2014 Ark. 305, 439 S.W.3d 19 (2014).

16-10-115. Trial by temporary judge.

  1. On stipulation of the litigant parties, any court of this state, except in criminal causes, may order a cause to be tried by a temporary judge who is licensed in Arkansas to practice law. The temporary judge shall be sworn and empowered to act until final determination of the cause.
  2. The stipulation of the litigant parties shall include the amount of compensation to be paid the temporary judge for trying the cause and the method of paying the compensation.
  3. The Supreme Court may adopt rules setting forth the procedure for implementing this section.

History. Acts 1981, No. 357, § 1; A.S.A. 1947, § 22-147.

Research References

ALR.

Construction and validity of state provisions governing designation of substitute, pro tempore, or special judge. 97 A.L.R.5th 537.

Case Notes

Cited: Worch v. Kelly, 276 Ark. 262, 633 S.W.2d 697 (1982).

16-10-116. [Repealed.]

Publisher's Notes. This section, concerning assignment of judge in civil action pending one year or more, was repealed by Acts 2003, No. 1185, § 42. The section was derived from Acts 1979, No. 82, § 1; 1980 (1st Ex. Sess.), No. 2, § 1; A.S.A. 1947, § 22-146.

16-10-117. Judge temporarily assigned in district — Jury list.

A judge assigned pursuant to § 16-10-101 on a temporary basis to a judicial district other than his or her own may share by concurrence with the judge of any division of the circuit court within that district the division's set of commissioners, jury wheel or box, list of jurors, and panel of jurors.

History. Acts 1971, No. 536, § 1; A.S.A. 1947, § 22-142.1.

16-10-118. Judicial officeholder as candidate for nonjudicial office — Resignation — Warrants void.

  1. Whenever the holder of a judicial office in the State of Arkansas becomes a candidate at any primary or general election for a nonjudicial office, he or she shall immediately resign his or her judicial office and thereafter shall be ineligible to hold that judicial office for the balance of the term for which he or she was elected or appointed.
  2. Any warrant issued to the holder of the judicial office after he or she shall become a candidate for a nonjudicial office shall be void.
  3. As used in this section, “judicial office” is defined to mean the office of district judge, circuit judge, Judge or Chief Judge of the Court of Appeals, and Associate Justice or Chief Justice of the Supreme Court.

History. Acts 1959, No. 5, §§ 1-3; A.S.A. 1947, §§ 22-137 — 22-139; Acts 1995, No. 549, § 2; 2003, No. 1185, § 43.

Cross References. Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-10-119. Travel expenses of judges.

  1. From the appropriation provided to the Auditor of State for trial judges' expenses, a circuit judge is authorized to be reimbursed for those travel expenses at the rate as authorized for state employees and for mileage at the rate established in the state travel rules for state employees while traveling within the state in the performance of their official duties.
  2. When a circuit judge is appointed by the Chief Justice to hear a case or cases in a jurisdiction outside of that in which he or she is elected, he or she shall be entitled to reimbursement for travel expenses and mileage as provided in subsection (a) of this section.

History. Acts 1993, No. 4, § 7; 1995, No. 3, § 5; 1997, No. 496, § 1; 2011, No. 274, § 2; 2019, No. 315, § 1291.

A.C.R.C. Notes. Acts 2011, No. 274, § 1, provided:

“Legislative intent.

“(a) Arkansas Constitution, Amendment 80, § 13(C), provides that the Chief Justice of the Arkansas Supreme Court may appoint a special judge to serve in circuit court or district court whenever a judge is disqualified or temporarily unable to serve or when there is other need for a temporary appointment, under rules prescribed by the Supreme Court.

“(b) Special judges may include retired justices or judges, active circuit judges or district judges, or licensed attorneys.

“(c) The current laws that govern the payment of special judges have not been revised since the adoption of Amendment 80 and are in conflict and need of clarification.”

Publisher's Notes. Former § 16-10-119, concerning expenses of judges, was repealed by Acts 1993, No. 4, § 6. The former section was derived from Acts 1977, No. 209, § 1; 1981, No. 981, § 1; 1985 (1st Ex Sess.), No. 11, § 1; A.S.A. 1947, § 22-141.

Amendments. The 2011 amendment inserted “to the Auditor of State” in (a); and added (b).

The 2019 amendment substituted “rules” for “regulations” in (a).

16-10-120, 16-10-121. [Repealed.]

Publisher's Notes. These sections, concerning the judicial qualifications commission and discipline or removal of judges, were repealed by Acts 1995, No. 1296, § 57. They were derived from the following sources:

16-10-120. Acts 1977, No. 418, §§ 1, 2; A.S.A. 1947, §§ 22-144, 22-145.

16-10-121. Acts 1977, No. 418, § 2; A.S.A. 1947, § 22-145. For present law, see Ark. Const., Amend. 66.

16-10-122. Sheriffs of courts.

The sheriffs of the several counties shall be sheriffs of the several courts in their respective counties, and the sheriff in the county in which the Supreme Court is held shall be sheriff of that court.

History. Rev. Stat., ch. 43, § 21; C. & M. Dig., § 2105; Pope's Dig., § 2709; A.S.A. 1947, § 22-111.

16-10-123. Furnishing fuel, blank books, and stationery.

The several sheriffs are authorized and required to furnish the fuel which may be necessary for the use of the several courts in their respective counties, and the clerks shall furnish all blank books and stationery for the use of the several courts in their respective counties.

History. Rev. Stat., ch. 43, § 43; C. & M. Dig., § 2114; A.S.A. 1947, § 22-123.

16-10-124. Enforcement of return of writ or process and payment of moneys.

Each court may enforce by attachment the return of any writ or process issued out of the same court and the payment of moneys had and received by any sheriff, coroner, constable, attorney, or collector in his or her official capacity, and the delivery of papers entrusted to him or her officially, and unlawfully withheld.

History. Rev. Stat., ch. 43, § 22; C. & M. Dig., § 2106; Pope's Dig., § 2710; A.S.A. 1947, § 22-112.

16-10-125. Audit of accounts of sheriff and clerk.

The several courts shall audit and adjust the accounts of the sheriff and clerk for all expenditures made under this act and certify the balance accordingly.

History. Rev. Stat., ch. 43, § 44; C. & M. Dig., § 2115; Pope's Dig., § 2719; A.S.A. 1947, § 22-124.

Meaning of “this act”. Rev. Stat., ch. 43, codified as §§ 16-10-10416-10-112, 16-10-114, 16-10-12216-10-125, 16-10-128, 16-11-106, 16-11-108, 16-11-113, 16-13-214, 16-13-219, 16-13-312, 16-13-324, 16-14-103, 16-14-109, 16-15-111, 16-15-113, 16-19-206.

16-10-126. [Repealed.]

Publisher's Notes. This section, concerning investigative assistance to courts in juvenile matters, was repealed by Acts 1991, No. 1081, § 5. The section was derived from Acts 1955, No. 184, §§ 1, 2, 4; A.S.A. 1947, §§ 22-133, 22-134, 22-136.

16-10-127. [Repealed.]

Publisher's Notes. This section, concerning court interpreters, was repealed by Acts 2013, No. 237, § 1. The section was derived from Acts 1981, No. 477, §§ 1-3; A.S.A. 1947, §§ 22-151 — 22-153; Acts 2001, No. 424, § 1.

16-10-128. Transcripts — Bills of exceptions.

In making out transcripts of records, except on writs of error and appeals, the bills of exception shall not be inserted unless specially required by the applicant therefor.

History. Rev. Stat., ch. 43, § 17; C. & M. Dig., § 2101; Pope's Dig., § 2705; A.S.A. 1947, § 22-107.

16-10-129. [Repealed.]

Publisher's Notes. This section, concerning abolition of judicial districts, was repealed by Acts 2003, No. 1185, § 44. The section was derived from Acts 1931, No. 153, §§ 1-4; Pope's Dig., §§ 2592-2595; A.S.A. 1947, §§ 22-126 — 22-129.

16-10-130. Precedence given to criminal trials when victim under age of fourteen.

Notwithstanding any rule of court to the contrary and in furtherance of the purposes of Arkansas Rule of Criminal Procedure 27.1, all courts of this state having jurisdiction of criminal offenses, except for extraordinary circumstances, shall give precedence to the trials of criminal offenses over other matters before the court, civil or criminal, when the alleged victim is a person under the age of fourteen (14).

History. Acts 1985, No. 569, § 1; A.S.A. 1947, § 22-159.

Publisher's Notes. Acts 1985, No. 569, § 1, is also codified as § 16-80-102.

Enforcement of § 16-10-130, Administrative Order No. 6, Arkansas Rules of Civil Procedure Appendix, Rules Volume.

Case Notes

Purpose.

The legislature did not intend to create on behalf of youthful victims standing to pursue active involvement in pending criminal cases. This section mandates the urgent scheduling of those cases for trial in preference to all other cases, absent extraordinary circumstances, and the wording of this section does not suggest that anything other than a priority is intended. Thompson v. Erwin, 310 Ark. 533, 838 S.W.2d 353 (1992).

16-10-131. Exemption from overtime parking penalties.

  1. No judge or his or her court reporter of any court of this state shall be subject to a fine or other penalty for the offense of overtime parking incurred while the person was on duty as a judge or court reporter.
  2. Any person attempting to enforce any fine or other penalty notwithstanding the provisions of this section shall be subject to contempt proceedings before the judge of the court being served by the person so charged.
  3. Nothing contained in this section shall be construed to give immunity from fine or penalty other than for the offense of overtime parking.

History. Acts 1971, No. 364, § 1; 1971, No. 729, §§ 3, 4; A.S.A. 1947, §§ 39-119, 39-120; Acts 1987, No. 711, § 1.

Publisher's Notes. Acts 1971, No. 364, § 1 and 1971, No. 729, §§ 3, 4 are also codified as § 16-31-105.

16-10-132. Addresses of parties.

The records of all judgments rendered in any circuit, county, district, or city court shall contain the addresses of all parties when reasonably ascertainable.

History. Acts 1995, No. 1087, § 1; 2003, No. 1185, § 45.

Cross References. Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-10-133. [Repealed.]

Publisher's Notes. This section, concerning trial court staff, was repealed by Acts 2015, No. 268, § 14. The section was derived from Acts 1995, No. 1256, § 16; 1997, No. 209, § 3; 1997, No. 788, § 27; 1997, No. 1341, § 26; 1999, No. 1508, § 7; 2003, No. 932, § 3.

16-10-134. [Repealed.]

Publisher's Notes. This section, concerning trial court staff and their credit for county service, was repealed by Acts 2015, No. 268, § 15. The section was derived from Acts 1997, No. 1355, § 10.

16-10-135. Aids for the hearing or visually impaired.

  1. The Administrative Office of the Courts shall employ the most cost-efficient method of procuring auxiliary aids for persons with hearing and visual impairments.
  2. These methods may include entering into a contractual arrangement with another state agency or with a private entity that is capable of providing these services.

History. Acts 1997, No. 1355, § 9.

A.C.R.C. Notes. Acts 2001, No. 1418, § 24, provided:

“Procurement-Auxiliary Aids. The Administrative Office of the Courts shall employ the most cost efficient method of procuring auxiliary aids for persons with hearing and visual impairments. These methods may include entering into a contractual arrangement with another state agency or with a private entity that is capable of providing these services. The provisions of this section shall be in effect only from July 1, 2001 through June 30, 2003.”

Cross References. Interpreters for visually or hearing impaired jurors, § 16-31-108.

16-10-136. Extrajudicial activities of justices and judges.

Restrictions on extrajudicial activities found in Arkansas Constitution, Amendment 80, shall not preclude a justice or judge from:

  1. Being a member of a reserve unit of any branch of the United States armed forces;
  2. Being a member of the National Guard;
  3. Teaching;
  4. Serving on any state or United States boards or commissions which relate to the law for the administration of justice;
  5. Serving in an extrajudicial capacity that is not prohibited by the Arkansas Code of Judicial Conduct; or
  6. Serving as judge of a city court.

History. Acts 2001, No. 914, § 1; 2005, No. 1934, § 1.

Amendments. The 2005 amendment added (6) and made a related change.

16-10-137. Administrative Office of the Courts — Annual report.

  1. On July 31 of each year, the Administrative Office of the Courts shall submit an annual report to the Legislative Council showing the number of persons charged in circuit court for each criminal offense classification, comparing the state and each judicial district.
  2. The report shall include a breakdown by race of all persons charged in each criminal offense classification.
  3. The report shall include the same data for those cases in which a final disposition has been entered by the court.

History. Acts 2003, No. 1031, § 3; 2011, No. 1132, § 1.

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.”

The Commission on Disparity in Sentencing, referred to in (a), was to be created by HB 2264 of the 2003 session, which did not pass.

Amendments. The 2011 amendment, in (a), substituted “On July 31 of each year” for “Beginning July 21, 2003, and on July 31 of each year thereafter” and deleted “and the Commission on Disparity in Sentencing” following “Legislative Council.”

16-10-138. [Repealed.]

Publisher's Notes. This section, concerning mandatory reporter training, was repealed by Acts 2013, No. 375, § 1. The section was derived from Acts 2007, No. 703, § 13.

16-10-139. Specialty court program evaluation and approval — Definition.

  1. As used in this section, “specialty court program” means one of the following:
    1. A pre-adjudication program under § 5-4-901 et seq.;
    2. An approved drug court program under the Arkansas Drug Court Act, § 16-98-301 et seq.;
    3. The Swift and Certain Accountability on Probation Pilot Program under § 16-93-1701 et seq.; and
    4. Any other specialty court program that has been approved by the Supreme Court, including without limitation specialty court programs known as:
      1. A DWI court;
      2. A mental health court;
      3. A veteran's court;
      4. A juvenile drug court;
      5. A “HOPE” court;
      6. A “smarter sentencing” court; and
      7. A mental health crisis intervention center.
  2. A specialty court program operated by a circuit court or district court must be approved by the Supreme Court in the administrative plan submitted under Supreme Court Administrative Order No. 14.
    1. The Specialty Court Program Advisory Committee shall evaluate and make findings with respect to all specialty court programs operated by a circuit court or district court in this state and refer the findings to the Supreme Court.
    2. An evaluation under this section shall reflect nationally recognized and peer-reviewed standards for each particular type of specialty court program.
    3. The Specialty Court Program Advisory Committee shall also:
      1. Establish, implement, and operate a uniform specialty court program evaluation process to ensure specialty court program resources are uniformly directed to high-risk and medium-risk offenders and that specialty court programs provide effective and proven practices that reduce recidivism, as well as other factors such as substance dependency, among participants;
      2. Establish an evaluation process that ensures that any new and existing specialty court program that is a drug court meets standards for drug court operation under § 16-98-302(b); and
      3. Promulgate rules to be approved by the Supreme Court to carry out the evaluation process under this section.
  3. A specialty court program shall be evaluated under the following schedule:
    1. A specialty court program established on or after April 1, 2015, shall be evaluated after its second year of funded operation;
    2. A specialty court program in existence on April 1, 2015, shall be evaluated under the requirements of this section prior to expending resources budgeted for fiscal year 2017; and
    3. A specialty court program shall be reevaluated every two (2) years after the initial evaluation.

History. Acts 2015, No. 895, § 15.

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.”

16-10-140. Accumulation of data concerning sexual offenses — Definitions.

  1. As used in this section:
    1. “Family or household member” means the same as defined in § 5-26-302; and
    2. “Sex offense” means the same as defined in § 12-12-903.
    1. Consistent with the rules of the Supreme Court, the Administrative Office of the Courts is encouraged to individually track or design a method to track and accumulate data on the familial or residential status of the victim of a sex offense in relation to the offender.
    2. A method designed under subdivision (b)(1) of this section shall:
      1. Indicate whether the victim was a family or household member of the offender at the time of the sex offense; and
      2. Protect against revealing the identity of the victim, either directly or indirectly.

History. Acts 2017, No. 571, § 1.

16-10-141. District court costs and fees — Specialty courts.

  1. As used in this section, “specialty court program” means the same as defined in § 16-10-139.
  2. A district court judge presiding over a specialty court program that has been approved by the Supreme Court may order the offender to pay:
    1. Court costs as provided in § 16-10-305;
    2. Treatment costs;
    3. Drug testing costs;
    4. A local specialty court program user fee;
    5. Necessary supervision fees, including any applicable residential treatment fees;
    6. Global Positioning System monitoring costs; and
    7. Continuous alcohol monitoring fees.
    1. The district court judge presiding over a specialty court program shall establish a schedule for the payment of specialty court program costs and fees.
    2. The costs for treatment, drug testing, continuous alcohol monitoring and supervision shall be set by the treatment and supervision providers and made part of the order of the district court judge presiding over a specialty court program for payment.
    3. Specialty court program user fees shall be set by the district court judge presiding over a specialty court program.
    4. The costs for treatment, drug testing, continuous alcohol monitoring, and supervision shall be paid to the respective providers.
      1. Court costs and local specialty court program user fees assessed by the district court judge presiding over the specialty court program shall be paid to the county, town, or city official, agency, or department that is primarily responsible for the collection of fines assessed by the district court under § 16-13-709 for remittance into a local fund entitled the “District Court Specialty Court Program Fund”.
      2. Installment payments shall be considered a payment toward court costs under § 16-10-305 until the court costs have been collected in full.
      3. Any remaining payments representing collections of other fees and costs as authorized in this section shall be remitted by the tenth day of each month to the city treasurer of the city in which the district court is located to be deposited into the fund.
      4. A district court that is funded solely by the county shall remit all remaining funds by the tenth day of each month to the county treasurer of the county in which the district court is located to be deposited into the fund.
      5. Expenditures from the fund shall require the approval of the district court judge presiding over the specialty court program and shall be authorized and paid by law concerning the appropriation and payment of county or municipal expenditures by the governing body or, if applicable, governing bodies, that contribute to the expenses of the district court.
        1. Expenditures from the fund shall be used solely for the support, benefit, and administration of the specialty court program.
        2. Expenditures may be made for indirect expenses related to the specialty court program, including training and travel expenses, program user incentives, graduation costs, and supplies.
    5. Court orders for costs and fees shall remain an obligation of the offender and shall be monitored by the district court until fully paid.
  3. A grant awarded to a specialty court program presided over by a district court judge, as well as all memorials, honorariums, and other monetary gifts to the specialty court program shall be deposited into the fund.
  4. A fee or costs under this section may be waived in whole or in part if the district court finds that the person subject to paying the cost or fee is indigent.

History. Acts 2019, No. 1044, § 1.

Subchapter 2 — Accounting Practices

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Cross References. Arkansas Governmental Compliance Act, § 10-4-301 et seq.

Effective Dates. Acts 1991, No. 904, § 28: Mar. 29, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the language of certain court cost statutes lacks uniformity; that such lack of uniformity is detrimental to the proper collection of such court costs; and that such language should be standardized to promote the proper collection of such costs. 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. 788, § 36: became law without the Governor's signature. Noted Mar. 11, 1997. Effective July 1, 1999. 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 operation of the state court system, 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 progress. 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.”

Acts 1997, No. 1341, § 35: became law without the Governor's signature. Noted Apr. 11, 1997. Effective July 1, 1999. 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 operation of the state court system, 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 progress. 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.”

Acts 1999, No. 1508, § 19: Apr. 15, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act makes various technical corrections in the Arkansas Code; that this act further clarifies the law to provide that the Arkansas Code Revision Commission may correct errors resulting from enactments of prior sessions; and that this act should go into effect immediately in order to be applicable during the codification process of the enactments of this 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 2007, No. 663, § 56: Jan. 1, 2012.

Acts 2011, No. 1174, § 10: Jan. 1, 2012.

Acts 2013, No. 282, § 17: Mar. 6, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the effectiveness of this act as soon as possible is essential to the operation of the judiciary and the administration of justice; and that this act is immediately necessary because the delay in the effective date of this act could cause irreparable harm upon the proper administration of essential governmental 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: (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.”

16-10-201. Title.

This subchapter shall be known and cited as the “Arkansas District Courts Accounting Law”.

History. Acts 1977, No. 332, § 1; A.S.A. 1947, § 22-1101; Acts 2003, No. 1185, §§ 46, 47; 2007, No. 663, § 21.

Amendments. The 2007 amendment deleted “and City Courts” following “Courts.”

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-10-202. Definitions.

As used in this subchapter:

  1. “Citation” means a written order or electronic ticket issued by a law enforcement officer or employee of the department of public safety of a city or incorporated town who is authorized to make an arrest, requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time;
  2. “Court” means a district court in the State of Arkansas; and
  3. “Electronic ticket” means an electronic citation or warning printed by a law enforcement officer and issued to a person accused of violating the law.

History. Acts 1977, No. 332, § 2; A.S.A. 1947, § 22-1102; Acts 2003, No. 1185, §§ 46, 47; 2007, No. 663, § 22; 2011, No. 908, §§ 1, 2; 2011, No. 1174, § 1.

Amendments. The 2007 amendment deleted “unless the context otherwise requires” following “subchapter” and “and city” following “district.”

The 2011 amendment by No. 908 inserted (1) and (3) and redesignated the remaining subdivision accordingly; and deleted “unless the context otherwise requires” from the end of the introductory language.

The 2011 amendment by No. 1174 inserted (1) and (3) and redesignated the remaining subdivision accordingly; and deleted “unless the context otherwise requires” at the end of the introductory language.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-10-203. Applicability of subchapter.

This subchapter shall apply to any district court within the State of Arkansas.

History. Acts 1977, No. 332, § 2; A.S.A. 1947, § 22-1102; Acts 2003, No. 1185, §§ 46, 47; 2007, No. 663, § 23.

Amendments. The 2007 amendment deleted “and city courts” following “courts.”

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-10-204. Bank accounts for court funds.

    1. Each municipal police department and each city or town marshal shall maintain court funds separately in depositories approved for those specific purposes by law.
    2. Court funds must be deposited into an account styled “(Name of Municipality) Police Department Bond and Fine Account”, and the funds shall be disbursed only on the signature of the chief of police or marshal of the municipality and the signature of one (1) other authorized person.
    1. Each office of county sheriff shall maintain court funds separately in depositories approved for those specific purposes by law.
    2. Court funds must be deposited into an account styled “(Name of County) County Sheriff's Bond and Fine Account”, and the funds shall be disbursed only on the signature of the sheriff of the county and the signature of one (1) other authorized person.
    1. Each court shall maintain court funds separately in depositories approved for those specific purposes by law.
    2. Court funds must be deposited into an account styled “(Name of Court) Court Account”, and the funds shall be disbursed only upon the signature of the court clerk and the signature of one (1) other person to be authorized by the court's presiding judge.
  1. All disbursements from the accounts in this section must be evidenced by prenumbered checks.
  2. Subsections (a) and (b) of this section do not apply if the court clerk has been designated to be primarily responsible for the collection of fines under § 16-13-709.

History. Acts 1977, No. 332, § 3; A.S.A. 1947, § 22-1103; Acts 2011, No. 1174, § 2.

Amendments. The 2011 amendment deleted former (a) and redesignated the remaining subsections accordingly; added “maintain court funds separately in depositories approved for those specific purposes by law” in present (a)(1), (b)(1), and (c)(1); and added present (d) and (e).

16-10-205. Citations.

  1. Each municipal police department, city or town marshal, and county sheriff's office shall maintain and issue uniform written citations or electronic citations for violation of all municipal and state laws.
    1. All uniform written citation books must be prenumbered by the printer and a printer's certificate shall be furnished to the police department, marshal's office, or sheriff's office, and the certificate shall be made available for inspection.
    2. The certificate must state the printing date, the numerical sequence of citations printed, and the printer's name.
  2. All void or spoiled written citations must be accounted for by attaching all copies to the hard copy in the uniform citation book.
    1. All written citations must have at least an original and three (3) copies used and distributed as follows:
      1. Hard copy: Violator's copy;
      2. White copy: Police department, marshal's office, or sheriff's office copy;
        1. Yellow copy: Court clerk's copy, to be forwarded to the Office of Driver Services as provided in this subdivision (d)(1)(C).
        2. Within five (5) business days after a conviction or forfeiture of bail of a person charged with a violation of any law regulating the operation of vehicles on a highway, § 3-3-203(a) or § 5-27-503(a)(3), the clerk shall forward the yellow copy covering the case in which the person was convicted or forfeited bail.
        3. The yellow copy shall be certified by the person required to prepare it and shall include the name and address of the party charged, the registration number of the vehicle involved, the nature of the offense, the date of hearing, the plea, the judgment or whether bail was forfeited, and the amount of the fine or forfeiture.
        4. Within five (5) business days after the disposition of any case, the clerk shall forward the yellow copy of the citation and the resulting disposition of the case.
        5. A court using the case management system provided by the Administrative Office of the Courts or the electronic reporting system of the Office of Driver Services is not required to submit the yellow copy to the Office of Driver Services but must enter the disposition or judgment of conviction into the case management system or the electronic reporting system within the time required in this section; and
      3. Pink copy: Remains in uniform citation book.
    2. The citations shall be given to the police department, marshal's office, sheriff's office, or court clerk at least seven (7) business days before the court date.
  3. If an electronic citation is used:
    1. The electronic citation shall indicate whether or not there was a person under eighteen (18) years of age present at the time of the offense for which the electronic citation was issued;
    2. A printed copy of the electronic citation shall be given to the violator;
    3. A copy of the electronic citation must be maintained by the issuing police department, marshal's office, or county sheriff's office; and
      1. A copy of the electronic citation shall be forwarded to the court clerk in either electronic or written format, as designated by the court clerk, at least seven (7) business days before the court date.
      2. The court clerk's copy shall be forwarded to the Office of Driver Services as provided in subdivision (d)(1)(C) of this section.
  4. If an electronic citation system is used, the system must be in compliance with the Information Systems Best Practices Checklist provided by the Legislative Joint Auditing Committee.
  5. Controls for citations.
    1. A list of all uniform written citation books and the corresponding range of citations in each book shall be kept in the police department, office of city or town marshal, or sheriff's office.
    2. The chief of police, marshal, or sheriff shall issue the uniform written citation books, unless the chief of police, marshal, or sheriff designates in writing another person to perform this duty.
    3. The chief of police, marshal, or sheriff shall ensure that all citations issued are entered on the arrest report or in the electronic case management system.
    4. Upon completion, each uniform written citation book shall immediately be filed with the court clerk and made available for inspection.
    5. Upon case adjudication, the police department, office of city or town marshal, or sheriff's office shall file its copy of the citation either alphabetically or numerically.
  6. A citation issued by a school resource officer under § 16-81-118 is exempt from the requirements of this section.

History. Acts 1977, No. 332, § 4; A.S.A. 1947, § 22-1104; Acts 2009, No. 456, § 1; 2011, No. 44, § 1; 2011, No. 908, § 3; 2011, No. 1174, § 3; 2015, No. 1179, § 2; 2017, No. 714, § 3.

Amendments. The 2009 amendment rewrote (d).

The 2011 amendment by No. 44, in (d)(1)(C)(v), inserted “or the electronic reporting system of the Office of Driver Services” and “or the electronic reporting system.”

The 2011 amendment by No. 908 inserted “written or electronic” in (a); inserted “written” following “All” at the beginning of (b), (c), and (d)(1); and added (e).

The 2011 amendment by No. 1174 substituted “Citations” for “Uniform traffic tickets” in the section heading; substituted “written citations or electronic citations” for “traffic ticket books, sometimes called citation books, summons books, or ticket books” in (a); in (b)(1), substituted “written citation” for “traffic ticket” and deleted “or other evidence” following “the certificate”; inserted (b)(2); in (c), substituted “written citations” for “tickets” and “uniform citation” for “traffic ticket”; substituted “written citations” for “uniform traffic ticket books” in the introductory language of (d)(1); in (d)(1)(C)(v), inserted “or the electronic reporting system of the Office of Driver Services” and “or the electronic reporting system”; rewrote (d)(2); and added (e) through (g).

The 2015 amendment added (h).

The 2017 amendment added (e)(1) and redesignated the remaining subdivisions accordingly; substituted “shall” for “must” in (e)(2) and (e)(4)(A); and inserted “county” preceding “sheriff's” in (e)(3).

16-10-206. Court docket.

  1. All violations shall be docketed and all judgments shall be rendered by the court's presiding judge.
  2. The court docket shall reflect the complete history of the violation and the disposition of each case, and shall contain the following information:
    1. The citation number;
    2. The date and nature of the violation;
    3. The date the court convened to hear the case;
    4. The names of arresting officers and witnesses, if any;
    5. The judgment rendered by the court;
    6. The signature or initials of the judge;
    7. The total amount of the fine and costs;
    8. The receipt number and dollar amount evidencing payment of fine and costs; and
    9. If applicable, the check number and dollar amount evidencing authorized bond refund. The check itself will indicate the docket number evidencing authorization.
  3. The docket shall be numbered by the court clerk in accordance with the Rules of the Supreme Court and Court of Appeals of the State of Arkansas.
    1. For manual dockets, the docket pages shall be prenumbered by the printer, and a printer's certificate or other evidence shall be furnished to the court's clerk which shall be made available for inspection.
    2. Docket pages must be either bound or loose-leaf, provided that accountability and control are maintained over loose-leaf docket pages.
  4. For manual or electronic dockets, the docket pages shall be numbered independently of court docket numbers assigned by the court clerk.
  5. The court clerk shall keep separate court dockets, one (1) for city cases and one (1) for county cases.

History. Acts 1977, No. 332, § 5; A.S.A. 1947, § 22-1105; Acts 2005, No. 1934, § 2; 2011, No. 1174, § 4.

Amendments. The 2005 amendment, in (c) inserted “the Rules of the” and deleted “Administrative Ruling No. 73-240, beginning with the last two (2) digits of the current year and the number assigned to the case beginning with the number one (1), e.g., 77-1” from the end.

The 2011 amendment deleted “sheet” following “The court docket” in the introductory language of (b); substituted “citation number” for “uniform traffic ticket number” in (b)(1); in (b)(7), inserted “total” and deleted “itemized” following “costs”; inserted “For manual dockets” in (d)(1); inserted present (d)(2); and deleted former (e) and redesignated former (d)(2) as present (e).

16-10-207. Police department and marshals' and sheriffs' offices — Activities and clerical duties required.

The following activities and clerical duties relating to court functions shall be required of all police departments, city or town marshals, and sheriffs' offices:

  1. Preparation and Submission of Arrest Report.
    1. Separate arrest reports shall be prepared for city cases and county cases.
    2. The arrest report shall contain the following information:
      1. Citation number;
      2. Violator's name;
      3. Nature of the offense;
      4. Name of the arresting officer;
      5. Receipt number, if applicable;
      6. Fine and costs collected, if applicable; and
      7. Any other additional information deemed appropriate or necessary.
    3. Before the court date, the arrest report shall be prepared from the citations accumulated in the court date file in the police department office, marshal's office, or sheriff's office.
    4. If applicable, the fine and costs collected shall be totaled, and a check shall be drawn payable to the court fund that represents moneys collected and receipts issued by the police department, marshal's office, or sheriff's office for those citations contained on the arrest report.
    5. A completed copy of the arrest report accompanied by the police department's, marshal's office, or sheriff's office check, if applicable, shall be delivered to the court clerk at least seven (7) business days before the court date; and
  2. Collection, Receipt, and Deposit Procedures.
    1. This subdivision (2) does not apply if the court clerk has been designated to be primarily responsible for the collection of fines under § 16-13-709.
    2. A prenumbered receipt must be issued for all moneys collected.
    3. Prenumbered manual receipts must meet the following minimum standards:
      1. All receipt books must be prenumbered by the printer, and a printer's certificate shall be furnished to the police department, marshal's office, or sheriff's office, which shall be made available for inspection;
      2. The certificate must state the printing date, the numerical sequence of receipts printed, and the printer's name; and
      3. All void or spoiled receipts must be accounted for by attaching the original copy of the receipt to the duplicate copy of the receipt in the receipt book, with the reason for the void or spoiled receipt documented and retained for audit purposes.
    4. If an electronic receipting system is used, the system must be in compliance with the Information Systems Best Practices Checklist provided by the Legislative Joint Auditing Committee.
    5. The receipt shall be issued in the name of the violator regardless of who paid the bond or fine or who collected the bond or fine and must indicate the method of payment, such as cash, check, money order, or credit card.
      1. Receipts shall be deposited intact daily into the bank account maintained by the police department, marshal's office, or sheriff's office.
      2. All receipt numbers shall be entered on the arrest report by the police department, marshal's office, or sheriff's office.
    6. The police department, marshal's office, or sheriff's office may maintain separate bank accounts for city cases and county cases.
      1. The bank deposit slips prepared by the police department, marshal's office, or sheriff's office shall contain the range of receipt numbers evidencing such collections.
      2. In addition, the receipts issued shall be reconciled with the monthly bank deposits.
    7. A bank reconciliation shall be made at the end of each month, and any balance remaining in the bank account shall be identified with receipts issued but not yet entered on the arrest report.
      1. A cash receipts journal or electronic receipts listing shall be established.
      2. The receipts journal or electronic receipts listing must indicate the receipt number, receipt date, violator's name, amount of the receipt, and classification of the receipt.
      3. The receipts journal or electronic receipts listing shall be properly balanced and totaled monthly and on a year-to-date basis.
      4. The receipts journal or electronic receipts listing shall be reconciled monthly to total bank deposits as shown on the bank statements.
      1. A cash disbursements journal or electronic check register shall be established.
      2. The disbursements journal or electronic check register must indicate the date, payee, check number, amount for each check written, and the classification of the disbursement.
      3. The disbursements journal or electronic check register shall be properly balanced and totaled monthly and on a year-to-date basis.
      4. The disbursements journal or electronic check register shall be reconciled monthly to total bank disbursements as indicated on the bank statements.

History. Acts 1977, No. 332, § 6; A.S.A. 1947, § 22-1106; Acts 2007, No. 627, § 1; 2009, No. 456, § 2; 2011, No. 1174, § 5.

Amendments. The 2007 amendment inserted “or her” following “him” in (1)(C); deleted former (1)(F); and made related changes.

The 2009 amendment deleted (2), which was entitled “Issuance of Uniform Traffic Tickets.”

The 2011 amendment rewrote the section.

16-10-208. Court clerk or court administrator — Eligibility.

The court clerk or court administrator shall not be a member of the police department, marshal's office, or sheriff's office.

History. Acts 1977, No. 332, § 7; A.S.A. 1947, § 22-1107; Acts 2011, No. 1174, § 6.

Amendments. The 2011 amendment inserted “or court administrator.”

16-10-209. Court clerk — Activities and clerical duties.

The following activities and clerical duties relating to court functions shall be required of all court clerks:

  1. Collection, Receipt, and Deposit Procedures.
    1. A prenumbered receipt must be issued for all moneys collected.
    2. Prenumbered manual receipts must meet the following minimum standards:
      1. All receipt books must be prenumbered by the printer, and a printer's certificate shall be furnished to the court clerk, which shall be made available for inspection;
      2. The certificate must state the printing date, the numerical sequence of receipts printed, and the printer's name; and
      3. All void or spoiled receipts must be accounted for by attaching the original copy of the receipt to the duplicate copy of the receipt in the receipt book, with the reason for the void or spoiled receipt documented and retained for audit purposes.
    3. If an electronic receipting system is used, the system must be in compliance with the Information Systems Best Practices Checklist provided by the Legislative Joint Auditing Committee.
      1. For those checks forwarded with the arrest reports, the receipt shall be issued in the name of the police department, marshal's office, or sheriff's office.
      2. For those receipts issued at court date, the court clerk shall issue such receipts in the name of the defendant, regardless of who paid the bond or fine or who collected the bond or fine, indicating on the receipt the method of payment, such as cash, check, money order, or credit card.
    4. Receipts shall be deposited intact daily into the separate bank account maintained by the court clerk.
      1. The bank deposit slips prepared by the court clerk shall contain the range of receipt numbers evidencing such collections.
      2. Additionally, the receipts issued shall be reconciled with the monthly bank deposits.
    5. A bank reconciliation shall be made at the end of each month, and any balance remaining in the bank account shall be identified with receipt numbers for cases not yet adjudicated and the payments made on all unpaid individual time accounts.
    6. The court clerk may maintain separate bank accounts for city cases and for county cases;
  2. Preparation and Submission of Distribution Report.
    1. The distribution report shall contain the following information:
      1. The citation number;
      2. The defendant's name;
      3. The nature of the offense;
      4. The name of arresting officer;
      5. The court docket number;
      6. The disposition or date continued;
      7. The receipt number;
      8. The total fine and costs collected;
      9. The fine;
      10. The fees and costs itemized;
      11. The bond refund amount;
      12. The bond refund check number; and
      13. The installment payment amount.
    2. The court clerk at each court date shall prepare the distribution report from the arrest report supplied by the police department, marshal's office, or sheriff's office.
    3. At the end of each court date, the court clerk shall complete the distribution report for the court date and total the dollar amounts contained in the report.
    4. The distribution reports prepared each court date shall be summarized at least monthly.
    5. The court clerk shall make a direct monetary settlement on or before the tenth day of the next-following month with each of the following:
      1. The city treasurer;
      2. The county treasurer;
      3. The Administration of Justice Funds Section; and
      4. Any other state agency or entity which receives fines or fees assessed by the court and collected pursuant to law.
    6. The court clerk shall submit electronically or in writing a monthly distribution report describing the direct monetary settlements under subdivision (2)(E) of this section no later than the tenth day of each month to the county treasurer;
  3. Minimum Bookkeeping Requirements.
      1. The court clerk shall maintain a cash receipts journal or electronic receipts listing.
      2. The court clerk may maintain separate cash receipts journals or electronic receipts listings for city cases and county cases.
      3. The receipts journal or electronic receipts listing must indicate the receipt number, receipt date, violator's or payor's name, amount of the receipt, and classification of the receipt.
      4. The receipts journal or electronic receipts listing shall be properly balanced and totaled monthly and on a year-to-date basis.
      5. The receipts journal or electronic receipts listing shall be reconciled monthly to total bank deposits as shown on the bank statements.
      1. The court clerk shall maintain a cash disbursements journal or electronic check register.
      2. The court clerk may maintain separate cash disbursements journals or electronic check registers for city cases and county cases.
      3. The disbursements journal or electronic check register must indicate the date, payee, check number, amount for each check written, and classification of the disbursement.
      4. The disbursements journal or electronic check register shall be properly balanced and totaled monthly and on a year-to-date basis.
      5. The disbursements journal or electronic check register shall be reconciled monthly to total bank disbursements as indicated on the bank statements;
  4. Bond Refunds.
    1. All bond refunds shall be made only upon the authorization of the presiding judge and shall be indicated as such on the court docket.
      1. All bond refunds shall be made only by a check drawn on the court's bank account.
      2. Additionally, the check shall indicate the court docket number for authorization.
    2. The court clerk shall enter all bond refunds on the applicable distribution report;
  5. Installment Payments.
    1. Installment payments shall be allowed only upon the authorization of the presiding judge and shall be indicated as such on the court docket.
      1. The court clerk shall establish and maintain individual installment payment account ledger records, with a duplicate copy of the ledger record being furnished to and maintained by the county or city official, agency, or department designated under § 16-13-709 as primarily responsible for the collection of fines assessed in district courts.
      2. The ledger records shall contain the following minimum information:
        1. Name of the individual;
        2. Court docket number and court date;
        3. Nature of the violation;
        4. Total fine and costs assessed;
        5. Receipt number, date, and amount of payment; and
        6. Unpaid balance of fine, fees, and costs.
    2. The county or city official, agency, or department designated under § 16-13-709 as primarily responsible for the collection of fines assessed in district courts shall be responsible for collecting all installment payments and shall enter all collected installment payments on each applicable arrest or distribution report.
      1. The court clerk shall establish and maintain a control total for installment payments, which is a summary of all unpaid individual installment payment accounts.
      2. The control total shall be reconciled monthly with the individual installment payment accounts.
      1. The court clerk shall furnish the county or city official, agency, or department designated under § 16-13-709 as primarily responsible for the collection of fines assessed in district courts and the presiding judge monthly with a list of all unpaid installment payment accounts for which a payment has not been received within the past thirty (30) days.
      2. The presiding judge shall then take the necessary action deemed appropriate in the circumstances.
      1. All installment payments shall initially be deemed to be collections of court costs until the court costs have been collected in full, with any remaining installment payments representing collections of restitution, and then fines.
      2. If court costs, restitution, and fines are fully paid, all remaining installment payments shall be allocated to remaining amounts due.
      3. A municipal or county governing body that adopted municipal or county legislation before July 1, 2012, to provide an alternative method of installment payment allocation as then authorized by state law shall remain in effect until repealed; and
  6. Reconciliation of Completed Citation Books.
    1. The court clerk shall reconcile on a quarterly basis on or before the fifteenth day of the month following the end of the calendar quarter the individual citations in the completed citation book to the individual citations as reflected on the arrest reports or court dockets.
      1. For any discrepancies noted in the reconciliation in subdivision (6)(A) of this section, the court clerk shall prepare a list and present this list to the court's judge for his or her appropriate action.
      2. This list shall be maintained for audit purposes.
    2. If the court clerk is designated under § 16-13-709 to be primarily responsible for the collection of fines, the reconciliation of completed citation books described in this subdivision (6) shall be performed by someone outside of the court clerk's office as determined by the court judge.

History. Acts 1977, No. 332, § 7; 1985, No. 677, §§ 1, 2; 1985, No. 776, §§ 1, 2; A.S.A. 1947, § 22-1107; Acts 1991, No. 904, § 21; 1997, No. 788, § 3; 1997, No. 1341, § 3; 1999, No. 1081, §§ 1, 2; 1999, No. 1508, § 7; 2003, No. 1765, § 7; 2005, No. 1934, § 3; 2011, No. 1174, § 7; 2013, No. 282, § 3; 2015, No. 903, § 1.

Amendments. The 2011 amendment by No. 1132 deleted “in conjunction with the making of the monetary settlement in subdivision (2)(E)(ii) [repealed] of this section” following “The court clerk” in the introductory language of (2)(F).

The 2011 amendment by No. 1174 rewrote the section.

The 2013 amendment rewrote (5)(F)(ii); and added (5)(F)(iii).

The 2015 amendment added (2)(F).

Cross References. Establishment of city and county shares, § 16-10-602.

Legislative intent of Acts 1997, Nos. 788 and 1341, § 16-10-601.

Transition to state funding, § 16-87-301.

16-10-210. Accounting systems above minimum.

  1. Any official charged with the maintenance of accounting or bookkeeping records under the provisions of this subchapter whose system of bookkeeping is such that it does not strictly adhere to the provisions of this subchapter, but in that official's opinion equals or exceeds the basic requirements prescribed by this subchapter, may request the court's presiding judge to request a review by the staff of the Legislative Joint Auditing Committee.
  2. Upon the committee's concurrence with the official's opinion regarding the capability of the existing system of bookkeeping, a letter shall be issued by the committee to the court's presiding judge stating that the official's accounting system is of such a degree of sophistication that the basic requirements of this subchapter are being met.
  3. After issuance of the letter by the committee under subsection (b) of this section, the official is exempt from the requirements of the particulars of the procedures prescribed by this subchapter, provided the official's system of bookkeeping is not altered.

History. Acts 1977, No. 332, § 8; A.S.A. 1947, § 22-1108; Acts 2007, No. 627, § 2.

Amendments. The 2007 amendment added the (a), (b) and (c) designations; in (a), substituted “Any” for “In the event any”, substituted “whose system” for “who feels his system,” inserted “does not strictly adhere to the provisions of this subchapter but, in that official's opinion,” substituted “basic requirements” for “basic system,” deleted “he” preceding “may” and inserted “staff of the” preceding “Legislative”; substituted “the official's opinion regarding the capability of the existing system of bookkeeping, a letter shall be issued by the committee to the court's presiding judge” for “such facts, the committee may issue a certificate to that official” in (b); and in (c), substituted “After issuance of the letter by the committee under subsection (b) of this section, the official is exempt” for “and exempting the official,” substituted “procedures” for “system” and inserted “provided the official's system of bookkeeping is not altered” following “subchapter.”

16-10-211. Record retention schedule.

  1. All towns, cities, and counties of the State of Arkansas shall maintain records for the district courts and are to:
    1. Permanently maintain:
      1. Case indices for all district courts;
      2. Case dockets for all district courts;
      3. Active warrants;
      4. Waivers;
      5. Expungement and sealed records;
      6. Files concerning convictions under the Omnibus DWI or BWI Act, § 5-65-101 et seq.; and
      7. Domestic battering files;
    2. Maintain for a period of at least seven (7) years and in no event dispose of before being audited:
      1. Complete case files and written exhibits for all district courts, not including civil or small claims division cases in which the judgment is not satisfied;
      2. Show cause orders;
      3. Case information, including arrest reports and affidavits; and
      4. Files concerning cases resulting in a suspended imposition of sentence; and
    3. Maintain for a period of at least three (3) years and in no event dispose of before being audited:
      1. Bank reconciliations;
      2. Check book registers and check listings;
      3. Cancelled checks;
      4. Bank statements;
      5. Receipts;
      6. Deposit collection records;
      7. Receipts listings;
      8. Distribution reports;
      9. Receipt and disbursement journals;
      10. Time payment records;
      11. Citation book logs;
      12. Citation books from each police department and sheriff's office;
      13. Served, recalled, or quashed arrest warrants;
      14. Copies of citations;
      15. Alternative service or community service time sheets;
      16. Uniform filing fees collection remittance forms and fine reports;
      17. Miscellaneous fee and fine collection reports; and
      18. Served or unexecuted search warrants.
  2. After a town, city, or county has maintained records for the time periods required by subdivision (a)(2) or subdivision (a)(3) of this section and after the records described in subdivision (a)(2) or subdivision (a)(3) of this section have been audited, the records may be destroyed.
  3. When records are destroyed under subsection (b) of this section, the town, city, or county shall document the destruction by the following procedure:
    1. An affidavit is to be prepared stating:
      1. Which records are being destroyed and to which period of time the records apply; and
      2. The method of destruction; and
    2. The affidavit is to be signed by the town, city, or county employee performing the destruction and one (1) employee of the governing body or, if applicable, governing bodies that contribute to the expenses of the court.
  4. In addition to the procedure described in subsection (c) of this section, the approval of the governing body or, if applicable, governing bodies that contribute to the expenses of the court shall be obtained before the destruction of district court records and an appropriate note of the approval indicated in the minutes of the governing body or bodies along with the destruction affidavit.

History. Acts 2007, No. 627, § 3; 2009, No. 633, § 6; 2011, No. 1174, § 8; 2015, No. 299, § 17; 2015, No. 584, § 1.

Amendments. The 2011 amendment rewrote (a); deleted former (c)(2)(A) and (d)(1) and redesignated the remaining subdivisions accordingly; and, in present (c)(2), deleted “For district court records” at the beginning and deleted “described in subdivision (c)(1) of this section” following “affidavit.”

The 2015 amendment by No. 299 inserted “or BWI” following “Omnibus DWI” in (a)(1)(F).

The 2015 amendment by No. 584 inserted “district” preceding “courts” in (a)(1)(A) and (B); inserted “district” preceding “courts” and added “not including civil … is not satisfied” in (a)(2)(A); inserted “recalled, or quashed arrest” in (a)(3)(M); and added (a)(3)(R).

16-10-212. City courts — Loss of authority — Enforcement by legislative audit. [Effective until January 1, 2012.].

  1. If the Division of Legislative Audit determines that a city court is not in substantial compliance with this subchapter, the division shall report the findings to the Legislative Joint Auditing Committee.
    1. If a public official or a private accountant determines that a city court is not in substantial compliance with this subchapter, the official or accountant shall notify the committee of his or her findings.
    2. Upon notification, the committee shall direct the division to review the city court's compliance with this subchapter.
    3. Upon confirmation of a substantial lack of compliance, the division shall report the findings to the committee.
    1. Upon notification of noncompliance by the division, the committee shall notify in writing the mayor, the city or town council, the city court judge, and the city court clerk that the city court's accounting records are not in substantial compliance with this subchapter.
    2. The city court shall have ninety (90) days after the date of notification to bring the city court's accounting records into substantial compliance with this subchapter.
      1. After the ninety (90) days allowed for compliance or upon request by the appropriate city court officials, the division shall review the city court's accounting records to determine if the city court is in substantial compliance with this subchapter.
      2. The division shall report its findings to the committee.
  2. If the city court has not achieved substantial compliance within the ninety-day period, the committee shall notify both the Administrative Office of the Courts and the city court of the noncompliance and inform the city court that it no longer has authority to operate.

History. Acts 2009, No. 488, § 1.

Subchapter 3 — Uniform Filing Fees and Court Costs

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

References to “this chapter” in subchapters 1 and 2 may not apply to this subchapter which was enacted subsequently.

Acts 1995, No. 1256, § 8, provided:

“(a) The following court costs shall not be immediately affected by this act and shall continue to be assessed and collected until such time as the Arkansas Division of Legislative Audit shall certify in writing that the debt service for the original construction for which the revenues generated by the court costs have been applied shall have been paid in full:

“(1) The costs assessed by the city, municipal, and circuit courts in Garland County pursuant to § 12-41-617 [repealed] for the purpose of building a new jail;

“(2) The costs assessed by the city, municipal, and circuit courts in Lawrence County pursuant to § 12-41-617 [repealed] for the purpose of building a new jail;

“(3) The costs assessed by the city and municipal courts of Pulaski County pursuant to §§ 16-17-111 and 16-17-113 [repealed] for the purpose of completing the municipal court renovation.

“(4) The costs assessed pursuant to Act 685 of 1971, as amended, by the city and county courts of Pulaski County for the purpose of retiring the indebtedness on the Pulaski County Law Center.

“(5) The costs assessed by the circuit and chancery courts in Saline County pursuant to § 21-6-403 in effect on January 1, 1995, and used for the purpose of renovation, refurbishing, and equipping of the Saline County Courthouse.

“(6) Any other costs assessed by the city, municipal, circuit, chancery, or probate courts which are dedicated on the effective date of this act for the purpose of retiring any debt service for construction, when certified by the Arkansas Division of Legislative Audit.

“(b) For each court in which a court cost included in paragraph (a) of this section shall be continued, that cost shall be in addition to the uniform court costs and filing fees provided in Section 3 through Section 7 of this act.

“(c) The additional costs specified in paragraph (a) shall not be remitted to the Department of Finance and Administration with the uniform court costs and filing fees provided for in Section 3 through Section 7 of this act, but shall be remitted to the city or county treasurer and credited to the fund and for the limited purpose as provided for in Arkansas Code Annotated §§ 12-41-617 [repealed], 16-17-111 and 16-17-113 [repealed] and Act 685 of 1971 as amended.”

Acts 1995, No. 1256, § 17, as amended by Acts 1995 (1st Ex. Sess.), No. 13, § 3, provided:

“The uniform filing fees and court costs established by Sections 3 through 7 of this act shall become effective on July 1, 1995; however, from the period beginning July 1, 1995, through September 30, 1995, all courts shall deduct from the uniform fees and costs the individual fees and costs owed to local, county, and state level agencies and disburse those funds in accordance with this act. Excess funds shall be retained by the city or county and utilized as directed by the governing body, but are, however, intended to provide a sufficient level of funds as to allow for the change in the disbursement of funds as required by Sections 12 and 13 of this act.”

Publisher's Notes. Former subchapter 3, concerning judicial ethics, was repealed by Acts 1989, No. 536, § 4. The former subchapter was derived from the following sources:

§ 16-10-301. Acts 1977, No. 853, § 1; A.S.A. 1947, § 22-1001.

§ 16-10-302. Acts 1977, No. 853, § 2; A.S.A. 1947, § 22-1002.

§ 16-10-303. Acts 1977, No. 853, § 3; A.S.A. 1947, § 22-1003.

§ 16-10-304. Acts 1977, No. 853, § 4; A.S.A. 1947, § 22-1004.

§ 16-10-305. Acts 1977, No. 853, § 4; A.S.A. 1947, § 22-1004.

§ 16-10-306. Acts 1977, No. 853, § 4; A.S.A. 1947, § 22-1004.

§ 16-10-307. Acts 1977, No. 853, § 2; A.S.A. 1947, § 22-1002.

Effective Dates. Acts 1995, No. 1256, § 23: Apr. 13, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state; and it is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible, and the lack of reliable data on the current costs of the state judicial system prohibits any comprehensive change in the funding of the system at this time. 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 (1st Ex. Sess.), No. 13, § 13: Oct. 23, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state; and it is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible, and the lack of reliable data on the current costs of the state judicial system prohibits any comprehensive change in the funding of the system at this time. 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. 788, § 36: became law without the Governor's signature. Noted Mar. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 1997, No. 1341, § 35: became law without the Governor's signature. Noted Apr. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 1999, No. 1508, § 19: Apr. 15, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act makes various technical corrections in the Arkansas Code; that this act further clarifies the law to provide that the Arkansas Code Revision Commission may correct errors resulting from enactments of prior sessions; and that this act should go into effect immediately in order to be applicable during the codification process of the enactments of this 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 2007, No. 177, § 15: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this bill affects the structure of the Arkansas District Judge Retirement System and the Arkansas Public Employees' Retirement System and the ideal time to make revisions to the retirement systems is at the beginning of the state's fiscal year. Therefore, an emergency is declared to exist and this act being necessary for the preservation of public peace, health, and safety shall become effective on July 1, 2007.”

Acts 2007, No. 663, § 56: Jan. 1, 2012.

Acts 2013, No. 282, § 17: Mar. 6, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the effectiveness of this act as soon as possible is essential to the operation of the judiciary and the administration of justice; and that this act is immediately necessary because the delay in the effective date of this act could cause irreparable harm upon the proper administration of essential governmental 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: (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. 504, § 5: Mar. 26, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the effectiveness of this act as soon as possible is essential to the operation of the judiciary and the administration of justice; and that this act is immediately necessary because the delay in the effective date of this act could cause irreparable harm upon the proper administration of essential governmental 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: (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. 268, § 16: July 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the act entitled ‘AN ACT TO MAKE AN APPROPRIATION FOR PERSONAL SERVICES AND OPERATING EXPENSES FOR THE ADMINISTRATIVE OFFICE OF THE COURTS FOR THE OFFICIAL COURT REPORTERS AND TRIAL COURT ADMINISTRATORS OF THE CIRCUIT COURTS FOR THE FISCAL YEAR ENDING JUNE 30, 2016; AND FOR OTHER PURPOSES.’ requires the passage of this act; that the effectiveness of this act on July 1, 2015, is essential to the operation of the Administrative Office of the Courts, and that in the event of an extension of the legislative session, the delay in the effective date of this act beyond July 1, 2015, could work irreparable harm upon the proper administration and provision of essential governmental programs. 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 on and after July 1, 2015.”

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.”

16-10-301. Legislative intent.

  1. It is hereby found by the General Assembly that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state. It is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible. Finally, it is determined that the lack of any reliable data on the current cost of the state judicial system prohibits any comprehensive change in the funding of the system at this time.
  2. It is, therefore, the intent of this act to eliminate the current system of collecting and assessing a large number of individual court costs and filing fees, to replace it with uniform costs and fees to be applied statewide, and to prohibit the implementation of new costs and fees for specific programs in the future.

History. Acts 1995, No. 1256, § 1.

A.C.R.C. Notes. As enacted by Acts 1995, No. 1256, § 1, subsection (b) of this section also provided:

“It is, further, the intent of this act to put in place a reporting system which will allow the General Assembly to obtain accurate data to determine the cost to the state for the funding of the judicial system, so as to allow the state, in the 1997-1999 biennium, to fund the cost of the judicial system from the costs, fees, fines, and such other sources as the General Assembly shall determine.”

As enacted by Acts 1995, No. 1256, § 1, this section also contained a subsection (c) which provided:

“(c) The General Assembly hereby advises all individuals, programs, and agencies which are affected by this act and which receive or expend funds as a part of the state judicial system to be prepared to provide information on the level of expenditures, number of staff, and related information which were in place and existing during the period January 1, 1994 — December 31, 1994 to the 1997 session of the General Assembly.”

Meaning of “this act”. Acts 1995, No. 1256, codified as §§ 5-65-115, 5-65-307, 14-20-102, 14-42-112, 16-10-133, 16-10-30116-10-310, 16-14-105, 16-17-402, 16-17-705, 16-21-106, 16-21-113, 16-21-1103, 16-21-1503, 20-7-123, 20-18-502, 21-6-403, 24-8-315.

16-10-302. Court costs and filing fees — Generally.

  1. Except as otherwise provided by this act, all filing fees and all court costs shall be uniform for each type of case in all general and limited jurisdiction courts of this state.
  2. In all cases filed in such courts on or after July 1, 1995, the court costs and filing fees shall be assessed and distributed according to this act.
  3. In all cases filed in such courts prior to July 1, 1995, all court costs and filing fees shall be assessed according to law in existence on the date of the filing, but shall be disbursed in accordance with this act.

History. Acts 1995, No. 1256, § 2; 1995 (1st Ex. Sess.), No. 13, § 1; 2001, No. 1809, § 1.

Meaning of “this act”. See note to § 16-10-301.

16-10-303. [Repealed.]

Publisher's Notes. This section is repealed by Acts 2007, No. 663, § 24, effective January 1, 2012.

16-10-304. State actions exempt from filing fees.

Prosecuting attorneys filing actions on behalf of the state, with the exception of child support cases, shall be exempt from paying filing fees.

History. Acts 1995, No. 1256, § 2; 1995 (1st Ex. Sess.), No. 13, § 1.

16-10-305. Court costs.

  1. There shall be levied and collected the following court costs from each defendant upon each conviction, each plea of guilty or nolo contendere, or each forfeiture of bond:
    1. In circuit court, one hundred fifty dollars ($150) for a misdemeanor or felony violation of state law, excluding a violation of:
      1. The Omnibus DWI or BWI Act, § 5-65-101 et seq.;
      2. The Underage DUI or BUI Law, § 5-65-301 et seq.;
      3. Section 5-75-101 et seq.;
      4. Section 27-23-114;
      5. Section 15-42-127; or
      6. Section 27-37-701 et seq.;
    2. In district court, one hundred dollars ($100) for an offense that is a misdemeanor or violation of state law, excluding a violation of:
      1. The Omnibus DWI or BWI Act, § 5-65-101 et seq.;
      2. The Underage DUI or BUI Law, § 5-65-301 et seq.;
      3. Section 5-75-101 et seq.;
      4. Section 27-23-114;
      5. Section 15-42-127; or
      6. Section 27-37-701 et seq.;
    3. In circuit court or district court, seventy-five dollars ($75.00) for a traffic offense that is a misdemeanor or violation under state law or local ordinance, excluding a violation of:
      1. The Omnibus DWI or BWI Act, § 5-65-101 et seq.;
      2. The Underage DUI or BUI Law, § 5-65-301 et seq.;
      3. Section 5-75-101 et seq.;
      4. Section 27-23-114;
      5. Section 15-42-127; or
      6. Section 27-37-701 et seq.;
    4. In district court, for a nontraffic offense that is a misdemeanor or violation under local ordinance, twenty-five dollars ($25.00);
    5. In circuit court or district court, three hundred dollars ($300) for violations of:
      1. The Omnibus DWI or BWI Act, § 5-65-101 et seq.;
      2. The Underage DUI or BUI Law, § 5-65-301 et seq.;
      3. Section 5-75-101 et seq.;
      4. Section 27-23-114; or
      5. Section 15-42-127;
      1. In circuit court or district court, twenty-five dollars ($25.00) for a violation of the mandatory seat belt use law, § 27-37-701 et seq.
      2. A defendant is not required to pay the court costs under subdivision (a)(6)(A) of this section if he or she pays the applicable fines under §§ 27-37-706 and 16-17-129 before his or her first appearance and shall not be assessed any additional court costs associated with the violation; and
    6. In circuit court or district court, twenty-five dollars ($25.00) for failure to present proof of insurance at the time of a traffic stop, §§ 27-22-103, 27-22-104, and 27-22-111.
    1. The costs set forth in this section shall be imposed at the conclusion of any criminal case enumerated in subsection (a) of this section that does not end in an acquittal, dismissal, or, with the consent of the prosecution, an order nolle prosequi.
    2. The costs shall be imposed at the conclusion of cases involving a suspended or probated sentence even though that sentence may be expunged or otherwise removed from the defendant's record.
  2. No county, city, or town shall be liable for the payment of the costs taxed under this section in any instance where they are not collected, or in any case in which the defendant pays the costs by serving time in a jail, on a county farm, or at any other official place of detention or work.
  3. No town, city, or county shall authorize and no district court or circuit court shall assess or collect any other court costs other than those authorized by this act, unless specifically provided by state law.
  4. This section shall become effective July 1, 2001, and the revised court costs shall be imposed on all cases which come before the court for final disposition on or after July 1, 2001.
    1. There shall be levied and collected from each defendant who pleads guilty or nolo contendere to an offense, is found guilty of an offense, or forfeits bond in city court on or before December 31, 2011, the court costs applicable in city court at that time.
    2. The court costs applicable in district court shall be levied and collected in all cases filed in city court in which a defendant pleads guilty or nolo contendere to an offense, is found guilty of an offense, or forfeits bond in district court on or after January 1, 2012.
  5. For each conviction for an offense under § 5-26-301 et seq., an additional court cost of twenty-five dollars ($25.00) shall be assessed and remitted to the Administration of Justice Funds Section by the court clerk for deposit into the Domestic Peace Fund, § 19-6-491.
    1. An additional court cost of twenty-five dollars ($25.00) shall be assessed and remitted to the Administration of Justice Funds Section by the court clerk or designee under § 16-13-709(a) for deposit as special revenues into the Domestic Violence Shelter Fund if a person is convicted of a domestic abuse offense or is the respondent on a permanent order of protection entered by a court under the Domestic Abuse Act of 1991, § 9-15-101 et seq.
    2. When a convicted person is authorized to make installment payments under § 16-13-704, the court cost assessed under subdivision (h)(1) of this section shall be collected from the initial installment payment first.
    3. The court clerk or designee under § 16-13-709(a) shall disburse all court costs collected each month under subdivision (h)(1) of this section to the Administration of Justice Funds Section by the fifteenth working day of the following month.

History. Acts 1995, No. 1256, § 7; 1997, No. 788, § 4; 1997, No. 1341, § 4; 1999, No. 1081, §§ 3, 12; 1999, No. 1508, § 7; 2001, No. 1632, § 1; 2003, No. 1185, § 49; 2007, No. 663, § 25; 2011, No. 730, § 4; 2011, No. 1218, § 1; 2013, No. 282, § 4; 2013, No. 1107, § 12; 2013, No. 1357, § 1; 2015, No. 299, §§ 18-21; 2015, No. 895, § 16; 2017, No. 583, § 3; 2019, No. 113, § 1; 2019, No. 743, § 1.

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 2007 amendment substituted “town or city” for “local” in (a)(3); in (a)(4), substituted “town, city, or county” for “local” and deleted “or city” following “district”; deleted “or city court” preceding “three” in (a)(5); deleted former (a)(6) and (7); added (f); and made related changes throughout.

The 2011 amendment by No. 730 inserted (a)(6).

The 2011 amendment by No. 1218 rewrote (a).

The 2013 amendment by No. 282 substituted “violation” for “violations” and variations thereof throughout the section; in the introductory language of (a)(2) and (a)(3) and in (a)(4), substituted “an offense” for “offenses” and substituted “is a misdemeanor or violation” for “are misdemeanors or violations”; in (a)(4), substituted “In district court, for a” for “For” and deleted “in district court” following “ordinance”; in (a)(6)(A), substituted “In circuit court or district court, three hundred dollars ($300) for” for “For knowingly” and deleted “in circuit court, district court, or city court, three hundred dollars ($300)”; inserted “of this section” in (a)(6)(B); and added (a)(7).

The 2013 amendment by No. 1107 substituted “Division of Behavioral Health Services” for “Office of Alcohol and Drug Abuse Prevention” in (a)(6)(B).

The 2013 amendment by No. 1357 added (g).

The 2015 amendment by No. 299 inserted “or BWI” and “or BUI” throughout (a); and deleted (a)(1)(D), (a)(2)(D), (a)(3)(D), and (a)(5)(D), and redesignated the remaining subdivisions accordingly.

The 2015 amendment by No. 895 repealed (a)(6).

The 2017 amendment added (h).

The 2019 amendment by No. 113 inserted “or designee under § 16-13-709(a)” in (h)(1) and (h)(3); and substituted “is convicted of a domestic abuse offense” for “is a convicted perpetrator of domestic abuse” in (h)(1).

The 2019 amendment by No. 743 added (a)(1)(F), (a)(2)(F), and (a)(3)(F); deleted (a)(6) [Repealed.]; redesignated (a)(7) as (a)(6)(A) and (a)(7) and added (a)(6)(B); and added “In circuit court or district court, twenty-five dollars ($25.00) for” in (a)(7).

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Case Notes

Cited: City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

16-10-306. Administration of Justice Funds Section.

  1. There is created in the Department of Finance and Administration an Administration of Justice Funds Section.
  2. The court costs and filing fees enumerated in §§ 16-10-305, 16-17-705, and 21-6-403, which are assessed and collected in the district courts and circuit courts in this state, shall be remitted to the Administration of Justice Funds Section.
  3. The Administration of Justice Funds Section shall:
    1. Deposit the court costs and filing fees remitted under subsection (b) of this section into the State Administration of Justice Fund; and
    2. Keep an accurate account of all receipts by type of case and type and location of court from which the court costs and filing fees are submitted.

History. Acts 1995, No. 1256, § 9; 2003, No. 1185, § 50; 2007, No. 663, § 26; 2013, No. 282, § 5; 2013, No. 504, § 1.

A.C.R.C. Notes. Pursuant to § 1-2-207, the amendments to this section by Acts 2013, No. 282, § 5, are superseded by the amendments to this section by Acts 2013, No. 504, § 1. Acts 2013, No. 282, § 5, amended this section to read as follows:

“(a) There is created in the Department of Finance and Administration an Administration of Justice Funds Section, to which shall be remitted the court costs and filing fees enumerated in §§ 21-6-403, 16-17-12 705, and 16-10-305, which are assessed and collected in the district courts and circuit courts in this state.

“(b) The section shall deposit the court costs and filing fees enumerated in §§ 21-6-403, 16-17-705, and 16-10-305 into the State Administration of Justice Fund.

“(c) The section shall keep an accurate account of all receipts by type of case and type and location of court from which the court costs and filing fees enumerated in §§ 21-6-403, 16-17-705, and 16-10-305 are submitted.”

Amendments. The 2007 amendment, in (b)(1), deleted “16-14-105” following “21-6-403,” “16-10-303” following “16-17-705,” and “city courts” preceding “district” and made related changes; and deleted (c).

The 2013 amendment rewrote the section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-10-307. County administration of justice fund.

  1. There is hereby created in each county a fund in the office of the county treasurer to be known as the “county administration of justice fund”.
  2. The county administration of justice fund shall be used to defray a part of the expenses of the administration of justice in the county. From the fund, the county shall continue to finance the following county agencies and programs which are currently funded, in whole or in part, by filing fees and court costs, at a funding level equal to not less than the greater of the amount which was collected by the county from filing fees and court costs for the agency or program in the calendar year ending December 31, 1994, or the amount appropriated by ordinance enacted prior to December 31, 1994, or on February 13, 1995, or on February 14, 1995, or by resolution dated February 9, 1995, to the agency or program for the calendar year ending December 31, 1995:
    1. The prosecuting attorney fund, including all grant funds awarded and appropriated for the calendar year ending December 31, 1995;
    2. The prosecuting attorney's victim-witness program fund;
    3. The public defender/indigent defense fund and public defender investigator fund, including all grant funds awarded and appropriated for the calendar year ending December 31, 1995;
    4. The county law library fund;
    5. The county jail fund; and
    6. The intoxication detection equipment fund.
      1. The county administration of justice fund of each county may retain an amount equal to the amount which was collected by the county from court costs and filing fees for county administration of justice expense in the calendar year ending December 31, 1994, or the amount appropriated from court costs and filing fees by ordinance enacted prior to December 31, 1994, or on February 13, 1995, or on February 14, 1995, or by resolution dated February 9, 1995, for county administration of justice expense from court costs and filing fees for the calendar year ending December 31, 1995, plus, for calendar years 1995 — 2001, an additional amount based upon the average percentage increase in the Consumer Price Index for All Urban Consumers or its successor, as published by the United States Department of Labor for the two (2) years immediately preceding.
        1. The amount retained during calendar years 2002, 2003, 2004, and 2005 shall be the amount retained during calendar year 2001.
        2. Except as provided in subdivision (c)(1)(B)(iii) of this section, for calendar years beginning 2014 and each calendar year thereafter, an additional amount shall be added to the amount to be retained based upon the lesser of the average percentage increase in the Consumer Price Index for All Urban Consumers or its successor, as published by the United States Department of Labor, for the two (2) years immediately preceding or the percentage rate of increase in collections of the State Administration of Justice Fund for the two (2) years immediately preceding.
        3. The provisions of subdivision (c)(1)(B)(ii) of this section shall not be effective if the Chief Fiscal Officer of the State determines that the additional amount retained under subdivision (c)(1)(B)(ii) of this section has exceeded one million dollars ($1,000,000) in a calendar year and any additional amount to be retained must be authorized by the General Assembly.
      2. All local ordinances of the counties and cities authorized and adopted under § 24-8-318 shall remain in full force and effect.
    1. For the calendar year beginning January 1, 1998, the base amount to be retained shall be:
      1. Increased by any increase in the Consumer Price Index for All Urban Consumers as provided for in subdivision (c)(1) of this section; and
      2. Decreased by eighty-five percent (85%) of the total dollar amount which was certified by the county as having been collected during calendar year 1994 and for the purpose of funding the office and operation of the public defender and public defender investigator.
  3. Nothing in this section shall prevent the county from funding any additional costs for the administration of justice from these or other county funds.
  4. The county shall remit on or before the fifteenth day of each month all sums received in excess of the amounts necessary to fund the expenses enumerated in subsections (b) and (c) of this section during the previous month from the uniform filing fees provided for in §§ 21-6-403 and 9-15-202, and the uniform court costs provided for in § 16-10-305 to the Administration of Justice Funds Section for deposit into the State Administration of Justice Fund.

History. Acts 1995, No. 1256, §§ 10, 12; 1995 (1st Ex. Sess.), No. 13, § 7; 1997, No. 788, § 6; 1997, No. 1341, § 6; 2001, No. 1611, § 1; 2003, No. 1185, § 51; 2005, No. 434, § 1; 2005, No. 2212, § 1; 2007, No. 177, § 2; 2013, No. 282, §§ 6, 7.

A.C.R.C. Notes. As enacted by Acts 1995, No. 1256, § 10, this section contained an additional subsection which provided:

“Nothing in this act shall prevent the county from funding any additional costs for the administration of justice from other county funds or as disbursed by the county as required and authorized by the 80th General Assembly meeting in regular session.”

Amendments. The 2005 amendment by No. 434 substituted “fifteenth day of each month” for “tenth day of November 1995 and on or before the tenth day of each month thereafter” in (e).

The 2005 amendment by No. 2212 redesignated former (c)(1)(B) as present (c)(1)(B)(i); substituted “years 2002, 2003, 2004, and 2005” for “year 2002 and each calendar year thereafter”; and added (c)(1)(B)(ii), (c)(1)(B)(iii) and (c)(1)(C).

The 2007 amendment deleted “Notwithstanding the creation of the Arkansas District Judge Retirement System on January 1, 2005” at the beginning of (c)(1)(C), and made a related change.

The 2013 amendment, in (c)(1)(B)(ii), substituted “2014” for “2006,” inserted “lesser of the” preceding “average percentage,” and added “or the percentage rate of increase in collections of the State Administration of Justice Fund for the two (2) years immediately preceding” at the end; and, in (e), substituted “§§ 21-6-403 and 9-15-202” for “§ 21-6-403,” inserted “Administration of Justice Funds Section of the Office of Administrative Services of the,” and deleted “Administration of Justice Funds Section” preceding “for deposit.”

Cross References. Legislative intent of Acts 1997, Nos. 788 and 1341, § 16-10-601.

Transition to state funding, § 16-87-301.

Use of County Jail Fund for supervision and transportation of inmates, § 12-41-716.

Case Notes

Purpose.

The intent of this section and § 16-87-306 is to provide representation for indigents in cases in which there is a potential for loss of liberty, but the provision of § 14-20-102 that grants authority for the trial court to appoint attorneys for minors in civil litigation to be paid by county funds, was not incorporated in the statutes establishing and defining the duties and responsibilities of the Commission. Ark. Pub. Defender Comm'n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000).

Applicability.

This section, which allocates to the Public Defender Commission a portion of county funds established by § 14-20-102, does not contain language authorizing the Commission to expend funds for the civil representation of a minor. Ark. Pub. Defender Comm'n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000).

16-10-308. City administration of justice fund.

    1. There is hereby created in each town or city which operates a district court a fund in the office of the city treasurer to be known as the “city administration of justice fund”.
      1. A town or city operating a city court that becomes a department of district court shall continue to maintain the city administration of justice fund as originally established by this section.
      2. The city administration of justice fund of any town or city shall cease to exist on and after the effective date of the ordinance that abolishes the department of district court for that town or city pursuant to state law.
  1. The city administration of justice fund shall be used to defray a part of the expense of the administration of justice in the town or city. From the fund, the town or city shall continue to finance the following town or city agencies and programs which are currently funded, in whole or in part, by filing fees and court costs, at a funding level equal to not less than the greater of the amount which was collected by the town or city from court costs and filing fees for the agency or program in the calendar year ending December 31, 1994, or the amount appropriated by ordinance enacted prior to December 31, 1994, to the agency or program for the calendar year ending December 31, 1995:
    1. The municipal court judge and clerk retirement fund for disbursement as otherwise provided by law;
    2. The police and fire pension fund;
    3. The intoxication detection equipment fund;
    4. All municipal-level programs and agencies funded in whole or in part by court costs and filing fees assessed and collected by the district court, notwithstanding the repeal by this act of laws authorizing the collection of court costs and filing fees; and
    5. All county-level programs and agencies funded in whole or in part by court costs and filing fees assessed and collected by the district court, notwithstanding the repeal by this act of laws authorizing the collection of court costs and filing fees and the disbursement of all or a part thereof to the county.
      1. The city administration of justice fund of each town or city may retain an amount equal to the amount which was collected by the town or city from court costs and filing fees for city administration of justice expense in the calendar year ending December 31, 1994, or the amount appropriated from court costs and filing fees by ordinance enacted prior to December 31, 1994, for city or county administration of justice expense from court costs and filing fees for the calendar year ending December 31, 1995, plus, for calendar years 1995-2001, an additional amount based upon the average percentage increase in the Consumer Price Index for All Urban Consumers or its successor, as published by the United States Department of Labor for the two (2) years immediately preceding.
        1. The amount retained during calendar years 2002, 2003, 2004, and 2005 shall be the amount retained during calendar year 2001.
        2. Except as provided in subdivision (c)(1)(B)(iii) of this section, for calendar years beginning 2014 and each calendar year thereafter, an additional amount shall be added to the amount to be retained based upon the lesser of the average percentage increase in the Consumer Price Index for All Urban Consumers or its successor, as published by the United States Department of Labor, for the two (2) years immediately preceding or the percentage rate of increase in collections of the State Administration of Justice Fund for the two (2) years immediately preceding.
        3. The provisions of subdivision (c)(1)(B)(ii) of this section shall not be effective if the Chief Fiscal Officer of the State determines that the additional amount retained under subdivision (c)(1)(B)(ii) of this section has exceeded one million dollars ($1,000,000) in a calendar year, and any additional amount to be retained must be authorized by the General Assembly.
      2. All local ordinances of the counties and cities authorized and adopted under § 24-8-318 shall remain in full force and effect.
    1. For the calendar year beginning January 1, 1998, the base amount to be retained shall be:
      1. Increased by any increase in the Consumer Price Index for All Urban Consumers as provided for in subdivision (c)(1) of this section; and
      2. Decreased by eighty-five percent (85%) of the total dollar amount which was certified by the town or city as having been collected during calendar year 1994 for the purpose of funding the office and operation of the public defender and public defender investigator.
  2. Nothing in this act shall prevent the town or city from funding any additional costs for the administration of justice from other town or city funds.
  3. The town or city shall remit, on or before the fifteenth day of each month, all sums received in excess of the amounts necessary to fund the expenses enumerated in subsections (b) and (c) of this section during the previous month from the uniform filing fees provided for in § 16-17-705 and the uniform court costs provided for in § 16-10-305 to the Administration of Justice Funds Section for deposit into the State Administration of Justice Fund.

History. Acts 1995, No. 1256, §§ 11, 13; 1997, No. 788, § 8; 1997, No. 1341, § 8; 2001, No. 1611, § 2; 2003, No. 1185, §§ 52, 53; 2005, No. 1934, § 4; 2005, No. 2212, § 2; 2007, No. 177, § 3; 2007, No. 663, § 27; 2013, No. 282, § 8.

Amendments. The 2007 amendment by No. 177 deleted “Notwithstanding the creation of the Arkansas District Judge Retirement System on January 1, 2005” at the beginning of (c)(1)(C), and made a related change.

The 2007 amendment by No. 663 inserted “town or” preceding “city” throughout the section; in (a), substituted “town or city which operates a district court” for “municipality which operates a police, city, or district court” in (1) and added (2); added “for disbursement as otherwise provided by law” in (b)(1); substituted “district” for “municipal, city, or police”: in (b)(4) and (5); substituted “§ 16-17-705” for “§§ 16-10-303 and 16-17-705” in (e); and made related changes.

The 2013 amendment, in (c)(1)(B)(ii), substituted “2014” for “2006,” inserted “lesser of the” preceding “average percentage,” and added “or the percentage rate of increase in collections of the State Administration of Justice Fund for the two (2) years immediately preceding” at the end.

Cross References. Additional funding sources for the municipal court judges' and court clerks' retirement benefits, §§ 24-8-317 and 24-8-318.

District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Legislative intent of Acts 1997, Nos. 788 and 1341, § 16-10-601.

Transition to state funding, § 16-87-301.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-10-309. Failure to submit funds or reports.

  1. In the event a town, city, or county fails to timely or adequately submit funds and reports required by § 16-10-306, § 16-10-307(e), § 16-10-308(e), or other state law requiring a town, city, or county to submit funds and reports to the Administration of Justice Funds Section:
        1. The Attorney General may file a civil suit in circuit court against the town, city, or county alleged to have failed to submit the funds.
        2. If the town, city, or county is found by the court to have failed to submit the funds and reports, the court shall impose a civil penalty on the town, city, or county of ten percent (10%) of the amount required to be remitted for the period of time the town, city, or county has failed to be in compliance.
        3. The action may be brought in the circuit court of the subject county or the Pulaski County Circuit Court.
        4. The Attorney General shall be allowed to recover costs and attorney's fees associated with the civil suit from the town, city, or county found to have failed to be in compliance.
      1. The Chief Fiscal Officer of the State, upon a finding that the town, city, or county has failed to submit the funds and reports, may withhold from month to month an equal amount from the town's, city's, or county's share of the state turnback funds owed to the town, city, or county until the funds required to be paid have been submitted; and
      1. Provided that the failure to act continues for a period of sixty (60) days, the state, upon a finding by the Chief Fiscal Officer of the State, may require the town, city, or county to remit all costs, fees, or other funds, however designated under subdivision (a)(1) of this section.
      2. The town, city, or county will thereafter receive its share of these funds at a time and in the manner prescribed by rules of the Chief Fiscal Officer of the State.
    1. All funds received under § 16-10-306, § 16-10-307(e), or § 16-10-308(e) shall be transferred to the State Administration of Justice Fund to be held and distributed under this subchapter.
    2. All other funds received shall be transferred to the appropriate state fund as provided by law.

History. Acts 1995, No. 1256, § 14; 2005, No. 1934, § 5; 2007, No. 133, § 1; 2009, No. 166, § 1; 2019, No. 315, § 1292.

Amendments. The 2005 amendment inserted “town” throughout this section; inserted “or other state … and Administration” in (a); inserted the present subdivision designations in (a)(1)(A) and (a)(2); deleted “required by this act” at the end of (a)(1)(A)(i) and following “and reports” in (a)(1)(A)(ii) and (a)(1)(B); deleted “with this act” from the end of (a)(1)(A)(ii); substituted “failed to be in compliance” for “violated thd provisions of this act” in (a)(1)(A)(iv); deleted “by this act” following “to be paid” in (a)(1)(B); in (a)(2)(A), inserted “or other funds however designated” and substituted “under subsection (a) of this section” for “generated by this act”; redesignated former (b) as present (b)(1); in (b)(1), substituted “under § 16-10-306, § 16-10-307(d), or § 16-10-308(e)” for “pursuant to subsection (a) of this section,” and “under this subchapter” for “pursuant to this act”; added (b)(2) and made minor stylistic and related changes.

The 2007 amendment substituted “subdivision (a)(1)” for “subsection (a)” in (a)(2)(A); and made minor stylistic changes.

The 2009 amendment substituted “compliance” for “compliance; and” in (a)(1)(A)(iv) and made a minor punctuation change.

The 2019 amendment substituted “rules” for “regulations” in (a)(2)(B).

Meaning of “this act”. See note to § 16-10-301.

16-10-310. State Administration of Justice Fund — Distribution of revenue.

  1. At the close of books on or before the twentieth working day of each month, the Department of Finance and Administration shall distribute revenue credited to the State Administration of Justice Fund and received for the previous month as provided in this section.
  2. The revenue described in subsection (a) of this section shall be distributed to the following state programs and state agencies in monthly installments of at least one-twelfth (1/12) of the annual allocation provided for each state program or state agency from the State Administration of Justice Fund subject to the limitations stated in this section:
    1. The Board of Trustees of the University of Arkansas for the purpose of and as regulated by §§ 6-64-604 — 6-64-606;
    2. The Public Health Fund and the Drug Abuse Prevention and Treatment Fund for use in the drug abuse prevention and treatment program of the Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services;
    3. The Division of Arkansas State Police for the State Police Retirement Fund;
    4. The Crime Victims Reparations Revolving Fund for the purpose of and as regulated by the Arkansas Crime Victims Reparations Act, § 16-90-701 et seq.;
    5. The Prosecutor Coordinator's office for deposit into the Law Enforcement and Prosecutor Drug Enforcement Training Fund;
    6. The Crime Information System Fund;
    7. The Justice Building Construction Fund;
    8. The District Court Judge and District Court Clerk Education Fund;
    9. The Judges Retirement Fund;
    10. The State Central Services Fund for the benefit of the Arkansas Public Defender Commission;
    11. The Court Reporter's Fund;
    12. The Justice Building Fund;
    13. The Arkansas Counties Alcohol and Drug Abuse and Crime Prevention Program Fund;
    14. The Administrative Office of the Courts to fund the Trial Court Administrator Fund;
    15. The Division of Arkansas State Police Fund;
    16. The State Central Services Fund for the benefit of the Division of Dependency-Neglect Representation of the Administrative Office of the Courts;
    17. The Miscellaneous Agencies Fund Account for the benefit of the State Crime Laboratory;
    18. The Arkansas District Judges Council Inc. for the Executive Director of the Arkansas District Judges Council Inc.;
    19. The Public Legal Aid Fund;
    20. The Administrative Office of the Courts for county reimbursements for jurors; and
    21. The Administrative Office of the Courts to reimburse the State Central Services Fund for the Drug Court Coordinator.
  3. If the Chief Fiscal Officer of the State determines that the State Administration of Justice Fund balance and estimated revenue to be received by the State Administration of Justice Fund are inadequate to fully fund all authorized monthly allocations from the State Administration of Justice Fund:
      1. The available revenue and remaining State Administration of Justice Fund balance shall be distributed first to fully fund the monthly allocation for:
        1. The Court Reporter's Fund;
        2. The Arkansas District Judges Council Inc. for the Executive Director of the Arkansas District Judges Council Inc.; and
        3. The Administrative Office of the Courts to fund the Trial Court Administrator Fund.
      2. Funds or allocations for a state program or state agency listed in subdivision (c)(1)(A) of this section shall not be affected if a deficit occurs in other State Administration of Justice Fund appropriations, allocations, or funds not listed in subdivision (c)(1)(A) of this section for that particular state program or state agency;
    1. The Chief Fiscal Officer of the State shall notify the disbursing officer of each state agency and state program not listed in subdivision (c)(1)(A) of this section of the amount of the state agency's or state program's portion of any reduction required from the state agency's or state program's authorized allocation in order to maintain the State Administration of Justice Fund with a projected positive balance; and
      1. The total funds remaining in the State Administration of Justice Fund after the distribution is made under subdivision (c)(1)(A) of this section shall be distributed to the state programs and state agencies not listed in subdivision (c)(1)(A) of this section in an amount equal to the proportion of the State Administration of Justice Fund that each state program would have received under subsection (b) of this section.
      2. A funding shortage from one (1) month shall be recouped from future months' payments as funds become available.
    1. If required to help meet the commitments of the State Administration of Justice Fund and if funds are determined to be available, the Chief Fiscal Officer of the State may transfer a sum not to exceed four million dollars ($4,000,000) during any fiscal year from the Budget Stabilization Trust Fund to the State Administration of Justice Fund.
    2. As determined by the Chief Fiscal Officer of the State, if a positive fund balance remains in the State Administration of Justice Fund at the end of a fiscal year, the Chief Fiscal Officer of the State may transfer the positive fund balance from the State Administration of Justice Fund to the Budget Stabilization Trust Fund to reimburse for any transfers made under subdivision (d)(1) of this section.

History. Acts 1995, No. 1256, § 15; 1995 (1st Ex. Sess.), No. 13, § 2; 1997, No. 788, § 10; 1997, No. 1341, § 10; 2003, No. 1185, § 54; 2009, No. 166, § 2; 2011, No. 1132, § 3; 2013, No. 504, § 2; 2013, No. 1107, § 13; 2015, No. 268, §§ 1, 2; 2017, No. 913, § 40.

A.C.R.C. Notes. The Highway Safety Program referred to in (b)(3) was the former Highway Safety Special Fund, a fund repealed by Acts 1997, No. 298.

The language removed in former (b)(3) relating to the Highway Safety Special Fund was only in reference to the previously repealed special revenue fund by that name and in no way alters the distribution to the miscellaneous fund by that name.

Acts 2013, No. 1443, § 58, provided: “DISTRIBUTION OF ADMINISTRATION OF JUSTICE FUNDS.

In the event that the fund balance in the Administration of Justice Fund is inadequate to fund the monthly allocation to State Agencies, the funds will be distributed as follows:

“(a) The available revenue and remaining State Administration of Justice Fund balance shall be distributed first to fully fund the monthly allocations found in Section 59 herein for

“(1) the Auditor of State to fund the Trial Court Administrative Assistants Fund,

“(2) the District Judges Association for the District Court Coordinator, and

“(3) the Court Reporter Fund.

“(b) The total funds remaining in the State Administration of Justice Fund after the monthly distribution is made under subdivision (a) of this section shall be distributed to the remaining state programs and state agencies listed in Section 59 herein but not listed in subdivision (a) of this section and shall be funded in the percentage of the total funds available in the Administration of Justice Fund; that is, if less than 100% of the total monthly allocation is available for distribution, monthly allocations for the remaining agencies will be funded at an equal percentage consistent with the remaining available funds, provided that any of the allocations listed in Section 59 that have been fully pledged prior to January 1, 2001 to the repayment of a bond issue or bond issues shall not be reduced below the amount listed in Section 59. Any shortage from one month will be adjusted in future months' payments as funds become available.

“The provisions of this section shall be in effect only from July 1, 2013 through June 30, 2014.”

Acts 2014, No. 105, § 36, provided:

“TRANSFER AUTHORITY. The Department of Finance and Administration shall transfer funds, from time to time, from the State Administration of Justice Fund to the State Central Services Fund in such amounts as are required to reimburse the State Central Services Fund for a portion of the expenses of the Administrative Office of the Courts — Division of Dependency-Neglect Representation.

“The provisions of this section shall be in effect only from July 1, 2014 through June 30, 2015.”

Acts 2014, No. 285, § 61, provided:

“DISTRIBUTION OF ADMINISTRATION OF JUSTICE FUNDS. In the event that the fund balance in the Administration of Justice Fund is inadequate to fund the monthly allocation to State Agencies, the funds will be distributed as follows:

“(a) The available revenue and remaining State Administration of Justice Fund balance shall be distributed first to fully fund the monthly allocations found in Section 62 of this Act for

“(1) The Auditor of State to fund the Trial Court Administrative Assistants Fund,

“(2) the District Judges Association for the District Court Coordinator, and

“(3) the Court Reporter Fund.

“(b) The total funds remaining in the State Administration of Justice Fund after the monthly distribution is made under subdivision (a) of this section shall be distributed to the remaining state programs and state agencies listed in Section 62 of this Act but not listed in subdivision (a) of this section shall be funded in the percentage of the total funds available in the Administration of Justice Fund; that is if less than 100% of the total monthly allocation is available for distribution, monthly allocations for the remaining agencies will be funded at an equal percentage consistent with the remaining available funds, provided that any of the allocations listed in Section 62 that have been fully pledged prior to January 1, 2001 to the repayment of a bond issue or bond issues shall not be reduced below the amount listed in Section 62 of this Act. Any shortage from one month will be adjusted in future months' payments as funds become available.

“The provisions of this section shall be in effect only from July 1, 2014 through June 30, 2015.”

Acts 2015, No. 1070, § 59, provided: “DISTRIBUTION OF ADMINISTRATION OF JUSTICE FUNDS

In the event that the fund balance in the Administration of Justice Fund is inadequate to fund the monthly allocation to State Agencies, the funds will be distributed as follows:

“(a) The available revenue and remaining State Administration of Justice Fund balance shall be distributed first to fully fund the monthly allocations found in Section 59 of this Act for

“(1) The Auditor of State to fund the Trial Court Administrative Assistants Fund,

“(2) the District Judges Association for the District Court Coordinator, and

“(3) the Court Reporter Fund.

“(b) The total funds remaining in the State Administration of Justice Fund after the monthly distribution is made under subdivision (a) of this section shall be distributed to the remaining state programs and state agencies listed in Section 59 of this Act but not listed in subdivision (a) of this section shall be funded in the percentage of the total funds available in the Administration of Justice Fund; that is if less than 100% of the total monthly allocation is available for distribution, monthly allocations for the remaining agencies will be funded at an equal percentage consistent with the remaining available funds, provided that any of the allocations listed in Section 59 that have been fully pledged prior to January 1, 2001 to the repayment of a bond issue or bond issues shall not be reduced below the amount listed in Section 59 of this Act. Any shortage from one month will be adjusted in future months' payments as funds become available.

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

Acts 2016, No. 239, § 39, provided: “TRANSFER AUTHORITY. The Department of Finance and Administration shall transfer funds, from time to time, from the State Administration of Justice Fund to the State Central Services Fund in such amounts as are required to reimburse the State Central Services Fund for a portion of the expenses of the Administrative Office of the Courts — Division of Dependency-Neglect Representation.

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

Acts 2016, No. 251, § 59, provided: “DISTRIBUTION OF ADMINISTRATION OF JUSTICE FUNDS.

In the event that the fund balance in the Administration of Justice Fund is inadequate to fund the monthly allocation to State Agencies, the funds will be distributed as follows:

“(a) The available revenue and remaining State Administration of Justice Fund balance shall be distributed first to fully fund the monthly allocations found in the ALLOCATION RESTRICTIONS SECTION of this Act for

“(1) The Auditor of State to fund the Trial Court Administrative Assistants Fund,

“(2) the District Judges Association for the District Court Coordinator, and

“(3) the Court Reporter Fund.

“(b) The total funds remaining in the State Administration of Justice Fund after the monthly distribution is made under subdivision (a) of this section shall be distributed to the remaining state programs and state agencies listed in the ALLOCATION RESTRICTIONS SECTION of this Act but not listed in subdivision (a) of this section shall be funded in the percentage of the total funds available in the Administration of Justice Fund; that is if less than 100% of the total monthly allocation is available for distribution, monthly allocations for the remaining agencies will be funded at an equal percentage consistent with the remaining available funds, provided that any of the allocations listed in the ALLOCATION RESTRICTIONS SECTION that have been fully pledged prior to January 1, 2001 to the repayment of a bond issue or bond issues shall not be reduced below the amount listed in the ALLOCATION RESTRICTIONS SECTION of this Act. Any shortage from one month will be adjusted in future months' payments as funds become available.

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

Publisher's Notes. Acts 1997, No. 855, § 5, set out the maximum allocation to each fund for fiscal years 1997-98 and 1998-99.

Amendments. The 2009 amendment rewrote (2), deleted (7) and redesignated the remaining subsections accordingly; substituted “Judges Retirement” for “Arkansas Judicial Retirement System” in (10); inserted “State” in (15); added (16) through (22); and made related changes.

The 2011 amendment deleted “of the Division of Behavioral Health of the Department of Human Services” following “Office of Alcohol and Drug Abuse Prevention” in (b)(2); deleted former (b)(3) and redesignated the remaining subdivisions accordingly; and, in (b)(18), substituted “Arkansas District Judges Council” for “District Judges Association” and “Executive Director” for “District Court Coordinator.”

The 2013 amendment by No. 504 added “State Administration of Justice Fund” to the section heading; rewrote (a) and the introductory language of (b); inserted “the Arkansas Crime Victims Reparations Act” in (b)(4); rewrote (b)(14); and added (c) and (d).

The 2013 amendment by No. 1107 substituted “Division of Behavioral Health Services” for “Office of Alcohol and Drug Abuse Prevention” in (b)(2).

The 2015 amendment substituted “Administrative Office of the Courts” for “Auditor of State” and “Trial Court Administrator” for “Trial Court Administrative Assistant” in (b)(14) and (c)(1)(A)(iii).

The 2017 amendment substituted “Division of Aging, Adult, and Behavioral Health Services of the Department of Human Services” for “Division of Behavioral Health Services” in (b)(2).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Legislative intent of Acts 1997, Nos. 788 and 1341, § 16-10-601.

Transition to state funding, § 16-87-301.

16-10-311. Transfer of funds from State Administration of Justice Fund.

The Department of Finance and Administration may transfer funds, from time to time, from the State Administration of Justice Fund to the State Central Services Fund in such amounts as may be required to reimburse the State Central Services Fund for expenses of the Administration of Justice Funds Section of the Department of Finance and Administration.

History. Acts 1997, No. 855, § 4.

16-10-312. [Repealed.]

Publisher's Notes. This section, concerning the distribution of the State Administration of Justice Fund, was repealed by Acts 2013, No. 504, § 3. The section was derived from Acts 1997, No. 855, § 8.

16-10-313. Support for State Crime Laboratory.

Notwithstanding §§ 16-10-306, 16-10-307, 16-10-603, 16-10-604, and 19-5-993 or any other law to the contrary, twenty-five dollars ($25.00) of the uniform filing fee collected in circuit court under § 21-6-403(b)(1) shall be deposited into the State Treasury as special revenues to the credit of the Miscellaneous Agencies Fund Account, there to be used solely for the operations and support of the State Crime Laboratory. These moneys shall be in addition to all other sources of funding for the State Crime Laboratory and shall not be used to supplant any other source of funding for the State Crime Laboratory.

History. Acts 2005, No. 65, § 2.

16-10-314. Support for Arkansas publicly funded law schools.

  1. Notwithstanding §§ 16-10-306, 16-10-307, 16-10-603, 16-10-604, and 19-5-993 or any other law to the contrary, fifteen dollars ($15.00) of the uniform filing fee collected in circuit court under § 21-6-403(b)(1) shall be deposited as follows:
    1. Fifty percent (50%) of the revenues shall be deposited into the State Treasury as special revenues to the credit of the University of Arkansas Fund, there to be used for the support of the University of Arkansas School of Law; and
    2. Fifty percent (50%) of the revenues shall be deposited into the State Treasury as special revenues to the credit of the University of Arkansas at Little Rock Fund, there to be used for the support of the University of Arkansas at Little Rock School of Law.
  2. These moneys shall be in addition to all other sources of funding for the law schools and shall not be used to supplant any other source of funding for the law schools.

History. Acts 2005, No. 431, § 2.

16-10-315. City courts — Loss of authority — Enforcement by Department of Finance and Administration. [Effective until January 1, 2012.]

  1. If the Department of Finance and Administration determines that a city court is not in substantial compliance with § 16-10-306 or § 16-10-308, the department shall report the findings to the Legislative Joint Auditing Committee.
    1. Upon notification of noncompliance by the department, the committee shall notify in writing the mayor, the city or town council, the city court judge, and the city court clerk that the city court is not in substantial compliance with this subchapter.
    2. The city court shall have ninety (90) days after the date of notification to substantially comply with this subchapter.
      1. After the ninety (90) days allowed for compliance or upon request by the appropriate city court officials, the department shall review the city court's records to determine if the city court is in substantial compliance with this subchapter.
      2. The department shall report its findings to the committee.

(d) If the city court has not achieved substantial compliance within the ninety-day period, the committee shall notify both the Administrative Office of the Courts and the city court of the noncompliance and inform the city court that it no longer has authority to operate.

History. Acts 2009, No. 488, § 2.

Subchapter 4 — Judicial Discipline and Disability Commission

Effective Dates. Acts 1993, No. 505, § 11: 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 [sic], 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.”

Research References

Am. Jur. 46 Am. Jur. 2d, Judges, § 50 et seq.

C.J.S. 48A C.J.S., Judges, § 40 et seq.

U. Ark. Little Rock L.J.

Survey, Legal Profession, 12 U. Ark. Little Rock L.J. 649.

Averill, Observations on the Wyoming Experience with Merit Selection of Judges: A Model for Arkansas, 17 U. Ark. Little Rock L.J. 281.

16-10-401. Definitions.

The word “judge” in this subchapter means anyone, whether or not a lawyer, who is an officer of the judicial system performing judicial functions, including an officer such as a referee, special master, court commissioner, or magistrate, whether full-time or part-time.

History. Acts 1989, No. 637, § 1.

16-10-402. Creation.

  1. There is hereby established a commission to be known as the Judicial Discipline and Disability Commission, hereinafter referred to as the “commission”, consisting of nine (9) members, each of whom shall be residents of Arkansas, and shall be appointed as follows:
    1. Three (3) members shall be judges of the Arkansas Court of Appeals, circuit court, or municipal court appointed by the Arkansas Supreme Court;
    2. Three (3) members shall be lawyers admitted to practice in Arkansas who are not judges or former or retired judges, one (1) of whom shall be appointed by the Attorney General, one (1) by the President of the Senate, and one (1) by the Speaker of the House of Representatives; and
    3. Three (3) members, who are neither lawyers, or judges, or former or retired judges, appointed by the Governor.
    1. A commission member shall serve for a term of six (6) years and shall be eligible for reappointment to a second full term.
    2. A member appointed to a term of less than six (6) years or to fill an unexpired term may be reappointed to two (2) full terms.
    3. The appointing authority for each category of commission membership shall also appoint an alternate member for each regular member appointed. An alternate member shall be appointed for a term of six (6) years and may be reappointed for a second term. An alternate member appointed to fill an unexpired term shall be eligible for an appointment for two (2) full terms.
  2. If a commission member or an alternate commission member moves out of the jurisdiction, ceases to be eligible for appointment to represent the category for which he or she was appointed, or becomes unable to serve for any reason, a vacancy shall occur. An appointment to fill a vacancy for the duration of its unexpired term shall be made by the appropriate appointing authority, effective no later than sixty (60) days from the occurrence of the vacancy. If a vacancy is not filled in accordance with this subsection, the Chief Justice of the Supreme Court shall, within ten (10) days thereafter, appoint, from the category to be represented, a member who shall serve for the duration of the unexpired term.
  3. Commission members shall serve without pay, but may receive expense reimbursement in accordance with § 25-16-901 et seq.

History. Acts 1989, No. 637, § 2; 1997, No. 250, § 116.

Publisher's Notes. Acts 1989, No. 637, § 2, provided, in part, that initial appointments shall be made so that the terms of one member in each of the three categories shall expire every other year.

Acts 1989, No. 632, § 2, also provided:

“When initial appointments are made, the appointing authority for each category of commission membership shall also appoint an alternate member for each regular member appointed.”

Ark. Const., Am. 80, § 19(A)(2) provided that all circuit, chancery, and circuit-chancery judges “in office at the time this Amendment takes effect shall continue in office as Circuit judges…” Amendment 80 further provided in § 19(B)(1) that the circuit courts would “assume the jurisdiction of Circuit, Chancery, Probate and Juvenile Courts.” Accordingly, the reference to “circuit court, chancery court” in subdivision (a)(1) has now been made “circuit court” in conformity with Amendment 80. This change made by Amendment 80 took effect July 1, 2001. Amendment 80 also provides that many of the lower courts will combine into district courts. The first portion of Amendment 80, § 19(B)(2) state “District Courts shall have the jurisdiction vested in Municipal Courts, Corporation Courts, Police Courts, Justice of the Peace Courts, and Courts of Common Pleas at the time this Amendment takes effect. District Courts shall assume the jurisdiction of these courts of limited jurisdiction and other jurisdiction conferred in this Amendment on January 1, 2005.”

Cross References. Judicial Discipline And Disability Commission, Ark. Const. Amend. 66.

16-10-403. Director — Staff.

  1. The Judicial Discipline and Disability Commission shall employ a director and such additional professional and clerical staff as may be authorized, from time to time, by appropriation passed by the General Assembly.
  2. Effective July 1, 1994, the Director of the Judicial Discipline and Disability Commission shall be an attorney licensed to practice in the State of Arkansas.
  3. The director shall not engage in the practice of law nor serve in a judicial capacity during his or her employment.

History. Acts 1989, No. 637, § 2; 1993, No. 505, § 5.

16-10-404. Duties — Records.

  1. The Judicial Discipline and Disability Commission shall initiate or shall receive information, conduct investigations and hearings, and make recommendations to the Supreme Court concerning:
    1. Allegations of judicial misconduct;
    2. Allegations of physical or mental disability of judges requiring leave or involuntary retirement; and
    3. Matters of voluntary retirement or leave for disability.
    1. Investigatory records, files, and reports of the Judicial Discipline and Disability Commission are confidential, and no disclosure of information, written, recorded, or oral, received or developed by the Judicial Discipline and Disability Commission in the course of an investigation related to alleged misconduct or disability of a judge shall be made except as follows:
      1. Upon waiver in writing by the judge at any stage of the proceedings;
      2. Upon inquiry by an appointing authority or by a state or federal agency conducting investigations on behalf of such authority in connection with the selection or appointment of judges;
      3. In cases in which the subject matter or the fact of the filing of charges has become public, if deemed appropriate by the Judicial Discipline and Disability Commission, it may issue a statement in order to confirm the pendency of the investigation, to clarify the procedural aspects of the proceedings, to explain the right of the judge to a fair hearing, and to state that the judge denies the allegations;
      4. Upon inquiry in connection with the assignment or recall of a retired judge to judicial duties, by or on behalf of the assigning authority;
      5. Upon the Judicial Discipline and Disability Commission's taking final action with respect to a complaint about a judge, notice of the final action shall become public information;
      6. Where the circumstances necessitating the initiation of an inquiry include notoriety, or where the conduct in question is a matter of public record, information concerning the lack of cause to proceed shall be released by the Judicial Discipline and Disability Commission;
      7. If, during the course of or after an investigation or hearing, the Judicial Discipline and Disability Commission reasonably believes that there may have been a violation of any rules of professional conduct of attorneys at law, the Judicial Discipline and Disability Commission may release such information to any committee, commission, agency, or body within or outside of the state empowered to investigate, regulate, or adjudicate matters incident to the legal profession;
      8. If, during the course of or after an investigation or hearing, the Judicial Discipline and Disability Commission reasonably believes that there may have been a violation of a law or rule falling under the jurisdiction of the Arkansas Ethics Commission, the Judicial Discipline and Disability Commission may release such information to the Arkansas Ethics Commission; or
      9. If, during the course of or after an investigation or hearing, the Judicial Discipline and Disability Commission reasonably believes that there may have been a violation of criminal law, the Judicial Discipline and Disability Commission shall release such information to the appropriate prosecuting attorney.
    2. All proceedings held prior to a determination of probable cause and the filing of formal charges shall be confidential. Any hearing scheduled after the filing of formal charges shall be open to the press and to the public, except that following the completion of the introduction of all evidence, the Judicial Discipline and Disability Commission may convene to executive session for the purpose of deliberating its final conclusions and recommendations, provided that, upon completion of the executive session, the final action of the Judicial Discipline and Disability Commission shall be announced in an open and public session.
    3. The Judicial Discipline and Disability Commission is authorized to request the appropriate prosecuting authorities to seek to obtain immunity from criminal prosecution for a reluctant witness using the procedure outlined in § 16-43-601 et seq.

History. Acts 1989, No. 637, § 2; 1993, No. 1078, § 1; 2013, No. 1115, § 2; 2015, No. 1152, § 1.

Publisher's Notes. Acts 1993, No. 1078, § 2, provided:

“It is hereby found that an Arkansas Supreme Court en banc decision, dated May 14, 1990 has left statues in conflict with the Commission's Rules of Procedure. In addition, because the commission is an agency of limited jurisdiction, strict confidentiality requirements have prevented the Commission from cooperating with enforcement agencies like the Supreme Court Committee on Professional Conduct and prosecuting attorneys. This legislation is necessary to conform statutes to the commission's Rules of Procedure and to provide an avenue of cooperation between the above mentioned enforcement agencies.”

Amendments. The 2013 amendment redesignated former (b)(1)(G) as present (b)(1)(G)(i); substituted “Judicial Discipline and Disability Commission” for “commission” throughout present (b)(1)(G)(i); and added (b)(1)(G)(ii).

The 2015 amendment redesignated (b)(1)(G)(i) and (b)(1)(G)(ii) as (b)(1)(G) and (b)(1)(H); and redesignated former (b)(1)(H) as (b)(1)(I).

Case Notes

Notice Requirements.

The commission was not required to comply retroactively with the amended notice requirements of Judicial Discipline and Disability Commission Rule 7. Gannett River States Pub. Co. v. Arkansas Judicial Discipline & Disability Com., 304 Ark. 244, 801 S.W.2d 292 (1990).

Review.

Circuit court properly dismissed an individual's complaint for declaratory judgment, injunctive relief, and mandamus against the Judicial Discipline and Disability Commission, stemming from the Commission's decision not to file formal charges against a judge, because the circuit court properly concluded that it lacked subject-matter jurisdiction. Review of the Commission's decisions lies exclusively with the Supreme Court of Arkansas. Since the circuit court lacked subject-matter jurisdiction, appellate jurisdiction was lacking. Perroni v. Sachar, 2017 Ark. 59, 513 S.W.3d 239 (2017).

Pursuant to Ark. Const. Amend. 66, as well as §§ 16-10-401 through 16-10-411 and the Rules of Procedure of the Judicial Discipline and Disability Commission, a review of the Judicial Discipline and Disability Commission's decision lies exclusively with the Supreme Court of Arkansas. Perroni v. Sachar, 2017 Ark. 59, 513 S.W.3d 239 (2017).

Cited: In re Badami, 309 Ark. 511, 831 S.W.2d 905 (1992); Daily World v. Phillips County Circuit Court, 361 Ark. 146, 205 S.W.3d 134 (2005); Helena Daily World v. Simes, 365 Ark. 305, 229 S.W.3d 1 (2006).

16-10-405. Rules.

The Supreme Court shall adopt rules with regard to all matters of Judicial Discipline and Disability Commission operations and all disciplinary and disability proceedings and promulgate rules of procedure.

History. Acts 1989, No. 637, § 9.

Case Notes

Cited: Gannett River States Pub. Co. v. Arkansas Judicial Discipline & Disability Com., 304 Ark. 244, 801 S.W.2d 292 (1990).

16-10-406. Immunity from suit.

Members of the Judicial Discipline and Disability Commission, referees, commission counsel, and staff shall be absolutely immune from suit for all conduct in the course of their official duties.

History. Acts 1989, No. 637, § 8.

Case Notes

Cited: Judicial Discipline & Disability Comm'n v. Digby, 302 Ark. 333, 789 S.W.2d 731 (1990); Comm'n on Judicial Discipline & Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990).

16-10-407. Leave.

Grounds for leave consist of a temporary physical or mental incapacity which impairs the ability of the judge to substantially perform the duties of his or her judicial office and which exists or is likely to exist for a period of one (1) year or less. Leave cannot be granted to exceed one (1) year.

History. Acts 1989, No. 637, § 3.

16-10-408. Suspension with pay.

A judge may be suspended by the Supreme Court with pay:

  1. While a recommendation to the Supreme Court by the Judicial Discipline and Disability Commission for his or her removal or involuntary disability retirement is pending; or
  2. When articles of impeachment have been voted by the House of Representatives.

History. Acts 1989, No. 637, § 4; 2015, No. 938, § 1.

Amendments. The 2015 amendment deleted former (1) and redesignated the remaining subdivisions accordingly.

Case Notes

Cited: In re Switzer, 303 Ark. 288, 796 S.W.2d 341 (1990).

16-10-409. Mandatory suspension.

    1. A judge shall be suspended from office with pay by the Supreme Court if:
      1. An indictment or information charges the judge in any court in the United States with a crime punishable as a felony under the laws of Arkansas or the United States or with any other offense that involves moral turpitude; or
      2. In any court in the United States he or she pleads guilty or no contest to, or is found guilty of, an offense punishable as a felony under the laws of Arkansas or the United States or any other offense that involves moral turpitude.
      1. If the judge requests a hearing on a suspension under subdivision (a)(1) of this section, the Supreme Court shall:
        1. Hold the hearing no later than ten (10) days after the request to determine whether the suspension with pay remains in effect during the pendency of criminal proceedings against the judge; and
        2. Notify the requesting judge and the Judicial Discipline and Disability Commission of the date of the hearing.
      2. In the hearing under this subdivision (a)(2) the Judicial Discipline and Disability Commission shall act as the opposing party of the requesting judge.
      3. The suspension with pay under subdivision (a)(1)(A) of this section shall be removed and the judge shall be allowed to perform his or her duties as a judge if the judge shows at the hearing by a preponderance of the evidence that:
        1. The performance of his or her duties as a judge while charges are pending will not impair the public confidence in the independence, integrity, and impartiality of the judiciary; and
        2. The charges are not likely to result in a conviction.
  1. If his or her conviction becomes final, he or she may be removed from office pursuant to § 16-10-410.
    1. If his or her conviction is reversed and he or she is cleared of the charge, by order of the court, whether without further trial or after further trial and a finding of not guilty, his or her suspension terminates.
    2. If the judge is suspended under subdivision (a)(1)(A) of this section and the charge is subsequently dismissed, the judge's suspension terminates.
  2. Nothing in this section shall prevent the Judicial Discipline and Disability Commission from determining that a judge be disciplined or removed according to § 16-10-410.

History. Acts 1989, No. 637, § 5; 2015, No. 938, § 2.

Amendments. The 2015 amendment rewrote the section.

16-10-410. Removal from office.

  1. The grounds for removal conferred by this subchapter shall be both alternative and cumulative to the power of impeachment provided by the Arkansas Constitution and removal otherwise provided by law.
  2. A judge may be removed from office on any of the following grounds:
    1. Conviction of any offense punishable as a felony under the laws of Arkansas or the United States;
    2. Conviction of a criminal act that reflects adversely on the judge's honesty, trustworthiness, or fitness as a judge in other respects;
    3. The commission of conduct involving dishonesty, fraud, deceit, or misrepresentation;
    4. The commission of conduct that is prejudicial to the administration of justice;
    5. Willful violation of the Arkansas Code of Judicial Conduct or the Model Rules of Professional Conduct;
    6. Willful and persistent failure to perform the duties of office; or
    7. Habitual intemperance in the use of alcohol or other drugs.
  3. In considering recommending removal, the Judicial Discipline and Disability Commission may consider the frequency of the offense, the motivation of the conduct, the length of time since the conduct in question, and similar factors.
  4. [Repealed.]

History. Acts 1989, No. 637, § 6; 1995, No. 1296, § 58; 2001, No. 5, § 1; 2015, No. 939, § 2.

A.C.R.C. Notes. Acts 2015, No. 939, § 1, provided: “Legislative Intent. The intent of this act is to repeal § 16-10-410(d) as the Supreme Court has held this provision unconstitutional under Proctor v. Daniels, 2010 Ark. 206 (2010).”

Amendments. The 2015 amendment repealed (d).

Case Notes

Constitutionality.

In a judge's declaratory action, this section was held unconstitutional, as it added a qualification to the office of circuit judge, encroaching on the power of the judiciary to interpret the law. Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360 (2010).

Federal Review Barred.

Complaint was dismissed because each of the judge's asserted wrongs were either directly encompassed in the state supreme court's judgment, or, as the bar from seeking re-election, “inextricably intertwined” with those claims already adjudicated in state court. The relief the judge sought was, therefore, barred by the Rooker-Feldman doctrine. Proctor v. Hannah, 688 F. Supp. 2d 851 (E.D. Ark. 2010).

Removal Appropriate.

Removal of the judge from office was proper under subdivision (b)(5) of this section because he willfully violated the Arkansas Code of Judicial Conduct when he, in part, acted inappropriately with defendants under his jurisdiction and when he enforced the payment of civil fees, knowing that the funds would go to a probation-type program that he started. Ark. Judicial Discipline and Disability Comm'n v. Proctor, 2010 Ark. 38, 360 S.W.3d 61, cert. denied, isability Comm'n, 561 U.S. 1027, 130 S. Ct. 3516, 177 L. Ed. 2d 1093 (2010).

Cited: In re Switzer, 303 Ark. 288, 796 S.W.2d 341 (1990).

16-10-411. Vacancy.

The granting of leave, suspension, with or without pay, removal, or involuntary disability retirement pursuant to this subchapter shall create a vacancy in the judicial office.

History. Acts 1989, No. 637, § 7.

Subchapter 5 — Circuit Court Judgeships and Redistricting

16-10-501. Development of criteria for new judgeships or redistricting.

  1. The Arkansas Judicial Council, hereinafter referred to as the “council”, is authorized and directed to develop criteria for new judgeships or redistricting of the circuit court districts of this state and to make recommendations to the regular session, fiscal session, or special session of the General Assembly regarding the number and boundaries of the circuit court districts in the state, the number of judges in each of such districts, and such other matters regarding circuit courts in the state as it determines to be appropriate.
  2. In establishing circuit court districts of this state, the council shall take into consideration caseload, geographic area to be served by the respective circuit courts, and such other matters as the council determines to be appropriate.
  3. The council shall meet on or before November 1 of each even-numbered year to finalize criteria for establishing additional judgeships or redistricting during the next regular session of the General Assembly.

History. Acts 1989, No. 864, §§ 1-3; 2003, No. 1185, § 55; 2009, No. 962, § 34.

Amendments. The 2009 amendment inserted “session, fiscal session” preceding “or special session” in (a).

Subchapter 6 — Funding

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Effective Dates. Acts 1997, No. 788, § 36: became law without the Governor's signature. Noted Mar. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 1997, No. 1341, § 35: became law without the Governor's signature. Noted Apr. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 2007, No. 663, § 56: Jan. 1, 2012.

16-10-601. Legislative intent.

  1. It is hereby found by the General Assembly that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state. It is further determined that, with the passage and implementation of Acts 1995, No. 1256, a uniform structure for the accounting and distribution of court-generated funds has been established and reliable data on the cost of providing court services and the revenue produced by the court system now exists.
  2. It is, therefore, the intent of this act to begin to phase in the responsibility of the funding of a part of the state trial court system from county government to the state. It is, further, the intent of this act to continue and improve the reporting of information from cities and counties concerning the costs of providing the court system and the revenues produced from court costs, fees, and fines.

History. Acts 1997, No. 788, § 1; 1997, No. 1341, § 1.

Publisher's Notes. For the codification of Acts 1995, No. 1256, referred to in this section, please consult Tables Volume B.

Meaning of “this act”. Acts 1997, No. 788, codified as §§ 5-76-103, 16-10-133, 16-10-209, 16-10-305, 16-10-307, 16-10-308, 16-10-310, 16-10-60116-10-604, 16-10-701 [repealed], 16-13-512, 16-14-105(a), 16-87-203(a), 16-87-204(b), 16-87-210, 16-87-212(a), 16-87-215, 16-87-30116-87-307, 16-96-403, 19-5-1087, 21-6-403, 26-60-112; and Acts 1997, No. 1341, codified as §§ 5-76-103, 16-10-133, 16-10-209, 16-10-305, 16-10-307, 16-10-308, 16-10-310, 16-10-60116-10-604, 16-10-701, 16-13-512, 16-14-105(a), 16-87-203(a), 16-87-204(b), 16-87-210, 16-87-212(a), 16-87-215, 16-87-30116-87-307, 16-96-403, 21-6-403, 26-60-112.

16-10-602. Establishment of city and county shares.

  1. Pursuant to §§ 16-10-307(c) and 16-10-308(c), each town, city, and county may retain a portion of the uniform court costs and filing fees collected and deposited into the city or county administration of justice fund.
  2. On or before the first day of October of each year, the Department of Finance and Administration shall certify in writing to each county and to each town or city which operates a district court the amount of money which may be retained during each month of the following calendar year by the town, city, or county.

History. Acts 1997, No. 788, § 5; 1997, No. 1341, § 5; 2001, No. 1809, § 11; 2003, No. 1185, §§ 56, 57; 2007, No. 663, § 28.

Amendments. The 2007 amendment inserted “town” preceding “city” throughout the section; deleted “or city court” following “district court” in (b); and made related changes.

Cross References. District court generally, § 16-17-132.

Transition to state funding, § 16-87-301.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2003, No. 1185, § 57: Jan. 1, 2005, by its own terms.

Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-10-603. Procedure — County administration of justice funds.

    1. Pursuant to § 16-10-307, each county is to create a county administration of justice fund.
    2. Each county treasurer should deposit into the fund:
      1. All receipts from the collection of uniform filing fees established by § 21-6-403 which are collected by the circuit clerk, county clerk, or other official and remitted to the county treasurer;
      2. All receipts from the collection of uniform court costs established by § 16-10-305 which are collected by the county official, agency, or department designated pursuant to § 16-13-709 as primarily responsible for the collection of fines assessed in circuit court and remitted to the county treasurer;
      3. All receipts of the county's share of uniform filing fees established by § 16-17-705 which are collected by the district courts within the county and remitted to the county treasurer; and
      4. All receipts of the county's share of uniform court costs established by § 16-10-305 which are collected by the official, agency, or department of the county, town, or city designated pursuant to § 16-13-709 as primarily responsible for the collection of fines assessed in district courts within the county and remitted to the county treasurer.
  1. From the county administration of justice fund, the county treasurer is to make, on a monthly basis, the following fund transfers or disbursements:
      1. Pursuant to § 16-10-307(c), the Department of Finance and Administration will certify for each county the county's monthly share of uniform court costs and filing fees to be retained by the county.
        1. Each year the quorum court shall establish the amount of uniform filing fees and court costs to be appropriated to each of the county programs or agencies enumerated in § 16-10-307(b) from the county's share of uniform court costs and filing fees.
        2. Each program or agency shall receive, as a minimum, the amount established by § 16-10-307(b); and
    1. The excess of the monthly receipts into the fund from subdivisions (a)(2)(A) and (B) of this section, less the county's certified monthly share and the county treasurer's commission, if any, as authorized by § 21-6-302, shall be remitted to the Department of Finance and Administration, pursuant to § 16-10-307(e).

History. Acts 1997, No. 788, § 7; 1997, No. 1341, § 7; 2003, No. 1185, §§ 58, 59; 2007, No. 663, § 29.

Amendments. The 2007 amendment, in (a), rewrote (2)(B), in (2)(C), substituted “§ 16-17-705” for “§§ 16-17-705 and 16-10-303” and deleted “and city” following “district”, and rewrote (2)(D); in (b), substituted “§ 16-10-307(c)” for “§§ 16-10-307(c) and 21-6-403” in (1)(A), deleted “provided, that each program or agency shall receive, as a minimum, the amount established by § 16-10-307(b); and” from the end of (1)(B)(i), and added (1)(B)(ii); and made related changes.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Transition to state funding, § 16-87-301.

16-10-604. Procedure — City administration of justice funds.

    1. Pursuant to § 16-10-308, each town or city which operates a district court is to create a city administration of justice fund.
      1. Any town or city operating a city court that becomes a department of district court shall continue to maintain the city administration of justice fund as originally established pursuant to § 16-10-308.
      2. The city administration of justice fund of any town or city shall cease to exist on and after the effective date of an ordinance that abolishes the department of district court for the town or city pursuant to state law.
    2. There shall be deposited into the fund:
      1. All receipts from the collection of uniform filing fees established by § 16-17-705 which are collected by the district court operated by the town or city; and
      2. All receipts from the collection of uniform court costs, established by § 16-10-305 which are collected by the county, town, or city official, agency, or department designated pursuant to § 16-13-709 as primarily responsible for the collection of fines assessed in the district court operated by the town or city.
  1. From the city administration of justice fund, the following fund transfers or disbursements shall be made on a monthly basis:
      1. Pursuant to § 16-10-308(c), the Department of Finance and Administration will certify for each town or city the town's or city's monthly share of uniform court costs and filing fees to be retained by the town or city.
        1. Each year the town or city council shall establish the amount of uniform filing fees and court costs to be appropriated to each of the town or city programs or agencies enumerated in § 16-10-308(b) from the town's or city's share of uniform court costs and filing fees.
        2. Each program or agency shall receive, as a minimum, the amount established by § 16-10-308(b).
      2. Each program or agency shall be paid, by warrant or fund transfer, a monthly installment of at least one-twelfth (1/12) of the annual appropriation provided for each by the town or city council;
      1. Pursuant to § 16-10-308(b)(5), the town or city shall remit to the county treasurer for deposit into the county administration of justice fund a portion of the town's or city's share of uniform court costs and filing fees.
      2. The amount of the remittance shall be based upon the amount, if any, of uniform court costs and filing fees which had been remitted by the town or city to the county to fund county-level programs and agencies during the base year defined in § 16-10-308(b).
      3. By common agreement, towns, cities, and counties may establish a different fixed dollar amount or percentage of the town's or city's monthly share of filing fees and court costs which shall be remitted to the county treasurer;
    1. For the calendar year beginning January 1, 1998, the amount of the remittance shall be based upon the amount, if any, of uniform court costs and filing fees which had been remitted by the town or city to fund county-level programs and agencies during the base year defined in § 16-10-308(b), less eighty-five percent (85%) of the total dollar amount which was certified by the town or city as having been collected during calendar year 1994 for the purpose of funding the office and operation of the public defender and public defender investigator; and
    2. The excess of the monthly receipts into the fund, less the town's or city's certified monthly share, shall be remitted to the department, pursuant to § 16-10-308(e).
    1. If a district court is operated solely by a county rather than a town or city and all of the uniform court costs and filing fees collected by the court are remitted to the county, the town or city shall not be required to create a city administration of justice fund.
    2. The town's or city's share of uniform court costs and filing fees shall be remitted directly to the county treasurer for deposit into the county administration of justice fund.
      1. For any district court which was created after January 1, 1994, such that the base year used to calculate the town's or city's share pursuant to § 16-10-308 was not complete, the town or city share shall be deemed to be fifty percent (50%) of the uniform court costs and filing fees collected and remitted to the city administration of justice fund.
      2. District courts created pursuant to § 16-17-901 et seq. shall not be considered for purposes of this section to have been created after January 1, 1994, or to have a base year that is not complete if the district court is merely a continuation of a district or city court that was in existence on December 31, 2007, or December 31, 2011 .
      3. From the fifty-percent share described in subdivision (d)(1)(A) of this section, the town or city shall disburse or transfer fifty percent (50%) of the funds to the local programs or agencies pursuant to subdivision (b)(1) of this section and fifty percent (50%) to the county treasurer pursuant to subdivision (b)(2) of this section.
    1. The remaining fifty percent (50%) shall be remitted to the Department of Finance and Administration, pursuant to § 16-10-308(e).

History. Acts 1997, No. 788, § 9; 1997, No. 1341, § 9; 2001, No. 1809, § 2; 2003, No. 1185, §§ 60, 61; 2007, No. 663, § 30.

Amendments. The 2007 amendment inserted “town or” preceding “city” or variant throughout the section; rewrote (a); substituted “§ 16-10-308(c)” for “§§ 16-10-308(c) and 21-6-403” in (b)(1)(A); deleted “provided that each” following “fees” in (b)(1)(B)(i); subdivided (c) into (1) and (2); deleted “rather, the” following “fund” in present (c)(1) and added “The town's or” at the beginning of present (c)(2); substituted “district” for “municipal, city, or police” in (d)(1)(A); added present (d)(1)(B) and redesignated former (d)(1)(B) as present (C); inserted “described in subdivision (d)(1)(A) of this section”; and made related changes.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Transition to state funding, § 16-87-301.

Subchapter 7 — Additional Filing Fees and Court Costs

Effective Dates. Acts 1997, No. 788, § 36: became law without the Governor's signature. Noted Mar. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 1997, No. 1341, § 35: became law without the Governor's signature. Noted Apr. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

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.”

16-10-701. Additional fees for specialty court programs — Definitions.

  1. As used in this section:
    1. “Pre-adjudication” means the period of time after:
      1. The prosecuting attorney files a criminal information or an indictment is filed in circuit court;
      2. The person named in the criminal information or indictment is arraigned on the charge in circuit court; and
      3. The person enters a specialty court program without a guilty plea or the person enters a plea of guilty but before the circuit court enters a judgment and pronounces a sentence against the person; and
    2. “Specialty court program” means:
      1. A pre-adjudication program under § 5-4-901 et seq.;
      2. An approved drug court program under the Arkansas Drug Court Act, § 16-98-301 et seq.;
      3. A Swift and Certain Accountability on Probation Pilot Program under § 16-93-1701 et seq.; and
      4. Any other specialty court program that has been approved by the Supreme Court, including without limitation specialty court programs known as:
        1. A DWI court;
        2. A mental health court;
        3. A veteran's court;
        4. A juvenile drug court;
        5. A “HOPE” court;
        6. A “smarter sentencing” court; and
        7. A mental health crisis intervention center.
  2. In addition to any other court cost or court fee provided by law:
    1. A specialty court program user fee of up to two hundred fifty dollars ($250) shall be assessed on any participant in a specialty court program and remitted to the Administration of Justice Funds Section by the court clerk for deposit into the State Treasury as special revenues credited to the Specialty Court Program Fund; and
    2. A specialty court program public defender user fee not to exceed two hundred fifty dollars ($250) may be assessed by the court for a defendant who participates in a specialty court program designed for preadjudication purposes and who is appointed representation by a public defender and remitted to the Administration of Justice Funds Section by the court clerk for deposit into the State Treasury to the credit of the Public Defender User Fees Fund within the State Central Services Fund.
  3. A district court or circuit court may not assess and collect a fee under this section if the district court or circuit court is operating a specialty court program that has not been previously approved by or no longer meets the approval criteria of the Supreme Court.

History. Acts 2015, No. 895, § 17.

A.C.R.C. Notes. Pursuant to § 1-2-207, the amendment to this section by Acts 2003, No. 1185, §§ 62 and 63, were superseded by the repeal of this section by Acts 2003, No. 1474, § 1.

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.”

Publisher's Notes. Former § 16-10-701, concerning adoption of additional court costs and filing fees, was repealed by Acts 2003, No. 1474, § 1. The section was derived from Acts 1997, No. 788, § 29; 1997, No. 1341, § 28.

Subchapter 8 — Substitute Trial Court Administrators

Publisher's Notes. Acts 2015, No. 268, § 3, substituted “Administrators” for “Staff Persons” in the subchapter heading.

Effective Dates. Acts 2015, No. 268, § 16: July 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the act entitled ‘AN ACT TO MAKE AN APPROPRIATION FOR PERSONAL SERVICES AND OPERATING EXPENSES FOR THE ADMINISTRATIVE OFFICE OF THE COURTS FOR THE OFFICIAL COURT REPORTERS AND TRIAL COURT ADMINISTRATORS OF THE CIRCUIT COURTS FOR THE FISCAL YEAR ENDING JUNE 30, 2016; AND FOR OTHER PURPOSES.’ requires the passage of this act; that the effectiveness of this act on July 1, 2015, is essential to the operation of the Administrative Office of the Courts, and that in the event of an extension of the legislative session, the delay in the effective date of this act beyond July 1, 2015, could work irreparable harm upon the proper administration and provision of essential governmental programs. 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 on and after July 1, 2015.”

16-10-801. Temporary employment authorized.

As authorized by § 16-13-3302, in the absence or unavailability of the trial court administrator the circuit judge may temporarily employ the services of a substitute trial court administrator if the temporary employment is essential to prevent a disruption of the business of the court.

History. Acts 1999, No. 393, § 1; 2015, No. 268, § 3.

Amendments. The 2015 amendment rewrote the section.

16-10-802. Information provided to Administrative Office of the Courts.

  1. When a circuit judge temporarily employs a substitute trial court administrator, the circuit judge may certify to the Administrative Office of the Courts upon forms prepared by the office that he or she has temporarily employed a substitute trial court administrator and that the temporary employment was essential to prevent a disruption of the business of his or her court.
  2. The circuit judge shall further furnish to the office the name, address, and Social Security number of the substitute trial court administrator and the number of days the substitute trial court administrator was or will be temporarily employed, plus any other information concerning the employment requested by the office.

History. Acts 1999, No. 393, § 2; 2015, No. 268, § 3.

Amendments. The 2015 amendment substituted “Administrative Office of the Courts” for “Auditor of State” and “administrator” for “staff person” throughout; in (a), substituted “When” for “Whenever,” inserted “circuit” before “judge may,” deleted “the services of” following “employed,” and deleted “necessary and” preceding “essential”; and inserted “circuit” preceding “judge” in (b).

16-10-803. Payment.

  1. The Administrative Office of the Courts may pay from funds specifically appropriated for this purpose a substitute trial court administrator for the services furnished to the circuit judge under this subchapter.
  2. The substitute trial court administrator shall be paid at the rate of one hundred twenty-five dollars ($125) per day.

History. Acts 1999, No. 393, § 3; 2001, No. 509, § 1; 2005, No. 461, § 1; 2015, No. 268, § 3.

Amendments. The 2005 amendment substituted “the rate of one hundred twenty-five dollars ($125) per day” for “a daily rate, based upon the daily pay rate of the trial court staff person for whom he or she is substituting” in (b).

The 2015 amendment substituted “administrator” for “staff person” throughout; in (a), substituted “Administrative Office of the Courts may” for “Auditor of State is authorized to” and added “under this subchapter” to the end; and substituted “shall” for “will” in (b).

Cross References. Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-10-804. Extended employment periods.

  1. If a substitute trial court administrator is employed for a period that extends beyond the normal payroll period for the position, the Administrative Office of the Courts shall make an interim disbursement of the salary that has accrued during that period.
  2. In any one (1) fiscal year, however, the office shall not pay for the services of a substitute trial court administrator for any one (1) circuit judge in excess of thirty (30) working days unless approved and ordered by the Chief Justice of the Supreme Court.

History. Acts 1999, No. 393, § 4; 2015, No. 268, § 3.

Amendments. The 2015 amendment substituted “Administrative Office of the Courts” for “Auditor of State” and “administrator” for “staff person” throughout; in (a), substituted “If a” for “In the event the” and “that” for “which”; and, in (b), substituted “shall” for “will” and “thirty (30)” for “eighty (80),” and deleted “Arkansas” preceding “Supreme Court.”

16-10-805. Employment of county staff.

This chapter does not preclude or prohibit any circuit judge from obtaining payment for the services of a substitute trial court administrator from the county or counties composing the circuit judge's judicial district rather than from the Administrative Office of the Courts.

History. Acts 1999, No. 393, § 5; 2015, No. 268, § 3.

Amendments. The 2015 amendment substituted “This chapter does not” for “Nothing contained in this subchapter shall be construed to,” “administrator” for “staff person,” “composing” for “comprising,” and “Administrative Office of the Courts” for “Auditor of State” and inserted “circuit” preceding “judge's.”

Subchapter 9 — Compensation for Retired Judges Appointed to Temporary Service

A.C.R.C. Notes. The references throughout this subchapter to Amendment 78 are to Ark. Const., Amend. 78, as proposed by 1999 Senate Joint Resolution 9. This subchapter became effective when Ark. Const., Amend. 78 was adopted at the November 2000 general election and approved by a vote of 427,407 for and 355,943 against.

16-10-901. “Retired judge” defined.

For purposes of this subchapter, a retired judge is a former circuit judge, chancery judge, circuit-chancery judge, Court of Appeals judge, or Supreme Court justice receiving benefits under the Arkansas Judicial Retirement System.

History. Acts 1999, No. 390, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

As to the effective date of this subchapter and Ark. Const., Amend. 78, see A.C.R.C. Notes at the beginning of this subchapter.

“[Contingent Effective Date]” language was removed after passage of Arkansas Constitution, Amendment 78.

16-10-902. Amount of compensation.

  1. A retired judge appointed by the Chief Justice of the Supreme Court as a special judge under Arkansas Constitution, Amendment 80, and the rules prescribed by the Supreme Court shall receive compensation, in addition to his or her retirement benefits, at one-half (½) the rate as fixed by law for a regularly elected circuit judge.
  2. The compensation shall be paid from the appropriation provided to the Auditor of State for special and recalled judges for the circuit courts.

History. Acts 1999, No. 390, § 2; 2001, No. 1071, § 1; 2003, No. 1185, § 64; 2011, No. 274, § 3.

A.C.R.C. Notes. As to the effective date of this subchapter and Ark. Const., Amend. 78, see A.C.R.C. Notes at the beginning of this subchapter.

“[Contingent Effective Date]” language was removed after passage of Arkansas Constitution, Amendment 78.

Acts 2011, No. 274, § 1, provided:

“Legislative intent.

“(a) Arkansas Constitution, Amendment 80, § 13(C), provides that the Chief Justice of the Arkansas Supreme Court may appoint a special judge to serve in circuit court or district court whenever a judge is disqualified or temporarily unable to serve or when there is other need for a temporary appointment, under rules prescribed by the Supreme Court.

“(b) Special judges may include retired justices or judges, active circuit judges or district judges, or licensed attorneys.

“(c) The current laws that govern the payment of special judges have not been revised since the adoption of Amendment 80 and are in conflict and need of clarification.”

Amendments. The 2011 amendment, in (a), substituted “by the Chief Justice of the Supreme Court as a special judge” for “to temporary service” and inserted “and the rules prescribed by the Supreme Court”; and added (b).

16-10-903. Retirement benefits.

The judge or justice shall not be entitled to a change in membership status or to any increase, decrease, or other modification to his or her retirement benefits as a result of his or her service after retirement.

History. Acts 1999, No. 390, § 3.

A.C.R.C. Notes. As to the effective date of this subchapter and Ark. Const., Amend. 78, see A.C.R.C. Notes at the beginning of this subchapter.

“[Contingent Effective Date]” language was removed after passage of Arkansas Constitution, Amendment 78.

16-10-904. Mileage and expenses.

In addition to the per diem compensation provided by this subchapter, a special judge serving under Arkansas Constitution, Amendment 80, shall receive expenses and mileage reimbursement from the appropriation provided to the Auditor of State for special and recalled judges for the circuit courts at the rate as prescribed in § 16-10-119.

History. Acts 1999, No. 390, § 4; 2001, No. 1071, § 2; 2011, No. 274, § 4.

A.C.R.C. Notes. As to the effective date of this subchapter and Ark. Const., Amend. 78, see A.C.R.C. Notes at the beginning of this subchapter.

“[Contingent Effective Date]” language was removed after passage of Arkansas Constitution, Amendment 78.

Acts 2011, No. 274, § 1, provided:

“Legislative intent.

“(a) Arkansas Constitution, Amendment 80, § 13(C), provides that the Chief Justice of the Arkansas Supreme Court may appoint a special judge to serve in circuit court or district court whenever a judge is disqualified or temporarily unable to serve or when there is other need for a temporary appointment, under rules prescribed by the Supreme Court.

“(b) Special judges may include retired justices or judges, active circuit judges or district judges, or licensed attorneys.

“(c) The current laws that govern the payment of special judges have not been revised since the adoption of Amendment 80 and are in conflict and need of clarification.”

Amendments. The 2011 amendment substituted “special” for “temporary” and “Amendment 80” for “Amendment 78”; and added “from the appropriation provided to the Auditor of State for special and recalled judges for the circuit courts.”

16-10-905. Amount of per diem compensation.

  1. Per diem compensation prescribed in § 16-10-902 shall be for each day or portion of a day the judge serves on the bench.
  2. For each day or portion of a day that a special judge appointed under Arkansas Constitution, Amendment 80, performs his or her judicial duties other than on the bench, the judge shall receive compensation as prescribed by rules adopted by the Supreme Court.

History. Acts 1999, No. 390, § 5; 2011, No. 274, § 5.

A.C.R.C. Notes. As to the effective date of this subchapter and Ark. Const., Amend. 78, see A.C.R.C. Notes at the beginning of this subchapter.

“[Contingent Effective Date]” language was removed after passage of Arkansas Constitution, Amendment 78.

Acts 2011, No. 274, § 1, provided:

“Legislative intent.

“(a) Arkansas Constitution, Amendment 80, § 13(C), provides that the Chief Justice of the Arkansas Supreme Court may appoint a special judge to serve in circuit court or district court whenever a judge is disqualified or temporarily unable to serve or when there is other need for a temporary appointment, under rules prescribed by the Supreme Court.

“(b) Special judges may include retired justices or judges, active circuit judges or district judges, or licensed attorneys.

“(c) The current laws that govern the payment of special judges have not been revised since the adoption of Amendment 80 and are in conflict and need of clarification.”

Amendments. The 2011 amendment subdivided the previously undesignated section into (a) and (b); and, in (b), substituted “special” for “temporary” and “Amendment 80” for “Amendment 78.”

Subchapter 10 — Arkansas Court Security Act

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.”

16-10-1001. Title.

This subchapter shall be known as the “Arkansas Court Security Act”.

History. Acts 2007, No. 576, § 1.

16-10-1002. Purpose and findings.

  1. Recent incidents involving serious court security failures resulting in death or injury to judges and others in court facilities across the United States indicate that court security is an issue requiring an immediate response from this state.
  2. It is a valid expectation that every person who attends or is present in a court proceeding in a district, circuit, or appellate court in this state is entitled to a reasonably safe and secure environment.
  3. It is a goal of this state to provide citizens, litigants, jurors, attorneys, court employees, and judges with a safe and secure venue in which to work and conduct business.
  4. It is the purpose of this subchapter to establish a general program for security and emergency preparedness for the judicial branch of government.

History. Acts 2007, No. 576, § 1.

16-10-1003. Administrative Office of the Courts — Duties — Director of Security and Emergency Preparedness.

  1. The Administrative Office of the Courts shall:
    1. Assist the Supreme Court with the creation and management of a state security and emergency preparedness plan for the judicial branch of government; and
    2. Provide assistance and support to city and county governments of this state for the adoption and implementation of local security and emergency preparedness plans for circuit and district courts.
    1. There is created within the Administrative Office of the Courts a Director of Security and Emergency Preparedness for the judicial branch of government. The Administrative Office of the Courts shall provide space and administrative assistance to support the work of the Director of Security and Emergency Preparedness.
    2. The Director of Security and Emergency Preparedness shall report to the Chief Justice of the Supreme Court and the Director of the Administrative Office of the Courts.
    3. The Director of Security and Emergency Preparedness shall:
      1. Assist with the development and adoption of a state security and emergency preparedness plan for the judicial branch of government;
      2. Assist agencies of this state and local governments of this state with the development and adoption of local security and emergency preparedness plans for circuit and district courts;
      3. Assist in the development and provision of training and education on court security and emergency preparedness to judges, court employees, and court security officers;
      4. Conduct periodic assessments of state and local security and emergency preparedness plans for courts and note deficiencies and areas of improvement; and
      5. Serve as the point of contact on state court security and emergency preparedness issues for the judicial branch of government and act as the representative of the Chief Justice of the Supreme Court to executive and legislative branch officials involved with the issues of court security and emergency preparedness.

History. Acts 2007, No. 576, § 1.

16-10-1004. Court security officers — Definition.

    1. There is established a training and certification program for court security officers.
    2. As used in this section, “court security officer” means an individual who is assigned the duty of providing security or security-related services at the request of an appellate court, circuit court, or district court in this state.
      1. A court security officer may be employed directly by an appellate court, circuit court, district court, or a law enforcement agency of this state or a city or county in this state.
      2. A court security officer may provide services to a court on either a full-time or part-time basis.
  1. The duties of a court security officer may include:
    1. The attendance in court when court is in session;
    2. The supervision and maintenance of order in a courtroom or courthouse;
    3. Providing security for individuals involved in court proceedings; and
    4. Other incidental and related duties at the direction of a court.
  2. In order to be eligible to provide services in an appellate court, circuit court, or district court in this state, a court security officer shall:
      1. Be certified as a law enforcement officer by the Arkansas Commission on Law Enforcement Standards and Training under the laws and rules of this state.
      2. A court security officer shall complete the law enforcement certification requirement within one (1) year of beginning his or her term of service as a court security officer.
      3. A court security officer shall maintain the law enforcement certification during the term of his or her service as a court security officer; and
      1. Complete an additional training program for court security officers approved by the commission.
      2. A court security officer shall complete the additional training program for court security officers within one (1) year of beginning his or her term of service as a court security officer.
  3. A court or law enforcement agency employing a court security officer shall:
    1. Ensure that a court security officer meets or attains the certification required under subdivisions (c)(1)(B) and (c)(2)(B) of this section; and
    2. Require submission of and maintain records for the documentation of the court security officer's certification as a law enforcement officer and of the court security officer's completion of the additional training program for court security officers.
    1. Subject to the certification requirements of the commission, the officers of the Supreme Court police may offer and provide training for court security officers as required by this section.
    2. In addition to the general powers of a specialized law enforcement officer, Supreme Court police officers may, in the course of their official duties, provide security for members of the Supreme Court or the Court of Appeals when either court shall convene for the purpose of considering oral arguments or conferencing in any location within the State of Arkansas, including the authority to act as a peace officer to arrest, with or without warrant, any person 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 in which the Supreme Court or Court of Appeals is convened, and to deliver the person before any court of competent jurisdiction to be dealt with according to law.

History. Acts 2007, No. 576, § 1; 2009, No. 236, § 1; 2011, No. 1132, § 4; 2019, No. 315, § 1293.

A.C.R.C. Notes. The reference in subdivision (c)(2)(A) to the “Supreme Court Security and Emergency Preparedness Advisory Committee” refers to Acts 2007, No. 576, § 3, which 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.”

Acts 2009, No. 236, § 2, provided: “A person who is a court security officer on the effective date of this act shall complete the additional training program for court security officers in Arkansas Code § 16-10-1004(c) by December 31, 2009, or within one (1) year of the beginning of his or her term of service as a court security officer, whichever is later.”

Amendments. The 2009 amendment rewrote (c)(2) and (d).

The 2011 amendment deleted “recommended by the Supreme Court Security and Emergency Preparedness Advisory Committee and” following “court security officers” in (c)(2)(A).

The 2019 amendment substituted “rules” for “regulations” in (c)(1)(A).

16-10-1005. Arkansas Commission on Law Enforcement Standards and Training — Duties.

The Arkansas Commission on Law Enforcement Standards and Training shall:

  1. Establish the standards and requirements for the training and certification program for court security officers;
  2. Work with the Administrative Office of the Courts to develop curriculum specific to the needs and requirements of a court security officer;
  3. Maintain an official roster of individuals who have successfully completed the training of a court security officer;
  4. Establish minimum curriculum requirements and approve courses and programs offered and operated by or for this state or its political subdivisions for the specific purpose of offering training to a court security officer; and
  5. Consult and cooperate with counties, municipalities, agencies of this state, other governmental agencies, universities, colleges, junior colleges, community colleges, and other institutions or organizations concerning the development of court security officer programs or courses of instruction.

History. Acts 2007, No. 576, § 1.

16-10-1006. Court security grant program.

  1. The Administrative Office of the Courts shall administer a court security grant program for the purpose of providing financial assistance from funds specifically appropriated for that purpose to city and county governments to assist in the implementation of local security and emergency preparedness plans for circuit courts and district courts.
    1. Guidelines for the court security grant program shall be developed by the Administrative Office of the Courts by December 31, 2007, and shall be approved by the Legislative Council prior to the disbursement of any grant funds.
    2. Beginning July 31, 2008, and on July 31 of every year, the Administrative Office of the Courts shall provide an annual report to the Legislative Council that shall include the number of grant requests received from cities and counties and the number and amount of grants approved.

History. Acts 2007, No. 576, § 1.

Subchapter 11 — Court Interpreters

16-10-1101. Purpose.

  1. The State of Arkansas requires that court proceedings be conducted in the English language under § 16-10-107.
  2. Recognizing that a person with limited English proficiency cannot fully participate in the legal process and exercise the rights afforded to him or her, a court shall appoint a qualified interpreter to assist a person with limited English proficiency in a court proceeding.

History. Acts 2013, No. 237, § 1.

16-10-1102. Definitions.

As used in this subchapter:

  1. “Interpret” means to convey spoken English in a manner understood by a person who has limited English proficiency by using American Sign Language and transliteration, Communication Access Realtime Translation (CART) services or similar procedures, or a language in which the person is fluent, and to convey the communication made by that person into spoken English; and
  2. “Limited English proficiency” means either:
    1. The inability of a person to adequately understand or communicate effectively in English in a court proceeding because the person has not developed fluency in English; or
    2. The inability of a person to adequately hear, understand, or communicate effectively in English in a court proceeding due to a speech impairment, hearing loss, deafness, deaf-blindness, or other disability.

History. Acts 2013, No. 237, § 1.

16-10-1103. Court interpreter for persons with limited English proficiency.

  1. A person with limited English proficiency who is a party to or a witness in a court proceeding is entitled to a qualified interpreter to interpret for the person throughout the court proceeding.
    1. The Supreme Court shall administer an interpreter program to appoint and use interpreters in court proceedings and to ensure interpreter certification, continued proficiency, and discipline.
    2. Staff and administrative support required by the Supreme Court relating to the program shall be provided by the Administrative Office of the Courts, and the program may include:
      1. Establishing and administering a comprehensive testing and certification program for foreign language interpreters;
      2. Establishing and adopting standards concerning written and verbal proficiency in English and the foreign language to be interpreted;
      3. Establishing and adopting recognized standards for interpreters for the deaf and hearing impaired, including without limitation certification by the Registry of Interpreters for the Deaf, Inc., or similar registries;
      4. Conducting periodic examinations to ensure the availability of certified interpreters;
      5. Charging reasonable fees as necessary for testing and certification;
      6. Ensuring reciprocity of certification for interpreters from other jurisdictions provided that the criteria for certification in the other jurisdiction is comparable to that established by the office;
      7. Establishing a schedule of reasonable fees for services rendered by interpreters in court proceedings;
      8. Establishing a process to review and respond to allegations of misconduct by interpreters; and
      9. Addressing other matters relating to interpreters in the courts.
    1. The General Assembly may appropriate to the office funds as necessary to establish a program to facilitate the use of interpreters and otherwise satisfy the requirements of this subchapter.
    2. Implementation of this subchapter is contingent upon the availability of appropriated funds to carry out its purposes.
    1. With the support of the office, all court personnel shall make a reasonable effort to ensure public awareness of interpreter services.
    2. Clerks of courts shall clearly publicize the availability of interpreter services.

History. Acts 2013, No. 237, § 1; 2015, No. 1152, § 2.

Amendments. The 2015 amendment substituted “other” for “foreign” preceding “jurisdiction is comparable” in (b)(2)(F).

16-10-1104. Appointment of interpreter.

  1. The Administrative Office of the Courts shall compile, maintain, and disseminate a certified registry of qualified interpreters for the courts.
  2. When an interpreter is requested or when the court determines that a party to or a witness in a court proceeding has limited English proficiency, a qualified interpreter shall be appointed under procedures adopted by the Supreme Court.
  3. An attorney, a clerk of court, employee or officer of a law enforcement agency, or a party to or a witness in a court proceeding shall notify the court as soon as the need for an interpreter is identified.
  4. If a qualified interpreter is not available through the office's registry, the court may appoint an interpreter qualified under procedures adopted by the court, and the interpreter shall take the oath under § 16-10-1105.

History. Acts 2013, No. 237, § 1.

16-10-1105. Interpreter oath.

Before commencing his or her duties, an interpreter appointed under this subchapter shall take an oath in substantially the following form: “Do you [swear] [affirm] that you will make a true and impartial interpretation using your best skills and judgment in accordance with the standards and ethics of the interpreter profession and that you will abide by the Arkansas Code of Professional Responsibility for Interpreters in the Judiciary, [so help you God][under the penalty of perjury]?”

History. Acts 2013, No. 237, § 1.

16-10-1106. Replacement of interpreter.

  1. A court that appoints an interpreter shall dismiss the interpreter and obtain the services of a qualified interpreter under procedures adopted by the Supreme Court:
    1. If the interpreter fails to follow the standards prescribed by law or by the Arkansas Code of Professional Responsibility for Interpreters in the Judiciary;
    2. If the interpreter is unable to effectively communicate; or
    3. For other reasons prescribed by the Supreme Court.
  2. A court that appoints an interpreter shall notify the Administrative Office of the Courts in writing if the court dismisses an interpreter, setting forth the reason for the dismissal.

History. Acts 2013, No. 237, § 1.

16-10-1107. Confidential communications in presence of interpreter.

An interpreter appointed under this subchapter shall not be compelled to testify in a court proceeding as to any statements made by the person with limited English proficiency and interpreted by the interpreter when the person with limited English proficiency is engaged in a privileged communication recognized by the Arkansas Rules of Evidence.

History. Acts 2013, No. 237, § 1.

16-10-1108. Compensation of interpreter.

  1. Except as provided in subsection (b) of this section, the payment of the cost of providing an interpreter appointed under this subchapter shall be the responsibility of the local government responsible for funding the court that has jurisdiction over the court proceeding.
  2. If an interpreter from the registry maintained by the Administrative Office of the Courts is appointed by a court, the court may certify upon prescribed forms upon the conclusion of the interpreter's services those services to the office for payment from funds specifically appropriated for this purpose at the rate set by the office.
  3. A person with limited English proficiency who is a party to or witness in a court proceeding shall not be denied the services of an interpreter because he or she is unable to pay for the services.
  4. A defendant in a criminal proceeding shall not be required to pay a fee for the services of a court-appointed interpreter.
  5. If costs are assessed or collected by the court under the Arkansas Rules of Civil Procedure, the disposition of the costs shall be at the discretion of the court, and the court may order reimbursement to the local government responsible for funding the court or the office for its responsibilities under this subchapter.

History. Acts 2013, No. 237, § 1.

Chapter 11 Supreme Court

A.C.R.C. Notes. Acts 2015, No. 221, § 8, provided: “ACCESS TO JUSTICE.

The General Assembly finds that the Access to Justice Foundation serves a public purpose, therefore financial accounting, general bookkeeping, management and administrative services may be provided by employees of the Arkansas Supreme Court and the Supreme Court Bar of Arkansas in support of the Arkansas Access to Justice Foundation, Inc.

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

Acts 2016, No. 232, § 8, provided: “ACCESS TO JUSTICE. The General Assembly finds that the Access to Justice Foundation serves a public purpose, therefore financial accounting, general bookkeeping, management and administrative services may be provided by employees of the Arkansas Supreme Court and the Supreme Court Bar of Arkansas in support of the Arkansas Access to Justice Foundation, Inc.

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

Research References

Ark. L. Rev.

Smith, The Influence of the Arkansas Supreme Court's Opinions on Policy Made by the General Assembly: A Case Study, 18 U. Ark. Little Rock L.J. 441.

Subchapter 1 — General Provisions

A.C.R.C. Notes. Acts 1991, No. 7, § 6, provided:

“The General Assembly recognizes that each judge of the Arkansas Supreme Court incurs considerable expense in carrying out his or her responsibilities to the people of the State of Arkansas, including expenses for housing; the purchase and maintenance of an automobile; the acquisition, maintenance and equipping of a home-office where the judge can work nights, weekends and other times when it is inappropriate or impractical to work in his or her regular office; for attending bar, civic and social meetings and in otherwise carrying out their responsibilities as judges of the Arkansas Supreme Court; and that said judges should be entitled to a monthly expense allowance to cover such expenses.

“The funds appropriated by Item (10) of Section 1 herein may be used by each judge of the Arkansas Supreme Court to cover his expenses. The monthly allowance for fiscal year 1991-92 shall not exceed $550 per month and for fiscal year 1992-93 shall not exceed $550 per month.

“The amount prescribed herein shall be paid monthly upon vouchers submitted by such judges, with each such voucher to state only that it is for expenses incurred by such judge in carrying out his or her responsibilities to the people of the state as described herein.

“Upon receipt of each such voucher, the Auditor of State shall issue a warrant payable to the judge claiming such expense allowance and the State Treasurer is hereby authorized to pay the same from the funds appropriated for such purpose. The balance of the appropriation for housing and transportation which remains at the close of business of the fiscal year ending June 30, 1992, shall be carried forward into the fiscal year ending June 30, 1993, there to be used for the same purpose.”

Preambles. Acts 1977, No. 545 contained a preamble which read:

“Whereas, the Model Criminal Jury Instructions Committee has devoted considerable time and energy to the development of proposed Model Criminal Jury Instructions, to be followed in the several circuit courts of this State in criminal cases; and

“Whereas, upon completion of the Committee's work, such Model Criminal Jury Instructions will be submitted to the Arkansas Supreme Court for its consideration; and

“Whereas, it is essential that the Model Criminal Jury Instructions as considered and approved by the Arkansas Supreme Court be published in an appropriate manner, to be made available to the trial courts, prosecuting attorneys, members of the Bar, and to the public, and that provision also be made for the publication of supplements to said publication that may be developed and approved by order of the Supreme Court from time to time;

“Now, therefore….”

Effective Dates. Acts 1868 (Adj. Sess.), No. 1, § 5: effective on passage.

Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1874 (Spec. Sess.), No. 9, § 2: effective on passage.

Acts 1895, No. 145, § 9: effective on passage.

Acts 1925, No. 205, § 5: approved Mar. 21, 1925. Emergency clause provided: “That the Supreme Court of this state being more than a year behind with its docket hereby causing unreasonable delay in the dispensation of justice, constitutes an emergency making it necessary for the immediate preservation of the public peace, health and safety, that this act take effect and be in force from and after its passage.”

Acts 1961, No. 132, § 3: Feb. 22, 1961. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that the funds available to the Supreme Court for the maintenance and improvement of the Supreme Court Library are grossly inadequate, that there is urgent need for additional funds, and that enactment of this bill will provide the additional necessary funds. Therefore, an emergency is declared to exist, and this act, being necessary for the preservation of the public peace, health, and safety, shall take effect and be in force from the date of its approval.”

Acts 1963, No. 6, § 3: approved Feb. 1, 1963. Emergency clause provided: “It has been determined by the General Assembly of the State of Arkansas that the present restrictions in the law make it difficult to employ competent personnel and causes great hardships on the citizens of this state and only the provisions of this act will correct the situation. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety, the same shall take effect and be in full force from and after its passage.”

Acts 1985, No. 665, § 5: 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 (2) 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 the 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 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, 1985.”

Acts 2013, No. 1026, § 11: July 1, 2013. 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, 2013 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, 2013 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, 2013.”

Acts 2019, No. 780, § 10: 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”.

Research References

Am. Jur. 20 Am. Jur. 2d, Courts, § 16 et seq.

Ark. L. Rev.

A New Judicial System for Arkansas, 24 Ark. L. Rev. 221.

C.J.S. 21 C.J.S., Courts, §§ 8, 319, 320.

16-11-101. Terms of court — Recess — Adjournment.

The Supreme Court of Arkansas shall begin its annual term on the second Monday of September in each year and may recess and adjourn from time to time as the court orders.

History. Acts 1874 (Spec. Sess.), No. 9, § 1, p. 12; C. & M. Dig., § 2121; Pope's Dig., § 2723; Acts 1961, No. 134, § 1; A.S.A. 1947, § 22-205; Acts 1995, No. 549, § 3.

16-11-102. Adjournment of court in absence of quorum.

If a quorum of the court is not present at the time and place fixed by law for holding court, the court shall stand adjourned until the first Monday next following. If a quorum is not present on that day, the court shall stand adjourned by operation of law, from day to day, until a quorum appears, and then proceed to business and continue in session until all business ready for trial is adjudicated.

History. Acts 1868 (Adj. Sess.), No. 1, § 3, p. 1; C. & M. Dig., § 2123; Pope's Dig., § 2729; A.S.A. 1947, § 22-209.

16-11-103. Divisions of court.

  1. The court may sit in two (2) divisions to be designated Division I and Division II.
  2. Each division shall be composed of three (3) justices.
    1. The Chief Justice shall alternate in presiding over these divisions. In addition, he or she shall have a vote and the same power as an associate justice.
    2. At each sitting, the division not being presided over by the Chief Justice shall be presided over by the justice in that division having the highest seniority by reason of service as a justice.
  3. In case of a tie in either division, the cause shall be transferred to the court en banc for decision.

History. Acts 1925, No. 205, §§ 2, 3; Pope's Dig., §§ 2725, 2726; A.S.A. 1947, §§ 22-206, 22-207.

Case Notes

Remedies.

Where defendant sought to establish its right to receive water service from city unencumbered by the previous tenants' unpaid bill, writ of mandamus was not the proper remedy as mandamus may not be used to establish a legal right, and defendant should have sought relief under this section by filing a petition for declaratory relief. Buttolph Trust v. Jarnagan, 302 Ark. 393, 789 S.W.2d 466 (1990).

Cited: Citizens Bank v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984).

16-11-104. Cases heard en banc.

  1. In all cases where the construction of the Arkansas Constitution is involved, or in a capital criminal case, the cause shall be heard by the court en banc.
  2. In each case heard by the court en banc, the concurrence of four (4) judges shall be necessary to a decision.

History. Acts 1925, No. 205, § 2; Pope's Dig., § 2725; A.S.A. 1947, § 22-206.

Case Notes

Affirmance.

Judgment of the lower court is affirmed where majority of judges agree to it though they differ as to reason therefor. Pollock v. C. Hennicke Co., 64 Ark. 180, 46 S.W. 185 (1897) (decision under prior law).

When the judges of the court are equally divided on a case, the judgment of the lower court will not be disturbed. Barnard & Leas Mfg. Co. v. Smith, 77 Ark. 590, 92 S.W. 858 (1906) (decision under prior law).

Cited: Citizens Bank v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984); Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 828 S.W.2d 828 (1992).

16-11-105. Rules and laws applicable to court.

  1. All rules of the Supreme Court and all laws respecting the Supreme Court shall apply to the Supreme Court sitting in divisions and en banc.
  2. The Supreme Court may make such further rules as may be necessary for the transaction and dispatch of business.
  3. The Supreme Court may, by general rules, provide what causes shall have a preference on the docket.

History. Civil Code, § 17; Acts 1871, No. 48, § 1 [17], p. 219; 1925, No. 205, § 4; C. & M. Dig., § 2126; Pope's Dig., §§ 2727, 2732; A.S.A. 1947, §§ 22-208, 22-213; Acts 2019, No. 315, § 1294.

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

Case Notes

Preference on Docket.

A cause will not be advanced on the ground of public interest unless it appears that some department of the government will be embarrassed by the delay. Brodie v. Fitzgerald, 55 Ark. 460, 18 S.W. 632 (1892).

16-11-106. Issuance of writs and process.

The Supreme Court shall have power to direct the forms of writs and process which are not contrary to or inconsistent with the Constitution and laws of this state.

History. Rev. Stat., ch. 43, § 2; C. & M. Dig., § 2126; Pope's Dig., § 2732; A.S.A. 1947, § 22-212.

Case Notes

Attorney General.

On appeal of the order granting a permanent guardianship of appellant's son to his grandmother, the Supreme Court of Arkansas did not address the merits of appellant's constitutional challenge to the guardianship statutes, §§ 28-65-101 to 28-65-707, because the attorney general was not notified of the challenge as required by subsection (b) of this section and there had not been a complete adversarial development of the constitutional issues. Mahavier v. Mahavier (In re A.M.), 2012 Ark. 278 (2012).

Writs.

A writ of prohibition is issued to prohibit a court from acting, while a writ of certiorari is issued to direct a judge to perform a duty. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

A writ of certiorari lies where there is a lack of jurisdiction or there has been an act in excess of jurisdiction that is apparent on the face of the record; it is not to be used to look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court's discretionary authority. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

A writ of prohibition is never issued to prevent a trial court from erroneously exercising jurisdiction; it is issued only where the trial court is wholly without jurisdiction. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

A writ of prohibition is an extraordinary writ and is granted only when the lower court is wholly without jurisdiction, when there are no disputed facts, when there is no adequate remedy otherwise, and when the writ is clearly warranted. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

16-11-107. [Repealed.]

Publisher's Notes. This section, concerning the senior justice presiding in absence of Chief Justice, was repealed by Acts 2003, No. 1185, § 65. The section was derived from Acts 1868 (Adj. Sess.), No. 1, § 4, p. 1; C. & M. Dig., § 2124; Pope's Dig., § 2730; A.S.A. 1947, § 22-210.

16-11-108. Disqualification of justice.

No justice of the Supreme Court shall sit on the determination of any case in which he or she is interested in the outcome, is related to any party within the third degree of consanguinity or affinity, has been counsel in the case or presided over it in any inferior court, or is otherwise disqualified under the Arkansas Code of Judicial Conduct, unless the parties waive the disqualification, as provided in the code.

History. Rev. Stat., ch. 43, § 23; C. & M. Dig., § 2125; Pope's Dig., § 2731; A.S.A. 1947, § 22-211; Acts 2003, No. 1185, § 66.

Cross References. Motions requesting disqualification, S. Ct. & Ct. App. Rule 6-4.

Case Notes

Interest in Suit.

Justice of Supreme Court is disqualified when his salary is involved. Ferrell v. Keel, 103 Ark. 96, 146 S.W. 494 (1912).

Recusal.

Appellee's motion for vacatur, treated as a Letter of Suggestion of Disqualification under former S. Ct. Rule 27 (now S. Ct. and Ct. App. Rule 6-4), alleging that the Chief Justice had a social relationship with an attorney involved in this case and that because of this relationship, all members of the Arkansas Supreme Court should be disqualified, was denied. First Pyramid Life Ins. Co. of Am. v. Stoltz, 312 Ark. 516, 849 S.W.2d 525 (1993).

16-11-109. Law clerks.

No person shall be employed as a law clerk by the Arkansas Supreme Court unless that person is a licensed attorney or a graduate of a law school approved by the State Board of Law Examiners.

History. Acts 1961, No. 244, § 1; 1963, No. 6, § 1; A.S.A. 1947, § 22-241.

16-11-110. Library — Librarian.

    1. Except as provided in this section, the Supreme Court Library shall be under the exclusive control and supervision of the Justices of the Supreme Court, who are hereby authorized to make such rules regarding its use and operation as they may deem proper.
      1. There shall be a Director of the Supreme Court Library who shall be nominated by the Director of the Administrative Office of the Courts, subject to the approval of the Supreme Court.
      2. Subsequent to the appointment, the Director of the Supreme Court Library shall hold office at the pleasure of the Supreme Court.
  1. All books obtained and placed in the library shall be the absolute property of the state, subject to the control and management of the Supreme Court, except:
    1. Items deposited in the library by the United States Superintendent of Documents under the Federal Depository Library Program; and
    2. The reports of the Supreme Court directed to be placed in the library, which may be exchanged by the Director of the Supreme Court Library for the reports of the other states or of the United States courts or for other law books, under the direction of the Supreme Court.
    1. The Director of the Supreme Court Library shall have the authority to accept any donation of books, money, or property to increase the library.
    2. Any donation of money shall be deposited in the Supreme Court Library Fund.
  2. The Secretary of State is directed, upon demand, to deliver to the Director of the Supreme Court Library, whenever there are two (2) or more copies of any statute book, book of reports of any court of the United States, or any other law book in his or her office, one (1) copy of every such statute book or book of reports or law book.
    1. Every person who is enrolled as an attorney in the Supreme Court shall pay a fee determined by rule of the Supreme Court for enrolling and recording the license and the certified transcript thereof furnished to the attorney.
    2. The clerk shall deposit this fee in the Supreme Court Library Fund to be used by the Supreme Court for the maintenance and improvement of the library.
    1. The Director of the Supreme Court Library is authorized and empowered at any time to dispose of any books, magazines, papers, or files which may be in the custody or care of the library and which may be found by the Supreme Court to be no longer useful.
      1. The disposition may be by any method permitted by law, as the Director of the Supreme Court Library may determine.
      2. If the disposition is by sale, then the proceeds shall be placed in the Supreme Court Library Fund.

History. Acts 1851, §§ 3, 4, 6, 7, 9, 10, p. 89; 1895, No. 145, § 7, p. 213; C. & M. Dig., §§ 2141, 4572, 9776a, 9776d-9776f, 9776h, 9776i; Pope's Dig., §§ 2747, 5656, 13310, 13313-13315, 13317, 13318; Acts 1961, No. 132, § 1; 1961, No. 133, § 1; A.S.A. 1947, §§ 12-1709, 22-232, 22-234 — 22-238; Acts 1999, No. 960, § 1; 2019, No. 315, § 1295.

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

16-11-111. [Repealed.]

Publisher's Notes. This section, concerning disposal of books, papers, magazines, and files, was repealed by Acts 1999, No. 960, § 2. The section was derived from Acts 1957, No. 67, §§ 1, 2; A.S.A. 1947, §§ 22-239, 22-240.

16-11-112. Authorization to contract for publication of Arkansas Model Jury Instructions.

  1. The Arkansas Supreme Court is authorized to provide for the publication by private publishing firms of the Arkansas Model Criminal Jury Instructions and the Arkansas Model Civil Jury Instructions for use in the trial courts of this state.
  2. The Supreme Court shall solicit proposals from reputable publishing firms and may enter into contracts with the publishing firms which are deemed by the court to offer the best proposals for the separate publication of the Arkansas Model Criminal Jury Instructions and the Arkansas Model Civil Jury Instructions, with provision being made for the publication from time to time of pocket part supplements containing revisions or additions to the instructions if the prices at which the publishers propose to sell the Arkansas Model Criminal Jury Instructions and the Arkansas Model Civil Jury Instructions are deemed to be reasonable and adequate by the Supreme Court and upon the publisher's agreeing to pay to the Supreme Court a reasonable market-rate royalty for the use and benefit of the Supreme Court Library Fund.
  3. The Supreme Court may delegate to the Clerk of the Supreme Court, or to any other employee or official of the court as the court may designate, the responsibility for soliciting and tabulating bid proposals and performing other duties as may be directed by the Supreme Court.
  4. The awarding of contracts to private publishers for the publication of the Arkansas Model Criminal Jury Instructions and the Arkansas Model Civil Jury Instructions shall be by a majority vote of the justices of the Supreme Court sitting in session for that purpose.

History. Acts 1977, No. 545, §§ 1, 2; A.S.A. 1947, §§ 22-250, 22-251; Acts 2001, No. 625, § 1.

16-11-113. Expenses of Supreme Court.

  1. All expenditures for fuel, blank books, and stationery accruing in the Supreme Court shall be paid out of the State Treasury from any moneys appropriated for the contingent expenses of the Supreme Court.
  2. The Auditor of State shall draw his or her warrant for the amount of the expenditures. The certificate of the court shall be a sufficient voucher.

History. Rev. Stat., ch. 43, §§ 45, 46; C. & M. Dig., §§ 2116, 2117; Pope's Dig., §§ 2720, 2721; A.S.A. 1947, §§ 22-214, 22-215.

16-11-114. Salaries of Chief Justice and associate justices.

The salary of the Chief Justice of the Supreme Court shall be seventy-one thousand eight hundred seventy dollars ($71,870) per annum, and the salary of each associate justice of the Supreme Court shall be sixty-six thousand ten dollars ($66,010) per annum.

History. Acts 1985, No. 665, § 1; A.S.A. 1947, § 22-140.

16-11-115. Compensation of special justice.

Each special justice of the Supreme Court who is not a retired judge or justice or an active circuit or district judge, appointed under the provisions of the Arkansas Constitution, Amendment 80, § 13, shall receive, as full compensation for services rendered, the sum of one hundred dollars ($100) for each case in the special justice's or special judge's commission. When the case or cases shall be decided, this amount shall be certified by the Clerk of the Supreme Court after having been approved by the Chief Justice of the Supreme Court.

History. Acts 1981, No. 607, § 1; A.S.A. 1947, § 22-130; Acts 2003, No. 1185, § 67.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-11-116. Employees of the Supreme Court — Bar of Arkansas.

  1. Pursuant to Arkansas Constitution, Amendment 28, the Supreme Court is charged with the authority and responsibility to regulate the practice of law. As of July 1, 2013, those persons who are employed by the Supreme Court to carry out these responsibilities and who are paid from the Bar of Arkansas account shall be considered employees of the State of Arkansas administered by the Supreme Court.
  2. For all purposes involving annual leave, sick leave, and career service recognition as a state employee, years of service as an employee of the Supreme Court — Bar of Arkansas shall be recognized as eligible service as a state employee.
  3. Notwithstanding § 19-4-801 or any other law to the contrary, employees shall be paid from cash funds of the Supreme Court derived solely from revenues received from attorney license fees and any other fees, fines, interest income, or other revenues derived from the regulation of the practice of law that may be deposited into the Bar of Arkansas account as determined by the Supreme Court.
      1. On July 1, 2013, the Bar of Arkansas Employees Pension Plan shall be abolished, and its power, duties, plan liabilities and assets shall be transferred to and assumed by the Arkansas Public Employees’ Retirement System, together with all accrued service credit due its members.
      2. All current members and beneficiaries of the Bar of Arkansas Employees Pension Plan shall be members of the Arkansas Public Employees’ Retirement System and covered by that system's eligibility, retirement and beneficiary provisions, except that those employees who were members of the Bar of Arkansas Employees Pension Plan and who were eligible for the lump-sum distribution provisions of that plan as referenced in Section 9.2(h) of the official plan document shall retain those rights as provided by the Bar of Arkansas Employees Pension Plan.
    1. Employees of the Supreme Court — Bar of Arkansas who are hired after July 1, 2013, shall be enrolled in the Arkansas Public Employees’ Retirement System as a condition of employment as provided for in § 24-4-301.

History. Acts 2013, No. 1026, § 8.

16-11-117. Access to Justice Foundation.

The General Assembly finds that as the Access to Justice Foundation Inc. serves a public purpose, financial accounting, general bookkeeping, and management and administrative services may be provided by employees of the Supreme Court and the Supreme Court — Bar of Arkansas in support of the Arkansas Access to Justice Foundation Inc.

History. Acts 2019, No. 780, § 7.

Subchapter 2 — Supreme Court Reports

Effective Dates. Acts 1915, No. 326, § 15: approved Mar. 30, 1915. Emergency declared.

Acts 1981, No. 803, § 5: Mar. 28, 1981. Emergency clause provided: “It is hereby found and determined by the Seventy-Third General Assembly that courts in Arkansas are faced with a tremendous increase in their workload; that appeals from the trial courts will continue their upward trend in view of the continued record-shattering number of cases filed in these courts; that appeals from these courts which will increase in number will add to the workload of the Supreme Court; that the newly created Court of Appeals was necessary to relieve some of the workload of the Supreme Court, but the Court of Appeals has, also, caused an increased burden on the Reporter of the Supreme Court who reports the decisions of both the Supreme Court and the Court of Appeals; and that it is this increase in workload that requires the Reporter of the Supreme Court to have assistance in reporting opinions of both these 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 its passage and approval.”

Research References

Am. Jur. 20 Am. Jur. 2d, Courts, §§ 76, 77.

C.J.S. 21 C.J.S., Courts, § 224.

16-11-201. Clerk to furnish Reporter with copy of decisions.

It shall be the duty of the Clerk of the Supreme Court to furnish the Reporter of the Supreme Court with a copy of all decisions of the court within thirty (30) days after the expiration of the time allowed for filing motions for reconsideration.

History. Acts 1915, No. 326, § 2; C. & M. Dig., § 9776k; Pope's Dig., § 13320; Acts 1971, No. 257, § 1; A.S.A. 1947, § 22-219.

Cross References. Copies of opinions to be furnished to Reporter, § 16-20-206.

16-11-202. Preparation of syllabus, headnotes, corrections — Publication.

It shall be the duty of the Reporter of the Supreme Court to:

  1. Prepare the syllabus without delay after the Clerk of the Supreme Court furnishes him or her with a copy of the decisions of the court;
  2. Prefix notes to each published decision containing the points decided therein;
  3. Edit the decisions of the Supreme Court and the Court of Appeals and make technical corrections thereto;
  4. Oversee publication and distribution of the decisions of the Supreme Court and the Court of Appeals in such format and medium as the Supreme Court may direct; and
  5. Perform other duties as the Supreme Court assigns.

History. Acts 1915, No. 326, §§ 2, 11, 13; C. & M. Dig., §§ 9776k, 9776o, 9776q; Pope's Dig., §§ 13320, 13324, 13326; Acts 1971, No. 257, § 1; A.S.A. 1947, §§ 22-219, 22-221, 22-222; Acts 2009, No. 221, § 1.

Amendments. The 2009 amendment inserted gender-neutral language in (1); inserted “published” in (2); rewrote (3) and (4); and added (5).

16-11-203. [Repealed.]

Publisher's Notes. This section, concerning authority to omit opinions, was repealed by Acts 2009, No. 221, § 2. The section was derived from Acts 1915, No. 326, § 10; C. & M. Dig., § 9776o; Pope's Dig., § 13324; A.S.A. 1947, § 22-220.

16-11-204. Assistant to Reporter of the Supreme Court.

  1. The Reporter of the Supreme Court is authorized to employ an assistant to aid the Reporter in the preparation of the headnotes for the published decisions of the Supreme Court and the Court of Appeals and in the supervision of the distribution and publication of the decisions of the Supreme Court and the Court of Appeals.
  2. No person shall be employed as an assistant by the Reporter in accordance with this section unless he or she is a licensed attorney.
  3. The position of assistant to the Reporter shall be state-funded at a salary to be set by the General Assembly.

History. Acts 1981, No. 803, §§ 1-3; A.S.A. 1947, §§ 22-219.1 — 22-219.3; Acts 2009, No. 221, § 3.

Amendments. The 2009 amendment rewrote (a); and inserted “in accordance with this section” and “or she” in (b).

16-11-205. Reporter to superintend distribution and publication of decisions of the Supreme Court and the Court of Appeals.

It shall be the duty of the Reporter of the Supreme Court to superintend the distribution and publication of the decisions of the Supreme Court and the Court of Appeals in such format and medium as the Supreme Court may direct.

History. Acts 1915, No. 326, § 3; C. & M. Dig., § 9776l; Pope's Dig., § 13321; A.S.A. 1947, § 22-225; Acts 2009, No. 221, § 4.

Amendments. The 2009 amendment rewrote the section.

16-11-206 — 16-11-209. [Repealed.]

Publisher's Notes. These sections, concerning proofreader and proof sheets furnished by printer, delivery of printed volumes, payment of printing and binding bills, and contractor's failure to perform, forfeiture, and letting new contracts, were repealed by Acts 2009, No. 221, §§ 5-8. The sections were derived from:

16-11-206. Acts 1915, No. 326, § 14; C. & M. Dig., § 9776r; Pope's Dig., § 13327; A.S.A. 1947, § 22-226.

16-11-207. Acts 1915, No. 326, § 8; C. & M. Dig., § 9776n; Pope's Dig., § 13323; A.S.A. 1947, § 22-229; Acts 1991, No. 549, § 9.

16-11-208. Acts 1915, No. 326, § 9; C. & M. Dig., § 9776n; Pope's Dig., § 13323; A.S.A. 1947, § 22-230; Acts 1991, No. 549, § 10.

16-11-209. Acts 1915, No. 326, §§ 6, 7; C. & M. Dig., § 9776m; Pope's Dig., § 13322; A.S.A. 1947, §§ 22-227, 22-228.

Subchapter 3 — Procedural Rules

Cross References. Rules for conduct of appeals, § 16-67-302.

Effective Dates. Acts 1971, No. 470, § 6: Mar. 1, 1971. Emergency clause provided: “The General Assembly finds that pleading, practice, and procedure in criminal cases and proceedings in the inferior courts of law of this state is not efficient, certain, or responsive to the reasonable expectations and legitimate needs of the people of this state; that the system of administering criminal justice in the state of Arkansas is in need of immediate reform; and, that the immediate passage of this act is necessary to empower the Supreme Court of the State of Arkansas, which the General Assembly finds to be the proper authority for prescribing rules of pleading, practice, and procedure in criminal cases and proceedings in the courts of this state to effectuate such needed 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 March 1, 1971.”

Acts 1979, No. 333, § 5: Mar. 9, 1979.

Acts 1981, No. 312, § 5: became law without Governor's signature, Mar. 5, 1981. Emergency clauses provided: “It is hereby found and determined by the General Assembly that this Act is necessary to clarify the authority granted by the legislative branch of government to the judicial branch of government, and that this Act is in keeping with the separation of powers provision of Section 2 of Article 4 of the Arkansas Constitution, 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.”

Research References

Am. Jur. 20 Am. Jur. 2d, Courts, § 82 et seq.

Ark. L. Rev.

Cox and Newbern, New Civil Procedure: The Court That Came in From the Code, 33 Ark. L. Rev. 1.

C.J.S. 21 C.J.S., Courts, § 124 et seq.

U. Ark. Little Rock L.J.

Spears, Comment: The 1979 Civil Procedure Rules, 2 U. Ark. Little Rock L.J. 89.

Heller, Survey of Civil Procedure, 3 U. Ark. Little Rock L.J. 172.

Case Notes

Uniform Rules of Evidence.

Under its own rule-making power and under existing statutory authority, the Supreme Court adopted the Uniform Rules of Evidence as the law in this state. Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

16-11-301. Rules of pleading, practice, and procedure — Supersession.

All statutes concerning pleading, practice, and procedure in all courts shall be deemed superseded by rules adopted by the Supreme Court pursuant to Arkansas Constitution, Amendment 80, § 3, or pursuant to the Supreme Court's constitutional, inherent, or statutory authority prior to the effective date of Arkansas Constitution, Amendment 80.

History. Acts 1971, No. 470, §§ 1-3; 1979, No. 333, § 1; 1981, No. 312, § 2; A.S.A. 1947, §§ 22-242 — 22-244; Acts 2003, No. 1185, § 68.

Research References

Ark. L. Rev.

Note, To Truly Reform We Must Be Informed: Davis v. Parham, the Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. Rev. 781.

U. Ark. Little Rock L.J.

Constitutional Law — Child Hearsay Exception in Sexual Abuse Cases — New Arkansas Supreme Court Rule Conflicts with New General Assembly Rule: Which Controls? Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992), 15 U. Ark. Little Rock L.J. 143.

U. Ark. Little Rock L. Rev.

Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).

Case Notes

Constitutionality.

The legislature's delegation of power to prescribe rules of criminal procedure is not unconstitutional nor outside the enabling act, provided the rule in question is truly procedural. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977).

This section is not an unlawful delegation of legislative authority; it merely recognizes and is harmonious with the court's inherent powers rather than conferring an express power. Jennings v. State, 276 Ark. 217, 633 S.W.2d 373, cert. denied, 459 U.S. 862, 103 S. Ct. 137, 74 L. Ed. 2d 117 (1982).

Amendment of Rules.

Since the Supreme Court has the inherent power to make the Rules of Criminal Procedure, it follows that it has the inherent power to amend those rules. Jennings v. State, 276 Ark. 217, 633 S.W.2d 373, cert. denied, 459 U.S. 862, 103 S. Ct. 137, 74 L. Ed. 2d 117 (1982).

Application.

Petition to revive a foreign judgment was properly granted because it was authenticated under Ark. R. Civ. P. 44 where it was signed by a clerk for a United States Bankruptcy Court; the Arkansas Supreme Court's rule-making authority over procedural matters was exclusive. It was argued that the proper authentication process was not followed when a certified copy of the judgment was attached to an application. Bird v. Shaffer, 2012 Ark. App. 464 (2012).

Uniform Enforcement of Foreign Judgments Act, § 16-66-601 et seq., was enacted before Ark. Const. Amend. 80 and this section, and Ark. R. Civ. P. 44 therefore supersedes it with respect to how foreign judgments must be filed with an Arkansas court. Agility Fin. Credit Union v. Largent, 2018 Ark. App. 358, 552 S.W.3d 471 (2018).

Cited: Gardner v. State, 252 Ark. 828, 481 S.W.2d 342 (1972); Adams v. State, 269 Ark. 548, 601 S.W.2d 881 (1980); Clines v. State, 282 Ark. 541, 669 S.W.2d 883 (1984).

16-11-302. [Repealed.]

Publisher's Notes. This section, concerning pleading, practice, and procedure in civil cases, was repealed by Acts 2003, No. 1185, § 69. The section was derived from Acts 1973, No. 38, §§ 1-6; 1979, No. 333, § 2; 1981, No. 312, § 3; A.S.A. 1947, §§ 22-245 — 22-249, 22-249n.

Chapter 12 Court Of Appeals

A.C.R.C. Notes. Acts 1991, No. 7, § 7, provided:

“The General Assembly recognizes that each judge of the Arkansas Court of Appeals incurs considerable expense in carrying out his or her responsibilities to the people of the State of Arkansas, including expenses for housing; the purchase and maintenance of an automobile; the acquisition, maintenance and equipping of a home-office where the judge can work nights, and other times when it is inappropriate or impractical to work in his or her regular office; for attending bar, civic and social meetings and in otherwise carrying out their responsibilities as judges of the Arkansas Court of Appeals; and that said judges should be entitled to an expense allowance to cover such expenses.

“The funds appropriated by Item (13) of Section 1 herein may be used by each judge of the Arkansas Court of Appeals to cover his expenses. The monthly allowance for fiscal year 1991-92 shall not exceed $550 per month and for fiscal year 1992-93 shall not exceed $550 per month.

“The amount prescribed herein shall be paid monthly upon vouchers submitted by such judges, with each such voucher to state only that it is for expenses incurred by such judge in carrying out his or her responsibilities to the people of the state as described herein.

“Upon receipt of each such voucher, the Auditor of State shall issue a warrant payable to the judge claiming such expense allowance and the State Treasurer is hereby authorized to pay the same from the funds appropriated for such purpose. The balance of the appropriation for housing and transportation which remains at the close of business of the fiscal year ending June 30, 1992, shall be carried forward into the fiscal year ending June 30, 1993, there to be used for the same purpose.”

Acts 1999, No. 889, §§ 1-4, provided:

“Section 1. At the November 2000 general election, the electors of each of the six (6) existing Court of Appeals districts created in accordance with Act 208 of 1979 shall elect an additional Court of Appeals judge from each district to begin office on January 1, 2001. The newly-elected judges shall each be elected to serve for four (4) years, or until such later date as the boundaries of the existing Court of Appeals districts are redefined and judges from those districts are elected.

“Section 2. The elected judges of the Court of Appeals now serving shall be designated as position 1 within their respective districts, and the new judges elected under this act shall be designated position 2 within their districts.

“Section 3. Those present judges of the court, who were appointed pursuant to Acts 11 and 15 of 1995 (First Extraordinary Session), shall be entitled to seek election at the November 2000 general election from the district in which they reside.

“Section 4. Except as provided in Section 1, members of the Court of Appeals shall serve eight (8) year terms.”

Effective Dates. Acts 1973, No. 231, § 6: Mar. 7, 1973. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that doubt and confusion exists as to the proper construction of existing statutes pertaining to the effective date of orders of the Arkansas Public Service Commission and with respect to the proper procedures to follow to obtain judicial review of such orders; that such doubt and confusion could lead to a miscarriage of justice through a technical failure to comply with these statutes as ultimately construed by the courts; and that enactment of this bill will resolve said doubt and confusion. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1979, No. 208, § 9: July 1, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the caseload of the Supreme Court has constantly risen, that the case filings have reached the point that the Court cannot adequately dispose of the appeals, and that the people of this State, through the passage of Amendment 58 to the Constitution of Arkansas, recognized the necessity for a Court of Appeals. 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 July 1, 1979.”

Acts 1983, No. 410, § 5: Aug. 1, 1983.

Acts 1985, No. 665, § 5: July 1, 1985. Emergency clause provided: “There 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 (2) 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 the 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 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, 1985.”

Acts 1985, No. 770, § 4: Apr. 3, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the practice of requiring circuit court judicial review of Public Service Commission orders works an undue hardship on the people of this State by creating undue delay in the final implementation of just and reasonable rates, and immediate correction of this hardship is necessary in order to preserve the public safety, health, peace, and general welfare of the State. 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. 959, § 6: Mar. 29, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly that the caseload of the Court of Appeals has risen so dramatically in recent years that it has created the potential for a severe backlog in the prompt decision of matters before the court. This act is necessary to alleviate this backlog particularly since the present normal term of the Court of Appeals would expire before this act would otherwise become effective. 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. 1085, § 12: §§ 6-11 effective July 1, 1995.

Acts 1995, No. 1323, § 13: became law without Governor's signature. Noted Apr. 19, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that this act amends Arkansas Code Annotated § 16-12-101 and uncodified sections of Acts 1993, No. 1085; the judicial positions created by § 16-12-101 are to become effective July 1, 1995 and this act would delay the effect of Act 1085 until January 1, 1996; and that in the event of the extension of the regular session the delay in the effective date of this act beyond July 1, 1995 would work irreparable harm on the proper administration 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 1995 (1st Ex. Sess.), Nos. 11 and 15, § 7: Oct. 23, 1995, and Oct. 24, 1995, respectively. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that this act amends Uncodified Act 1085 of 1993 and is needed to provide for the appointment of additional Court of Appeals judges from the state of Arkansas since the 80th General Assembly meeting in regular session failed to prescribe new districts and irreparable harm to the proper administration of justice would result if this act is not given immediate effect. 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. 113, § 6: Feb. 7, 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 Judiciary and in its place established the House Interim Committee and Senate Interim Committee on Judiciary; that the Arkansas Code 21-9-203 refers to the Joint Interim Committee on Judiciary and should be corrected to refer to the House and Senate Interim Committees on Judiciary; 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.”

Research References

Am. Jur. 20 Am. Jur. 2d, Courts, § 16 et seq.

C.J.S. 21 C.J.S., Courts, § 319.

Ark. L. Notes.

Laurence, Four Observations and an Inquiry About the Practice and Frequency of Dissenting Votes by the Judges of the Arkansas Court of Appeals, 1994 Ark. L. Notes 89.

U. Ark. Little Rock L.J.

Heller, Survey of Civil Procedure, 3 U. Ark. Little Rock L.J. 172.

Heller and Sallings, Survey of Public Law, 3 U. Ark. Little Rock L.J. 296.

Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, 7 U. Ark. Little Rock L.J. 279.

Legislative Survey, Civil Procedure, 16 U. Ark. Little Rock L.J. 85.

Watkins, Division of Labor between Arkansas's Appellate Courts, 17 U. Ark. Little Rock L.J. 177.

Subchapter 1 — General Provisions

Publisher's Notes. Because of the enactment of subchapter 2 of this chapter by Acts 2003, No. 1812, the existing provisions of this chapter have been designated as subchapter 1.

16-12-101. [Repealed.]

A.C.R.C. Notes. This section was repealed by Acts 1999, No. 889, § 7. Section 5 of Acts 1999, No. 889, amended uncodified Section 1 of Acts 11 and 15 of 1995, First Extraordinary Session rather than the codified version.

Acts 1999, No. 889, § 5, provided:

“(a) There is created, pursuant to Arkansas Constitution, Amendment 58, the Arkansas Court of Appeals, to be composed of six (6) members until January 1, 1996.

“(b) On or after January 1, 1996, the Court of Appeals shall be composed of nine (9) judges. On or after January 1, 1997, the Court of Appeals shall be composed of twelve (12) judges. The terms of office of the six (6) Court of Appeals judges currently holding office shall not be affected by this act.

“(c) Three additional judgeships created by subsection (b) of this section shall be effective on and after January 1, 1996 and three shall be effective on or after January 1, 1997. The Governor shall appoint three (3) persons from the state at large to serve from January 1, 1996 through December 31, 1998 and shall appoint three (3) persons from the state at large to serve from January 1, 1997 through December 31, 1998.”

Publisher's Notes. This section, concerning creation of court and apportionment board, composition, and establishment of districts, was repealed by Acts 1999, No. 889, § 7. The section was derived from Acts 1979, No. 208, § 1; A.S.A. 1947, § 22-1201; Acts 1993, No. 1085, §§ 1, 3; 1995, No. 1323, § 1; 1995 (1st Ex. Sess.), No. 11, § 1; 1995 (1st Ex. Sess.), No. 15, § 1; 1997, No. 113, § 1; 1999, No. 889, § 5.

16-12-102. Election of judges.

  1. Except as provided in § 16-12-106, all judges of the Court of Appeals shall be elected for full eight-year terms.
  2. Each elected judge shall be a resident of the district from which he or she is elected.

History. Acts 1979, No. 208, § 2; A.S.A. 1947, § 22-1202; Acts 1991, No. 959, § 1; 2005, No. 1448, § 1; 2007, No. 213, § 1.

Publisher's Notes. Acts 1979, No. 208, § 2, provided, in part, that at the 1980 general election, six persons should be elected to serve as judges of the Court of Appeals beginning January 1, 1981, that one judge should be elected from each of the six districts established by the board, and that the terms of office of the initial six judges should be determined by lot by the board so that two judges should be elected to four-year terms, two judges should be elected to six-year terms, and two judges should be elected to eight-year terms.

Amendments. The 2005 amendment inserted the subsection (a) and (b) designations; and added (c).

The 2007 amendment deleted (c) relating to eligibility of appointed judges.

Cross References. Court of Appeals transition, § 16-12-202.

16-12-103. Location of court.

The Court of Appeals shall be located in Little Rock and shall have offices as convenient to the State Capitol and the law library in the Justice Building as can be arranged, but the court en banc, or any division thereof, may sit in any county seat for the purpose of hearing argument in cases before it.

History. Acts 1979, No. 208, § 3; A.S.A. 1947, § 22-1203; Acts 1993, No. 1085, § 6; 1995, No. 1323, § 2.

A.C.R.C. Notes. As amended by Acts 1995, No. 1323, this section began:

“Effective January 1, 1996.”

16-12-104. Authority of court.

The Court of Appeals shall have authority to issue any writs, directives, orders, and mandates that are appropriate, and only those that are appropriate, for the determination of cases within its jurisdiction.

History. Acts 1979, No. 208, § 4; A.S.A. 1947, § 22-1204.

16-12-105. Chief Judge.

The Chief Justice of the Supreme Court shall designate one (1) of the judges of the Court of Appeals as Chief Judge of the Court of Appeals. The appointment as Chief Judge shall be for a four-year term, and the person so named shall be eligible for reappointment, subject to the discretion of the Chief Justice.

History. Acts 1979, No. 208, § 5; A.S.A. 1947, § 22-1205.

16-12-106. Special judges.

  1. The Chief Justice of the Supreme Court may commission special judges pursuant to the Arkansas Constitution, Amendment 80, § 13.
  2. Each special judge of the Court of Appeals who is not a retired judge or justice or an active circuit or district judge, appointed under the provisions of subsection (a) of this section, shall receive as full compensation for services rendered the sum of one hundred dollars ($100) for each case in the special justice's or special judge's commission. When the cases are decided, this amount shall be certified by the Clerk of the Supreme Court, after having been approved by the Chief Justice.

History. Acts 1979, No. 208, § 6; 1981, No. 607, § 1; A.S.A. 1947, §§ 22-130, 22-1206; Acts 1991, No. 959, § 2; 2003, No. 1185, § 70.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-12-107. Salaries.

  1. The judges of the Court of Appeals shall receive such compensation as provided by law.
  2. The salary of the Chief Judge of the Court of Appeals shall be sixty-four thousand eight hundred eighty-seven dollars ($64,887) per annum, and the salary of each of the judges of the Court of Appeals shall be sixty-three thousand seven hundred sixty-three dollars ($63,763) per annum.

History. Acts 1979, No. 208, § 7; 1985, No. 665, § 2; A.S.A. 1947, §§ 22-140.4, 22-1207.

16-12-108. Staff.

  1. The Clerk of the Supreme Court shall serve as Clerk of the Court of Appeals.
  2. The Reporter of the Supreme Court shall serve as Reporter of the Court of Appeals.
  3. The sheriff of the county wherein the Court of Appeals is sitting shall be the bailiff of that court.
  4. Each judge of the Court of Appeals shall have a secretary and a law clerk to be selected by the judge personally.
  5. The Clerk of the Supreme Court is authorized to select two (2) additional persons as deputies. He or she may assign deputies to primarily handle all matters relative to the Court of Appeals, including, but not limited to, filing cases which have been appealed to the Court of Appeals, assigning briefs and motions to the judges, submitting cases, keeping all court records, notifying counsel of oral argument, preparing the payroll, and any and all other duties connected with the Court of Appeals.
    1. Law clerks for the Court of Appeals shall receive the same salaries as Supreme Court law clerks.
    2. All other employees of the Court of Appeals shall be of the same grade classification as Supreme Court employees performing the same duties, except that the original salaries may be in accordance with Step 2 of that grade as set out in § 21-5-209.

History. Acts 1979, No. 208, § 8; A.S.A. 1947, § 22-1208.

16-12-109 — 16-12-114. [Repealed.]

Publisher's Notes. These sections, concerning the Court of Appeals, divisions, decisions and rehearings, were repealed by Acts 2003, No. 1185, § 71. These sections were derived from the following sources:

16-12-109. Acts 1983, No. 410, §§ 1, 2; A.S.A. 1947, §§ 22-1209, 22-1210; Acts 1993, No. 1085, § 7; 1995, No. 1323, § 3; 1995 (1st Ex. Sess.), No. 11, § 2; 1995 (1st Ex. Sess.), No. 15, § 2.

16-12-110. Acts 1983, No. 410, § 4; A.S.A. 1947, § 22-1212; Acts 1993, No. 1085, § 8; 1995, No. 1323, § 4.

16-12-111. Acts 1983, No. 410, § 3; A.S.A. 1947, § 22-1211; Acts 1993, No. 1085, § 9; 1995, No. 1323, § 5.

16-12-112. Acts 1973, No. 231, § 3; 1985, No. 770, § 1; A.S.A. 1947, § 73-229.1.

16-12-113. Acts 1983, No. 410, § 3; A.S.A. 1947, § 22-1211; Acts 1993, No. 1085, § 10; 1995, No. 1323, § 6; 1999, No. 924, § 1.

16-12-114. Acts 1983, No. 410, § 3; A.S.A. 1947, § 22-1211; Acts 1993, No. 1085, § 11; 1995, No. 1323, § 7; 1999, No. 924, § 2.

Subchapter 2 — Reapportionment of the Court of Appeals Districts

A.C.R.C. Notes. Acts 2003, No. 1812, § 1, provided:

“(a) Under Act 889 of 1999, the Arkansas Court of Appeals Apportionment Commission was created to review the electoral districts for the Court of Appeals and make a recommendation on the changes to be made effective January 1, 2004. The commission has reviewed the current districts and the data from the 2000 census, received input from judges, lawyers, and the general public, and considered the requirements and restrictions of federal and state law. Because of major shifts in population which have occurred since the current districts were created utilizing the 1970 census, a realignment of these districts is necessary.

“(b) The Arkansas Court of Appeals consisted of six (6) judges when it was first created. The number of members grew to nine (9) judges in 1996, and to twelve (12) judges in 1997. However, when the new judgeships were created, no plan was made to stagger the dates of the end of the terms for each of the judges. As a result, the terms of eight (8) of the twelve (12) judges end in 2004. In order to provide for an orderly transition of members and create a reasonable level of stability on the court, it is necessary to adjust the current terms of office.

“(c) It is the purpose of this act to create new electoral districts for the Arkansas Court of Appeals and to establish the dates for electing the judges within each of these districts.”

Acts 2003, No. 1812, § 4, provided:

“Each currently serving member of the Court of Appeals shall continue in office until his or her position shall be subject to election, as provided for under this act, regardless of the date otherwise set as the expiration of his or her term, and regardless of any changes in the geographical boundaries in the district from which he or she was elected.”

Publisher's Notes. Because Acts 2003, No. 1812 enacted a subchapter 2, the existing provisions of this chapter have been designated as subchapter 1.

16-12-201. Court of Appeals — Districts.

The State of Arkansas is divided into the following seven (7) districts for the election of judges to the Court of Appeals:

  1. District 1 shall be composed of Clay, Craighead, Crittenden, Cross, Greene, Lonoke, Mississippi, Monroe, Poinsett, Prairie, White, and Woodruff counties;
  2. District 2 shall be composed of Baxter, Boone, Cleburne, Conway, Faulkner, Fulton, Independence, Izard, Jackson, Lawrence, Marion, Newton, Pope, Randolph, Searcy, Sharp, Stone, and Van Buren counties;
  3. District 3 shall be composed of Benton, Carroll, Crawford, Franklin, Johnson, Madison, and Washington counties;
  4. District 4 shall be composed of Clark, Garland, Hempstead, Hot Spring, Howard, Little River, Logan, Miller, Montgomery, Pike, Polk, Scott, Sebastian, Sevier, and Yell counties;
  5. District 5 shall be composed of Ashley, Bradley, Calhoun, Cleveland, Columbia, Dallas, Drew, Grant, Lafayette, Lincoln, Nevada, Ouachita, and Union counties;
  6. District 6 shall be composed of Pulaski, Perry, and Saline counties; and
  7. District 7 shall be composed of Arkansas, Chicot, Desha, Jefferson, Lee, Phillips, and St. Francis counties.

History. Acts 2003, No. 1812, § 2.

16-12-202. Court of Appeals — Transition.

The elections under this section shall be for an eight-year term as follows:

  1. The judgeship designated prior to July 16, 2003, as “District 2, Position 2”, shall continue to be designated “District 2, Position 2”, and shall be subject to election in District 2;
  2. The judgeship designated prior to July 16, 2003, as “District 4, Position 1”, shall continue to be designated “District 4, Position 1”, and shall be subject to election in District 4;
  3. The judgeship designated prior to July 16, 2003, as “District 4, Position 2”, shall continue to be designated “District 4, Position 2”, and shall be subject to election in District 4;
  4. The judgeship designated prior to July 16, 2003, as “District 5, Position 1”, shall be designated “District 5” and shall be subject to election in District 5;
  5. The judgeship designated prior to July 16, 2003, as “District 3, Position 2”, shall continue to be designated “District 3, Position 2”, and shall be subject to election in District 3;
  6. The judgeship designated prior to July 16, 2003, as “District 1, Position 2”, shall be designated “District 1, Position 1”, and shall be subject to election in District 1;
  7. The judgeship designated prior to July 16, 2003, as “District 5, Position 2”, shall be designated “District 1, Position 2”, and shall be subject to election in District 1;
  8. The judgeship designated prior to July 16, 2003, as “District 6, Position 2”, shall continue to be designated “District 6, Position 2”, and shall be subject to election in District 6;
  9. The judgeship designated prior to July 16, 2003, as “District 1, Position 1”, shall be designated “District 7” and shall be subject to election in District 7;
  10. The judgeship designated prior to July 16, 2003, as “District 6, Position 1”, shall continue to be designated “District 6, Position 1”, and shall be subject to election in District 6;
  11. The judgeship designated prior to July 16, 2003, as “District 2, Position 1”, shall continue to be designated “District 2, Position 1”, and shall be subject to election in District 2; and
  12. The judgeship designated prior to July 16, 2003, as “District 3, Position 1”, shall continue to be designated “District 3, Position 1”, and shall be subject to election in District 3.

History. Acts 2003, No. 1812, § 3; 2011, No. 1132, § 5.

Amendments. The 2011 amendment substituted “designated prior to July 16, 2003” for “currently designated” throughout the section; deleted “in 2004” following “shall be subject to election” in (1) through (4); deleted “in 2006” following “shall be subject to election” in (5) through (8); deleted “in 2008” following “shall be subject to election” in (9) and (10); and deleted “in 2010” following “shall be subject to election” in (11) and (12).

Chapter 13 Circuit Courts

A.C.R.C. Notes. Acts 1987, No. 846, § 5, provided:

“The State Board of Judicial Reapportionment, created and established by Act 826 of 1985, will continue to exist until December 31, 1988, at which time such Board will cease to exist, and prior to December 31, 1988, such State Board of Judicial Reapportionment shall prepare a comprehensive plan reapportioning the existing judicial circuits of this State, and recommending the number and type of judges required under such reapportionment. The Board shall present such plans and recommendations to the Arkansas General Assembly for its consideration during its regular session in 1989.”

The subchapter placement of certain judicial circuits had to be rearranged after publication of the 1999 Replacement Volume 14A.

Acts 2019, No. 1003, § 8, provided:

“(a) The House Judiciary Committee and the Senate Judiciary Committee shall conduct a joint study on the composition of the judicial circuits and allocation of circuit court judgeships statewide and issue recommendations concerning the reassignment of judicial circuits and the reapportionment of circuit court judgeships, if necessary, to the General Assembly for consideration during the 2021 Regular Session.

“(b) The recommendations, if any, under this section shall be made no later than September 1, 2020, in order to be available for potential budgetary considerations during hearings of the Joint Budget Committee before the 2021 Regular Session”.

Publisher's Notes. Acts 1993, No. 1224, § 4, provided:

“It is the intent of the 79th General Assembly that the authorization of seven additional Circuit & Chancery Judge positions created in response to the United States District Court Order in the case of Eugene Hunt, et al v. State of Arkansas, et al be discontinued as the terms of the displaced incumbent judges expire pursuant to the court order.”

Cross References. Uniform filing fees and court costs, § 16-10-105.

Research References

Am. Jur. 20 Am. Jur. 2d, Courts, § 25 et seq.

C.J.S. 21 C.J.S., Courts, § 9 et seq., § 186 et seq.

U. Ark. Little Rock L.J.

Gitelman, The Separation of Law and Equity and the Arkansas Chancery Courts: Historical Anomalies and Political Realities, 17 U. Ark. Little Rock L.J. 215.

Averill, Observations on the Wyoming Experience with Merit Selection of Judges: A Model for Arkansas, 17 U. Ark. Little Rock L.J. 281.

Case Notes

Complaint.

In an action by a county resident against officials of the Arkansas Game and Fish Commission, alleging that the Commission used public funds to enter into gas leases with private commercial enterprises and diverted the monies generated from those leases to unauthorized expenditures, the resident failed to state a claim for illegal extraction under this section because the monies at issue did not arise from taxation but were generated from the Commission's gas leases with private, third-party companies. Dockery v. Morgan, 2011 Ark. 94, 380 S.W.3d 377 (2011).

Subchapter 1 — General Provisions

Effective Dates. Acts 1971, No. 649, § 3: Apr. 7, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that the compensation presently provided for special circuit and chancery judges is not adequate to compensate said judges for their services and that the same will result in a delay in the administration of justice, this act is immediately necessary to correct the situation. 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 effect from and after its passage and approval.”

Acts 1985, No. 665, § 5: July 1, 1985. Emergency clause provided: “There 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 (2) 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 the 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 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, 1985.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 7: Nov. 7, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the caseload of the Second and Sixth Judicial Districts necessitates the appointment of additional circuit-chancery judges immediately; and that this Act so provides and should therefore 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.”

16-13-101. Reassignment of case upon disqualification of judge.

When it appears that the circuit judge before whom a case is pending is disqualified under § 16-13-214, the case shall be reassigned to another judge.

History. Acts 1925, No. 127, § 1; Pope's Dig., § 2712; A.S.A. 1947, § 22-114; Acts 2003, No. 1185, § 72.

Case Notes

Constitutionality.

Ark. Const., Art. 7, § 20 [repealed] did not operate to preclude enactment of this section. Thus, this section does not contravene Ark. Const., Art. 7, §§ 21 [repealed], 22 [repealed]. Black v. Cockrill, 239 Ark. 367, 389 S.W.2d 881 (1965).

Purpose.

This section tends to carry out the intention of Ark. Const., Art 7, § 20 [repealed]. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

Applicability.

This section applies whether or not the related presiding judge of the division is actually presiding at the trial. Black v. Cockrill, 239 Ark. 367, 389 S.W.2d 881 (1965).

Personal Interest.

The “interest” which is disqualifying under this section is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge, and the liability, gain, or relief to the judge must turn on the outcome of the suit. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

Transfer Required.

The terms of this section are mandatory and transfer is required on motion of any party. Black v. Cockrill, 239 Ark. 367, 389 S.W.2d 881 (1965); Ennis v. Brainerd, 240 Ark. 16, 397 S.W.2d 809 (1966).

16-13-102. [Repealed.]

Publisher's Notes. This section, concerning salaries of circuit and chancery judges, was repealed by Acts 2003, No. 1185, § 73. The section was derived from Acts 1985, No. 665, § 3; A.S.A. 1947, § 22-140.1.

16-13-103. Special judges — Compensation — Expenses.

    1. A licensed attorney who is elected as a special judge of the circuit court under Arkansas Constitution, Amendment 80, and the rules prescribed by the Supreme Court may request compensation at one-half (½) the rate as fixed by law for a regularly elected circuit judge.
    2. This section does not allow a special judge to receive compensation for any days that he or she is not actually serving in his or her appointed capacity.
  1. The compensation provided for in this section shall be paid from the appropriation provided to the Auditor of State for special and recalled judges for the circuit courts, upon certification by the clerk of the court in which the special circuit judge was elected stating the number of days or a portion of a day served, under the rules prescribed by the Supreme Court.

History. Acts 1971, No. 649, §§ 1, 2; A.S.A. 1947, §§ 22-131, 22-131.1; Acts 2011, No. 274, § 6.

A.C.R.C. Notes. Acts 2011, No. 274, § 1, provided: “Legislative intent.

“(a) Arkansas Constitution, Amendment 80, § 13(C), provides that the Chief Justice of the Arkansas Supreme Court may appoint a special judge to serve in circuit court or district court whenever a judge is disqualified or temporarily unable to serve or when there is other need for a temporary appointment, under rules prescribed by the Supreme Court.

“(b) Special judges may include retired justices or judges, active circuit judges or district judges, or licensed attorneys.

“(c) The current laws that govern the payment of special judges have not been revised since the adoption of Amendment 80 and are in conflict and need of clarification.”

Amendments. The 2011 amendment rewrote (a) and (b).

Case Notes

Special Judge.

A special judge who granted extension of time for filing bill of exceptions for a period running beyond expiration of his term of court could approve the bill of exceptions after lapse of his term but could not exercise a separate and new judicial act to grant a further extension of time. Patterson v. Carpenter, 207 Ark. 539, 181 S.W.2d 465 (1944).

16-13-104. [Repealed.]

Publisher's Notes. This section, concerning ineligibility for an appointed circuit judge as a candidate, was repealed by Acts 2007, No. 213, § 2. The section was derived from Acts 2005, No. 1448, § 2.

Subchapter 2 — Circuit Courts Generally

A.C.R.C. Notes. Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1899, No. 62, § 2: effective on passage.

Acts 1943, No. 202, § 3: approved Mar. 15, 1943. Emergency clause provided: “Whereas Initiated Act Number 5 adopted by the People November 6, 1936, provided that Circuit Courts are open at all times for Criminal proceedings; and whereas considerable confusion exists in determining the powers of a circuit court in civil proceedings when convened in special or adjourned sessions, and whereas Pretrial procedure, rendition of consent judgments and other court actions between the terms fixed by law for holding the several courts in the judicial districts in this state will expedite litigation and reduce the expense of court sessions and this act being for the speedy administration of justice, an emergency is hereby declared, and this Act shall take effect and be in force from and after its passage.”

Acts 1943, No. 290, § 4: approved Mar. 23, 1943. Emergency clause provided: “Whereas in the event a regular judge shall enter the armed services of the United States, a special election of the members of the bar upon the second day of the term in each county in the district must be held to elect a special judge, and whereas, the special judge is allowed only ten dollars [$10.00] per day for his services, and no expenses; and whereas, such procedure would result in great expense and delay to litigants difficulty in securing a competent and qualified attorney to fill such position, an emergency is declared to exist, and this act being necessary to promote the public peace, health and welfare, shall take effect and be in force from and after its passage.”

Acts 1949, No. 257, § 6: Mar. 8, 1949. Emergency clause provided: “Because of the geographical extent and number of courts required to be held, and to expedite the disposition of court matters and actions, and to better facilitate the disposition of same by consent of parties and thereby avoid delays, and to save costs, and for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval by the governor.”

Acts 1961, No. 14, § 2: approved Jan. 30, 1961. Emergency clause provided: “The legislature having determined that the appointment of a law clerk for counties with population of 240,000 or more would expedite the handling of litigation in the circuit courts of said counties, an emergency is hereby declared to exist and this Act shall be in full force and effect from and after its passage.”

Acts 1968 (1st Ex. Sess.), No. 66, §§ 2, 4: retroactive to Jan. 1, 1968, and salaries payable from that date. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present requirement that the law clerk of the circuit court be a licensed attorney renders it difficult if not almost impossible to employ a person to fill said position; that the present law prescribing qualifications for the law clerks of the Arkansas Supreme Court require only that the law clerks be licensed attorneys or graduates of approved law schools; that the qualifications of law clerks for circuit courts should be the same as but no greater than those for the Supreme Court Clerks; and, that this Act is immediately necessary to revise the qualifications of circuit court law clerks to conform to the qualifications of Supreme Court law clerks and to make it possible to employ persons to fill the position of circuit court law clerk and thereby to further the administration of justice. Therefore, an emergency is hereby declared to exist and this Act being necessary to the preservation of the public peace, health and safety, shall be in effect from the date of its passage and approval.” Became law without Governor's signature, February 27, 1968.

Acts 1975, No. 68, § 3: approved Feb. 7, 1975. Emergency clause provided: “The Legislature having determined that the appointment of a case coordinator for districts with populations of two hundred forty thousand (240,000) or more would expedite the handling of litigation in the circuit courts of said counties and because the number or cases being filed is increasing rapidly, an emergency is hereby declared to exist. This Act shall be in full force and effect from and after its passage.”

Acts 1979, No. 580, § 4: Mar. 26, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the volume of work required by the circuit courts which have judicial districts comprising 240,000 or more has greatly increased in recent years, and that it is immediately necessary to provide additional support for the circuit judges in order to assure the orderly disposition of cases in order to facilitate the prompt administration of justice. 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 from and after the date of its approval.”

Research References

Ark. L. Notes.

Brill, Law and Equity in Arkansas: Will Liles v. Liles Lead Us Out of the Morass?, 1987 Ark. L. Notes 1.

Brill, The Maxims of Equity, 1993 Ark. L. Notes 29.

Ark. L. Rev.

Minimum Standards of Judicial Administration — Arkansas, 5 Ark. L. Rev. 1, 5.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

Administration of the Courts in Arkansas: Challenge, Performance, and Prospects, 30 Ark. L. Rev. 235.

U. Ark. Little Rock L.J.

Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, 7 U. Ark. Little Rock L.J. 279.

16-13-201. Jurisdiction.

  1. Circuit courts shall have original jurisdiction of all justiciable matters not otherwise assigned pursuant to the Arkansas Constitution.
    1. Circuit courts shall have appellate jurisdiction of the judgments and final orders of county courts, district courts, city courts, and police courts in all civil actions.
    2. On appeal from such judgments and final orders, the case shall be tried de novo, and the appellate jurisdiction of the circuit court shall extend to errors of fact as well as errors of law.
  2. The circuit courts shall have appellate jurisdiction from the decision of any inferior board, council, or tribunal in the contest of any county, township, or municipal office, and on such appeals the case shall be tried de novo.

History. Civil Code, §§ 18-20; Acts 1871, No. 48, § 1 [19], p. 249; 1873, No. 88, § 1 [18, 19], p. 213; C. & M. Dig., §§ 2228, 2233, 2234; Pope's Dig., §§ 2856, 2861, 2862; A.S.A. 1947, §§ 22-301, 22-304, 22-308; Acts 2003, No. 1185, § 74.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Research References

ALR.

Criminal jurisdiction of municipal or other local court. 102 A.L.R.5th 525.

Case Notes

Administrative Determinations.

The legislature has the right, in authorizing a civil service commission, to vest in the circuit court the power to review judicially, either by way of original proceeding or by way of appeal, the action of the commission. Civil Serv. Comm'n v. Matlock, 205 Ark. 286, 168 S.W.2d 424 (1943).

Appellate Jurisdiction.

The circuit court can acquire no jurisdiction by appeal from a court or justice of the peace that was without jurisdiction. Little Rock, Miss. R. & Tex. R.R. v. Manees, 44 Ark. 100 (1884); Bynum v. Patty, 207 Ark. 1084, 184 S.W.2d 254 (1944).

Where a cause is appealed to the circuit court from the county court, the former court obtains jurisdiction to the same extent as if it had been originally brought in that court and should enter final judgment therein and remand the same to the county court with directions to enter that judgment. Batesville v. Ball, 100 Ark. 496, 140 S.W. 712 (1911).

The circuit court has jurisdiction to review on appeal the action of the county court relative to the organization of a road district. Horn v. Baker, 140 Ark. 168, 215 S.W. 600 (1919).

If the county court had jurisdiction to hear a contest over the result of a stock law election, which was not decided, a judgment of that court dismissing a petition attacking the legality of the election was not void on its face, however erroneous it may have been, and a review of it must be by appeal to the circuit court and not by certiorari. Patterson v. Adcock, 157 Ark. 186, 248 S.W. 904 (1923).

The circuit court had jurisdiction to try a case on appeal by a taxpayer from a judgment of the county court allowing a claim against the county and the fact that a warrant had been issued and paid before the case was tried in the circuit court was immaterial. McLain v. Miller County, 180 Ark. 828, 23 S.W.2d 264 (1930), superseded by statute as stated in, Lott v. Circuit Court, 328 Ark. 596, 945 S.W.2d 922 (1997).

Appeals from the county court to the circuit court shall be granted as a matter of right. Watts & Sanders v. Myatt, 216 Ark. 660, 226 S.W.2d 800 (1950).

The chancery court had no jurisdiction to order repayment of a claim allowed by the county judge in paying dues to the Arkansas Association of County Judges; in the absence of fraud, the remedy was by appeal to the circuit court. Ark. Ass'n of County Judges v. Green, 232 Ark. 438, 338 S.W.2d 672 (1960).

Exclusive Jurisdiction.

The chancery court has exclusive jurisdiction of all cases involving matters of child support; neither the municipal nor circuit court has concurrent jurisdiction with chancery court to enforce an agreement for child support. Boren v. Boren, 318 Ark. 378, 885 S.W.2d 852 (1994).

Circuit court cannot decide a claim of breach of contract or otherwise enforce a child support agreement since under subsection (a) of this section it does not have concurrent jurisdiction. Granquist v. Randolph, 326 Ark. 809, 934 S.W.2d 224 (1996).

Regardless of the context in which a support order is entered, whether divorce, paternity, abandonment, or any other situation, a trial court has the power to enter a child-support order; thus, where a father was held in contempt for failure to pay support, and appealed, even though the trial court did not have jurisdiction to dissolve the marriage because there was no corroboration of residence, the trial court had jurisdiction to enter contempt orders for the father's failure to pay support. Rogers v. Rogers, 80 Ark. App. 430, 97 S.W.3d 429 (2003).

Original Jurisdiction.

The correct method of ascertaining the civil and criminal jurisdiction of the circuit courts is to see what cases or classes of cases are confided by the Constitution exclusively to the jurisdiction of other tribunals, and the great residuum belongs exclusively, or concurrently, to the circuit courts. State v. Devers, 34 Ark. 188 (1879).

Jurisdiction to hear and determine contests of elections for a city office, not being vested elsewhere, is in the circuit court. Whittaker v. Watson, 68 Ark. 555, 60 S.W. 652 (1901); Doherty v. Cripps, 82 Ark. 529, 102 S.W. 394 (1907).

If the law does not expressly vest jurisdiction to hear an action, it falls within the general jurisdiction of the circuit courts. State ex rel. Att'y Gen. v. Sams, 81 Ark. 39, 98 S.W. 955 (1906); Patterson v. Adcock, 157 Ark. 186, 248 S.W. 904 (1923).

Circuit court has jurisdiction to determine liability of county depository for interest on county funds. Price v. Madison County Bank, 90 Ark. 195, 118 S.W. 706 (1909).

Where the trial court accepted appellant's plea for capital-felony murder on a Sunday in violation of § 16-10-114, the statutory violation did not affect the trial court's jurisdiction over the matter; further, a petition for writ of habeas corpus was not the proper method with which to claim a statutory violation. Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006).

—Jurisdictional Amount.

The circuit court has jurisdiction of mechanics' liens enforceable against land regardless of the amount. White v. Millbourne, 31 Ark. 486 (1876).

Where no one of several debts sued on exceeds the sum of one hundred dollars, the plaintiff cannot combine them so as to give the circuit court jurisdiction. Mannington v. Young, 35 Ark. 287 (1880).

Circuit courts have jurisdiction in tort action in the nature of a fraud without regard to the amount. Bagley v. Shoppach, 43 Ark. 375 (1884).

In actions for damages to personal property, jurisdiction is determined by the damages asked. Little Rock, Miss. R. & Tex. R.R. v. Manees, 44 Ark. 100 (1884).

Since garnishment is only an attachment of the debt, the jurisdiction of the court over the funds in the hands of the garnishee is not dependent upon the amount of the indebtedness. Moore v. Kelley, 47 Ark. 219, 1 S.W. 97 (1886).

A complaint for breach of contract alleging damages sufficient to give the circuit court jurisdiction is a prima facie showing of jurisdiction, and in the absence of a special plea or charge that the allegation was illusive and fraudulent, the court could correctly assume jurisdiction. Neale v. Smith, 61 Ark. 564, 33 S.W. 1058 (1896).

If the question is raised whether or not the amount claimed was a lien on real estate, the circuit court has jurisdiction without regard to the amount involved. Sanders v. Brown, 65 Ark. 498, 47 S.W. 461 (1898); Naylor v. McNair, 92 Ark. 345, 122 S.W. 662 (1909).

If a demurrer (now abolished) is sustained to one of two paragraphs of complaint and the remaining paragraph demands an amount less than the jurisdictional requirement, the circuit court is without jurisdiction to proceed. Harris-Damon Lumber Co. v. Craddock, 72 Ark. 334, 80 S.W. 228 (1904).

Complaint which alleged that party possessed title to a vehicle valued at $3,900.00 which she obtained under divorce decree and which was being unlawfully detained was a replevin action properly within the jurisdiction of the county circuit court, and, as a consequence, a writ of prohibition did not lie. Bonnell v. Smith, 322 Ark. 141, 908 S.W.2d 74 (1995).

—Misdemeanors.

Circuit courts have concurrent jurisdiction with justices of the peace in misdemeanor cases. Walker v. State, 35 Ark. 386 (1880); McClure v. State, 37 Ark. 426 (1881).

It is not in the power of the legislature, under the provisions of the Constitution, to deprive the circuit courts of all original jurisdiction of misdemeanors. Naylor v. McNair, 92 Ark. 345, 122 S.W. 662 (1909).

—Petitions.

The issue of the sufficiency of a petition for a local option election is one over which chancery court has no jurisdiction. Zaruba v. Phillips, 320 Ark. 199, 895 S.W.2d 544 (1995).

Proceedings on Appeal.

Appeals from final orders and judgments of the county courts are tried de novo. Marion County v. Estes, 79 Ark. 504, 96 S.W. 165 (1906); Thomas v. Burke, 91 Ark. 595, 121 S.W. 1060 (1909); Jones v. Coffin, 96 Ark. 332, 131 S.W. 873 (1910); Thornton v. Allen, 101 Ark. 106, 141 S.W. 499 (1911); Stephens v. School Dist., 104 Ark. 145, 148 S.W. 504 (1912).

Circuit court may permit record to be amended so as to show allowance of appeal by the county court. Drainage Dist. v. Rolfe, 110 Ark. 374, 161 S.W. 1034 (1913).

The circuit court did not abuse its discretion in allowing an appeal where the original papers were not filed before the trial date, inasmuch as certified copies had been filed and there was no showing that appellees were in any manner prejudiced. Woollard v. Circuit Court, 222 Ark. 287, 258 S.W.2d 886 (1953).

—Petitioners for Drainage District.

A petitioner may appeal to the circuit court from an order of the county court refusing a petition for the establishment of a drainage district. Sharum v. Fry, 95 Ark. 385, 129 S.W. 818 (1910).

The petitioners, as well as the remonstrants, have a right to appeal from an order of the county court adverse to their interests and relative to the formation of a drainage district. Collins v. Stewart, 117 Ark. 4, 173 S.W. 824 (1915).

—School Districts.

Where it is sought to annex certain territory of one school district to another, the district whose territory is to be annexed may appeal from a judgment of the county court to the circuit court without its board of directors first appearing in the county court. School Dist. v. Rural Special School Dist., 128 Ark. 383, 194 S.W. 241 (1917).

School district properly appealed from an order approving a bond. Hulbert Special Sch. Dist. v. Cooper, 180 Ark. 29, 20 S.W.2d 322 (1929).

—Taxpayers.

If a county court has proceeded irregularly in the exercise of its constitutional jurisdiction to make a contract for the building of a courthouse, citizens, residents, and taxpayers have a remedy to correct that irregularity by becoming parties to the proceeding and appealing to the circuit court, but a bill in equity will not lie to restrain the making of such a contract for irregularity only. Bowman v. Frith, 73 Ark. 523, 84 S.W. 709 (1905).

One who is a citizen of the county and taxpayer in a drainage district and who is interested in an order of the county court allowing a claim against the district is entitled to appeal therefrom. Huddleston v. Coffman, 90 Ark. 219, 118 S.W. 1010 (1909).

One who is a citizen or resident and a taxpayer has the right to appeal from an order of allowance against the county, whether he intervenes before or after the allowance is made. Van Hook v. McNeil Monument Co., 101 Ark. 246, 142 S.W. 154 (1911).

A citizen and taxpayer may appeal from an order designating a county depository. Casey v. Independence County, 109 Ark. 11, 159 S.W. 24 (1913).

Where the county court made an order establishing a road through certain lands, a citizen and taxpayer owning lands taken by the road may make himself a party to the proceedings and appeal from the order of the court. McMahan v. Ruble, 135 Ark. 83, 204 S.W. 746 (1918).

A taxpayer is authorized to appeal from an order of the county court allowing a claim against the county and confirming a sale of county property in satisfaction thereof without becoming a party to the proceedings. Wright v. LeCroy, 184 Ark. 837, 44 S.W.2d 355 (1931).

The county court, in passing on a claim presented to it, acts in a judicial capacity. Any citizen of any county, city, or town may institute suit in behalf of himself and others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever, and their proper remedy is to appeal to the circuit court. Ark. Ass'n of County Judges v. Green, 232 Ark. 438, 338 S.W.2d 672 (1960).

Cited: Norman v. Fife, 61 Ark. 33, 31 S.W. 740 (1895); Morgan v. St. Louis, I. M. & S. R. Co., 106 Ark. 74, 152 S.W. 1023 (1912); Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).

16-13-202. [Repealed.]

Publisher's Notes. This section, concerning rules, was repealed by Acts 2011, No. 1132, § 6. The section was derived from Civil Code, § 18; Acts 1873, No. 88, § 1 [18], p. 213; C. & M. Dig., § 2231; Pope's Dig., § 2859; A.S.A. 1947, § 22-309.

16-13-203. Supervision of county courts and county, local, and municipal boards or officers.

  1. The circuit courts shall have superintending control over the judgments, final orders, and proceedings of county courts and county boards or officers.
  2. The circuit courts shall have supervision and control over all local, county, and municipal boards or officers in their actions or proceedings in the taxing, assessing, seizing, or sale of property.

History. Civil Code, § 19; Acts 1873, No. 88, § 1 [19], p. 213; C. & M. Dig., §§ 2239, 2240; Pope's Dig., §§ 2867, 2868; A.S.A. 1947, §§ 22-305, 22-306.

Case Notes

Continuing Jurisdiction.

Upon appeal to the circuit court from order of the county court disallowing claim for damages, the circuit court acquired exclusive jurisdiction of the case and thereafter, it had the jurisdiction to issue such orders as were necessary to the exercise of its jurisdiction. Dobbins Bros. v. Anderson, 199 Ark. 635, 135 S.W.2d 325 (1940).

Correction of Illegal Levy.

There is no provision to correct an illegal or erroneous levy by the county court, and, in that case, the taxpayer must look to the superintending control and appellate jurisdiction of the circuit courts over the county courts, and where no remedy by appeal is provided, he is entitled to relief by certiorari or prohibition. Floyd v. Gilbreath, 27 Ark. 675 (1872).

16-13-204. Issuance of writs, orders, or process.

  1. The circuit courts and their judges shall have the power to issue all proper writs, orders, or process in the cases mentioned in §§ 16-13-201(b)(1) and 16-13-203.
  2. The circuit courts and their judges shall have power to issue all writs, orders, and process which may be necessary in the exercise of their jurisdiction, according to the principles and usages of law.

History. Civil Code, § 19; Acts 1873, No. 88, § 1 [19], p. 213; C. & M. Dig., § 2241; Pope's Dig., § 2869; A.S.A. 1947, § 22-307.

Cross References. Power to issue writs and process, § 16-10-106.

Case Notes

Bail.

Where probable cause for detention in a felony matter had been found in municipal court, and the case had been bound over to circuit court, then the circuit court had jurisdiction to reduce the bail set by the municipal court. State v. Pulaski County Circuit Court, 326 Ark. 886, 934 S.W.2d 915 (1996). See also State v. Pulaski County Circuit Court, 327 Ark. 287, 938 S.W.2d 815 (1997).

Restraining Order.

On appeal to the circuit court from order of county court disallowing claim for damages, circuit court had jurisdiction to issue restraining order enjoining county judge from allowing claims except for essential county purposes authorized by law, and in the absence of the circuit judge from the county, the chancellor, acting for him, had jurisdiction to issue the order, but the order would be that of the circuit court, having been made by the chancellor for that court, and would not vest jurisdiction in the chancery court or deprive the circuit court of its jurisdiction, and the continuance or dissolution of the order would be a matter within the jurisdiction of the circuit court. Dobbins Bros. v. Anderson, 199 Ark. 635, 135 S.W.2d 325 (1940).

Cited: Shelton v. State, 44 Ark. App. 156, 870 S.W.2d 398 (1994).

16-13-205. Writs of certiorari — Temporary restraining orders — Enforcement.

  1. The circuit courts shall have power to issue writs of certiorari to any officer or board of officers, city or town council, or any inferior tribunal of their respective counties in order to correct any erroneous or void proceeding or ordinance and to hear and determine the proceeding or ordinance.
    1. Application for a writ of certiorari may be made to the court or the judge thereof in vacation on reasonable notice.
    2. A temporary restraining order may be granted upon the application for a writ of certiorari on bond and good security being given, in a sum to be fixed by the court or the judge in vacation, conditioned that the applicant will perform the judgment of the court.
    1. Affidavits may be read on such applications, and evidence dehors the record may be introduced by either party on the hearing.
    2. The record of any such inferior judicial tribunal shall be conclusive as far as the record extends, but the acts of any executive officer or board of that inferior tribunal shall only be prima facie evidence of their regularity and legality.
  2. The court shall have power in such cases to enforce its judgment by mandamus, prohibition, and other appropriate writs.

History. Civil Code, § 18; Acts 1873, No. 88, § 1 [18], p. 213; 1899, No. 62, § 1, p. 112; C. & M. Dig., §§ 2237, 2238; Pope's Dig., §§ 2865, 2866; A.S.A. 1947, §§ 22-302, 22-303.

Research References

Ark. L. Rev.

Certiorari in Arkansas, 17 Ark. L. Rev. 163.

Judicial Review of Administrative Agencies in Arkansas, 25 Ark. L. Rev. 397.

Case Notes

Boards or Officers.

Certiorari does not lie to review action of election commissioners. Graves v. McConnell, 162 Ark. 167, 257 S.W. 1041 (1924).

Certiorari is available for the purpose of giving opportunity to review decision of a board in removing an officer pursuant to the terms of the statute. McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448 (1942).

Under this section, circuit court had jurisdiction over Eclectic State Medical Board (now Arkansas State Medical Board) and, upon finding that board was failing or refusing to act in accordance with court's order to conduct a hearing, court could act in lieu of board. Schirmer v. Cockrill, 223 Ark. 817, 269 S.W.2d 300 (1954).

City Councils.

In certiorari proceeding to review resolution of city council declaring vacant the position of commissioner of street improvement district, circuit court acquired jurisdiction of the subject matter when the petition was filed and procedural matters, including issuance of writ, could be waived. Jones v. Leighton, 200 Ark. 1015, 142 S.W.2d 505 (1940).

The action of the city commission in revoking a permit to operate a taxicab is subject to review by certiorari in circuit court, and that court's action is subject to review by certiorari in the supreme court. Veteran's Taxicab Co. v. City of Ft. Smith, 213 Ark. 687, 212 S.W.2d 341 (1948).

Discretion of Court.

Certiorari, being a writ of discretion, may be denied by the court to which application is made where the law does not expressly or by clear implication direct that it shall be issued. McAllister v. McAllister, 200 Ark. 171, 138 S.W.2d 1040 (1940).

Unless trial court abuses its discretion in denying or granting a writ of certiorari, Supreme Court will not reverse that decision. Ricci v. Poole, 253 Ark. 324, 485 S.W.2d 728 (1972).

The writ is not one of right, but is to be granted or denied within the discretion of the court from which it is sought. Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988).

Evidence.

Where the writ of certiorari is limited as at common law, the court is confined in its review of the evidence to the determination of whether there was substantial evidence to sustain the judgment. Hall v. Bledsoe, 126 Ark. 125, 189 S.W. 1041 (1916).

Records of a legislative body are conclusive and, on application for certiorari, evidence not appearing in the record would be inadmissible. McAllister v. McAllister, 200 Ark. 171, 138 S.W.2d 1040 (1940).

On hearing the writ of certiorari, circuit court does not proceed de novo and try the case as if it had never been heard in the inferior court; the office of the writ is to review errors of law, one of which may be the legal sufficiency of the evidence. McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448 (1942).

On certiorari, circuit court may hear evidence dehors the record in order to ascertain what evidence was heard by the inferior tribunal and to determine whether the evidence was legally sufficient to sustain the judgment of that tribunal. McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448 (1942).

Neither circuit court nor Supreme Court had authority on writ of certiorari to pass on the question of the preponderance of the evidence supporting action of agency. McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448 (1942).

Hearing.

A hearing is contemplated on a petition for certiorari under this section. Carrier v. Beck, 227 Ark. 92, 296 S.W.2d 446 (1956).

Inferior Tribunals.

The errors of a mayor's court, having jurisdiction of a case of assault and battery, in overruling a plea of former conviction and refusing to dismiss for want of a bond for costs, are not jurisdictional and cannot be corrected on certiorari. Salem v. Colley, 70 Ark. 71, 66 S.W. 195 (1901).

Judgment in action of writ of certiorari, refusing to quash a judgment of a justice of the peace, was proper where petition merely alleged that petitioner had a meritorious defense but did not show the facts constituting the defense. Overton v. Alston, 199 Ark. 96, 132 S.W.2d 834 (1939).

A wife's petition for certiorari to quash a divorce decree would be denied where the circumstances and conditions which arose since the decree would render it inequitable and unjust to an innocent third party to grant the writ, and because the petition did not allege fraud or inequitable conduct in obtaining the decree or a defense to the divorce action. Whaley v. Whaley, 213 Ark. 232, 209 S.W.2d 871 (1948).

Other Remedy.

The writ of certiorari should not be issued in any case where there is, or has been, a right to appeal, unless the opportunity for appealing has been lost without fault of the petitioner. Payne v. McCabe, 37 Ark. 318 (1881). See Vance v. Gaylor, 25 Ark. 32 (1867); Wyatt & Hensley v. Burr, 25 Ark. 476 (1869); Smith v. Parker, 25 Ark. 518 (1869); Vance v. City of Little Rock, 30 Ark. 435 (1875); Burke v. Coolidge, 35 Ark. 180 (1879); Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559 (1889).

Judgment will not be quashed if there was other adequate remedy. Aven v. Wilson, 61 Ark. 287, 32 S.W. 1074 (1895); Gates v. Hayes, 69 Ark. 518, 64 S.W. 271 (1901).

Certiorari will not lie at the instance of the creditors of a decedent's estate to set aside the classification of a claim allowed by the probate court in favor of another creditor as the appeal by the personal representative provided in such case furnishes an adequate remedy. Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S.W. 1064 (1896).

The Department of Human Services (DHS) was not entitled to a writ of certiorari ordering the Claims Commission to dismiss a claim pending before it since the pending claim was within the jurisdiction of the Claims Commission and the DHS had an adequate remedy of appealing the Claims Commission's ruling to the General Assembly. Hanley v. Arkansas State Claims Comm'n, 333 Ark. 159, 970 S.W.2d 198 (1998).

Record.

On certiorari, the record is conclusive as far as it extends. Countz v. Markling, 30 Ark. 17 (1875).

Clerk should return transcript of record with his response. Phillips v. Desha, 58 Ark. 250, 24 S.W. 249 (1893).

Though equalization board had finally adjourned when assessment of taxpayer's mineral rights were made, taxpayer was not without right of redress since he had the right, by certiorari from the circuit court directed to the county clerk, to have the record brought up for review and correction. Stout Lumber Co. v. Parker, 197 Ark. 65, 122 S.W.2d 180 (1938).

Scope of Writ.

This section does not enlarge the writ of certiorari into an appeal or writ of error for the correction of mere errors in judicial proceedings; the practice is still to affirm or quash the judgment on the trial of the certiorari. St. Louis, I.M. & S. Ry. v. Barnes, 35 Ark. 95 (1879); North Little Rock Transp. Co. v. Sangster, 210 Ark. 294, 195 S.W.2d 549 (1946).

The writ of certiorari cannot be used by the circuit courts for the correction of errors of inferior courts as upon appeal; but where the inferior judgment shows upon its face that the court had no jurisdiction of the subject matter, or the person of the defendant, it may be quashed upon certiorari. State ex rel. Izard County v. Hinkle, 37 Ark. 532 (1881); Street v. Stuart, 38 Ark. 159 (1881); Baskins v. Wylds, 39 Ark. 347 (1882); Haynes v. Semmes, 39 Ark. 399 (1882); Pettigrew v. Washington County, 43 Ark. 33 (1884); Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559 (1889).

Certiorari cannot be converted into injunction suit. Moore v. Turner, 43 Ark. 243 (1884).

A writ of certiorari may be quashed after the return when it is made to appear that it will not serve the ends of justice; but it will not be quashed where the return shows that the bill of exceptions (now abolished) as certified does not conform to that which was originally filed. Martin v. St. Louis, I.M. & S. Ry., 53 Ark. 250, 13 S.W. 765 (1890).

A judgment void upon its face will be quashed on certiorari. Chevrolet Motor Co. v. Landers Chevrolet Co., 183 Ark. 669, 37 S.W.2d 873 (1931).

The scope of a writ of certiorari at common law is not enlarged by this section. McAllister v. McAllister, 200 Ark. 171, 138 S.W.2d 1040 (1940).

Writ of certiorari can be used by the circuit court in the exercise of its appellate power and superintending control over inferior courts, where the tribunal to which it is issued has exceeded its jurisdiction, where party applying for it had the right of appeal but lost it through no fault of his own, and where circuit court has superintending control over a tribunal which has proceeded illegally and no other mode has been provided for directly reviewing its proceedings; but it cannot be used as a substitute for an appeal or writ of error, for the correction of errors or irregularities in proceedings of inferior courts. McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448 (1942).

Neither mandamus, certiorari, nor prohibition may be used as a substitute for appeal. Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988).

Cited: Eclectic State Medical Bd. v. Beatty, 203 Ark. 294, 156 S.W.2d 246 (1941); Carrier v. Beck, 227 Ark. 92, 296 S.W.2d 446 (1956).

16-13-206. Term of court — Court to remain open.

    1. The circuit court of each county and of each division in each county having two (2) or more divisions of circuit court shall be open by operation of law at the beginning of each regular term of that court, as fixed by law, and shall remain open until the beginning of the next term of the court.
    2. When any circuit court is duly convened for a regular term, the court shall remain open for all criminal, civil, or special proceedings until its next regular term.
  1. No term of the court shall lapse by reason of the fact that the court was not formally opened at the beginning of the term.

History. Acts 1943, No. 202, § 1; 1951, No. 207, § 1; 1955, No. 49, § 4; A.S.A. 1947, §§ 22-311, 22-312.

Cross References. Change of term not to affect proceedings, § 16-10-113.

County court terms not to conflict with terms of circuit court, § 16-15-103.

Case Notes

Cited: Bean v. Roberts, 240 Ark. 9, 397 S.W.2d 784 (1966); Higginbotham v. State, 251 Ark. 832, 475 S.W.2d 522 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Renfro v. City of Conway, 260 Ark. 852, 545 S.W.2d 69 (1977).

16-13-207. Sessions.

    1. Each circuit court may by a rule or order fix times and places when the court will be in session for the transaction of business. However, the scheduled sittings of the court shall not preclude the transaction of business by the court at other times or places.
    2. No jury, however, shall be convened at a place other than the regular and customary place for holding court in each county or district thereof, as the case may be.
  1. When any circuit court is duly convened for a regular term, the court may be in session at any time the judge thereof may deem necessary. However, no session of the court shall interfere with any other court to be held by the same judge.
  2. Two (2) or more circuit courts of the same district may be concurrently in session.

History. Acts 1943, No. 202, § 1; 1951, No. 207, § 1; 1955, No. 49, § 4; A.S.A. 1947, §§ 22-311, 22-312.

Case Notes

Continuance.

Motion of defendant for a continuance on the ground that court was not properly in session, since court was in session in another district in the same county, was properly overruled, since evidence failed to show that the court was in session in another district in the same county, and even if the court was in session in another district, that did not interfere with the holding of session of any other court. McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949).

Discretion of Court.

When the regular term of court has been convened, the judge at his discretion may adjourn and convene court as he “may deem necessary.” Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948).

Cited: Bean v. Roberts, 240 Ark. 9, 397 S.W.2d 784 (1966); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Renfro v. City of Conway, 260 Ark. 852, 545 S.W.2d 69 (1977).

16-13-208. Adjournments — Recess.

There shall be no adjournments of circuit courts. However, courts shall be deemed in recess while not engaged in the transaction of business.

History. Acts 1951, No. 207, § 1; A.S.A. 1947, § 22-312.

Case Notes

In General.

Under this section, there is no longer any such thing as a final adjournment after the first session of each term, for the court remains open until the last instant of each regular term. Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961).

Cited: Bean v. Roberts, 240 Ark. 9, 397 S.W.2d 784 (1966); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Renfro v. City of Conway, 260 Ark. 852, 545 S.W.2d 69 (1977).

16-13-209. Notice of proceedings.

Where the defendant or respondent has answered or otherwise pleaded and if the time has not been set by the court, all interested parties, together with their attorneys, shall receive notice from the clerk of the court of any proceeding affecting their rights and shall be given time to prepare to meet the proceeding. However, this section shall not apply in cases wherein all interested parties are required by law to take notice.

History. Acts 1943, No. 202, § 1; 1955, No. 49, § 4; A.S.A. 1947, § 22-311.

Case Notes

In General.

This section does not require that the court clerk give notice to all interested parties in all cases, but only in those cases where the time has not been fixed by the court and in those cases where parties are not required by law to take notice. Harris v. State, 6 Ark. App. 89, 638 S.W.2d 698 (1982).

Due Process.

While a circuit court is authorized to affirm a judgment of a lower court if the appellant fails to appear when his case has been scheduled for trial, due process dictates that appellant be afforded proper notice and an opportunity to be heard in a proceeding involving the deprivation of life, liberty or property; that interested parties as well as their attorneys receive notice from the clerk of the court of proceedings scheduled; and that time shall be afforded counsel to prepare for trial. Rawls v. State, 266 Ark. 919, 587 S.W.2d 602 (Ct. App. 1979).

Where a bonding company failed to show that it was prejudiced by the lack of notice of an original bond forfeiture order prior to the entry of the nunc pro tunc order correcting the name of the bonding company that was subject to the same, it could not prove that its due process rights were violated; because the nunc pro tunc judgment was correct, reflecting an accurate correction of the clerical error in the earlier order, nothing would be gained by setting aside the order and immediately reentering it. Holt Bonding Co. v. State, 353 Ark. 136, 114 S.W.3d 179, 2003 Ark. LEXIS 250 (2003).

Failure to Give Notice.

Circuit court has no power to render a default judgment, without notice, in a county other than that in which the action is pending. Howell v. Van Houten, 227 Ark. 84, 296 S.W.2d 428 (1956).

Record.

If court was not in session on a certain day, authority to hear witnesses and make their testimony a part of the record in the original proceeding was lacking unless this section had been complied with or no notice had been waived. Vaccinol Prods. Corp. v. State ex rel. Phillips County, 201 Ark. 1066, 148 S.W.2d 1069 (1941) (decision under prior law).

Sufficiency.

Notice held to be insufficient. Renfro v. City of Conway, 260 Ark. 852, 545 S.W.2d 69 (1977); Davis v. Univ. of Ark. Medical Ctr. & Collection Serv., Inc., 262 Ark. 587, 559 S.W.2d 159 (1977); Rawls v. State, 266 Ark. 919, 587 S.W.2d 602 (Ct. App. 1979); Prine v. State, 267 Ark. 304, 590 S.W.2d 25 (1979).

Notice held sufficient. Harris v. State, 6 Ark. App. 89, 638 S.W.2d 698 (1982).

Since defense attorney had two days notice before the trial date and knew that the case would be reset for a day within ten days or two weeks and there was no reason shown for the attorney's stated inability to contact defendant in Iowa so that he could be present for trial, statutory and due process requirements were met. Whitmire v. State, 50 Ark. App. 34, 901 S.W.2d 20 (1995).

16-13-210. Circuit judge may hear and adjudicate causes pending in the circuit.

    1. Any circuit judge of this state, at any time while mentally and physically competent and physically present in the geographical area of the judicial circuit which he or she serves as judge, may hear, adjudicate, or render any appropriate order with respect to any cause or matter pending in any circuit court over which he or she presides, subject to such notice of the time, place, and nature of the hearing being given as may be required by law or by rule or order of the court.
    2. However, no contested case may be tried outside the county of the venue of the case, except upon the agreement of the parties interested.
  1. A circuit judge assigned to a cause or matter, either by regular docket assignment or by Supreme Court order, may render or sign orders in that cause or matter in a geographical location other than the judicial circuit in which the cause or matter is pending.
  2. A retired circuit judge, chancellor, or circuit-chancery judge assigned to a cause or matter by Supreme Court order may render or sign orders in that cause or matter in a geographical location other than the judicial circuit in which the cause or matter is pending.

History. Acts 1961, No. 81, § 1; A.S.A. 1947, § 22-313; Acts 2003, No. 1000, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Practice, Procedure, and Courts, Power to Sign Orders Outside Judicial Circuit, 26 U. Ark. Little Rock L. Rev. 447.

Case Notes

In General.

Section 16-88-105, this section, and Ark. Const., Art. 7, § 13 [repealed], provide that a circuit judge may act in a criminal case only when he is within the geographical area of the judicial district in which the charge is filed; it has been so for over 150 years. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993).

A circuit judge has the authority to preside over proceedings in any courtroom, in any county, within the judicial district for which that judge was elected. Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994).

The constitution and applicable statutes provide that a circuit judge may act in a criminal case only when he is within the geographical area of the judicial district in which the charge is filed. State v. Vaughan, 343 Ark. 293, 33 S.W.3d 512 (2000).

Charge and Sentence in Different Districts.

It was not error to charge the defendant with having committed a crime in one district in a county in the circuit, and have him sentenced by the circuit judge in another. Renfro v. State, 264 Ark. 601, 573 S.W.2d 53 (1978).

Dismissal of Action.

Court granted physician's petition for a writ of certiorari in administratrix's third medical negligence and wrongful death action as the trial judge's reversal of his order dismissing the administratrix's second complaint, which was assigned to another judge, had no bearing on whether the trial judge could make a ruling on the motion to dismiss the third complaint. Jordan v. Circuit Court, 366 Ark. 326, 235 S.W.3d 487 (2006).

16-13-211. Proceedings during vacation of court or in chambers.

  1. The circuit judges of the circuit courts constituting the judicial districts over which they have jurisdiction and preside are empowered and authorized to deliver opinions and make and sign judgments in cases taken under advisement and submitted to that court at a term of court, or by consent and agreement of interested parties in vacation, either in chambers or at the regular place of holding court in the respective counties constituting the judicial district.
  2. By consent of interested parties and counsel, where a jury is waived and a cause is submitted for trial before the court sitting as a jury, the trial and hearing may be held in chambers in the county of the residence of the regular presiding circuit judge.
  3. Consent judgments, ex parte proceedings, and matters not requiring the services of a jury may be made and hearings had in chambers in the county of the residence of the regular presiding circuit judge.
  4. Any opinion, judgment, or order rendered and made under and pursuant to this section shall be signed by the presiding circuit judge. This opinion, judgment, or order shall become effective when entered of record in the county where the action or matter originated or was filed.
  5. The purpose of this section is to better facilitate the disposition of court matters where the services of a jury are not required and to expedite, by consent of interested parties and counsel, legal matters and actions which otherwise would be delayed until the regular convening of a term of court and to save the costs of such regular convening.

History. Acts 1949, No. 257, §§ 1-5; A.S.A. 1947, §§ 22-314 — 22-318.

Case Notes

Applicability.

This section applies only to actions of the court in vacation and would not require that the trial judge sign the judgment sentencing a criminal defendant. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977).

Consent of Interested Parties.

Persons who were not parties to action, did not intervene therein, did not employ attorney to act for them, and did not even communicate their desires to parties or their attorneys, could not have judgment in action set aside on ground that parties to action committed fraud on court by agreeing to try action in chambers in county of judge's residence. Morrell v. Hill, 218 Ark. 552, 237 S.W.2d 467 (1951).

16-13-212. [Repealed.]

Publisher's Notes. This section, concerning counterclaims and setoffs exceeding inferior court's jurisdiction, was repealed by Acts 1987, No. 431, § 8. The section was derived from Acts 1963, No. 488, §§ 2-5; A.S.A. 1947, §§ 27-2010—27-2013.

16-13-213. [Repealed.]

Publisher's Notes. This section, concerning special judges, was repealed by Acts 2003, No. 1185, § 75. The section was derived from Civil Code, § 761; C. & M. Dig., § 2226; Pope's Dig., § 2854; A.S.A. 1947, § 22-339.

16-13-214. Disqualification of judges.

No judge of the circuit court shall sit on the determination of any case in which he or she is interested in the outcome, is related to any party within the third degree of consanguinity or affinity, has been of counsel in the case or presided over it in any inferior court, or is otherwise disqualified under the Arkansas Code of Judicial Conduct, unless the parties waive the disqualification as provided therein.

History. Rev. Stat., ch. 43, § 24; C. & M. Dig., §§ 2107, 6400; Pope's Dig., §§ 2711, 8362; A.S.A. 1947, § 22-113; Acts 2003, No. 1185, § 76.

Publisher's Notes. Rev. Stat., ch. 43, § 24, is also codified as §§ 16-13-312 [repealed], 16-14-103 [repealed], 16-15-111, and 16-19-206 [repealed].

Cross References. Computing degrees of consanguinity, § 28-9-212.

Disqualification of judges, Ark. Const., Amend. 80, § 12.

Research References

Ark. L. Rev.

Brill, The Arkansas Code of Judicial Conduct, 35 Ark. L. Rev. 247.

U. Ark. Little Rock L. Rev.

Justice Robert L. Brown, Essay: Judicial Recusal: It’s Time to Take Another Look Post-Caperton, 38 U. Ark. Little Rock L. Rev. 63 (2015).

Case Notes

Purpose.

This section and § 16-13-101 tend to carry out the intention of Ark. Const., Art. 7, § 20 [repealed]. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

Continuance.

It is no ground of error that a judge who was incompetent to sit in a cause took jurisdiction of it so far as to grant a continuance, for it would have been continued by operation of law, without action of the judge, he being incompetent to try it. Stone v. Robinson, 9 Ark. (4 English) 469 (1849).

Grounds.

A trial judge is not disqualified in a criminal case because the defendant claims to have entered a plea of guilty upon an agreement with the judge and prosecuting attorney that certain other pending indictments would be dismissed where the agreement was denied by the judge. Hudspeth v. State, 188 Ark. 323, 67 S.W.2d 191 (1933), cert. denied, Hudspeth v. Arkansas, 296 U.S. 642, 56 S. Ct. 178, 80 L. Ed. 456 (1935).

—Acting as Counsel.

The objection that a judge was disqualified by reason of having appeared for the plaintiffs in a previous suit against the defendants upon the same cause of action which had been dismissed for want of prosecution will be deemed waived where the case was allowed to proceed to judgment without calling the judge's attention to his disqualification. Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919).

—Bias or Prejudice.

Prejudice is not ground for disqualifying judge. Jones v. State, 61 Ark. 88, 32 S.W. 81, 1895 Ark. LEXIS 81 (1895).

Evidence did not establish bias or prejudice warranting disqualification of judge. Norman v. State, 236 Ark. 476, 366 S.W.2d 891 (1963), cert. denied, Norman v. Arkansas, 375 U.S. 933, 84 S. Ct. 337, 11 L. Ed. 2d 265 (1963); Van Hook v. Van Hook, 270 Ark. 27, 603 S.W.2d 434 (1980); Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983); Welch v. State, 283 Ark. 281, 675 S.W.2d 641 (1984).

The fact that a judge may have, or may develop during the trial, an opinion, a bias or a prejudice does not make the trial judge so biased and prejudicial as to require his disqualification in further proceedings. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).

Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge; the reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. Thus, absent some objective demonstration of prejudice, it is a communication of bias which will cause an appellate court to reverse a trial judge's decision on disqualification. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).

Arkansas Supreme Court Justices were entitled to a writ of mandamus to dismiss an action filed by a trial judge after the justices permanently barred him from presiding over death penalty cases based on his alleged anti-death penalty bias in violation of Ark. Code Jud. Conduct 2.11; extraordinary circumstances warranted the writ and the judge stated no plausible claims for relief. In re Kemp, 894 F.3d 900 (8th Cir. 2018), cert. denied, 139 S. Ct. 1176, 203 L. Ed. 2d 199 (2019).

—Interest.

The interest which disqualifies a judge is not the kind of interest which one feels in public proceedings or public measures; it must be a pecuniary or property interest or one affecting his individual rights; and the liability of pecuniary gain or relief must occur upon the event of the suit and not result remotely in the future from the general operation of laws and government upon the status fixed by the decision. Osborne v. Board of Imp., 94 Ark. 563, 128 S.W. 357 (1910).

A judge who was the victim of alleged criminal libel by publisher was disqualified from presiding as judge in proceedings under several indictments returned against the publisher since he himself was a party within the necessary degree as used in this section and Ark. Const., Art. 7, § 20 [repealed]. Copeland v. Huff, 222 Ark. 420, 261 S.W.2d 2 (1953).

The exchange of circuits was a proceeding in which the self-disqualified trial judge should not have exercised the discretionary powers of his office since he was personally affected. State v. George, 250 Ark. 968, 470 S.W.2d 593 (1971).

Judge passing on compromise settlement between injured employee and tort-feasors in which insurance carrier had subrogation rights did not have a disqualifying interest in the case because he had pending an action for injury to his own hand involving the same liability carrier. Liberty Mut. Ins. Co. v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974).

The “interest” which is disqualifying under this section, § 16-13-101, and Ark. Const., Art. 7, § 20 [repealed], is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge, and the liability, gain or relief to the judge must turn on the outcome of the suit. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

Motion for recusal was properly denied where the trial judge had no interest in underlying action beyond that of general interest which any other taxpayer or property owner had, and thus, he did not have a personal or pecuniary interest that justified disqualification. Worth v. Benton County Circuit Court, 351 Ark. 149, 89 S.W.3d 891 (2002).

—Relationship.

The husband of the aunt is related to the husband of her niece within the fourth degree of affinity. Kelly v. Neely, 12 Ark. 657 (1852).

A circuit judge is not disqualified to preside where he is related by affinity, within the constitutional degrees, to one of the parties in a cause who is merely a trustee and has no interest in the determination of the cause. Fowler v. Byers, 16 Ark. (3 Barber) 196 (1855).

An application to the Supreme Court, in the first instance, for a writ of certiorari to a justice of the peace because the circuit judge is of kin to the petitioner, and disqualified, should show how he was related. Ex parte Allston, 17 Ark. (4 Barber) 580 (1856).

A judge is disqualified when related within prohibited degree to attorney in the case who has a contingent interest in that his fee is dependent upon the determination of the cause. Johnson v. State, 87 Ark. 45, 112 S.W. 143 (1908).

Notwithstanding the conclusion that the trial judge acted in utmost good faith, a person convicted of murder was entitled to a new trial when he was in ignorance, at the time of trial, of the fact that the judge's wife was a cousin of the victim. Byler v. State, 210 Ark. 790, 197 S.W.2d 748 (1946).

Murder defendant who pleaded guilty after the death penalty was waived was not prejudiced by a father-in-law/son-in-law relationship between the judge and one of defendant's court-appointed counsel. Fuller v. State, 256 Ark. 998, 511 S.W.2d 474 (1974).

When the relationship is within the proscribed limits, neither the frequency of contact nor the closeness of the individuals bears on the result. Morton v. Benton Publishing Co., 291 Ark. 620, 727 S.W.2d 824 (1987).

Where one spouse's relationship with a judge comes within the prohibition of Ark. Const., Art. 7, § 20 [repealed], this section, and §§ 16-13-312 [repealed], 16-14-103 [repealed], 16-15-111, or 16-19-206 [repealed], the other spouse shares the same degree of relationship by affinity to the judge. Morton v. Benton Publishing Co., 291 Ark. 620, 727 S.W.2d 824 (1987).

Presumption.

Where the record fails to show that the court acted on a suggestion of disqualification, it will be presumed that he found that he was not disqualified. Davis v. Atkinson, 75 Ark. 300, 87 S.W. 432 (1905).

Cited: Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978).

16-13-215. Entry of judge into armed services — Discharge — Vacancy.

  1. The entry of a regular judge into the armed services of the United States shall not have the effect of vacating his or her office, but during the period of his or her service, he or she shall not be entitled to receive or enjoy the salary or emoluments of the office.
  2. Upon certifying to the Governor his or her discharge from the service, the judge shall be entitled to resume his or her office and thereafter to receive and enjoy the salary and emoluments until a regular judge shall be elected and qualified.
  3. In the event a regular judge enters the armed services of the United States and is killed upon the field of battle, dies, is reported missing for twelve (12) months, or is unheard from for a period of twelve (12) months so that his or her whereabouts are unknown, his or her office shall become vacant upon proclamation by the Governor of such fact, and such vacancy shall be filled as provided by law.

History. Acts 1943, No. 290, § 3; A.S.A. 1947, § 22-347.

Cross References. Military leave of absence, election of emergency circuit judge, § 21-4-306.

16-13-216. Clerk and court reporter — Assistants — Salaries.

  1. The circuit judge of any judicial district which had a total population between forty-two thousand (42,000) and forty-four thousand (44,000) according to the 1960 Federal Decennial Census may appoint for the district some person who is either a lawyer, or who has served as an official court reporter prior to February 27, 1968, to serve as clerk and court reporter for the judicial district.
    1. The official so provided for in this section for such a judicial district shall receive a salary of five thousand four hundred dollars ($5,400) per year for such work.
    2. The salary is to be paid in monthly or quarterly payments by the various counties of the judicial district out of proper and appropriate funds and as set out in this section.
    1. The circuit judge of the judicial circuit is authorized, empowered, and directed to employ and appoint a person to assist the clerk or court reporter at the request of the clerk or court reporter at wages to be designated by the circuit judge.
    2. The wages of the assistant shall be paid out of the salary of the clerk or court reporter appointed under this section to serve the judicial district.
    1. The annual salary of the clerk and court reporter shall be paid by the respective counties comprising the judicial districts which may be affected by this section according to an assessment or assessments to be fixed, made, determined, and proportioned among the counties comprising the judicial district by the presiding judge of the judicial district at such time as he or she may deem proper and necessary.
    2. The proportioning, fixing, prorating, and determining of the amounts each county shall pay shall be determined on a basis of assessed valuation of the property in the counties or in the district as a whole.
    3. The salary shall be paid as provided in subsection (b) of this section by the various counties from appropriate county funds.
  2. Nothing in this section shall affect the fees chargeable by court reporters of the judicial districts with a total population of between forty-two thousand (42,000) and forty-four thousand (44,000) according to the 1960 Federal Decennial Census for transcripts and such services as may be now in force and effect.

History. Acts 1961, No. 14, § 1; 1968 (1st Ex. Sess.), No. 66, § 1; A.S.A. 1947, § 22-361.

16-13-217. Law clerks — Service as court reporters and masters.

    1. A circuit judge of any judicial district, any county of which has a population of two hundred forty thousand (240,000) or more according to the most recent federal census, may appoint one (1) law clerk for the county who shall be a licensed attorney or a graduate of a law school approved by the State Board of Law Examiners.
    2. In any judicial district having more than one (1) division of a circuit court, the appointment of the law clerk shall be by concurrence of a majority of the judges of that district.
  1. The law clerk may, in addition, serve as court reporter for the court or any division of the court.
  2. Each circuit judge of a judicial district having a population of two hundred forty thousand (240,000) or more according to the most recent federal census may appoint a law clerk who may also serve as master who shall be a graduate of a law school approved by the State Board of Law Examiners.
  3. The law clerk shall serve at the discretion and under the direction of the circuit judge to whom he or she is assigned.
  4. The powers and duties of the law clerk shall be to administer oaths and affirmations; to take acknowledgments, affidavits, and depositions; to conduct pretrial and prejudgment hearings; and to make recommendations for dispositions to the circuit judge.
  5. A law clerk may be assigned such additional duties at the discretion of the circuit judge as are not inconsistent with the Constitution and laws of the State of Arkansas.
    1. The salary of a law clerk for circuit court provided for under this section shall be the same salary as provided for a circuit court reporter in the district in which the law clerk is appointed.
    2. Should the law clerk serve both as court reporter and law clerk, he or she shall receive in addition thereto the sum of six hundred dollars ($600) per annum.

History. Acts 1961, No. 14, § 1; 1963, No. 29, § 1; 1968 (1st Ex. Sess.), No. 66, § 1; 1979, No. 580, §§ 1-3; A.S.A. 1947, §§ 22-361 — 22-362.

Case Notes

Judicial Authority.

The letter opinion of the judge's law clerk informing the defendant that his petition for post-conviction relief was denied was invalid because a trial judge may not delegate his judicial authority to a law clerk, and the General Assembly has not attempted to give law clerks the power to decide cases. Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986).

16-13-218. [Repealed.]

Publisher's Notes. This section, concerning case coordinators, was repealed by Acts 2003, No. 1185, § 77. The section was derived from Acts 1975, No. 68, § 1; A.S.A. 1947, § 22-364.

16-13-219. Court expenses — Payment.

  1. The expenses accruing in the circuit courts shall be paid out of the county treasury in which each court is held in the same manner as other demands.
    1. These expenses shall include reasonable sums for the employment of secretaries by circuit judges and for reasonable office expenses and office supplies of the circuit judges.
    2. In the event any circuit judge employs a secretary under the provisions of this section, the salary of each secretary shall be fixed by the quorum court of the county or counties involved.
  2. In any case where a particular judicial district is comprised of more than one (1) county, the expenses shall be prorated among the counties comprising the district in such manner as the circuit judge may by order direct.

History. Rev. Stat., ch. 43, § 47; C. & M. Dig., § 2118; Pope's Dig., § 2722; Acts 1977, No. 751, § 1; A.S.A. 1947, § 22-125.

Publisher's Notes. Rev. Stat., ch. 43, § 47, is also codified as §§ 16-13-324, 16-14-109, and 16-15-113.

Case Notes

Jurors' Fees.

The compensation of jurors is part of the current expense of holding the circuit court and is not taxable as costs. Independence County v. Dunkin, 40 Ark. 329 (1883).

16-13-220. Counsel for incompetents.

In addition to all other authority granted by law, every circuit court is authorized to appoint legal counsel to represent a person the court deems incompetent due to minority or mental incapacity in civil and criminal actions.

History. Acts 1987, No. 96, § 2; 2003, No. 1185, § 78.

Publisher's Notes. Acts 1987, No. 96, § 2, is also codified as § 16-13-325.

Research References

U. Ark. Little Rock L.J.

Survey — Attorneys, 10 U. Ark. Little Rock L.J. 539.

16-13-221. Legal counsel to personnel.

The Attorney General shall serve as the legal counsel to probation officers and support personnel of circuit courts and shall represent them in any action brought as a result of their official duties.

History. Acts 1989, No. 433, § 1.

16-13-222. Private hearings by circuit courts.

    1. The circuit courts of the various judicial districts of the state shall hear the case or matter in privacy, upon application of all litigants to a divorce action, proceeding for alimony or separate maintenance, proceeding touching the maintenance or custody of children, proceeding for annulment of marriage, adoption proceeding, or any other proceeding pertaining to domestic relations.
    2. To this end, circuit judges are empowered to exclude from any such hearing and from the courtroom all individuals other than the litigants, their counsel, and the officers of the court.
  1. A circuit judge, upon his or her own initiative, may hear such cases and matters in chambers or in privacy where he or she deems it in the best interests of the parties and the best interests of society.

History. Acts 2003, No. 1185, § 79.

16-13-223. Sale and confirmation of property.

A circuit court may make orders for the sale of property in the custody of the court and may confirm the sale, but the sale shall not be confirmed until all parties have reasonable notice and an opportunity to be present and resist the confirmation.

History. Acts 2003, No. 1185, § 79.

16-13-224. Temporary exchange of districts — Assignment.

  1. Circuit judges may temporarily exchange judicial districts by joint order, and any circuit judge who consents may be assigned to another district for temporary service under rules adopted by the Supreme Court.
  2. When a circuit judge is serving temporarily in a judicial district other than his or her own, he or she shall not thereby be disqualified from conducting court or performing the usual and customary functions of his or her office in his or her own judicial district.
  3. A circuit judge on temporary duty by exchange or assignment:
    1. Shall have the same power and authority as a regularly elected or appointed judge for the judicial district; and
    2. May sign any judgment, order, document, or other paper relating to any case heard by the judge, either in the judicial district where the cause or matter is pending or in his or her own district, and the judgment, order, document, or other paper shall for all intents have the same effect, irrespective of the district in which it is signed.
  4. The sheriff and the circuit clerk in the county where a circuit judge is on temporary duty by exchange or assignment shall perform the same duties and functions in carrying out the operation of the court as they perform in cases assigned to the regularly elected or appointed judges.
  5. If a circuit judge who is on temporary duty by exchange or assignment needs a jury for the disposition of any case, he or she may use the regular or special panel of the circuit court of that county. If the regular and special panels are exhausted, he or she may summon the circuit clerk and have him or her select the required number of qualified jurors.

History. Acts 2003, No. 1185, § 79; 2017, No. 600, § 3.

Amendments. The 2017 amendment substituted “circuit clerk and have him or her” for “jury commissioners previously appointed and have them” in the second sentence of (e).

16-13-225. Juvenile cases — Information system.

  1. The Director of the Administrative Office of the Courts shall develop for the circuit courts a case-based management information system, capable of capturing information at each stage of the process of juvenile cases, with the capacity to serve basic administration, operations, planning, evaluation, and monitoring needs.
  2. A judge of the circuit court designated to hear juvenile cases in the district plan adopted pursuant to Order 14 of the Administrative Orders of the Supreme Court shall designate an employee of the court to be responsible for the timely completion and submission of information to the Administrative Office of the Courts.

History. Acts 2003, No. 1185, § 79.

16-13-226. Installment payments by a criminal defendant in circuit court — Priority of payment.

  1. An installment payment by a criminal defendant to a circuit court shall initially be deemed to be a collection of court costs until the court costs have been collected in full, with any remaining installment payments representing collections of restitution, and then any applicable fines.
  2. If court costs, restitution, and fines are fully paid, all remaining installment payments shall be allocated to remaining amounts due as ordered by the circuit court.
  3. A municipal or county governing body that adopted municipal or county legislation before January 1, 2017, to provide an alternative method of installment payment allocation as then authorized by state law shall remain in effect until repealed by the municipal or county governing body.

History. Acts 2017, No. 885, § 1.

Subchapter 3 — Juvenile Division of Circuit Court Generally

Publisher's Notes. Acts 1994 (2nd Ex. Sess.), No. 66, § 1, provided:

“(a) There is hereby created the position of Chancery Judge at Large, which shall be appointed by the Governor as authorized by law and assigned by the Chief Justice of the Arkansas Supreme Court pursuant to Arkansas Code Annotated § 16-10-101 from those Chancery Judges who lost two years of their elected terms pursuant to the United States District Court Consent Decree in the case of Eugene Hunt et al. v. State of Arkansas et al.

“(b) The Chancery Judge at Large shall have original jurisdiction in all matters of equity in judicial districts where assigned and shall serve until December 31, 1996, when the provisions of this act shall expire.

“(c) The Chancery Judge at Large shall receive compensation at the same rate as fixed by law for regularly elected Chancery Judges.

“(d) The Chancery Judge at Large may appoint a court reporter as provided by law, whose salary and expenses shall be paid from the Court Reporter's Fund.”

Effective Dates. Acts 1989, No. 418, § 8: Mar. 8, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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.), Nos. 61 and 62, § 8: Aug. 26, 1994. Emergency clause provided: “It is hereby found and determined by the General Assembly that in order to address the problem of juvenile crime it is necessary to authorize the commitment of delinquent juveniles to juvenile detention facilities; that present law now limits to two thousand dollars ($2,000) the amount a juvenile can be required to pay as restitution to victims, and that amount is becoming increasingly too low; that this act remedies both situations and should go into effect immediately in order to better protect the citizens of this state from the acts of delinquent juveniles and more adequately compensate the victims through restitution. 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. 321, § 5: Mar. 3, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that juvenile officers serve a vital function; that the present law concerning state reimbursement to counties for a portion of the cost of providing juvenile officers is inadequate; and that this act is immediately necessary in order to adequately provide for this necessary function. 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. 460, § 8: 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 2005, No. 1398, § 7: July 1, 2005. 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, 2005 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, 2005 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, 2005.”

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.”

Acts 2016, No. 87, § 7: July 1, 2016. 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, 2016 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, 2016 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, 2016.”

Research References

Ark. L. Notes.

Brill, Law and Equity in Arkansas: Will Liles v. Liles Lead Us Out of the Morass?, 1987 Ark. L. Notes 1.

Brill, The Maxims of Equity, 1993 Ark. L. Notes 29.

Ark. L. Rev.

Minimum Standards of Judicial Administration — Arkansas, 5 Ark. L. Rev. 12.

The Arkansas Judiciary at the Crossroads, 17 Ark. L. Rev. 259.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

La Dolce Vita — Law and Equity Merged at Last! III. A Continuing Saga, 24 Ark. L. Rev. 162.

Cox and Newbern, New Civil Procedure: The Court That Came in From the Code, 33 Ark. L. Rev. 1.

Killenbeck, And Then They Did …? Abusing Equity in the Name of Justice, 44 Ark. L. Rev. 235.

16-13-301 — 16-13-317. [Repealed.]

Publisher's Notes. These sections, concerning establishment and operation of chancery courts, and duties and appointment of chancellors, masters, clerks and sheriffs in chancery courts, were repealed by Acts 2003, No. 1185, § 80. The sections were derived from the following sources:

16-13-301. Acts 1903, No. 166, § 1, p. 314; C.& M. Dig., § 2186; Pope's Dig., § 2797; A.S.A. 1947, § 22-401.

16-13-302. Acts 1903, No. 166, § 14, p. 314; C.& M. Dig., § 2200; Pope's Dig., § 2825; A.S.A. 1947, § 22-402.

16-13-303. Acts 1903, No. 166, § 14, p. 314; C.& M. Dig., § 2200; Pope's Dig., § 2825; A.S.A. 1947, § 22-402.

16-13-304. Acts 1903, No. 166, § 4, p. 314; C. & M. Dig., § 2188; Pope's Dig., § 2814; A.S.A. 1947, § 22-404; Acts 1989, No. 949, § 2; 1995, No. 1016, § 1; 1995, No. 1298, § 13; 2001, No. 1153, § 1.

16-13-305. Acts 1903, No. 166, § 17, p. 314; C. & M. Dig., § 2203; Pope's Dig., § 2828; A.S.A. 1947, § 22-403.

16-13-306. Acts 1903, No. 166, § 14, p. 314; C. & M. Dig., § 2200; Pope's Dig., § 2825; A.S.A. 1947, § 22-402.

16-13-307. Acts 1969, No. 358, § 1; A.S.A. 1947, § 22-406.1.

16-13-308. Acts 1969, No. 358, § 2; A.S.A. 1947, § 22-406.2.

16-13-309. Acts 1903, No. 166, § 5, p. 314; C. & M. Dig., § 2189; Acts 1937, No. 171, § 1; Pope's Dig., §§ 2795, 2816; Acts 1973, No. 52, § 1; 1979, No. 211, § 1; A.S.A. 1947, §§ 22-409, 22-411, 22-432.

16-13-310. Acts 1903, No. 166, § 11, p. 314; C. & M. Dig., § 2197; Pope's Dig., § 2822; A.S.A. 1947, § 22-436.

16-13-311. Acts 1941, No. 417, §§ 1-4; A.S.A. 1947, §§ 22-437 — 22-440.

16-13-312. Rev. Stat., ch. 43, § 24; C. & M. Dig., §§ 2107, 6400; Pope's Dig., §§ 2711, 8362; A.S.A. 1947, § 22-113.

16-13-313. Acts 1967, No. 37, § 1; A.S.A. 1947, § 22-449.

16-13-314. Acts 1903, No. 166, § 10, p. 314; C. & M. Dig., § 2196; Pope's Dig., § 2821; A.S.A. 1947, § 22-441.

16-13-315. Acts 1943, No. 42, §§ 1-7; A.S.A. 1947, §§ 22-442 — 22-447, 22-448; Acts 1987, No. 283, §§ 1, 2; 1987, No. 364, §§ 1, 2.

16-13-316. Acts 1951, No. 6, § 2; A.S.A. 1947, § 22-407.1.

16-13-317. Acts 1951, No. 6, § 2; A.S.A. 1947, § 22-407.1.

16-13-318. [Repealed.]

Publisher's Notes. This section, concerning private hearings by chancery courts, was repealed by Acts 2003, No. 1185, § 81. This section was derived from Acts 1953, No. 277, § 1; A.S.A. 1947, § 22-404.1.

16-13-319. [Repealed.]

Publisher's Notes. This section, concerning decisions of chancellors, was repealed by Acts 2003, No. 1185, § 82. The section was derived from Acts 1903, No. 166, § 11, p. 314; C. & M. Dig., § 2197; Pope's Dig., § 2822; A.S.A. 1947, § 22-436.

16-13-320. [Repealed.]

Publisher's Notes. This section, concerning sale and confirmation of property, was repealed by Acts 2003, No. 1185, § 83. The section was derived from Acts 1913, No. 82, § 2, p. 318; C. & M. Dig., § 2191; Pope's Dig., § 2818; A.S.A. 1947, § 22-434.

16-13-321 — 16-13-325. [Repealed.]

Publisher's Notes. These sections, concerning issuance of injunctions in absence of chancellors, appeals, court expenses and payment, and counsel for incompetents, were repealed by Acts 2003, No. 1185, § 84. The sections were derived from the following sources:

16-13-321. Acts 1903, No. 166, § 12, p. 314; C. & M. Dig., § 2198; Pope's Dig., § 2823; A.S.A. 1947, § 22-435.

16-13-322. Acts 1969, No. 358, § 3; A.S.A. 1947, § 22-406.3.

16-13-323. Acts 1903, No. 166, § 4, p. 314; C. & M. Dig., § 2188; Pope's Dig., § 2814; A.S.A. 1947, § 22-404.

16-13-324. Rev. Stat., ch. 43, § 47; C. & M. Dig., § 2118; Pope's Dig., § 2722; Acts 1977, No. 751, § 1; A.S.A. 1947, § 22-125.

16-13-325. Acts 1987, No. 96, § 2.

16-13-326. Circuit court juvenile division funds.

    1. All court costs, fines, and fees assessed by the juvenile division of circuit court shall be deposited and accounted for by the county in which they are received.
    2. The court shall have the authority to direct that the fees, court costs, and fines shall be collected by either the juvenile officer, the sheriff, or the clerk of the juvenile division of circuit court or other person designated by the court for the county in which the fees, court costs, and fines are charged.
    1. The officer designated by the court to collect juvenile fees, court costs, and fines shall deposit the fees, court costs, and fines into the appropriate fund and monthly deposit the fees, court costs, and fines into the fund in the county treasury of the county where the fees are collected.
      1. In a judicial district with multiple judges designated to hear juvenile cases in the district plan under Supreme Court Administrative Order No. 14, the majority of the judges shall determine who is to be in charge of the collection and accounting of fees, court costs, and fines.
      2. If there is no majority, the administrative judge is to determine who shall be in charge of the collection and accounting of fees, court costs, and fines as provided by this section.
      1. However, in judicial districts having more than one (1) county, the majority of the judges or the administrative judge may designate the treasurer of one (1) of the counties in the district as the depository of all juvenile and diversion fees, court costs, and fines collected in the district.
      2. The treasurer so designated by the court shall maintain a separate account of the juvenile fees, court costs, and fines collected in each county in the district so that fees, court costs, and fines collected in a county are spent to support the juveniles and juvenile division court services and programs in that county.
      3. Money remaining at the end of the fiscal year shall not revert to any other fund but shall remain in the circuit court juvenile division fund and carry over to the next fiscal year.
  1. The funds derived from the collection of juvenile fees, court costs, and fines shall be used by agreement of the judge or judges of the circuit court designated to hear juvenile cases in the district plan under Supreme Court Administrative Order No. 14, originally issued April 6, 2001, and the quorum court of the county to provide services and supplies to juveniles and support court programs at the discretion of the juvenile division of circuit court, including without limitation:
    1. Juvenile drug courts;
    2. Teen courts;
    3. Volunteer probation programs;
    4. Court-appointed special advocates; and
    5. After-school and community-based programs.

History. Acts 1989, No. 418, § 5; 1994 (2nd Ex. Sess.), No. 61, § 3; 1994 (2nd Ex. Sess.), No. 62, § 3; 1995, No. 1204, § 1; 2003, No. 1809, § 14; 2011, No. 1175, § 13.

Amendments. The 2011 amendment rewrote the section.

Case Notes

Custodian.

The trial court cannot assess a probation fee against a custodian under § 9-27-330 or § 9-27-331, because § 9-27-330 does not authorize the assessment of a probation fee against a custodian, and a juvenile court's authority to assess a probation fee is based upon subsection (a) of this section, which is silent on assessing a probation fee against a custodian. Ark. Dep't of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993).

16-13-327. Probation officers.

  1. Each juvenile division of circuit court shall be provided with no fewer than one (1) probation officer to manage the probation services and needs of the court.
  2. Each probation officer shall:
    1. Be an employee of the judge or judges of the circuit court designated to hear juvenile cases in the district plan under Arkansas Supreme Court Administrative Order Number 14, originally issued April 6, 2001; and
    2. Serve at the pleasure of the judge or judges.
    1. A probation officer:
      1. Shall be certified as a juvenile probation officer according to the laws of this state;
      2. Must complete initial certification requirements within one (1) year of the officer's employment; and
      3. Must maintain the certification during the terms of his or her employment.
    2. The Juvenile Intake and Probation Officers' Certification Committee, composed of juvenile officers and judges of the circuit court designated to hear juvenile cases in their district plan under Arkansas Supreme Court Administrative Order Number 14 originally issued April 6, 2001, and staffed by an employee of the Administrative Office of the Courts, shall establish certification standards for intake and probation officers.
    3. The office shall collect and maintain records for the juvenile officers' certification documentation.
      1. The salary of the probation officer shall be paid by the county or counties in which the probation officer works.
      2. Except as provided in subdivision (d)(3) of this section, the state shall pay a portion of the salary of a full-time probation officer:
        1. Who is certified according to the laws of this state; and
        2. Whose salary has been paid by the county or counties for a period of one (1) year.
    1. The portion to be paid by the state shall be the lesser of:
      1. Fifteen thousand dollars ($15,000) per year; or
      2. One-half (1/2) the probation officer's average salary as calculated over the last twelve (12) months.
    2. For reimbursement under the requirements of this subsection, the state shall reimburse a county only for salaries paid to the number of probation officers that:
      1. Meet the requirements of subdivision (d)(1) of this section; and
      2. Do not exceed two hundred fifty (250) positions authorized by the counties for probation and intake officers, subject to state funding.

History. Acts 1989, No. 418, § 1; 1997, No. 1171, § 1; 2003, No. 1166, § 33; 2005, No. 1398, § 2; 2009, No. 956, § 31.

Publisher's Notes. Arkansas Supreme Court Administrative Order Number 14, referred to in this section, is published in the Arkansas Code of 1987 Annotated's annual Court Rules volume immediately preceding the Rules of Appellate Procedure — Civil.

Amendments. The 2005 amendment inserted the present subdivision designations in (d)(1) and made related changes; substituted “except as provided in subdivision (d)(3)” for “beginning August 1, 1990” in present (d)(1)(B); and added (d)(3).

The 2009 amendment made a minor stylistic change in (d)(1)(B); deleted (d)(3)(B)(i); rewrote (d)(2) and redesignated it as (d)(3)(B); and made a related change.

Case Notes

Salary.

Where circuit and chancery judge issued an order setting salaries of the judicial district's probation officer and intake officer at $18,000.00 per year, and petitioners, members of the county quorum court, voted to pay county's share of the salary, but at the rate of only $15,000.00 per year and judge ordered petitioners to show cause why they should not be held in contempt for not complying with his order, petitioners had not failed to fund the court, there was no showing that level of funding was so low that the court could not effectively operate, the inherent authority doctrine did not apply, and court had no authority to hold petitioners in contempt for not complying with its order. Abbott v. Spencer, 302 Ark. 396, 790 S.W.2d 171 (1990).

16-13-328. Intake officers.

  1. Each juvenile division of circuit court shall be provided with no fewer than one (1) intake officer to manage the intake needs of the court.
  2. Each intake officer shall:
    1. Be employed by the judge or judges of the circuit court designated to hear juvenile cases in the district's plan under Arkansas Supreme Court Administrative Order Number 14, originally issued April 6, 2001; and
    2. Serve at the pleasure of the judge or judges.
    1. Each intake officer:
      1. Shall be certified as a juvenile intake officer according to the laws of this state;
      2. Must complete initial certification requirements within one (1) year of the officer's employment; and
      3. Must maintain the certification during the terms of employment.
    2. The Juvenile Intake and Probation Officers' Certification Committee, composed of juvenile officers and judges of the circuit court designated to hear juvenile cases in the district plan under the order and staffed by an employee of the office, shall establish certification standards for intake and probation officers.
    3. The office shall collect and maintain records for the juvenile officers' certification documentation.
      1. The salary of the intake officer shall be paid by the county or counties in which the intake officer works.
      2. Except as provided in subdivision (d)(3) of this section, the state shall pay a portion of the salary of a full-time intake officer:
        1. Who is certified according to the laws of this state; and
        2. Whose salary has been paid by the county or counties for a period of one (1) year.
    1. The portion to be paid by the state shall be the lesser of:
      1. Fifteen thousand dollars ($15,000) a year; or
      2. One-half (½) the intake officer's average salary as calculated over the last twelve (12) months.
    2. The state shall reimburse a county only for a portion of salaries paid to the number of intake officers that:
      1. Meet the requirements of subdivision (d)(1) of this section; and
      2. For reimbursement under the requirements of this subsection, do not exceed two hundred fifty (250) positions authorized by the counties for probation and intake officers, subject to state funding.
    1. Each circuit judge whose primary responsibility is conducting hearings for the involuntary admission or commitment of persons to the Arkansas State Hospital or any other public or private hospital with a fully trained psychiatrist on the active or consultant staff shall be provided with no fewer than one (1) intake officer to manage the intake needs of the court.
    2. The salaries of the intake officers shall be paid by the county or counties in which the intake officers work, with the state's paying a portion, e.g., the lesser of either fifteen thousand dollars ($15,000) per year or one-half (½) of each full-time intake officer's annual salary.

History. Acts 1989, No. 418, § 2; 1991, No. 794, § 1; 1997, No. 1171, § 2; 2003, No. 1166, § 34; 2005, No. 1398, § 3; 2009, No. 956, § 32.

Publisher's Notes. Arkansas Supreme Court Administrative Order Number 14, referred to in this section, is published in the Arkansas Code of 1987 Annotated's annual Court Rules volume immediately preceding the Rules of Appellate Procedure — Civil.

Amendments. The 2005 amendment inserted the present subdivision designations in (d)(1) and made related changes; substituted “except as provided in subdivision (d)(3)” for “beginning August 1, 1990” in present (d)(1)(B); and added (d)(3).

The 2009 amendment deleted (d)(3)(B)(i); rewrote (d)(3)(B)(ii) and incorporated it as part of (d)(3)(B); and made related changes.

16-13-329. Dual role precluded.

A person shall not serve as both a juvenile probation officer and a juvenile intake officer.

History. Acts 1989, No. 418, § 4; 2003, No. 1166, § 35.

16-13-330. Contract providers.

Intake and probation services deemed necessary by the court may be provided by contract providers by contract between the county or counties in a judicial district and the contract provider, upon approval of the judge or judges of the circuit court designated to hear juvenile cases in their district plan under Arkansas Supreme Court Administrative Order Number 14, originally issued April 6, 2001. Persons providing juvenile intake and probation services by contract shall be certified in the same manner as juvenile intake and probation officers employed by the judge or judges.

History. Acts 1989, No. 418, § 3; 1991, No. 787, § 1; 2003, No. 1166, § 36.

Publisher's Notes. Arkansas Supreme Court Administrative Order Number 14, referred to in this section, is published in the Arkansas Code of 1987 Annotated's annual Court Rules volume immediately preceding the Rules of Appellate Procedure — Civil.

16-13-331. State reimbursement.

  1. The Administrative Office of the Courts shall administer the state reimbursement to the counties for the juvenile officers' previous year's salaries.
  2. In order for a county to receive the state reimbursement for juvenile officers, the county must submit the following documentation to the office, including, but not limited to:
    1. Proof of each juvenile officer's certification and continuing education hours;
    2. A copy of each juvenile officer's W-2 form for the salary year that is being reimbursed; and
    3. A completed form concerning the employment status of the officer which shall be designed and distributed by the office.
  3. If a county contracts with a service provider to provide juvenile services pursuant to § 16-13-330, the county must submit documentation to the office, including, but not limited to:
    1. A copy of the contract for the salary year that is being reimbursed;
    2. A copy of each juvenile officer's certification and continuing education hours;
    3. A copy of each juvenile officer's W-2 form for the salary year that is being reimbursed; and
    4. A completed form concerning the employment status of each officer which shall be designed and distributed by the office.
    1. A county may determine that part-time service of a juvenile officer is sufficient to meet the needs of the county.
      1. Multiple counties in a judicial district may share the cost of the salary of the juvenile officer.
      2. One (1) county may be designated as the county to be reimbursed by the state, or each county shall designate the portion of the salary that it pays for juvenile services.
      1. A county may contract with a service provider for full-time or part-time juvenile officer services, and the county shall indicate the percentage of the contractor's time that is spent providing juvenile officer services for the county.
      2. The county or the contractor shall be reimbursed for one-half (1/2) of the portion of the salary that is used for such services, up to fifteen thousand dollars ($15,000).
  4. Nothing in this section removes the obligation of each circuit judge designated to hear juvenile cases in a district plan under Supreme Court Administrative Order No. 14, originally issued April 6, 2001, to have a minimum of one (1) intake officer, pursuant to § 16-13-328, and one (1) probation officer, pursuant to § 16-13-327.
  5. Funds appropriated for county reimbursement as provided in this section and for which a county has not submitted reimbursement documentation by January 1 of each year as required under subsection (b) of this section may be distributed to a county based on the following factors:
    1. The use of or inability of a county to use risk assessment and behavioral health screenings;
    2. The financial need of the county;
    3. The juvenile crime rate of the county;
    4. The juvenile division of circuit court reduction in commitments and the need for community service in the county; and
    5. The plan of the juvenile division of circuit court or the county for the use of funds for the provision of juvenile officer services.

History. Acts 1997, No. 321, § 1; 1999, No. 460, § 2; 2003, No. 1166, § 37; 2016, No. 87, § 4; 2019, No. 941, § 1.

A.C.R.C. Notes. Acts 2001, No. 351, § 2 amended this section to read as follows:

“(a) The Auditor of State shall administer the state reimbursement to the counties for the juvenile officers' previous year salaries.

“(b) In order for a county to receive the state reimbursement for juvenile intake and probation officers the county must submit the following documentation to the Auditor of State, including but not limited to: (1) Proof of the juvenile officers' certification and continuing education hours; (2) A copy of the juvenile officers' W-2 form for the salary year that is being reimbursed; and (3) A completed form concerning the employment status of the officer which shall be designed and distributed by the Auditor of State.

“(c) If a county contracts with a service provider to provide juvenile intake and probation services pursuant to § 16-13-330, the county must submit documentation to the Auditor of State, including but not limited to: (1) A copy of the contract for the salary year that is being reimbursed; (2) A copy of the juvenile officers' certification and continuing education hours; (3) A copy of the juvenile officers' W-2 form for the salary year that is being reimbursed; and (4) A completed form concerning the employment status of the officer which shall be designed and distributed by the Auditor of State.

“(d) A county may determine that part-time service of a juvenile officer is sufficient to meet the needs of a county. (1) Multiple counties in a judicial district may share the cost of the salary of the intake and probation officer. One county may be designated as the county to be reimbursed by the state or each county shall designate the portion of the salary that it pays for juvenile intake and probation services. (2) The county may contract with a service provider for full or part-time juvenile intake and probation officer services and the county shall indicate the percentage of the contractors' time that is spent providing juvenile intake and probation officer services for the county. The county or the contractor shall be reimbursed for one-half (½) of the portion of the salary that is used for such services up to fifteen thousand dollars ($15,000).

“(e) Nothing in this section removes the obligation for each juvenile judge to have a minimum of one (1) intake officer, pursuant to § 16-13-328 and one (1) probation officer, pursuant to § 16-13-327.

“The provisions of this section shall be in effect only from July 1, 2001 through June 30, 2003.”

Publisher's Notes. The language set forth in Acts 2001, No. 351, § 2 is nearly identical to the language in this section. Because the amendment is temporary, it was not incorporated into this section at the direction of the Arkansas Code Revision Commission and the Arkansas General Assembly.

Arkansas Supreme Court Administrative Order Number 14, referred to in this section, is published in the Arkansas Code of 1987 Annotated's annual Court Rules volume immediately preceding the Rules of Appellate Procedure — Civil.

Amendments. The 2016 amendment substituted “Administrative Office of the Courts” for “Auditor of State” throughout the section.

The 2019 amendment deleted “intake and probation” following “juvenile” in the introductory language of (b) and (c), and in (d)(2)(B) and twice in (d)(3)(A); substituted “the county” for “a county” in (d)(1); substituted “juvenile officer” for “in-take and probation officer” in (d)(2)(A); and added (f).

Subchapter 4 — Exchange of Cases

16-13-401. [Repealed.]

Publisher's Notes. This section, concerning transfer of cases between circuit and chancery courts, was repealed by Acts 2003, No. 1185, § 85. The section was derived from Acts 1885, No. 106, § 12, p. 171; 1891, No. 156, § 9, p. 266; 1893, No. 9, § 9, p. 12; 1897 (Ex. Sess.), No. 37, § 9, p. 90; C. & M. Dig., § 2185; Pope's Dig., § 2794; A.S.A. 1947, § 22-405.

16-13-402. [Repealed.]

Publisher's Notes. This section, concerning exchange or substitution upon judge's request, temporary or special judges and proceedings, was repealed by Acts 2003, No. 1185, § 86. The section was derived from Acts 1961, No. 135, §§ 1-5; A.S.A. 1947, §§ 22-342 — 22-346.

16-13-403 — 16-13-405. [Repealed.]

Publisher's Notes. These sections, concerning exchange of districts, powers and authority of exchange judges, and authority of exchange judges to sign papers in either district, were repealed by Acts 2003, No. 1185, § 87. The sections were derived from the following sources:

16-13-403. Acts 1881, No. 68, § 1, p. 134; C. & M. Dig., § 2224; Acts 1933, No. 160, § 1; Pope's Dig., § 2852; A.S.A. 1947, § 22-340; Acts 1992 (1st Ex. Sess.), No. 51, § 1.

16-13-404. Civil Code, § 758; Acts 1871, No. 48, § 1 [758], p. 219; C. & M. Dig., § 2225; Acts 1933, No. 160, § 2; Pope's Dig., § 2853; A.S.A. 1947, § 22-341.

16-13-405. Acts 1963, No. 239, § 1; A.S.A. 1947, § 22-341.1.

Subchapter 5 — Court Reporters

A.C.R.C. Notes. Acts 2010, No. 167, § 3, provided: “TRANSCRIPTS. Official Court Reporters shall prepare transcripts, which are to be included within a record on appeal, pursuant to the time requirements that are outlined in the Arkansas Supreme Court Rules. In the event an official Court Reporter fails to complete a transcript within the prescribed time, he or she shall immediately inform the judge, for whom he or she is employed, and the Arkansas Board of Certified Court Reporter Examiners. Failure of a Court Reporter to report to his or her judge and to the Arkansas Board of Certified Court Reporter Examiners shall result in the immediate suspension of the Court Reporter's license, pending a hearing before the Arkansas Board of Certified Court Reporter Examiners.”

Acts 2011, No. 927, § 3, provided: “TRANSCRIPTS. Official Court Reporters shall prepare transcripts, which are to be included within a record on appeal, pursuant to the time requirements that are outlined in the Arkansas Supreme Court Rules. In the event an official Court Reporter fails to complete a transcript within the prescribed time, he or she shall immediately inform the judge, for whom he or she is employed, and the Arkansas Board of Certified Court Reporter Examiners. Failure of a Court Reporter to report to his or her judge and to the Arkansas Board of Certified Court Reporter Examiners shall result in the immediate suspension of the Court Reporter's license, pending a hearing before the Arkansas Board of Certified Court Reporter Examiners.”

Acts 2012, No. 110, § 3, provided: “TRANSCRIPTS. Official Court Reporters shall prepare transcripts, which are to be included within a record on appeal, pursuant to the time requirements that are outlined in the Arkansas Supreme Court Rules. In the event an official Court Reporter fails to complete a transcript within the prescribed time, he or she shall immediately inform the judge, for whom he or she is employed, and the Arkansas Board of Certified Court Reporter Examiners. Failure of a Court Reporter to report to his or her judge and to the Arkansas Board of Certified Court Reporter Examiners shall result in the immediate suspension of the Court Reporter's license, pending a hearing before the Arkansas Board of Certified Court Reporter Examiners.”

Acts 2013, No. 1028, § 3, provided: “TRANSCRIPTS. Official Court Reporters shall prepare transcripts, which are to be included within a record on appeal, pursuant to the time requirements that are outlined in the Arkansas Supreme Court Rules. In the event an official Court Reporter fails to complete a transcript within the prescribed time, he or she shall immediately inform the judge, for whom he or she is employed, and the Arkansas Board of Certified Court Reporter Examiners. Failure of a Court Reporter to report to his or her judge and to the Arkansas Board of Certified Court Reporter Examiners shall result in the immediate suspension of the Court Reporter's license, pending a hearing before the Arkansas Board of Certified Court Reporter Examiners.”

Acts 2014, No. 111, § 3, provided: “TRANSCRIPTS. Official Court Reporters shall prepare transcripts, which are to be included within a record on appeal, pursuant to the time requirements that are outlined in the Arkansas Supreme Court Rules. In the event an official Court Reporter fails to complete a transcript within the prescribed time, he or she shall immediately inform the judge, for whom he or she is employed, and the Arkansas Board of Certified Court Reporter Examiners. Failure of a Court Reporter to report to his or her judge and to the Arkansas Board of Certified Court Reporter Examiners shall result in the immediate suspension of the Court Reporter's license, pending a hearing before the Arkansas Board of Certified Court Reporter Examiners.”

Effective Dates. Acts 1981 (Ex. Sess.), No. 16, § 1: Nov. 25, 1981. Emergency clause provided: “It is hereby found and determined that some of the provisions of Act 824 of 1981, which provides that the official court reporters of the circuit and chancery courts in the State are state employees, and provide for the levy and collection of additional court costs to pay the salaries and expenses of reporters, are vague and difficult to interpret, and that it is essential to the effective and efficient administration of justice that this Act be given effect immediately to clarify the law relating to court reporters. 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 (Ex. Sess.), No. 27, § 5: Dec. 1, 1981. Emergency clause provided: “It is hereby found and determined by the Seventy-Third General Assembly, meeting in Extraordinary Session, that the passage of this Act is necessary for continued efficient operation of the circuit and chancery courts and to pay authorized salaries for the official court reporters. 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 1983, No. 868, § 4: Mar. 28, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that since court reporters are now State employees, indigent defendants should be provided a free transcript without the necessity of paying additional fees to the court reporters, 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 1987, No. 581, § 2: Apr. 4, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that the compensation to court reporters, of the circuit, chancery, and probate courts, for making transcripts of court proceedings is inadequate, and that this Act is immediately necessary to provide adequate compensation. 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 1989, No. 677, § 4: Mar. 20, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the inability of judges on assignment and the Arkansas Judicial Department to employ substitute court reporters is creating an urgent and immediate problem in the court system of this state, and that the immediate passage of this act is necessary to insure there is an orderly and efficient administration of justice in the state. 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. 788, § 36: became law without the Governor's signature. Noted Mar. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 1997, No. 1341, § 35: became law without the Governor's signature. Noted Apr. 11, 1997. Effective 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 operation of the state court system, 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 progress. 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.”

Acts 2015, No. 268, § 16: July 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the act entitled ‘AN ACT TO MAKE AN APPROPRIATION FOR PERSONAL SERVICES AND OPERATING EXPENSES FOR THE ADMINISTRATIVE OFFICE OF THE COURTS FOR THE OFFICIAL COURT REPORTERS AND TRIAL COURT ADMINISTRATORS OF THE CIRCUIT COURTS FOR THE FISCAL YEAR ENDING JUNE 30, 2016; AND FOR OTHER PURPOSES.’ requires the passage of this act; that the effectiveness of this act on July 1, 2015, is essential to the operation of the Administrative Office of the Courts, and that in the event of an extension of the legislative session, the delay in the effective date of this act beyond July 1, 2015, could work irreparable harm upon the proper administration and provision of essential governmental programs. 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 on and after July 1, 2015.”

Acts 2019, No. 716, § 13: 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”.

16-13-501. Court reporters made state employees.

  1. The official court reporters of the circuit courts in this state are employees of the State of Arkansas.
  2. The Administrative Office of the Courts may employ or contract with a court reporter previously employed by the state for services provided at any time after his or her separation from state employment, regardless of a limitation otherwise provided under § 19-11-709(d).
  3. The office is responsible for the financial oversight of the court reporters employed by the circuit court, which includes without limitation:
    1. Biennial and annual budget requests;
    2. Relevant budget activities;
    3. Monitoring expenses;
    4. Travel;
    5. Substitute expenses;
    6. Indigent transcript payments; and
    7. Ensuring projected annual expenditures do not exceed total available funding.
  4. The office, with the assistance of the Arkansas Judicial Council, Inc., shall establish an official procedure or rules for:
    1. The hiring of court reporters;
    2. The termination of court reporters; and
    3. Salary adjustments for court reporters.

History. Acts 1981 (1st Ex. Sess.), No. 16, § 5; A.S.A. 1947, § 22-366.3; Acts 2015, No. 268, § 4; 2019, No. 716, § 8.

Amendments. The 2015 amendment deleted the second sentence.

The 2019 amendment added (b) through (d) and designated the former section as (a).

16-13-502. [Repealed.]

Publisher's Notes. This section, concerning employment of court reporters, was repealed by Acts 2003, No. 1185, § 88. The section was derived from Acts 1977, No. 432, § 5; A.S.A. 1947, § 22-366.

16-13-503. Appointment — Compensation — Leave.

  1. Each judge of each circuit court may appoint one (1) or more court reporters as may be authorized by law.
    1. The salaries of the court reporters shall:
      1. Be exempt from the provisions of the Uniform Classification and Compensation Act, § 21-5-201 et seq.;
      2. Not exceed the maximum annual salary rate authorized by the General Assembly in the applicable appropriation act; and
      3. Be determined by the Administrative Office of the Courts.
    2. The salaries, together with other expenses authorized by law for the court reporters to be paid from state funds, shall be paid with moneys appropriated for the salaries and other expenses by the General Assembly from the Court Reporter's Fund.
    3. The total amount of salaries paid to court reporters and other distributions of the Court Reporter's Fund shall not exceed:
      1. The total annual allocation authorized by the General Assembly to the Court Reporter's Fund from the State Administration of Justice Fund as supplemented, if necessary, by any real property transfer tax revenues under § 26-60-112(b)(2); and
      2. Any remaining balances in the Court Reporter's Fund.
    1. Notwithstanding the exemption provided by § 21-4-203, the circuit judge of the circuit court served by a court reporter shall administer the attendance and leave policies for the court reporter in the manner prescribed for state employees by the Uniform Attendance and Leave Policy Act, § 21-4-201 et seq.
    2. The court reporter shall forward all approved requests for leave to the office on a regular and timely basis for payroll purposes.
    3. The office shall prescribe the procedures for obtaining all relevant leave information, including without limitation the forms, method of transmittal, and format for obtaining the leave information.
    1. Rules for the regulation of the practice of court reporting in this state, including, but not limited to, certification, discipline, and provisions for the retention of court reporter records, shall be the responsibility of the Supreme Court.
    2. Provided, however, that nothing in this subsection shall permit the Supreme Court to require that counties or county officials provide space for the storage of court reporter records.

History. Acts 1981 (1st Ex. Sess.), No. 16, § 5; A.S.A. 1947, § 22-366.3; Acts 1995, No. 743, § 1; 2003, No. 1363, § 1; 2015, No. 268, § 5.

A.C.R.C. Notes. As enacted by the General Assembly, Acts 2003, No. 1363, § 1, provided in part:

“(d)(2) The person employed in the position paid through the Court Reporters' Fund and who is assigned and providing services as the coordinator of the Post Adjudication Court of the Ninth Division of the Sixth Judicial Circuit is not required to be certified as a court reporter as provided in subsection (d)(1).”

Amendments. The 2015 amendment rewrote (b)(1); in (b)(2), substituted “other expenses” for “such expenses as may be” and “for the salaries and other expenses” for “therefor”; added (b)(3); redesignated and rewrote (c) as (c)(1); and added (c)(2) and (c)(3).

Case Notes

Cited: Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995).

16-13-504. Salary implementation procedures.

  1. If a court reporter was an official court reporter in the state on June 30, 1981, the increase eligibility date for purposes of salary implementation shall be July 1, 1982.
  2. If an official court reporter was appointed after June 30, 1981, the increase eligibility date for purposes of salary implementation shall be determined by the date of appointment.

History. Acts 1981 (1st Ex. Sess.), No. 27, § 1; 1983, No. 868, § 1; A.S.A. 1947, §§ 22-366.4, 22-367.5; Acts 2003, No. 1185, § 89; 2015, No. 268, § 6.

A.C.R.C. Notes. The reference to the Uniform Classification and Compensation Plan in (a) refers to the “Uniform Classification and Compensation Act”, § 21-5-201 et seq., which was partially amended by Acts 2009, No. 688, effective July 1, 2009. All career service plans for state agencies and institutions were reclassified within §§ 21-5-208 and 21-5-209.

Publisher's Notes. Acts 1981 (1st Ex. Sess.), No. 27, § 1, provided, in part, effective January 1, 1982, for the compensation of court reporters who were official court reporters in the state on June 30, 1981.

Amendments. The 2015 amendment deleted “Initial annual salary of court reporters” from the section heading and rewrote the section.

16-13-505. Court reporters — Reimbursement for expenses.

    1. A court reporter for a circuit court is entitled to reimbursement for actual expenses incurred for meals, lodging, and transportation costs for attending court away from the court reporter's official station.
    2. Notwithstanding the exemption from state travel rules provided by § 19-4-904, if a court reporter uses a personal vehicle for transportation, he or she is entitled to reimbursement for mileage at the same rate prescribed by the Department of Finance and Administration for executive branch employees.
  1. Reimbursements for actual expenses and mileage under subsection (a) of this section shall be made monthly by the Administrative Office of the Courts upon claims by the respective court reporters certified by the circuit judge.

History. Acts 1981 (1st Ex. Sess.), No. 16, § 6; 1985, No. 63, § 1; A.S.A. 1947, § 22-367.3; Acts 2003, No. 1185, § 89; 2005, No. 461, § 2; 2015, No. 268, § 7; 2019, No. 315, § 1296.

Publisher's Notes. Acts 1981 (1st Ex. Sess.), No. 16, § 6, is also codified as § 16-14-107.

Amendments. The 2005 amendment deleted the former last sentence in (a), which read: “However, no court reporter shall be entitled to receive reimbursement for such meals, lodging, and transportation in excess of four thousand five hundred dollars ($4,500) per year.”

The 2015 amendment, in (a)(1), substituted “A court reporter for a circuit court is” for “The official court reporters of the respective circuit courts shall be” and “the court” for “a”; in (a)(2), substituted “Notwithstanding the exemption from state travel regulations provided by § 19-4-904, if a court” for “If the” and “is” for “shall be,” inserted “same” and “by the Department of Finance and Administration,” substituted “executive branch” for “state,” and deleted “in the state travel regulations” at the end; and, in (b), substituted “actual expenses and mileage under subsection (a) of this section” for “expenses” and “Administrative Office of the Courts” for “Auditor of State.”

The 2019 amendment substituted “rules” for “regulations” in (a)(2).

16-13-506. Court reporters — Transcript fees.

    1. When required to make a transcript of court proceedings, each court reporter of the circuit courts shall be entitled to compensation at the rate of four dollars and ten cents ($4.10) per page for the original and two (2) copies and at the rate of fifty cents (50¢) per page for each additional copy.
    2. When required to prepare photocopied evidence as part of a transcript, each reporter shall be entitled to compensation at the rate of one dollar and fifty cents ($1.50) per page, for an original and two (2) copies and at the rate of fifty cents (50¢) per page for each additional copy thereafter, with the cost to be paid by the parties ordering transcripts.
      1. In indigent and in forma pauperis proceedings, the compensation to the court reporter for transcripts provided for in subsection (a) of this section shall be paid by the State of Arkansas.
      2. However, in such proceedings, the court reporters shall be entitled to compensation from the state only for the original and two (2) copies of the transcript.
    1. The payments shall be made only upon certification of the payments by the presiding circuit judge and shall be paid by the Administrative Office of the Courts from funds appropriated out of the Court Reporter's Fund.

History. Acts 1981 (1st Ex. Sess.), No. 16, § 7; 1983, No. 868, § 2; A.S.A. 1947, § 22-367.4; Acts 1987, No. 581, § 1; 2003, No. 1185, § 90; 2005, No. 461, § 2; 2015, No. 268, § 8.

Publisher's Notes. Acts 1981 (1st Ex. Sess.), No. 16, § 7, as amended is also codified as § 16-14-106.

Amendments. The 2005 amendment substituted “four dollars and ten cents ($4.10)” for “three dollars and ten cents ($3.10)” in (a)(1).

The 2015 amendment, in (b)(2), substituted “of the payments” for “thereof,” inserted “circuit,” and substituted “Administrative Office of the Courts” for “Auditor of State.”

16-13-507. Liability for loss of records.

Court reporters shall not be liable, criminally or civilly, for the unintentional loss, damage, or destruction of their official records which are more than five (5) years old.

History. Acts 1981, No. 154, § 1; A.S.A. 1947, § 22-366.2.

16-13-508. Court Reporter's Fund established.

There is created on the books of the Auditor of State, Treasurer of State, and Chief Fiscal Officer of the State a fund to be known as the Court Reporter's Fund which fund shall be used exclusively for paying such salaries, transcript fees, and expenses of court reporters as may be provided by law to be paid from state funds.

History. Acts 1981 (1st Ex. Sess.), No. 16, § 4; A.S.A. 1947, § 22-157.

Cross References. Court Reporter's Fund, § 19-5-1082.

16-13-509. Substitute court reporters.

    1. In the absence or unavailability of the official court reporter, the circuit judge or circuit judge on assignment as authorized by § 16-10-101 may temporarily employ the services of a substitute court reporter if the temporary employment is essential to prevent a disruption of the business of the circuit court.
    2. The substitute court reporter shall be a court reporter certified by the Certified Court Reporter Examiners Board.
    1. When a circuit judge or circuit judge on assignment temporarily employs a substitute court reporter, the circuit judge shall certify to the Administrative Office of the Courts, upon forms prepared by the office, that he or she has temporarily employed the services of a substitute court reporter and that the temporary employment was essential to prevent a disruption of the business of the circuit court.
    2. The circuit judge or circuit judge on assignment shall further furnish to the office the name, address, and Social Security number of the substitute court reporter and the number of days the substitute court reporter was temporarily employed, plus any other information concerning the employment requested by the office.
    1. The office may pay the substitute court reporter for the court reporting services furnished to the circuit judge from funds specifically appropriated for that purpose.
    2. The substitute court reporter shall be paid at the rate of one hundred seventy-five dollars ($175) per day.
    3. The substitute court reporter is entitled to reimbursement for actual expenses incurred for meals, lodging, and transportation costs for attending court under § 16-13-505.
  1. If a trial court administrator employed under § 16-13-3302 and also certified under subsection (a) of this section is appointed to act temporarily as a substitute court reporter, he or she is not entitled to be paid an additional salary but is entitled to reimbursement for actual expenses incurred for meals, lodging, and transportation costs when attending court away from his or her official station, under § 16-13-505.
  2. In any one (1) fiscal year, however, the office shall not pay for the services of a substitute court reporter or substitute court reporters for any one (1) circuit judge or circuit judge on assignment in excess of thirty (30) working days, unless approved and ordered by the Chief Justice of the Supreme Court.
  3. This subchapter does not preclude or prohibit any circuit judge from obtaining payment for the services of a substitute court reporter from the county or counties composing the circuit judge's judicial district rather than from the office.

History. Acts 1987, No. 373, §§ 1-4; 1989, No. 677, § 1; 1989, No. 762, § 1; 1997, No. 1169, § 1; 2001, No. 510, § 1; 2005, No. 461, § 3; 2015, No. 268, § 9.

Amendments. The 2005 amendment deleted “or chancery judge” at the end of (c)(1); and substituted “the rate of one hundred and seventy-five dollars ($175) per day” for “a daily rate, based upon the daily pay rate of the court reporter for whom he or she is substituting” in (c)(2).

The 2015 amendment substituted “Administrative Office of the Courts” for “Auditor of State” throughout the section; in (b)(1), substituted “shall certify” for “may certify” and deleted “necessary and” preceding “essential”; inserted “or circuit judge on assignment” in (b)(2); added (c)(3); substituted “a trial court administrator employed under § 16-13-3302” for “any trial court administrative assistant employed pursuant to § 16-10-133” in (d); substituted “thirty (30) working days” for “twenty (20) working days” in (e); and made stylistic changes.

16-13-510. Complete record required — Waiver.

  1. In all cases before a circuit court of this state, a complete record of the proceedings shall be made by the official court reporter, or other reporter designated by the court. Upon the request of either party or the circuit judge, said record shall be transcribed, certified by the reporter as true and correct, and filed with the clerk of the court in which the proceedings were had, not less than ten (10) days before the expiration of time allowed for appeal.
  2. Nothing contained in this section shall prevent the parties, with the permission of the circuit court, from waiving a complete record of the proceeding.
  3. The court reporter's duty to transcribe and certify the record may be conditioned upon the payment, when requested by the court reporter, of up to fifty percent (50%) of the estimated cost of the transcript.

History. Acts 1989, No. 844, §§ 1, 2; 1993, No. 812, § 1.

Case Notes

Child Custody.

The clear and unambiguous language of the statute does not allow anything less than a complete record of the proceedings to be made and this requirement cannot be waived; thus, a record must be made of in-camera interviews in matters of child custody. Mattocks v. Mattocks, 66 Ark. App. 77, 986 S.W.2d 890 (1999).

Harmless Error.

Although the trial court's failure to make a verbatim record of the in-chambers conference was error, it was not reversible error since the record was settled by the trial court. Smith v. State, 324 Ark. 74, 918 S.W.2d 714 (1996).

Motion to Compel Arbitration.

In a case involving a trial court's order denying a motion to compel arbitration, remand was necessary because, in its order denying the motion to compel arbitration, the trial court said that it had announced its decision in open court during a hearing but there was no transcript of such a hearing either in the addendum or in the record. Evangelical Lutheran Good Samaritan Soc'y v. Kolesar, 2013 Ark. App. 195 (2013).

Notice of Appeal.

Failure to lodge the record was due to the dilatory actions of the husband's attorney, because while the notice of appeal stated that the attorney had ordered the transcript, it was apparent that she failed to provide the court reporter with a copy of the notice of appeal or otherwise inform court reporter that she needed the transcript until just before the original deadline to lodge the record. Eggestein v. Eggestein, 2009 Ark. 262, 308 S.W.3d 144 (2009).

Circuit court erred in granting a city's motion for extension of time to file the record in its appeal of condemnation action because the city failed to strictly comply with Ark. R. App. P. Civ. 5 where it failed to make the financial arrangements necessary for the court reporter to prepare the stenographically recorded material until the very last day that an extension could be granted. It would make little sense to hold that an extension was necessary for the court reporter to include the stenographically reported material in the record when the city was at fault in creating the necessity by failing to pay the court reporter the required deposit. City of Little Rock v. Hermitage Dev. Corp., 2015 Ark. 453, 476 S.W.3d 788 (2015).

Silence Not Waiver.

Because the state and the defense did not waive their right to a verbatim record, the trial court's failure to make a verbatim record of the in-chambers conferences on the defendant's directed-verdict motion was error; although the state voiced no objection to the trial court's handling of the directed-verdict motion in this manner, the Supreme Court of Arkansas would not construe the state's silence on the issue at trial as implying a waiver of this requirement and warned that in the future the record requirement would be strictly construed and enforced. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003).

Cited: Valley v. Bogard, 341 Ark. 302, 20 S.W.3d 271 (2000); Arkansas Realtors Ass'n v. Real Forms, LLC, 2014 Ark. 385, 442 S.W.3d 845 (2014); Terry v. State, 2019 Ark. 342 (2019).

16-13-511. [Repealed.]

Publisher's Notes. This section, concerning transfer of funds to the court reporters' fund from county aid fund to pay salaries and expenses, was repealed by Acts 1997, No. 788, § 31 and No. 1341, § 30. The section was derived from Acts 1991, No. 479, § 1.

16-13-512. Funding of official court reporters.

  1. The state, rather than individual counties, shall bear the responsibility of funding the salaries and expenses of official state court reporters.
  2. Each county or counties within a judicial district shall continue to bear the responsibility of providing, at the county's expense, each official court reporter with appropriate office space and operating expenses, when approved in advance by the quorum court.

History. Acts 1997, No. 788, § 30; 1997, No. 1341, § 29.

Cross References. Legislative intent of Acts 1997, Nos. 788 and 1341, § 16-10-601.

Transition to state funding, § 16-87-301.

Subchapter 6 — Juvenile Division of Chancery Court

16-13-601, 16-13-602. [Repealed.]

Publisher's Notes. These sections, concerning legislative intent and creation of the Juvenile Division of the Chancery Court, were repealed by Acts 2003, No. 1185, § 91. The sections were derived from the following sources:

16-13-601. Acts 1989, No. 294, § 1.

16-13-602. Acts 1989, No. 294, § 2.

16-13-603. [Repealed.]

Publisher's Notes. This section, concerning jurisdiction of the Juvenile Division of the Chancery Court, was repealed by Acts 2003, No. 1185, § 92. The section was derived from Acts 1989, No. 294, §§ 2, 5, 7; 1995, No. 1016, § 2.

16-13-604 — 16-13-607. [Repealed.]

Publisher's Notes. These sections, concerning judges and clerks of the Juvenile Division of the Chancery Court, were repealed by Acts 2003, No. 1185, § 93. These sections were derived from the following source:

16-13-604. Acts 1989, No. 294, § 3.

16-13-605. Acts 1989, No. 294, § 3.

16-13-606. Acts 1989, No. 294, §§ 3, 4.

16-13-607. Acts 1989, No. 294, § 6.

16-13-608. [Repealed.]

Publisher's Notes. This section, concerning transfer of dockets and records, etc, was repealed by Acts 1995, No. 1296, § 59. The section was derived from Acts 1989, No. 294, § 6.

Subchapter 7 — Enforcement of Fines

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Effective Dates. Acts 2007, No. 663, § 56: Jan. 1, 2012.

Acts 2013, No. 282, § 17: Mar. 6, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the effectiveness of this act as soon as possible is essential to the operation of the judiciary and the administration of justice; and that this act is immediately necessary because the delay in the effective date of this act could cause irreparable harm upon the proper administration of essential governmental 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: (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.”

16-13-701. Scope — Definition.

  1. The procedures established by this subchapter shall apply to the assessment and collection of all fines, however designated, imposed by circuit courts and district courts for criminal convictions, traffic convictions, civil violations, and juvenile delinquency adjudications and shall be utilized to obtain prompt and full payment of all fines.
  2. As used in this subchapter, “fine” means a monetary penalty imposed by a court, including without limitation:
    1. A monetary fine;
    2. Court costs;
    3. Court-ordered restitution;
    4. Probation fees;
    5. Supervision fees;
    6. Public service supervisory fees; and
    7. Other court-ordered fees.

History. Acts 1995, No. 1262, § 1; 1997, No. 941, § 1; 2001, No. 1809, § 12; 2003, No. 1765, § 8; 2005, No. 1934, § 6; 2007, No. 663, § 31; 2019, No. 113, § 2.

Amendments. The 2005 amendment substituted “or city courts” for “city courts, or police courts” in (a).

The 2007 amendment, in (a), deleted “or city courts” following “district courts” and made a related change.

The 2019 amendment added “Definition” in the section heading; deleted “monetary” following “collection of all” in (a); rewrote (b); and made a stylistic change.

Cross References. City courts generally, § 16-96-101 et seq.

District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-13-702. Immediate payment.

    1. When a court has imposed a fine, as described in § 16-13-701, the imposition of such a fine constitutes an order to pay the full amount of the fine in accordance with this subchapter.
    2. Following imposition of the fine, the court shall inform the defendant that full payment of the fine is due immediately and shall inquire of the defendant what arrangements he or she has made to comply with the court's order to pay the fine.
    3. Without utilizing the provisions of § 16-13-704, the court may allow the defendant a period of time, not to extend beyond the time of the close of the clerk's office on the following day, within which to return to the court and tender payment of the fine.
        1. If the defendant fails to appear as directed, the court shall issue an order of arrest.
        2. The arrest order shall be carried out by the sheriff.
      1. The court may also, upon the defendant's failure to appear, utilize any of the enforcement mechanisms authorized by this subchapter.
      1. If the defendant claims an inability to pay the fine, the court shall inquire into the defendant's ability to pay and shall make a determination of the defendant's financial ability to pay the fine.
      2. If the court finds that the defendant has the financial ability to make immediate payment of the fine in full, the court shall order him or her to pay the fine.
      3. Failure or refusal to pay as ordered by the court shall subject the defendant to imprisonment, as provided in § 16-13-703.
    1. When a corporation is sentenced to pay a fine or costs, it is the duty of the person authorized to make disbursement from the assets of the corporation to pay the fine or costs.
    2. If such disbursements require approval of the board of directors, it is the duty of the board to authorize disbursements to pay the fine or costs.
    3. Failure to comply with the duties imposed by this subsection shall render the person or directors subject to imprisonment under § 16-13-703.

History. Acts 1995, No. 1262, §§ 2, 4.

Case Notes

Right to Appeal.

City could not rely on the application of this section to claim that defendants' appeal had to be dismissed for the failure of defendants to pay an appeal bond because, even though the court had the right to order installment payments, nothing in this section authorizes a district court to demand payment of the fine as a prerequisite for taking an appeal to circuit court. Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006).

16-13-703. Imprisonment.

  1. When a defendant sentenced to pay a fine defaults in the payment thereof, or of any installment, the court, upon its own motion or that of the prosecuting attorney, may require him or her to show cause why he or she should not be imprisoned for nonpayment.
  2. The court may issue a warrant of arrest or summons for his or her appearance.
    1. Unless the defendant shows that his or her default was not attributable to a purposeful refusal to obey the sentence of the court or to a failure on his or her part to make a good-faith effort to obtain the funds required for payment, the court may order the defendant imprisoned in the county jail or other authorized institution designated by the court until the fine or specified part thereof is paid.
      1. The period of imprisonment shall not exceed one (1) day for each forty dollars ($40.00) of the fine, thirty (30) days if the fine was imposed upon conviction of a misdemeanor, or one (1) year if the fine was imposed upon conviction of a felony, whichever is the shorter period.
      2. The total amount of fines owed shall not automatically be reduced by the period of imprisonment, but the court may credit forty dollars ($40.00) for each day of imprisonment against the total fine, excluding any amount owed for restitution, the defendant has been sentenced to pay.
    2. This subsection is in addition to the revocation options contained in § 16-93-308.
  3. If the court determines that the default in payment of the fine is not attributable to the causes specified in subsection (c) of this section, the court may enter an order allowing the defendant additional time for payment, reducing the amount of each installment, or revoking the fine or the unpaid portion thereof in whole or in part.

History. Acts 1995, No. 1262, § 4; 2003, No. 1765, § 9; 2013, No. 225, § 1.

Amendments. The 2013 amendment inserted “excluding any amount owed for restitution” in (c)(2)(B); and rewrote (c)(3).

Research References

Ark. L. Rev.

Bryan Altman, Comment: Improving the Indigent Defense Crisis Through Decriminalization, 70 Ark. L. Rev. 769 (2017).

Case Notes

Improper Judicial Conduct.

Finding that the judge be removed from office was appropriate, in part because he had contact with probationers when he collected money and such conduct did not pass the test for appearance of impropriety nor did this section cure the appearance of impropriety. A circuit court was not authorized to collect the fine itself and it was clear that the judge's collection of money from defendants in open court would create in reasonable minds a perception that his ability to carry out his judicial responsibilities with integrity, impartiality, and competence was impaired. Ark. Judicial Discipline and Disability Comm'n v. Proctor, 2010 Ark. 38, 360 S.W.3d 61, cert. denied, isability Comm'n, 561 U.S. 1027, 130 S. Ct. 3516, 177 L. Ed. 2d 1093 (2010).

Right to Appeal.

City could not rely on the application of this section to claim that defendants' appeal had to be dismissed for the failure of defendants to pay an appeal bond because, even though this section authorizes imprisonment for failure to pay a fine, nothing in it authorizes a district court to demand payment of the fine as a prerequisite for taking an appeal to circuit court. Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006).

16-13-704. Installment payments — Definition.

    1. If the court concludes that the defendant has the ability to pay the fine, but that requiring the defendant to make immediate payment in full would cause a severe and undue hardship for the defendant and the defendant's dependents, the court may authorize payment of the fine by means of installment payments in accordance with this subchapter.
      1. When a court authorizes payment of a fine by means of installment payments, it shall issue, without a separate disclosure hearing, an order that the fine be paid in full by a date certain and that in default of payment, the defendant must appear in court to explain the failure to pay.
      2. In fixing the date of payment, the court shall issue an order which will complete payment of the fine as promptly as possible without creating a severe and undue hardship for the defendant and the defendant's dependents.
    2. When a person is authorized to pay a fine on an installment basis, any court cost assessed under § 9-15-202(d) or § 16-10-305(h) shall be collected from the initial installment payment first.
      1. In addition to the fine and any other assessments authorized by this subchapter, an installment fee of five dollars ($5.00) per month shall be assessed on each person who is authorized to pay a fine on an installment basis.
      2. This fee shall be collected in full each month in which a defendant makes an installment payment.
      3. This fee shall accrue each month that a defendant does not make an installment payment and the fine has not been paid in full.
        1. One-half (½) of the installment fee collected in circuit 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 Judicial Fine Collection Enhancement Fund established by § 16-13-712.
        2. The other half of the installment fee shall be remitted by the tenth day of each month to the county treasurer to be deposited into a fund entitled the “circuit court automation fund” to be used solely for circuit court-related technology.
        1. Expenditures from the circuit court automation fund shall be approved by the administrative circuit judge of each judicial circuit and shall be authorized and paid under the state laws governing the appropriation and payment of county expenditures.
        2. Expenditures may be made for indirect expenses related to implementation of new court-related technology, including overtime pay, personnel or travel expenses, and technology-related supplies.
        3. Funds in each county in a judicial district may be pooled for expenditure pursuant to a circuit-wide technology plan approved by the administrative circuit judge.
      1. One-half (½) of the installment fee collected in district court shall be remitted by the tenth day of each month to the Administration of Justice Funds Section, on a form provided by that section, for deposit into the Judicial Fine Collection Enhancement Fund established by § 16-13-712.
      2. The other half of the installment fee collected in district court shall be remitted by the tenth day of each month to the city treasurer of the city in which the district court is located to be deposited into a fund entitled the “district court automation fund” to be used solely for district court-related technology.
      3. In any district court which is funded solely by the county, the other half of this fee shall be remitted by the tenth day of each month to the county treasurer of the county in which the district court is located to be deposited into the district court automation fund to be used solely for district court-related technology.
        1. Expenditures from the district court automation fund shall be approved by a district judge and shall be authorized and paid under state laws governing the appropriation and payment of county or municipal expenditures by the governing body or, if applicable, governing bodies, that contribute to the expenses of a district court.
        2. Expenditures may be made for indirect expenses related to implementation of new court-related technology, including overtime pay, personnel or travel expenses, and technology-related supplies.
        1. In circuit court only, an installment fee of an additional five dollars ($5.00) per month shall also be assessed on the first day of each month on each person who is ordered to pay a fine on an installment basis with the additional five dollars ($5.00) to be remitted to the collecting official to be used to defray the cost of fine collection.
        2. In district court only, an installment fee of an additional five dollars ($5.00) per month shall also be assessed on the first day of each month on each person who is ordered to pay a fine on an installment basis with the additional five dollars ($5.00) to be remitted by the tenth day of each month to the Administration of Justice Funds Section on a form provided by that section for deposit into the State Administration of Justice Fund.
  1. Any defendant who has been authorized by the court to pay a fine by installments shall be considered to have irrevocably appointed the clerk of the court as his or her agent upon whom all papers affecting his or her liability may be served, and the clerk shall forthwith notify the defendant thereof by ordinary mail at his or her last known address.
  2. “Ability to pay” means that the resources of the defendant, including all available income and resources, are sufficient to pay the fine and provide the defendant and his or her dependents with a reasonable subsistence compatible with health and decency.

History. Acts 1995, No. 1262, § 3; 2001, No. 1809, § 13; 2003, No. 1185, § 94; 2003, No. 1765, § 10; 2005, No. 1934, § 7; 2007, No. 663, § 32; 2011, No. 1138, §§ 1, 2; 2011, No. 1218, § 2; 2013, No. 282, § 9; 2017, No. 583, § 4.

Amendments. The 2007 amendment deleted “or city court” following “district court” in (b)(3)(A); deleted former (b)(3)(B)(ii) and (b)(3)(E); and made related changes.

The 2011 amendment by No. 1138 inserted (b)(3)(E).

The 2011 amendment by No. 1218 rewrote (b)(2)(B) and (b)(3)(D).

The 2013 amendment redesignated (b)(3)(E) as (b)(3)(E)(i); substituted “is ordered to” for “is authorized to” in (b)(3)(E)(i); and added (b)(3)(E)(ii).

The 2017 amendment added (a)(3).

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Case Notes

Due Process.

Circuit court properly denied the city a directed verdict in a class action alleging that the assessment of installment fees in Little Rock District Court, Second Division violated due process in charging installment fees even if the fine was paid off early. The lack of notice, as established by the evidence at trial, precluded satisfaction of due process; there was no evidence showing that plaintiff mother was advised of a refund or reconsideration of the fee, but instead, she was simply told by the court cashier that she had to pay the entire sum. City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

In a class action alleging that the assessment of installment fees in Little Rock District Court, Second Division violated due process, an appeal under Ark. R. Crim. P. 36 would not have provided an adequate procedure for the return of an illegal fee because an appeal would have placed defendant at risk of a harsher sentence solely to avoid the imposition of the unlawfully assessed installment fee. City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

Circuit court properly denied the city a directed verdict in a class action alleging that the assessment of installment fees in Little Rock District Court, Second Division violated due process because the installment fee policy constituted a governmental policy or custom to which municipal liability could attach; the district court judge consulted with deputy city attorneys and others in implementing the policy and the policy was automatically applied to all district court defendants on an installment plan. City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

Illegal Fee.

Due process violation arising from a district court judge's installment fee policy could be imputed to the city because the judge was an employee of the city since the Little Rock District Court had not yet been reorganized as a state district court at the times relevant to the case; the Little Rock District Court was not part of the state district court program at the time of the events alleged in the complaint. City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

Right to Appeal.

City could not rely on the application of this section to claim that defendants' appeal had to be dismissed for the failure of defendants to pay an appeal bond because, even though the court had the right to order installment payments, nothing in this section authorizes a district court to demand payment of the fine as a prerequisite for taking an appeal to circuit court. Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006).

16-13-705. Personal checks.

  1. The court shall accept personal checks drawn in the favor of a designated official, as provided in § 16-13-709, in payment of any fine or associated charge assessed by the court if the person issuing the check furnishes satisfactory proof of residence in this state and if the personal check is drawn on a banking institution located in this state.
    1. If any personal check offered in payment pursuant to this section is returned without payment, for any reason, a reasonable charge for the returned check, not to exceed the actual costs incurred by the court or designated agency, may be imposed to recover processing and collection costs.
    2. This charge may be added to, and become part of, any underlying obligation.
  2. The acceptance of a personal check pursuant to this section constitutes payment of the obligation owed to the court to the extent of the amount of the check as of the date of acceptance when, but not before, the check is duly paid.

History. Acts 1995, No. 1262, § 5.

Case Notes

Right to Appeal.

City could not rely on the application of this section to claim that defendants' appeal had to be dismissed for the failure of defendants to pay an appeal bond because, even though the court had the right to order installment payments, nothing in this section authorizes a district court to demand payment of the fine as a prerequisite for taking an appeal to circuit court. Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006).

16-13-706. Credit or debit card payments.

  1. The court or the agency designated under § 16-13-709 or § 16-92-118 may accept payment of fines and associated costs by an approved credit card or debit card.
    1. The court or designated agency may enter into contracts with credit card companies and pay those companies fees normally charged by those companies for allowing the court to accept their credit cards in payment as authorized by subsection (a) of this section.
    2. When the offender pays fines or court costs by an approved credit card or debit card, the court may assess the offender a transaction fee.
    1. All courts are authorized to enroll for service with and accept payments from a third-party entity for the acceptance and collection of fines and associated costs with an approved credit card for which the third-party entity may charge the offender a transaction fee.
    2. The State of Arkansas or any of its political subdivisions shall not charge a transaction fee for electronic payments of a court-ordered fine paid through a third-party entity.

History. Acts 1995, No. 1262, § 6; 2003, No. 1765, § 11; 2009, No. 328, § 3; 2009, No. 782, § 2; 2011, No. 1218, § 3.

Amendments. The 2009 amendment by No. 328 inserted “card or debit” in (a) and (b)(2); inserted “or § 16-92-188” in (a); and made minor stylistic changes.

The 2009 amendment by No. 782 rewrote (b)(2); and added (c).

The 2011 amendment substituted “transaction fee” for “service or convenience fee” in (b)(2); substituted “transaction fee” for “service or convenience fee if the credit card company will allow the charge” in (c)(1); and substituted “a transaction fee” for “an access fee” in (c)(2).

Case Notes

Right to Appeal.

City could not rely on the application of this section to claim that defendants' appeal had to be dismissed for the failure of defendants to pay an appeal bond because, even though the court had the right to order installment payments, nothing in this section authorizes a district court to demand payment of the fine as a prerequisite for taking an appeal to circuit court. Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006).

16-13-707. Lien on property.

  1. When a defendant sentenced to pay a fine defaults in the payment thereof or of any installment, the fine may be collected by any means authorized for the enforcement of money judgments in civil actions.
  2. A judgment that the defendant pay a fine shall constitute a lien on the real and personal property of the defendant in the same manner and to the same extent as a money judgment in a civil action.
  3. A judgment entered by a district court shall not become a lien against real property unless a certified copy of the judgment, showing the name of the judgment debtor and the date and amount thereof, shall be filed in the office of the circuit clerk of the county in which the land is situated.

History. Acts 1995, No. 1262, § 7; 2001, No. 1809, § 14; 2003, No. 1765, § 12.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Case Notes

Right to Appeal.

City could not rely on the application of this section to claim that defendants' appeal had to be dismissed for the failure of defendants to pay an appeal bond because, even though the court could collect the fine by any means authorized for the enforcement of money judgments in civil actions for the failure to pay a fine, nothing in this section authorizes the district court to demand payment of the fine as a prerequisite for taking an appeal to circuit court. Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006).

16-13-708. Revocation of registration or license.

  1. The court may certify in writing to the Department of Finance and Administration that a debtor has failed to make satisfactory arrangements for the payment of fines and request the department to revoke, suspend, or refuse to renew the debtor's motor vehicle registration or driver's license.
  2. For driver's license revocation, the court must provide the department with the debtor's full name, social security number, and last known address.
  3. For motor vehicle registration revocation, the court must provide the department with the debtor's full name and the license plate number or vehicle identification number of the debtor's vehicle.

History. Acts 1995, No. 1262, § 8.

16-13-709. Responsibility for collection.

        1. The quorum court of each county of the state shall designate a county official, agency, or department which shall be primarily responsible for the collection of fines assessed in the circuit courts of this state.
        2. All fines collected each month in circuit court by the designated county official, agency, or department shall be disbursed by the fifth working day of the following month to the State Administration of Justice Fund, the county administration of justice fund, and the appropriate county fund, state entity, or state agency as provided by law.
        3. The sheriff shall remain responsible for collecting bail or money deposited in lieu of bail on behalf of defendants discharged from incarceration pursuant to law in circuit court.
        1. The quorum court may delegate the responsibility for the collection of delinquent fines assessed in circuit court to a private contractor.
        2. The contractor may receive, under a written contract, a commission on delinquent fines collected for circuit court.
        1. The commission agreed to be received by the private contractor shall be a portion of the total fine owed by a defendant.
        2. The court shall credit the defendant with the gross amount remitted to the private contractor.
        3. The private contractor shall remit the gross amounts collected to the county official, agency, or department designated under subdivision (a)(1)(A) of this section on at least a monthly basis.
        4. Payment of the commission shall be through the county claims process.
        5. The county treasurer shall make a pro rata disbursement of the remaining fines to the State Administration of Justice Fund, the county administration of justice fund, and the appropriate county fund, state entity, or state agency as provided by law.
        1. The governing body or, if applicable, each governing body of a political subdivision which contributes to the expenses of a district court shall designate a county, town, or city official, agency, or department who shall be primarily responsible for the collection of fines assessed in the district courts of this state.
        2. All fines collected each month in district court or a department of district court by the designated county, town, or city official, agency, or department shall be disbursed by the tenth working day of the following month pursuant to § 16-17-707.
      1. The chief of police of the town or city in which a district court is located shall remain responsible for collecting bail or money deposited in lieu of bail on behalf of defendants discharged from incarceration pursuant to law in district court.
        1. The governing body or, if applicable, each governing body of a political subdivision which contributes to the expenses of a district court may delegate the responsibility for the collection of delinquent fines assessed in district court to a private contractor.
        2. The contractor may receive under a written contract a commission on delinquent fines collected for district court.
        3. The commission agreed to be received by the private contractor shall be a portion of the total fine owed by a defendant.
        4. The court shall credit the defendant with the gross amount remitted to the private contractor.
        5. The private contractor shall remit the gross amount collected to the county, town, or city official, agency, or department designated under subdivision (a)(2)(A) of this section on a monthly basis.
        6. The commission expense shall be apportioned among each governing body of a political subdivision which contributes to the expenses of a district court in proportion to the gross amount of fines collected for that political subdivision.
        7. Payment of the commission shall be according to accounting procedures prescribed by law.
        8. The remainder of fines received shall be disbursed pro rata under this section and §§ 16-10-209, 16-10-308, and 16-17-707.
    1. “Delinquent” means any fines assessed in the circuit courts or district courts of this state which have not been paid as ordered for a period of ninety (90) days or three (3) payments, either consecutive or concurrent, since payment was ordered or since last partial payment was received.
    2. A copy of the ordinance making the designation shall be provided to the Administrative Office of the Courts.
    1. If a private contractor is selected to collect delinquent fines, then to ensure the integrity of the court and to protect the county, town, or city, the contractor shall register with the Secretary of State and shall file with the Secretary of State a surety bond or certificate of deposit.
    2. The amount of the surety bond or certificate of deposit shall be fifty thousand dollars ($50,000).
    3. The county, town, city, or any person suffering damage by reason of the acts or omissions of the contractor may bring action on the bond for damages.
    4. A contractor shall be ineligible to provide such services if the owner, operator, partner, or employee has been convicted of a felony.

History. Acts 1995, No. 1262, § 9; 1997, No. 941, § 2; 1999, No. 1081, § 10; 2001, No. 1809, § 15; 2003, No. 1185, § 95; 2003, No. 1765, § 13; 2005, No. 1934, § 8; 2007, No. 663, § 33.

A.C.R.C. Notes. As amended in 2001, subdivision (a)(1)(A) provided:

“on or before January 1, 2002.”

As amended in 2001, subdivision (a)(2)(A) provided:

“on or before January 1, 2002.”

Pursuant to § 1-2-207, this section is set out as amended by Acts 2003, No. 1765, § 13. This section was also amended by Acts 2003, No. 1185, § 96, effective Jan. 1, 2005, amended (a)(2) to read as follows:

“(2)(A) The quorum court of each county of the state or the governing body of the city in which the court is located, or both, on or before January 1 of each year, shall designate a county or city official, agency, department, or private contractor who shall be primarily responsible for the collection of fines assessed in the district courts or city courts of this state.

“(B)(i) In the event the quorum court or the governing body of the city in which the court is located, or both, delegates such responsibility to a private contractor, such contractor may receive, pursuant to state accounting laws, a portion agreed upon in advance by the quorum court or the governing body of the city in which the court is located, or both, as commission for the collection of any and all delinquent fines assessed in the district courts or city courts of this state.

“(C) ‘Delinquent’ means any fines assessed in the circuit courts, district courts or city courts of this state which have not been paid as ordered for a period of ninety (90) days or three (3) payments, either consecutive or concurrent, since payment was ordered or since last partial payment was received.”

Amendments. The 2005 amendment added (a)(1)(A)(ii), (a)(1)(A)(iii), (a)(2)(A)(ii), (a)(2)(B) and (a)(2)(C) and made related changes; redesignated former (a)(2)(B) and (a)(2)(C)(i)-(vii) as present (a)(2)(D) and (a)(2)(B)(iii)-(ix); rewrote present (a)(1)(C)(v); deleted references to “police court” throughout this section, substituted “pro rata under this section and” for “under” in (a)(2)(D)(ix); and made minor stylistic changes.

The 2007 amendment inserted “town” preceding “or city” throughout the section; rewrote (a)(1)(A)(ii) and (a)(1)(C)(v); in (a)(2)(A)(i), deleted “or the governing body of the city in which a city court is located” following “district court” and “city courts, or police courts” preceding “of this state”; deleted former (a)(2)(B) and (a)(2)(C)(viii) and redesignated the remaining subsections accordingly; deleted “or city court” twice in (a)(2)(B) and once in (a)(2)(C)(i); deleted “or the governing body of the city in which a city court is located” following “district court” in (a)(2)(C)(i); added “of this section” in (a)(2)(C)(v); substituted “§§ 16-10-209, 16-10-308, and 16-17-707” for “§§ 14-44-108, 14-45-106, 16-10-209, 16-10-308, 16-17-707 and 16-18-104” in present (a)(2)(C)(viii); deleted “or city courts” following “district courts” in (a)(3); and made related changes.

The 2009 amendment, in (a)(2), inserted “or the sheriff” in (a)(2)(C), inserted “and by mutual agreement” in (a)(2)(D)(i), deleted “and 16-18-104” following “16-17-707” in (a)(2)(D)(ix), and made related and minor stylistic changes.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-13-710. Automated collection procedures.

The Administrative Office of the Courts shall have the responsibility to assist circuit courts and district courts in the assessment and collection of fines and the management and reporting of fine revenue.

History. Acts 1995, No. 1262, § 11; 2001, No. 1809, § 16; 2003, No. 1185, § 97; 2003, No. 1765, § 14; 2007, No. 663, § 34.

Amendments. The 2007 amendment deleted “and city courts” following “district courts” and made a related change.

Effective Dates. Acts 2003, No. 1185, § 97: Jan. 1, 2005, by its own terms.

Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-13-711. Form of orders.

When an order assessing a fine or penalty is entered, information on the order shall include, but is not limited to, the defendant's name, current address, social security number, driver's license number, name and address of employment, amount of fine, and the agreed upon payment terms and conditions.

History. Acts 1995, No. 1262, § 10.

16-13-712. Judicial Fine Collection Enhancement Fund.

  1. There is hereby created on the books of the Treasurer of State the “Judicial Fine Collection Enhancement Fund”, into which the time-payment fees established by § 16-13-704 shall be deposited.
    1. From the revenues deposited into the fund, the Administrative Office of the Courts shall purchase computer hardware to make available to entities designated in § 16-13-709 and responsible for fine collection in each county in order to assist with the assessment, collection, and reporting of fines.
    2. The Administrative Office of the Courts shall also purchase or develop computer software to provide for the uniform assessment, collection, management, and reporting of fines.

History. Acts 1995, No. 1262, § 11.

Subchapter 8 — [Reserved.]

A.C.R.C. Notes. Acts 2001, No. 951, § 1, provided:

“First Judicial Circuit.

“(a) The circuit judgeship which is currently designated as Circuit Division 1 and presently held by L.T. Simes, II shall be known and designated as Circuit Court, Division 1.

“(b) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by Harvey Yates shall be known and designated as Circuit Court, Division 2.

“(c) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Bentley Story shall be known and designated as Circuit Court, Division 3.

“(d) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Kathleen Bell shall be known and designated as Circuit Court, Division 4.

“(e) The circuit-chancery judgeship which is currently designated as the Juvenile Division and presently held by Baird Kinney shall be known and designated as Circuit Court, Division 5.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1893, No. 56, § 12: effective on passage.

Acts 1911, No. 138, § 10: Aug. 1, 1911.

Acts 1921, No. 3, § 5: effective on passage. Emergency declared. Approved Jan. 20, 1921.

Acts 1955, No. 74, § 3: July 1, 1955.

Acts 1967, No. 12, § 4: Jan. 26, 1967. Emergency clause provided: “The General Assembly of the State of Arkansas hereby finds and determines that the matters affected by this Act have a direct relation to the smooth, efficient and timely administration of justice in the counties affected, and that in order for the judges of the courts so affected to properly schedule their case loads for the terms of Court established by this Act, it is necessary that this Act become effective immediately. Therefore, an emergency is hereby found and declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in full force from and after the date of its passage and approval.”

Acts 1967, No. 56, §§ 3, 4: July 1, 1967. Emergency clause provided: “There is a possibility that the 66th General Assembly will be extended, in which event considerable confusion could evolve concerning the effective date of legislation which does not contain an emergency clause. Therefore, an emergency is hereby declared and this act shall be in effect from and after the date of passage.” Approved Feb. 9, 1967.

Acts 1979, No. 556, § 8: Mar. 23, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that since the redistricting of the circuit and chancery courts in the State, the dates set for the beginning of terms of the circuit courts of the various counties comprising the First Circuit-Chancery Court Circuit are not appropriate and the beginning term dates in some of the counties in such circuit are in conflict with the beginning term dates of other counties in such circuit; that it is essential to the effective and efficient administration of justice in the First Circuit-Chancery Court Circuit that dates be prescribed by law for the commencement of the terms of the circuit courts in all counties comprising the First Circuit-Chancery Court Circuit; that this Act is designed to establish such dates 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 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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.”

16-13-901. Composition.

The First Judicial Circuit shall be composed of the counties of Cross, Lee, Monroe, Phillips, St. Francis, and Woodruff.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-902. Terms of court.

    1. The terms of court of the Circuit Court of Cross County in the First Judicial District shall commence on the fourth Monday in January.
    2. The term of court shall be for one (1) year.
    3. Grand and petit juries will serve for a period in accordance with Arkansas law.
    1. The terms of court of the Circuit Court of Woodruff County in the First Judicial District shall commence on the second Monday in January.
    2. The term of court shall be for one (1) year.
    3. Grand and petit juries will serve for a period in accordance with Arkansas law.
    1. The terms of court of the Circuit Court of Monroe County in the First Judicial District shall commence on the third Monday in January.
    2. The term of court shall be for one (1) year.
    3. Grand and petit juries will serve for a period in accordance with Arkansas law.
  1. The terms of court of the Circuit Court of St. Francis County in the First Judicial District shall commence on the first Monday in January.
    1. The terms of court of the Circuit Court of Lee County in the First Judicial District shall commence on the first Monday in February.
    2. The term of court shall be for one (1) year.
    3. Grand and petit juries will serve for a period in accordance with Arkansas law.
    1. The terms of court of the Circuit Court of Phillips County in the First Judicial District shall commence on the second Monday in February.
    2. The term of court shall be for one (1) year.
    3. Grand and petit juries will serve for a period in accordance with Arkansas law.
  2. The terms of court in this section may be amended or modified by agreement of all circuit judges in the First Judicial District.

History. Acts 1891, No. 62, § 2, p. 110; 1893, No. 56, § 4, p. 84; 1911, No. 138, § 8; 1921, No. 3, § 3; 1943, No. 85, § 1; 1953, No. 318, § 1; 1955, No. 74, § 1; 1965, No. 505, § 8; 1967, No. 12, § 1; 1967, No. 56, § 1; 1979, No. 556, §§ 1-6; A.S.A. 1947, §§ 22-310, 22-310n; Acts 2009, No. 489, § 1.

Amendments. The 2009 amendment rewrote (a) through (f), and added (g).

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-903. Judges and chancellors.

  1. The qualified electors of the First Judicial District shall elect:
    1. Two (2) circuit judges;
    2. Two (2) chancellors; and
    3. One (1) circuit-chancery judge.
    1. Each judge of the judgeship created by subdivision (a)(3) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(3) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-904. Additional judgeship. [Referred to Arkansas Judicial Council for approval.]

  1. There is created in the First Judicial District an additional circuit judgeship which shall have jurisdiction in law, equity, and probate.
  2. As soon as possible after July 30, 1999, the Governor shall appoint a qualified person to temporarily fill the First Judicial District circuit judgeship created by subsection (a) of this section, and the appointed person shall serve until December 31, 2000, or until a successor has been elected and qualified, whichever occurs last.
    1. The qualified electors of the district shall elect the additional circuit judge created by this section at the November 2000 general election to take office on January 1, 2001.
    2. The additional judge shall be elected from the district and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
    3. The judge shall serve for elected terms of four (4) years.
  3. The counties which compose the First Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit judgeship created by this section, which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.
  4. There shall be provided for the judge of the circuit judgeship created by this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.
  5. The Attorney General shall, if it is determined to be necessary, present the provisions of this section to the United States District Court for the Eastern District of Arkansas pursuant to the decision in Eugene Hunt, et al. v. State of Arkansas et al., No. PB-C-89-406.

History. Acts 1999, No. 1522, § 1.

A.C.R.C. Notes. “Eugene Hunt, et al. v. State of Arkansas et al., No. PB-C-89-406”, referenced in (f), is an unpublished opinion.

16-13-905. Approval by Arkansas Judicial Council. [Referred to Arkansas Judicial Council for approval.]

  1. The provisions of § 16-13-904 and this section shall be effective only if approved by the Arkansas Judicial Council which said approval shall be in writing to the chairs of the Senate and House Committees on Judiciary.
  2. The council is hereby directed to review the provisions of § 16-13-904 and this section together with all other acts passed and approved by the Eighty-second General Assembly regarding the division of, or the adding of judgeships to, the First Judicial District, and approve the plan which the council determines to be the best solution to the problems facing the First Judicial District.
  3. If it is determined by the council that none of the acts passed regarding the First Judicial District is meritorious, then none of the acts should be approved by the council and none of the acts shall take effect even after passage and approval by the Eighty-second General Assembly.

History. Acts 1999, No. 1522, § 2.

Subchapter 10 — Second Judicial Circuit

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

References to “this subchapter” in §§ 16-13-1001 to 16-13-1004 may not apply to § 16-13-1005, § 16-13-1006, or § 16-13-1007, which were enacted subsequently.

Acts 2001, No. 951, § 2, provided:

“Second Judicial Circuit.

  1. The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Howard Templeton shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Graham Partlow shall be known and designated as Circuit Court, Division 2.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by David Burnett shall be known and designated as Circuit Court, Division 3.

“(d) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 4 and presently held by Rice Van Ausdall shall be known and designated as Circuit Court, Division 4.

“(e) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 5 and presently held by Ralph Wilson, Jr. shall be known and designated as Circuit Court, Division 5.

“(f) The circuit judgeship which is currently designated as Circuit Division 6 and presently held by Victor Hill shall be known and designated as Circuit Court, Division 6.

“(g) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 7 and presently held by David Goodson shall be known and designated as Circuit Court, Division 7.

“(h) The circuit-chancery judgeship which is currently designated as Circuit-Chancer Division 8 and presently held by John Fogleman shall be known and designated as Circuit Court, Division 8.

“(i) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 9 and presently held by David Laser shall be known and designated as Circuit Court, Division 9.”

Acts 2001, No. 951, § 29, provided: “The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided: “Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1911, No. 138, § 10: Aug. 1, 1911.

Acts 1927, No. 219, § 3: effective on passage.

Acts 1967, No. 12, § 4: Jan. 26, 1967. Emergency clause provided: “The General Assembly of the State of Arkansas hereby finds and determines that the matters affected by this Act have a direct relation to the smooth, efficient and timely administration of justice in the counties affected, and that in order for the judges of the courts so affected to properly schedule their case loads for the terms of Court established by this Act, it is necessary that this Act become effective immediately. Therefore, an emergency is hereby found and declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in full force from and after the date of its passage and approval.”

Acts 1981, No. 224, § 7 and 1981, No. 982, § 7: retroactive to Jan. 1, 1981. Emergency clauses provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the caseload in the counties and districts of the Second Judicial Circuit has greatly increased in recent years; that there exists a disparity in the number of cases pending among the counties of the circuit; that the present statutory terms of circuit court are no longer adequate to effectively handle the caseload existing in the various counties and districts within the circuit; and that the circuit judges of the circuit should be given more discretion in scheduling court among the counties where the caseload is heaviest and thereby alleviate case backlog and provide a more efficient administration of justice. 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 retroactive to January 1, 1981.”

Acts 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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. 94, § 7: Feb. 11, 1991. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the case load in the Second Judicial District requires the appointment of a case-coordinator for the District and that the immediate passage of this Act is necessary for the proper administration of justice. 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. 471, § 5: Feb. 27, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the separation of the courts of law and equity combined with the amount of travel required of judges in the Second Judicial District creates an inefficient system of justice which can be greatly improved and streamlined by converting the circuit judges of the Second Judicial District into circuit-chancery judges with jurisdiction in law, equity, and probate. 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. 311, § 5: Feb. 28, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the orderly, effective and efficient administration of justice is fostered by combining circuit and chancery jurisdiction since there generally exists a disparity in the number of cases pending before the circuit and chancery judges of the Second Judicial District, and the ability to freely schedule and exchange cases among the judges will alleviate backlogs. 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. 403, § 7: Mar. 10, 1997. Emergency clause provided: “It is hereby found and determined by the Eighty- First General Assembly of the State of Arkansas that the caseload of the Second Judicial District necessitates the appointment of an additional circuit-chancery judge 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 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. 1186, § 2: Mar. 29, 2001. Emergency clause provided: “It is hereby found and determined by the Eighty-third General Assembly that the caseload of the Second Judicial District necessitates the appointment of an additional circuit judge. 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 2007, No. 168, § 7: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Judicial Resources Assessment Committee has reviewed the caseloads of the various judicial districts; that the caseloads of the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District necessitate the appointment of an additional circuit judges; and that this act is necessary to ensure the smooth, efficient, and timely administration of justice in the counties affected. 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 July 1, 2007.”

Acts 2019, No. 1003, § 9: July 1, 2019, except § 2. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that certain judicial districts under this act have an immediate need for additional circuit court judges due to the number of cases pending in the judicial district. Therefore, an emergency is declared to exist, and all Sections except Section 2 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

16-13-1001. Composition.

The Second Judicial District shall be composed of the counties of Clay, Craighead, Crittenden, Greene, Mississippi, and Poinsett.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1002. Terms of court — Adjournment — Recess.

    1. The terms of the circuit courts of the counties and districts of the Second Judicial District shall commence at the times and places provided for below and shall run for a period of one (1) year:
        1. In the Eastern District of Clay County: On the first Monday in January;
        2. In the Western District of Clay County: On the third Monday in January;
        1. In the Western District of Craighead County: On the first Monday in January;
        2. In the Eastern District of Craighead County: On the third Monday in February;
        1. In the Chickasawba District of Mississippi County: On the first Monday in January;
        2. In the Osceola District of Mississippi County: On the fourth Monday in February;
      1. In Crittenden County: On the fourth Monday in January;
      2. In Greene County: On the second Monday in February; and
      3. In Poinsett County: On the fourth Monday in March.
    2. In the event any of the dates provided in this subsection should fall upon a legal holiday, the term shall commence on the next succeeding day.
  1. The circuit courts of the Second Judicial District shall always be open for the transaction of business on all matters over which they have jurisdiction, except on those days now excluded by law, if any.
  2. There shall be no final adjournments, but the circuit courts of the counties and districts of the district may adjourn from day to day as business within the district demands. Those adjournments shall be considered recesses and shall not prohibit the circuit courts from sitting at any time.

History. Acts 1891, No. 62, § 2, p. 110; 1891, No. 89, § 1, p. 158; 1911, No. 138, § 8, p. 110; 1927, No. 219, §§ 1, 2; 1949, No. 18, § 1; 1965, No. 505, § 8; 1967, No. 12, § 1; 1981, No. 224, §§ 1, 2; 1981, No. 982, §§ 1, 2; A.S.A. 1947, §§ 22-310, 22-310n.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-1003. Judges and chancellors.

    1. The qualified electors of the Second Judicial District shall elect:
      1. Three (3) circuit judges;
      2. Three (3) chancellors;
      3. One (1) circuit-chancery judge; and
      4. One (1) circuit-chancery judgeship.
      1. There is created in the Second Judicial District an additional circuit judgeship which shall have jurisdiction in law, equity, probate, and juvenile matters.
        1. The additional judge shall be elected from the district and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
        2. The judge shall serve for elected terms of six (6) years.
      2. The counties which compose the Second Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit judgeship created by subdivision (a)(2)(A) of this section, which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.
      3. There shall be provided for the judge of the circuit judgeship created by subdivision (a)(2)(A) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.
    1. The judge of the judgeship created by subdivision (a)(1)(C) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(1)(C) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
    3. The circuit-chancery judgeship created by subdivision (a)(1)(D) of this section shall primarily perform the duties of a judge of the juvenile division of chancery court and conduct hearings for the involuntary admission or commitment of persons to the Arkansas State Hospital or any other public or private hospital with a fully trained psychiatrist on the active or consultant staff and shall sit as judge of the circuit, chancery, and probate courts as time permits.
  1. Effective February 27, 1995, the subdistrict 2.2, division 2, and division 3 circuit judgeships shall become circuit-chancery judgeships which shall have jurisdiction in law, equity, and probate.
  2. All circuit judges and all chancery judges of the Second Judicial District which have not already been converted to circuit-chancery judges on February 28, 1997, shall be converted to circuit-chancery judges at the expiration of their present term of office, and, upon election, their successors shall have jurisdiction in law, equity, and probate.
    1. Effective July 1, 2007, there is created in the Second Judicial District an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.
    2. The Governor shall appoint a qualified person who is a resident of the district to temporarily fill the Second Judicial District circuit judgeship created by subdivision (e)(1) of this section, and the appointed person shall serve until January 1, 2009, or until a successor has been elected and qualified.
      1. The qualified electors of the district shall elect the additional circuit judge created by subdivision (e)(1) of this section at the 2008 preferential primary election to take office on January 1, 2009.
      2. The additional circuit judge shall be elected from the district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
      3. The circuit judge shall serve for elected terms of six (6) years.
    3. The counties that compose the Second Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit judgeship created by subdivision (e)(1) of this section, which shall be paid out of the county treasuries in the same manner as other demands against the counties and out of funds appropriated by the respective quorum courts of the counties for these purposes.
    4. There shall be provided for the judge of the circuit judgeship created by subdivision (e)(1) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.
  3. There is created in the Second Judicial District an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1; 1989 (3rd Ex. Sess.), No. 28, § 1; 1995, No. 471, § 1; 1997, No. 311, § 1; 2001, No. 1186, § 1; 2007, No. 168, § 2; 2019, No. 1003, § 1.

A.C.R.C. Notes. Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 1, provided, in part, that:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 1, also provided, in part, that:

“As soon as possible after the effective date of this act, the Governor shall appoint a qualified person to temporarily fill the Second and Sixth Judicial District circuit-chancery judgeships created by this act, and such persons shall serve until December 31, 1990, or until their successors have been elected and qualified, whichever occurs last.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 2, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes. Provided, however, that the additional judgeship for the Sixth Judicial District who is to conduct commitment hearings shall be provided courtroom and office facilities and supplies by the Arkansas State Hospital located in Pulaski County.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 3, provided:

“In each judicial circuit in which additional circuit-chancery judgeships are created pursuant to this Act, there shall be provided court reporters whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

The judgeships referred to in subsection (c) are presumably the circuit judgeships created in subdivision (a)(1).

As originally amended in 2001, subdivision (a)(2)(A) began: “Effective July 1, 2001.”

As originally amended in 2001, subdivision (a)(2) contained two additional sentences which read:

“The Governor shall appoint a qualified person who is a resident of the district to temporarily fill the Second Judicial District circuit judgeship created by this subsection (e), and the appointed person shall serve until December 31, 2002, or until a successor has been elected and qualified, whichever occurs last. The qualified electors of the district shall elect the additional circuit judge created by this subsection (e), at the November 2002 general election to take office on January 1, 2003.”

Acts 2007, No. 168, § 1, provided: “The Judicial Resources Assessment Committee has reviewed the caseloads of various judicial districts and has determined that to ensure the smooth, efficient, and timely administration of justice additional circuit judgeships are needed in the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District. This act authorizes the establishment of five (5) additional circuit judgeships, articulates the applicable appointment and election process of the additional circuit judges, and identifies various resources that will be available.”

In Acts 2007, No. 168, § 2, the term “2008 Nonpartisan Judicial General Election” should have been used in place of “2008 preferential primary election” Circuit judges are now elected on a nonpartisan basis pursuant to Arkansas Constitution, Amendment 80, § 17.

Acts 2019, No. 1003, § 6, provided: “For the circuit judgeships created in the Second, Fourth, and Nineteenth-West Judicial Circuits the vacancies shall be filled by election at the 2020 preferential primary election, with the elected circuit judge to take office on January 1, 2021”.

Amendments. The 2007 amendment added (e).

The 2019 amendment added (f).

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980); Barnett v. State, 328 Ark. 246, 942 S.W.2d 860 (1997).

16-13-1004. Case coordinator.

    1. The judges of the chancery and probate courts for the Second Judicial District may appoint one (1) case coordinator for said judicial district for chancery and probate matters.
    2. The judges of the circuit court for the Second Judicial District may appoint one (1) case coordinator for said judicial district for circuit matters.
  1. The principal duties of the case coordinators shall be to maintain the court calendar, schedule dates for the trial of cases and for the hearing of motions, and other related and incidental duties at the direction of the judges.
    1. Each case coordinator provided for in this section shall receive a salary of not less than twenty-one thousand five hundred dollars ($21,500) nor more than twenty-five thousand dollars ($25,000) per calendar year, which salary shall be prorated between the counties composing the Second Judicial District, based on the number of annual case filings in each of such counties.
    2. When the county quorum courts raise the salaries of county employees, they shall also raise salaries an equivalent amount for the case coordinators provided for in this section.
  2. The reasonable expenses accruing in the offices of the case coordinators shall be prorated among the counties comprising the district in the same manner as the salaries set forth above and be paid out of the county treasury.

History. Acts 1991, No. 94, §§ 1-3; 1993, No. 188, § 1.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-1005. Additional judgeship.

  1. Effective immediately upon passage and approval of this act, there is hereby created in the Second Judicial District an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate.
  2. As soon as possible after March 10, 1997, the Governor shall appoint a qualified person to temporarily fill the Second Judicial District circuit-chancery judgeship created herein, and the appointed person shall serve until December 31, 1998, or until a successor has been elected and qualified, whichever occurs last.
  3. The qualified electors of the Second Judicial District shall elect the additional circuit-chancery judge created herein at the November 1998 general election to take office on January 1, 1999. The additional judge shall be elected at large and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts. The judge shall serve for elected terms of four (4) years.
  4. With the consideration of the creation of this judgeship, the General Assembly is aware of the requirements of the federal Voting Rights Act and the consent decree entered in Eugene Hunt, et al. vs. State of Arkansas, et al. After thorough review of the caseload statistics from the Second Judicial Circuit, the distribution of these cases between the various counties within the judicial circuit, the demographic makeup of the general voting age population and the licensed attorneys within the district, the recent decisions of the United States Supreme Court interpreting the requirements of the federal law, and based upon the recommendation of the Arkansas Judicial Council, the judgeship is to be elected in the manner and as specified in subsection (c) of this section.

History. Acts 1997, No. 403, § 1.

A.C.R.C. Notes. References to “this subchapter” in §§ 16-13-100116-13-1004 may not apply to this section which was enacted subsequently.

Publisher's Notes. The case of Hunt v. Arkansas, No. PB-C-406 (Nov. 7, 1991), referred to in this section, is an unpublished opinion. Two cases which discuss the consent decree are Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995) and Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996).

Meaning of “this act”. Acts 1997, No. 403, codified as §§ 16-13-100516-13-1007.

U.S. Code. The Voting Rights Act, referred to in this section, is codified as 42 U.S.C. § 1971 et seq.

Effective Dates. Acts 1997, No. 403, was signed by the Governor on March 10, 1997, and became effective pursuant to its emergency clause on March 10, 1997.

16-13-1006. Additional judge — Facilities.

The counties which comprise the Second Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by § 16-13-1005 which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.

History. Acts 1997, No. 403, § 2.

A.C.R.C. Notes. References to “this subchapter” in §§ 16-13-100116-13-1004 may not apply to this section which was enacted subsequently.

16-13-1007. Additional judge — Staff.

There shall be provided for the judge of the circuit-chancery judgeship created by this subchapter a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit-chancery courts of this state.

History. Acts 1997, No. 403, § 3.

A.C.R.C. Notes. References to “this subchapter” in §§ 16-13-100116-13-1004 may not apply to this section which was enacted subsequently.

Subchapter 11 — Third Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 951, § 3, provided:

“Third Judicial Circuit.

“(a) The circuit-chancery judgeship which is presently held by Harold Erwin shall be known and designated as Circuit Court, Division 1.

“(b) The chancery judgeship which is presently held by Tom L. Hilburn shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Publisher's Notes. As amended in 2001, subdivision (c)(1)(A) provided:

“Effective immediately, there is created in the Third Judicial District an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate.”

Effective Dates. Acts 1893, No. 39, § 22: effective 90 days after passage.

Acts 1895, No. 36, § 3: effective 60 days after passage.

Acts 2001, No. 114, § 2: Feb. 7, 2001. Emergency clause provided: “It is hereby found and determined by the Eighty-third General Assembly that the caseload of the Third Judicial District necessitates the appointment of an additional judge immediately. 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.”

16-13-1101. Composition.

The Third Judicial District shall be composed of the counties of Jackson, Lawrence, Randolph, and Sharp.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1102. Terms of court.

The terms of court in each county in the Third Judicial District shall commence on the dates set forth below:

  1. Jackson County: On the second Monday after the fourth Monday in August and the second Monday after the third Monday in January;
    1. In the Western District of Lawrence County: On the fourth Monday in August and the third Monday in January;
    2. In the Eastern District of Lawrence County: On the sixth Monday after the fourth Monday in August and the seventh Monday after the third Monday in January;
  2. Randolph County: On the third Mondays in January and July;
  3. Sharp County: On the first Monday in January and the second Monday in July.

History. Acts 1891, No. 62, § 3, p. 110; 1893, No. 39, § 4, p. 56; 1895, No. 36, §§ 1, 2, p. 40; 1903, No. 99, § 1, p. 167; 1933, No. 110, § 1; 1971, No. 459, § 1; A.S.A. 1947, § 22-310.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-1103. Judges and chancellors.

    1. The qualified electors of the Third Judicial District shall elect one (1) circuit judge and one (1) chancellor.
    2. Effective July 1, 1999, the circuit judgeship created by subdivision (a)(1) of this section shall become a circuit-chancery judgeship and shall have jurisdiction in law, equity, and probate.
    1. There is hereby created in the Third Judicial District an additional circuit-chancery judgeship which shall have jurisdiction in law, equity, and probate.
      1. The additional judge shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts.
      2. The judge shall serve for elected terms of four (4) years.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (b)(1) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
      1. There is created in the Third Judicial District an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate.
      2. Pursuant to Arkansas Constitution, Amendment 80, the additional judgeship shall become a circuit judgeship on July 1, 2001.
      3. The judge shall serve for elected terms of six (6) years.
    1. The counties which compose the Third Judicial District shall provide courtroom and office facilities and supplies for the judge of the judgeship created by this subsection, which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.
    2. There shall be provided for the judge of the judgeship created by this subsection a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1995, No. 582, § 2; 1999, No. 1355, § 1; 2001, No. 114, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

As amended by Acts 1999, No. 1355, subdivision (b)(1) began:

“Effective January 1, 2001.”

As amended by Acts 1999, No. 1355, subdivision (b)(2) began with a sentence which read:

“The qualified electors of the Third Judicial District shall elect the additional circuit-chancery judge created in subsection (c)(1) of this section at the November 2000 general election to take office on January 1, 2001.”

The 2001 amendment added subsection (c) and as originally enacted, began “Effective immediately.”

Acts 2001 No. 114 § 1, provided:

“(2) The Governor shall appoint a qualified person who is a resident of the district to temporarily fill the Third Judicial District judgeship created by this subsection (c), and the appointed person shall serve until December 31, 2002, or until a successor has been elected and qualified, whichever occurs last.

“(3)(A) The qualified electors of the district shall elect the additional circuit judge, created by this subsection (c), at the November 2002 general election to take office on January 1, 2003.

“(3)(B) The additional judge shall be elected from the district and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.”

Publisher's Notes. Acts 1999, No. 1355, § 2, provided:

“Notwithstanding the passage and approval of this act by the Eighty-Second General Assembly, its provisions shall be effective only when and if approved by the Judicial Resources Assessment Committee which said approval shall be in writing to the chairmen of the Senate and House Judiciary Committees.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

Subchapter 12 — Fourth Judicial Circuit

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 2001, No. 951, § 4, provided:

“Fourth Judicial Circuit.

“(a) The circuit judgeship which is currently designated as Circuit Division 1 and presently held by William Storey shall be known and designated as Circuit Court, Division 1.

“(b) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by Kim Smith shall be known and designated as Circuit Court, Division 2.

“(c) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Mike Mashburn shall be known and designated as Circuit Court, Division 5.

“(d) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Mark Lindsay shall be known and designated as Circuit Court, Division 6.

“(e) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Stacey Zimmerman shall be known and designated as Circuit Court, Division 3.

“(f) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 4 and presently held by Mary Ann Gunn shall be known and designated as Circuit Court, Division 4.”

Acts 2001, No. 951, § 29, provided: “The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided: “Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1887, No. 38, § 10: effective on passage.

Acts 1989, No. 272, § 7: Mar. 1, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that due to increased workload in the Fourth Judicial District and the financial pressures of inflation that the compensation now provided for the secretary-court reporter-case coordinators of the Fourth Judicial District is inadequate to compensate such secretary-court reporter-case coordinators for the additional workload and responsibilities, and that this act is immediately necessary to provide adequate compensation for such secretary-court reporter-case coordinators. 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 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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. 975, § 5: Mar. 29, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that due to an increased workload in the Fourth Judicial District and the financial pressures of inflation that the compensation now provided for the secretary-court reporter-case coordinators of the Fourth Judicial District is inadequate. 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 immediately from and after its passage and approval.”

Acts 1993, No. 570, § 5: Mar. 18, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that due to an increased workload in the Fourth Judicial District and the financial pressures of inflation that the compensation now provided for the secretary-court reporter-case coordinators of the Fourth Judicial District is inadequate. 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 immediately from and after its passage and approval.”

Acts 1995, No. 636, § 5: became law without Governor's signature. Noted Mar. 14, 1995. Emergency clause provided: “ It is hereby found and determined by the General Assembly that due to an increased workload in the Fourth Judicial District and the financial pressures of inflation that the compensation now provided for the secretary-court reporter-case coordinators of the Fourth Judicial District is inadequate. 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.”

16-13-1201. Composition.

The Fourth Judicial District shall be composed of the counties of Madison and Washington.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1202. Terms of court.

The terms of court in each county in the Fourth Judicial District shall commence on the dates set forth below:

  1. Washington County: On January 1, April 1, July 1, and October 1; and
  2. Madison County: On the first Mondays in March and September.

History. Acts 1887, No. 38, §§ 3, 6, p. 47; 1887, No. 62, § 2, p. 88; 1967, No. 304, §§ 1-3; 1973, No. 814, § 1; A.S.A. 1947, § 22-310.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-1203. Judges and chancellors.

  1. The qualified electors of the Fourth Judicial District shall elect:
    1. Two (2) circuit judges;
    2. Two (2) chancellors; and
    3. One (1) circuit-chancery judge.
    1. Each judge of the judgeship created by subdivision (a)(3) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(3) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
  2. There is created in the Fourth Judicial District an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1; 2019, No. 1003, § 2.

A.C.R.C. Notes. Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Acts 2019, No. 1003, § 6, provided: “For the circuit judgeships created in the Second, Fourth, and Nineteenth-West Judicial Circuits the vacancies shall be filled by election at the 2020 preferential primary election, with the elected circuit judge to take office on January 1, 2021”.

Amendments. The 2019 amendment added (c).

Case Notes

Construction.

This section and § 16-13-403 [repealed] are not conflicting. Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995).

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1204. Secretary-court reporter-case coordinator.

  1. The chancellors, circuit judges, and circuit-chancery judges of the Fourth Judicial District may each employ one (1) secretary-court reporter-case coordinator to perform such duties as may be assigned by the respective judges.
  2. The secretaries authorized by this section shall be appointed by the respective judges, shall be sworn officers of the court, and each shall hold office at the discretion of and during the term of the judge who appointed him or her, except that he or she may be dismissed for incompetency, neglect of duty, or misbehavior.

History. Acts 1989, No. 272, §§ 1-3; 1991, No. 975, § 1; 1993, No. 570, § 1; 1995, No. 636, § 1.

A.C.R.C. Notes. This section was amended by Acts 1991, Nos. 972 and 975; however, the amendments were irreconcilable. Acts 1993, No. 570, § 4 repealed the version of this section as amended by Acts 1991, No. 972.

Acts 1995, No. 636, § 1, also enacted subsections (c)-(e), which provided:

“(c) The secretaries authorized by this section shall each be paid a salary for calendar year 1995 of twenty-three thousand four hundred ninety-five dollars ($23,495) and an annual salary each year thereafter of twenty-four thousand four hundred fifty-eight dollars ($24,458), payable by the counties comprising the Fourth Judicial District. The salaries shall be apportioned between the two (2) counties on the basis of the assessed value of property in the counties, which is determined to be ninety-three and one-half percent (93.5%) for Washington County and six and one-half percent (6.5%) for Madison County, and in the following amounts:

1995 1996 Washington County $21,967.00 $22,868.00 Madison County $ 1,528.00 $ 1,590.00 TOTAL $23,495.00 $24,458.00

Click to view table.

“(d) The salaries shall be payable in twenty-six (26) equal installments by the paying offices of the respective counties.

“(e) The provisions of this section and the salaries prescribed herein shall be retroactive to January 1, 1995.”

Publisher's Notes. Acts 1993, No. 570, § 1 provided, in part, that:

“The provisions of this section and the salaries prescribed herein shall be retroactive to January 1, 1993.”

Acts 1995, No. 636 became law without the Governor's signature.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-1205. Additional judgeship.

  1. Effective January 1, 1999, there is hereby created in the Fourth Judicial District an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate.
  2. The qualified electors of the Fourth Judicial District shall elect the additional circuit-chancery judge created in subsection (a) of this section at the November 1998 general election to take office on January 1, 1999. The additional judge shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts. The judge shall serve for elected terms of four (4) years.

History. Acts 1997, No. 319, § 1.

A.C.R.C. Notes. Section 16-13-1205 should be merged with § 16-13-1203 for consistency and in conformity with Code style. Pursuant to § 1-2-303, the Arkansas Code Revision Commission is unable to effect the merger.

16-13-1206. Additional judge — Facilities.

The counties which comprise the Fourth Judicial District shall provide the courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by § 16-13-1205(a), which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.

History. Acts 1997, No. 319, § 2.

A.C.R.C. Notes. Section 16-13-1206 should be merged with § 16-13-1203 for consistency and in conformity with Code style. Pursuant to § 1-2-303, the Arkansas Code Revision Commission is unable to effect the merger.

In this section “comprise” should be replaced by “compose,” but pursuant to § 1-2-303, the Arkansas Code Revision Commission is unable to effect the change.

16-13-1207. Additional judge — Staff.

There shall be provided for the judge of the circuit-chancery judgeship created by § 16-13-1205(a) a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit-chancery courts of this state.

History. Acts 1997, No. 319, § 3

A.C.R.C. Notes. Section 16-13-1207 should be merged with § 16-13-1203 for consistency and in conformity with Code style. Pursuant to § 1-2-303, the Arkansas Code Revision Commission is unable to effect the merger.

16-13-1208. Additional judgeship.

  1. There is created in the Fourth Judicial District an additional circuit judgeship.
  2. The qualified electors of the district shall elect the additional circuit judge created by subsection (a) of this section at the 2010 general election for nonpartisan judicial offices held on the same dates and at the same times and places as the preferential primary election to take office on January 1, 2011.
    1. The additional circuit judge shall be elected from the district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
    2. The circuit judge shall serve for elected terms of six (6) years.
  3. The counties that compose the Fourth Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit judgeship created by subsection (a) of this section which shall be paid out of the county treasury in the same manner as other demands against the county and out of funds appropriated by the quorum court of the county for these purposes.
  4. There shall be provided for the judge of the circuit judgeship created by subsection (a) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.

History. Acts 2009, No. 293, § 2.

A.C.R.C. Notes. Acts 2009, No. 293, § 1, provided: “The Judicial Resources Assessment Committee of the Arkansas Judicial Council has reviewed the caseloads of various judicial districts and has determined that to ensure the smooth, efficient, and timely administration of justice an additional circuit judgeship is needed in the Fourth Judicial District. This act authorizes the establishment of one (1) additional circuit judgeship, articulates the election process of the additional circuit judge, and identifies various resources that will be available.”

Subchapter 13 — Fifth Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 951, § 5, provided:

“Fifth Judicial Circuit.

“(a) The circuit judgeship which is presently held by John S. Patterson shall be known and designated as Circuit Court, Division 1.

“(b) The chancery judgeship which is presently held by Richard Gardner shall be known and designated as Circuit Court, Division 2.

“(c) The circuit-chancery judgeship which is presently held by Ken Coker, Jr. shall be known and designated as Circuit Court, Division 3.

“(d) The circuit-chancery judgeship which is presently held by Dennis Sutterfield shall be known and designated as Circuit Court, Division 4.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1889, No. 31, § 9: effective on passage.

Acts 1947, No. 120, § 4: approved Feb. 26, 1947. Emergency clause provided: “It is ascertained and hereby declared that an established time for holding circuit court being necessary for the functioning of our government, an emergency is hereby declared to exist. This act being necessary for the immediate preservation of the public peace, health and safety of the State of Arkansas, shall be in full force and effect from and after its passage.”

Acts 1955, No. 146, § 3: July 1, 1955.

Acts 1965, No. 96, § 8: Feb. 23, 1965. Emergency clause provided: “It is hereby found and determined by the General Assembly of Arkansas that due to the large number of cases pending before the courts of the Fifth Judicial Circuit, there is an unusual and undesirable delay in the adjudication of the rights of parties involved in litigation in said courts; that this Act is immediately necessary to relieve said undesirable situation by providing for an additional Division of court and an additional judge to expedite the clearing of the dockets in said courts and thereby to expedite the administration in said Judicial Circuit. 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 effect from the date of its passage and approval.”

Acts 1979, No. 317, § 4: Mar. 7, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that, due to court redistricting effective January 1, 1979, there is confusion as to which law sets terms of court and court personnel salaries and that this Act is immediately necessary to replace the obsolete law. 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. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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. 1246, § 5: became law without Governor's signature. Noted Apr. 12, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the case load of the Fifth Judicial District is increasing significantly; that it is extremely important to retain qualified and experienced court personnel to assure the efficient and swift disposition of the work of the court; that the present salary of the personnel affected by this act is inadequate; that this act will adjust the salary to a more reasonable level; and that this act should be given effect immediately in order to eliminate the inequities 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.”

16-13-1301. Composition.

The Fifth Judicial District shall be composed of the counties of Franklin, Johnson, and Pope.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1302. Terms of court.

The terms of court for the circuit court of the Fifth Judicial District shall begin on the following days:

    1. Franklin County, Charleston District: On the first Mondays in February and September; and
    2. Franklin County, Ozark District: On the third Mondays in February and September;
  1. Johnson County: On the first Mondays in March and October; and
  2. Pope County: On the first Mondays in April and November.

History. Acts 1889, No. 31, §§ 1, 3, 4, p. 38; 1947, No. 120, §§ 1, 2; 1955, No. 146, § 1; 1965, No. 96, § 5; 1971, No. 198, § 2; 1979, No. 317, § 2; A.S.A. 1947, §§ 22-310, 22-310n.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-1303. Judges and chancellors.

The qualified electors of the Fifth Judicial District shall elect:

  1. One (1) circuit judge;
  2. One (1) chancellor;
    1. One (1) circuit-chancery judge.
      1. Each judge of the judgeship created by subdivision (3)(A) of this section shall be the judge of the juvenile division of chancery court.
      2. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (3)(A) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits; and
    1. An additional circuit-chancery and juvenile judgeship which shall have jurisdiction in law, equity, and probate.
    2. The additional judge shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts.
    3. The judge shall serve for elected terms of four (4) years.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1; 1999, No. 1151, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

As amended by Acts 1999, No. 1151, subdivision (4)(A) began:

“Effective January 1, 2001, there is hereby created in the Fifth Judicial District.”

As amended by Acts 1999, No. 1151, subdivision (4)(B) began with a sentence which read:

“The qualified electors of the Fifth Judicial District shall elect the additional circuit-chancery judge created in subsection (c)(1) of this section at the November 2000 general election to take office on January 1, 2001.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1304. Case coordinator.

    1. The Judge of the Circuit Court for the Fifth Judicial District may appoint one (1) case coordinator for said district for circuit matters.
    2. The Judge of the Chancery and Probate Court for the Fifth Judicial District may appoint one (1) case coordinator for the district for chancery and probate matters.
  1. The principal duties of the case coordinators shall be to maintain the court calendar, schedule dates for the trial of cases and for the hearing of motions, and other related and incidental duties at the direction of the judges.
  2. The case coordinators authorized by this section shall be appointed by the respective judges, shall be sworn officers of the court, and shall hold office at the discretion of and during the term of the judge who appointed them, except that they may be dismissed for incompetency, neglect of duty, or misbehavior.
  3. Each case coordinator shall receive expenses and automobile allowances as authorized for county employees. The same shall be prorated among the counties comprising the district in the same manner as the salary set forth above and be paid out of the county treasury.

History. Acts 1995, No. 1246, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

As enacted by Acts 1995, No. 1246, present subsection (d) of this section was subsection (g) and this section contained subsections (d)-(f) and (h) which provided:

“(d) Each case coordinator authorized by this section shall receive a salary of not less than fifteen thousand dollars ($15,000) nor more than twenty-two thousand dollars ($22,000) per calendar year payable in the following manner: two-thirds (2/3) from Pope County, one-sixth (1/6) from Johnson County, and one-sixth (1/6) from Franklin County.

“(e) The salaries shall be payable in twenty-six (26) equal installments by the paying offices of the respective counties.

“(f) The beginning salary of each case coordinator shall be determined by the judge of each court with consideration given to the case load of each court.

“(h) When the Pope county quorum court raises the salaries of Pope county employees, the participating counties shall also raise salaries in a proportionate amount for the case coordinators provided for in this section.”

Subchapter 14 — Sixth Judicial Circuit

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 286, § 15, provided:

“All of the employees covered by this act who were on the county payroll on or after July 10, 1987, shall receive a four percent retroactive reimbursement under this act for those days employed on or after July 10, 1987 in a position covered by this act. Also, all of the employees covered by this act who were on the county payroll on or after December 26, 1987, shall receive an additional compound four percent retroactive reimbursement under this act for those days employed on or after December 26, 1987 in a position covered by this act. Also, all of the employees covered by this act who were on the county payroll on or after December 24, 1988, shall receive an additional compound four percent retroactive reimbursement under this act for those days employed on or after December 24, 1988 in a position covered by this act. Further, any person not currently employed by Pulaski County shall be excluded from any retroactive reimbursement. Further, any employee that changed from a job covered by this act to another job covered by this act shall be included in and entitled to the retroactive reimbursement effect of this act, on a daily pro rata basis, for any time employed in a job covered by this act.

“All employees entitled to retroactive reimbursement of salary increases under this section shall be paid in a lump sum payment.”

Acts 2001, No. 951, § 6, provided:

“Sixth Judicial Circuit.

  1. The circuit judgeship which is currently designated as Circuit Division 1 and presently held by Marion Humphrey shall be known and designated as Circuit Court, Division 1.

“(b) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by Chris Piazza shall be known and designated as Circuit Court, Division 2.

“(c) The circuit judgeship which is currently designated as Circuit Division 3 and presently held by John Ward shall be known and designated as Circuit Court, Division 3.

“(d) The circuit judgeship which is currently designated as Circuit Division 4 and presently held by John W. Langston shall be known and designated as Circuit Court, Division 4.

“(e) The circuit judgeship which is currently designated as Circuit Division 5 and presently held by Willard Proctor, Jr. shall be known and designated as Circuit Court, Division 5.

“(f) The circuit judgeship which is currently designated as Circuit Division 6 and presently held by David Bogard shall be known and designated as Circuit Court, Division 6.

“(g) The circuit judgeship which is currently designated as Circuit Division 7 and presently held by John B. Plegge shall be known and designated as Circuit Court, Division 7.

“(h) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Alice Gray shall be known and designated as Circuit Court, Division 12.

“(i) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Collins Kilgore shall be known and designated as Circuit Court, Division 13.

“(j) The chancery judgeship which is currently designated as Chancery Division 3 and presently held by Vann Smith shall be known and designated as Circuit Court, Division 14.

“(k) The chancery judgeship which is currently designated as Chancery Division 4 and presently held by Robin Mays shall be known and designated as Circuit Court, Division 15.

“(l) The chancery judgeship which is currently designated as Chancery Division 5 and presently held by Ellen Brantley shall be known and designated as Circuit Court, Division 16.

“(m) The chancery judgeship which is currently designated as Chancery Division 6 and presently held by Mackie Pierce shall be known and designated as Circuit Court, Division 17.

“(n) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 7 and presently held by Rita Gruber shall be known and designated as Circuit Court, Division 11.

“(o) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 8 and presently held by Wiley Branton shall be known and designated as Circuit Court, Division 8.

“(p) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 9 and presently held by Mary McGowan shall be known and designated as Circuit Court, Division 9.

“(q) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 10 and presently held by Joyce Williams Warren shall be known and designated as Circuit Court, Division 10.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Publisher's Notes. Acts 1989, No. 286, § 11, provided:

“All of the above salary increases shall apply retroactively as provided in Section 15 and shall apply prospectively to all employees covered by this act. Further, the above salary increases shall not operate to prevent salary increases as otherwise provided by this act or any other legislative act or county ordinance.”

Preambles. Acts 1985, No. 336 contained a preamble which read:

“Whereas, the case of Venhaus v. State, et al, Sup. Ct. #84-205; held that the quorum courts of the various counties cannot set the salaries of court employees under Amendment 55 to the Constitution of Arkansas, and the same case held that the judges of the courts of the various judicial districts cannot set the salaries of the courts' employees within a legislatively specified range; and

“Whereas, there is currently no legal authority to pay many employees of the various courts, other than the inherent powers of said courts to impound funds to pay the lawful expenses of the administration of justice; and

“Whereas, the six circuit courts and the four chancery courts of the Sixth Judicial District have one of the highest case loads in the State; and

“Whereas, the judges of the Sixth Judicial Circuit have historically been among the highest in disposal rates in the State of Arkansas, it is hereby found that the several judges are in need of additional staff in order to continue to perform their duties as required by law….”

Acts 1989, No. 286 contained a preamble which read:

“Whereas, this Act consolidates all separate salary Acts; and

“Whereas, this Act provides authority for the Quorum Court of Pulaski County to treat all county employees in the same manner; and

“Whereas, certain county employees have not received salary increases due to a question concerning the Quorum Court having the legal authority to grant salary increases to these employees; and

“Whereas, it is desirable to bring into equal balance the salaries of Pulaski County employees;

“Now therefore …”

Effective Dates. Acts 1893, No. 56, § 12: effective on passage.

Acts 1913, No. 64, § 13: approved Feb. 20, 1913. Emergency declared.

Acts 1923, No. 100, § 3: effective on passage. Emergency declared. Approved Feb. 9, 1923.

Acts 1979, No. 211, § 9: Feb. 23, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the effective and efficient administration of justice in the Sixth Circuit-Chancery Circuit that this Act 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 1979, No. 248, § 6: Mar. 1, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the investigation of a defendant's record and standing in the community prior to and subsequent to sentencing would be beneficial and helpful to the court in passing judgment in particular cases and that this Act is necessary to provide such services to the Fourth Division Circuit Court of Pulaski County. 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 (Ex. Sess.), No. 38, § 5: Jan. 1, 1982. Emergency clause provided: “It being determined by the General Assembly that the proper and effective management of the State Judicial System and the administration of justice requires that the provisions of this Act be implemented as soon as possible and this Act is necessary for the proper management of the judicial system of the 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 January 1, 1982.”

Acts 1985, No. 336, §§ 23, 25: retroactive to Jan. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that adequate lawful funding and staff should be provided for the Sixth Judicial Circuit; and that the lawful funding and staff are currently inadequate; and that this Act is immediately necessary to grant such authority. 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.” Became law without Governor's signature, Mar. 13, 1985.

Acts 1987, No. 344, § 6: effective retroactive to Jan. 1, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that adequate lawful funding should be provided for the Sixth Judicial District; and that the lawful funding is currently inadequate; and that this Act is immediately necessary to grant such authority. 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.” Became law without Governor's signature. Noted in Governor's office on Mar. 19, 1987.

Acts 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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 1989 (3rd Ex. Sess.), No. 28, § 7: Nov 7, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the caseload of the Second and Sixth Judicial Districts necessitates the appointment of additional circuit-chancery judges immediately; and that this Act so provides and should therefore 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 1991, No. 601, § 7: Mar. 18, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly that the Third Division of the Sixth Judicial District should be provided a bailiff as are the other courts in the Sixth Judicial District to maintain order and provide security for the judge, jury, witnesses and defendants, and that this act is immediately necessary. 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 its passage and approval.”

Acts 1992 (1st Ex. Sess.), No. 51, § 7: Mar. 17, 1992. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the opinion of the Arkansas Supreme Court in the case of Tony A. Lee v. Andre McNeil, Chancellor and Probate Judge et al., #CR 91-153, delivered January 27, 1992, cast substantial doubt on the legality of the exchange of circuits between and among circuit judges and chancellors within the same numbered and geographically defined districts-circuits; and that the inability of respective judges so to exchange circuits will seriously impair the timely and expeditions dispatch of the business of such courts and will entail unnecessary and expensive delay in the termination of cases in such 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 its passage and approval.”

Acts 1993, No. 283, § 7: Noted: Mar. 1, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the caseload of the Sixth Judicial District necessitates the appointment of additional circuit-chancery judges immediately; and that this act so provides and should therfore 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.”

16-13-1401. Composition.

The Sixth Judicial District shall be composed of the counties of Perry and Pulaski.

History. Acts 1977, No. 342, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1402. Terms of court.

The terms of court in each county in the Sixth Judicial District shall commence on the dates set forth below:

  1. Pulaski County: On the fourth Monday in September and first Monday in March; and
  2. Perry County: On the first Monday in February and third Monday in July.

History. Acts 1893, No. 56, §§ 1, 8; 1923, No. 100, § 1; A.S.A. 1947, § 22-310.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-1403. Judges and chancellors.

  1. The qualified electors of the Sixth Judicial District shall elect:
    1. Six (6) circuit judges;
    2. Four (4) chancellors;
    3. One (1) circuit-chancery judge; and
    4. Two (2) circuit-chancery judgeships.
    1. In the Sixth Judicial District, there is created one (1) additional circuit judgeship and two (2) additional chancery judgeships.
    2. The circuit judges and chancery judges subject to this subsection may, by agreement, hold either of the circuit or chancery courts and may hear and try matters pending in any of those courts or may hear or try matters in the same court at the same time. The judges subject to this subsection may adopt such rules as they deem appropriate for the assignment of cases in the circuit and chancery courts of their judicial district.
    1. Each judge of the judgeship created by subdivision (a)(3) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. Further, the chancery judges of the Sixth Judicial District may designate by agreement not more than two (2) of the chancery judges who shall serve as judges of the juvenile division of chancery court in addition to the circuit-chancery judgeship created in subdivision (a)(3) of this section.
    3. The judge of the additional circuit-chancery judgeship created in subdivision (a)(3) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
    4. Of the judgeships created by subdivision (a)(4) of this section within the Sixth Judicial District, the chancery judges of the Sixth Judicial District may designate by agreement one (1) of the Sixth Judicial District circuit-chancery judges whose primary responsibility shall include conducting hearings for the involuntary admission or commitment of persons to the Arkansas State Hospital or any other public or private hospital with a fully trained psychiatrist on the active or consultant staff and may designate by agreement one (1) of the Sixth Judicial District circuit-chancery judges whose primary responsibility shall be to perform the duties of a judge of the juvenile division of chancery court. Each of these judges shall sit as judge of the circuit, chancery, or probate courts as time permits.
    1. There is hereby created in the Sixth Judicial District an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (d)(1) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.

History. Acts 1977, No. 432, § 1; 1981 (Ex. Sess.), No. 38, § 1; A.S.A. 1947, §§ 22-365, 22-373; Acts 1987, No. 846, §§ 1, 3; 1989, No. 949, § 1; 1989 (3rd Ex. Sess.), No. 28, § 1; 1993, No. 283, § 1.

A.C.R.C. Notes. Acts 1987, No. 846, § 2, provided:

“The additional circuit judges, chancery judges, and circuit-chancery judges provided for in this Act shall be elected at the General Election in 1988, to take office on January 1, 1989, and thereafter as provided by law.”

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 1, provided, in part, that:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 1, also provided, in part, that:

“As soon as possible after the effective date of this act, the Governor shall appoint a qualified person to temporarily fill the Second and Sixth Judicial District circuit-chancery judgeships created by this Act, and such persons shall serve until December 31, 1990, or until their successors have been elected and qualified, whichever occurs last.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 2, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes. Provided, however, that the additional judgeship for the Sixth Judicial District who is to conduct commitment hearings shall be provided courtroom and office facilities and supplies by the Arkansas State Hospital located in Pulaski County.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 3, provided:

“In each judicial circuit in which additional circuit-chancery judgeships are created pursuant to this Act, there shall be provided court reporters whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

As originally enacted by Acts 1993, No. 283, § 1, subdivision (d)(1) began: “Effective July 1, 1993…”

Acts 1993, No. 283, § 1, provided, in part:

“(c) The qualified electors of the Sixth Judicial District shall elect the additional circuit-chancery judge created herein at the November 1994 general election to take office on January 1, 1995. The additional judge shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts. The judge shall serve for elected terms of four (4) years.

“(d) As soon as possible after the effective date of this act, the Governor shall appoint a qualified person to temporarily fill the Sixth Judicial District Circuit-Chancery judgeship created herein, and said person shall serve until December 31, 1994, or until a successor has been elected and qualified, whichever occurs last.”

Acts 1993, No. 283, § 2, provided:

“The counties which comprise the Sixth Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by this act, which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by respective quorum courts of the counties for such purposes.”

Publisher's Notes. Acts 1993, No. 229, identical to Acts 1993, No. 283, was repealed by Acts 1993, No. 1193.

Case Notes

Assignment of Cases.

Exchange of paternity cases among the Sixth District Juvenile and Chancery Courts was intra-district in nature, and expressly authorized by subdivision (b)(2) of this section. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1404. Chancery court reporters.

  1. Each chancellor of the Sixth Judicial District may appoint one (1) court reporter to serve his or her court.
  2. Each of the circuit, chancery, and circuit-chancery judges provided for in § 16-13-1403(b) are authorized to employ a court reporter. The court reporters shall receive such compensation as is provided by law.
  3. There shall be provided for the judge of the circuit-chancery judgeship created by § 16-13-1403(d) a court reporter, whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit-chancery courts of this state.

History. Acts 1979, No. 211, § 3; A.S.A. 1947, § 22-417.12; Acts 1987, No. 846, § 4; 1993, No. 283, § 3.

Publisher's Notes. Acts 1993, No. 229, identical to Acts 1993, No. 283, was repealed by Acts 1993, No. 1193.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-1405. Chancery court case coordinators.

  1. Each chancellor of the Sixth Judicial District may appoint one (1) case coordinator whose principal duties will be the maintenance of the court calendar, setting dates for trial of cases and for hearing of motions, and other related and incidental duties as directed by the chancellor, including, but not limited to, duties in the clerk's office.
  2. The case coordinator shall receive an annual salary of not less than twelve thousand six hundred dollars ($12,600) nor more than the salary provided by law for the chancery court reporters of the Sixth Judicial District.
  3. For the purposes of any retirement act or system, case coordinators shall be treated in the same manner and to the same effect as chancery court reporters.

History. Acts 1979, No. 211, § 7; A.S.A. 1947, § 22-417.16.

16-13-1406. Chancery court assistant case coordinators-computer operators.

  1. The chancery judges of the Sixth Judicial District may appoint one (1) assistant case coordinator-computer operator.
  2. The duties of the assistant case coordinator-computer operator shall include all the duties in § 16-13-1409(b) in addition to the operation of the computer for the Sixth Judicial District.
  3. The salary of the assistant case coordinator-computer operator shall be eighteen thousand five hundred dollars ($18,500) per calendar year, which salary shall be paid by Pulaski County.
    1. The salary of all case coordinators in the Sixth Judicial District set by this section and by county ordinance shall be amended to provide for an increase of the minimum salaries of four percent (4%) as of July 10, 1987; another increase of four percent (4%) beginning December 26, 1987; and another increase of four percent (4%) beginning December 24, 1988, unless a higher salary is provided by any other legislative act or county ordinance.
    2. All of the salaries shall be paid by Pulaski County. All of the salaries shall be paid bi-weekly by Pulaski County.
    3. When the county quorum court raises salaries for county employees, it shall also raise salaries an equivalent amount for the employees provided for in this subsection.
    4. The employees covered by this subsection shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.

History. Acts 1985, No. 336, §§ 20-22; A.S.A. 1947, § 22-310n; Acts 1989, No. 286, §§ 6, 12-14.

16-13-1407. Chancery court law clerks.

  1. The chancellors of the Sixth Judicial District, by concurrence of a majority of themselves, may appoint one (1) law clerk who shall be a licensed attorney or graduate of an accredited law school.
  2. The law clerk shall receive the same salary as provided for chancery court reporters in the Sixth Judicial District.

History. Acts 1979, No. 211, § 6; A.S.A. 1947, § 22-417.15.

16-13-1408. Location of chancery courts.

The county judges of the counties of the Sixth Judicial District shall provide adequate space in their courthouses for the holding of chancery court.

History. Acts 1979, No. 211, § 4; A.S.A. 1947, § 22-417.13.

16-13-1409. Case coordinators.

  1. The judges of each division of the Sixth Judicial District may appoint one (1) case coordinator for each division.
  2. The principal duties of the case coordinator shall be to maintain the court calendar, set dates for the trial of cases and for the hearing of motions, and other related and incidental duties at the direction of the judge.
  3. The case coordinator provided for in this section shall receive a salary of twenty-four thousand dollars ($24,000) per calendar year, which salary shall be paid by Pulaski County.
    1. The salary of all case coordinators in the Sixth Judicial District set by this section and by county ordinance shall be amended to provide for an increase of the minimum salaries of four percent (4%) as of July 10, 1987; another increase of four percent (4%) beginning December 26, 1987; and another increase of four percent (4%) beginning December 24, 1988, unless a higher salary is provided by any other legislative act or county ordinance.
    2. All of the salaries shall be paid by Pulaski County. All of the salaries shall be paid bi-weekly by Pulaski County.
    3. When the county quorum court raises salaries for county employees, it shall also raise salaries an equivalent amount for the employees provided for in this subsection.
    4. The employees covered by this subsection shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.

History. Acts 1985, No. 336, §§ 11-13; A.S.A. 1947, § 22-310n; Acts 1989, No. 286, §§ 6, 12-14.

Case Notes

Administrative Leave.

The court properly dismissed the action for mandamus brought by court employees seeking rescission of the judge's executive order denying them administrative leave, even though the employees were originally granted administrative leave by the judge, because the original grant of leave had been without authority and because under this section circuit court employees must be treated the same as other county employees. Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997).

16-13-1410. Law clerks.

    1. Each judge of the Sixth Judicial District may appoint a law clerk, who may also serve as master, who shall be a graduate of a law school approved by the State Board of Law Examiners.
    2. Each law clerk shall serve at the discretion and under the direction of the judge.
    1. The powers and duties of the law clerks shall be to administer oaths and affirmations, to take acknowledgments, affidavits, and depositions, to serve as master, and to conduct pretrial and prejudgment hearings and recommendations for disposition to the circuit, chancery, or probate judge.
    2. The law clerks may be assigned such additional duties at the discretion of the respective judges as are not inconsistent with the Constitution and laws of the State of Arkansas.
  1. The salary of each law clerk for the Sixth Judicial District shall be set as follows:
    1. The salary of each senior law clerk for the Sixth Judicial District previously set by this section and by county ordinance shall be amended to provide for an increase of the minimum salaries of four percent (4%) as of July 10, 1987; another increase of four percent (4%) beginning December 26, 1987; and another increase of four percent (4%) beginning December 24, 1988, unless a higher salary is provided by any other legislative act or county ordinance.
    2. The salary of each junior law clerk for the Sixth Judicial District set by this section and by county ordinance shall be amended to provide for an increase of the minimum salaries of four percent (4%) as of July 10, 1987; another increase of four percent (4%) beginning December 26, 1987; and another increase of four percent (4%) beginning December 24, 1988, unless a higher salary is provided by any other legislative act or county ordinance.
    3. All of the salaries shall be paid by Pulaski County. All of the salaries shall be paid bi-weekly by Pulaski County.
    4. When the county quorum court raises salaries for county employees, it shall also raise salaries an equivalent amount for the employees provided for in this subsection.
    5. The employees covered by this subsection shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.

Item No. Title Years Experience Annual Salary 1 Law Clerk I 0-1 $24,000.00 2 Law Clerk II 1-2 24,666.66 3 Law Clerk III 2-3 25,333.32 4 Law Clerk IV 3-4 25,999.98 5 Law Clerk V 4-5 26,666.64 6 Law Clerk VI 5-6 27,333.30 7 Law Clerk VII 6-7 27,999.96 8 Law Clerk VIII 7-8 28,666.62 9 Law Clerk IX 8-9 29,333.28 10 Law Clerk X 9-10 29,999.94

Click to view table.

History. Acts 1985, No. 336, §§ 1, 2; A.S.A. 1947, § 22-310n; Acts 1987, No. 344, §§ 1-3; 1989, No. 286, §§ 4, 7, 12-14.

A.C.R.C. Notes. Former subdivisions (a)(1) and (b)(1) and subsection (c) of this section are deemed to be superseded by the current provisions. The former provisions were derived from Acts 1985, No. 336, §§ 1 (part), 2 (part), and 3.

Case Notes

Administrative Leave.

The court properly dismissed the action for mandamus brought by court employees seeking rescission of the judge's executive order denying them administrative leave, even though the employees were originally granted administrative leave by the judge, because the original grant of leave had been without authority and because under this section circuit court employees must be treated the same as other county employees. Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997).

16-13-1411. Secretaries.

  1. The judges of each division of the Sixth Judicial District may appoint one (1) secretary.
  2. Secretaries so appointed shall provide clerical, stenographic, and other secretarial services and may be assigned such additional duties at the discretion of the respective judges as are not inconsistent with the Constitution or laws of the State of Arkansas.
  3. The salary of the secretaries of the Sixth Judicial District shall be sixteen thousand five hundred dollars ($16,500) per calendar year, which salary shall be paid by Pulaski County.
    1. The salary of each secretary employed by the Sixth Judicial District set by this section and by county ordinance shall be amended to provide for an increase of the minimum salaries of four percent (4%) as of July 10, 1987; another increase of four percent (4%) beginning December 26, 1987; and another increase of four percent (4%) beginning December 24, 1988, unless a higher salary is provided by any other legislative act or county ordinance.
    2. All of the salaries shall be paid by Pulaski County. All of the salaries shall be paid bi-weekly by Pulaski County.
    3. When the county quorum court raises salaries for county employees, it shall also raise salaries an equivalent amount for the employees provided for in this subsection.
    4. The employees covered by this subsection shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.

History. Acts 1985, No. 336, §§ 4-6; A.S.A. 1947, § 22-310n; Acts 1989, No. 286, §§ 5, 12-14.

Case Notes

Administrative Leave.

The court properly dismissed the action for mandamus brought by court employees seeking rescission of the judge's executive order denying them administrative leave, even though the employees were originally granted administrative leave by the judge, because the original grant of leave had been without authority and because under this section circuit court employees must be treated the same as other county employees. Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997).

16-13-1412. Circuit court probation officers.

  1. The circuit judges of the First and Fifth Divisions of the Sixth Judicial District may appoint a chief probation officer and a deputy probation officer.
    1. The duties of the chief probation officer shall include the supervision of all persons on probation, the investigation of all matters referred to him or her by the court relating to the granting of suspended sentences, and the investigation of any other matters that may be referred to him or her by the court.
    2. The deputy probation officer shall perform all duties delegated to him or her by the chief probation officer, and all those referred to him or her by the court.
    3. The chief probation officer and the deputy probation officer, in the performance of their duties, may exercise all the powers of a deputy sheriff, which powers shall include the powers to make arrests, carry weapons, and serve summonses.
    1. The salary of the chief probation officer shall be twenty-five thousand dollars ($25,000) per calendar year, which salary shall be paid by Pulaski County.
    2. The salary of the deputy probation officer shall be twenty-three thousand five hundred dollars ($23,500) per calendar year, which salary shall be paid by Pulaski County.
    3. Any probation officer funded through or by the Board of Corrections is specifically excluded from the provisions of this section.
  2. Nothing in the provisions of this section shall be construed to repeal or modify the laws now in effect relating to the duties of the State Parole Officer.
    1. The salaries of the chief probation officer and coordinator probation officers set by this section and by county ordinance shall be amended to provide for an increase of the minimum salaries of four percent (4%) as of July 10, 1987; and another increase of four percent (4%) beginning December 26, 1987; and another increase of four percent (4%) beginning December 24, 1988, unless a higher salary is provided by any other legislative act or county ordinance.
    2. All of the salaries shall be paid by Pulaski County. All of the salaries shall be paid biweekly by Pulaski County.
    3. When the county quorum court raises salaries for county employees, it shall also raise salaries an equivalent amount for the employees provided for in this subsection.
    4. The employees covered by this subsection shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.

History. Acts 1985, No. 336, §§ 7-10; A.S.A. 1947, § 22-310n; Acts 1989, No. 286, §§ 1, 12-14; 2011, No. 200, § 1.

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’.”

Acts 2001, No. 323, § 5, provided:

“(a) The Arkansas Code Revision Commission shall make appropriate name changes in the Arkansas Code to implement this act.

“(b) The Arkansas Code Revision Commission is not required to codify this act.”

Amendments. The 2011 amendment deleted “Fourth” following “First” in (a).

Case Notes

Administrative Leave.

The court properly dismissed the action for mandamus brought by court employees seeking rescission of the judge's executive order denying them administrative leave, even though the employees were originally granted administrative leave by the judge, because the original grant of leave had been without authority and because under this section circuit court employees must be treated the same as other county employees. Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997).

16-13-1413. Court bailiffs.

      1. The circuit judges of the Sixth Judicial District may each appoint one (1) court bailiff.
      2. If a circuit judge hears criminal cases, one (1) assistant court bailiff may also be appointed.
    1. The chancery judges of the Sixth Judicial District may each appoint one (1) court bailiff.
    2. The circuit-chancery judges of the Sixth Judicial District may each appoint one (1) court bailiff.
    1. The duties of the bailiffs shall include their attendance in their respective courts when court is in session and the supervision and maintenance of order in their respective courtrooms, providing security for individuals involved in court proceedings, officers of the court, and judges, and other incidental and related duties at the direction of the judges.
    2. The bailiffs shall exercise all the powers of a deputy sheriff, including the power to make arrests, carry a weapon, and serve summonses, and shall be certified law enforcement officers.
    3. The circuit-chancery judges may appoint at least one (1) probation officer to serve as assistant bailiff.
  1. The bailiffs and assistant bailiffs of each of the courts shall receive a salary as set by the Pulaski County Quorum Court.
    1. When the quorum court raises salaries for county employees, it shall also raise salaries an equivalent amount for the above employees.
    2. Those employees covered by this section shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.

History. Acts 1985, No. 336, §§ 14-16; A.S.A. 1947, § 22-310n; Acts 1989, No. 286, §§ 2, 12-14; 1991, No. 601, §§ 1-3; 1992 (1st Ex. Sess.), No. 51, § 2; 1993, No. 572, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 572, § 1, subdivision (b)(2) concluded with “provided that bailiffs currently employed may be continued in their duties, without regard to certification.”

Publisher's Notes. Acts 1992 (1st Ex. Sess.), No. 51, § 3, provided:

“The provisions of this act are procedural in nature and therefor shall apply to all cases presently pending or subsequently filed in any circuit, chancery or probate court within the State of Arkansas.”

Case Notes

Administrative Leave.

The court properly dismissed the action for mandamus brought by court employees seeking rescission of the judge's executive order denying them administrative leave, even though the employees were originally granted administrative leave by the judge, because the original grant of leave had been without authority and because under this section circuit court employees must be treated the same as other county employees. Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997).

16-13-1414. Circuit court presentence officers.

  1. The circuit judges of the First, Fourth, and Fifth Divisions of the Sixth Judicial District may appoint one (1) presentence officer.
  2. The duties of the presentence officer shall include the investigation of defendants and the making of such reports to the circuit court as it deems desirable as to the past conduct of any defendant that appears before the court.
  3. The salary of the presentence officer shall be fifteen thousand dollars ($15,000) per calendar year, which salary shall be paid by Pulaski County.
    1. The salaries of the presentence officer set by this section and by county ordinance shall be amended to provide for an increase of the minimum salaries of four percent (4%) as of July 10, 1987; another increase of four percent (4%) beginning December 26, 1987; and another increase of four percent (4%) beginning December 24, 1988, unless a higher salary is provided by any other legislative act or county ordinance.
    2. All of the salaries shall be paid by Pulaski County. All of the salaries shall be paid bi-weekly by Pulaski County.
    3. When the county quorum court raises salaries for county employees, it shall also raise salaries an equivalent amount for the employees provided for in this subsection.
    4. The employees covered by this subsection shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.

History. Acts 1985, No. 336, §§ 17-19; A.S.A. 1947, § 22-310n; Acts 1989, No. 286, §§ 3, 12-14.

Case Notes

Administrative Leave.

The court properly dismissed the action for mandamus brought by court employees seeking rescission of the judge's executive order denying them administrative leave, even though the employees were originally granted administrative leave by the judge, because the original grant of leave had been without authority and because under this section circuit court employees must be treated the same as other county employees. Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997).

16-13-1415. Pulaski County — Proceedings generally.

  1. All writs and processes returnable to the Pulaski County Circuit Court shall be issued and returned as the law provides.
  2. All appeals to circuit court in civil and criminal cases shall be taken in the time and manner provided by Rule 9 of the District Court Rules.
  3. All criminal appeals shall stand for trial ten (10) days after being docketed.

History. Acts 1913, No. 64, §§ 4-6; A.S.A. 1947, §§ 22-326.7 — 22-326.9; Acts 2003, No. 1185, § 98.

Case Notes

Construction.

This section is mandatory. Loveland v. State Pharmacy, 123 Ark. 320, 185 S.W. 288 (1916).

16-13-1416. Pulaski County — Chancery clerk.

  1. The chancellors of the Sixth Judicial District shall appoint a Chancery Clerk for Pulaski County. If the chancellors are unable to agree on the appointment, the Chief Justice of the Arkansas Supreme Court shall name the Chancery Clerk for Pulaski County.
  2. The Chancery Clerk of Pulaski County may appoint as many deputies as necessary to carry out the duties of the clerk's office.

History. Acts 1979, No. 211, § 2; A.S.A. 1947, § 22-417.11.

A.C.R.C. Notes. Acts 1989, No. 286, § 10, provided:

“The salaries of the employees of the Chancery Clerk previously set by Act 14 of 1987, Act 121 of 1987 and by county ordinance shall remain as set, unless a higher salary is provided by any other legislative act or county ordinance. Also, the fund for the hiring of part-time employees in the Chancery Clerk's office shall remain at least $11,300.00, unless the Quorum Court may provide for additional funds for said purpose as it may find necessary.”

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-1417. Pulaski County — Referral to master.

The chancellors of the Sixth Judicial District may refer any case on their respective dockets, as provided by law, to the Master in Chancery of Pulaski County.

History. Acts 1979, No. 211, § 5; A.S.A. 1947, § 22-417.14.

16-13-1418. Pulaski County — Field investigator.

  1. There is created the office of field investigator for the Pulaski County Circuit Court, Sixth Judicial District.
  2. The field investigator shall be appointed by the judge of the Pulaski County Circuit Court, Sixth Judicial District, and shall serve at the will of the judge.
    1. The duties of the field investigator shall be to investigate all matters referred to him or her by the Pulaski County Circuit Court, Sixth Judicial District, including presentence reports and follow-up reports on persons placed on probation by the court.
    2. The field investigator shall perform outside investigative duties as may be requested of him or her from time to time by the probation officer of the court.
    3. The field investigator may exercise all the powers of a deputy sheriff.
  3. The field investigator shall receive an annual salary of fifteen thousand dollars ($15,000) to be paid by Pulaski County.

History. Acts 1979, No. 248, §§ 1-4; A.S.A. 1947, §§ 22-363.5 — 22-363.8.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-1419. Pulaski County — Probate clerk.

  1. The chancery and probate judges of Pulaski County shall designate a probate clerk who shall serve as clerk in all probate matters and as custodian of all probate papers and records.
  2. It shall be the duty of the Pulaski County Probate Clerk and clerk's deputies to perform the work and services under the supervision of the Pulaski County chancery and probate judges.
    1. The Pulaski County Probate Clerk shall collect all fees related to probate matters, as provided by law. The fees collected shall be paid into the Pulaski County General Fund and dispersed pursuant to law.
    2. The salaries of the Pulaski County Probate Clerk and clerk's deputies shall be paid as established by law.

History. Acts 1991, No. 286, §§ 1-4.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

Subchapter 15 — Seventh Judicial Circuit

16-13-1501 — 16-13-1505. [Repealed.]

Publisher's Notes. This subchapter was repealed by Acts 1997, No. 827, § 9, effective January 1, 1999.

The subchapter was derived from the following sources:

16-13-1501. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

16-13-1502. Acts 1893, No. 56, § 2, p. 84; 1955, No. 109, § 5; A.S.A. 1947, § 22-310.

16-13-1503. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1987, No. 846, §§ 1, 3; 1989, No. 949, § 1.

16-13-1504. Acts 1987, No. 846, § 4.

16-13-1505. Acts 1993, No. 1307, § 1.

For present law, see § 16-13-3101 et seq.

Subchapter 16 — Eighth Judicial Circuit

16-13-1601 — 16-13-1603. [Repealed.]

Publisher's Notes. This subchapter was repealed by Acts 1997, No. 1207, § 8, effective January 1, 1999.

For Eighth Judicial District law effective after January 1, 1999, see § 16-13-3201 et seq.

The former subchapter was derived from the following sources:

16-13-1601. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

16-13-1602. Acts 1907, No. 460, § 1, p. 1238; 1943, No. 212, § 1; 1965, No. 398, §§ 1, 2; 1981, No. 292, § 1; A.S.A. 1947, § 22-310; Acts 1991, No. 533, § 1.

16-13-1603. Acts 1977, No. 432, § 1; 1981 (Ex. Sess.), No. 38, § 1; A.S.A. 1947, §§ 22-365, 22-373; Acts 1989, No. 54, § 1; 1989, No. 440, § 1; 1989, No. 949, § 1.

Subchapter 17 — Ninth Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 951, § 10, provided:

“Ninth Judicial Circuit East. The circuit-chancery judgeship which is presently held by John Thomas shall be known and designated as Circuit Court, Division 1.”

Acts 2001, No. 951, § 11, provided:

“Ninth Judicial Circuit West.

  1. The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 1 and presently held by Ted Capeheart shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Charles Yeargan shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1891, No. 52, § 9: effective on passage.

Acts 1907, No. 460, § 4: effective first Monday in June, 1907.

Acts 1923, No. 354, § 2: Mar. 9, 1923.

Acts 1943, No. 212, § 3: approved Mar. 15, 1943. Emergency clause provided: “In view of the fact that the need for the protection of the public peace, health and safety, and the efficient and prompt enforcement of the laws and the administration of justice are apparent, an emergency is declared to exist and the immediate operation of this act is necessary for the preservation of the public peace, health and safety, and this act shall take effect and be in force from and after its passage.”

Acts 1995, No. 39, § 8: Jan. 26, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the caseload of the Ninth Judicial District necessitates the transferring of Pike County to the Ninth Judicial District-West and the appointment of an additional circuit-chancery judge 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.”

16-13-1701. Composition.

  1. The Ninth Judicial District-East shall be composed of Clark County.
  2. The Ninth Judicial District-West shall be composed of the counties of Howard, Little River, Sevier, and Pike.

History. Acts 1977, No. 432, § 1; 1979, No. 834, § 1; A.S.A. 1947, § 22-365; Acts 1995, No. 39, § 1.

A.C.R.C. Notes. As amended by Acts 1995, No. 39, § 1, subsections (a) and (b) began:

“Effective immediately upon passage and approval of this act.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1702. Terms of court.

The terms of court in each county in the Ninth Judicial District shall commence on the dates set forth below:

  1. Clark County: On the fourth Mondays in January and July;
  2. Howard County: On the fourth Mondays in February and August;
  3. Little River County: On the first Mondays in January and July;
  4. Pike County: On the third Mondays in March and September; and
  5. Sevier County: On the first Mondays in February and August.

History. Acts 1891, No. 52, § 2, p. 87; 1907, No. 460, § 1, p. 1238; 1923, No. 354, § 1; 1943, No. 212, § 1; A.S.A. 1947, § 22-310.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-1703. Judges and chancellors.

  1. The qualified electors of the Ninth Judicial District-East shall elect one (1) circuit-chancery judge who shall have jurisdiction in law, equity, and probate.
    1. The qualified electors of the Ninth Judicial District-West shall elect one (1) circuit-chancery judge who shall have jurisdiction in law, equity, and probate.
      1. There is hereby created in the Ninth Judicial District-West an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate.
      2. The judge of the additional circuit-chancery judgeship created in subdivision (b)(2)(A) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division of chancery court, which duties shall be the primary obligation of the judge, and he or she shall sit as judge of the circuit, chancery, or probate court as time permits.

History. Acts 1977, No. 432, § 1; 1979, No. 834, § 1; A.S.A. 1947, § 22-365; Acts 1995, No. 39, § 2.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

As enacted by Acts 1995, No. 39, subdivision (b)(2)(A) began “Effective immediately upon passage and approval of this act.”

As amended by Acts 1995, No. 39, this section contained two additional subsections, which read:

“(c) As soon as possible after the effective date of this act, the Governor shall appoint a qualified person to temporarily fill the Ninth Judicial District-West Circuit-Chancery judgeship created herein, and the appointed person shall serve until December 31, 1996, or until a successor has been elected and qualified, whichever occurs last.

“(d) The qualified electors of the Ninth Judicial District-West shall elect the additional circuit-chancery judge created herein at the November 1996 general election to take office on January 1, 1997. The additional judge shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts. The judge shall serve for elected terms of four (4) years.”

Acts 1995, No. 39, § 3, provided:

“The counties which comprise the Ninth Judicial District-West shall provide courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by this act, which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.”

Acts 1995, No. 39, § 4, provided:

“There shall be provided for the judge of the circuit-chancery judgeship created by this act a court reporter, whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit-chancery courts of this state.”

Acts 1995, No. 564, §§ 1, 2 provided:

“SECTION 1. The person selected to fill the additional circuit-chancery judge position created in the Ninth Circuit-Chancery Court Circuit West by the Eightieth General Assembly shall be entitled to employ a case coordinator whose primary responsibility shall be to maintain the court calendar, schedule dates for the trial of cases and for the hearing of motions and to perform other related and incidental duties at the direction of the judge.

“SECTION 2. The case coordinator provided for in Section 1 shall receive an annual salary of not less than sixteen thousand dollars ($16,000) nor more than twenty-two thousand dollars ($22,000). The salary and expenses of the case coordinator shall be paid by the counties comprising the Ninth Circuit-Chancery Court Circuit West, with the proportion thereof to be paid by each county to be determined by the judge after giving consideration to the assessed value of property in each county, the population of each county and the case load of the court in each county. The salary provided for herein shall be paid by each county in equal monthly installments on the first day of each month.”

Acts 1995, No. 762, §§ 1-3, provided:

“SECTION 1. The circuit/chancery judge of the Ninth Judicial Circuit-East, may employ a case coordinator to serve the judge at the pleasure of the appointing judge, at an annual salary based upon the classification in the table in Section 2 payable in equal monthly installments by Clark County.

“SECTION 2. No payment of salary may be made except in conformity with the salary rates assigned in the table below and only after the appointing judge has certified in writing the term of the employee's experience to the County Clerk:

“GRADE EXPERIENCE SALARY “I Entry Level $19,000.00 “II 12 Months $20,000.00 “III 24 Months $21,000.00 “IV 36 Months $22,000.00 “V 48 Months $23,000.00 “VI 60 Months $24,000.00 “VII 72 Months $25,000.00

Click to view table.

“The appointing judge shall have discretion in certifying or omitting to certify increases in salary above the entry level.

“SECTION 3. It is found and determined by the General Assembly that the case coordinators of the State have varying experience and beginning in 1995, classifications in Section 2 should be implemented and is necessary to the proper administration of justice in the Ninth Judicial Circuit-East.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1704. Exchange of districts.

The judges of the Ninth Judicial District-East and the Ninth Judicial District-West may by agreement temporarily exchange districts or hold court for each other, as they deem necessary or appropriate.

History. Acts 1977, No. 432, § 1; 1979, No. 834, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

Subchapter 18 — Tenth Judicial Circuit

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 2001, No. 951, § 12, provided:

“Tenth Judicial Circuit.

“(a) The circuit judgeship which is currently designated as Circuit Division 1 and presently held by Don Glover shall be known and designated as Circuit Court, Division 4.

“(b) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by Sam Pope shall be known and designated as Circuit Court, Division 1.

“(c) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Robert C. Vittitow shall be known and designated as Circuit Court, Division 2.

“(d) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Jerry Mazzanti shall be known and designated as Circuit Court, Division 5.

“(e) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Bynum Gibson shall be known and designated as Circuit Court, Division 3.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1893, No. 56, § 12: effective on passage.

Acts 1911, No. 290, § 2: effective 90 days after passage.

Acts 1919, No. 102, § 2: effective on passage. Emergency declared. Approved Feb. 20, 1919.

Acts 1953, No. 199, § 19: approved Mar. 3, 1953. Emergency clause provided: “Whereas, in order to properly and promptly dispatch the work now pending in the several courts of Desha County; and whereas this vitally affects the peace, health and safety of the citizens of this State, an emergency is therefore hereby declared to exist and this act shall be in full force and effect from and after its passage.”

Acts 1985, No. 159, § 5: Feb. 19, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the workload of the circuit and chancery courts of the Tenth Circuit-Chancery Court Circuit has increased substantially in recent years; that the crowded court dockets in the Tenth Circuit result in serious delay in the administration of justice in the district; that this Act is designed to provide additional judges to serve the Tenth Circuit and to thereby improve and promote the administration of justice in the circuit 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 1985 (1st Ex. Sess.), No. 7, § 4: June 22, 1985; Acts 1985 (1st Ex. Sess.), No. 22, § 4: June 26, 1985. Emergency clauses provided: “It is hereby found and determined by the General Assembly that Act 159 of 1985 created an additional circuit judgeship and additional chancery judgeship for the Tenth Circuit; that in order to provide for the efficient and effective administration of justice in the Tenth Circuit, the circuit court and chancery court of that circuit should be divided into divisions; and that this Act so provides and therefore should be given effect immediately in order to allow its implementation at the time the additional judges are appointed under Act 159 of 1985. 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 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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.”

16-13-1801. Composition.

The Tenth Judicial District shall be composed of the counties of Ashley, Bradley, Chicot, Desha, and Drew.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980); Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995).

16-13-1802. Terms of court.

The terms of court in each county in the Tenth Judicial District shall commence on the dates set forth below:

  1. Ashley County: On the third Monday in March and the third Monday in October;
  2. Bradley County: On the first Monday in February and the second Monday in September;
  3. Chicot County: On the second Monday in July and the first Monday in December; and
  4. Drew County: On the third Monday in February and the third Monday in September.

History. Acts 1893, No. 56, § 6, p. 84; 1911, No. 290, § 1; 1919, No. 102, § 1; 1953, No. 199, § 11; A.S.A. 1947, § 22-310; Acts 1991, No. 290, § 3.

A.C.R.C. Notes. Acts 1991, No. 290, § 1, provided:

“Effective January 1, 1992, the separate circuit, chancery and probate courts now provided by law in Desha County of the Tenth (10th) Judicial District and known as the Arkansas City District and the McGehee District are abolished.”

Acts 1991, No. 290, § 2, provided:

“From and after the effective date of this act, when the separate judicial districts of Desha County are abolished, the municipal courts of McGehee and Dumas shall each have concurrent jurisdiction which is coextensive with Desha County.”

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-1803. Judges and chancellors generally.

  1. The qualified electors of the Tenth Judicial District shall elect:
    1. Two (2) circuit judges and two (2) chancellors, including the additional judges provided for in Acts 1985, No. 159, § 2; and
    2. One (1) circuit-chancery judge.
    1. The judge of the judgeship created by subdivision (a)(2) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(2) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.

History. Acts 1977, No. 432, § 1; 1985, No. 159, § 1; A.S.A. 1947, §§ 22-365, 22-375; Acts 1989, No. 949, § 1.

A.C.R.C. Notes. Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Publisher's Notes. Acts 1985, No. 159, § 2, provided that an additional circuit judge and an additional chancery judge should be appointed by the Governor to take office on July 1, 1985, and to serve until January 1, 1987, and until their successors were elected and qualified, and further provided that the successor judges should be elected at the general election in 1986, to take office on January 1, 1987, and thereafter as provided by law.

Acts 1985, No. 159, § 4, authorized each of the additional circuit and chancery judges to employ an additional court reporter who should receive such compensation as provided by law.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1804. Assignment of cases.

  1. The circuit and chancery judges of the Tenth Judicial District may, by agreement, hold either of the circuit or chancery courts in the Tenth Judicial District and may hear and try matters pending in any of the courts or may hear and try matters pending in the same court at the same time.
  2. The judges of the Tenth Judicial District may adopt such rules as they deem appropriate for the assignment of cases in the circuit and chancery courts of the Tenth Judicial District.

History. Acts 1985, No. 159, § 3; A.S.A. 1947, § 22-375.2.

16-13-1805. Divisions of court.

    1. The circuit court of the Tenth Judicial District is divided into two (2) divisions.
    2. The circuit judge serving on June 22, 1985, and his or her successor shall be the circuit judge of the first division, and the circuit judge appointed pursuant to Acts 1985, No. 159, § 2, and his or her successor shall be the circuit judge of the second division.
    1. The chancery court of the Tenth Judicial District is divided into two (2) divisions.
    2. The chancery judge serving on June 22, 1985, and his or her successor shall be the chancery judge of the first division, and the chancery judge appointed pursuant to Acts 1985, No. 159, § 2, and his or her successor shall be the chancery judge of the second division.

History. Acts 1985 (1st Ex. Sess.), No. 7, §§ 1, 2; 1985 (1st Ex. Sess.), No. 22, §§ 1, 2; A.S.A. 1947, §§ 22-330, 22-330.1.

Publisher's Notes. As to the provisions of Acts 1985, No. 159, § 2, see Publisher's Notes to § 16-13-1803.

Subchapter 19 — Eleventh Judicial Circuit

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 2001, No. 951, § 13, provided:

“Eleventh Judicial Circuit East. The circuit-chancery judgeship which is presently held by Russell Rogers shall be known and designated as Circuit Court, Division 1.”

Acts 2001, No. 951, § 14, provided:

“Eleventh Judicial Circuit West.

  1. The circuit judgeship which is currently designated as Circuit Division 1 and presently held by Berlin Jones shall be known and designated as Circuit Court, Division 1.

“(b) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by H.A. Taylor shall be known and designated as Circuit Court, Division 2.

“(c) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Eugene “Kayo” Harris shall be known and designated as Circuit Court, Division 3.

“(d) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Leon Jamison shall be known and designated as Circuit Court, Division 4.

“(e) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Fred D. Davis shall be known and designated as Circuit Court, Division 5.

“(f) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 4 and presently held by Thomas E. Brown shall be known and designated as Circuit Court, Division 6.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Publisher's Notes. Acts 1981, No. 609, § 4, provided that the division of the Eleventh Judicial District into East and West districts was effective January 1, 1983.

Effective Dates. Acts 1893, No. 56, § 12: effective on passage.

Acts 1911, No. 290, § 2: effective 90 days after passage.

Acts 1919, No. 102, § 2: effective on passage. Emergency declared. Approved Feb. 20, 1919.

Acts 1921, No. 3, § 5: effective on passage. Emergency declared. Approved Jan. 20, 1921.

Acts 1947, No. 245, § 3: July 1, 1947.

Acts 1947, No. 246, § 2: effective 30 days after passage. Emergency declared. Approved Mar. 18, 1947.

Acts 1979, No. 771, § 11: Apr. 6, 1979. Emergency clause provided: “It is found and hereby declared by the General Assembly that because of the passage of Act 432 of 1977, the counties making up the Thirteenth Circuit-Chancery Court Circuit of Arkansas were changed effective January 1, 1979; that the terms of circuit court in the various counties of the circuit were left in conflict; that no provision was made for divisions in the multi-judge Thirteenth Court Circuit and no method was fixed to assign cases to the various judges of the court circuit. 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 on and after the date of its passage and approval.”

Acts 1983, No. 922, § 18: 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 (2) 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; and that the immediate effectiveness of Section 3 of this Act is essential to maintaining the fiscal integrity of the Judges Retirement Fund which would otherwise work irreparable harm upon the 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 as follows: Section 3 of this Act shall be effective immediately upon passage and approval of this Act; and all other sections and provisions of this Act shall be effective from and after July 1, 1983.”

Acts 1987, No. 444, § 7: Mar. 27, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that the case load of the courts of the Eleventh Judicial Circuit-West has increased significantly in recent years and that this is due largely to the fact that various actions filed by and proceedings concerning inmates of the State Department of Correction must be handled in the Eleventh Judicial Circuit-West; that it is essential to the prompt, effective and efficient administration of justice in the Eleventh Judicial Circuit-West that an additional judgeship be created with combined circuit and chancery jurisdiction and to have the primary responsibility for handling matters involving inmates of the Department of Correction; 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 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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”.

16-13-1901. Composition.

  1. The Eleventh Judicial District-East shall be composed of Arkansas County.
  2. The Eleventh Judicial District-West shall be composed of the counties of Jefferson and Lincoln.

History. Acts 1977, No. 432, § 1; 1981, No. 609, § 1; 1983, No. 922, § 15; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1902. Terms of court.

The terms of court in each county in the Eleventh Judicial District shall commence on the dates set forth below:

    1. In the Northern District of Arkansas County: On the first Mondays in April and November; and
    2. In the Southern District of Arkansas County: On the second Monday in March and the first Monday in August;
  1. Jefferson County: On the first Mondays in March and October; and
  2. Lincoln County: On the second Mondays in February and September.

History. Acts 1893, No. 56, § 6, p. 84; 1911, No. 290, § 1; 1919, No. 102, § 1 (Special Acts); 1921, No. 3, §§ 1, 2; 1943, No. 85, § 1; 1947, No. 245, § 1; 1947, No. 246, § 1; 1953, No. 318, § 1; 1979, No. 771, § 10; A.S.A. 1947, §§ 22-310, 22-310n.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-1903. Judges, chancellors, and prosecuting attorney.

    1. The qualified electors of the Eleventh Judicial District-West shall elect:
      1. Two (2) circuit judges;
      2. Two (2) chancellors;
      3. One (1) combination circuit-chancery judge;
      4. One (1) circuit-chancery judge; and
      5. One (1) prosecuting attorney.
    2. The judge of the circuit-chancery judgeship created for the Eleventh Judicial District-West by subdivision (a)(1)(C) of this section shall devote one-half (½) of his or her time to the chancery and probate proceedings and one-half (½) of his or her time to the circuit proceedings, including, but not limited to:
      1. Presiding over all post-conviction proceedings in the Eleventh Judicial District-West;
      2. Presiding over all matters involving acts committed by inmates of the Division of Correction over which the Eleventh Judicial District-West has jurisdiction; and
      3. Hearing all civil actions filed by inmates of the Division of Correction over which the Eleventh Judicial District-West has jurisdiction.
      1. The judge of the judgeship created by subdivision (a)(1)(D) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
      2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(1)(D) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
  1. The qualified electors of the Eleventh Judicial District-East shall elect one (1) circuit-chancery court judge, who shall have jurisdiction in law, equity, and probate.

History. Acts 1977, No. 432, § 1; 1981, No. 609, § 1; 1983, No. 922, § 15; A.S.A. 1947, § 22-365; Acts 1987, No. 444, §§ 1, 3; 1989, No. 949, § 1; 2019, No. 910, § 852.

A.C.R.C. Notes. Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Acts 1997, No. 274, § 1 provided:

“(a) There is hereby created the temporary position of a Fifth Division of the Chancery Court of the Eleventh Judicial Circuit-West, which position shall expire on December 31, 1998.

“(b) The position of chancellor of the Fifth Division of the Chancery Court shall be filled by appointment by the Governor as authorized by law.

“(c) The judge of the Fifth Division of the Chancery Court shall be assigned cases by the Chief Justice of the Supreme Court; that the chancellor of the Fifth Division shall handle all cases of the First and Second Divisions of the Eleventh Judicial Circuit-West in which the judges of those courts have recused and such other duties in the Eleventh Judicial Circuit-West as may be assigned by the Chief Justice.

“(d) In addition to the duties prescribed in subsection (c) above, the chancellor of the Fifth Division may be assigned to any and all other chancery circuits of the State of Arkansas where the local chancellor or chancellors have recused or have been disqualified.

“(e) The chancellor of the Fifth Division shall receive compensation at the same rate as fixed by law for regularly elected chancery judges.

“(f) The chancellor of the Fifth Division may appoint a court reporter as provided by law, whose salary and expenses shall be paid from the Court Reporter's Fund.

“(g) The chancellor of the Fifth Division shall also employ one staff person in accordance with § 10-16-133 to perform secretarial duties, management services, and such other duties as may be prescribed by the chancellor; that pursuant to § 10-16-133 the chancellor of the Fifth Division shall have the authority to select and hire the person who will serve, and any person so employed shall serve at the will and pleasure of the judge.”

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (a)(2)(B) and (a)(2)(C).

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1904. Exchange of districts.

The judges of the Eleventh Judicial District-East and the Eleventh Judicial District-West may, by agreement, temporarily exchange districts or hold court for each other as they deem necessary or appropriate.

History. Acts 1977, No. 432, § 1; 1981, No. 609, § 1; 1983, No. 922, § 15; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-1905. Court reporter, case coordinator, and other personnel.

The circuit-chancery judge of the Eleventh Judicial District-West created by § 16-13-1903(a)(1)(C) is authorized to employ a court reporter, a case coordinator, and such other personnel as shall be necessary for the court to effectively and efficiently carry out its responsibilities.

History. Acts 1987, No. 444, § 4.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-1906. Case coordinators.

  1. Each of the circuit and chancery judges of the Eleventh Judicial District-West shall be empowered and directed to employ a case coordinator for each division whose duties shall be the maintenance of the court calendar, setting dates for trial of cases and for hearing of motions, and other related and incidental duties as directed by said judges.
  2. The case coordinators shall be appointed by the judges of the Eleventh Judicial District-West, one (1) for each court, and shall serve at the will of the respective judge.
  3. In lieu of any other expenses incurred by each court provided by law for the Eleventh Judicial District-West, each county of the district shall be responsible each year for the following amounts:
    1. Lincoln County Two thousand dollars ($2,000); and
    2. Jefferson County All other expenses not otherwise provided for by law.

History. Acts 1989, No. 7, §§ 1, 2, 4.

A.C.R.C. Notes. Acts 1989 (1st Ex. Sess.), No. 63, § 3, provided:

“(a) The salary of each of the Case Coordinators of the Eleventh Judicial Circuit-West for the period July 1, 1989, through December 31, 1989, shall be not less than at the rate of Nineteen Thousand Nine Hundred Sixty-one dollars ($19,961) per year, and shall be paid by the counties in the Circuit, as follows:

“Jefferson County at the rate of Nineteen Thousand Seventy-nine dollars ($19,079) per year, payable to each Case Coordinator in equal monthly installments.

“Lincoln County at the rate of Eight Hundred Eighty-two dollars ($882) per year, payable to each Case Coordinator in equal monthly installments.

“(b) The salary of each of the Case Coordinators of the Eleventh Judicial Circuit-West beginning January 1, 1990, shall be at the rate of Twenty-two Thousand Sixty Dollars ($22,060) per year and shall be paid by the counties in the Circuit as follows:

“Jefferson County at the rate of Twenty-one Thousand One Hundred Seventy-eight Dollars ($21,178) per year, payable to each Case Coordinator in equal monthly installments.

“Lincoln County at the rate of Eight Hundred Eighty-two Dollars ($882) per year, payable to each Case Coordinator in equal monthly installments.

“(c) Beginning July 1, 1989 Lincoln County shall no longer be responsible for the expenses provided in Section 4 of Act 7 of 1989.”

Publisher's Notes. Acts 1989, No. 7, § 5, provided that this act shall be retroactive to January 1, 1989.

Acts 1989, No. 7, § 8, provided that nothing in this act shall be construed to prevent the respective Quorum Courts of the counties in the district from paying more than the amounts set forth in this act.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

Subchapter 20 — Twelfth Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 951, § 15, provided:

“Twelfth Judicial Circuit.

“(a) The circuit judgeship which is currently designated as Circuit Division 1 and presently held by J. Michael Fitzhugh shall be known and designated as Circuit Court, Division 5.

“(b) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by Jim Marschewski shall be known and designated as Circuit Court, Division 6.

“(c) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Norman Wilkinson shall be known and designated as Circuit Court, Division 1.

“(d) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Harry Foltz shall be known and designated as Circuit Court, Division 2.

“(e) The chancery judgeship which is currently designated as Chancery Division 3 and presently held by Jim Spears shall be known and designated as Circuit Court, Division 3.

“(f) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 4 and presently held by Mark Hewett shall be known and designated as Circuit Court, Division 4.”

Acts 2001, No. 951, § 29, provided: “The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided: “Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1889, No. 31, § 9: effective on passage.

Acts 1981 (Ex. Sess.), No. 38, § 5: Jan. 1, 1982. Emergency clause provided: “It being determined by the General Assembly that the proper and effective management of the State Judicial System and the administration of justice requires that the provisions of this Act be implemented as soon as possible and this Act is necessary for the proper management of the judicial system of the 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 January 1, 1982.”

Acts 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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, Nos. 97 and 147, § 5: Feb. 12, 1991 and Feb. 18, 1991, respectively. Emergency clause provided: “It is hereby found and determined by the General Assembly that the new judgeship created herein is necesssary to insure the orderly and efficient administration of justice within the Twelfth (12th) District. 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. 1003, § 9: July 1, 2019, except § 2. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that certain judicial districts under this act have an immediate need for additional circuit court judges due to the number of cases pending in the judicial district. Therefore, an emergency is declared to exist, and all Sections except Section 2 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

16-13-2001. Composition.

The Twelfth Judicial District shall be composed of Sebastian County.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1995, No. 900, § 1.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2002. Terms of court.

The terms of court in the Twelfth Judicial District shall commence on the dates set forth below:

  1. In the Fort Smith District of Sebastian County: On the first Mondays in February, June, and October; and
  2. In the Greenwood District of Sebastian County: On the second Mondays in March and September.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1995, No. 900, § 2.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2003. Judges and chancellors.

  1. The qualified electors of the Twelfth Judicial District shall elect:
    1. Two (2) circuit judges;
    2. Two (2) chancellors; and
    3. One (1) circuit-chancery judge.
    1. In the Twelfth Judicial District there shall be one (1) additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate.
    2. Effective July 1, 1991, the circuit-chancery judgeship created by this subsection shall become a circuit judgeship which shall have jurisdiction only in law.
  2. Effective July 1, 1991, there is hereby created an additional chancery judgeship in the Twelfth Judicial District which shall have jurisdiction in equity and probate.
    1. Each judge of the judgeship created by subdivision (a)(3) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the Twelfth Judicial District.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(3) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
  3. There is created in the Twelfth Judicial District an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.

History. Acts 1977, No. 432, § 1; 1981 (1st Ex. Sess.), No. 38, § 1; A.S.A. 1947, §§ 22-365, 22-373; Acts 1989, No. 949, § 1; 1991, No. 97, § 1; 1991, No. 147, § 1; 2019, No. 1003, § 3.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Acts 1991, Nos. 97 and 147, § 1, provided, in part, that the Governor shall appoint a person to serve in the position created in subsection (c) from July 1, 1991 through December 31, 1992, and that the qualified electors shall elect the judge at the November, 1992 general election to take office January 1, 1993. The section further authorized the chancery judge created by subsection (c) to employ a court reporter, a case coordinator, and such other personnel as shall be necessary for the court to effectively and efficiently carry out its responsibilities.

Acts 1995, No. 900, § 5, provided:

“As of January 1, 1997, the Circuit Judge Division 1 of the Twelfth Judicial District is hereby designated as the Circuit/Chancery Judge of the Twenty-First Judicial District.”

Acts 2019, No. 1003, § 7, provided: “(a) For the circuit judgeships being created in the Twelfth Judicial Circuit and the Twenty-first Judicial Circuit, the Governor shall appoint qualified persons who are residents of the judicial districts that are the subject of this act to temporarily fill the newly created circuit court judgeships, and each of the appointed persons shall serve until January 1, 2021, or until a successor has been elected and qualified.

“(b)(1) The qualified electors of the applicable judicial districts shall elect the additional circuit court judges whose judgeships are created by this act at the 2020 preferential primary election, to take office on January 1, 2021.

“(2) The additional circuit court judges shall be elected from within the judicial district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by existing law for judges of the circuit courts.

“(3) The circuit court judges shall serve for elected terms of six (6) years.

“(c) The counties receiving a new circuit court judgeship shall provide courtroom and office facilities and supplies, which shall be paid for as provided by law”.

Amendments. The 2019 amendment added (e).

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980); Lee v. Lee, 330 Ark. 310, 954 S.W.2d 231 (1997).

Subchapter 21 — Thirteenth Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 951, § 16, provided:

“Thirteenth Judicial Circuit.

"(a) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by David Guthrie shall be known and designated as Circuit Court, Division 6.

“(b) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Hamilton Singleton shall be known and designated as Circuit Court, Division 1.

“(c) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Edward Jones shall be known and designated as Circuit Court, Division 2.

“(d) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Edwin Keaton shall be known and designated as Circuit Court, Division 3.

“(e) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 4 and presently held by Carol Anthony shall be known and designated as Circuit Court, Division 4.

“(f) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 5 and presently held by Larry Chandler shall be known and designated as Circuit Court, Division 5.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1907, No. 460, § 4: effective first Monday in June, 1907.

Acts 1939, No. 22, § 5: approved Jan. 27, 1939. Emergency clause provided: “It is hereby ascertained and declared that by reason of the large increase in litigation due to the discovery of the new oil field in the Thirteenth Judicial Circuit, and to the extension of the Second Division of the Chancery Court of the Seventh Chancery Circuit to include the County of Columbia, and the readjustment of the time of holding Court in the Seventh Chancery Circuit, which includes all the Thirteenth Circuit, and to the conflicts of the time for holding the regular terms of court of the Chancery and Circuit Courts, in the Thirteenth Judicial Circuit, thereby resulting in serious losses to the litigants and affecting their property rights, an emergency has arisen and is hereby declared to exist and for the preservation of the public peace, health, and safety, this Act shall take effect and be in force from and after its passage.”

Acts 1941, No. 49, § 3: July 1, 1941.

Acts 1949, No. 52, § 14: approved Feb. 8, 1949. Emergency clause provided: “It is hereby ascertained and declared that by reason of the increase of litigation due to the development of the oil fields in the counties affected, which litigation in a large part is over the production of oil and gas, to delay which would seriously affect rights of persons and property rights, an emergency is hereby declared to exist and that this Act is immediately necessary for the preservation of the public peace, health and safety, and the same shall take effect and be in force upon its passage.”

Acts 1949, No. 130, § 2: effective on passage. Emergency declared. Approved Feb. 21, 1949.

Acts 1979, No. 771, § 11: Apr. 6, 1979. Emergency clause provided: “It is found and hereby declared by the General Assembly that because of the passage of Act 432 of 1977, the counties making up the Thirteenth Circuit-Chancery Court Circuit of Arkansas were changed effective January 1, 1979; that the terms of circuit court in the various counties of the circuit were left in conflict; that no provision was made for divisions in the multi-judge Thirteenth Court Circuit and no method was fixed to assign cases to the various judges of the court circuit. 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 on and after the date of its passage and approval.”

Acts 1983, No. 922, § 18: 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 (2) 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; and that the immediate effectiveness of Section 3 of this Act is essential to maintaining the fiscal integrity of the Judges Retirement Fund which would otherwise work irreparable harm upon the 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 as follows: Section 3 of this Act shall be effective immediately upon passage and approval of this Act; and all other sections and provisions of this Act shall be effective from and after July 1, 1983.”

Acts 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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. 41, § 7: Jan. 26, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the caseload of the Thirteenth Judicial District necessitates the appointment of an additional circuit-chancery judge 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 1999, No. 5, § 6: Jan. 27, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that conversion of the Circuit Division 1 judgeship of the Thirteenth Judicial District to a circuit-chancery judgeship is immediately necessary to insure the orderly and efficient administration of justice within the Thirteenth Judicial District; that the judge of Circuit Division 1 is the only judge in Columbia County; that converting the judgeship to a circuit-chancery judgeship will greatly improve and streamline the judicial system in Columbia County; and that this act is immediately necessary to more adequately distribute the caseload in the Thirteenth Judicial District. 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 expi ration 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.”

16-13-2101. Composition.

The Thirteenth Judicial District shall be composed of the counties of Calhoun, Cleveland, Columbia, Dallas, Ouachita, and Union.

History. Acts 1977, No. 432, § 1; 1983, No. 922, § 16; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2102. Terms of court.

The terms of the circuit court of the Thirteenth Judicial District shall begin in each county of the district as follows:

  1. Calhoun County: On the second Mondays in January and July;
  2. Union County: On the second Mondays in March and September;
  3. Columbia County: On the second Mondays in April and October;
  4. Ouachita County: On the second Mondays in May and November;
  5. Dallas County: On the second Mondays in June and December; and
  6. Cleveland County: On the second Mondays in February and August.

History. Acts 1907, No. 460, § 2, p. 1238; 1939, No. 22, § 1; 1941, No. 49, § 1; 1949, No. 52, § 11; 1949, No. 130, § 1; 1957, No. 402, § 1; 1959, No. 172, § 1; 1979, No. 771, § 10; A.S.A. 1947, §§ 22-310, 22-310n.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2103. Judges and chancellors.

  1. The qualified electors of the Thirteenth Judicial District shall elect:
    1. One (1) circuit judge;
    2. Two (2) chancellors;
    3. One (1) circuit-chancery judge, juvenile division; and
    4. Two (2) circuit-chancery judges.
      1. The judicial position of circuit judge created by Acts 1873, No. 53, and currently designated as Circuit Division 1, is converted to a circuit-chancery judge position and shall be designated as Circuit-Chancery Division 5.
      2. The judge of Circuit-Chancery Division 5 shall continue to be responsible for the duties formerly assigned to Circuit Division 1.
    1. The judicial position of circuit judge created by Acts 1925, No. 27, shall be designated as Circuit Division 2.
    1. The judicial position of chancellor created by Acts 1903, No. 166, shall be designated as Chancery Division 1.
    2. The judicial position of chancellor created by Acts 1923, No. 372, shall be designated as Chancery Division 2.
    1. The judicial position of circuit-chancery judge, juvenile division, created by Acts 1989, No. 949, shall be designated as Circuit-Chancery Division 3 for all jurisdictions.
    2. This judge shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall have jurisdiction in law, equity, and probate to hear other cases as time permits.
  2. The judicial position of circuit-chancery judge created by Acts 1995, No. 41, shall have jurisdiction in law, equity, and probate and shall be designated Circuit-Chancery Division 4 in all jurisdictions.
  3. If any additional judgeship is created, an additional division shall be established and the judge shall serve as the judge of the additional division.

History. Acts 1977, No. 432, § 1; 1983, No. 922, § 16; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1; 1995, No. 41, § 1; 1997, No. 1141, § 1; 1999, No. 5, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

As enacted, subsection (c) began “Effective immediately upon passage and approval of this act.”

Acts 1995, No. 41, § 1, provided, in part, that as soon as possible after the effective date of this act, the Governor shall appoint a qualified person to temporarily fill the Thirteenth Judicial District Circuit-Chancery judgeship created herein, and the appointed person shall serve until December 31, 1996, or until a successor has been elected and qualified, whichever occurs last.

Acts 1995, No. 41, § 1, further provided:

“The qualified electors of the Thirteenth Judicial District shall elect the additional circuit-chancery judge created herein at the November 1996 general election to take office on January 1, 1997. The additional judge shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts. The judge shall serve for elected terms of four (4) years.”

Acts 1995, No. 41, § 2, provided:

“The counties which comprise the Thirteenth Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by this act, which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.”

Acts 1995, No. 41, § 3, provided:

“There shall be provided for the judge of the circuit-chancery judgeship created by this act a court reporter, whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit-chancery courts of this state.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2104. Divisions of court.

  1. There shall be four (4) divisions of circuit court and five (5) divisions of chancery court in the Thirteenth Judicial District of Arkansas as established in § 16-13-2103.
  2. A judge shall be elected for each division of the circuit and chancery courts of the Thirteenth Judicial District, and candidates for the offices shall designate and qualify as candidates for the particular division of the court to which they seek election.
    1. The judges of the circuit court may try cases, hear matters, make orders, and take action in any division of the court and may assign or reassign any case from one (1) division to another by administrative order of the judges of the Thirteenth Judicial District.
    2. The judges of the chancery court may try cases, hear matters, make orders, and take action in any division of the court and may assign or reassign any case from one (1) division to another by administrative order of the judges of the Thirteenth Judicial District.
    3. The clerks of the circuit and chancery courts shall assign cases to the divisions therein in accordance with administrative orders of the judges of the Thirteenth Judicial District.
  3. Each division may have separate petit juries, or the divisions by concurrence of the judges may share a single petit jury wheel or box, or a single list of petit jurors.
  4. If any additional judgeship is created, the divisions created in subsection (a) of this section shall increase in accordance with the number of additional judgeships created.

History. Acts 1979, No. 771, §§ 1, 4-9; A.S.A. 1947, §§ 22-333.19, 22-333.22 — 22-333.27; Acts 1997, No. 1141, § 2; 1999, No. 5, § 2.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Case Notes

Judicial Authority.

The letter opinion of the judge's law clerk informing the defendant that his petition for post-conviction relief was denied was invalid because a trial judge may not delegate his judicial authority to a law clerk, and the General Assembly has not attempted to give law clerks the power to decide cases. Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986).

Cited: Nation v. State, 283 Ark. 250, 674 S.W.2d 939 (1984).

Subchapter 22 — Fourteenth Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 300, § 3: Feb. 19, 2001. Emergency clause provided: “It is hereby found and determined by the Eighty-third General Assembly that the caseload of the Fourteenth Judicial District necessitates the appointment of additional circuit-chancery judges immediately. 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. 951, § 17, provided:

“Fourteenth Judicial Circuit.

  1. The circuit judgeship which is currently designated as Circuit Division 1 and presently held by Robert McCorkindale shall be known and designated as Circuit Court, Division 3.

“(b) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Roger Logan shall be known and designated as Circuit Court, Division 1.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Gary Isbell shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1895, No. 36, § 3: effective 60 days after passage.

Acts 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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.”

16-13-2201. Composition.

The Fourteenth Judicial District shall be composed of the counties of Baxter, Boone, Marion, and Newton.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2202. Terms of court.

The terms of court in each county in the Fourteenth Judicial District shall commence on the dates set forth below:

  1. Baxter County: On the second Monday in March and the second Monday in September;
  2. Boone County: On the third Monday in April and the third Monday in October;
  3. Newton County: On the first Mondays in March and September; and
  4. Marion County: On the first Mondays in April and October.

History. Acts 1891, No. 62, § 4, p. 110; 1895, No. 36, §§ 1, 2, p. 40; 1955, No. 227, § 1; 1979, No. 696, §§ 1, 2; A.S.A. 1947, §§ 22-310, 22-310n.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2203. Judges and chancellors.

    1. The qualified electors of the Fourteenth Judicial District shall elect:
      1. One (1) circuit judge;
      2. One (1) chancellor; and
      3. One (1) circuit-chancery judge.
      1. There is created in the Fourteenth Judicial District an additional circuit-chancery judgeship which shall have jurisdiction in law, equity, and probate.
      2. The additional judge shall be elected from the district and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
      3. The judge shall serve for elected terms of six (6) years.
      4. The counties which comprise the Fourteenth Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by subdivision (a)(2)(A) of this section which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.
      5. There shall be provided for the judge of the circuit-chancery judgeship created by subdivision (a)(2)(A) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit-chancery courts of this state.
    1. The judge of the judgeship created by subdivision (a)(1)(C) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(1)(C) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1; 2001, No. 300, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Acts 2001, No. 300, § 2, provided:

“The Eighty-third General Assembly finds that it is very important that the judges appointed or elected to serve the Fourteenth Judicial District provide an adequate judicial presence and adequate judicial resources to each county in the Fourteenth Judicial District. Therefore, it is the express desire of the members of the Eighty-third General Assembly that the person appointed or elected to the judgeship created by this act maintain an office in Marion or Newton county throughout the duration of the term of office to which the person has been appointed or elected.”

As amended in 2001, this section also contained a subsection (c) which provided:

“(c)(1) Effective immediately, there is created in the Fourteenth Judicial District an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate. (2) The Governor shall appoint a qualified person who is a resident of the district to temporarily fill the Fourteenth Judicial District circuit-chancery judgeship created by this subsection (c), and the appointed person shall serve until December 31, 2002, or until a successor has been elected and qualified, whichever occurs last. (3) The qualified electors of the district shall elect the additional circuit judge, pursuant to Amendment 80 to the Arkansas Constitution approved at the November 7, 2000, General Election, created by this subsection (c), at the November 2002 general election to take office on January 1, 2003. The additional judge shall be elected from the district and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts. The judge shall serve for elected terms of six (6) years. (4) The counties which comprise the Fourteenth Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by this subsection (c), which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes. (5) There shall be provided for the judge of the circuit-chancery judgeship created by this subsection (c) a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit-chancery courts of this state.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

Subchapter 23 — Fifteenth Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 951, § 18, provided:

“Fifteenth Judicial Circuit.

  1. The circuit judgeship which is currently designated as Circuit Division 1 and presently held by Paul Danielson shall be known and designated as Circuit Court, Division 1.

“(b) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Van Taylor shall be known and designated as Circuit Court, Division 2.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by William Bullock shall be known and designated as Circuit Court, Division 3.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1889, No. 31, § 9: effective on passage.

Acts 1901, No. 5, § 22: effective on passage.

Acts 1955, No. 146, § 3: July 1, 1955.

Acts 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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.”

16-13-2301. Composition.

The Fifteenth Judicial District shall be composed of the counties of Conway, Logan, Scott, and Yell.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2302. Terms of court.

The terms of court in each county in the Fifteenth Judicial District shall commence on the dates set forth below:

  1. Conway County: On the first Monday in March and the first Monday in October;
    1. In the Southern District of Logan County: On the third Mondays in April and October;
    2. In the Northern District of Logan County: On the first Mondays in January and August;
  2. Scott County: On the first Mondays in May and November;
    1. In the Danville District of Yell County: On the third Monday in January and the third Monday in August;
    2. In the Dardanelle District of Yell County: On the third Monday in February and the third Monday in September.

History. Acts 1889, No. 31, §§ 1-3, p. 38; 1901, No. 5, § 11, p. 5; 1939, No. 210, § 1; 1945, No. 11, § 1; 1955, No. 146, § 1; A.S.A. 1947, § 22-310.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2303. Judges and chancellors.

  1. The qualified electors of the Fifteenth Judicial District shall elect:
    1. One (1) circuit judge;
    2. One (1) chancellor; and
    3. One (1) circuit-chancery judge.
    1. The judge of the judgeship created by subdivision (a)(3) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(3) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

Subchapter 24 — Sixteenth Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 951, § 19, provided:

“Sixteenth Judicial Circuit.

  1. The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 1 and presently held by John Dan Kemp shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by John Norman Harkey shall be known and designated as Circuit Court, Division 2.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Stephen Choate shall be known and designated as Circuit Court, Division 3.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1893, No. 56, § 12: effective on passage.

Acts 1895, No. 36, § 3: effective 60 days after passage.

Acts 1905, No. 62, § 2: Mar. 2, 1905.

Acts 1979, No. 242, § 3: Mar. 1, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that since the redistricting of the circuit and chancery courts in the State, the dates set for the beginning of terms of circuit court in the respective counties of the Sixteenth Circuit-Chancery Court Circuit are not appropriate; that it is essential to the effective and efficient administration of justice in the Sixteenth Circuit-Chancery Court Circuit and in the respective counties thereof that dates be prescribed by law for the commencement of the terms of circuit court in said counties; that this Act is designed to establish such dates 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 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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 2001, No. 816, § 2: Mar. 19, 2001. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the caseload of the Sixteenth Judicial District necessitates the appointment of an additional judge immediately. 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.”

16-13-2401. Composition.

The Sixteenth Judicial District shall be composed of the counties of Cleburne, Fulton, Independence, Izard, and Stone.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2402. Terms of court.

The terms of court of the circuit court in the respective counties of the Sixteenth Judicial District shall commence on the following dates:

  1. Cleburne County: On the second Tuesdays in May and November;
  2. Fulton County: On the second Tuesdays in January and July;
  3. Independence County: On the second Tuesdays in February and August;
  4. Izard County: On the second Tuesdays in March and September; and
  5. Stone County: On the second Tuesdays in April and October.

History. Acts 1891, No. 62, § 3, p. 110; 1893, No. 56, § 3, p. 84; 1895, No. 36, §§ 1, 2, p. 40; 1903, No. 99, § 1, p. 167; 1905, No. 62, § 1, p. 163; 1955, No. 227, § 1; 1979, No. 242, § 1; A.S.A. 1947, §§ 22-310, 22-310n.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2403. Judges and chancellors.

    1. The qualified electors of the Sixteenth Judicial District shall elect:
      1. One (1) circuit judge;
      2. One (1) chancellor; and
      3. One (1) circuit-chancery judge.
      1. There is created in the Sixteenth Judicial District an additional circuit judgeship which shall have jurisdiction in law, equity, and probate.
      2. The additional judge shall be elected from the district and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
      3. The judge shall serve for elected terms of six (6) years.
      4. The counties which compose the Sixteenth Judicial District shall provide courtroom and office facilities and supplies for the judge of the judgeship created by subdivision (a)(2)(A) of this section which shall be paid for out of the county treasuries in the same manner as other demands against the counties and out of funds appropriated by the respective quorum courts of the counties for such purposes.
      5. There shall be provided for the judge of the judgeship created by subdivision (a)(2)(A) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.
    1. The judge of the judgeship created by subdivision (a)(1)(C) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(1)(C) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division of chancery court, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
  1. Effective January 1, 1999, the circuit judgeship created by subdivision (a)(1)(A) of this section and the chancery judgeship created by subdivision (a)(1)(B) of this section shall become circuit-chancery judgeships and shall have jurisdiction in law, equity, and probate.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1; 1995, No. 582, § 1; 2001, No. 816, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Publisher's Notes. As amended in 2001 subdivision (a)(2) provided:

“Effective July 1, 2001, There is created in the Sixteenth Judicial District an additional circuit judgeship which shall have jurisdiction in law, equity, and probate. (2) The Governor shall appoint a qualified person to temporarily fill the Sixteenth Judicial District circuit judgeship created by this subsection, and the appointed person shall serve until December 31, 2002, or until a successor has been elected and qualified, whichever occurs last. (3) The qualified electors of the district shall elect the additional circuit judge created by this subsection at the November 2002 General Election to take office on January 1, 2003.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2404. [Repealed.]

Publisher's Notes. This section, concerning quorum court fees funding a case coordinator, was repealed by Acts 1995, No. 1256, § 21, as amended by Acts 1995 (1st Ex. Sess.), No. 13, § 5. The section was derived from Acts 1995, No. 1243, §§ 1, 2.

Subchapter 25 — Seventeenth and Twenty-Third Judicial Circuits

A.C.R.C. Notes. Acts 2001, No. 951, § 20, provided:

“Seventeenth Judicial Circuit.

  1. The circuit judgeship which is currently designated as Circuit Division 1 and presently held by Bill Mills shall be known and designated as Circuit Court, Division 1.

“(b) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Darrell Hickman shall be known and designated as Circuit Court, Division 3.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Robert Edwards shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 28, provided:

“Twenty-third Judicial Circuit.

(a) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 1 and presently held by Lance Hanshaw shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Phillip Whiteaker shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Publisher's Notes. Acts 1999, No. 456, § 7, provided:

“Subject to review by the Senate Interim Committee on Judiciary of the Arkansas General Assembly, the Arkansas Code Revision Commission is authorized and directed to prepare a technical corrections bill for introduction in the next regular or special session of the Arkansas General Assembly to make the necessary changes to the Arkansas Code of 1987 Annotated consistent with the provisions of this act. Specifically, in addition to other necessary changes determined to be consistent with this act and subject to review by the Senate Interim Committee on Judiciary, the Arkansas Code Revision Commission shall prepare legislation to change references to the Seventeenth Judicial District-East and the Seventeenth Judicial District-West, as well as similar and related references used throughout the Arkansas Code of 1987 Annotated to references consistent with the Seventeenth Judicial District and the Twenty-Third Judicial District, or divisions thereof, for purposes of uniformity and style.”

Acts 1999, No. 456, § 8, provided:

“Nothing in this Act shall be construed to decrease the term of office of the judges and prosecuting attorneys of the Seventeenth Judicial District-East or the Seventeenth Judicial District-West serving on the effective date of this Act. The judges and prosecuting attorneys shall continue to serve in their respective capacities in the Seventeenth Judicial District and the Twenty-Third Judicial District until the expiration of their terms.”

Effective Dates. Acts 1893, No. 56, § 12: effective on passage.

Acts 1921, No. 3, § 5: effective on passage. Emergency declared. Approved Jan. 20, 1921.

Acts 1955, No. 74, § 3: July 1, 1955.

Acts 1967, No. 56, §§ 3, 4: July 1, 1967. Emergency clause provided: “There is a possibility that the 66th General Assembly will be extended, in which event considerable confusion could evolve concerning the effective date of legislation which does not contain an emergency clause. Therefore, an emergency is hereby declared and this act shall be in effect from and after the date of passage.” Approved Feb. 9, 1967.

Acts 1989 (3rd Ex. Sess.), No. 28, § 7: Nov. 7, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the caseload of the Second and Sixth Judicial Districts necessitates the appointment of additional circuit-chancery judges immediately; and that this Act so provides and should therefore 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 1994 (2nd Ex. Sess.), No. 29, § 8: Aug. 23, 1994. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the caseload of the Seventeenth Judicial District (West) necessitates the appointment of an additional circuit-chancery judge immediately; that the salary cap for the Waldron Municipal Court Clerk must be raised in order to retain efficient court personnel and that this act so provides and should therefore 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 1999, No. 456, § 12: Mar. 8, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act is essential to the operation of the criminal justice system within the Seventeenth and the Twenty-Third Judicial Districts, and is necessary to avoid confusion between the two districts. 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 2007, No. 168, § 7: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Judicial Resources Assessment Committee has reviewed the caseloads of the various judicial districts; that the caseloads of the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District necessitate the appointment of an additional circuit judges; and that this act is necessary to ensure the smooth, efficient, and timely administration of justice in the counties affected. 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 July 1, 2007.”

16-13-2501. Composition.

  1. The Seventeenth Judicial District shall be composed of the counties of Prairie and White.
  2. The Twenty-third Judicial District shall be composed of Lonoke County.

History. Acts 1977, No. 432, § 1; 1983, No. 669, § 1; A.S.A. 1947, § 22-365; Acts 1999, No. 456, § 1.

A.C.R.C. Notes. As amended by Acts 1999, No. 456, § 1 subsections (a) and (b) began: “Effective immediately.” As to the effective date of Acts 1999, No. 456, see the Effective Date Notes at the beginning of this subchapter.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2502. Terms of court.

  1. The terms of court in the Twenty-third Judicial District shall commence on the third Monday in February and the first Monday in September.
  2. The terms of court in each county in the Seventeenth Judicial District shall commence on the following dates:
      1. In the Northern District of Prairie County, on the third Mondays in March and September;
      2. In the Southern District of Prairie County, on the first Monday in March and the third Monday in August; and
      1. In White County, on the third Monday and the tenth Monday after the third Monday in January and the third Monday and the tenth Monday after the third Monday in July.
      2. However, grand and petit juries selected at the January and July terms of the court may serve for a period of six (6) months.

History. Acts 1893, No. 56, § 4, p. 84; 1921, No. 3, § 2; 1943, No. 85, § 1; 1953, No. 318, § 1; 1955, No. 74, § 1; 1967, No. 56, § 1; A.S.A. 1947, § 22-310; Acts 1999, No. 456, § 2.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2503. Judges and chancellors.

  1. The qualified electors of the Seventeenth Judicial District shall elect:
    1. One (1) circuit judge;
    2. One (1) chancery judge; and
      1. One (1) circuit-chancery judge.
      2. The circuit-chancery judgeship created by subdivision (a)(3)(A) of this section within the Seventeenth Judicial District, whose primary responsibility shall be to perform the duties of a judge of the juvenile division of chancery court, shall sit as judge of the circuit, chancery, and probate courts as time permits.
    1. The qualified electors of the Twenty-third Judicial District shall elect one (1) circuit-chancery judge who shall have jurisdiction in law, equity, and probate.
        1. Effective January 1, 1995, there is hereby created in the Twenty-third Judicial District an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate.
        2. The judge of the additional circuit-chancery judgeship created herein shall sit as judge of the circuit, chancery, or probate court as time permits.
        3. The additional judge shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts.
        4. The judge shall serve for elected terms of four (4) years.
      1. The county which comprises the Twenty-third Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by this subdivision (b)(2) which shall be paid out of the county treasury, in the same manner as other demands against the county, out of funds appropriated by the quorum court of the county for such purposes.
      2. There shall be provided for the judge of the circuit-chancery judgeship created by this subdivision (b)(2) a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit-chancery courts of this state.
    1. Effective July 1, 2007, there is created in the Twenty-third Judicial District an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.
    2. The Governor shall appoint a qualified person who is a resident of the district to temporarily fill the Twenty-third Judicial District circuit judgeship created by subdivision (c)(1) of this section, and the appointed person shall serve until January 1, 2009, or until a successor has been elected and qualified.
      1. The qualified electors of the district shall elect the additional circuit judge created by subdivision (c)(1) of this section at the 2008 preferential primary election to take office on January 1, 2009.
      2. The additional circuit judge shall be elected from the district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
      3. The circuit judge shall serve for elected terms of six (6) years.
    3. The county that composes the Twenty-third Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit judgeship created by subdivision (c)(1) of this section, which shall be paid out of the county treasury in the same manner as other demands against the county and out of funds appropriated by the quorum court of the county for these purposes.
    4. There shall be provided for the judge of the circuit judgeship created by subdivision (c)(1) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.

History. Acts 1977, No. 432, § 1; 1983, No. 669, § 1; A.S.A. 1947, § 22-365; Acts 1989 (3rd Ex. Sess.), No. 28, § 1; 1994 (2nd Ex. Sess.), No. 29, §§ 1-3; 1999, No. 456, § 3; 2007, No. 168, § 3.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989 (3rd Ex. Sess.), No. 28, § 1, provided, in part, that:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 1, also provided, in part, that:

“As soon as possible after the effective date of this act, the Governor shall appoint a qualified person to temporarily fill the Second and Sixth Judicial District circuit-chancery judgeships created by this Act, and such persons shall serve until December 31, 1990, or until their successors have been elected and qualified, whichever occurs last.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 2, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes. Provided, however, that the additional judgeship for the Sixth Judicial District who is to conduct commitment hearings shall be provided courtroom and office facilities and supplies by the Arkansas State Hospital located in Pulaski County.”

Acts 1989 (3rd Ex. Sess.), No. 28, § 3, provided:

“In each judicial circuit in which additional circuit-chancery judgeships are created pursuant to this Act, there shall be provided court reporters whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Following the 1994 (2nd Ex. Sess.) amendment to this section, the Arkansas Code Revision Commision redesignated former (a)(3) as (a)(3)(A) and former (c) as (a)(3)(B).

As enacted, Acts 1994 (2nd Ex. Sess.), No. 29, § 1, provided, in part:

“The qualified electors of the Seventeenth Judicial District-West shall elect the additional circuit-chancery judge created herein at the November 1994 general election to take office on January 1, 1995.”

As enacted, Acts 1994 (2nd Ex. Sess.), No. 29, § 1, also provided, in part:

“(1) Since the provisions of this act will not be effective until after the 1994 Preferential Primaries have taken place, on the effective date of this act, there shall be a ‘vacancy in nomination,’ which the political parties shall fill in accordance with Arkansas Code Annotated § 7-7-104.

“(2) If needed, the Governor shall issue a proclamation specifying the date on which the special primary election shall be held, but not less than thirty (30) days prior to the November 1994 general election, and the date on which a runoff primary election shall be held in the event a candidate does not receive a majority vote, but not more than one week after the special primary election. The proclamation shall also establish the deadline for filing as a candidate for nomination which shall also be the deadline for filing petitions of independent candidates to file nomination petitions of not less than fifty (50) nor more than one thousand (1,000) electors from the district. If no special primary election is to be held, the Governor shall, in a proclamation, establish the filing period for independent candidates.”

Acts 2007, No.168, § 1, provided:

“The Judicial Resources Assessment Committee has reviewed the caseloads of various judicial districts and has determined that to ensure the smooth, efficient, and timely administration of justice additional circuit judgeships are needed in the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District. This act authorizes the establishment of five (5) additional circuit judgeships, articulates the applicable appointment and election process of the additional circuit judges, and identifies various resources that will be available.”

In Acts 2007, No. 168, § 3, the term “2008 Nonpartisan Judicial General Election” should have been used in place of “2008 preferential primary election”. Circuit judges are now elected on a nonpartisan basis pursuant to Arkansas Constitution, Amendment 80, § 17.

Publisher's Notes. Acts 1983, No. 669, § 4, provided that the division of the Seventeenth Judicial District-Chancery Court District into the Seventeenth Judicial District-East and the Seventeenth Judicial District-West would be effective January 1, 1985. The section further provided that nothing in the act should be so construed as to decrease the term of office of the judges and prosecuting attorneys of the Seventeenth Judicial District serving on July 4, 1983, and that those persons would continue to serve in their respective capacities in the Seventeenth Judicial District-East until the expiration of their terms.

Amendments. The 2007 amendment added (c).

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2504. Exchange of districts.

The judges of the Twenty-third Judicial District and the Seventeenth Judicial District may, by agreement, temporarily exchange districts or hold court for each other as they deem necessary and appropriate.

History. Acts 1977, No. 432, § 1; 1983, No. 669, § 1; A.S.A. 1947, § 22-365; Acts 1999, No. 456, § 4.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

Subchapter 26 — Eighteenth Judicial Circuit

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 2001, No. 951, § 21, provided:

“Eighteenth Judicial Circuit East.

  1. The circuit judgeship which is currently designated as Circuit Division 1 and presently held by John Homer Wright shall be known and designated as Circuit Court, Division 1.

“(b) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by David Switzer shall be known and designated as Circuit Court, Division 3.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Tom Smitherman shall be known and designated as Circuit Court, Division 4.

“(d) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Vicki Cook shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 22, provided:

“Eighteenth Judicial Circuit West. The circuit-chancery judgeship which is presently held by Gayle Ford shall be known and designated as Circuit Court, Division 1.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1891, No. 52, § 9: effective on passage.

Acts 1911, No. 114, § 5: effective on passage. Emergency declared. Approved Mar. 23, 1911.

Acts 1923, No. 354, § 2: Mar. 9, 1923.

Acts 1953, No. 76, § 3: Feb. 17, 1953. Emergency clause provided: “It has been found and is declared by the General Assembly of the State of Arkansas that the change of the dates of the Circuit Court in Montgomery County will act for the more convenient and expeditious handling of litigation therein. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1963, No. 49, § 5: Feb. 8, 1963. Emergency clause provided: “It is hereby found and determined by the General Assembly that the docket of the Circuit Judge of the 18th Judicial Circuit is extremely overloaded; that the proper administration of justice in Montgomery County Circuit Court will be expedited by transferring such court to the 9th Judicial Circuit; and that only by the immediate passage of this Act may this purpose be accomplished. 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 1963, No. 262, § 3: Mar. 18, 1963. Emergency clause provided: “It has been found and is declared by the General Assembly of the State of Arkansas that the change of the dates of the Circuit Court in Montgomery County will result in more convenient and expeditious handling of litigation therein. Therefore, an emergency is declared to exist, and this Act being immediately necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1967, No. 300, § 3: Mar. 10, 1967. Emergency clause provided: “It has been found and determined by the General Assembly that the change of the dates of the Circuit Court in Garland County will result in more convenient and expeditious handling of litigation therein. Therefore, an emergency is hereby declared to exist, and this Act being immediately necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in force from the date of its passage and approval.”

Acts 1970 (Ex. Sess.), No. 19, § 3: July 1, 1970.

Acts 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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 2001, No. 1529, § 2: Apr. 12, 2001. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the circuit, chancery, and circuit-chancery judges of the Eighteenth Judicial District — East should be provided bailiffs as are other courts in the state to maintain order and provide security for the judge, jury, witnesses, and defendants. 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.”

16-13-2601. Composition.

  1. The Eighteenth Judicial District-East shall be composed of Garland County.
  2. The Eighteenth Judicial District-West shall be composed of the counties of Montgomery and Polk.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980); Riviere v. Hardegree, 278 Ark. 167, 644 S.W.2d 276 (1983).

16-13-2602. Terms of court.

The terms of court in each county in the Eighteenth Judicial District shall commence on the dates set forth below:

  1. Garland County: On the second Fridays in January and July;
  2. Montgomery County: On the third Mondays in May and November; and
  3. Polk County: On the third Mondays in April and October.

History. Acts 1891, No. 52, § 2, p. 87; 1911, No. 114, §§ 1, 2; 1923, No. 354, § 1; 1953, No. 76, § 1; 1963, No. 49, § 1; 1963, No. 262, § 1; 1967, No. 300, § 1; 1970 (Ex. Sess.), No. 19, § 1; A.S.A. 1947, § 22-310.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2603. Judges and chancellors.

    1. The qualified electors of the Eighteenth Judicial District-East shall elect:
      1. One (1) circuit judge and one (1) chancellor to serve the Eighteenth Judicial District-East, each of whom shall be a resident of the Eighteenth Judicial District-East; and
      2. One (1) circuit-chancery judge.
      1. In the Eighteenth Judicial District-East, there is created one (1) additional circuit-chancery judgeship which shall have jurisdiction in law, equity, and probate.
      2. The circuit judges, chancery judges, and circuit-chancery judges of the districts subject to this subsection may, by agreement, hold either of the circuit or chancery courts in their respective districts and may hear and try matters pending in any of those courts or may hear or try matters in the same court at the same time. The judges subject to this subsection may adopt such rules as they deem appropriate for the assignment of cases in the circuit and chancery courts of their district.
      1. The judge of the judgeship created by subdivision (a)(1)(B) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
      2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(1)(B) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
  1. The qualified electors of the Eighteenth Judicial District-West shall elect one (1) circuit-chancery judge to serve the Eighteenth Judicial District-West who shall be a resident of the Eighteenth Judicial District-West.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1987, No. 846, §§ 1, 3; 1989, No. 949, § 1.

A.C.R.C. Notes. Acts 1987, No. 846, § 2, provided:

“The additional circuit judges, chancery judges, and circuit-chancery judges provided for in this Act shall be elected at the General Election in 1988, to take office on January 1, 1989, and thereafter as provided by law.”

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2604. Exchange of districts.

The judges of the Eighteenth Judicial District-East and the Eighteenth Judicial District-West may, by agreement, temporarily exchange districts or hold court for each other, as they deem necessary or appropriate.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2605. Court reporters.

Each of the circuit, chancery, and circuit-chancery judges provided for in § 16-13-2603 is authorized to employ a court reporter. The court reporters shall receive such compensation as is provided by law.

History. Acts 1987, No. 846, § 4.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-2606. Secretary-case coordinator.

  1. Each circuit judge, chancery judge, circuit-chancery judge, and circuit-chancery judge of the juvenile division of chancery court, Eighteenth Judicial District-East, may employ a secretary-case coordinator to serve each judge at the pleasure of the appointing judge, at an annual salary based upon the classification in the table in subdivision (b)(1) of this section, payable in equal monthly installments by Garland County.
    1. No payment of salary may be made except in conformity with the salary rates assigned in the table below and only after the appointing judge has certified in writing the term of the employee's experience to the county clerk:
    2. The appointing judge shall have discretion in certifying or omitting to certify increases in salary above the entry level.

GRADE EXPERIENCE SALARY I Entry level $19,500.00 II 18 months $20,250.00 III 36 months $21,000.00 IV 54 months $21,630.00 V 72 months $22,278.90 VI 90 months $22,947.26 VII 108 months $23,635.68

Click to view table.

History. Acts 1993, No. 313, §§ 1, 2.

Publisher's Notes. Acts 1993, No. 313, § 3, provided that:

“It is hereby determined by the General Assembly that the secretary-case coordinators of the several courts of the Eighteenth Judicial Circuit-East have varying experience and beginning in 1993, classifications in Section 2 should be implemented and is necessary to the proper administration of justice.”

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-2607. Bailiffs.

  1. The circuit, chancery, and circuit-chancery judges of the Eighteenth Judicial District - East may each appoint one (1) court bailiff and, by concurrence of a majority of the judges in the judicial district, two (2) at-large bailiffs to serve as circumstances warrant.
    1. The duties of the bailiffs shall include:
      1. The supervision and maintenance of order in the courtroom;
      2. Providing security for the judges, officers of the court, jurors, and other individuals involved in court proceedings;
      3. Administering oaths; and
      4. Other related duties as assigned by the judges.
    2. When acting within the scope of their duties, the bailiffs shall exercise all the powers necessary and proper to perform their duties, including the powers of a deputy sheriff and the power to make arrests, carry a weapon, and serve summons.
    3. The bailiffs shall have and maintain law enforcement certification as is necessary to fully perform the functions of their office.
      1. The compensation package of the bailiffs shall be determined by the Garland County Quorum Court.
      2. If the quorum court raises salary benefits for county employees, it shall also raise salary or benefits an equivalent amount for the bailiffs.
    1. Any other employment or salary considerations will be governed by Garland County's Job Evaluation Salary Administration Program.

History. Acts 2001, No. 1529, § 1.

Subchapter 27 — Nineteenth Judicial Circuit

A.C.R.C. Notes. Current subchapter 27, “Nineteenth Judicial Circuit”, which includes both counties of Benton and Carroll as one entity, has been expanded upon by subchapter 30, which designates Carroll County as “Nineteenth Judicial District-East” and Benton County as “Nineteenth Judicial District-West”. Therefore, subchapter 27 currently will be retained as § 16-13-3002(f) states: “All existing laws not in conflict herewith pertaining to the Nineteenth Judicial District shall apply to the Nineteenth Judicial District-East and the Nineteenth Judicial District-West.”

Please also see subchapter 30 for division of 19th Judicial District into 19th Judicial District - East and 19th Judicial District - West.

Acts 2001, No. 951, § 23, provided:

“Nineteenth Judicial Circuit West.

  1. The circuit judgeship which is currently designated as Circuit Division 1 and presently held by Tom Keith shall be known and designated as Circuit Court, Division 1.

“(b) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by David Clinger shall be known and designated as Circuit Court, Division 2.

“(c) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Xollie Duncan shall be known and designated as Circuit Court, Division 4.

“(d) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Donald R. Huffman shall be known and designated as Circuit Court, Division 5.

“(e) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Jay Finch shall be known and designated as Circuit Court, Division 3.”

Acts 2001, No. 951, § 24, provided:

“Nineteenth Judicial Circuit East. The circuit-chancery judgeship which is presently held by Alan Epley shall be known and designated as Circuit Court, Division 1.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Cross References. Nineteenth Judicial District, Prosecuting Attorney's expenses, § 16-21-2401 et seq.

Effective Dates. Acts 1887, No. 38, § 10: effective on passage.

Acts 1981 (Ex. Sess.), No. 38, § 5: Jan. 1, 1982. Emergency clause provided: “It being determined by the General Assembly that the proper and effective management of the State Judicial System and the administration of justice requires that the provisions of this Act be implemented as soon as possible and this Act is necessary for the proper management of the judicial system of the 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 January 1, 1982.”

Acts 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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. 789, § 5: Mar. 30, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that the circuit, chancery, and circuit-chancery judges of the Nineteenth Judicial District should be provided bailiffs as are other courts in the state, to maintain order and provide security for the judge, jury, witnesses and defendants, and that this act is immediately necessary. 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.”

16-13-2701. Composition.

The Nineteenth Judicial District shall be composed of the counties of Benton and Carroll.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2702. Terms of court.

The terms of court in each county in the Nineteenth Judicial District shall commence on the dates set forth below:

  1. Benton County: On the third Mondays in March and September; and
  2. Carroll County: On the third Mondays in February and August.

History. Acts 1887, No. 38, § 3, p. 47; 1887, No. 62, § 1, p. 88; 1967, No. 304, §§ 1, 3; A.S.A. 1947, § 22-310.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2703. Judges and chancellors.

  1. The qualified electors of the Nineteenth Judicial District shall elect:
    1. One (1) circuit judge;
    2. One (1) chancellor; and
    3. One (1) circuit-chancery judge.
  2. In the Nineteenth Judicial District, there shall be one (1) additional circuit judgeship which shall have jurisdiction only in law.
  3. There is hereby created and established, in addition to all other circuit judgeships, chancery judgeships, and circuit-chancery judgeships in the Nineteenth Judicial District, one (1) additional chancery judgeship which shall have jurisdiction in equity and probate.
  4. The chancery judge created pursuant to subsection (c) of this section is authorized to employ a court reporter, a case coordinator, and such other personnel as shall be necessary for the court to effectively and efficiently carry out its responsibilities.
    1. The judge of the judgeship created by subdivision (a)(3) of this section shall be the judge of the juvenile division of chancery court. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    2. The judge of the additional circuit-chancery judgeship created in subdivision (a)(3) of this section shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.

History. Acts 1977, No. 432, § 1; 1981 (Ex. Sess.), No. 38, § 1; A.S.A. 1947, §§ 22-365, 22-373; Acts 1989, No. 949, § 4.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

As enacted, the 1989 amendment in (b) provided for jurisdiction in law, equity, and probate until July 1, 1989, when this judgeship shall be converted to a circuit judgeship which shall have jurisdiction only in law.

As enacted, the 1989 amendment in (c) began “Effective July 1, 1989.”

Acts 2007, No. 168, § 1, provided: “The Judicial Resources Assessment Committee has reviewed the caseloads of various judicial districts and has determined that to ensure the smooth, efficient, and timely administration of justice additional circuit judgeships are needed in the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District. This act authorizes the establishment of five (5) additional circuit judgeships, articulates the applicable appointment and election process of the additional circuit judges, and identifies various resources that will be available.”

Publisher's Notes. Acts 1989, No. 949, § 4, provided, in part, as to the judgeship created in (c), that the Governor shall appoint a person to serve in such position from July 1, 1989, through December 31, 1990, and that the qualified elector shall elect the judge at the November, 1990, General Election to take office on January 1, 1991.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980); Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995).

16-13-2704. Bailiffs.

  1. The circuit, chancery, and circuit-chancery judges of the Nineteenth Judicial District may each appoint one (1) court bailiff.
    1. The duties of the bailiffs shall include the supervision and maintenance of order in their respective courtrooms, providing security for the judges, officers of the court, jurors, and other individuals involved in court proceedings, administering oaths, and other incidental and related duties at the direction of the respective judges.
    2. When acting within the scope of their duties, the court bailiffs shall exercise all the powers necessary and proper to the performance of their duties, including the powers of a deputy sheriff and the power to make arrests, carry a weapon, and serve a summons.
    3. A bailiff may maintain law enforcement certification existing or acquired during his or her service as bailiff.
  2. The pay of the bailiffs shall be determined by the quorum courts.

History. Acts 1993, No. 789, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-13-2705. [Removed.]

Publisher's Notes. This section was removed pursuant to § 1-2-303 and codified as § 16-13-3003.

Subchapter 28 — Twentieth Judicial Circuit

A.C.R.C. Notes. Acts 2001, No. 951, § 25, provided:

“Twentieth Judicial Circuit.

  1. The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 1 and presently held by David Reynolds shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Linda Collier shall be known and designated as Circuit Court, Division 2.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Charles E. Clawson, Jr. shall be known and designated as Circuit Court, Division 3.

“(d) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 4 and presently held by Mike Maggio shall be known and designated as Circuit Court, Division 4.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1893, No. 56, § 12: effective on passage.

Acts 1947, No. 120, § 4: approved Feb. 26, 1947. Emergency clause provided: “It is ascertained and hereby declared that an established time for holding circuit court being necessary for the functioning of our government, an emergency is hereby declared to exist. This act being necessary for the immediate preservation of the public peace, health and safety of the State of Arkansas, shall be in full force and effect from and after its passage.”

Acts 1955, No. 146, § 3: July 1, 1955.

Acts 1965, No. 96, § 8: Feb. 23, 1965. Emergency clause provided: “It is hereby found and determined by the General Assembly of Arkansas that due to the large number of cases pending before the courts of the Fifth Judicial Circuit there is an unusual and undesirable delay in the adjudication of the rights of parties involved in litigation in said courts; that this Act is immediately necessary to relieve said undesirable situation by providing for an additional Division of court and an additional judge to expedite the clearing of the dockets in said courts and thereby to expedite the administration in said Judicial Circuit. 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 effect from the date of its passage and approval.”

Acts 1989, No. 802, § 10: Mar. 21, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the duties incumbent upon the Case Coordinators of the Circuit and Chancery Courts of the Twentieth Judicial District of Arkansas have materially increased because of increases in population, caseload and the trial dockets of said Circuit and Chancery District, and that there has been a substantial increase in the costs of living, necessitating an increase in salaries in order to properly cope with the prevailing conditions and prevent hardship. Therefore, an emergency is hereby declared to exit 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 1989, No. 949, § 8: Mar. 27, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the juvenile division of chancery court is to be created to replace the juvenile court system provided for in Act 14 of 1987 and that the immediate passage of this Act is necessary to insure that there is an orderly and efficient administration of the juvenile justice system of this state. 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. 131, § 7: Feb. 15, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the combination of the separation of the courts of law and equity in Arkansas and the amount of travel required of judges in the Twentieth District creates an inefficient system of justice. It is further found that the decision of the Arkansas Supreme Court in Tony A. Lee v. Andre McNeil casts some doubt on the ability of judges within a single judicial district to exchange courts, and that this inability will seriously impair the timely and expeditious dispatch of business of the courts and cause unnecessary and expensive delay in the resolution of cases. 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. 170, § 8: Feb. 6, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the caseload of the Twentieth Judicial District necessitates the appointment of an additional circuit-chancery judge 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 2007, No. 168, § 7: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Judicial Resources Assessment Committee has reviewed the caseloads of the various judicial districts; that the caseloads of the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District necessitate the appointment of an additional circuit judges; and that this act is necessary to ensure the smooth, efficient, and timely administration of justice in the counties affected. 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 July 1, 2007.”

16-13-2801. Composition.

The Twentieth Judicial District shall be composed of the counties of Faulkner, Searcy, and Van Buren.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2802. Terms of court.

The terms of court in each county in the Twentieth Judicial District shall commence on the dates set forth below:

  1. Faulkner County: On the first Monday in May and the first Monday in December;
  2. Searcy County: On the third Mondays in April and October; and
  3. Van Buren County: On the first Mondays in May and November.

History. Acts 1891, No. 62, § 4, p. 110; 1893, No. 56, § 3, p. 84; 1947, No. 120, §§ 1, 2; 1955, No. 146, § 1; 1955, No. 227, § 1; 1965, No. 96, § 5; A.S.A. 1947, § 22-310.

Case Notes

Cited: Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948); Gentry v. Jett, 173 F. Supp. 722 (W.D. Ark. 1959); Midwest Timber Prods. Co. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959); Hammond v. Kirby, 233 Ark. 560, 345 S.W.2d 910 (1961); Central Cas. Co. v. State, 233 Ark. 832, 349 S.W.2d 135 (1961); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Fields v. State, 246 Ark. 1249, 441 S.W.2d 803 (1969); Thorne v. State, 247 Ark. 346, 445 S.W.2d 481 (1969); McDonald v. State, 253 Ark. 23, 484 S.W.2d 345 (1972); O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973); Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977); Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978); Walker v. Lockhart, 620 F.2d 683 (8th Cir. 1980); Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980); Anderson v. Hargraves, 272 Ark. 259, 613 S.W.2d 587 (1981); State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

16-13-2803. Judges and chancellors.

  1. The qualified electors of the Twentieth Judicial District shall elect:
    1. One (1) circuit judge;
    2. One (1) chancellor; and
    3. One (1) circuit-chancery judge.
    1. The judgeship created by subdivision (a)(3) of this section shall be the judge of the juvenile division of chancery court and shall be designated division 2 in all jurisdictions.
    2. The judge shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
  2. The circuit judgeship created by subdivision (a)(1) of this section shall be a circuit-chancery judgeship which shall have jurisdiction in law, equity, and probate and shall be designated division 1 in all jurisdictions.
  3. Effective January 1, 1997, the chancery judgeship created by subdivision (a)(2) of this section shall become a circuit-chancery judgeship which shall have jurisdiction in law, equity, and probate and shall be designated division 3 in all jurisdictions.
  4. There is hereby created in the Twentieth Judicial District an additional circuit-chancery judgeship, which shall have jurisdiction in law, equity, and probate and shall be designated division 4 in all jurisdictions.
    1. Effective July 1, 2007, there is created in the Twentieth Judicial District an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.
    2. The Governor shall appoint a qualified person who is a resident of the district to temporarily fill the Twentieth Judicial District circuit judgeship created by subdivision (f)(1) of this section, and the appointed person shall serve until January 1, 2009, or until a successor has been elected and qualified.
      1. The qualified electors of the district shall elect the additional circuit judge created by subdivision (f)(1) of this section at the 2008 preferential primary election to take office on January 1, 2009.
      2. The additional circuit judge shall be elected from the district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
      3. The circuit judge shall serve for elected terms of six (6) years.
    3. The counties that compose the Twentieth Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit judgeship created by subdivision (f)(1) of this section, which shall be paid out of the county treasuries in the same manner as other demands against the counties and out of funds appropriated by the respective quorum courts of the counties for these purposes.
    4. There shall be provided for the judge of the circuit judgeship created by subdivision (f)(1) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.

History. Acts 1977, No. 432, § 1; A.S.A. 1947, § 22-365; Acts 1989, No. 949, § 1; 1993, No. 131, § 1; 1995, No. 170, §§ 1, 4; 2007, No. 168, § 4.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 1989, No. 949, § 1, provided, in part, that the judgeships created by that section shall be effective on and after August 1, 1989, and that the Governor shall appoint a person to serve in each position from August 1, 1989, through December 31, 1990.

The section further provided:

“The qualified electors of the respective judicial circuits shall elect the additional circuit-chancery judges at the November, 1990, General Election to take office on January 1, 1991. The additional judges shall be in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses and other allowances as provided by law for judges of circuit-chancery courts. The judges shall serve for elected terms of four (4) years.”

Acts 1989, No. 949, § 3, provided:

“In each judicial circuit in which an additional circuit-chancery judge is created pursuant to this Act, the county or counties located in the judicial circuit shall provide courtroom and office facilities and supplies required for the juvenile division of the chancery court of the county, which shall be paid out of the county treasury of the county or counties in the same manner as other demands against the county or counties, out of funds appropriated by the quorum court of the county or counties for such purposes.”

Acts 1989, No. 949, § 5, provided:

“In each judicial circuit in which an additional circuit-chancery judgeship is created pursuant to this Act, there shall be provided a court reporter whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit and chancery courts of this state.”

As originally amended by Acts 1993, No. 131, § 1, this section also provided, in part, that: “Effective upon passage of this act and terminating January 1, 1997, any judge created by this section may, by written agreement, and pursuant to A.C.A. 16-13-403 as amended by Act 51 of the First Extraordinary Session of 1992, sit on exchange and hear cases for any other judge or judges created by this section and hold court for each other for such length of time as may seem practicable and in the best interest of their respective courts. The agreements shall be signed by the judges so agreeing and entered on the record of the court or courts so to be held.”

As enacted by Acts 1995, No. 170, § 1, subsection (e) began:

“Effective immediately upon passage and approval of this act.”

As amended by Acts 1995, No. 170, § 1, this section contained two additional subsections, which read:

“As soon as possible after the effective date of this act, the Governor shall appoint a qualified person to temporarily fill the Twentieth Judicial District Circuit-Chancery judgeship created herein, and the appointed person shall serve until December 31, 1996, or until a successor has been elected and qualified, whichever occurs last.

“The qualified electors of the Twentieth Judicial District shall elect the additional circuit-chancery judge created herein at the November 1996 general election to take office on January 1, 1997. The additional judge shall be elected in the same manner and shall satisfy the same qualifications for holding office and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit-chancery courts. The judge shall serve for elected terms of four (4) years.”

Acts 1995, No. 170, § 2, provided:

“The counties which comprise the Twentieth Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit-chancery judgeship created by this act, which shall be paid out of the county treasuries in the same manner as other demands against the counties, out of funds appropriated by the respective quorum courts of the counties for such purposes.”

Acts 1995, No. 170, § 3, provided:

“There shall be provided for the judge of the circuit-chancery judgeship created by this act a court reporter, whose salary shall be fixed and paid in the manner provided by law for court reporters of the circuit-chancery courts of this state.”

As amended by Acts 1995, No. 170, § 4, subsection (c) began:

“Effective January 1, 1995.”

Acts 2007, No. 168, § 1, provided:

“The Judicial Resources Assessment Committee has reviewed the caseloads of various judicial districts and has determined that to ensure the smooth, efficient, and timely administration of justice additional circuit judgeships are needed in the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District. This act authorizes the establishment of five (5) additional circuit judgeships, articulates the applicable appointment and election process of the additional circuit judges, and identifies various resources that will be available.”

In Acts 2007, No. 168, § 4, the term “2008 Nonpartisan Judicial General Election” should have been used in place of “2008 preferential primary election”. Circuit judges are now elected on a nonpartisan basis pursuant to Arkansas Constitution, Amendment 80, § 17.

Amendments. The 2007 amendment added (f).

Case Notes

Mandamus.

This section creates a right in the people to select by the election process separate persons to serve as circuit, chancery, and circuit-chancery judges for the twentieth district. The only practical method of enforcing this right is the remedy of mandamus. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-13-2804. Responsibility for expenses.

  1. In lieu of any other expenses incurred by each court provided by law for the Twentieth Judicial District, each county of the circuit shall be responsible for the following amounts:
    1. Searcy County … One thousand five hundred dollars ($1,500);
    2. Van Buren County … Five hundred dollars ($500); and
    3. Faulkner County … All other expenses not otherwise provided for by law.
  2. Nothing herein shall be construed to prevent the respective quorum courts of the counties in the district from paying more than the amounts set forth herein.

History. Acts 1989, No. 802, §§ 5, 9.

A.C.R.C. Notes. Acts 1989, No. 802, § 4, provided:

“(a) The salary for the period January 1, 1989, through December 31, 1989 for the Chancery Case Coordinator shall be not less than at the rate of Sixteen Thousand Dollars ($16,000.00) per year and for the Circuit Case Coordinator shall be not less than at the rate of Nineteen Thousand Five Hundred Dollars ($19,500.00), and shall be paid by the counties in the Circuit, as follows:

“Faulkner County at the rate of Eleven Thousand Nine Hundred Thirty-six Dollars ($11,936.00) per year, payable to the Chancery Case Coordinator in equal monthly installments and Fourteen Thousand Eight Hundred Twenty Dollars ($14,820.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“Van Buren County at the rate of Two Thousand Seven Hundred Four Dollars ($2,704.00) per year, payable to the Chancery Case Coordinator in equal monthly installments and Three Thousand One Hundred Fifty-nine Dollars ($3,159.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“Searcy County at the rate of One Thousand Three Hundred Sixty Dollars ($1,360.00) per year, payable to the Chancery Case Coordinator in equal monthly installments and One Thousand Five Hundred Twenty-one Dollars ($1,521.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“(b) The salary of the Chancery Case Coordinator beginning January 1, 1990, shall remain at the amount set above.

“(c) The salary of the Circuit Case Coordinator beginning January 1, 1990, shall be at the rate of Twenty-one Thousand Dollars ($21,000.00) per year and shall be paid by the counties in the Circuit as follows:

“Faulkner County at the rate of Fifteen Thousand Nine Hundred Sixty Dollars ($15,950.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“Van Buren County at the rate of Three Thousand Four Hundred Two Dollars ($3,402.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“Searcy County at the rate of One Thousand Six Hundred Thirty-eight Dollars ($1,638.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.”

Acts 1989, No. 802, § 4(b), was repealed by Acts 1993, No. 131, § 3.

Publisher's Notes. Acts 1989, No. 802, § 6, provided that this act shall be retroactive to January 1, 1989.

16-13-2805. Case coordinators.

  1. Hereafter, each of the judges of the Twentieth Judicial District shall be empowered and directed to employ a case coordinator, whose duties shall be the maintenance of the court calendar, setting dates for trial of cases and for hearing of motions, and other related and incidental duties as directed by said judges.
  2. The case coordinators shall be appointed by the judges of the Twentieth Judicial District, one (1) for each court, and shall serve at the will of the respective judge.

History. Acts 1989, No. 802, §§ 1-3; 1993, No. 131, § 2.

A.C.R.C. Notes. Acts 1989, No. 802, § 4, provided:

“(a) The salary for the period January 1, 1989, through December 31, 1989 for the Chancery Case Coordinator shall be not less than at the rate of Sixteen Thousand Dollars ($16,000.00) per year and for the Circuit Case Coordinator shall be not less than at the rate of Nineteen Thousand Five Hundred Dollars ($19,500.00), and shall be paid by the counties in the Circuit, as follows:

“Faulkner County at the rate of Eleven Thousand Nine Hundred Thirty-six Dollars ($11,936.00) per year, payable to the Chancery Case Coordinator in equal monthly installments and Fourteen Thousand Eight Hundred Twenty Dollars ($14,820.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“Van Buren County at the rate of Two Thousand Seven Hundred Four Dollars ($2,704.00) per year, payable to the Chancery Case Coordinator in equal monthly installments and Three Thousand One Hundred Fifty-nine Dollars ($3,159.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“Searcy County at the rate of One Thousand Three Hundred Sixty Dollars ($1,360.00) per year, payable to the Chancery Case Coordinator in equal monthly installments and One Thousand Five Hundred Twenty-one Dollars ($1,521.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“(b) The salary of the Chancery Case Coordinator beginning January 1, 1990, shall remain at the amount set above.

“(c) The salary of the Circuit Case Coordinator beginning January 1, 1990, shall be at the rate of Twenty-one Thousand Dollars ($21,000.00) per year and shall be paid by the counties in the Circuit as follows:

“Faulkner County at the rate of Fifteen Thousand Nine Hundred Sixty Dollars ($15,950.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“Van Buren County at the rate of Three Thousand Four Hundred Two Dollars ($3,402.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.

“Searcy County at the rate of One Thousand Six Hundred Thirty-eight Dollars ($1,638.00) per year, payable to the Circuit Case Coordinator in equal monthly installments.”

Acts 1989, No. 802, § 9, provided:

“Nothing herein shall be construed to prevent the respective quorum courts of the counties in the district from paying more than the amounts set forth herein.”

Acts 1989, No. 802, § 4(b), was repealed by Acts 1993, No. 131, § 3.

Publisher's Notes. Acts 1989, No. 802, § 6, provided that this act shall be retroactive to January 1, 1989.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

Subchapter 29 — Twenty-First Judicial Circuit

A.C.R.C. Notes. Acts 1995, No. 1148, § 4, provided, in part: “Provided, however, that in the event that the district is separated into two districts or one county is removed from the district by state action, the shared time personnel currently funded by Sebastian County will be funded full time by Sebastian County. Provided further, that in the event that a Deputy within the district is selected to be interim Prosecutor said Deputy may take a leave of absence to fulfill this duty. Upon completion of said duty, the Deputy shall be entitled to return to either District's Prosecutor's Office with the consent of the Prosecuting Attorney at the level of funding that said Deputy would have been paid at had he not accepted the appointment duty. The Prosecutor of the Twelfth Circuit, at the request of the interim Prosecutor of the new District, may designate a Deputy to serve as the Deputy Prosecuting Attorney of the new District. In the event that this procedure is followed, that Deputy shall be able to return to Sebastian County at the same pay as he is receiving at the time he is transferred back to Sebastian County from Crawford County at the end of the interim Prosecutor's term or any time before hand. For purposes of this Act, the new District shall be considered the one which is formed with Crawford County as a member county. Upon division, the prosecutor shall transfer all district equipment to Crawford County that is currently placed within the Crawford County Office at the time of the effective date of this Act and all equipment assigned to full time Crawford County personnel at the effective date of the separation Act.”

Acts 2001, No. 951, § 26, provided:

“Twenty-first Judicial Circuit. (a) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 1 and presently held by Floyd Rogers shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Gary Cottrell shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 29, provided: “The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided: “Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 2019, No. 1003, § 9: July 1, 2019, except § 2. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that certain judicial districts under this act have an immediate need for additional circuit court judges due to the number of cases pending in the judicial district. Therefore, an emergency is declared to exist, and all Sections except Section 2 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

16-13-2901. Composition.

The Twenty-first Judicial District shall be composed of Crawford County.

History. Acts 1995, No. 900, § 3.

16-13-2902. Terms of court.

The terms of court in the Twenty-first Judicial District shall be the first Monday in March, the second Monday in July, and the third Monday in November.

History. Acts 1995, No. 900, § 4.

16-13-2903. Circuit court judges.

  1. The qualified electors of the Twenty-first Judicial District shall elect two (2) circuit judges.
  2. There is created in the Twenty-first Judicial District a circuit judgeship in addition to the judgeships created under subsection (a) of this section that shall have jurisdiction in law, equity, probate, and juvenile matters.

History. Acts 1995, No. 900, § 7; 2019, No. 1003, § 4.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

As enacted, this section provided:

“At the 1998 General Election, the qualified electors of the Twenty-first Judicial District shall elect two circuit-chancery judges to take office on January 1, 1999. It is the intent of this act to not create the additional judgeship until January 1, 1999, and that no person be appointed for that position between the effective date of this act and the person elected in 1998 taking office on January 1, 1999.”

Acts 1995, No. 900, § 5, provided:

“As of January 1, 1997, the Circuit Judge Division 1 of the Twelfth Judicial District is hereby designated as the Circuit/Chancery Judge of the Twenty-First Judicial District.”

Acts 2019, No. 1003, § 7, provided:

“(a) For the circuit judgeships being created in the Twelfth Judicial Circuit and the Twenty-first Judicial Circuit, the Governor shall appoint qualified persons who are residents of the judicial districts that are the subject of this act to temporarily fill the newly created circuit court judgeships, and each of the appointed persons shall serve until January 1, 2021, or until a successor has been elected and qualified.

“(b)(1) The qualified electors of the applicable judicial districts shall elect the additional circuit court judges whose judgeships are created by this act at the 2020 preferential primary election, to take office on January 1, 2021.

“(2) The additional circuit court judges shall be elected from within the judicial district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by existing law for judges of the circuit courts.

“(3) The circuit court judges shall serve for elected terms of six (6) years.

“(c) The counties receiving a new circuit court judgeship shall provide courtroom and office facilities and supplies, which shall be paid for as provided by law”.

Amendments. The 2019 amendment substituted “Circuit court” for “Election of” in the section heading; added the (a) designation; substituted “circuit” for “circuit-chancery” in (a); and added (b).

Subchapter 30 — Nineteenth Judicial Circuit

A.C.R.C. Notes. Current subchapter 27, “Nineteenth Judicial Circuit”, which includes both counties of Benton and Carroll as one entity, has been expanded upon by subchapter 30, which designates Carroll County as “Nineteenth Judicial District-East” and Benton County as “Nineteenth Judicial District-West”. Therefore, subchapter 27 currently will be retained as § 16-13-3002(f) states: “All existing laws not in conflict herewith pertaining to the Nineteenth Judicial District shall apply to the Nineteenth Judicial District-East and the Nineteenth Judicial District-West.”

Acts 2001, No. 951, § 23, provided:

“Nineteenth Judicial Circuit West.

“(a) The circuit judgeship which is currently designated as Circuit Division 1 and presently held by Tom Keith shall be known and designated as Circuit Court, Division 1

“(b) The circuit judgeship which is currently designated as Circuit Division 2 and presently held by David Clinger shall be known and designated as Circuit Court, Division 2.

“(c) The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Xollie Duncan shall be known and designated as Circuit Court, Division 4.

“(d) The chancery judgeship which is currently designated as Chancery Division 2 and presently held by Donald R. Huffman shall be known and designated as Circuit Court, Division 5.

“(e) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Jay Finch shall be known and designated as Circuit Court, Division 3.”

Acts 2001, No. 951, § 24, provided: “Nineteenth Judicial Circuit East. The circuit-chancery judgeship which is presently held by Alan Epley shall be known and designated as Circuit Court, Division 1.”

Acts 2001, No. 951, § 29, provided: “The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to 'subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided: “Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or selected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 2007, No. 168, § 7: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Judicial Resources Assessment Committee has reviewed the caseloads of the various judicial districts; that the caseloads of the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District necessitate the appointment of an additional circuit judges; and that this act is necessary to ensure the smooth, efficient, and timely administration of justice in the counties affected. 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 July 1, 2007.”

Acts 2019, No. 1003, § 9: July 1, 2019, except § 2. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that certain judicial districts under this act have an immediate need for additional circuit court judges due to the number of cases pending in the judicial district. Therefore, an emergency is declared to exist, and all Sections except Section 2 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

16-13-3001. Composition.

  1. Effective January 1, 1999, there is created the Nineteenth Judicial District-East, which shall be composed of Carroll County.
  2. Effective January 1, 1999, there is created the Nineteenth Judicial District-West, which shall be composed of Benton County.

History. Acts 1997, No. 797, § 1.

16-13-3002. Judges and chancellors.

  1. As of January 1, 1999, the Circuit-Chancery Judge of the Nineteenth Judicial District, who sits as judge of the juvenile division and Division Three of the circuit and chancery courts, is hereby designated as the Circuit-Chancery Judge of the Nineteenth Judicial District-East and shall sit as the judge of the circuit, chancery and probate courts and the juvenile division.
  2. At the 1998 General Election, the qualified electors of the Nineteenth Judicial District-East shall elect the circuit-chancery judge to take office on January 1, 1999.
  3. As of January 1, 1999, the Nineteenth Judicial District-West shall be served by one (1) Circuit Judge of the First Division; one (1) Circuit Judge of the Second Division; one (1) Chancery Judge of the First Division; one (1) Chancery Judge of the Second Division; and an additional circuit-chancery judge who shall perform the duties of the judge of the juvenile division and sit as judge of the circuit, chancery or probate court as time permits. The additional circuit-chancery judge shall be elected in 1998 to take office on January 1, 1999.
  4. As of the 1998 general election, the circuit, chancery, and circuit-chancery judges of the Nineteenth Judicial District-West shall hereafter be elected by qualified electors of the Nineteenth Judicial District-West. The current chancery judges shall serve the balance of their terms in the Nineteenth Judicial District-West.
  5. There shall be provided for the judge of the circuit-chancery judgeship created by this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit and chancery courts of this state.
  6. All existing laws not in conflict herewith pertaining to the Nineteenth Judicial District shall apply to the Nineteenth Judicial District-East and the Nineteenth Judicial District-West.
  7. The judges of the Nineteenth Judicial District-East and the Nineteenth Judicial District-West may, by agreement, temporarily exchange districts or hold court for each other as they deem necessary or appropriate.
    1. Effective January 1, 2009, there is created in the Nineteenth Judicial District-West an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.
      1. The qualified electors of the Nineteenth Judicial District-West shall elect the additional circuit judge created by subdivision (h)(1) of this section at the 2008 preferential primary election to take office on January 1, 2009.
      2. The additional circuit judge shall be elected from the Nineteenth Judicial District-West, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
      3. The circuit judge shall serve for elected terms of six (6) years.
    2. The county that composes the Nineteenth Judicial District-West shall provide courtroom and office facilities and supplies for the judge of the circuit judgeship created by subdivision (h)(1) of this section, which shall be paid out of the county treasury in the same manner as other demands against the county and out of funds appropriated by the quorum court of the county for these purposes.
    3. There shall be provided for the judge of the circuit judgeship created by subdivision (h)(1) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.
  8. There is created in the Nineteenth Judicial District-West an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.

History. Acts 1997, No. 797, § 2; 2007, No. 168, § 5; 2019, No. 1003, § 5.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 2007, No. 168, § 1, provided:

“The Judicial Resources Assessment Committee has reviewed the caseloads of various judicial districts and has determined that to ensure the smooth, efficient, and timely administration of justice additional circuit judgeships are needed in the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District. This act authorizes the establishment of five (5) additional circuit judgeships, articulates the applicable appointment and election process of the additional circuit judges, and identifies various resources that will be available.”

In Acts 2007, No. 168, § 5, the term “2008 Nonpartisan Judicial General Election” should have been used in place of “2008 preferential primary election”. Circuit judges are now elected on a nonpartisan basis pursuant to Arkansas Constitution, Amendment 80, § 17.

Acts 2019, No. 1003, § 6, provided: “For the circuit judgeships created in the Second, Fourth, and Nineteenth-West Judicial Circuits the vacancies shall be filled by election at the 2020 preferential primary election, with the elected circuit judge to take office on January 1, 2021”.

Amendments. The 2007 amendment added (h).

The 2019 amendment added (i).

16-13-3003. Prosecuting attorneys.

  1. At the 1998 general election, the qualified electors of Carroll County shall elect a person who shall serve as the prosecuting attorney for the Nineteenth Judicial District-East beginning January 1, 1999.
  2. At the 1998 general election, the qualified electors of Benton County shall elect a person who shall serve as the prosecuting attorney for the Nineteenth Judicial District-West beginning January 1, 1999.

History. Acts 1997, No. 797, § 3.

Subchapter 31 — Seventh and Twenty-Second Judicial Circuits

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 2001, No. 951, § 7, provided:

“Seventh Judicial Circuit.

“(a) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 1 and presently held by John W. Cole shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Phillip H. Shirron shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 27, provided:

“Twenty-second Judicial Circuit.

  1. The chancery judgeship which is currently designated as Chancery Division 1 and presently held by Robert Garrett shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Gary Arnold shall be known and designated as Circuit Court, Division 2.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Grisham Phillips shall be known and designated as Circuit Court, Division 3.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

Effective Dates. Acts 1999, No. 7, § 12: Jan. 28, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly, that this act is essential to the operation of the criminal justice system within the Seventh and Twenty-Second Judicial Districts, and is necessary to avoid confusion between the two districts. 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 2007, No. 168, § 7: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Judicial Resources Assessment Committee has reviewed the caseloads of the various judicial districts; that the caseloads of the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District necessitate the appointment of an additional circuit judges; and that this act is necessary to ensure the smooth, efficient, and timely administration of justice in the counties affected. 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 July 1, 2007.”

16-13-3101. Composition.

  1. There is created the Twenty-second Judicial District which shall be composed of Saline County.
  2. There is created the Seventh Judicial District composed of Grant County and Hot Spring County.

History. Acts 1997, No. 827, § 1; 1999, No. 7, § 1.

A.C.R.C. Notes. Acts 1999, No. 7, § 8, provided:

“Subject to review by the Senate Interim Committee on Judiciary of the Arkansas General Assembly, the Arkansas Code Revision Commission is authorized and directed to prepare a technical corrections bill for introduction in the next regular or special session of the Arkansas General Assembly to make the necessary changes to the Arkansas Code of 1987 Annotated consistent with the provisions of this act. Specifically, in addition to other necessary changes determined to be consistent with this act and subject to review by the Senate Interim Committee on Judiciary, the Arkansas Code Revision Commission shall prepare legislation to change references to the Seventh Judicial District-North and the Seventh Judicial District-South, as well as similar and related references used throughout the Arkansas Code of 1987 Annotated to references consistent with the Seventh Judicial District and the Twenty-Second Judicial District, or divisions thereof, for purposes of uniformity and style.”

16-13-3102. Terms of court.

  1. The terms of court in each county in the Twenty-second Judicial District shall commence on the third Mondays in March and September.
  2. The terms of court in each county in the Seventh Judicial District shall commence on the dates set forth below:
    1. Grant County: On the fourth Mondays in February and August; and
    2. Hot Spring County: On the second Mondays in January and July.

History. Acts 1997, No. 827, § 2; 1999, No. 7, § 2.

16-13-3103. Judges and chancellors.

  1. The qualified electors of the Twenty-second Judicial District shall elect:
    1. One (1) chancery judge of the First Division;
    2. One (1) circuit-chancery judge of the Second Division; and
    3. One (1) circuit-chancery judge of the Third Division.
  2. The qualified electors of the Seventh Judicial District shall elect:
    1. One (1) circuit-chancery judge of the First Division; and
    2. One (1) circuit-chancery judge of the Second Division.
      1. The chancery judge and circuit-chancery judges of the Twenty-second Judicial District may, by agreement, hold either of the circuit or chancery courts in their respective districts and may hear and try matters pending in any of those courts or may hear or try matters in the same court at the same time.
      2. The judges subject to subdivision (c)(1)(A) of this section may adopt such rules as they deem appropriate for the assignment of cases in the circuit and chancery courts of their judicial district.
      1. The circuit-chancery judges of the Seventh Judicial District may, by agreement, hold either of the circuit or chancery courts in their respective districts and may hear and try matters pending in any of those courts or may hear or try matters in the same court at the same time.
      2. The judges subject to subdivision (c)(2)(A) of this section may adopt such rules as they deem appropriate for the assignment of cases in the circuit and chancery courts of their judicial district.
      1. The judge of the Second Division in each district shall be the judge of the juvenile division of chancery court.
      2. The judge shall serve as judge of the juvenile division in lieu of the judge who would otherwise be designated as judge of the juvenile division of chancery court in the judicial district.
    1. The judge of the Second Division in each district shall devote such time as may be required to perform the duties of judge of the juvenile division, which duties shall be the primary obligation of the judge, and shall sit as judge of the circuit, chancery, or probate court as time permits.
    1. Effective January 1, 2009, there is created in the Twenty-second Judicial District an additional circuit judgeship that shall have jurisdiction in law, equity, probate, and juvenile matters.
      1. The qualified electors of the district shall elect the additional circuit judge created by subdivision (e)(1) of this section at the 2008 preferential primary election to take office on January 1, 2009.
      2. The additional circuit judge shall be elected from the district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by law for judges of the circuit courts.
      3. The circuit judge shall serve for elected terms of six (6) years.
    2. The county that composes the Twenty-second Judicial District shall provide courtroom and office facilities and supplies for the judge of the circuit judgeship created by subdivision (e)(1) of this section, which shall be paid out of the county treasury in the same manner as other demands against the county and out of funds appropriated by the quorum court of the county for these purposes.
    3. There shall be provided for the judge of the circuit judgeship created by subdivision (e)(1) of this section a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in the manner provided by law for court reporters and trial court administrative assistants of the circuit courts of this state.

History. Acts 1997, No. 827, § 3; 1999, No. 7, § 3; 2007, No. 168, § 6.

A.C.R.C. Notes. Acts 2007, No. 168, § 1, provided:

“The Judicial Resources Assessment Committee has reviewed the caseloads of various judicial districts and has determined that to ensure the smooth, efficient, and timely administration of justice additional circuit judgeships are needed in the Second Judicial District, the Nineteenth Judicial District-West, the Twentieth Judicial District, the Twenty-second Judicial District, and the Twenty-third Judicial District. This act authorizes the establishment of five (5) additional circuit judgeships, articulates the applicable appointment and election process of the additional circuit judges, and identifies various resources that will be available.”

In Acts 2007, No. 168, § 6, the term “2008 Nonpartisan Judicial General Election” should have been used in place of “2008 preferential primary election”. Circuit judges are now elected on a nonpartisan basis pursuant to Arkansas Constitution, Amendment 80, § 17.

16-13-3104. Additional circuit-chancery judges.

  1. The chancery judge of the Seventh Judicial District-North is hereby designated as the chancery judge of the Twenty-second Judicial District.
  2. At the 1998 general election, the qualified electors of the Twenty-second Judicial District shall elect two (2) circuit-chancery judges to take office on January 1, 1999.
  3. At the 1998 general election, the qualified electors of the Seventh Judicial District shall elect two (2) circuit-chancery judges to take office on January 1, 1999.

History. Acts 1997, No. 827, § 4; 1999, No. 7, § 4.

16-13-3105. Court reporters.

  1. Each of the chancery and circuit-chancery judges provided for in this subchapter is authorized to employ a court reporter.
  2. The court reporters shall receive such compensation as is provided by law.

History. Acts 1997, No. 827, § 5; 1999, No. 7, § 5.

16-13-3106. Bailiffs.

    1. The circuit-chancery judges of the Twenty-second Judicial District may each appoint so many court bailiffs as the quorum courts of the district shall fund.
    2. The circuit-chancery judges of the Seventh Judicial District may each appoint so many court bailiffs as the quorum court of the district shall fund.
    1. The duties of the bailiffs shall include:
      1. Their attendance in their respective courts when court is in session and the supervision and maintenance of order in their respective courtrooms;
      2. Providing security for criminal defendants, juries, and judges; and
      3. Other incidental and related duties at the direction of the respective judges.
    2. When acting within the scope of their duties as court bailiffs, the bailiffs shall exercise all the powers of a deputy sheriff, which shall include the power to make arrests, carry a weapon, and serve summonses, and may maintain law enforcement certification existing or acquired during their service as bailiffs.

History. Acts 1997, No. 827, § 6; 1999, No. 7, § 6.

16-13-3107. Prosecuting attorneys.

  1. The qualified electors of Saline County shall elect a person who shall serve as the prosecuting attorney for the Twenty-Second Judicial District.
  2. The qualified electors of Hot Spring County and Grant County shall elect a person who shall serve as the prosecuting attorney for the Seventh Judicial District.

History. Acts 1997, No. 827, § 8; 1999, No. 7, § 7; 2011, No. 1132, § 7.

Amendments. The 2011 amendment, in (a) and (b), deleted “At the 1998 general election” at the beginning and deleted “beginning January 1, 1999” at the end.

Subchapter 32 — Eighth Judicial Circuit

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all sitting circuit, chancery, and circuit chancery judges at the time the amendment took effect were to continue in office as circuit judges and that circuit courts were to have jurisdiction of all matters previously dealt with by circuit, chancery, and probate courts, including juvenile matters.

Acts 2001, No. 951, § 8, provided:

“Eighth Judicial Circuit North.

  1. The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 1 and presently held by Jim Gunter shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Duncan Culpepper shall be known and designated as Circuit Court, Division 2.”

Acts 2001, No. 951, § 9, provided:

“Eighth Judicial Circuit South.

(a) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 1 and presently held by Joe Griffin shall be known and designated as Circuit Court, Division 1.

“(b) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 2 and presently held by Jim Hudson shall be known and designated as Circuit Court, Division 2.

“(c) The circuit-chancery judgeship which is currently designated as Circuit-Chancery Division 3 and presently held by Philip B. Purifoy shall be known and designated as Circuit Court, Division 3.”

Acts 2001, No. 951, § 29, provided:

“The word ‘Division’ as used in this act shall refer only to the designation of the judicial positions for election purposes and does not refer to ‘subject matter divisions’ pursuant to Amendment 80, Section 6 of the Arkansas Constitution.”

Acts 2001, No. 951, § 30, provided:

“Should any additional circuit judgeships be created in a judicial circuit, there shall be created within that judicial circuit, an additional Division which shall be numbered sequentially and the judge appointed or elected thereto shall serve as the judge of the additional Division.”

16-13-3201. Composition.

  1. Effective January 1, 1999, there is created the Eighth Judicial District-North composed of Hempstead and Nevada counties.
  2. Effective January 1, 1999, there is created the Eighth Judicial District-South composed of Lafayette and Miller counties.

History. Acts 1997, No. 1270, § 1.

16-13-3202. Judges and chancellors in the Eighth Judicial District-North.

  1. The qualified electors of the Eighth Judicial District-North shall elect:
    1. One (1) circuit-chancery judge of the First Division; and
    2. One (1) circuit-chancery judge of the Second Division.
    1. The judge of the First Division of the Eighth Judicial District-North shall sit as the judge of the circuit court, chancery court, and probate court.
    2. The judge of the Second Division of the Eighth Judicial District-North shall sit as judge of the circuit court, chancery court, probate court, and the juvenile division of the chancery court.
  2. If any additional circuit-chancery judgeship is created, an additional division shall be established, and the judge shall serve as the judge of the additional division.
  3. A judge shall be elected, every four (4) years, for each division of the circuit-chancery court of the Eighth Judicial District-North, and candidates for the offices shall designate and qualify as candidates for the particular division of the court to which they seek election.

History. Acts 1997, No. 1270, § 2.

16-13-3203. Judges and chancellors in the Eighth Judicial District-South.

  1. The qualified electors of the Eighth Judicial District-South shall elect:
    1. One (1) circuit-chancery judge of the First Division;
    2. One (1) circuit-chancery judge of the Second Division; and
    3. One (1) circuit-chancery judge of the Third Division.
  2. The judges of the Eighth Judicial District-South shall sit as judges of the circuit court, chancery court, probate court, and juvenile division of the chancery court.
  3. If any additional circuit-chancery judgeship is created, an additional division shall be established, and the judge shall serve as the judge of the additional division.
  4. A judge shall be elected, every four (4) years, for each division of the circuit-chancery court of the Eighth Judicial District-South, and candidates for the offices shall designate and qualify as candidates for the particular division of the court to which they seek election.

History. Acts 1997, No. 1270, § 3.

16-13-3204. Additional judges.

  1. At the 1998 general election, the qualified electors of the Eighth Judicial District-North shall elect two (2) circuit-chancery judges to take office on January 1, 1999.
  2. At the 1998 general election, the qualified electors of the Eighth Judicial District-South shall elect three (3) circuit-chancery judges to take office on January 1, 1999.

History. Acts 1997, No. 1270, § 4.

16-13-3205. Prosecuting attorneys.

  1. The qualified electors of Hempstead and Nevada counties shall elect a person who shall serve as the prosecuting attorney for the Eighth Judicial District-North.
  2. The qualified electors of Lafayette and Miller counties shall elect a person who shall serve as the prosecuting attorney for the Eighth Judicial District-South.

History. Acts 1997, No. 1270, § 7; 2011, No. 1132, § 8.

Amendments. The 2011 amendment, in (a) and (b), deleted “At the 1998 general election” at the beginning and deleted “beginning January 1, 1999” at the end.

16-13-3206. Additional judge — Staff.

There shall be provided for the judge of the circuit-chancery judgeship created by this subchapter a court reporter and a trial court administrative assistant whose salaries shall be fixed and paid in a manner provided by law for court reporters and trial court administrative assistants of the circuit and chancery courts of this state.

History. Acts 1997, No. 1270, § 6.

Subchapter 33 — Trial Court Administrators

Effective Dates. Acts 2015, No. 268, § 16: July 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the act entitled ‘AN ACT TO MAKE AN APPROPRIATION FOR PERSONAL SERVICES AND OPERATING EXPENSES FOR THE ADMINISTRATIVE OFFICE OF THE COURTS FOR THE OFFICIAL COURT REPORTERS AND TRIAL COURT ADMINISTRATORS OF THE CIRCUIT COURTS FOR THE FISCAL YEAR ENDING JUNE 30, 2016; AND FOR OTHER PURPOSES.’ requires the passage of this act; that the effectiveness of this act on July 1, 2015, is essential to the operation of the Administrative Office of the Courts, and that in the event of an extension of the legislative session, the delay in the effective date of this act beyond July 1, 2015, could work irreparable harm upon the proper administration and provision of essential governmental programs. 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 on and after July 1, 2015.”

Acts 2019, No. 716, § 13: 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”.

16-13-3301. Trial court administrators made state employees.

  1. A trial court administrator of a circuit court is an employee of the State of Arkansas.
  2. The Administrative Office of the Courts is responsible for the financial oversight of the trial court administrators employed by the circuit court, which includes without limitation:
    1. Biennial and annual budget requests;
    2. Relevant budget activities;
    3. Monitoring expenses;
    4. Travel;
    5. Substitute expenses;
    6. Indigent transcript payments; and
    7. Ensuring projected annual expenditures do not exceed total available funding.
  3. The office, with the assistance of the Arkansas Judicial Council, Inc., shall establish an official procedure or rules for:
    1. The hiring of trial court administrators;
    2. The termination of trial court administrators; and
    3. Salary adjustments for trial court administrators.

History. Acts 2015, No. 268, § 10; 2019, No. 716, § 9.

Amendments. The 2019 amendment added (b) and (c) and designated the former section as (a).

16-13-3302. Trial court administrator position created.

    1. The position of trial court administrator is authorized and funds shall be appropriated to the Administrative Office of the Courts from the State Administration of Justice Fund to provide one (1) trial court administrator for each of the circuit judges.
      1. The trial court administrator may be employed to assist the circuit judge in the administration and management of the circuit court.
        1. The office shall create and maintain a detailed job description for the trial court administrator position.
        2. The job description may be used by a circuit judge for the hiring, evaluation, and management of a trial court administrator.
    2. Each circuit judge shall report to the office his or her intention to employ a trial court administrator.
    3. Two (2) or more circuit judges within a judicial district may employ jointly, within their discretion, one (1) trial court administrator if coordinated with the office.
    1. A circuit judge authorized by subsection (a) of this section to employ a trial court administrator may select and hire the trial court administrator.
    2. The trial court administrator shall serve at the will and pleasure of the circuit judge.
    1. Except as provided in subdivision (c)(2) of this section, a county shall not supplement the base salary of a trial court administrator.
    2. If a county with quorum court approval employed a trial court administrative assistant on or before July 1, 2014, and supplemented his or her base salary under former § 16-10-133, the county shall continue to provide the supplement so long as the now titled trial court administrator continues to be employed by the county in that position.
    1. Notwithstanding the exemption provided by § 21-4-203, the circuit judge employing a trial court administrator shall administer the attendance and leave policies for the trial court administrator in the manner prescribed for state employees by the Uniform Attendance and Leave Policy Act, § 21-4-201 et seq.
    2. The trial court administrator shall forward all approved requests for leave to the office on a regular and timely basis for payroll purposes.
    3. The office shall prescribe the procedures for obtaining all relevant leave information, including without limitation the forms, method of transmittal, and format for obtaining the leave information.

History. Acts 2015, No. 268, § 10.

16-13-3303. Salaries for trial court administrators.

  1. The salary of a trial court administrator shall:
    1. Be exempt from the provisions of the Uniform Classification and Compensation Act, § 21-5-201 et seq.;
    2. Not exceed the maximum annual salary rate authorized by the General Assembly in the applicable appropriation act; and
    3. Be determined by the Administrative Office of the Courts.
  2. The salaries, together with expenses authorized by law for trial court administrators to be paid from state funds, shall be paid with moneys appropriated by the General Assembly from the Trial Court Administrator Fund.
  3. The total amount of salaries paid to trial court administrators and other distributions of the Trial Court Administrator Fund shall not exceed:
    1. The total annual allocation authorized by the General Assembly from the State Administration of Justice Fund to the Trial Court Administrator Fund; and
    2. Any remaining balances in the Trial Court Administrator Fund.

History. Acts 2015, No. 268, § 10.

16-13-3304. Trial court administrators — Reimbursement for expenses.

    1. A trial court administrator of a circuit court is entitled to reimbursement for actual expenses incurred for meals, lodging, and transportation costs for attending court away from the trial court administrator's official station.
    2. Notwithstanding the exemption from state travel rules provided by § 19-4-904, if a trial court administrator uses a personal vehicle for transportation, he or she is entitled to reimbursement for mileage at the same rate prescribed by the Department of Finance and Administration for executive branch employees.
  1. Reimbursements for actual expenses and mileage under subsection (a) of this section shall be made monthly by the Administrative Office of the Courts upon claims by the respective trial court administrators certified by the circuit judge.

History. Acts 2015, No. 268, § 10; 2019, No. 315, § 1297.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a)(2).

16-13-3305. Trial court administrators — Credit for county service.

A trial court administrator who converted on July 1, 1996, from county employment to state employment and was employed under former § 16-10-134 shall be given credit for his or her length of service with the county for purposes of accrual rates for sick leave and annual leave and attainment of career service recognition awards.

History. Acts 2015, No. 268, § 10.

Subchapter 9 — First Judicial Circuit

Chapter 14 Probate Courts

16-14-101 — 16-14-316. [Repealed.]

Publisher's Notes. This chapter, concerning probate courts, was repealed by Acts 2003, No. 1185, § 99. The chapter was derived from the following sources:

16-14-101. Acts 1969, No. 358, § 1; A.S.A. 1947, § 22-406.1.

16-14-102. Acts 1969, No. 358, § 2; A.S.A. 1947, § 22-406.2.

16-14-103. Rev. Stat., ch. 43, § 24; C. & M. Dig., §§ 2107, 6400; Pope's Dig., §§ 2711, 8362; A.S.A. 1947, § 22-113.

16-14-104. Acts 1961, No. 135, §§ 1-5; A.S.A. 1947, §§ 22-342 — 22-346.

16-14-105. Acts 1983, No. 898, §§ 1-4; A.S.A. 1947, §§ 22-522 — 22-525; Acts 1995, No. 1256, § 4; 1997, No. 788, § 11; 1997, No. 1341, § 11; 1999, No. 1081, § 5; 2001, No. 1045, § 1.

16-14-106. Acts 1981 (Ex. Sess.), No. 16, § 7; 1983, No. 868, § 2; A.S.A. 1947, § 22-367.4; Acts 1987, No. 581, § 1.

16-14-107. Acts 1981 (Ex. Sess.), No. 16, § 6; 1985, No. 63, § 1; A.S.A. 1947, § 22-367.3.

16-14-108. Acts 1969, No. 358, § 3; A.S.A. 1947, § 22-406.3.

16-14-109. Rev. Stat., ch. 43, § 47; C. & M. Dig., § 2118; Pope's Dig., § 2722; A.S.A. 1947, § 22-125.

16-14-201. Acts 1941, No. 448, §§ 5, 6; A.S.A. 1947, §§ 22-512, 22-512n.

16-14-202. Acts 1941, No. 448, § 1; 1943, No. 84, § 1; A.S.A. 1947, § 22-508.

16-14-203. Acts 1941, No. 448, § 1; 1943, No. 84, § 1; A.S.A. 1947, § 22-508.Acts 1941, No. 448, § 1; 1943, No. 84, § 1; A.S.A. 1947, § 22-508.

16-14-204. Acts 1941, No. 448, § 1; 1943, No. 84, § 1; A.S.A. 1947, § 22-508.

16-14-205. Acts 1941, No. 448, § 2; A.S.A. 1947, § 22-509.

16-14-206. Acts 1987, No. 520, § 1.

16-14-301. Acts 1939, No. 138, § 6; A.S.A. 1947, § 22-518.

16-14-302. Acts 1939, No. 138, § 1; A.S.A. 1947, § 22-513.

16-14-303. Acts 1939, No. 138, § 2; A.S.A. 1947, § 22-514.

16-14-304. Acts 1939, No. 138, § 2; A.S.A. 1947, § 22-514.

16-14-305. Acts 1939, No. 138, § 2; A.S.A. 1947, § 22-514.

16-14-306. Acts 1939, No. 138, § 2; A.S.A. 1947, § 22-514.

16-14-307. Acts 1939, No. 138, § 3; A.S.A. 1947, § 22-515.

16-14-308. Acts 1939, No. 138, § 5; A.S.A. 1947, § 22-517.

16-14-309. Acts 1939, No. 138, § 9; A.S.A. 1947, § 22-521.

16-14-310. Acts 1939, No. 138, § 4; A.S.A. 1947, § 22-516.

16-14-311. Acts 1939, No. 138, § 12 A.S.A. 1947, § 22-514.

16-14-312. Acts 1939, No. 138, § 1; A.S.A. 1947, § 22-513.

16-14-313. Acts 1939, No. 138, § 7; A.S.A. 1947, § 22-519.

16-14-314. Acts 1939, No. 138, § 7; A.S.A. 1947, § 22-519.

16-14-315. Acts 1939, No. 138, § 8; A.S.A. 1947, § 22-520.

16-14-316. Acts 1939, No. 138, § 7; A.S.A. 1947, § 22-519.

Chapter 15 County Courts

Publisher's Notes. County government was reorganized in 1977 by the Arkansas County Government Code, § 14-14-101 et seq. For the current provisions regarding the jurisdiction and powers of the county courts, see § 14-14-1101 et seq.

Effective Dates. Acts 1873, No. 31, § 30: effective on passage.

Acts 1875, No. 55, § 80: effective on passage.

Acts 1875, No. 73, § 4: effective on passage.

Acts 1879, No. 50, § 3: effective on passage.

Acts 1887, No. 107, § 2: effective on passage.

Acts 1963, No. 214, § 9: Mar. 8, 1963. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that great confusion now exists concerning the terms of county courts, that there is urgent need for definitive procedural legislation, and that enactment of this bill will provide for more efficient administration of the county courts. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of public peace, health, and safety, shall take effect and be in force from the date of its approval.”

Research References

Ark. L. Rev.

The Arkansas Judiciary at the Crossroads (Oscar Fendler), 17 Ark. L. Rev. 259.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

A New Judicial System for Arkansas, 24 Ark. L. Rev. 221.

Comment, County Government Reorganization in Arkansas, 28 Ark. L. Rev. 226.

C.J.S. 21 C.J.S., Courts, § 105.

16-15-101. Terms of court.

  1. The regular terms of the county courts of the several counties of this state shall commence on the first Mondays in January, April, July, and October of each year.
    1. The county court shall be open, by operation of law, at the beginning of each regular term of the court, as set forth in subsection (a) of this section, and shall remain open until the beginning of the next term of the court.
    2. No term of the court shall lapse by reason of the fact that the court was not formally opened at the beginning of the term.

History. Acts 1963, No. 214, §§ 1, 2; A.S.A. 1947, §§ 22-603, 22-603.1.

Cross References. Change of term not to affect proceedings, § 16-10-113.

16-15-102. Special terms.

  1. The county judge of any county may hold a special term of the county court when the public good of the county demands it.
  2. Before any special term of a county court shall be held, the county judge shall give a notice ten (10) days before the special term is held by posting ten (10) written or printed notices in ten (10) of the most public places in the county, including one (1) notice on the door of the office of the clerk of the county.

History. Acts 1879, No. 50, §§ 1, 2, p. 60; C. & M. Dig., §§ 2269, 2270; Pope's Dig., §§ 2896, 2897; A.S.A. 1947, §§ 22-606, 22-607.

Case Notes

Applicability.

This section did not apply to a quorum court levying appropriations which was lawfully in session on giving notice of the session to the justices of the peace affected, since the session was an emergency session. Cleveland County v. Pearce, 171 Ark. 1145, 287 S.W. 593 (1926).

16-15-103. Change of term upon conflict with circuit court — Exception.

    1. Whenever it shall happen that the time for holding the county court and circuit court in any county shall be on the same day, the county judge shall not commence his or her court until two (2) weeks thereafter.
    2. This section shall not apply to counties having separate county clerks, as provided for in Arkansas Constitution, Article 7, § 19.
  1. All process of whatever description shall be returnable and have day and trial in the same manner as if the county court had been held at the regular time prescribed by law.

History. Acts 1875, No. 55, § 77, p. 138; 1887, No. 107, § 1, p. 198; C. & M. Dig., §§ 2267, 2268; Pope's Dig., §§ 2894, 2895; A.S.A. 1947, §§ 22-604, 22-605.

Publisher's Notes. Ark. Const., Art. 7, § 19, which provided, in part, for the election of a separate county clerk in those counties having a population exceeding 15,000 inhabitants, was modified by Ark. Const. Amend. 41, providing that the provisions for the election of a county clerk upon a population basis were abolished and that “there may be elected a county clerk in like manner as a circuit clerk.”

Cross References. Terms of county courts to be held at times prescribed for supervisor's courts, § 14-14-1001.

Case Notes

Applicability.

This section does not apply to terms of levying court. Hilliard v. Bunker, 68 Ark. 340, 58 S.W. 362 (1900).

16-15-104. Adjournment — Recess.

There shall be no adjournments of county courts, but the county courts shall be deemed in recess when not engaged in the transaction of business.

History. Acts 1963, No. 214, § 3; A.S.A. 1947, § 22-603.2.

16-15-105. Sessions.

  1. Each county court may, by rule or order, fix times and places when the court will be in session for the transaction of business; but such scheduled sittings of the court shall not preclude the transaction of business by the court at other times or places.
  2. In counties having more than one (1) judicial district, the county court shall be concurrently in session in each district.

History. Acts 1963, No. 214, §§ 4, 5; A.S.A. 1947, §§ 22-603.3, 22-603.4.

16-15-106. Punishment for contempt.

The county court of each county, for an interruption of its proceedings or any contempt offered it while in session, shall have the power to impose a Class C misdemeanor.

History. Acts 1873, No. 31, § 22, p. 53; C. & M. Dig., § 2284; Pope's Dig., § 2911; A.S.A. 1947, § 22-615; Acts 2005, No. 1994, § 411.

Amendments. The 2005 amendment substituted “Class C misdemeanor” for “fine not exceeding fifty dollars ($50.00) and to imprison the offender or offenders for each offense, not exceeding twenty-four (24) hours.”

Cross References. Contempt of court, § 16-10-108.

16-15-107. Approval of bonds in vacation.

The judge of the county court shall have power, in vacation, to approve any bond requiring the approval of the court by law. The bond, so approved by the judge, shall be submitted to the court, at its next regular meeting, for their approval or rejection, and, if rejected, a new bond and surety shall be given.

History. Acts 1873, No. 31, § 29, p. 53; C. & M. Dig., § 2278; Pope's Dig., § 2905; A.S.A. 1947, § 22-611.

16-15-108. Special judges.

  1. When any county judge of the state shall be physically unable to attend to the business of his or her court to the extent that the business of the county court shall suffer on account of the physical disability, the circuit judge of the district in which the county is located shall have authority to certify to the Governor the physical disability of the county judge. The Governor shall appoint someone to hold the county court until such time as the regular county judge shall be physically able to resume his or her official duties.
  2. Every person appointed to serve as special judge of a county court shall be entitled to receive compensation at the rate of forty dollars ($40.00) per day for each day he or she shall sit, to be paid out of the county treasury.

History. Acts 1875, No. 73, § 3, p. 163; 1915, No. 340, § 1; C. & M. Dig., §§ 2276, 8728; Pope's Dig., §§ 2903, 11419; Acts 1975, No. 345, § 1; 1977, No. 765, § 1; A.S.A. 1947, §§ 22-132, 22-613.

16-15-109. Interest in county contracts or transactions prohibited.

    1. It shall be unlawful for any county judge to be interested, either directly or indirectly, in any contract or transaction made or entered into in his or her county or on behalf of his or her county or to accept or receive any property, money, or other valuable thing for his or her use or benefit on account of, connected with, or growing out of any contract or transaction had or made for his or her county.
    2. If, in the purchase of any materials, supplies, equipment, or machinery for the county, any discounts, credits, or allowances are given or allowed, they shall be for the benefit of the county. It shall be unlawful for the county judge to accept or retain the discounts, credits, or allowances for his or her own use or benefit. All such discounts, credits, or allowances must be given to the county.
  1. A violation of any of the provisions of this section shall be a misdemeanor, and upon conviction the county judge shall be punished by a fine of not less than three hundred dollars ($300) nor more than one thousand dollars ($1,000). In addition, the county judge shall be removed from office, and his or her successor shall be appointed as is provided by law.

History. Acts 1953, No. 218, §§ 1, 2; A.S.A. 1947, §§ 22-612.1, 22-612.2.

Case Notes

County Contractor Bond Loan.

Judge who guaranteed a bond loan for a county contractor had an “interest” in a county contract in violation of subsection (a) of this section and was properly removed from office pursuant to subsection (b) of this section. Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996).

Improvements.

Interest of a county judge in an improvement to which the county contributes with its labor and machinery is a violation of this section just as much as if the county had paid out cash. McGhee v. Glenn, 244 Ark. 1000, 428 S.W.2d 258 (1968).

16-15-110. Judge not to be interested party in county contracts, projects, buildings, etc.

It shall be unlawful for any county judge in this state to be either directly or indirectly interested, in his or her own county, in:

  1. The building or repairing of any public building or the building or repairing of any public bridge;
  2. Any toll bridge or causeway;
  3. Any public ferry;
  4. The keeping, feeding, or clothing of any pauper or poor or insane person;
  5. Any real or personal property, stationery, furniture, wood, or other materials purchased for the use of the county; or
  6. Any internal improvement to be paid for, in whole or in part, by the county.

History. Acts 1873, No. 31, § 21, p. 53; C. & M. Dig., § 2277; Pope's Dig., § 2904; A.S.A. 1947, § 22-612.

Cross References. Violation of provisions governing claims against counties, §§ 14-23-106, 14-23-202.

Case Notes

Jury Question.

Evidence that county judge received rentals for use of an air compressor on the public roads of the county, which compressor he had received, at the time he was sheriff, in a trade of a county-owned rock crusher, was sufficient to present a question of fact for the jury. State v. Anderson, 200 Ark. 588, 139 S.W.2d 682 (1940).

Office Expenses.

Practice of county judge of reimbursing himself from county funds for out-of-pocket office expenses was illegal, but taxpayer could not recover amount of withdrawals for the county if county received full value. Ward v. Farrell, 221 Ark. 363, 253 S.W.2d 353 (1952).

16-15-111. Disqualification of judges.

No judge of the county court shall sit on the determination of any case in which he or she is interested in the outcome, is related to any party within the third degree of consanguinity or affinity, has been of counsel, or is otherwise disqualified under the Arkansas Code of Judicial Conduct, unless the parties waive the disqualification as provided therein.

History. Rev. Stat., ch. 43, § 24; C. & M. Dig., §§ 2107, 6400; Pope's Dig., §§ 2711, 8362; A.S.A. 1947, § 22-113; Acts 2003, No. 1185, § 100.

Publisher's Notes. Rev. Stat., ch. 43, § 24, is also codified as § 16-13-214, 16-13-312 [repealed], 16-14-103 [repealed], 16-19-206 [repealed].

Cross References. Computing degrees of consanguinity, § 28-9-212.

Research References

Ark. L. Rev.

Brill, The Arkansas Code of Judicial Conduct, 35 Ark. L. Rev. 247.

Case Notes

Purpose.

This section and § 16-13-101 tend to carry out the intention of Ark. Const., Art. 7, § 20 [repealed]. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

Acting as Counsel.

The objection that a judge was disqualified by reason of having appeared for the plaintiffs in a previous suit against the defendants upon the same cause of action which had been dismissed for want of prosecution will be deemed waived where the cause was allowed to proceed to judgment without calling the judge's attention to his disqualification. Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919).

Bias or Prejudice.

Prejudice is not ground for disqualifying judge. Jones v. State, 61 Ark. 88, 32 S.W. 81, 1895 Ark. LEXIS 81 (1895).

Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge; the reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. Thus, absent some objective demonstration of prejudice, it is a communication of bias which will cause an appellate court to reverse a trial judge's decision on disqualification. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).

Continuance.

It is no ground of error that a judge who was incompetent to sit in a cause took jurisdiction of it so far as to grant a continuance, for it would have been continued by operation of law, without action of the judge, he being incompetent to try it. Stone v. Robinson, 9 Ark. (4 English) 469 (1849).

Interest.

The interest which disqualifies a judge is not the kind of interest which one feels in public proceedings or public measures; it must be a pecuniary or property interest or one affecting his individual rights; and the liability of pecuniary gain or relief must occur upon the event of the suit and not result remotely in the future from the general operation of laws and government upon the status fixed by the decision. Osborne v. Board of Imp., 94 Ark. 563, 128 S.W. 357 (1910).

The “interest” which is disqualifying under this section, § 16-13-101, and Ark. Const., Art. 7, § 20 [repealed], is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge, and the liability, gain or relief to the judge must turn on the outcome of the suit. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

Presumption.

Where the record fails to show that the court acted on a suggestion of disqualification, it will be presumed that he found that he was not disqualified. Davis v. Atkinson, 75 Ark. 300, 87 S.W. 432 (1905).

Relationship.

The husband of the aunt is related to the husband of her niece within the fourth degree of affinity. Kelly v. Neely, 12 Ark. 657 (1852).

At common law, a judge was not disqualified by reason of relationship to one of the parties to the suit. Morrow v. Watts, 80 Ark. 57, 95 S.W. 988 (1906).

A judge is disqualified when related within prohibited degree to attorney in the case who has a contingent interest in that his fee is dependent upon the determination of the cause. Johnson v. State, 87 Ark. 45, 112 S.W. 143 (1908).

When the relationship is within the proscribed limits, neither the frequency of contact nor the closeness of the individuals bears on the result. Morton v. Benton Publishing Co., 291 Ark. 620, 727 S.W.2d 824 (1987).

Where one spouse's relationship with a judge comes within the prohibition of Ark. Const., Art. 7, § 20 [repealed], this section, and §§ 16-13-214, 16-13-312 [repealed], 16-14-103 [repealed], or § 16-19-206 [repealed], the other spouse shares the same degree of relationship by affinity to the judge. Morton v. Benton Publishing Co., 291 Ark. 620, 727 S.W.2d 824 (1987).

Cited: Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978).

16-15-112. Sheriff's attendance at court sessions.

It shall be the duty of the sheriff to attend each regular or special session of the county court for his or her county, either in person or by deputy, and to execute all orders and precepts made by the court. For his or her attendance, the sheriff shall be entitled to receive such fees as are allowed by law to sheriffs for executing the orders and precepts made by the county courts.

History. Acts 1873, No. 31, § 6, p. 53; C. & M. Dig., § 2272; Pope's Dig., § 2899; A.S.A. 1947, § 22-614.

Cross References. Sheriff of court, § 16-10-122.

Case Notes

Absence of Sheriff.

Although a sheriff can be forced to attend a session of the county court, sessions held without the presence of the sheriff are valid, and a holding that a sheriff could prevent a session from being valid by merely staying away would be unreasonable. Adams v. Tackett, 236 Ark. 171, 365 S.W.2d 125 (1963).

Contempt.

A suit by a county judge to enjoin a sheriff from interfering with an order of the county court does not lie; the proper remedy is to cite the sheriff for contempt upon his refusal to obey. Penix v. Shaddox, 165 Ark. 152, 263 S.W. 389 (1924).

16-15-113. Court expenses — Payment.

The expenses accruing in the county courts shall be paid out of the county treasury in which the court is held in the same manner as other demands.

History. Rev. Stat., ch. 43, § 47; C. & M. Dig., § 2118; Pope's Dig., § 2722; A.S.A. 1947, § 22-125.

Publisher's Notes. Rev. Stat., ch. 43, § 47, is also codified as §§ 16-13-219, 16-13-324, and 16-14-109.

Chapter 16 Courts Of Common Pleas

16-16-201 — 16-16-1115. [Repealed.]

Publisher's Notes. This chapter was repealed by Acts 2001, No. 915, § 1. The chapter was derived from the following sources:

16-16-201. Acts 1915, No. 339, § 1; A.S.A. 1947, § 22-615n.

16-16-202. Acts 1915, No. 339, § 2; A.S.A. 1947, § 22-615n.

16-16-203. Acts 1915, No. 339, § 3; A.S.A. 1947, § 22-615n.

16-16-204. Acts 1915, No. 339, § 7; A.S.A. 1947, § 22-615n.

16-16-205. Acts 1915, No. 339, § 3; A.S.A. 1947, § 22-615n.

16-16-206. Acts 1915, No. 339, § 6; A.S.A. 1947, § 22-615n.

16-16-207. Acts 1915, No. 339, § 14; A.S.A. 1947, § 22-615n.

16-16-208. Acts 1915, No. 339, §§ 6, 14; A.S.A. 1947, § 22-615n.

16-16-209. Acts 1915, No. 339, §§ 12, 13; A.S.A. 1947, § 22-615n.

16-16-210. Acts 1915, No. 339, §§ 4, 5; A.S.A. 1947, § 22-615n.

16-16-211. Acts 1915, No. 339, § 8; A.S.A. 1947, § 22-615n.

16-16-212. Acts 1915, No. 339, § 15; A.S.A. 1947, § 22-615n.

16-16-213. Acts 1915, No. 339, §§ 9-11; A.S.A. 1947, § 22-615n.

16-16-301. Acts 1909, No. 352, § 2, p. 1028; A.S.A. 1947, § 22-615n.

16-16-302. Acts 1909, No. 352, § 1, p. 1028; A.S.A. 1947, § 22-615n.

16-16-303. Acts 1909, No. 352, § 3, p. 1028; A.S.A. 1947, § 22-615n.

16-16-304. Acts 1909, No. 352, § 4, p. 1028; A.S.A. 1947, § 22-615n.

16-16-305. Acts 1909, No. 352, § 10, p. 1028; A.S.A. 1947, § 22-615n.

16-16-306. Acts 1909, No. 352, § 9, p. 1028; A.S.A. 1947, § 22-615n.

16-16-307. Acts 1909, No. 352, § 8, p. 1028; A.S.A. 1947, § 22-615n.

16-16-308. Acts 1909, No. 352, § 19, p. 1028; A.S.A. 1947, § 22-615n.

16-16-309. Acts 1909, No. 352, §§ 8, 19, p. 1028; A.S.A. 1947, § 22-615n.

16-16-310. Acts 1909, No. 352, § 18, p. 1028; A.S.A. 1947, § 22-615n.

16-16-311. Acts 1909, No. 352, §§ 5, 6, p. 1028; A.S.A. 1947, § 22-615n.

16-16-312. Acts 1909, No. 352, § 11, p. 1028; A.S.A. 1947, § 22-615n.

16-16-313. Acts 1909, No. 352, § 7, p. 1028; A.S.A. 1947, § 22-615n.

16-16-314. Acts 1909, No. 352, § 12, p. 1028; A.S.A. 1947, § 22-615n.

16-16-315. Acts 1909, No. 352, §§ 13-17, p. 1028; A.S.A. 1947, § 22-615n.

16-16-401. Acts 1905, No. 149, § 1, p. 364; 1961, No. 13, § 1; A.S.A. 1947, § 22-615n.

16-16-402. Acts 1905, No. 149, § 5, p. 364; A.S.A. 1947, § 22-615n.

16-16-403. Acts 1905, No. 149, § 4, p. 364; 1923, No. 95, § 1; A.S.A. 1947, § 22-615n.

16-16-404. Acts 1905, No. 149, § 9, p. 364; A.S.A. 1947, § 22-615n.

16-16-405. Acts 1905, No. 149, §§ 2, 3, p. 364; 1919, No. 220, § 1; A.S.A. 1947, § 22-615n.

16-16-406. Acts 1905, No. 149, § 6, p. 364; 1919, No. 220, § 2; A.S.A. 1947, § 22-615n.

16-16-407. Acts 1905, No. 149, § 7, p. 364; A.S.A. 1947, § 22-615n.

16-16-408. Acts 1905, No. 149, § 8, p. 364; A.S.A. 1947, § 22-615n.

16-16-409. Acts 1905, No. 149, § 5, p. 364; A.S.A. 1947, § 22-615n.

16-16-410. Acts 1905, No. 149, § 10, p. 364; A.S.A. 1947, § 22-615n.

16-16-411. Acts 1905, No. 149, §§ 14, 15, p. 364; A.S.A. 1947, § 22-615n.

16-16-412. Acts 1905, No. 149, § 11, p. 364; A.S.A. 1947, § 22-615n.

16-16-413. Acts 1905, No. 149, § 12; p. 364; A.S.A. 1947, § 22-615n.

16-16-414. Acts 1905, No. 149, § 13, p. 364; A.S.A. 1947, § 22-615n.

16-16-415. Acts 1905, No. 149, § 20, p. 364; 1963, No. 198, § 1; A.S.A. 1947, § 22-615n.

16-16-416. Acts 1905, No. 149, §§ 21, 22, p. 364; 1963, No. 198, § 2; A.S.A. 1947, § 22-615n.

16-16-417. Acts 1905, No. 149, §§ 19, 23, p. 364; A.S.A. 1947, § 22-615n.

16-16-418. Acts 1905, No. 149, § 24, p. 364; A.S.A. 1947, § 22-615n.

16-16-419. Acts 1905, No. 149, §§ 16-18, p. 364; A.S.A. 1947, § 22-615n.

16-16-501. Acts 1917, No. 311, § 1, p. 1622; A.S.A. 1947, § 22-615n.

16-16-502. Acts 1917, No. 311, § 2; p. 1622; A.S.A. 1947, § 22-615n.

16-16-503. Acts 1917, No. 311, § 3, p. 1622; A.S.A. 1947, § 22-615n.

16-16-504. Acts 1917, No. 311, § 9, p. 1622; A.S.A. 1947, § 22-615n.

16-16-505. Acts 1917, No. 311, § 8, p. 1622; A.S.A. 1947, § 22-615n.

16-16-506. Acts 1917, No. 311, § 6, p. 1622; A.S.A. 1947, § 22-615n.

16-16-507. Acts 1917, No. 311, § 11, p. 1622; A.S.A. 1947, § 22-615n.

16-16-508. Acts 1917, No. 311, §§ 6, 7, 18, 19, p. 1622; A.S.A. 1947, § 22-615n.

16-16-509. Acts 1917, No. 311, §§ 20, 21, p. 1622; A.S.A. 1947, § 22-615n.

16-16-510. Acts 1917, No. 311, §§ 16, 17, p. 1622; A.S.A. 1947, § 22-615n.

16-16-511. Acts 1917, No. 311, § 4, p. 1622; A.S.A. 1947, § 22-615n.

16-16-512. Acts 1917, No. 311, § 5, p. 1622; A.S.A. 1947, § 22-615n.

16-16-513. Acts 1917, No. 311, § 10, p. 1622; A.S.A. 1947, § 22-615n.

16-16-514. Acts 1917, No. 311, §§ 12-15, p. 1622; A.S.A. 1947, § 22-615n.

16-16-601. Acts 1931, No. 100, § 1; A.S.A. 1947, § 22-615n.

16-16-602. Acts 1931, No. 100, § 2; A.S.A. 1947, § 22-615n.

16-16-603. Acts 1931, No. 100, § 3; A.S.A. 1947, § 22-615n.

16-16-604. Acts 1931, No. 100, §§ 9, 10; A.S.A. 1947, § 22-615n.

16-16-605. Acts 1931, No. 100, § 8; A.S.A. 1947, § 22-615n.

16-16-606. Acts 1931, No. 100, § 6; A.S.A. 1947, § 22-615n.

16-16-607. Acts 1931, No. 100, § 12; A.S.A. 1947, § 22-615n.

16-16-608. Acts 1931, No. 100, § 17; A.S.A. 1947, § 22-615n.

16-16-609. Acts 1931, No. 100, §§ 6, 7, 18, 19; A.S.A. 1947, § 22-615n.

16-16-610. Acts 1931, No. 100, § 4; A.S.A. 1947, § 22-615n.

16-16-611. Acts 1931, No. 100, § 5; A.S.A. 1947, § 22-615n.

16-16-612. Acts 1931, No. 100, § 11; A.S.A. 1947, § 22-615n.

16-16-613. Acts 1931, No. 100, §§ 13-16; A.S.A. 1947, § 22-615n.

16-16-701. Acts 1875 (Adj. Sess.), No. 61, § 2, p. 123; A.S.A. 1947, § 22-615n.

16-16-702. Acts 1883, No. 134, § 1, p. 320; A.S.A. 1947, § 22-615n.

16-16-703. Acts 1883, No. 134, § 1, p. 320; 1885, No. 25, § 1, p. 29; A.S.A. 1947, § 22-615n.

16-16-704. Acts 1875 (Adj. Sess.), No. 61, § 3, p. 123; A.S.A. 1947, § 22-615n.

16-16-705. Acts 1875 (Adj. Sess.), No. 61, § 4, p. 123; 1883, No. 134, § 2, p. 320; A.S.A. 1947, § 22-615n.

16-16-706. Acts 1875 (Adj. Sess.), No. 61, § 13, p. 123; 1879, No. 12, § 1, p. 9; A.S.A. 1947, § 22-615n.

16-16-707. Acts 1883, No. 134, § 1, p. 320; A.S.A. 1947, § 22-615n.

16-16-708. Acts 1875 (Adj. Sess.), No. 61, § 12, p. 123; 1891, No. 103, § 1, p. 186; A.S.A. 1947, § 22-615n.

16-16-709. Acts 1875 (Adj. Sess.), No. 61, § 9, p. 123; A.S.A. 1947, § 22-615n.

16-16-710. Acts 1875 (Adj. Sess.), No. 61, § 16, p. 123; A.S.A. 1947, § 22-615n.

16-16-711. Acts 1975, No. 653, § 1; A.S.A. 1947, § 22-615n.

16-16-712. Acts 1875 (Adj. Sess.), No. 61, §§ 10, 11, 23-25, p. 123; A.S.A. 1947, § 22-615n.

16-16-713. Acts 1875 (Adj. Sess.), No. 61, § 4, p. 123; 1883, No. 134, § 2, p. 320; A.S.A. 1947, § 22-615n.

16-16-714. Acts 1875 (Adj. Sess.), No. 61, §§ 21, 22, p. 123; 1887, No. 83, § 1, p. 120; 1889, No. 112, § 1, p. 163; A.S.A. 1947, § 22-615n.

16-16-715. Acts 1875 (Adj. Sess.), No. 61, §§ 5-8, p. 123; 1883, No. 134, §§ 3, 4, p. 320; A.S.A. 1947, § 22-615n.

16-16-716. Acts 1875 (Adj. Sess.), No. 61, § 14, p. 123; 1883, No. 134, § 5, p. 320; A.S.A. 1947, § 22-615n.

16-16-717. Acts 1875 (Adj. Sess.), No. 61, § 15, p. 123; A.S.A. 1947, § 22-615n.

16-16-718. Acts 1875 (Adj. Sess.), No. 61, §§ 17-20, p. 123; A.S.A. 1947, § 22-615n.

16-16-719. Acts 1885, No. 133, §§ 1, 2, 3, 10, 12, 13, 15, 17, 19-21, p. 217; A.S.A. 1947, § 22-615n.

16-16-801. Acts 1889, No. 82, § 2, p. 109; A.S.A. 1947, § 22-615n.

16-16-802. Acts 1889, No. 82, § 1, p. 109; 1921, No. 217, § 1; A.S.A. 1947, § 22-615n.

16-16-803. Acts 1889, No. 82, § 3, p. 109; A.S.A. 1947, § 22-615n.

16-16-804. Acts 1889, No. 82, § 4, p. 109; A.S.A. 1947, § 22-615n.

16-16-805. Acts 1889, No. 82, § 11, p. 109; A.S.A. 1947, § 22-615n.

16-16-806. Acts 1889, No. 82, § 10, p. 109; A.S.A. 1947, § 22-615n.

16-16-807. Acts 1889, No. 82, § 9, p. 109; A.S.A. 1947, § 22-615n.

16-16-808. Acts 1889, No. 82, § 14, p. 109; A.S.A. 1947, § 22-615n.

16-16-809. Acts 1889, No. 82, §§ 9, 21, p. 109; A.S.A. 1947, § 22-615n.

16-16-810. Acts 1889, No. 82, § 20, p. 109; A.S.A. 1947, § 22-615n.

16-16-811. Acts 1889, No. 82, §§ 5-8, p. 109; A.S.A. 1947, § 22-615n.

16-16-812. Acts 1889, No. 82, § 12, p. 109; A.S.A. 1947, § 22-615n.

16-16-813. Acts 1889, No. 82, § 13, p. 109; A.S.A. 1947, § 22-615n.

16-16-814. Acts 1889, No. 82, §§ 15-19, p. 109; A.S.A. 1947, § 22-615n.

16-16-901. Acts 1917, No. 98, § 1, p. 461; A.S.A. 1947, § 22-615n.

16-16-902. Acts 1917, No. 98, § 5, p. 461; A.S.A. 1947, § 22-615n.

16-16-903. Acts 1917, No. 98, § 4, p. 461; A.S.A. 1947, § 22-615n.

16-16-904. Acts 1917, No. 98, § 9, p. 461; A.S.A. 1947, § 22-615n.

16-16-905. Acts 1917, No. 98, § 2, p. 461; A.S.A. 1947, § 22-615n.

16-16-906. Acts 1917, No. 98, § 3, p. 461; A.S.A. 1947, § 22-615n.

16-16-907. Acts 1917, No. 98, §§ 6, 7, p. 461; A.S.A. 1947, § 22-615n.

16-16-908. Acts 1917, No. 98, § 8, p. 461; A.S.A. 1947, § 22-615n.

16-16-909. Acts 1917, No. 98, § 5, p. 461; A.S.A. 1947, § 22-615n.

16-16-910. Acts 1917, No. 98, § 10, p. 461; A.S.A. 1947, § 22-615n.

16-16-911. Acts 1917, No. 98, §§ 14, 15, p. 461; A.S.A. 1947, § 22-615n.

16-16-912. Acts 1917, No. 98, § 11, p. 461; A.S.A. 1947, § 22-615n.

16-16-913. Acts 1917, No. 98, § 12, p. 461; A.S.A. 1947, § 22-615n.

16-16-914. Acts 1917, No. 98, § 13, p. 461; A.S.A. 1947, § 22-615n.

16-16-915. Acts 1917, No. 98, §§ 21-23, p. 461; A.S.A. 1947, § 22-615n.

16-16-916. Acts 1917, No. 98, §§ 19, 20, p. 461; A.S.A. 1947, § 22-615n.

16-16-917. Acts 1917, No. 98, § 24, p. 461; A.S.A. 1947, § 22-615n.

16-16-918. Acts 1917, No. 98, §§ 16-18, p. 461; A.S.A. 1947, § 22-615n.

16-16-1001. Acts 1917, No. 452, § 1, p. 2042; 1959, No. 125, § 2; A.S.A. 1947, § 22-615n.

16-16-1002. Acts 1917, No. 452, § 2, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1003. Acts 1917, No. 452, § 3, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1004. Acts 1917, No. 452, §§ 9, 10, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1005. Acts 1917, No. 452, § 8, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1006. Acts 1917, No. 452, § 6, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1007. Acts 1917, No. 452, § 12, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1008. Acts 1917, No. 452, §§ 6, 7, 19, 20, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1009. Acts 1917, No. 452, §§ 17, 18, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1010. Acts 1917, No. 452, § 4, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1011. Acts 1917, No. 452, § 5, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1012. Acts 1917, No. 452, § 11, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1013. Acts 1917, No. 452, §§ 13-16, p. 2042; A.S.A. 1947, § 22-615n.

16-16-1101. Acts 1893, No. 110, § 1, p. 190; A.S.A. 1947, § 22-615n.

16-16-1102. Acts 1893, No. 110, § 2, p. 190; A.S.A. 1947, § 22-615n.

16-16-1103. Acts 1893, No. 110, § 3, p. 190; A.S.A. 1947, § 22-615n.

16-16-1104. Acts 1893, No. 110, § 9, p. 190; A.S.A. 1947, § 22-615n.

16-16-1105. Acts 1893, No. 110, § 8, p. 190; A.S.A. 1947, § 22-615n.

16-16-1106. Acts 1893, No. 110, § 6, p. 190; A.S.A. 1947, § 22-615n.

16-16-1107. Acts 1893, No. 110, § 11, p. 190; A.S.A. 1947, § 22-615n.

16-16-1108. Acts 1893, No. 110, §§ 6, 7, 18, p. 190; A.S.A. 1947, § 22-615n.

16-16-1109. Acts 1893, No. 110, § 3, p. 190; A.S.A. 1947, § 22-615n.

16-16-1110. Acts 1893, No. 110, § 17, p. 190; A.S.A. 1947, § 22-615n.

16-16-1111. Acts 1893, No. 110, § 4, p. 190; A.S.A. 1947, § 22-615n.

16-16-1112. Acts 1893, No. 110, § 5, p. 190; A.S.A. 1947, § 22-615n.

16-16-1113. Acts 1893, No. 110, § 10, p. 190; A.S.A. 1947, § 22-615n.

16-16-1114. Acts 1893, No. 110, § 13, p. 190; A.S.A. 1947, § 22-615n.

16-16-1115. Acts 1893, No. 110, §§ 12, 14-16, p. 190; A.S.A. 1947, § 22-615n.

Chapter 17 District Courts

Research References

Am. Jur. 20 Am. Jur. 2d, Courts, § 30 and § 36 et seq.

Ark. L. Rev.

Minimum Standards of Judicial Administration — Arkansas, 5 Ark. L. Rev. 1, 10.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

A New Judicial System for Arkansas, 24 Ark. L. Rev. 221.

C.J.S. 21 C.J.S., Courts, § 102.

Subchapter 1 — General Provisions

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Cross References. Allocation of portion of fines to Youth Accident Prevention Program, § 14-20-116.

Effective Dates. Acts 1941, No. 80, § 5: approved Feb. 20, 1941. Emergency clause provided: “It has been ascertained, and it is hereby declared, that all cities subject to the provisions of this act maintain and support competent city police forces, and that the counties in which the cities and townships affected by this act are located maintain their sheriffs and deputies on a salary and not on a fee basis; that in certain cities and townships subject to the provisions of this act, abuses exist which are inherent in the fee system of compensating constables in criminal cases; that great injury is being suffered, and will continue to be suffered, by the citizens and students of the cities and townships affected by this act; that on account of such abuses, it is necessary for the immediate preservation of the public peace, health and safety that this act take effect at once, and an emergency is hereby declared to exist, and this act shall take effect and be in force from and after its passage.”

Acts 1941, No. 118, § 4: approved Mar. 6, 1941. Emergency clause provided: “This act being necessary for the preservation of the public peace, welfare and safety, an emergency is hereby declared and the same shall be in force and effect from and after its passage.”

Acts 1951, No. 275, § 4: Mar. 19, 1951. Emergency clause provided: “It is the finding of the General Assembly that some scientific means of determination of the fact and degree of intoxication is necessary to the administration of justice in cases where drunkenness is an element of the offense, and that such cases have increased appreciably in the recent past, and this act being necessary to the administration of justice, an emergency is hereby declared to exist, and this act shall be in effect immediately upon its passage and approval.”

Acts 1961, No. 67, § 5: Feb. 9, 1961. Emergency clause provided: “The General Assembly of the State of Arkansas hereby finds and declares that the matters affected by this Act have a direct relation to the administration of justice and the preservation of order in the areas affected, and that therefore, an emergency is hereby found and declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in full force from and after the date of its passage and approval.”

Acts 1961, No. 121, § 4: approved Feb. 22, 1961. Emergency clause provided: “Whereas, there is conflict as to whether municipal court clerks have the authority to issue warrants, and many judges have the duty of issuing warrants, and to do so they must in advance listen to the testimony and statements of complainants, in order to prepare a proper affidavit and warrant, which process is detrimental to fair, impartial, and unprejudicial justice, and such complaints should be made to the prosecuting attorney or city attorney, it is found that this Act is in the furtherance of the administration of justice, and is necessary for the immediate preservation of the public peace, welfare, and safety, and an emergency is hereby declared and this Act shall be in force and effect from and after its passage.”

Acts 1961, No. 159, § 5: Mar. 3, 1961. Emergency clause provided: “The general assembly of the state of Arkansas hereby finds and declares that the matters affected by this Act have a direct relation to the administration of justice and the preservation of order in the areas affected, and that therefore, an emergency is hereby found and declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in full force from and after the date of its passage and approval.”

Acts 1971, No. 102, § 4: Feb. 16, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that there are certain established municipal courts in this State in which there is periodically a vacancy in the position of municipal judge by virtue of the fact that there is no attorney in the area qualified to serve as judge of such court or because no qualified attorney in the area desires to run for and be elected to the office of judge of such court; that it is essential to the administration of justice in the areas where such courts are located that a judge be provided for the court; that it is in the best interest of justice and the municipality involved that the governing body of the municipality be authorized to employ any attorney within the county or the judge of another municipal court in the county to serve as judge of such court and to pay the person so employed such salary or remuneration as is provided by law or may be contracted for by the governing body of the employing municipality, and that this Act will 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 1971, No. 157, § 3: Feb. 26, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is presently no specific authority for the judges of municipal courts in this State to appoint deputy municipal court clerks; that it is essential to the proper and efficient administration of justice in the municipal courts in this State that the judge be given this authority, subject to approval of the governing body of such city and that this Act should be given immediate effect in order to provide such authority. 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 1973, No. 40, § 3: Jan. 31, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly that there are certain established municipal courts in this State in which there is a vacancy in the office of municipal judge by reason of the fact that there is no qualified attorney residing in the county or by reason of the failure of any qualified attorney in the county to be elected to such office; that it is essential to the administration of justice in the areas where such courts are located that a qualified person be selected to serve as judge of such courts; that this Act is designed to permit the appointment or employment of a qualified person residing in an adjoining county to serve as judge in such municipal court and should be given effect immediately in order to further the administration of justice in such areas. 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 (Extended Sess., 1976), No. 1085, § 6: Jan. 30, 1976. Emergency clause provided: “It is hereby found and determined by the General Assembly that the cost of law enforcement resulting from the necessity of having several municipal courts in a single county may in some cases become prohibitive; that it is in the best interest of the proper efficient and effective administration of justice in the various counties that two or more municipalities be authorized to enter into agreements whereby a single person would serve a judge of the municipal court of each of the agreeing municipalities; that it is in the best interest of the citizens of those counties affected that the agreeing municipalities and the county be permitted to enter into agreements regarding the compensation and place of holding municipal court for the various agreeing municipalities; 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 1979, No. 801, § 4: Apr. 10, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that funds derived from fines, penalties and costs collected in municipal courts subject to the provisions of Act 87 of 1915 and Act 60 of 1927 in counties of over 250,000 persons have traditionally been used to finance the municipal courts and for other municipal purposes; that it would create a serious financial hardship on such municipalities if they were required to remit a portion of the funds so collected to the county in which they are located; that there is some confusion regarding the present state of law relating to this matter and that this Act is designed to clarify this situation 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 1983, No. 144, § 3: became law without Governor's signature, Feb. 9, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the salary of the municipal judge of the Pulaski County Municipal Court is inadequate and that this Act is immediately necessary to provide more equitable compensation for such municipal court judge. 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. 621, § 4: emergency failed to pass. Emergency clause provided: “It is hereby found and determined by the 74th General Assembly that the Judicial Retirement System does not have adequate funding, and that the funds heretofore appropriated by the General Assembly have not been sufficient to adequately fund the Judicial Retirement System; that such Judicial Retirement System is in need of sound funding so as to put it upon a sound actuarial basis; and that the money must be available immediately to provide funds for 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 the day of its passage and approval.”

Acts 1983, No. 759, § 3: Mar. 24, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the pressures on the municipal courts are such that the municipal court judges should be allowed to appoint magistrates to make the administration of justice more efficient and effective. 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. 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 1985, No. 246, § 3: Mar. 4, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that municipalities having city or police courts now have no specific authority to levy court costs for the criminal justice fund; that it is essential to the effective and efficient administration of justice that such cities be granted such authority as soon as possible and that this Act should be given effect immediately to grant such authority. 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. 955, §§ 3, 4: retroactive to Jan. 1, 1985, except as otherwise provided in Section 1. Emergency clause provided: “It is hereby found and determined by the General Assembly that the salaries currently prescribed by law for judges of the various municipal courts in the State are inadequate to compensate the judges of such courts for their services; that the effective and efficient operation of the municipal courts in the State are essential to the administration of justice and that this Act is necessary to assure the effective and efficient operation of such courts 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 (1st Ex. Sess.), No. 6, § 5: retroactive to Jan. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the compensation currently provided for the grand jury stenographer of the First Judicial Circuit and for the municipal judge of the city of Rogers is inadequate to compensate said officials for their services; that it is essential to the effective and efficient administration of justice in the First Judicial Circuit and in the Rogers Municipal Court that such officers be adequately compensated for their services; and that this Act is designed to accomplish this essential 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 1987, No. 139, § 2: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the Seventy-Sixth General Assembly that the present method of remitting the additional court costs by the collecting officers directly to the State Treasurer for the benefit of the Judicial Retirement System does not provide adequate internal accounting controls; and that by remitting such additional court costs to the Arkansas Public Employees Retirement System will provide the necessary mechanism in order to enhance the internal accounting control procedures of the 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, 1987.”

Acts 1987, No. 431, § 10: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that Amendment 64 has an effective date of July 1, 1987, that the smooth implementation of the Amendment requires that this law be enacted; that should the General Assembly extend the session beyond the sixtieth day, there exists a danger that this law would not be in effect on July 1, 1987; therefore, this shall be effective July 1, 1987.”

Acts 1987, No. 871, § 6: 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 1085 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 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. 1031, § 5: Apr. 14, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that the salaries currently prescribed by law for judges of the various municipal courts in the State are inadequate to compensate the judges of such courts for their services; that the effective and efficient operation of the municipal courts in the State are essential to the administration of justice and that this Act is necessary to assure the effective and efficient operation of such courts 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 1987 (1st Ex. Sess.), No. 49, § 4: June 26, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that because of unclear language regarding the application of the additional court cost some jurisdictions have not levied the cost and that currently only cities may receive funds generated by this additional court cost, which impairs the adequate financing of municipal court operations by county governments, and it is thereby necessary to clarify the application of this court cost and to provide cities and counties the option to change the proportion of funds received by various jurisdictions in order to provide for the efficient and effective administration of justice in each county. 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 1989, No. 425, § 5: approved Mar. 9, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the preservation of justice requires that certain salaries be affixed by law; that it is necessary for the continuation of administration of justice that this act take effect immediately. Therefore, this act being necessary for the preservation of the public health, welfare, and safety shall become effective immediately upon passage.”

Acts 1989, No. 443, § 7: Mar. 9, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the preservation of justice requires that certain salaries be affixed by law; that it is necessary for the continuation of administration of justice that this act take 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 1989, No. 706, § 7: Mar. 20, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the preservation of justice requires that certain salaries be affixed by law; that it is necessary for the continuation of administration of justice that this act take effect immediately. Therefore, this act being necessary for the preservation of the public health, welfare, and safety shall become effective immediately upon passage.”

Acts 1989, No. 873, § 6: Mar. 22, 1989. Emergency clause provided: “It is hereby found and determined by the Seventy-Seventh General Assembly of the State of Arkansas that the salaries currently prescribed by law for judges of the various municipal courts in the State are inadequate to compensate the judges of such courts for their services; that the effective and efficient operation of the municipal courts in the State are essential to the administration of justice and that this act is necessary to assure the effective and efficient operations of such courts 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 1991, No. 35, § 5: Jan. 1, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the maximum salary for the DeQueen Municipal Court clerk is inadequate; that this Act eliminates the cap on that salary; and that until this Act goes into effect the city and county will be restricted by the inadequate limitation. Therefore, an emergency is hereby declared to exist and this Act immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after January 1, 1991.”

Acts 1991, No. 904, § 28: Mar. 29, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the language of certain court cost statutes lacks uniformity; that such lack of uniformity is detrimental to the proper collection of such court costs; and that such language should be standardized to promote the proper collection of such costs. 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 1991, No. 982, § 5: Apr. 8, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the salaries currently prescribed by law for judges of the various municipal courts in the State are inadequate to compensate the judges of such courts for their services; that the effective and efficient operation of the municipal courts in the State are essential to the administration of justice and that this act is necessary to assure the effective and efficient operation of such courts 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. 1234, § 5: Apr. 10, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly of the State of Arkansas that an alternative to bail is desirable and necessary for pretrial detainees and that the alternative to bail would aid the administration of justice. 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 the after its passage and approval.”

Acts 1992 (1st Ex. Sess.), No. 3, § 5: Feb. 27, 1992. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that Act 982 of 1991 inadvertently failed to set a salary range for the municipal court judge and clerk of the Fordyce municipal court, but rather set a specified salary which is not reflective of the salary the judge and clerk are currently paid and is not reflective of the salary approved by the Fordyce City Council and the Dallas County Quorum Court. 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 1992 (1st Ex. Sess.), No. 6, § 5: Feb. 27, 1992. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the maximum salary of the Lonoke Municipal Court Judge is inadequate and that until this act goes into effect, the city and county will be restricted by the inadequate limitation. 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 1992 (1st Ex. Sess.), No. 33, § 7: Mar. 10, 1992. Emergency clause provided: “It is hereby found and determined by the General Assembly that the maximum annual salary for the Marianna municipal court judge is inadequate and should be increased as soon as possible and that this act will accomplish the same. 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. 29, § 8: Aug. 23, 1994. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the caseload of the Seventeenth Judicial District (West) necessitates the appointment of an additional circuit-chancery judge immediately; that the salary cap for the Waldron Municipal Court Clerk must be raised in order to retain efficient court personnel and that this act so provides and should therefore 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. 1032, § 13: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that in order for the Department of Health to become more efficient in accounting and budgetary practices due to the transfer of the Bureau of Alcohol and Drug Abuse Prevention, changes in various funds are needed; and that the provisions of this Act provide such changes. 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 (1st Ex. Sess.), No. 13, § 13: Oct. 23, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state; and it is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible, and the lack of reliable data on the current costs of the state judicial system prohibits any comprehensive change in the funding of the system at this time. 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. 424, § 5: Mar. 10, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the caseload, and thusly, the workload of the Magnolia Municipal Court has increased and the salary cap for the Magnolia Municipal Court Clerk and Deputy Clerk must be raised in order to retain efficient court personnel, and this act so provides and should therefore be given immediate effect. 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. 1243, § 2: Apr. 2, 2001. Emergency clause provided: “It is found and determined by the General Assembly that there is a substantial risk of continued failures to appear by persons served with notice to appear in municipal courts, thus weakening enforcement of the traffic and criminal laws of Arkansas and endangering travelers on Arkansas' highways. 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. 1693, § 3: July 1, 2001. Emergency clause provided: “It is found and determined by the General Assembly that with the approval by the voters of Arkansas of Amendment 80 of the Arkansas Constitution, the effectiveness of this act on July 1, 2001 is essential to the operation of the state court system, 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 progress. 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 from and after July 1, 2001.”

Acts 2003, No. 1188, § 2: Apr. 9, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that for over six (6) months the Arkansas Department of Correction has failed to pay county governments millions of dollars for state prisoners backlogged into the county jails; that counties are in desperate need of additional revenues to maintain criminal detention facilities; that without additional revenues, the county criminal detention facilities will begin to release dangerous prisoners from custody and threaten the public safety; and that unless this act goes into effect immediately those additional revenues will not be available to the county governments. 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. 1373, § 2: Mar. 29, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that questions have arisen regarding the interpretation of Act 1188 of 2003; that the fiscal burdens of incarcerating prisoners in city and county jails are increasing; and that this act is immediately necessary in order to provide financial relief to defray the cost of city and county prisoners. 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. 177, § 15: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this bill affects the structure of the Arkansas District Judge Retirement System and the Arkansas Public Employees' Retirement System and the ideal time to make revisions to the retirement systems is at the beginning of the state's fiscal year. Therefore, an emergency is declared to exist and this act being necessary for the preservation of public peace, health, and safety shall become effective on July 1, 2007.

Acts 2007, No. 663, § 56: Jan. 1, 2012.

Acts 2009, No. 209, § 3: July 1, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the increasing costs of incarcerating or otherwise keeping prisoners in county jails creates an economic hardship; that maximum fines allowed by statute for convicted persons are too low; and that this act is immediately necessary because county jails are overcrowded. 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 July 1, 2009.”

Acts 2011, No. 1191, § 18: Jan. 1, 2012. “The effective date of Section 18 [17] of this act is January 1, 2012.”

16-17-101. [Repealed.]

Publisher's Notes. This section, concerning agreements by municipalities to be served by a single judge, was repealed by Acts 2003, No. 1185, § 102, effective January 1, 2005. The section was derived from Acts 1975 (Extended Sess. 1976), No. 1085, §§ 1-4; A.S.A. 1947, §§ 22-703.1 — 22-703.4; reen. Acts 1987, No. 871, §§ 1-4.

16-17-102. Exchange of jurisdictions by district court judges.

  1. District judges may temporarily exchange districts by joint order entered of record in their respective courts. They may hold court for each other for such length of time as may seem practicable and for the best interest of their respective courts.
  2. District judges exchanging jurisdictional authority or districts shall have the same power or authority, holding courts for each other, as the district judge for the district in which the court or courts shall be held.
  3. No city or county shall be held liable for nor shall incur any expense whatsoever for any special pay or travel costs arising out of any exchange of judicial districts between district judges.

History. Acts 1961, No. 88, §§ 1-3; A.S.A. 1947, §§ 22-748 — 22-750; Acts 2003, No. 1185, § 103.

Effective Dates. Acts 2003, No. 1185, § 103: Jan. 1, 2005, by its own terms.

16-17-103. Residency requirement of judges.

The judge of a district court shall be a qualified elector within the geographical area from which he or she is chosen.

History. Acts 1963, No. 21, § 1; A.S.A. 1947, § 22-704.3; Acts 2003, No. 1185, § 104.

Effective Dates. Acts 2003, No. 1185, § 104: Jan. 1, 2005, by its own terms.

16-17-104. Law license requirement for district judges.

District judges shall have been licensed attorneys of this state for at least four (4) years immediately preceding the date of assuming office.

History. Acts 1963, No. 538, § 1; 1967, No. 151, § 1; 1969, No. 51, § 1; 1981, No. 640, § 1; A.S.A. 1947, § 22-704.4; Acts 2003, No. 1185, § 105.

Effective Dates. Acts 2003, No. 1185, § 105: Jan. 1, 2005, by its own terms.

Case Notes

Cited: Lawson v. City of Mammoth Spring ex rel. Smith, 287 Ark. 12, 696 S.W.2d 712 (1985).

16-17-105. [Repealed.]

Publisher's Notes. This section, concerning the vacancy or inability of a judge to serve in the municipal courts, was repealed by Acts 2003, No. 1185, § 106 effective January 1, 2005. The section was derived from Acts 1971, No. 102, § 1; 1973, No. 40, § 1; A.S.A. 1947, §§ 22-705.1, 22-705.2.

16-17-106. Deputy district court clerks generally.

    1. The judge of the district court of any city in this state may, with the approval of the governing body of the city, appoint one (1) or more deputy district court clerks to serve under the judge's supervision.
    2. The deputy district court clerk employed by a city or county is governed by the employee handbook and policies of the city or county.
    3. If a deputy district court clerk is employed by more than one (1) city or county, then the employing cities, counties, or both, shall determine by written agreement the apportionment of expenses and the applicable employee handbook and policies.
    4. The district court judge shall ensure compliance with the applicable employee handbook, policies, procedures, practices, ordinances, and resolutions of the city or county, or both, consistent with Canon 2 of the Arkansas Code of Judicial Conduct.
    1. The salary of a deputy district court clerk may be less than, but not more than, the salary paid to the district court clerk.
    2. The salary designated for the office of district court clerk may be apportioned by the city council between and among the district court clerks and any deputy district court clerks.
  1. A deputy district court clerk may perform all duties and exercise all powers granted to the district court clerk and shall post bond in the same manner and amount as required of the district court clerk.

History. Acts 1971, No. 157, § 1; A.S.A. 1947, § 22-713.1; Acts 2015, No. 587, § 1.

Amendments. The 2015 amendment inserted “district” in the section heading; substituted “deputy district court clerk” for “deputy clerk” or a variant throughout the section; redesignated former (a) as (a)(1); substituted “judge's supervision” for “supervision of the district court clerk” at the end of (a)(1); added (a)(2) through (4); redesignated former (b) as (b)(1) and (2); substituted “any deputy district court clerks” for “any or all of the deputies” at the end of (b)(2); and substituted “may” for “are empowered to” in (c).

16-17-107. [Repealed.]

Publisher's Notes. This section, concerning municipal court magistrates, was repealed by Acts 2003, No. 1185, § 107. The section was derived from Acts 1983, No. 759, §§ 1, 2; A.S.A. 1947, §§ 22-766, 22-766.1; Acts 1987, No. 979, § 1.

16-17-108. Salaries of personnel and other requirements of various district courts.

  1. Unless otherwise provided by law, the salaries of the judges and other personnel of the various district courts shall be established as follows:
      1. The Arkansas County District Court — Northern District Judge shall receive an annual salary of not less than thirty-five thousand dollars ($35,000) nor more than fifty thousand dollars ($50,000), the district court clerk shall receive an annual salary of not less than thirteen thousand eight hundred thirty-four dollars and ninety-two cents ($13,834.92) nor more than forty-four thousand dollars ($44,000), and the deputy court clerk shall receive an annual salary of not less than eleven thousand four hundred seventy-five dollars ($11,475) nor more than thirty-one thousand dollars ($31,000).
      2. The salaries shall be as determined by the governing body of the City of Stuttgart and the Arkansas County Quorum Court and paid one-half (½) by the city and one-half (½) by the county;
    1. The Arkansas County District Court — Southern District Judge shall receive an annual salary of not less than twenty-five thousand dollars ($25,000) nor more than fifty thousand dollars ($50,000), the district court clerk shall receive an annual salary of not less than twenty thousand dollars ($20,000) nor more than thirty-nine thousand dollars ($39,000), and the deputy clerk shall receive an annual salary of not less than twenty-three thousand dollars ($23,000) nor more than thirty-one thousand dollars ($31,000). The salaries shall be determined by the governing body of the City of DeWitt and the Arkansas County Quorum Court and paid one-half (½) by the city and one-half (½) by the county;
      1. The Ashley County District Court — Crossett Department Clerk shall receive an annual salary of not less than fifteen thousand dollars ($15,000) nor more than thirty-five thousand dollars ($35,000).
      2. The salary shall be in an amount within the range prescribed in this subdivision (a)(3), as agreed upon by the Ashley County Quorum Court and the governing body of the City of Crossett;
      1. The Ashley County District Court — Hamburg Department Clerk shall receive an annual salary of not less than fifteen thousand dollars ($15,000) nor more than thirty-five thousand dollars ($35,000).
      2. The salary shall be in an amount within the range prescribed in this subdivision (a)(4), as agreed upon by the Ashley County Quorum Court and the governing body of the City of Hamburg;
    2. The Baxter County District Court Clerk shall receive compensation in an amount as may be provided by the City of Mountain Home and the Baxter County Quorum Court. The salary shall be paid one-half (½) by the City of Mountain Home and one-half (½) by Baxter County;
      1. The Calhoun County District Court Clerk shall receive an annual salary of not less than twelve thousand dollars ($12,000) nor more than twenty-four thousand dollars ($24,000), as may be determined by the Hampton City Council and the Calhoun County Quorum Court.
      2. The salary shall be paid by the City of Hampton and Calhoun County in equal monthly installments;
    3. The Camden District Court Judge shall receive an annual salary of not less than thirty thousand dollars ($30,000) nor more than fifty thousand dollars ($50,000) to be paid by the City of Camden and Ouachita County;
        1. The Chicot County District Court — Dermott Department Clerk shall receive an annual salary of not less than fourteen thousand dollars ($14,000) nor more than thirty thousand dollars ($30,000).
        2. However, the district court clerk's position may be a full-time or part-time position.
      1. The salary shall be in an amount within the range prescribed in subdivision (a)(8)(A)(i) of this section as agreed upon by the Chicot County Quorum Court and the governing body of the City of Dermott.
      2. The salary of the district court clerk shall be paid as follows:
        1. Fifty percent (50%) to be paid by the City of Dermott; and
        2. Fifty percent (50%) to be paid by Chicot County;
      1. The Chicot County District Court — Eudora Department Clerk shall receive an annual salary of not less than fourteen thousand dollars ($14,000) nor more than thirty thousand dollars ($30,000).
      2. The salary shall be in an amount within the range prescribed in subdivision (a)(9)(A) of this section as agreed upon by the Chicot County Quorum Court and the governing body of the City of Eudora.
      3. The salary of the district court clerk shall be paid as follows:
        1. Fifty percent (50%) to be paid by the City of Eudora; and
        2. Fifty percent (50%) to be paid by Chicot County;
        1. The Chicot County District Court — Lake Village Department Clerk shall receive an annual salary of not less than fourteen thousand dollars ($14,000) nor more than thirty thousand dollars ($30,000).
        2. If authorized by the governing body of the City of Lake Village and the Chicot County Quorum Court, the district court judge shall be authorized to employ a full-time or part-time deputy district court clerk at an annual salary of not less than five thousand dollars ($5,000) nor more than twenty-three thousand dollars ($23,000).
        3. The salaries shall be in an amount within the range prescribed in this subdivision (a)(10)(A), as agreed upon by the Chicot County Quorum Court and the governing body of the City of Lake Village.
      1. The salary of the district court clerk shall be paid as follows:
        1. Fifty percent (50%) to be paid by the City of Lake Village; and
        2. Fifty percent (50%) to be paid by Chicot County;
    4. The Clark County District Court Clerk shall receive an annual salary of not less than thirty-five thousand dollars ($35,000) nor more than forty-five thousand dollars ($45,000), to be established annually by the Clark County Quorum Court. Upon approval by the Clark County Quorum Court, the Clark County District Court Judge may appoint one (1) deputy district court clerk to receive a salary as established by the Clark County Quorum Court;
      1. The Clay County District Court Judge shall receive an annual salary of not less than seventeen thousand dollars ($17,000) nor more than fifty thousand dollars ($50,000), to be paid, as well as other current benefits, in equal monthly installments by Clay County.
      2. Fifty percent (50%) of the amount shall be reimbursed by the City of Corning, the City of Piggott, and the City of Rector at eighteen and five-tenths percent (18.5%), eighteen and five-tenths percent (18.5%), and thirteen percent (13%), respectively, to the county treasury.
      3. The clerks of the respective district courts shall receive an annual salary of not less than four thousand five hundred dollars ($4,500) nor more than eighteen thousand dollars ($18,000), to be paid, as well as other current benefits, in equal monthly installments by Clay County.
      4. Fifty percent (50%) of the amount shall be reimbursed by the respective cities;
    5. The Cleveland County District Court Clerk shall receive an annual salary of not less than twelve thousand dollars ($12,000) nor more than twenty-four thousand dollars ($24,000), as may be determined by the Rison City Council and the Cleveland County Quorum Court;
    6. The Columbia County District Court Judge shall receive an annual salary of not less than twenty-four thousand dollars ($24,000) nor more than fifty thousand dollars ($50,000). Any salaries paid over the minimum salaries set in this subdivision (a)(14) shall be paid only upon the approval of the governing bodies of the City of Magnolia and Columbia County;
      1. The Conway County District Court Judge shall receive an annual salary of not less than thirty-two thousand five hundred dollars ($32,500) nor more than forty-five thousand dollars ($45,000).
      2. However, the salary may be increased by such an amount as may be agreed to by the Conway County Quorum Court and the governing body of the City of Morrilton by ordinances adopted by their respective bodies;
      1. The Craighead County District Court Judge shall maintain dockets and hold court, as deemed necessary, in each of the county seats of Craighead County and may establish dockets and hold court in other cities and towns in Craighead County, as deemed necessary by ordinance adopted by the Craighead County Quorum Court.
      2. Necessary expenses appropriated for the Craighead County District Court shall be apportioned among and paid to the county from the respective cities of the first class and cities of the second class, incorporated towns, and the government of Craighead County as a prorated amount based on the number of cases filed from each of the towns and cities and the county during the preceding calendar year;
      1. The Cross County District Court Judge shall receive an annual salary of not less than thirty-three thousand dollars ($33,000) nor more than forty-four thousand dollars ($44,000).
      2. This salary and the salaries of all court employees shall be as determined by the governing body of the City of Wynne;
    7. The Dallas County District Court Clerks shall receive an annual salary of not less than fifteen thousand dollars ($15,000) nor more than twenty-five thousand dollars ($25,000), as may be determined by the Fordyce City Council and the Dallas County Quorum Court, and the salaries shall be paid by the City of Fordyce and Dallas County in equal monthly installments;
      1. The Desha County District Court — Dumas Department Clerk shall receive an annual salary of not less than eighteen thousand dollars ($18,000) nor more than thirty thousand dollars ($30,000), and the deputy district clerk shall receive an annual salary of not less than fourteen thousand five hundred dollars ($14,500) nor more than twenty-eight thousand dollars ($28,000).
      2. The salary shall be paid one-half (½) by the Desha County Quorum Court and one-half (½) by the City of Dumas and shall be determined by the Desha County Quorum Court and the governing body of the City of Dumas;
    8. The Desha County District Court — McGehee Department Clerk shall be employed and paid by the City of McGehee at such a salary as the governing body of the City of McGehee shall determine;
    9. The East Camden District Court Judge shall receive an annual salary of not less than three thousand eight hundred fifty-nine dollars ($3,859) nor more than twenty-three thousand dollars ($23,000), to be paid by the City of East Camden;
    10. The Washington County District Court — Elkins Department Clerk shall receive an annual salary of not less than ten thousand dollars ($10,000) nor more than fifty thousand dollars ($50,000);
      1. The Franklin County District Court — Charleston District Judge shall receive an annual salary of not less than ten thousand dollars ($10,000) nor more than forty thousand dollars ($40,000).
      2. The salaries and costs may be set and the payment may be apportioned by agreement between the governing body of the City of Charleston and the Franklin County Quorum Court;
      1. The Franklin County District Court — Ozark District Judge shall receive an annual salary of not less than twenty-two thousand six hundred dollars ($22,600) nor more than fifty thousand dollars ($50,000).
      2. The salary and costs may be set and the payment of the salary and costs may be apportioned by agreement between the governing body of the City of Ozark and the Franklin County Quorum Court;
        1. The Fulton County District Court Judge shall receive an annual salary of not less than twenty-two thousand dollars ($22,000) nor more than forty-five thousand dollars ($45,000).
        2. The annual salary of the Fulton County District Court Clerk shall be not less than seventeen thousand seven hundred forty-eight dollars ($17,748) nor more than thirty-five thousand dollars ($35,000).
        1. The expense of salaries, along with all other necessary and customary expenses of the court, shall be shared by Fulton County, the City of Salem, and the City of Mammoth Spring, based on a percentage of the actual number of cases handled through the court for each governmental entity.
        2. The percentage shall be determined annually by dividing the total number of cases handled by the district court into the number of cases handled annually for each of the aforementioned governmental entities.
        3. On January 1 of each year, each share shall be estimated based on the number of cases handled by the district court for each of the respective governmental entities for the preceding year.
        4. However, on December 31 of each year, each share shall be adjusted to reflect the actual percentage for each governmental entity for that year based on the actual case load.
      1. The salaries and expenses shall be paid in equal monthly installments by Fulton County, and the City of Salem and the City of Mammoth Spring shall reimburse the county on a monthly basis for their respective shares of salaries and expenses;
      1. The Garland County District Court Judges, Departments 1 and 2, each shall receive an annual salary of not less than sixty-five thousand dollars ($65,000) nor more than ninety-five thousand dollars ($95,000), and the Garland County District Court Clerk shall receive an annual salary of not less than twenty-six thousand dollars ($26,000) nor more than sixty-eight thousand four hundred dollars ($68,400).
      2. The salaries shall be determined by the governing body of the City of Hot Springs and the Garland County Quorum Court;
      1. The Grant County District Court Clerk shall receive an annual salary of not less than twenty-one thousand dollars ($21,000) nor more than thirty-six thousand dollars ($36,000), as approved by the Grant County Quorum Court.
      2. The district court clerk's salary shall be paid as follows:
        1. Twenty-seven percent (27%) to be paid by the City of Sheridan; and
        2. Seventy-three percent (73%) to be paid by Grant County;
      1. The Greene County District Court — Paragould District Clerk shall receive an annual salary of not less than nineteen thousand eight hundred fifty-six dollars ($19,856) nor more than fifty thousand dollars ($50,000), the chief deputy district court clerk shall receive an annual salary of not less than sixteen thousand six hundred twenty-four dollars ($16,624) nor more than forty thousand dollars ($40,000), and the deputy district court clerk shall receive an annual salary of not less than thirteen thousand three hundred fourteen dollars ($13,314) nor more than thirty-five thousand dollars ($35,000).
      2. The salaries shall be determined by the Greene County Quorum Court and the governing body of the City of Paragould and shall be paid in twelve (12) equal monthly installments;
      1. The Hempstead County District Court Clerk shall receive an annual salary of not less than thirty-six thousand dollars ($36,000) nor more than forty-five thousand dollars ($45,000).
      2. The amount of the salary shall be determined by agreement between the governing body of the City of Hope and the Hempstead County Quorum Court;
    11. The Hot Spring County — Malvern Department District Court Judge shall be entitled to an additional deputy district court clerk whose salary shall be determined by the governing body of the City of Malvern and the Hot Spring County Quorum Court, and the salary shall be paid by the city and county in the same proportion as the city and county shared in the revenues generated by the court in the previous year;
        1. The Howard County District Court Judge shall have an annual salary of not less than twenty-one thousand dollars ($21,000).
        2. The Howard County District Court Clerk shall receive an annual salary of not less than twelve thousand dollars ($12,000) nor more than nineteen thousand dollars ($19,000), unless provided for otherwise by ordinance of the Howard County Quorum Court and the governing body of the City of Nashville.
      1. The salaries are to be paid one-half (½) by the City of Nashville and one-half (½) by Howard County;
      1. The Izard County District Court Judge shall receive an annual salary of not less than ten thousand two hundred dollars ($10,200) nor more than forty-two thousand dollars ($42,000), and the district court clerk shall receive an annual salary of not less than seven thousand four hundred dollars ($7,400) nor more than thirty-three thousand dollars ($33,000).
      2. However, the salaries shall be subject to the approval of the Melbourne City Council and the Izard County Quorum Court;
      1. The Jackson County District Court Judge shall receive an annual salary of not less than thirty-five thousand dollars ($35,000) nor more than fifty-five thousand dollars ($55,000).
      2. The salary of the district court judge shall be paid one-half (½) by the City of Newport and one-half (½) by Jackson County;
    12. The Jacksonville District Court Clerk shall receive an annual salary of not less than thirty-three thousand nine hundred thirty-seven dollars ($33,937) nor more than thirty-six thousand nine hundred dollars ($36,900);
      1. The Newton County District Court — Jasper Department District Court Clerk shall receive an annual salary of not less than twenty-eight thousand six hundred dollars ($28,600) nor more than thirty-five thousand dollars ($35,000).
      2. All salaries and all other expenses of the office shall be paid one hundred percent (100%) by the county;
    13. The Jefferson County District Court clerks for Division 1 and Division 2 shall receive annual salaries of not less than thirty-one thousand dollars ($31,000) nor more than fifty-four thousand dollars ($54,000), as may be approved by the Jefferson County Quorum Court and the governing body of the City of Pine Bluff;
      1. The Johnson County District Court Judge shall receive an annual salary of not less than thirty thousand dollars ($30,000) nor more than forty thousand dollars ($40,000).
      2. This expense, as well as all other expenses related to the operation of the Johnson County District Court, is to be divided among the county and all cities within the county based on the percentage of the total fine money collected during the year by each participating entity;
      1. The Lafayette County — Lewisville Department District Court Clerk shall receive an annual salary of not less than twenty-two thousand dollars ($22,000) nor more than thirty-five thousand dollars ($35,000), and the City of Lewisville shall pay to the district court clerk at least eight thousand eight hundred dollars ($8,800) but not more than fourteen thousand dollars ($14,000) of the salary, and Lafayette County shall pay to the district court clerk not less than thirteen thousand two hundred dollars ($13,200) but not more than twenty-one thousand dollars ($21,000) of the salary.
      2. The amount and manner of payment of the salary of the district court clerk may be established within the ranges specified in subdivision (a)(38)(A) of this section by mutual agreement of the Lafayette County Quorum Court and the Lewisville City Council, as well as the amount and manner of payment of all other expenses of operation of the Lafayette County — Lewisville Department District Court;
      1. The Lawrence County District Court — Hoxie Department Judge shall receive an annual salary of not less than thirteen thousand seven hundred forty dollars ($13,740) nor more than twenty thousand dollars ($20,000), to be paid by the City of Hoxie and approved by its governing body.
      2. The Lawrence County District Court — Walnut Ridge Department Judge shall receive an annual salary of not less than fifty-one thousand dollars ($51,000) nor more than sixty thousand dollars ($60,000), one-half (½) of the salary to be paid by the City of Walnut Ridge and the other one-half (½) to be paid by Lawrence County;
      1. The Little River County District Court Judge shall receive an annual salary of not less than thirty-two thousand eight hundred dollars ($32,800) nor more than sixty-five thousand dollars ($65,000), as determined by the governing body of the City of Ashdown and the Little River County Quorum Court.
      2. The salary shall be paid sixty-two percent (62%) by Little River County and thirty-eight percent (38%) by the City of Ashdown, unless otherwise agreed by the Little River County Quorum Court and the governing body of the City of Ashdown;
    14. The Logan County District Court — Northern District Judge shall receive an annual salary of not less than twenty-two thousand dollars ($22,000) nor more than forty thousand dollars ($40,000), as may be determined by the Paris City Council and the Logan County Quorum Court and shall be payable one-half (½) by the City of Paris and one-half (½) by Logan County and shall be paid in twelve (12) equal monthly installments;
    15. The Logan County District Court — Southern District Judge shall receive an annual salary of not less than twenty-two thousand dollars ($22,000) nor more than forty thousand dollars ($40,000), as may be determined by the Booneville City Council and the Logan County Quorum Court and shall be payable one-half (½) by the City of Booneville and one-half (½) by Logan County and shall be paid in twelve (12) equal monthly installments;
    16. The Lonoke County District Court — Northern District Cabot Department Judge shall receive an annual salary of not less than twenty-five thousand dollars ($25,000) nor more than fifty thousand dollars ($50,000), as may be determined by the governing body of the City of Cabot;
    17. The Lonoke County District Court — Northern District Ward Department Judge shall receive an annual salary of not less than twenty-five thousand dollars ($25,000) nor more than fifty thousand dollars ($50,000), as may be determined by the governing body of the City of Ward;
    18. The Lonoke County District Court — Southern District Carlisle Department Judge shall receive an annual salary of not less than four thousand five hundred dollars ($4,500) nor more than twenty-five thousand dollars ($25,000);
    19. The Lonoke County District Court — Southern District England Department Judge shall receive an annual salary of not less than four thousand five hundred dollars ($4,500) nor more than twenty-five thousand dollars ($25,000);
      1. The Lonoke County District Court — Southern District Lonoke Department Judge shall receive an annual salary of not less than five thousand dollars ($5,000) nor more than twenty-five thousand dollars ($25,000), as may be determined by the governing body of the City of Lonoke.
        1. Necessary expenses appropriated by the City of Lonoke for the district court shall be apportioned among and paid to the City of Lonoke by the cities of the first class, cities of the second class, incorporated towns, and the county as a prorated amount based on the number of cases filed from each of the cities of the first class, cities of the second class, incorporated towns, and the county during the preceding year.
        2. An itemized bill shall be prepared by the City of Lonoke fixing the apportioned expenses, and payment shall be made no later than sixty (60) days following the submission by the City of Lonoke of the bills;
      1. The Maumelle District Court Clerk shall receive an annual salary of not less than seventeen thousand five hundred dollars ($17,500) nor more than fifty thousand dollars ($50,000).
      2. The salary of the district court clerk shall be as determined by the City of Maumelle Board of Directors;
      1. The Miller County District Court shall have two (2) departments, the City of Texarkana Department and the Miller County Department.
      2. The Miller County District Court — City of Texarkana Department shall hear all civil and criminal cases arising out of violations of city ordinances and those cases arising out of violations of state laws committed within the corporate limits of the City of Texarkana and all other cases in controversy arising within the corporate limits of the city within the jurisdiction of a district court as established by law. The Miller County District Court — City of Texarkana Department shall have a chief district court clerk whose salary shall be paid by the City of Texarkana in an amount to be determined by its governing body.
      3. The Miller County District Court — Miller County Department shall hear all civil and criminal cases arising out of violations of any of the laws of the state committed outside the corporate limits of the City of Texarkana and all other cases in controversy arising outside the corporate limits of the city within the jurisdiction of a district court as established by law. The Miller County District Court — Miller County Department shall have a chief district court clerk whose salary shall be paid by Miller County in an amount to be determined by its quorum court;
    20. The Monroe County District Court — Brinkley Department Judge shall receive an annual salary of not less than ten thousand two hundred dollars ($10,200) nor more than thirty-five thousand dollars ($35,000), and the Monroe County District Court — Brinkley Department Court Clerk shall receive an annual salary of not less than ten thousand four hundred eighty-eight dollars ($10,488) and not more than twenty-seven thousand five hundred dollars ($27,500);
    21. The Monroe County District Court — Clarendon Department Judge shall receive an annual salary of not less than four thousand eight hundred dollars ($4,800) and the Monroe County District Court — Clarendon Department Clerk shall receive an annual salary of not less than eight thousand nine hundred eighty-eight dollars ($8,988);
      1. The Montgomery County District Court Judge shall receive an annual salary of not less than seventeen thousand dollars ($17,000) nor more than thirty thousand dollars ($30,000) to be paid in equal monthly installments.
      2. The district court clerk shall receive an annual salary of not less than nineteen thousand dollars ($19,000) nor more than twenty-seven thousand dollars ($27,000), and the district court secretary shall receive an annual salary of not less than sixteen thousand dollars ($16,000) nor more than twenty-two thousand dollars ($22,000).
      3. Montgomery County shall pay eighty percent (80%) of the salaries, and the City of Mt. Ida shall pay twenty percent (20%) of the salaries;
      1. The Nevada County District Court Clerk salary shall be not less than twelve thousand dollars ($12,000) nor more than eighteen thousand dollars ($18,000).
      2. The salary for the district court clerk shall be established within these ranges by the Nevada County Quorum Court and the Prescott City Council, and the salary shall be paid sixty percent (60%) by Nevada County and forty percent (40%) by the City of Prescott. The salary shall be paid in equal monthly installments;
    22. [Repealed.]
      1. The North Little Rock District Court Judges, Divisions 1 and 2, are each authorized to employ a chief district court clerk, whose salary shall be at least thirty-two thousand five hundred dollars ($32,500) but not more than fifty-five thousand five hundred dollars ($55,500), a deputy district court clerk, whose salary shall be at least thirty-two thousand dollars ($32,000) but not more than forty-two thousand five hundred dollars ($42,500), and two (2) district court clerks, whose salaries shall each be at least twenty thousand dollars ($20,000) but not more than forty thousand dollars ($40,000).
      2. The North Little Rock District Court Judges, Divisions 1 and 2, subject to the approval of the governing body of North Little Rock, may each employ an additional district court clerk whose salary shall be at least twenty thousand dollars ($20,000) but not more than forty thousand dollars ($40,000);
    23. The Perry County District Court Judge shall receive an annual salary to be paid by Perry County of not less than twenty-three thousand five hundred dollars ($23,500) nor more than fifty thousand dollars ($50,000);
    24. The Pike County District Court Judge shall receive an annual salary of not less than six thousand dollars ($6,000) nor more than thirty thousand dollars ($30,000), and the district court clerk shall receive an annual salary of not less than three thousand dollars ($3,000) nor more than thirty-five thousand dollars ($35,000). Seventy-five percent (75%) of the salaries shall be paid by Pike County, and twenty-five percent (25%) shall be paid by the City of Murfreesboro;
      1. The Poinsett County District Court shall consist of five (5) departments located in Harrisburg, Lepanto, Marked Tree, Trumann, and Tyronza.
      2. All five (5) departments shall be served by one (1) judge.
      3. The salary of the district court clerk of each department will be as determined by the Poinsett County Quorum Court and the governing body of each municipality where the department is located.
      4. The salary of each district court clerk shall be payable one-half (½) by Poinsett County and one-half (½) by the municipality.
      5. Each municipality shall receive from the county each month the county's share of the district court clerk's salaries;
    25. The Polk County District Court Judge shall receive an annual salary of not less than thirty-two thousand dollars ($32,000) nor more than forty-six thousand dollars ($46,000) to be paid in equal monthly installments, with fifty-six percent (56%) to be paid by Polk County, twenty-seven percent (27%) to be paid by the City of Mena, and seventeen percent (17%) to be paid by the town of Grannis;
    26. The Pope County District Court Clerk shall receive an annual salary of not less than twenty-three thousand dollars ($23,000) nor more than forty-eight thousand dollars ($48,000), the chief deputy district court clerk of the court shall receive an annual salary of not less than eighteen thousand five hundred dollars ($18,500) nor more than thirty-nine thousand dollars ($39,000), and the deputy district court clerk of the court shall receive an annual salary of not less than sixteen thousand five hundred dollars ($16,500) nor more than thirty-two thousand dollars ($32,000);
    27. The Washington County District Court — Prairie Grove Department Clerk shall receive an annual salary of not less than twelve thousand five hundred dollars ($12,500) nor more than fifty-one thousand dollars ($51,000);
    28. The Pulaski County District Court Clerk shall receive an annual salary of not less than fifty-two thousand eight hundred sixty-eight dollars ($52,868) nor more than seventy-two thousand three hundred fifty dollars ($72,350), and the district court bailiff shall receive an annual salary of not less than thirty-two thousand dollars ($32,000) nor more than fifty-five thousand three hundred fifty-five dollars ($55,355);
      1. The Randolph County District Court Judge shall receive an annual salary of not less than nineteen thousand dollars ($19,000) nor more than forty-five thousand dollars ($45,000), and the district court clerk shall receive an annual salary of not less than six thousand dollars ($6,000) nor more than thirty-five thousand dollars ($35,000).
      2. The salaries shall be payable one-half (½) by the City of Pocahontas and one-half (½) by Randolph County and shall be payable in twelve (12) equal monthly installments;
      1. The Saline County District Court — Benton Department Clerk shall receive an annual salary of not less than thirty thousand dollars ($30,000) nor more than fifty thousand dollars ($50,000).
      2. The salary shall be as determined by the governing body of the City of Benton and the Saline County Quorum Court;
      1. The Scott County District Court Judge shall receive an annual salary of not less than twenty-seven thousand dollars ($27,000) nor more than thirty-five thousand dollars ($35,000), and the district court clerk shall receive an annual salary of not less than thirteen thousand dollars ($13,000) nor more than twenty thousand dollars ($20,000).
      2. The salaries shall be subject to the approval of the Waldron City Council and the Scott County Quorum Court and shall be paid in equal monthly installments, one-half (½) to be paid by the City of Waldron and one-half (½) to be paid by Scott County;
      1. The Searcy County District Court — Marshall Department Clerk shall receive an annual salary of not less than twenty-four thousand seven hundred twenty dollars ($24,720) nor more than thirty thousand dollars ($30,000), as determined by the Searcy County Quorum Court and the governing body of the City of Marshall by ordinances or resolutions adopted by the respective bodies.
      2. The salary of the district court clerk shall be paid fifty percent (50%) by Searcy County and fifty percent (50%) by the City of Marshall.
      3. The salary shall be paid in equal monthly installments;
      1. The Sebastian County District Court — Fort Smith District Judges, Departments 1, 2, and 3, shall jointly appoint a qualified elector of the state to serve as district court clerk.
        1. The district court clerk shall have at least five (5) years' previous experience as a court clerk or deputy court clerk or equivalent education, training, and experience as determined by the Director of Human Resources for the City of Fort Smith.
        2. Appointment and removal of the district court clerk shall be in conformance with the City of Fort Smith's current personnel policies in place at the time of appointment and removal of the district court clerk.
      2. The salaries of the district court clerk, deputy district court clerks, court personnel, and any special district court judges authorized by this subdivision (a)(67) and the operating expenses of the Sebastian County District Court — Fort Smith District shall be paid seventy percent (70%) by the City of Fort Smith and thirty percent (30%) by Sebastian County;
      1. The Sebastian County District Court — Greenwood District salaries of the district court clerk and the district court clerk's deputies shall be set by the Sebastian County Quorum Court.
      2. The salaries shall be paid ninety percent (90%) by Sebastian County and ten percent (10%) by the City of Greenwood.
      3. In order to defray the expenses of operating the Sebastian County District Court — Greenwood District, ninety percent (90%) of the Sebastian County net fines, ten percent (10%) of the City of Greenwood net fines, and fifteen percent (15%) of all other cities' net fines processed by the Sebastian County District Court — Greenwood District may or shall be deposited into a bank account entitled the “Greenwood District Court Operating Fund” to be administered by the Sebastian County District Court — Greenwood District Judge under a budget approved as follows:
        1. The district court judge shall submit a proposed annual budget to a committee composed of the members of the quorum court that represent the Greenwood District of Sebastian County;
        2. The committee shall approve the district court judge's budget or formulate a reasonable budget that shall be approved by the Sebastian County Quorum Court, unless found by a majority of the quorum court to be clearly excessive; and
        3. If funds provided from the fines as set out in this subdivision (a)(68) become insufficient or excessive, the committee shall adjust the percentage of fines on a pro rata basis to increase or decrease the funds necessary to operate the district court pursuant to the budget established in this subdivision (a)(68).
      4. The Sebastian County District Court Judge — Greenwood District shall be bonded in accordance with §§ 19-1-401 — 19-1-403;
      1. The Sevier County District Court Judge shall receive an annual salary of not less than thirty-five thousand dollars ($35,000) nor more than eighty percent (80%) of the annual salary established by law for circuit court judges.
      2. The Sevier County District Court Clerk shall have an annual salary of not less than fourteen thousand dollars ($14,000).
      3. The salaries, expenses, and operating costs of the Sevier County District Court shall be paid equally by the City of DeQueen and Sevier County;
    29. The Sharp County District Court Judge shall receive an annual salary of not less than thirty thousand dollars ($30,000) nor more than forty thousand dollars ($40,000), and the Sharp County District Court Clerk shall receive an annual salary of not less than seventeen thousand six hundred eighty dollars ($17,680) nor more than thirty-three thousand two hundred eighty dollars ($33,280), as determined by the Sharp County Quorum Court and to be paid by Sharp County;
      1. The Sherwood District Court Clerk shall receive an annual salary of not less than fifty thousand dollars ($50,000) nor more than seventy-five thousand dollars ($75,000).
      2. The salary shall be determined by the governing body of the City of Sherwood;
      1. The Stone County District Court Judge shall receive an annual salary of not less than eight thousand dollars ($8,000) nor more than thirty thousand dollars ($30,000), and the district court clerk shall receive an annual salary of not less than six thousand dollars ($6,000) nor more than twenty-three thousand dollars ($23,000).
      2. The salaries shall be subject to the approval of the Mountain View City Council and the Stone County Quorum Court;
    30. The Van Buren County District Court — Clinton Department Clerk and any district court clerk deputy salaries shall be apportioned between the county and any city in the county by agreement between the respective governing bodies;
    31. The Washington County District Court — West Fork Department annual salary for each district court clerk shall be not less than twelve thousand five hundred dollars ($12,500) nor more than sixty thousand dollars ($60,000);
    32. The White County District Court — Beebe Department Clerk shall receive an annual salary of not less than twenty-five thousand two hundred ten dollars ($25,210) nor more than forty thousand nine hundred ninety dollars ($40,990);
    33. The Woodruff County District Court Judge shall receive an annual salary of not less than eighteen thousand dollars ($18,000) nor more than thirty-six thousand dollars ($36,000);
      1. The Wrightsville District Court Clerk shall receive an annual salary of not less than ten thousand nine hundred twenty-six dollars ($10,926) nor more than twenty thousand dollars ($20,000).
      2. The salary shall be determined by the City of Wrightsville Board of Directors;
    34. The Yell County District Court — Northern District Judge shall receive an annual salary of not less than ten thousand one hundred six dollars ($10,106) nor more than twenty-one thousand six hundred forty-three dollars ($21,643), as determined by the Yell County Quorum Court; and
    35. The Yell County District Court — Southern District Judge shall receive an annual salary of not less than ten thousand one hundred six dollars ($10,106) nor more than twenty-one thousand six hundred forty-three dollars ($21,643), as determined by the Yell County Quorum Court.
  2. The local salary supplement paid to a district court judge under § 16-17-115(c) shall not be used when calculating the salary established in this section.

History. Acts 1989, No. 425, §§ 1, 2; 1989, No. 443, § 3; 1989, No. 706, § 3; 1989, No. 873, § 1; 1989 (3rd Ex. Sess.), No. 13, § 1; 1989 (3rd Ex. Sess.), No. 29, § 1; 1989 (3rd Ex. Sess.), No. 67, §§ 1-6; 1991, No. 35, § 1; 1991, No. 715, §§ 1, 4; 1991, No. 982, § 1; 1991, No. 1152, § 1; 1992 (1st Ex. Sess.), No. 3, § 1; 1992 (1st Ex. Sess.), No. 6, § 1; 1992 (1st Ex. Sess.), No. 33, §§ 1, 3; 1992 (1st Ex. Sess.), No. 39, § 1; 1993, No. 1260, § 1; 1994 (2nd Ex. Sess.), No. 29, § 4; 1995, No. 1346, § 1; 1995 (1st Ex. Sess.), No. 13, § 6; 1997, No. 424, § 1; 1997, No. 1349, § 1; 1999, No. 1470, § 1; 2001, No. 1714, § 1; 2003, No. 1475, § 1; 2005, No. 1814, § 1; 2005, No. 2194, § 1; 2005, No. 2220, § 1; 2007, No. 737, § 1; 2009, No. 1446, § 1; 2011, No. 15, § 1; 2011, No. 1191, §§ 1-17; 2013, No. 1346, § 1; 2015, No. 1064, § 1; 2015, No. 1072, § 1; 2017, No. 657, § 1; 2019, No. 786, § 1.

A.C.R.C. Notes. As amended by Acts 1989 (3rd Ex. Sess.), No. 67, former subsection (jjjj) (now (llll)) provided, in part:

“For the remainder of 1989, the salaries and expenses shall be shared as follows: Fulton County, Arkansas — 78%, the City of Salem, Arkansas — 13%, and the City of Mammoth Spring, Arkansas — 9%. On December 31, 1989, the shares shall be adjusted as set forth above based on the actual cases handled for 1989.”

As enacted, subdivision (y)(2) provided, in part:

“All cases on the docket of the Municipal Court of Jonesboro or the Lake City Branch of the Municipal Court on the effective date of this act shall continue to be on the docket and shall be heard by the Municipal Court of Craighead County.”

As enacted, former subsection (uuuu) (now (wwww)) provided, in part:

“On and after the effective date of this act, the El Dorado Municipal Court shall hereafter be known as the Union County Municipal Court.”

As enacted, former subsection (yyyy) (now (aaaaa)) provided, in part:

“The Warren Municipal Court shall hereafter be known as the Bradley County Municipal Court.”

It is not clear what is meant by the use of “may/shall” in former subsection (mm) (now (nn)).

Acts 1989, No. 873, § 3 provided:

“Except as otherwise provided in any subsection of Section 1 hereof, the provisions of this act and the salaries prescribed herein shall be retroactive to January 1, 1989.”

As amended by Acts 1995, No. 1346, § 1, subsection (mm) provided:

“The qualified electors of the City of Fort Smith shall elect, in addition to the presently elected municipal judge, an additional municipal judge for the Second Division of the Fort Smith Municipal Court. The qualified electors shall elect the judge at the general election for a four-year term.”

As amended by Acts 1995, No. 1346, § 1, subsection (iii) began:

“Retroactive to January 1, 1992.”

As amended by Acts 1995, No. 1346, § 1, subsection (yyy) provided:

“Effective immediately, the Osceola Municipal Court shall have jurisdiction over the Osceola District of Mississippi County.”

Pursuant to § 1-2-207, this section is set out above as amended by Acts 1997, No. 1349. Subsection (hhh) of this section was also amended by Acts 1997, No. 424 to read as follows:

“(hhh) Retroactive to January 1, 1995, the Magnolia Municipal Court Judge shall receive an annual salary of not less than twenty-three thousand dollars ($23,000) nor more than thirty thousand dollars ($30,000), the municipal court clerk shall receive an annual salary of not less than fourteen thousand nine hundred twenty-six dollars ($14,926) nor more than twenty-two thousand dollars ($22,000), and the deputy court clerk shall receive an annual salary of not less than thirteen thousand three hundred ninety-seven dollars ($13,397) nor more than eighteen thousand dollars ($18,000). Any salaries paid over the minimum salaries set in this subsection shall be paid only upon the approval of the governing bodies of the City of Magnolia and Columbia County.”

Acts 2003, No. 464, §§ 1-3, provided:

“Section 1. (a) Effective January 1, 2005, there is created the District Court of Marion.

“(b) The court shall be styled ‘The District Court of Marion’ and shall have all the rights and powers provided by law for other district courts of this state.

“(c) The jurisdiction of the District Court of Marion shall be county-wide.”

“Section 2. (a) At the November 2004 General Election and each four (4) years thereafter, the qualified electors of Crittenden County shall elect a judge of the Marion District Court on a non-partisan basis.

“(b) The judge of the Marion District Court shall be licensed to practice law in the State of Arkansas and shall have been admitted to practice law before the courts of the State of Arkansas for at least four (4) years prior to his or her election.

“(c) The judge of the District Court of Marion is authorized to appoint a clerk of the court who shall serve at the pleasure of the judge.”

“Section 3. The judge and clerk of the District Court of Marion shall receive a salary as determined by agreement between the governing body of the City of Marion and the Crittenden County Quorum Court, or as otherwise provided by law.”

Publisher's Notes. Former § 16-17-108, concerning salaries of personnel of various municipal courts was repealed by Acts 1989, No. 873, § 2. The former section was derived from Acts 1987, No. 870, § 5; 1987, No. 1031, § 1; 1987 (1st Ex. Sess.), No. 21, § 9; 1987 (1st Ex. Sess.), No. 54, § 9. A preceding version of the section was repealed by Acts 1987, No. 1031, § 3. That version was derived from Acts 1981, No. 710, §§ 5, 6, 8; 1983, No. 144, § 1; 1985, No. 503, §§ 2, 3; 1985, No. 541, § 1; 1985, No. 955, § 1; 1985 (1st Ex. Sess.), No. 6, § 2; A.S.A. 1947, §§ 22-704n, 22-704.1, 22-763.5, 22-763.6, 22-763.8, and 22-763.9.

Acts 1991, No. 1152, § 1 provided that, with respect to the City of Fort Smith, the Governor shall appoint a person to serve as the Second Division Municipal Judge from January 1, 1992 through December 31, 1992. The qualified electors shall elect the judge at the November 1992 general election to take office January 1, 1993 for a two-year term and thereafter at the general election for a four-year term.

Acts 1995, No. 1346, became law without the Governor's signature.

As amended in 2001, subdivision (bbbb)(2)(A) provided:

“The qualified electors of the City of Pine Bluff shall elect in addition to the presently elected municipal judge an additional municipal judge for the Second Division of the Pine Bluff Municipal Court. If it is determined by the Jefferson County Quorum Court and the governing body of the City of Pine Bluff that this additional judge is needed prior to January 1, 2001, then the Governor shall appoint a person to serve as the Second Division Municipal Judge through December 31, 2000, and the qualified electors shall elect the judge at the November 2000 General Election to take office January 1, 2001, for a four-year term.”

Amendments. The 2005 amendment by No. 1814 rewrote the last sentence in present (42).

The 2005 amendment by No. 2194 rewrote present (69).

The 2005 amendment by No. 2220 rewrote this section.

The 2007 amendment rewrote (a).

The 2009 amendment rewrote (a).

The 2011 amendment by No. 15, in (a)(85), substituted “1, 2, and 3, each” for “1 and 2” and deleted the former last sentence.

The 2011 amendment by No. 1191 increased salary ranges throughout (a)(2), (a)(6), (a)(17), (a)(39), (a)(40), (a)(42), (a)(46), (a)(54), (a)(57), (a)(61), (a)(70), (a)(72), (a)(84), (a)(89), (a)(95), and (a)(96); substituted “paid one-half (½) by the city and one-half (½) by the county” for “paid equally by the city and the county” in (a)(2); in (a)(72), inserted “by the Poinsett County Quorum Court and” and deleted “The county shall also pay one-half (½) of the expenses of all departments of the court” at the end; and added (c).

The 2013 amendment rewrote the section.

The 2015 amendment by No. 1064, in (a)(2), substituted “twenty-five thousand dollars ($25,000)” for “forty thousand dollars ($40,000)” and “twenty thousand dollars ($20,000)” for “thirty thousand dollars ($30,000)”; substituted “forty thousand dollars ($40,000)” for “thirty-five thousand dollars ($35,000)” in the second sentence of (a)(26); in (a)(29), substituted “forty thousand dollars ($40,000)” for “thirty-five thousand dollars ($35,000)” in the first sentence, and substituted “of the salary and costs” for “thereof” in the second sentence; in (a)(31), substituted “ninety-five thousand dollars ($95,000)” for “eighty-six thousand dollars ($86,000)” and “fifty-seven thousand dollars ($57,000)” for “fifty-two thousand dollars ($52,000)”; substituted “fifty thousand dollars ($50,000)” for “forty-five thousand dollars ($45,000)” in (a)(41); substituted “twenty-five thousand dollars ($25,000)” for “nineteen thousand dollars ($19,000)” in (a)(53) and (a)(54); substituted “thirty thousand dollars ($30,000)” for “fifteen thousand dollars ($15,000)” in the first sentence of (a)(70); in (a)(73), substituted “forty-two thousand dollars ($42,000)” for “forty thousand dollars ($40,000)” and “thirty-one thousand five hundred dollars ($31,500)” for “twenty-seven thousand five hundred dollars ($27,500)”; and, in (a)(79), substituted “fifty two thousand eight hundred sixty-eight dollars ($52,868)” for “thirty-seven thousand dollars ($37,000)” and “fifty-one thousand one hundred eighty dollars ($51,180)” for “forty-eight thousand three hundred dollars ($48,300).”

The 2015 amendment by No. 1072 inserted designation (a)(84)(A); in (a)(84)(A), substituted “shall jointly appoint” for “each shall appoint” and inserted “of the state”; inserted (a)(84)(B); inserted designation (a)(84)(C); and in (a)(84)(C), substituted “clerk, deputy district court clerks, court personnel, and” for “clerks and.”

The 2017 amendment rewrote (a); deleted former (b); and redesignated former (c) as (b).

The 2019 amendment rewrote (a)(1)(A), (a)(2), (a)(19)(A), (a)(22), (a)(23)(A), (a)(24)(A), (a)(26)(A), (a)(28)(A), (a)(29)(A), (a)(35)(A), (a)(36), (a)(61), (a)(66)(A), (a)(70), and (a)(74); and repealed (a)(54).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Miscellaneous, 5 U. Ark. Little Rock L.J. 175.

Case Notes

Construction with Other Laws.

Residency in the City of Pine Bluff is required to be eligible as a nominee for Pine Bluff second-division municipal judge, notwithstanding that § 16-17-120 [repealed] states a general intent to abandon the city-residency requirement for municipal-court-judge candidates and electors, since this section, specifically states that only the qualified electors of the city of Pine Bluff may elect an additional municipal judge for the Second Division of the Pine Bluff Municipal Court and Ark. Const., Art. 19, § 3, provides that one must possess the qualifications of an elector to be elected to an office. Benton v. Gunter, 342 Ark. 543, 29 S.W.3d 719 (2000).

County Liability for Salary.

The trial court's decision that Searcy County was liable to pay one-half of the minimum salary requirements of the Marshall, Arkansas, municipal court judge and clerk under former similar section was affirmed, despite the appellants' contention that such a requirement deprived the rural citizens of Searcy County of equal protection and due process under the law, where that contention was raised for the first time on appeal. Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984).

Election of Judges.

The appropriate procedure and deadline for filing as an independent candidate for the office of municipal judge is governed by § 7-7-103. Oliver v. Simons, 318 Ark. 402, 885 S.W.2d 859 (1994).

Cited: Williams v. Butler, 802 F.2d 296 (8th Cir. 1986).

16-17-109 — 16-17-113. [Repealed.]

A.C.R.C. Notes. The repeal of § 16-17-110 by Acts 1995, No. 1256 has been deemed to supersede its amendment by Acts 1995, No. 1032. Acts 1995, No. 1032, § 9, purported to repeal nonexistent § 16-17-110(c), and subdivision (b)(2)(A)(ii) was amended by Acts 1995, No. 1032, § 2, to read as follows:

“(b)(2)(A)(ii) Sixteen and seven-tenths percent (16.7%) to the Public Health Fund.”

Publisher's Notes. These sections, concerning additional costs upon conviction of drunkenness or driving while under the influence of intoxicants; disposition of additional court costs imposed by § 5-65-113 [repealed]; additional court costs for municipal court administration; additional costs for benefit of judicial retirement system; additional costs for administration of justice purposes; and intergovernmental agreements, were repealed by Acts 1995, No. 1256, § 20, as amended by Acts 1995 (1st Ex. Sess.), No. 13, § 4. They were derived from the following sources:

16-17-109. Acts 1951, No. 275, §§ 1-3; 1971, No. 290, § 1; A.S.A. 1947, §§ 22-706.1 — 22-706.3; Acts 1991, No. 904, §§ 5, 20.

16-17-110. Acts 1983, No. 918, § 1; 1995, No. 1032, §§ 2,9; A.S.A. 1947, § 75-2531.

16-17-111. Acts 1981, No. 942, §§ 1, 2; 1983, No. 860, §§ 1, 2; 1985, No. 246, § 1; A.S.A. 1947, §§ 22-706.4, 22-706.5; Acts 1987, No. 580, § 1; 1987 (1st Ex. Sess.), No. 49, §§ 1, 2; 1987 (1st Ex. Sess.), No. 57, §§ 1, 2; 1991, No. 357, § 1; 1991, No. 904, §§ 6, 20.

16-17-112. Acts 1983, No. 621, §§ 1-3; A.S.A. 1947, §§ 22-706.6 — 22-706.8; Acts 1987, No. 139, § 1.

16-17-113. Acts 1983, No. 860, § 3; A.S.A. 1947, § 22-706.9; Acts 1987, No. 853, § 2; 1991, No. 904, §§ 7, 20.

For present law, see § 16-10-301 et seq.

16-17-114. Restriction on receipt of fees and costs by constables in certain localities.

  1. This section shall apply to:
    1. All cities in which there are located, or may be located, state-supported educational institutions with campus enrollments of no fewer than one thousand five hundred (1,500) students; and
    2. The townships in which those cities are situated.
  2. No constable nor deputy constable shall be allowed to receive, and shall not receive, any fee, costs, penalty, payment, or compensation of any kind or nature in any criminal suit, prosecution, or arrest, or in any criminal proceeding whatsoever. However, nothing in this section shall be construed to prohibit the payment to constables of the fees now provided by law in civil cases.
  3. Any constable or deputy constable who violates the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be subject to a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100) for each offense. Each criminal suit, prosecution, arrest, or proceeding in which a constable or deputy constable accepts payment or compensation shall constitute a separate offense.
  4. In addition to the penalty provided in subsection (c) of this section, a violation of this section shall constitute malfeasance in office punishable as provided by law.

History. Acts 1941, No. 80, §§ 1-3; A.S.A. 1947, §§ 22-716 — 22-718; Acts 2003, No. 1185, § 108.

Effective Dates. Acts 2003, No. 1185, § 108: Jan. 1, 2005, by its own terms.

16-17-115. County's, town's, and city's portion of district court expenses — Appropriation.

  1. Except as authorized otherwise, the county in which a district court is held shall pay one-half (½) of the salaries of the district court judge and each chief district court clerk of any district court organized in that county under § 16-17-901 et seq., and the quorum court in a county subject to § 16-17-901 et seq. at its annual meeting shall make an appropriation of a sum sufficient to pay the county's proportion of the expenses of any such district court. These payments shall be made out of the general revenues of the county.
      1. Except as authorized otherwise, the town or city in which a district court is held shall pay:
        1. One-half (½) of the salaries of the district court judge and the chief district court clerk; and
        2. The operational expenses of the district court organized in that town or city under § 16-17-901 et seq. unless otherwise agreed to by the political subdivisions that contribute to the expenses of the district court.
      2. The governing body of the town or city in a town or city subject to § 16-17-901 et seq. shall make at its annual meeting an appropriation of a sum sufficient to pay the town's or city's proportion of the salaries and operational expenses of the district court.
    1. These payments shall be made out of the general revenues of the town or city.
    1. Any town or city operating a city court on December 31, 2011, that becomes a department of a district court shall continue to pay the amount paid as the base salary of the city court judge to the district court judge who has assumed the responsibility of attending the former city court.
    2. The base salary to be paid to the district court judge under subdivision (c)(1) of this section in calendar year 2012 and subsequent years shall be the amount paid by the city or town to the city court judge for the calendar year 2011.
    1. A town or city operating a city court on December 31, 2011, that becomes a department of district court shall continue to pay the salary of the district court clerk and provide for the operational expenses of that department of district court unless otherwise agreed to by the political subdivisions that contribute to the expenses of the district court.
    2. Subdivision (d)(1) of this section does not apply to any town or city that has abolished a department of district court pursuant to state law.
  2. A district court operated solely by the county shall have the salaries and operational expenses of that district court paid solely by the county unless otherwise agreed to by the political subdivisions that contribute to the expenses of the district court.

History. Acts 1951, No. 45, § 1; A.S.A. 1947, § 22-720.1; Acts 1987, No. 431, § 7; 2003, No. 1185, § 109; 2007, No. 663, § 35; 2015, No. 530, § 1.

A.C.R.C. Notes. The Arkansas District Judge Retirement System, § 24-8-801 et seq. referred to in (c)(3) was repealed by Acts 2009, No. 654, § 2.

Amendments. The 2007 amendment inserted “town's, and city's” in the section heading; rewrote (a); added (b) through (e); and made related changes.

The 2015 amendment deleted “district court cost fund and” preceding “general revenues” in (a) and (b)(2); deleted (c)(3); inserted “district” preceding “court paid” in (e); inserted “court” preceding “judge” and “district” preceding “court clerk” throughout the section; and made stylistic changes.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Case Notes

Mandamus.

Circuit court properly issued a writ of mandamus ordering a county to abide by a prior order to pay a proportion of the district court's expenses in addition to the salaries because the prior order reflected that it was the intent of the parties to follow statutory law and the language in the amended statute preserved existing agreements between the county and the city. Lonoke County v. City of Lonoke, 2013 Ark. 465, 430 S.W.3d 669 (2013).

16-17-116. [Repealed.]

Publisher's Notes. This section, concerning change of venue from municipal courts, was repealed by Acts 2003, No. 1185, § 110. The section was derived from Acts 1941, No. 118, §§ 1-3; A.S.A. 1947, §§ 22-721 — 22-723.

16-17-117. [Repealed.]

Publisher's Notes. This section, concerning issuance of arrest warrants by clerk of court, was repealed by Acts 2009, No. 633, § 10. The section was derived from Acts 1961, No. 121, §§ 1-3; A.S.A. 1947, §§ 22-751 — 22-753.

16-17-118. Power to postpone or suspend sentence in misdemeanor cases.

Each judge of the district court shall have the same power to postpone or suspend sentence in misdemeanor cases as is conferred upon the circuit judges of the state.

History. Acts 1961, No. 67, § 2; 1961, No. 159, § 2; A.S.A. 1947, § 22-754.

16-17-119. Counties with populations over 250,000 — District court expenses.

    1. The salaries and operational expenses of district courts in any county having a population of two hundred fifty thousand (250,000) or more inhabitants according to the most recent federal census shall be paid by the city or town in which the court is located.
    2. No portion of these expenses shall be paid by the county in which the court is located.
  1. This section shall not apply to a district court funded solely by a county.
  2. This section shall not apply to any town or city that has abolished a department of a district court pursuant to state law.

History. Acts 1979, No. 801, §§ 1, 2; A.S.A. 1947, §§ 22-764, 22-765; Acts 1992 (1st Ex. Sess.), No. 39, § 2; 2003, No. 1185, § 111; 2007, No. 663, § 36.

Publisher's Notes. Acts 1915, No. 87, referred to in this section, provided for the establishment of municipal courts in certain first-class cities.

Acts 1927, No. 60 is codified as §§ 16-17-201, 16-17-202 [repealed], 16-17-20316-17-207, 16-17-20916-17-215, 16-17-216 [repealed], 16-17-217, 16-17-21916-17-222, 16-17-223 [repealed], 16-17-224, 16-19-401, and 16-19-41016-19-412.

For text of section effective until January 1, 2012, see the preceding version.

Amendments. The 2007 amendment substituted “District court expenses” for “Collection of Fees” in the section heading; deleted former (a); redesignated former (b) as (a)(1) and (2); substituted “in any county having a population of two hundred fifty thousand (250,000) or more inhabitants according to the most recent federal census” for “described in this section” in (a)(1); and added (b) and (c).

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Case Notes

Reorganization.

Due process violation arising from a district court judge's installment fee policy could be imputed to the city because the judge was an employee of the city since the Little Rock District Court had not yet been reorganized as a state district court at the times relevant to the case; the Little Rock District Court was not part of the state district court program at the time of the events alleged in the complaint. City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

16-17-120. [Repealed.]

Publisher's Notes. This section, concerning candidate requirements for the election of municipal judges, was repealed by Acts 2003, No. 1185, § 112. The section was derived from Acts 1987, No. 90, § 1; 1999, No. 1574, § 1.

16-17-121. Salary increases — Factors to consider.

  1. In the event the General Assembly establishes a district court cost fund to be used exclusively for the operation and expenses of the district court, any district court judge's, clerk's, or other employee's salary authorized by § 16-17-108 may be increased from the minimum salary upward to any amount not exceeding the maximum salary authorized in § 16-17-108 and may be paid from the fund as set forth hereafter.
  2. The city council or the county quorum court, or both, if authorized, of the local governmental jurisdictions responsible for paying the salaries of the district court judge, clerks, and other employees may authorize salary increases for the various court personnel as authorized above after considering the following factors:
    1. The amount and availability of funds in the district court cost fund;
    2. The volume of caseload;
    3. The backlog of cases, if any, on the court docket;
    4. The time required in dealing with cases;
    5. The skill required in dealing with cases; and
    6. The amount of time taken away from the judge's private practice, if applicable.

History. Acts 1987, No. 1031, § 2; 2003, No. 1185, § 113.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-122. [Repealed.]

Publisher's Notes. This section, concerning the disposition of fines in the event of a change of venue, was repealed by Acts 2003, No. 1185, § 114. The section was derived from Acts 1989 (3rd Ex. Sess.), No. 54, § 1.

16-17-123. [Repealed.]

Publisher's Notes. This section, concerning the filing fee for civil actions, 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 1989, No. 816, § 1. For present law, see § 16-10-301 et seq.

16-17-124. Fee for appeal transcript — Disposition.

  1. When required to make a certification of disposition of court proceedings, including without limitation certified copies of the docket, certified copies of civil or small claims judgments, and appeal transcripts, the district court shall collect a fee of not less than five dollars ($5.00) per case for preparation of the original.
  2. All funds derived from the fee shall be paid into the general fund of the treasury of each political subdivision that contributes to the expenses of the district court based on the percentage of the expenses contributed by the political subdivision to be appropriated for any permissible use in the administration of the district court.

History. Acts 1989, No. 901, §§ 1, 2; 2003, No. 1765, § 15; 2005, No. 1934, § 9; 2015, No. 530, § 2.

Amendments. The 2005 amendment, in (b), deleted “city” preceding “treasury” and inserted “of each political subdivision … subdivision.”

The 2015 amendment inserted “without limitation” in (a); in (b), inserted “general fund of the” and substituted “that” for “which.”

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Case Notes

Appellate Jurisdiction.

Circuit court erred in granting the State's motion to dismiss defendant's appeal for lack of jurisdiction for failure to pay the $5 fee required by this section and Ark. R. Crim. P. 36(c), where the record demonstrated that defendant, consistent with Ark. R. Crim. P. 36(d), had filed an affidavit with the required information concerning the district court clerk's failure to timely certify the record, and served the clerk of the district court and the prosecuting attorney with the affidavit to place jurisdiction in the circuit court. The filing of defendant's affidavit triggered jurisdiction of his appeal from the district court and strictly complied with Ark. R. Crim. P. 36(d) to commence an appeal from the district court to the circuit court. Treat v. State, 2019 Ark. 326, 588 S.W.3d 10 (2019).

16-17-125. Pretrial release alternative administration fee.

  1. An administrative fee may be levied and collected, in district court or city court, from each pretrial detainee charged with either a felony or misdemeanor who is placed under the supervision of the court pending trial.
  2. The administrative fee authorized by this section may be levied only by the district court or city court which places a pretrial detainee under the supervision of the court pending trial.
  3. A district judge may impose such administrative fee for supervision if the judge finds it necessary to impose conditions of release requiring supervision of a criminal defendant pending trial and the judge does not require the posting of any bail that requires the defendant to pay a bondsman or post any form of cash or security.
  4. Such supervised pretrial release program is optional for both the court and the defendant and is an alternative to continued incarceration pending trial or to posting bond set by the court. The court shall be solely responsible for determining which defendants may be placed on the program. The defendant must agree to be placed on the program as an alternative to continued incarceration pending trial or to posting bond set by the court.
  5. All funds derived from the collection of such administrative fee shall be used by the municipality solely for the administration of justice.
  6. The administrative fee authorized by this section may be reduced or waived based on indigency.

History. Acts 1991, No. 1234, § 1.

16-17-126. Fee for filing and issuing writs — Disposition — Fee for issuing summons.

    1. The district court clerk shall collect a fee of ten dollars ($10.00) for filing or issuing writs, including writs of garnishment and executions.
    2. The fee under subdivision (a)(1) of this section is in addition to fees and costs established by law for specific purposes or as authorized by the county quorum court or municipality.
    1. The district court clerk shall collect a fee of two dollars and fifty cents ($2.50) for drawing and issuing, or sealing, a summons or subpoena if the summons or subpoena follows the form incorporated into Rule 4 of the Arkansas Rules of Civil Procedure.
    2. A fee shall not be collected under this subsection if the summons or subpoena follows the form incorporated into Rule 4 of the Arkansas District Court Rules and the summons or subpoena is not a separate document.
  1. All funds derived from the fees under this section shall be paid into the general fund of the treasury of each political subdivision that contributes to the expenses of the district court based on the percentage of the expenses contributed by the political subdivision to be appropriated for any permissible use in the administration of the district court.

History. Acts 1991, No. 262, §§ 1-3; 2003, No. 1185, § 115; 2003, No. 1765, § 16; 2005, No. 1934, § 10; 2015, No. 530, § 3; 2015, No. 585, § 1; 2019, No. 675, § 1.

Amendments. The 2005 amendment, in (b), deleted “city” preceding “treasury,” and inserted “of each political subdivision … political subdivision.”

The 2015 amendment by No. 530 redesignated (a) as (a)(1) and (2); in (a)(2), deleted “those” preceding “fees and costs” and substituted “as authorized” for “where authorized”; and, in (b), inserted “general fund of the” and substituted “that” for “which.”

The 2015 amendment by No. 585 deleted “of garnishment and executions” following “writs” in the section heading; redesignated former (a) as (a)(1) and (2); inserted “including writs” in (a)(1); substituted “The fee under subdivision (a)(1) of this section” for “This fee” in (a)(2); and, in (b), inserted “under subdivision (a)(1) of this section,” inserted “general fund of the,” and substituted “that” for “which.”

The 2019 amendment added “Fee for issuing summons” to the section heading; inserted (b); redesignated former (b) as (c); and in (c), deleted “subdivision (a)(1) of” following “under”.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-127. Contractors providing certain services.

  1. Upon request of the district court judge or city court judge, the governing body in which a district court or city court is located or, if applicable, each governing body of a political subdivision that contributes to the expenses of a district court may contract with a person that has registered with the Secretary of State and filed a surety bond or certificate of deposit with the Secretary of State to provide any of the following services:
    1. Probation services;
    2. Pretrial supervised release programs;
    3. Alternate sentencing programs; or
    4. The collection and enforcement of delinquent fines and costs.
    1. The amount of the surety bond or certificate of deposit shall be fifty thousand dollars ($50,000).
    2. The city or county or any person suffering damage by reason of the acts or omissions of the person or an employee of the person in the performance of services subject to this section may bring action on the bond for damages.
  2. A person is ineligible to provide services subject to this section if the person or an owner, operator, or any stockholder has been convicted of a felony.
  3. For the purposes of this section, “person” means any individual, corporation, partnership, firm, association, or other business entity.
  4. A district court or city court may require a defendant to pay reasonable fees, in an amount to be established by the court, relating to private contractors providing probation services, pretrial supervised release programs, or alternate sentencing programs authorized by law.
    1. Notwithstanding § 16-13-701 et seq., a private contractor may collect and retain only the fees established by the court for services provided pursuant to subsection (a) of this section.
      1. When the order of the district court or city court requires a defendant to use the services or programs of a private contractor, the designated contractor shall report on or before the fifth day of each month all fees collected.
      2. The report shall be provided to the mayor and county judge of the political subdivision or subdivisions that contribute to the expenses of the district court or city court and to the district court clerk or city court clerk for inclusion in the court's monthly report as required by law.
    2. The report of the private contractor, as required in this section, shall contain columns with the following information by defendant:
      1. Uniform traffic ticket number;
      2. Defendant's name;
      3. Court docket number;
      4. Receipt number;
      5. Amount collected; and
      6. Total of all fees collected.
  5. A private contractor providing the collection of delinquent fines and court costs shall follow the procedures in § 16-13-701 et seq.
  6. This section shall not apply to the alcohol treatment or education programs authorized by § 5-65-115 and § 5-65-307.
  7. This section shall not apply to a company whose service is limited to the acceptance of credit card payments for fines, fees, and costs and does not engage in affirmative acts of collection and enforcement of delinquent fines and costs.

History. Acts 1991, No. 447, § 1; 2001, No. 1809, § 3; 2003, No. 1185, §§ 116, 117; 2003, No. 1765, § 17; 2005, No. 2239, § 2; 2009, No. 782, § 3.

Amendments. The 2005 amendment rewrote (a); and added (e)-(h).

The 2009 amendment made a minor stylistic change in (c), and added (i).

Effective Dates. Acts 2003, No. 1185, § 117: Jan. 1, 2005, by its own terms.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-128. [Repealed.]

Publisher's Notes. This section, concerning payment of fines by credit card, was repealed by Acts 2009, No. 633, § 11. Former § 16-17-128 was also amended by Acts 2009, No.782, § 1, which was subsequently subject to this repeal. The section was derived from Acts 1997, No. 864, § 1.

16-17-129. Levy to defray cost of incarcerating city and county prisoners.

      1. In addition to all fines now or as may hereafter be provided by law, the governing body of each town or city in which a district court is located may by ordinance levy and collect an additional fine not to exceed twenty dollars ($20.00) from each defendant upon each conviction, each plea of guilty or nolo contendere, or each bond forfeiture in all cases in the first class of accounting records as described in § 16-17-707.
      2. Except as provided in subdivision (a)(1)(C) of this section, all sums collected from the additional fine described in subdivision (a)(1)(A) of this section shall be paid into the town or city treasury to be deposited into a fund to be used exclusively to help defray the cost of incarcerating town or city prisoners, including the construction and maintenance of the town or city jail and payments to other entities for incarcerating town or city prisoners.
      3. All sums collected from the additional fine described in subdivision (a)(1)(A) of this section in any district court that is funded solely by the county shall be paid into the county treasury to be deposited into a fund to be used exclusively to help defray the cost of incarcerating county prisoners, including the construction and maintenance of the county jail.
      1. In addition to all fines provided by law, the governing body of each town or city that has a police department or city marshal, and which contributes to the expenses of a district court under § 16-17-1203, by ordinance may levy and collect an additional fine not to exceed twenty dollars ($20.00) from each defendant upon each conviction, each plea of guilty or nolo contendere, or each bond forfeiture for any misdemeanor or traffic violation in cases from the contributing town or city filed in the district court to which the town or city contributes.
      2. All sums collected from the additional fine described in subdivision (a)(2)(A) of this section shall be paid into the town or city treasury to be deposited into a fund to be used exclusively to help defray the cost of incarcerating town or city prisoners, including the construction and maintenance of the town or city jail and payments to other entities for incarcerating town or city prisoners.
    1. In addition to all fines now or as may hereafter be provided by law, the quorum court of each county may by ordinance levy an additional fine not to exceed twenty dollars ($20.00) to be collected from each defendant upon each conviction, each plea of guilty or nolo contendere, or each bond forfeiture in all cases in the first and second class of accounting records as described in § 16-17-707. A county ordinance enacted under this subdivision (b)(1) applies to all district courts in the county.
    2. All sums collected from the additional fine described in subdivision (b)(1) of this section as to cases in the first class shall be paid into the county treasury to be deposited into a fund to be used exclusively to help defray the cost of:
      1. The construction, maintenance, and operation of the city, county, or regional jail;
      2. Deferring the costs of incarcerating county prisoners held by a county, a city, or any entity;
      3. The transportation and incarceration of city or county prisoners;
      4. The purchase and maintenance of equipment for the city, county, or regional jail; and
      5. Training, salaries, and certificate pay for jail personnel.
    3. All sums collected from the additional fine described in subdivision (b)(1) of this section as to cases of the second class shall be paid into the county treasury to be deposited into a fund to be used exclusively to help defray the cost of:
      1. The construction, maintenance, and operation of the city, county, or regional jail;
      2. Deferring the costs of incarcerating county prisoners held by a county, a city, or any entity;
      3. The transportation and incarceration of city or county prisoners;
      4. The purchase and maintenance of equipment for the city, county, or regional jail; and
      5. Training, salaries, and certificate pay for jailers and deputy sheriffs.
    1. In counties having a county regional detention facility, the additional fine levied by the county under this section shall be deposited into a special fund within the county treasury.
    2. The revenues generated by the additional fine shall be used exclusively for maintenance, operation, and capital expenditures of the regional detention facility.
  1. It is the intention of the General Assembly that the revenues derived from the additional fines levied under this section shall not offset or reduce funding from other sources for the maintenance, operation, and capital expenditures of the regional detention facilities.
    1. The additional fine authorized in subsection (a) of this section shall apply to each charge, count, violation, or offense that a defendant pleads guilty or nolo contendere to, is found guilty of, or forfeits bond for, including each misdemeanor or traffic violation.
    2. The fine may be imposed:
      1. By all courts within a city of the first class, city of the second class, incorporated town, or county in this state that has by ordinance levied the fine; and
      2. In all cases classified as county cases or city cases.

History. Acts 1999, No. 1336, §§ 1, 2; 2003, No. 1185, § 118; 2003, No. 1188, § 1; 2005, No. 1373, § 1; 2007, No. 1417, §§ 1, 2; 2009, No. 209, § 2; 2013, No. 1365, § 1.

Amendments. The 2005 amendment added (e).

The 2007 amendment rewrote (a) and (b).

The 2009 amendment substituted “twenty dollars ($20.00)” for “five dollars “($5.00)” in (a)(1)(A), (a)(2)(A), and (b)(1); and in (b)(2), inserted “as to cases in the first class,” deleted “incarcerating county prisoners, including the construction and maintenance of the county jail” following “defray the cost of,” added (b)(2)(A) through (b)(2)(E), and made a related change.

The 2013 amendment, in (a)(2)(A), deleted “now or as may hereafter by” following “fines,” substituted “that has a police department or city marshal, and which contributes to the expenses of a district court under § 16-17-1203” for “in which a city court is located may,” added “may,” and substituted “cases from the contributing town or city filed in the district court to which the town or city contributes” for “the city court of the city or town.”

Case Notes

Additional Fine.

This section did not authorize a county to collect an additional $5 fine in city courts to help defray the expense of housing prisoners in the county detention center where the legislature's clear intent was to give a county the same authority to collect the fine in district court as a city's authority to collect the fine in city court. White County v. City of Judsonia, 369 Ark. 151, 251 S.W.3d 275 (2007).

16-17-130. Single district judge to be elected countywide.

The judge of any district court located in a county with only one (1) district court shall hereafter be elected countywide.

History. Acts 1999, No. 1118, § 1.

16-17-131. Suspension of license for failure to appear.

  1. A person required to appear before a district court in this state, having been served with any form of notice to appear for any criminal offense, traffic violation, or misdemeanor charge, shall appear at the time and place designated in the notice.
    1. If a person fails to appear as required in subsection (a) of this section, the presiding judge may suspend the person's driver's license.
    2. The license shall be suspended until the person appears and completes the sentence ordered by the court.
    3. After the person satisfies all requirements of the sentence, the Department of Finance and Administration shall assess the current fees for reinstatement of a driver's license.

History. Acts 2001, No. 1243, § 1; 2003, No. 1185, § 119.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-132. District court generally.

  1. All fines, penalties, and costs received by the district courts shall be collected and distributed in the manner provided by laws affecting the former municipal courts, unless and until the General Assembly establishes a new method of distribution.
  2. All salaries, retirement benefits, programs, and moneys of judges, clerks, and court employees of the former municipal courts will continue to be vested and paid to the judges, clerks, and court employees of the district courts, pending further acts of the General Assembly.
  3. A vacancy in a district court judgeship shall be filled in the same manner and subject to the same restrictions as for vacancies under Arkansas Constitution, Amendment 29.

History. Acts 2001, No. 1693, §§ 1, 2; 2003, No. 1185, § 120.

Cross References. Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2003, No. 1185, § 120: Jan. 1, 2005, by its own terms.

16-17-133. Limitation of the incarceration of juvenile defendants in district courts.

    1. District courts have jurisdiction of juvenile defendants for violation of local codes or ordinances, game and fish violations, and traffic offenses.
    2. Juveniles charged with these offenses are subject to the same penalties as adults unless otherwise provided in this section.
  1. A juvenile subject to the jurisdiction of a district court shall not be incarcerated unless the juvenile:
    1. Commits a second offense for which the court has jurisdiction within one (1) year of the first offense;
    2. Willfully violates probation; or
    3. Willfully fails to pay a fine or perform community service work or other sanction properly ordered by the court.
  2. As an alternative to incarceration on a first offense or otherwise, the district court may place a juvenile on residential detention, which may be supervised by electronic monitoring for up to thirty (30) days.
    1. For a juvenile to be found in contempt for violating a court order, the order must have been in writing and served on the juvenile and the juvenile's parent or guardian.
    2. If a juvenile is found in contempt of court, the court may:
      1. Order that the juvenile be committed for a period not to exceed ten (10) days; or
      2. Place the juvenile on residential detention, which may be supervised by electronic monitoring for up to thirty (30) days.
    1. Any juvenile incarcerated under this section shall be separated from individuals eighteen (18) years of age or older.
    2. Where space is available, a juvenile who pleads guilty or nolo contendere to, or is found guilty of, an offense under this section may be placed in a juvenile detention facility rather than in the county jail.
    3. Juveniles being detained on allegations of delinquency or who have been adjudicated delinquent shall have priority for juvenile detention beds over juveniles sentenced in district court.
    1. A district court may also order the juvenile, the juvenile's parent, both parents, or the guardian of any juvenile punishable as provided for in this section to be liable for the cost of the incarceration or electronic monitoring.
    2. Prior to ordering payment, a district court shall take into account:
      1. The financial ability of the parent, both parents, or the guardian to pay for the detention or electronic monitoring;
      2. The past efforts of the parent, both parents, or the guardian to correct or prevent the juvenile's misconduct;
      3. If the parent is a noncustodial parent, the opportunity the parent has had to correct the delinquent juvenile's misconduct; and
      4. Any other factors the court deems relevant.

History. Acts 2001, No. 1807, § 1.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.

16-17-134. Change of venue from lower courts in certain counties to municipal court.

Notwithstanding § 16-19-409 or any other law to the contrary:

    1. In any criminal case brought before any city court in a county with a population between eighty-nine thousand (89,000) persons and one hundred fifty-three thousand (153,000) persons according to the 2000 Federal Decennial Census and in which a district court exists, the judge shall grant a change of venue to the district court, upon the defendant's motion, without the prepayment or tender of any fees.
    2. Upon filing the motion, the court shall have no further jurisdiction in the case, except for the purpose of preparing a transcript for the district court;
  1. In the event of any change of venue from a city court to a district court in a county with a population between eighty-nine thousand (89,000) persons and one hundred fifty-three thousand (153,000) persons according to the 2000 Federal Decennial Census and in which more than one (1) district court exists, the case shall be transferred to the district court geographically nearest in the county; and
  2. In no event shall any change of venue lie from any district court in a county with a population between eighty-nine thousand (89,000) persons and one hundred fifty-three thousand (153,000) persons according to the 2000 Federal Decennial Census to any city court in criminal cases.

History. Acts 2003, No. 673, § 1; 2011, No. 1132, § 9.

Amendments. The 2011 amendment substituted “§ 16-19-409” for “§§ 16-17-218 [Repealed] and 16-19-409” in the introductory language; and substituted “city court” for “justice of the peace in any township, police court, city court, corporation court, or any court of common pleas” with minor variations in (1)(A), (2), and (3).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-135. Counties authorized to employ and compensate district court judges as criminal magistrates.

    1. A county may employ one (1) or more district court judges to act as criminal magistrates in accordance with the provisions of Rule 1.8(a) of the Arkansas Rules of Criminal Procedure or in accordance with per curiam orders issued by the Arkansas Supreme Court.
    2. A district court judge acting as a criminal magistrate may be authorized to perform any of the duties described in Rule 1.8(b) of the Arkansas Rules of Criminal Procedure.
  1. A county with a population of more than one hundred thousand (100,000) persons may compensate a district court judge acting as a criminal magistrate in excess of his or her salary as a district court judge in an annual amount not to exceed fifty percent (50%) of the district court judge's maximum annual salary as set forth in § 16-17-108.
  2. A county, city, or town that contributes to the salary of a district judge may treat the increased payment for magistrate duties as salary to be calculated for purposes of the Arkansas Public Employees' Retirement System, § 24-4-101 et seq.
  3. The compensation for a district court judge acting as a criminal magistrate for a circuit court judge shall be set by the county quorum court by ordinance and may be paid by the county from the county administration of justice fund or the county general fund as appropriated by ordinance.

History. Acts 2005, No. 1938, § 1; 2007, No. 177, § 4.

Amendments. The 2007 amendment substituted “the Arkansas Public Employees' Retirement System” for “the Arkansas District Judge Retirement System, § 24-8-801 et seq.” in (c).

16-17-136. Waiver of appearance and entry of plea to traffic violations in district court.

Notwithstanding any rule of criminal procedure to the contrary:

  1. A person who is charged in district court with committing an offense, excluding a violation of the Omnibus DWI or BWI Act, § 5-65-101 et seq., or the Underage DUI or BUI Law, § 5-65-301 et seq., or any other offense for which a court appearance is mandatory, may waive appearance and trial and plead guilty or nolo contendere by a signed statement;
    1. With the signed statement, the person shall pay the fine and court costs in an amount as established by the district court or city court within the limits prescribed by law.
    2. Fines and court costs shall be paid to the county or city official, agency, or department designated under § 16-13-709 as primarily responsible for the collection of fines assessed in the district courts and city courts of this state;
  2. The court shall accept the signed statement accompanied by the fine and court costs assessed as a plea of guilty or nolo contendere and shall proceed accordingly; and
  3. Submitting payment under subdivision (2)(A) of this section through a website constitutes an agreement to be bound by an electronic record under the Arkansas Electronic Records and Signatures Act, § 25-31-101 et seq., and complies in all respects with the requirements of this section.

History. Acts 2005, No. 1934, § 25; 2009, No. 633, § 12; 2011, No. 1218, § 4; 2015, No. 299, § 22.

Amendments. The 2009 amendment, in (1), substituted “an offense” for “a traffic offense that is a violation under state law or local ordinance,” and substituted “or any other offense for which a court appearance is mandatory” for “and in which the only sentence available is a monetary fine and court costs,” and made a minor stylistic change.

The 2011 amendment added (4).

The 2015 amendment, in (1), deleted “or city court” preceding “with committing” and inserted “or BWI” and “or BUI.”

16-17-137. Jurisdiction over certain criminal matters.

  1. If authorized by the administrative plan for the judicial circuit required by Supreme Court Administrative Order No. 14, a state district court judge may preside over the following criminal matters:
    1. A drug court program authorized under the Arkansas Drug Court Act, § 16-98-301 et seq.;
    2. A probation supervision program; and
    3. A parole supervision program.
  2. The administrative judge of the judicial district may withdraw authorization under this section at any time.

History. Acts 2011, No. 1137, § 2.

A.C.R.C. Notes. Acts 2011, No. 1137, § 1, provided:

“Legislative findings.

“(a) In a per curiam opinion dated February 9, 2011, the Supreme Court addressed the recommendations of the District Court Resource Assessment Board, one (1) of which stated that the General Assembly could authorize a state district court judge to preside over a drug court program, probation revocation proceeding, or a parole revocation proceeding. In Re Amendments to Administrative Order Nos. 4 and 18 and Regulations of the Arkansas Board of Certified Court Reporter Examiners § 1, 2011 Ark. 57 (2011).

“(b) That the General Assembly finds that allowing a state district court judge to preside over a drug court, a probation revocation proceeding, or a parole revocation proceeding promotes the sound and efficient administration of justice.”

16-17-138. Mandatory holding of court for departments of a district court.

    1. A district court shall hold court in each department of the district court at least one (1) time a month unless mutually waived by the district court judge and the governing body of the city or town in which the department is located.
    2. The agreement under subdivision (a)(1) of this section shall be in writing and adopted by ordinance of the governing body of the city or town in which the department is located.
  1. If the district court does not have a case at the time court is scheduled to be held in a month, the requirement of subsection (a) of this section is waived and court shall be held at the next scheduled time.

History. Acts 2015, No. 1031, § 1.

Subchapter 2 — Establishment in Cities of 2,400 or More and County Seat Towns of Less Than 2,400

Effective Dates. Acts 1927, No. 60, § 27: approved Feb. 28, 1927. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist for the reason that in cities falling within the provisions of this act, there now exists much litigation which is being handled in justice of peace courts which are unable to try the civil and criminal cases coming before them in such a manner as to render justice, and make possible an efficient enforcement of the law. It is therefore declared that this act shall take effect and be in force from and after its passage.”

Acts 1929, No. 224, § 4: approved Mar. 27, 1929. Emergency clause provided: “It appearing that in certain communities there are irregularities in inferior courts which this act is intended to correct, an emergency is declared and this act shall be in force from and after its passage.”

Acts 1935, No. 187, § 3: Mar. 26, 1935; Acts 1939, No. 93, § 3: Feb. 15, 1939. Emergency clauses provided: “It being ascertained and hereby declared that in certain cities subject to the provisions of this act there are great irregularities in the inferior courts as now constituted; that great injustice is being suffered by litigants and unnecessary expense is being incurred; that severe financial losses are being suffered by both litigants and the communities in which such courts would be located because of the unsystematic and disorderly administration of justice by the courts now constituted, and that immediate operation of this act is essential for the preservation of the public peace, health and safety; and an emergency is therefore declared to exist, and this act shall take effect and be in full force from and after its passage and approval.”

Acts 1941, No. 280, § 2: approved Mar. 26, 1941. Emergency clause provided: “This act being necessary for the immediate preservation of property, public health and safety, an emergency is hereby declared to exist and the same shall be in full force and effect from and after its passage.”

Acts 1949, No. 210, § 2: effective on passage.

Acts 1951, No. 63, § 4: Feb. 9, 1951. 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 are irregularities, needless delays and injustices being suffered by litigants in inferior courts in cities subject to this Act. This Act shall take effect from and after its passage and approval.”

Acts 1951, No. 280, § 2: Mar. 19, 1951. Emergency clause provided: “It is hereby ascertained that other county and city officials have, since the passage of Act No. 60 of 1927 secured increases in their salaries and that municipal clerks covered by said Act No. 60 of 1927 have had no increase in salary and due to the increased volume of work placed upon municipal clerks covered by said Act No. 60 and increased costs of living generally and for the better and more efficient operation of the office of municipal clerks covered by said act an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health, and safety, shall take effect and be enforced from and after its passage and approval.”

Acts 1955, No. 160, § 3: effective 90 days after approval.

Acts 1961, No. 39, § 2: Feb. 6, 1961. Emergency clause provided: “It is hereby found and declared by the General Assembly that under existing law, municipal judges in certain cities having a city manager form of government, are elected at city election held in odd numbered years; that in such cities the only reason for holding odd year city elections is to elect a municipal judge; that immediate provision should be made to authorize the election of municipal judges in such cities at the regular biennial general election held in even numbered years and thereby remove the necessity for holding the odd year city elections in such cities. 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 effect from and after the date of its passage and approval.”

Acts 1963, No. 57, § 2: Feb. 15, 1963; Acts 1963, No. 175, § 2: Mar. 7, 1963; Acts 1975, No. 873, § 2: Apr. 4, 1975. Emergency clauses provided: “It has been found and is declared by the General Assembly that because of the increased volume of work placed on the municipal court clerks and the increase in the cost of living in general, it is extremely difficult to secure the services of qualified persons as municipal court clerks; that such condition jeopardizes the administration of justice; that enactment of this measure will provide the needed remedy. Therefore an emergency is declared to exist, and this act, being necessary for the preservation of the public peace, health, and safety, shall take effect and be in force from the date of its approval.”

Acts 1968 (1st Ex. Sess.), No. 38, § 3: Feb. 20, 1968. Emergency clause provided: “It is hereby found and declared by the General Assembly that under existing law the procedures for the election of Municipal Judges in Cities having the City Manager form of government is not clear, and that immediate provisions should be made to clarify such procedures so as to authorize the election of Municipal Judges in such cities at the regular biennial General Election, upon petition as is provided for the nomination of candidates for Boards of Directors. Therefore, an emergency is declared to exist and this Act being necessary for the preservation of the public peace, health and safety, the same shall be in force and effect from and after the date of its passage and approval.”

Acts 1979, No. 913, § 3: Apr. 16, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the inability to serve process by mail in civil cases pending in municipal courts is unfair and unreasonably costly and that this Act is 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. 431, § 10: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that Amendment 64 has an effective date of July 1, 1987, that the smooth implementation of the Amendment requires that this law be enacted; that should the General Assembly extend the session beyond the sixtieth day, there exists a danger that this law would not be in effect on July 1, 1987; therefore, this act shall be effective July 1, 1987.”

Acts 1989, No. 142, § 4: Feb. 21, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that uncertainty in the area of municipal court jurisdiction interferes with the administration of the criminal justice system of this state, and that this act should go into effect immediately upon passage to clarify the law in this area. 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. 904, § 28: Mar. 29, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the language of certain court cost statutes lacks uniformity; that such lack of uniformity is detrimental to the proper collection of such court costs; and that such language should be standardized to promote the proper collection of such costs. 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.”

16-17-201. [Repealed.]

Publisher's Notes. Acts 1929, No. 224, § 3, provided that the act should only apply to courts established or to be established under Acts 1927, No. 60.

This section, concerning applicability of this subchapter, was repealed by Acts 2003, No. 1185, § 121, effective January 1, 2005. The section was derived from Acts 1927, No. 60, § 1; 1929, No. 224, § 1; 1935, No. 187, § 1; Pope's Dig., § 9897; Acts 1939, No. 93, § 1; 1951, No. 63, § 1; 1953, No. 313, § 1; A.S.A. 1947, § 22-701.

Case Notes

Cited: Lee v. Watts, 243 Ark. 957, 423 S.W.2d 557 (1968); Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984).

16-17-202. [Repealed.]

Publisher's Notes. This section, concerning construction with police court laws and justice of the peace laws, was repealed by Acts 1987, No. 431, § 8. The section was derived from Acts 1927, No. 60, § 8; Pope's Dig., § 9904; A.S.A. 1947, § 22-708.

16-17-203 — 16-17-207. [Repealed.]

Publisher's Notes. These sections, concerning with other laws, the creation of district courts, the name and seal of district courts and the abolishment of police courts, the jurisdiction of district courts, and number of judges and their term, was repealed by Acts 2003, No. 1185, § 123, effective January 1, 2005. These sections were derived from the following sources:

16-17-203. Acts 1927, No. 60, § 26; Pope's Dig., § 9922; A.S.A. 1947, § 22-731; Acts 2003, No. 1185, §§ 122, 123.

16-17-204. Acts 1927, No. 60, § 1; 1929, No. 224, § 1; 1935, No. 187, § 1; Pope's Dig., § 9897; Acts 1939, No. 93, § 1; 1951, No. 63, § 1; 1953, No. 313, § 1; A.S.A. 1947, § 22-701; Acts 2003, No. 1185, §§ 122, 123.

16-17-205. Acts 1927, No. 60, § 2; Pope's Dig., § 9898; A.S.A. 1947, § 22-702; Acts 2003, No. 1185, §§ 122, 123.

16-17-206. Acts 1927, No. 60, §§ 9, 11; 1929, No. 224, § 2; Pope's Dig., §§ 9905, 9907; Acts 1955, No. 160, § 1; A.S.A. 1947, §§ 22-709, 22-710, 22-712; Acts 1987, No. 431, § 8; 1989, No. 142, § 1; 1995, No. 1296, § 60; 2003, No. 1185, §§ 122, 123.

16-17-207. Acts 1927, No. 60, § 3; 1935, No. 187, § 2; Pope's Dig., § 9899; Acts 1939, No. 93, § 2; 1951, No. 63, § 2; A.S.A. 1947, § 22-703; Acts 2003, No. 1185, §§ 122, 123.

16-17-208. [Repealed.]

Publisher's Notes. This section, concerning election of judges in cities having city manager form of government, was repealed by Acts 2003, No. 1185, § 124. The section was derived from Acts 1961, No. 39, § 1; 1968 (1st Ex. Sess.), No. 38, § 1.

16-17-209. Qualifications of district judge — Term.

  1. District judges shall be qualified electors within the geographical area from which they are chosen and shall have been licensed attorneys of this state for at least four (4) years immediately preceding the date of assuming office.
  2. Pursuant to Arkansas Constitution, Amendment 80, § 16(C), district judges shall serve four-year terms.

History. Acts 1927, No. 60 § 4; Pope's Dig., § 9900; Acts 1949, No. 210, § 1; 1951, No. 63, § 3; 1951, No. 254, § 1; 1953, No. 313, § 2; A.S.A. 1947, § 22-704; Acts 2003, No. 1185, §§ 125, 126; 2019, No. 445, § 1.

A.C.R.C. Notes. Acts 2019, No. 445, § 2, provided: “(a) The enabling legislation for Arkansas Constitution, Amendment 80, did not contain language concerning the date of the first election for district judges under Arkansas Constitution, Amendment 80, though the first election for district judges after passage of Arkansas Constitution, Amendment 80, occurred at the 2004 general election.

“(b) To avoid confusion in some areas of the state concerning the cycle for elections of district judges, the next election for a district judge in 2020 at the same date and at the same times and places as provided by law for preferential primary elections”.

Amendments. The 2019 amendment substituted “Pursuant to Arkansas Constitution, Amendment 80, § 16(C), district” for “District” in (b).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2003, No. 1185, § 126: Jan. 1, 2005, by its own terms.

Case Notes

Constitutionality.

The imposition of part of the expenses of municipal courts on the counties in which they are established is not violative of constitutional provisions vesting county courts with original jurisdiction in all matters relating to county affairs. Crawford County v. City of Van Buren, 201 Ark. 798, 146 S.W.2d 914 (1941).

This section does not violate the Constitution on the ground that it constitutes an encroachment by the legislature on the city in the matter of finances, since section does not impose court on any city, but merely sets minimum salary for municipal court established by the city. City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W.2d 829 (1952).

Salary Increase.

Municipal judge was not estopped from recovering increased salary voted by legislature on the ground that he had agreed to take an increase in a less amount than that provided by the legislature, since contract was not binding in law. City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W.2d 829 (1952).

Taxpayer Suit.

A resident taxpayer of a city is the equitable owner of public funds and is the proper party to bring suit to enjoin and collect the illegal payment of public funds to a person acting as municipal judge. Revis v. Harris, 217 Ark. 25, 228 S.W.2d 624 (1950).

Cited: Logan v. Harris, 213 Ark. 37, 210 S.W.2d 301 (1948); Russell v. Miller, 253 Ark. 583, 487 S.W.2d 617 (1972); Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984); Lawson v. City of Mammoth Spring ex rel. Smith, 287 Ark. 12, 696 S.W.2d 712 (1985); Beshear v. Clark, 292 Ark. 47, 728 S.W.2d 165 (1987); State ex rel. Robinson v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989).

16-17-210. Special judges.

  1. If a district judge is disqualified or temporarily unable to serve, or if the Chief Justice of the Supreme Court shall determine that there is other need for a special judge to be temporarily appointed, a special judge may be assigned by the Chief Justice or elected by the bar of the district court, under rules prescribed by the Supreme Court, to serve during the period of temporary disqualification, absence, or need.
  2. A special judge shall have the same power and authority in the court as the regular district judge would have if present and presiding and shall have the same qualifications as are required by law for the regular district judge.
  3. A district judge who is assigned by the Chief Justice to act as a special judge under this section shall receive reimbursement of expenses for his or her service at the rate provided for in § 16-17-1108.

History. Acts 1927, No. 60, § 5; Pope's Dig., § 9901; Acts 1973, No. 165, § 1; A.S.A. 1947, § 22-705; Acts 2003, No. 1185, §§ 125, 126; 2011, No. 274, § 7.

A.C.R.C. Notes. Acts 2011, No. 274, § 1, provided:

“Legislative intent.

“(a) Arkansas Constitution, Amendment 80, § 13(C), provides that the Chief Justice of the Arkansas Supreme Court may appoint a special judge to serve in circuit court or district court whenever a judge is disqualified or temporarily unable to serve or when there is other need for a temporary appointment, under rules prescribed by the Supreme Court.

“(b) Special judges may include retired justices or judges, active circuit judges or district judges, or licensed attorneys.

“(c) The current laws that govern the payment of special judges have not been revised since the adoption of Amendment 80 and are in conflict and need of clarification.”

Amendments. The 2011 amendment, in (c), substituted “district judge who is assigned by the Chief Justice to act as a special judge” for “special judge assigned or elected,” “reimbursement of expenses” for “compensation,” and “at the rate provided for in § 16-17-1108" for “as provided by law.”

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2003, No. 1185, § 126: Jan. 1, 2005, by its own terms.

Case Notes

Substantial Compliance.

Special judge called at the suggestion of defendant's attorney after the clerk stated that regular judge was out of the city, where prosecuting attorney and defendant's attorney were the only attorneys present, was selected in substantial compliance with this section. Freeman v. Allen, 193 Ark. 432, 100 S.W.2d 679 (1937).

Cited: Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984).

16-17-211. District court clerks generally.

    1. The judge of any district court may appoint a clerk for the court, who shall be designated and known as the district court clerk.
    2. The district court clerk employed by a city or county is governed by the employee handbook and policies of the city or county.
    3. If a district court clerk is employed by more than one (1) city or county, then the employing cities or counties, or both, shall determine by written agreement the apportionment of expenses and the applicable employee handbook and policies.
    4. The district court judge shall ensure compliance with the applicable employee handbook, policies, procedures, practices, ordinances, and resolutions of the city or county, or both, consistent with Canon 2 of the Arkansas Code of Judicial Conduct.
    1. The city council of the city in which the court is located shall fix the salary of the district court clerk at a reasonable sum, the salary to be computed on an annual basis.
    2. However, where the county in which the court is located is to pay any portion of the clerk's salary, the salary must also be approved by the quorum court of that county. Further, if the expenses and salaries of any district court are paid entirely by the county in which the court is located, the salary of the clerk shall be fixed by the quorum court of the county and not by the city council.
  1. The district court clerk shall keep a fair record of all the acts done and proceedings had in the court and shall enter all judgments of the court, under the direction of the judge.
  2. The district court clerk shall:
    1. Administer oaths, including special judges of district court under § 16-17-210;
    2. Take affidavits required or permitted in the progress of the action;
    3. Keep a complete docket of all proceedings to the extent and in the manner directed by the judge;
    4. Record the judgments, rules, orders, and other civil or criminal proceedings of the court and keep an alphabetical index thereof;
    5. Keep such other dockets, books, and indices as may be required by law or by the judge; and
    6. Issue and attest all process.
  3. Where the duties of the office of district court clerk do not require a full-time employee, the city council may require that the duties of the clerk be performed by any other officer of the city, except a member of the police department or marshal's office.

History. Acts 1927, No. 60, § 12; Pope's Dig., § 9908; Acts 1951, No. 280, § 1; 1953, No. 313, § 3; 1963, No. 57, § 1; 1963, No. 175, § 1; 1975, No. 873, § 1; 1981, No. 74, § 1; A.S.A. 1947, § 22-713; Acts 1995, No. 555, § 1; 2003, No. 1185, § 125; 2003, No. 1765, § 18; 2009, No. 633, § 13; 2011, No. 1174, § 9; 2017, No. 323, § 1.

Amendments. The 2009 amendment inserted “including special judges of district court under § 16-17-210” in (d)(1); deleted (d)(3); and made a related change.

The 2011 amendment subdivided (b); deleted “and payable in equal monthly installments” at the end of (b)(1); substituted “Record” for “Seasonably record” in (d)(4); deleted former (e) and redesignated the following subsection accordingly; and added the exception at the end of present (e).

The 2017 amendment redesignated former (a) as (a)(1) and added (a)(2) through (a)(4).

Case Notes

City Employee.

Federal district court erred in dismissing plaintiff's § 1983 action alleging that defendant city violated her constitutional rights by failing to document that she paid certain fines and requesting issuance of a warrant for her arrest, as the complaint stated at least a plausible claim that the Phillips County district court clerk was a city official at the time of the alleged wrongdoing, rather than a state official, in which case the city could be accountable for actions of the clerk that established or carried out an unconstitutional policy or custom of the municipality. Evans v. City of Helena-West Helena, 912 F.3d 1145 (8th Cir. 2019).

It was not until after the events alleged in the complaint that Phillips County was one of several counties that were reorganized as state district courts and served by a state district court judge. Before that time, state law gave cites and counties authority to set salaries for the district court clerk, and the complaint alleged that employees of the district court were hired by the city and paid by the city. Evans v. City of Helena-West Helena, 912 F.3d 1145 (8th Cir. 2019).

16-17-212. Fees and costs generally.

  1. The only fees and costs that shall be allowed in civil and criminal suits, prosecutions, and proceedings in district court are those specifically authorized by statute.
  2. Nothing in this section or subchapter shall be construed as authorizing the collection by the prosecuting attorney or his or her deputies, the clerks of the district court, or the sheriff and constable or their deputies, of any costs or fees from the county in the trial of misdemeanors.
  3. Constables and deputies shall be allowed only those fees and costs specifically authorized by statute.

History. Acts 1927, No. 60, § 6; Pope's Dig., § 9902; A.S.A. 1947, § 22-706; Acts 1991, No. 904, § 18; 2003, No. 1185, § 125.

Publisher's Notes. Acts 1991, No. 904, § 22, provided:

“It is hereby found that the passage of many court cost bills over several legislative sessions has caused confusion in the collection of such costs and that reasonable people can interpret the varying language of such court costs statutes differently. This legislation is necessary to standardize the language of such court cost statutes to provide that such costs are collected in a uniform manner statewide.”

Acts 1991, No. 904, § 23, provided:

“This act is hereby declared to be remedial in nature and is to be liberally construed to effect its purpose.”

Acts 1991, No. 904, § 24, provided:

“Nothing herein shall prohibit courts from assessing reasonable probation fees.”

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-213. [Repealed.]

Publisher's Notes. This section has been deemed superseded by AICR 9 (now ADCR 9). See Hawkins v. City of Prairie Grove, 316 Ark. 150, 357 S.W.2d 871 (1994).

This section, concerning filing appeal transcripts, was repealed by Acts 2003, No. 1185, § 127. The section was derived from Acts 1927, No. 60, § 7; Pope's Dig., § 9903; Acts 1939, No. 323, § 1; 1941, No. 280, § 1; 1953, No. 203, § 1; A.S.A. 1947, §§ 22-707, 26-1307; Acts 1987, No. 431, § 8.

16-17-214. Collection of fines in district court — Reports to mayor.

  1. The county or city official, agency, or department designated under § 16-13-709 as primarily responsible for the collection of fines assessed in district courts shall pay over to the district court clerk by the fifth working day of each month all sums collected.
  2. The county or city official, agency, or department designated under § 16-13-709 shall render to the governing body or, if applicable, each governing body of a political subdivision that contributes to the expenses of a district court for each month, a report under oath of all fines, penalties, forfeitures, fees, and costs collected during the month and attach to the report receipts of the district court clerk for all sums collected during the period.

History. Acts 1927, No. 60, § 13; Pope's Dig., § 9909; A.S.A. 1947, § 22-714; Acts 2003, No. 1185, § 128; 2003, No. 1765, § 19; 2005, No. 1934, § 11.

Amendments. The 2005 amendment, in (a), deleted “shall collect all fines, penalties, forfeitures, fees, and costs assessed in district court and” preceding “shall pay over” and substituted “by the fifth working day of each month” for “daily”; and, in (b), substituted “governing body or, if applicable, each governing body of a political subdivision that contributes to the expenses of a district court” for “mayor” and deleted “giving the title of the cause and the arresting officer” preceding “and attaching.”

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-215. [Repealed.]

Publisher's Notes. This section concerning the return of fines and costs by sheriff and constables, was repealed by Acts 2003, No. 1765, § 20. The section was derived from the following source: Acts 1927, No. 60, § 14; Pope's Dig., § 9910; A.S.A. 1947, § 22-715.

16-17-216. [Repealed.]

Publisher's Notes. This section, concerning maintenance of separate accounts of fines and costs by clerk — settlement of accounts by municipal court and county court, was repealed by Acts 1987, No. 431, § 8. The section was derived from Acts 1927, No. 60, § 15; Pope's Dig., § 9911; Acts 1957, No. 218, § 1; A.S.A. 1947, § 22-719.

16-17-217 — 16-17-220. [Repealed.]

A.C.R.C. Notes. Former § 16-17-218, concerning change of venue from justice of the peace to municipal court, is deemed to be superseded by this section. The former section was derived from Acts 1927, No. 60, § 21; Pope's Dig., § 9917; Acts 1961, No. 178, § 1; A.S.A. 1947, § 22-725.

Publisher's Notes. Acts 1927, No. 60, § 17, is also codified as § 16-19-401.

Acts 1989 (3rd Ex. Sess.), No. 55, § 1, is also codified as § 16-19-409.

These sections, concerning jurisdiction of justices of the peace in townships having a municipal court, change of venue from justice of the peace to municipal court, additional compensation of justices of the peace in townships having a municipal court, and filing of reports of fees and costs by justice of the peace, were repealed by Acts 2003, No. 1185, § 129. The sections were derived from the following sources:

16-17-217. Acts 1927, No. 60, § 17; Pope's Dig., § 9913; A.S.A. 1947, § 22-724.

16-17-218. Acts 1989 (3rd Ex. Sess.), No. 55, § 1.

16-17-219. Acts 1927, No. 60, § 18; Pope's Dig., § 9914; A.S.A. 1947, § 22-726.

16-17-220. Acts 1927, No. 60, § 22; Pope's Dig., § 9918; A.S.A. 1947, § 22-727.

Cross References. Improper venue of action, § 16-19-408.

16-17-221. Improper use of process — Granting privileges — Failure to report or pay over fines — Penalty.

  1. Any district judge who makes use, directly or indirectly, of the process of his or her own court, either as a party litigant or in interest or as an attorney or agent for any party litigant or in interest, or who offers or gives by way of remission of fees or otherwise any pecuniary inducements to the institution or maintenance of any suits, prosecutions, or proceedings in his or her court and any sheriff, constable, police chief, or district court clerk who fails to report or pay over fines, penalties, forfeitures, fees, or costs collected by him or her shall be guilty of a violation and upon conviction for each of such offenses shall be punished by a fine of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500).
  2. A conviction under this section shall work a forfeiture of office.
  3. Notwithstanding any other provision of this section, sheriffs and constables may retain the fees and costs due them out of each cause.

History. Acts 1927, No. 60, § 23; Pope's Dig., § 9919; A.S.A. 1947, § 22-728; Acts 2003, No. 1185, § 130; 2005, No. 1994, § 81.

Publisher's Notes. Acts 1927, No. 60, § 23, is also codified as § 16-19-412.

Amendments. The 2005 amendment substituted “violation” for “misdemeanor” in present (a).

16-17-222. Fees of prosecuting attorney.

The prosecuting attorney or his or her deputies shall receive the same fees for prosecuting cases in the district court as they are allowed by law for the prosecution of misdemeanors in the circuit courts.

History. Acts 1927, No. 60, § 24; Pope's Dig., § 9920; A.S.A. 1947, § 22-729; Acts 2003, No. 1185, § 131.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-223. [Repealed.]

Publisher's Notes. This section, concerning the power of the court to issue process, was repealed by Acts 1987, No. 431, § 8. The section was derived from Acts 1927, No. 60, § 10; Pope's Dig., § 9906; A.S.A. 1947, § 22-711.

16-17-224. Manner of service of summons and other process.

  1. All summons and other process in any civil cause pending in any district court shall be served in accordance with rules promulgated by the Supreme Court.
  2. Where an arrest for a violation of state law committed within the township wherein the court sits is made upon a warrant filed by the prosecuting attorney or his or her deputy, such warrant to arrest shall be directed to the constable of the township or the sheriff of the county wherein the court sits. Where a warrant for arrest is issued for a violation of state law committed outside the township wherein the court sits but in a county subject to this subchapter, upon an information filed by the prosecuting attorney or his or her deputy, the warrant of arrest shall be directed to the sheriff of the county, and all other process in the proceeding shall be directed to the sheriff. However, any sheriff or constable of any township in a county subject to this subchapter may arrest an offender for a violation of any state law committed anywhere in the county and may bring the offender before the district court for trial, and that officer shall serve all process in the cause.
  3. The chief of police and his or her assistants shall serve all process for violations of city ordinances of the city wherein the district court sits and shall serve all criminal process for violations of state laws inside the city limits of a city subject to this subchapter, where the arrest is made by a police officer of the city or the information is filed by the city attorney of the city.

History. Acts 1927, No. 60, § 25; Pope's Dig., § 9921; Acts 1953, No. 346, § 1; 1979, No. 913, § 1; A.S.A. 1947, §§ 22-730, 22-730.1; Acts 2003, No. 1185, § 132.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Subchapter 3 — County Seat District Court Act

16-17-301. [Repealed.]

Publisher's Notes. This section, concerning providing for the use and benefit of cities of the second class was repealed by Acts 2003, No. 1185, § 134, effective January 1, 2005. The section was derived from Acts 1947, No. 128, § 7; A.S.A. 1947, § 22-738; Acts 2003, No. 1185, §§ 133, 134.

16-17-302. [Repealed.]

Publisher's Notes. This section, concerning govening the courts created and established pursuant to this subchapter, was repealed by Acts 2003, No. 1185, § 135, effective January 1, 2005. The section was derived from Acts 1947, No. 128, §§ 3-5; A.S.A. 1947, §§ 22-734 — 22-736.

16-17-303. [Repealed.]

Publisher's Notes. This section, concerning the establishment of district courts in county seat towns becoming cities of second class, was repealed by Acts 2003, No. 1185, § 137, effective January 1, 2005. The section was derived from Acts 1947, No. 128, § 1; A.S.A. 1947, § 22-732; Acts 2003, No. 1185, §§ 136, 137.

16-17-304. [Repealed.]

Publisher's Notes. This section concerning, the city recorder and compensation, was repealed by Acts 2003, No. 1185, § 139, effective January 1, 2005. The section was derived from Acts 1947, No. 128, § 2; A.S.A. 1947, § 22-733; Acts 2003, No. 1185, §§ 138, 139.

16-17-305. [Repealed.]

Publisher's Notes. This section, concerning jury trials, was repealed by Acts 2003, No. 1185, § 141, effective January 1, 2005. The section was derived from Acts 1947, No. 128, § 6; A.S.A. 1947, § 22-737; Acts 2003, No. 1185, §§ 140, 141.

Subchapter 4 — Establishment in Cities of First and Second Class and Incorporated Towns

16-17-401 — 16-17-403. [Repealed.]

Publisher's Notes. These sections, concerning the qualifications, election and compensation of judges, the establishment of district courts by two or more cities or incorporated towns within the same county, and the election of a presiding judge where two or more cities establish a district court was repealed by Acts 2003, No. 1185, § 143, effective January 1, 2005. These sections were derived from the following sources:

16-17-401. Acts 1973, No. 240, § 1; A.S.A. 1947, § 22-755; Acts 2003, No. 1185, §§ 142, 143.

16-17-402. Acts 1973, No. 240, § 2; A.S.A. 1947, § 22-756; Acts 1989, No. 878, § 1; 1991, No. 904, §§ 8, 20; 1995, No. 1256, § 20; 1995 (Ex. Sess.), No. 13, § 4; 2003, No. 1185, §§ 142, 143.

16-17-403. Acts 1973, No. 240, § 3; 1977, No. 780, § 1; A.S.A. 1947, § 22-757; Acts 1999, No. 1354, § 1; 2003, No. 1185, §§ 142, 143.

Subchapter 5 — Establishment in Cities of Less Than 2,400 Population

16-17-501 — 16-17-503. [Repealed.]

Publisher's Notes. These sections, concerning permission for cities with populations under 3,000 to create a district court, the jurisdiction and powers of district courts, and the manner of selection and qualifications of district court judges and court expenses was repealed by Acts 2003, No. 1185, § 145, effective January 1, 2005. These sections were derived from the following sources:

16-17-501. Acts 1985, No. 251, § 1; A.S.A. 1947, § 22-767; Acts 1995, No. 338, § 1; 1995, No. 1015, § 1; 2003, No. 1185, §§ 144, 145.

16-17-502. Acts 1985, No. 251, § 2; A.S.A. 1947, § 22-768; Acts 2003, No. 1185, §§ 144, 145.

16-17-503. Acts 1985, No. 251, § 3; A.S.A. 1947, § 22-769; Acts 2003, No. 1185, §§ 144, 145.

Subchapter 6 — Small Claims Procedure

16-17-601. [Repealed.]

Publisher's Notes. This section, concerning title, was repealed by Acts 2003, No. 1185, § 146, effective January 1, 2005. The section was derived from Acts 1977, No. 725, § 1; A.S.A. 1947, § 22-758.

16-17-602. [Repealed.]

Publisher's Notes. This section, concerning small claims division to be established in district courts, was repealed by Acts 2003, No. 1185, § 148, January 1, 2005. The section was derived from Acts 1977, No. 725, § 2; A.S.A. 1947, § 22-758.1; Acts 1987, No. 430, § 1; 1997, No. 746, § 2; 2003, No. 1185, §§ 147, 148.

16-17-603. [Repealed.]

A.C.R.C. Notes. Pursuant to § 1-2-207, the amendment to this section by Acts 2003, No. 1765, § 21, was superseded by the repeal of this section by Acts 2003, No. 1185, § 149.

Publisher's Notes. This section, concerning referees, appointment, qualifications, and compensation, was repealed by Acts 2003, No. 1185, § 149. The section was derived from Acts 1977, No. 725, § 2; A.S.A. 1947, § 22-758.1; Acts 1987, No. 430, § 1; 1999, No. 1081, § 8.

16-17-604, 16-17-605. [Repealed.]

Publisher's Notes. These sections, concerning entities restricted from bringing actions and actions by and against corporations, were repealed by Acts 2003, No. 1185, § 150, effective January 1, 2005. The sections were derived from the following sources:

16-17-604. Acts 1977, No. 725, § 3; A.S.A. 1947, § 22-758.2.

16-17-605. Acts 1979, No. 905, § 1; 1983, No. 314, § 1; A.S.A. 1947, § 22-758.16; Acts 1987, No. 430, § 12; 1988 (3rd Ex. Sess.), No. 29, § 1; 1997, No. 694, § 1.

16-17-606. [Repealed.]

Publisher's Notes. This section, concerning venue of civil actions, was repealed by Acts 2003, No. 1185, § 151, effective January 1, 2005. The section was derived from Acts 1977, No. 725, § 4; A.S.A. 1947, § 22-758.3.

16-17-607. [Repealed.]

Publisher's Notes. This section, concerning commencement of action, form of claim and notice to defendant, was repealed by Acts 2003, No. 1185, § 153, effective January 1, 2005. The section was derived from Acts 1977, No. 725, § 5; 1983, No. 280, § 1; A.S.A. 1947, § 22-758.4; Acts 1987, No. 430, § 2; 2003, No. 1185, §§ 152, 153.

16-17-608 — 16-17-610. [Repealed.]

Publisher's Notes. These sections, concerning preparation of claim form, service of process, and answer by defendant, were repealed by Acts 2003, No. 1185, § 154, effective January 1, 2005. These sections were derived from the following sources:

16-17-608. Acts 1977, No. 725, §§ 6, 7, 8; A.S.A. 1947, §§ 22-758.5, 22-758.6, 22-758.7; Acts 1987, No. 430, §§ 3-5.

16-17-609. Acts 1977, No. 725, § 7; A.S.A. 1947, § 22-758.6; Acts 1987, No. 430, § 4.

16-17-610. Acts 1977, No. 725, § 8; A.S.A. 1947, § 22-758.7; Acts 1987, No. 430, § 5.

16-17-611. [Repealed.]

Publisher's Notes. This section, concerning the form of defendant answers and claims of affirmative relief, was repealed by Acts 2003, No. 1185, § 156, effective January 1, 2005. The section was derived from Acts 1977, No. 725, § 10; A.S.A. 1947, § 22-758.9; Acts 1987, No. 430, § 6; 2003, No. 1185, §§ 155, 156.

16-17-612. [Repealed.]

Publisher's Notes. This section, concerning restrictions on participation by attorneys, the taking of evidence and third-party practice, was repealed by Acts 2003, No. 1185, § 158, effective January 1, 2005. The section was derived from Acts 1977, No. 725, §§ 9, 11, 12; 1983, No. 280, § 2; A.S.A. 1947, §§ 22-758.8, 22-758.10, 22-758.11; Acts 1987, No. 430, § 8; 2003, No. 1185, §§ 157, 158.

16-17-613. [Repealed.]

Publisher's Notes. This section, concerning judgements, orders, the awarding of costs and appeals, was repealed by Acts 2003, No. 1185, § 160, effective January 1, 2005. The section was derived from Acts 1977, No. 725, §§ 9, 11, 14-16; 1983, No. 280, § 2; A.S.A. 1947, §§ 22-758.8, 22-758.10, 22-758.13 — 22-758.15; Acts 1987, No. 430, §§ 7, 10, 11; 2003, No. 1185, §§ 159, 160.

16-17-614. [Repealed.]

Publisher's Notes. This section, concerning fees for filing claim, 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 1977, No. 725, § 13; 1981, No. 369, § 1; A.S.A. 1947, § 22-758.12; Acts 1987, No. 430, § 9. For present law, see § 16-17-705.

Subchapter 7 — District Court Civil Jurisdiction Act

Preambles. Acts 1997, No. 746 contained a preamble which read:

“WHEREAS, Arkansas Constitution, Amendment 64 authorizes the General Assembly to increase or decrease the jurisdictional limit by a two-thirds vote of each house of the General Assembly.”

Effective Dates. Acts 1987, No. 431, § 10: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that Amendment 64 has an effective date of July 1, 1987, that the smooth implementation of the Amendment requires that this law be enacted; that should the General Assembly extend the session beyond the sixtieth day, there exists a danger that this law would not be in effect on July 1, 1987; therefore, this shall be effective July 1, 1987.”

Acts 1987 (1st Ex. Sess.), No. 34, § 4: July 1, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 431 of 1987 has an effective date of July 1, 1987, that the smooth implementation of the Amendment 64 requires that this law be enacted on the same date; therefore, this shall be effective July 1, 1987.”

Acts 1995, No. 1256, § 23: Apr. 13, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state; and it is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible, and the lack of reliable data on the current costs of the state judicial system prohibits any comprehensive change in the funding of the system at this time. 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 2007, No. 663, § 56(a): Jan. 1, 2008.

Acts 2007, No. 663, § 56(b): Jan. 1, 2012.

Acts 2009, No. 345, § 57: July 1, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act is immediately necessary to coincide with the beginning of the 2009 — 2010 fiscal year to further the goal of a unified court system in order to provide judicial economy and the fair 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 July 1, 2009.”

16-17-701. Title.

This subchapter shall be known as the “District Court Civil Jurisdiction Act”.

History. Acts 1987, No. 431, § 1; 2003, No. 1185, § 161.

16-17-702. Proceedings subject to rules.

All civil cases filed in district court shall be subject to the procedural rules adopted by the Supreme Court for such cases.

History. Acts 1987, No. 431, § 2; 2003, No. 1185, §§ 161, 162.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2003, No. 1185, § 162: effective Jan. 1, 2003, by its own terms.

Case Notes

Transfers.

As is provided by Arkansas's statutory law and court rules, the municipal court had authority to transfer cause to the Washington County Circuit Court after concluding replevin action exceeded the jurisdictional amount. Bonnell v. Smith, 322 Ark. 141, 908 S.W.2d 74 (1995).

16-17-703. Right to jury trial.

There shall be no jury trials in district court. In order that the right of trial by jury remains inviolate, all appeals from judgment in district court shall be de novo to circuit court.

History. Acts 1987, No. 431, § 3; 2003, No. 1185, § 163.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Case Notes

Constitutionality.

While former § 16-17-704(a)(6) does provide for concurrent jurisdiction, nothing in Acts 1987, No. 431 suggests an intent by the legislature to abrogate the constitutional right to a trial by jury in tort actions triable in circuit court. To the contrary, this section, which deals with appeals from municipal court, clearly demonstrates the legislature's concern that the right secured by Ark. Const., Art. 2, § 7 not be diminished. McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988).

Construction with Other Law.

Although a DWI conviction is tried de novo in circuit court on appeal, the appeal does not affect the validity of the judgment of the district court until that judgment is overturned; thus, defendant's prior driving while intoxicated (DWI) conviction, which was on appeal to the circuit court, was properly used to determine defendant's fourth-offense DWI status at sentencing in a subsequent case. Swint v. State, 356 Ark. 361, 152 S.W.3d 226 (2004).

Circuit Court.

In a tort case in circuit court, there is a right to trial by jury regardless of the amount in controversy. McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988).

Default Judgment.

A defendant has a direct right of appeal to circuit court from the entry of a default judgment in municipal court. Murdock v. Slater, 326 Ark. 1067, 935 S.W.2d 540 (1996).

Failure to Appear.

The trial court complied with Ark. Const., Art. 2, § 7 by setting defendant's case for trial by jury even though defendant failed to appear at trial and, therefore, was precluded from exercising that right. Rischar v. State, 307 Ark. 429, 821 S.W.2d 25 (1991).

Cited: Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989); State v. Webb, 323 Ark. 80, 913 S.W.2d 259 (1996); Johnson v. State, 337 Ark. 196, 987 S.W.2d 694, 1999 Ark. LEXIS 172 (1999); Tackett v. Merchant's Sec. Patrol, 73 Ark. App. 358, 44 S.W.3d 349 (2001).

16-17-704. Jurisdiction — Civil Cases.

The district courts shall have subject matter jurisdiction as established by Supreme Court rule.

History. Acts 1987, No. 431, § 4; 1993, No. 961, § 1; 1997, No. 746, § 1; 2003, No. 1185, §§ 163, 164.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2003, No. 1185, § 164: effective Jan. 1, 2005, by its own terms.

Research References

U. Ark. Little Rock L.J.

Survey — Civil Procedure, 12 U. Ark. Little Rock L.J. 135.

Legislative Survey, Civil Procedure, 16 U. Ark. Little Rock L.J. 85.

Case Notes

Constitutionality.

While former subdivision (a)(6) of this section does provide for concurrent jurisdiction, nothing in Acts 1987, No. 431 suggests an intent by the legislature to abrogate the constitutional right to a trial by jury in tort actions triable in circuit court. To the contrary, § 16-17-703, which deals with appeals from municipal court (now district court), clearly demonstrates the legislature's concern that the right secured by Ark. Const., Art. 2, § 7 not be diminished. McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988).

Appeal.

Arkansas law, constitutional and statutory, provides municipal courts with no authority to hear and decide actions concerning damages to land. Accordingly, a municipal court lacks subject matter jurisdiction of a trespass on land action, and because the municipal court has no jurisdiction cause, the circuit court acquires none on appeal. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988).

Fraud.

Legal malpractice action brought against an attorney in the small claims division of the municipal court was really a claim based on fraud and, as such, the municipal court lacked subject-matter jurisdiction; the circuit court's summary judgment in favor of the attorney was proper because it could not acquire subject-matter jurisdiction on appeal, however, the court could consider the defense of lack of subject-matter jurisdiction or failure to state a claim on a summary judgment motion, pursuant to Ark. R. Civ. P. 12(b)(1) and (6). French v. Webb, 80 Ark. App. 357, 96 S.W.3d 740 (2003).

Personal Property.

Whether personal property becomes a fixture by annexation to the land depends upon the annexer's manifested intention, which can be shown by material considerations such as the character of the fixture as related to the use to which the land is being put and the manner in which the property is attached to the land. Sanders v. Putman, 315 Ark. 251, 866 S.W.2d 827 (1993).

Trial by Jury.

In a tort case in circuit court, there is a right to trial by jury regardless of the amount in controversy. McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988).

Persons are not entitled to a jury trial in municipal court except that such right to a jury trial remains inviolate when they pursue their appeal to circuit court where their case is to be tried de novo. Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989); State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995).

Cited: Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994); State v. Webb, 323 Ark. 80, 913 S.W.2d 259 (1996).

16-17-705. Filing fees and costs.

    1. The uniform filing fee to be charged by the clerks of the district courts for initiating a cause of action in district court in this state shall be as prescribed in this section.
    2. No portion of the filing fee shall be refunded.
    1. For initiating a cause of action in the civil division of district court $65.00
    2. For initiating a cause of action in the small claims division of district court $50.00
  1. A town, city, or county shall not authorize and a district court clerk shall not assess or collect any other filing fees than those authorized by this section, unless specifically provided by state law.

History. Acts 1987, No. 431, § 5; 1987 (1st Ex. Sess.), No. 34, § 1; 1995, No. 1256, § 5; 2003, No. 1185, §§ 165, 166; 2005, No. 2212, § 3; 2007, No. 663, § 3; 2009, No. 345, § 1.

Amendments. The 2007 amendment, in (b)(2), deleted “if that division is established pursuant to the Arkansas Constitution, Amendment 80, § 7(D)” following “court” and substituted “$50.00” for “$25.00”; and substituted “town, city, or county” for “municipality” in (c).

The 2009 amendment substituted “$65.00” for “50.00” in (b)(1); and made minor stylistic changes in (c).

Meaning of “this act”. Acts 1995, No. 1256, codified as §§ 5-65-115, 5-65-307, 14-20-102, 14-42-112, 16-10-133, 16-10-30116-10-310, 16-14-105, 16-17-402, 16-17-705, 16-21-106, 16-21-113, 16-21-1103, 16-21-1503, 20-7-123, 20-18-502, 21-6-403, 24-8-315.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Case Notes

Constitutionality.

The imposition of part of the expenses of municipal courts on the counties in which they are established is not violative of constitutional provisions vesting county courts with original jurisdiction in all matters relating to county affairs. Crawford County v. City of Van Buren, 201 Ark. 798, 146 S.W.2d 914 (1941) (decision under prior law).

Appropriation Not Made.

If a municipal court was created after the last prior meeting of the quorum court and no appropriation was made for the payment of the services of the judge and clerk, they could recover from the county on its liability for one-half of their salaries, provided there was a balance more than sufficient to pay those salaries. Jackson County v. Pickens, 208 Ark. 15, 184 S.W.2d 591 (1945) (decision under prior law).

Association Dues.

There is no provision in the Constitution or the statutes which gives the county court the specific authority to pay dues to the county judges' association. Ark. Ass'n of County Judges v. Green, 232 Ark. 438, 338 S.W.2d 672 (1960).

16-17-706. Venue.

  1. Except as provided in subsection (b) of this section, the venue of civil actions instituted under this subchapter shall be as in like actions instituted in the circuit courts.
  2. If a small claims division of the district court is established pursuant to Arkansas Constitution, Amendment 80, § 7, venue in civil actions instituted in the small claims division shall be as follows:
    1. When a defendant has contracted to perform an obligation in a particular county, an action based on that obligation may be commenced and maintained either in the county where the obligation is to be performed or in the county in which the defendant resides at the commencement of the action;
    2. When the action is for injury to person or to personal property, either the county where the injury occurred or the county where the defendant resides at the commencement of the action shall be the proper venue; and
    3. In all other cases, actions shall be commenced and maintained in the county in which the defendant resides.

History. Acts 2003, No. 1185, § 167.

A.C.R.C. Notes. Acts 2003, No. 1185, § 167, purports to amend former § 16-17-706, which had previously been repealed by Acts 1997, No. 788, § 32 and No. 1341, § 31; the 2003 act has been treated as an enactment.

Publisher's Notes. Former § 16-17-706, concerning disposition of filing fees and the municipal court costs fund, was repealed by Acts 1997, No. 788, § 32 and No. 1341, § 31. The section was derived from Acts 1987, No. 431, § 5; 1987 (1st Ex. Sess.), No. 34, § 1.

Effective Dates. Acts 2003, No. 1185, § 167: effective Jan. 1, 2005, by its own terms.

16-17-707. Separate accounting records of fines, etc. — Disbursements.

  1. The district court clerk shall keep three (3) separate accounting records of all fines, penalties, forfeitures, fees, and costs received by him or her for any of the officers of the town, city, or county, as provided in this subchapter:
    1. The first class of accounting records shall embrace all sums collected in the district court in all nontraffic cases which are misdemeanors or violations of the town or city ordinances and all cases which are misdemeanors or violations under state law or traffic offenses which are misdemeanors or violations under state law or town or city ordinance committed within the corporate limits of the town or city where the court sits, where the arresting officer was a police officer or other officer of the town or city, a Division of Arkansas State Police officer or other certified law enforcement officer of the state, or an officer of a private or public college or university located within the corporate limits of the town or city where the court sits;
    2. The second class of accounting records shall embrace all sums collected in the district court in all nontraffic cases which are misdemeanors or violations of county ordinances or are misdemeanors or violations of any of the laws of the state where the arresting officer was the county sheriff or a deputy sheriff or was not a police officer or other officer of the town or city where the court sits, and the offense was committed outside the corporate limits of the town or city where the court sits, and in all other criminal or traffic proceedings not specifically enumerated in this section; and
      1. The third class of accounting records shall embrace all sums collected in the district court in all civil and small claims cases.
      2. The uniform filing fee collected under § 16-17-705 shall be remitted to the city administration of justice fund.
      3. The uniform court costs collected under § 16-10-305 shall be remitted to the city administration of justice fund.
      4. All other fees and interest earned on the court account shall be disbursed to the treasurers of the political subdivisions which contribute to the expense of the district court in accordance with a written agreement among the political subdivisions.
      1. After deducting the fees due the police department and marshal's office and sheriff's office, the district court shall pay into the town or city treasury all sums collected from the first class of accounting records.
      2. The district court shall pay all sums collected from the second class of accounting records into the county treasury.
    1. Any district court that is funded solely by the county shall pay all sums collected from the first or second class of accounting records into the county treasury and shall pay all uniform filing fees and court costs collected into the county administration of justice fund.
    2. A town or city that has a police department and does not operate a district court shall receive only the prorated sums collected as provided in § 16-17-1203.
    3. Direct monetary settlements shall be made with state entities or agencies as provided by law.
  2. All disbursements from all three (3) classes of accounting records shall be pursuant to the provisions set forth in the Arkansas District Courts Accounting Law, § 16-10-201 et seq.

History. Acts 1987, No. 431, § 6; 1987 (1st Ex. Sess.), No. 34, § 2; 2003, No. 1185, § 168; 2003, No. 1765, § 22; 2005, No. 1934, § 12; 2007, No. 663, § 37; 2009, No. 411, § 1; 2009, No. 633, § 14.

Amendments. The 2007 amendment added present (b)(3), and redesignated the former (b)(3) as present (b)(4); deleted “and City Courts” following “District Courts” in (c); and made minor punctuation changes.

The 2009 amendment by No. 411 inserted present (b)(3) and redesignated former (b)(3) as (b)(4).

The 2009 amendment by No. 633 inserted “and interest earned on the court account” in (a)(3)(D).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Subchapter 8 — Appeals

16-17-801. Notice.

  1. Whenever any person appeals any civil or criminal judgment rendered in any district court of this state and requests a trial de novo in circuit court, no hearing shall be held or trial shall commence in circuit court without ten (10) days' written notice being given either to the parties, to the defendant, or to the attorneys of record, whichever is applicable, by the clerk of the court or by the case coordinator.
  2. In the event that the defense requests a continuance because of this section, the time which the trial is delayed is excludable for purposes of speedy trial.

History. Acts 1997, No. 996, § 1.

16-17-802. Combining multiple misdemeanor court convictions.

If a person who has been convicted of more than one (1) related misdemeanor offense in district court shall present otherwise lawfully sufficient documents to the circuit clerk for an appeal of the related convictions, accompanied by an affidavit of the person or his or her attorney stating that the convictions arise out of the same set of facts and circumstances, the circuit clerk shall:

  1. Combine the convictions;
  2. Prepare and file the appeal as one (1) case; and
  3. Charge only one (1) filing fee for the appeal.

History. Acts 1999, No. 232, § 1; 2001, No. 1809, § 10; 2011, No. 1132, § 10; 2015, No. 1152, § 3; 2017, No. 253, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Amendments. The 2011 amendment substituted “district court or city court” for “municipal court, district court, city court, or police court” in the introductory language.

The 2015 amendment redesignated (2)(A) and (2)(B) as (2) and (3).

The 2017 amendment deleted “or city court” following “district court”.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Subchapter 9 — Judicial Districts — Judges For District Courts

Effective Dates. Acts 2005, No. 72, § 7: Feb. 7, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the districts courts in various counties must have departments located in various parts of the county to ensure that sufficient courtrooms and resources are available for the operation of the court system in the counties; that the statutes creating the district courts must be clarified to reflect the establishment of the various departments; and that this act is immediately necessary to ensure the continued operation of the departments of the district courts. 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. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Acts 2009, No. 345, § 57: July 1, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act is immediately necessary to coincide with the beginning of the 2009 — 2010 fiscal year to further the goal of a unified court system in order to provide judicial economy and the fair 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 July 1, 2009.”

16-17-901. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Department” means the physical location where sessions of district court are held; and
  2. “Division” means the subject matter division of the district court.

History. Acts 2003, No. 1727, § 1; 2017, No. 723, § 1.

Amendments. The 2017 amendment inserted “district” preceding “court” in (1) and (2).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-902. Counties having one district court.

  1. Each of the following counties shall have one (1) district court and one (1) district judge:
    1. Howard;
    2. Montgomery;
    3. Perry;
    4. Polk;
    5. Randolph;
    6. Scott;
    7. Sevier; and
    8. Stone.
  2. The district court shall be located in the county seat of each county listed in subsection (a) of this section.
    1. The judge of any district court located in a county with one (1) district court shall be elected countywide.
    2. If there is only one (1) district court in a county, it shall have countywide jurisdiction.

History. Acts 2003, No. 1727, § 2; 2005, No. 72, § 1; 2007, No. 663, §§ 4, 38; 2009, No. 345, § 2; 2017, No. 723, § 1.

Amendments. The 2005 amendment, in (a)(2), deleted “Lawrence,” “Poinsett,” “Sharp” and “Woodruff” and made related changes.

The 2007 amendment by No. 663, § 4, in (a), deleted former (1), (2), (17) and (38), and redesignated the remaining subsections accordingly.

The 2007 amendment by No. 663, § 38 rewrote (a).

The 2009 amendment deleted (a)(4), which read: “Cleburne,” and redesignated the remaining subdivisions accordingly.

The 2017 amendment rewrote (a).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-903. [Repealed.]

Publisher's Notes. This section, concerning Crittenden County District Courts, was repealed by Acts 2017, No. 723, § 1. The section was derived from Acts 2003, No. 1727, § 3; 2007, No. 663, § 39.

16-17-904. Arkansas County District Courts.

  1. Arkansas County shall have the following district courts and judges:
    1. The Northern District shall have:
      1. One (1) district court located in Stuttgart; and
      2. One (1) district judge; and
      1. The Southern District shall have one (1) district court with three (3) departments:
        1. One (1) located in DeWitt;
        2. One (1) located in Gillett; and
        3. One (1) located in St. Charles.
      2. All three (3) departments are to be served by one (1) judge.
  2. The judge of any district court located in Arkansas County shall be elected by the electors of the judicial district in which the court is located.
  3. In Arkansas County, the jurisdiction of the district court shall be limited to the judicial district in which the court is located.

History. Acts 2003, No. 1727, § 4; 2005, No. 72, § 2; 2007, No. 663, §§ 5, 40; 2017, No. 723, § 1.

Amendments. The 2005 amendment substituted “and Mississippi” for “Mississippi, and Prairie” throughout this section.

The 2007 amendment by No. 663, § 5 substituted “and Logan” for “Logan, and Mississippi” throughout the section.

The 2007 amendment by No. 663, § 40 rewrote the section heading and rewrote the section.

The 2017 amendment made no changes to this section.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-905, 16-17-906. [Repealed.]

Publisher's Notes. These sections, concerning the Sebastian County District Courts and the Craighead County District Court, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-905. Acts 2003, No. 1727, § 5; 2007, No. 663, § 6.

16-17-906. Acts 2003, No. 1727, § 6; 2005, No. 72, § 6.

16-17-907. Clay County District Court.

    1. Clay County shall have one (1) district court with three (3) departments:
      1. One (1) located in Corning;
      2. One (1) located in Piggott; and
      3. One (1) located in Rector.
    2. All three (3) departments are to be served by one (1) judge.
  1. The Clay County District Court Judge shall be elected countywide.
  2. The Clay County District Court shall have countywide jurisdiction.

History. Acts 2003, No. 1727, § 7; 2005, No. 72, § 3; 2017, No. 723, § 1.

Amendments. The 2005 amendment rewrote (a).

The 2017 amendment made no changes to this section.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-908 — 16-17-911. [Repealed.]

Publisher's Notes. These sections, concerning the Ashley County District Courts, the Benton County District Courts, the Chicot County District Court, and the Desha County District Court, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-908. Acts 2003, No. 1727, § 8.

16-17-909. Acts 2003, No. 1727, § 9; 2003 (2nd Ex. Sess.), No. 45, § 1; 2007, No. 663, § 7; 2011, No. 1132, § 11.

16-17-910. Acts 2003, No. 1727, § 10.

16-17-911. Acts 2003, No. 1727, § 11.

16-17-912. Garland County District Court.

    1. Garland County shall have one (1) district court with three (3) departments:
      1. Two (2) located in Hot Springs; and
      2. One (1) located in Mountain Pine.
    2. All three (3) departments are to be served by two (2) judges.
  1. The judges of Garland County District Court shall be elected countywide.
  2. The Garland County District Court shall have countywide jurisdiction.

History. Acts 2003, No. 1727, § 12; 2007, No. 663, § 41; 2017, No. 723, § 1.

Amendments. The 2007 amendment rewrote (a).

The 2017 amendment made no changes to this section.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-913. [Repealed.]

Publisher's Notes. This section, concerning Jefferson County District Courts, was repealed by Acts 2017, No. 723, § 1. The section was derived from Acts 2003, No. 1727, § 13; 2007, No. 663, § 42.

16-17-914. Lonoke County District Courts.

  1. Lonoke County, having two (2) judicial districts, shall have the following district courts and judges:
      1. The Northern District of Lonoke County shall have one (1) district court, with three (3) departments:
        1. One (1) located in Cabot;
        2. One (1) located in Ward; and
        3. One (1) located in Austin.
      2. All three (3) departments are to be served by one (1) district judge; and
      1. The Southern District of Lonoke County shall have one (1) district court with five (5) departments as follows:
        1. One (1) located in Lonoke;
        2. One (1) located in England;
        3. One (1) located in Carlisle;
        4. One (1) located in Allport; and
        5. One (1) located in Humnoke.
      2. All five (5) departments are to be served by one (1) judge.
  2. The district court boundaries in Lonoke County shall be as follows:
    1. The Northern District of Lonoke County shall consist of the townships of Butler, Caroline, Cleveland, Eagle, Goodrum, Magness, Oak Grove, Prairie, Totten, Ward, and York; and
    2. The Southern District of Lonoke County shall consist of the townships of Carlisle, Crooked Creek, Dortch, Fletcher, Furlow, Gum Woods, Gray, Hamilton, Indian Bayou, Isbell, Lafayette, Lonoke, Pettus, Richwoods, Pulaski, Scott, Williams, and Walls.
  3. The judge of any district court in Lonoke County shall be elected by the qualified electors of the judicial district in which the court is located.
  4. The jurisdiction of each district court in Lonoke County shall be limited to the judicial district in which the court is located.

History. Acts 2003, No. 1727, § 14; 2003 (2nd Ex. Sess.), No. 76, § 1; 2005, No. 72, § 4; 2007, No. 663, § 43; 2017, No. 723, § 1.

Amendments. The 2005 rewrote (a)(1)(A).

The 2007 amendment rewrote (a); and inserted “judicial” in (d).

The 2017 amendment deleted former (a)(2)(B) and (a)(2)(C); redesignated former (a)(2)(D) as (a)(2)(B); and substituted “All five (5) departments” for “All three (3) departments in Carlisle, Allport, and Humnoke” in (a)(2)(B).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-915. Monroe County District Court.

    1. Monroe County shall have one (1) district court with three (3) departments as follows:
      1. One (1) located in Brinkley;
      2. One (1) located in Clarendon; and
      3. One (1) located in Holly Grove.
      1. The department in Brinkley is to be served by one (1) judge.
      2. The two (2) departments in Clarendon and Holly Grove are to be served by one (1) judge.
  1. The judges of the Monroe County District Court shall be elected countywide.
  2. The Monroe County District Court shall have countywide jurisdiction.

History. Acts 2003, No. 1727, § 15; 2007, No. 663, § 44; 2017, No. 723, § 1.

Amendments. The 2007 amendment rewrote (a).

The 2017 amendment substituted “department in Brinkley” for “Brinkley Department” in (a)(2)(A).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-916. Ouachita County District Courts.

  1. Ouachita County shall have the following district courts and judges:
    1. Camden shall have:
      1. One (1) district court; and
      2. One (1) judge; and
      1. East Camden shall have one (1) district court with four (4) departments:
        1. One (1) located in Bearden;
        2. One (1) located in Chidester;
        3. One (1) located in East Camden; and
        4. One (1) located in Stephens.
      2. All four (4) departments are to be served by one (1) judge.
    1. The judge of the Camden District Court shall be elected countywide.
    2. The Camden District Court shall have countywide jurisdiction.
    1. The judge of the East Camden District Court shall be elected countywide.
    2. The East Camden District Court shall have countywide jurisdiction.

History. Acts 2003, No. 1727, § 16; 2007, No. 663, § 45; 2017, No. 723, § 1.

Amendments. The 2007 amendment rewrote (a); and inserted “countywide” in (c)(1) and (2).

The 2017 amendment made no changes to this section.

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-917 — 16-17-921. [Repealed.]

Publisher's Notes. These sections, concerning the Phillips County District Court, the Saline County District Court, the Washington County District Courts, the White County District Court, and the Pulaski County District Courts, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-917. Acts 2003, No. 1727, § 17; 2007, No. 39, § 1; 2007, No. 663, § 46.

16-17-918. Acts 2003, No. 1727, § 18; 2007, No. 663, § 8.

16-17-919. Acts 2003, No. 1727, § 19; 2003 (2nd Ex. Sess.), No. 24, § 1; 2007, No. 55, § 1; 2007, No. 663, § 47.

16-17-920. Acts 2003, No. 1727, § 20; 2007, No. 663, § 48.

16-17-921. Acts 2003, No. 1727, § 21; 2007, No. 663, § 49.

16-17-922. Yell County District Courts.

    1. Yell County, having two (2) judicial districts, shall have two (2) district courts with one (1) department located in the Northern District.
    2. The two (2) judicial districts shall each have one (1) part-time judge serviced by the one (1) department in the Northern District.
  1. The judge of each district court in Yell County shall have jurisdiction within each respective Northern and Southern District.
  2. The judge shall be elected within each respective district.

History. Acts 2003, No. 1727, § 22; 2017, No. 723, § 1.

Amendments. The 2017 amendment deleted former (b); and redesignated former (c) and (d) as (b) and (c).

Cross References. District court generally, § 16-17-132.

Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

16-17-923, 16-17-924. [Repealed.]

Publisher's Notes. These sections, concerning district courts established and election of district judges and the Poinsett County District Court, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-923. Acts 2003, No. 1727, § 24.

16-17-924. Acts 2005, No. 72, § 5; 2007, No. 663, § 9.

16-17-925. Sharp County District Court.

    1. Sharp County shall have one (1) district court with two (2) departments:
      1. One (1) located in Ash Flat; and
      2. One (1) located in Cherokee Village.
    2. Both departments are to be served by (1) judge.
  1. The Sharp County District Court Judge shall be elected countywide.
  2. The Sharp County District Court shall have countywide jurisdiction.

History. Acts 2005, No. 72, § 5; 2017, No. 723, § 1.

Amendments. The 2017 amendment made no changes to this section.

16-17-926. Woodruff County District Court.

    1. Woodruff County shall have one (1) district court with four (4) departments:
      1. One (1) located in Augusta;
      2. One (1) located in Cotton Plant;
      3. One (1) located in McCrory; and
      4. One (1) located in Patterson.
    2. All four (4) departments are to be served by one (1) judge.
  1. The Woodruff County District Court Judge shall be elected countywide.
  2. The Woodruff County District Court shall have countywide jurisdiction.

History. Acts 2005, No. 72, § 5; 2011, No. 1218, § 5; 2017, No. 723, § 1.

Amendments. The 2011 amendment substituted “four (4)” for “three (3)” in the introductory language of (a)(1) and in (a)(2); and inserted (a)(1)(D).

The 2017 amendment made no changes to this section.

16-17-927. [Repealed.]

Publisher's Notes. This section, concerning Prairie County District Courts, was repealed by Acts 2017, No. 723, § 1. The section was derived from Acts 2005, No. 72, § 5.

16-17-928. Lawrence County District Court.

    1. Lawrence County shall have one (1) district court with four (4) departments:
      1. One (1) located in Walnut Ridge;
      2. One (1) located in Hoxie;
      3. One (1) located in Black Rock; and
      4. One (1) located in Portia.
    2. All four (4) departments are to be served by one (1) judge.
  1. The Lawrence County District Court Judge shall be elected countywide.
  2. The Lawrence County District Court shall have countywide jurisdiction.

History. Acts 2005, No. 72, § 5; 2007, No. 663, § 50; 2017, No. 723, § 1.

Amendments. The 2007 amendment substituted “four (4)” for “two (2)” in (a)(1); added (a)(1)(C) and (D); substituted “All four (4)” for “Both” in (a)(2); and made related changes.

The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-929 — 16-17-932. [Repealed.]

Publisher's Notes. These sections, concerning the Mississippi County District Courts, the Greene County District Court, the Carroll County District Courts, and the Pope County District Court, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-929. Acts 2007, No. 663, §§ 10, 51.

16-17-930. Acts 2007, No. 663, § 11.

16-17-931. Acts 2007, No. 663, § 51.

16-17-932. Acts 2007, No. 663, § 12.

16-17-933. Franklin County District Courts.

  1. Franklin County, having two (2) judicial districts, shall have the following district courts and judges:
    1. The Charleston District shall have:
      1. One (1) district court located in Charleston; and
      2. One (1) district judge; and
      1. The Ozark District shall have one (1) district court with two (2) departments:
        1. One (1) located in Ozark; and
        2. One (1) located in Altus.
      2. Both departments are to be served by one (1) district judge.
  2. The judge of any district court located in Franklin County shall be elected by the electors of the judicial district in which the court is located.
  3. In Franklin County, the jurisdiction of the district court shall be limited to the judicial district in which the court is located.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-934. [Repealed.]

Publisher's Notes. This section, concerning the Baxter County District Court, was repealed by Acts 2017, No. 723, § 1. The section was derived from Acts 2007, No. 663, § 13.

16-17-935. Logan County District Courts.

  1. Logan County, having two (2) judicial districts, shall have the following district courts and judges:
    1. The Northern District shall have:
      1. One (1) district court located in Paris; and
      2. One (1) district judge; and
      1. The Southern District shall have one (1) district court with two (2) departments:
        1. One (1) located in Booneville; and
        2. One (1) located in Magazine.
      2. Both departments are to be served by one (1) district judge.
  2. The judge of any district court located in Logan County shall be elected by the electors of the judicial district in which the court is located.
  3. In Logan County, the jurisdiction of the district court shall be limited to the judicial district in which the court is located.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment deleted the comma following “Logan County” in (b).

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-936, 16-17-937. [Repealed.]

Publisher's Notes. These sections, concerning the Cleburne County District Court and the Boone County District Court, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-936. Acts 2007, No. 663, § 51; 2015, No. 1001, § 1.

16-17-937. Acts 2007, No. 663, § 14.

16-17-938. Columbia County District Court.

    1. Columbia County shall have one (1) district court with two (2) departments:
      1. One (1) located in Magnolia; and
      2. One (1) located in Waldo.
    2. Both departments are to be served by one (1) judge.
  1. The Columbia County District Court Judge shall be elected countywide.
  2. The Columbia County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-939. Conway County District Court.

    1. Conway County shall have one (1) district court with four (4) departments:
      1. One (1) located in Morrilton;
      2. One (1) located in Menifee;
      3. One (1) located in Oppelo; and
      4. One (1) located in Plumerville.
    2. All four (4) departments are to be served by one (1) judge.
  1. The Conway County District Court Judge shall be elected countywide.
  2. The Conway County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2011, No. 1218, § 6; 2017, No. 723, § 1.

Amendments. The 2011 amendment substituted “four (4)” for “three (3)” in the introductory language of (a)(1) and in (a)(2); and inserted (a)(1)(D).

The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-940. [Repealed.]

Publisher's Notes. This section, concerning the Crawford County District Court, was repealed by Acts 2017, No. 723, § 1. The section was derived from Acts 2007, No. 663, § 51.

16-17-941. Cross County District Court.

    1. Cross County shall have one (1) district court with three (3) departments:
      1. One (1) located in Wynne;
      2. One (1) located in Cherry Valley; and
      3. One (1) located in Parkin.
    2. All three (3) departments are to be served by one (1) judge.
  1. The Cross County District Court Judge shall be elected countywide.
  2. The Cross County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-942, 16-17-943. [Repealed.]

Publisher's Notes. These sections, concerning the Dallas County District Court and the Faulkner County District Court, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-942. Acts 2007, No. 663, § 51.

16-17-943. Acts 2007, No. 663, § 51.

16-17-944. Fulton County District Court.

    1. Fulton County shall have one (1) district court with two (2) departments:
      1. One (1) located in Salem; and
      2. One (1) located in Mammoth Spring.
    2. Both departments are to be served by one (1) judge.
  1. The Fulton County District Court Judge shall be elected countywide.
  2. The Fulton County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-945. [Repealed.]

Publisher's Notes. This section, concerning the Hot Spring County District Court, was repealed by Acts 2017, No. 723, § 1. The section was derived from Acts 2007, No. 663, § 51.

16-17-946. Izard County District Court.

    1. Izard County shall have one (1) district court with two (2) departments:
      1. One (1) located in Melbourne; and
      2. One (1) located in Horseshoe Bend.
    2. Both departments are to be served by one (1) judge.
  1. The Izard County District Court Judge shall be elected countywide.
  2. The Izard County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment substituted “two (2)” for “three (3)” in the introductory language of (a)(1); deleted former (a)(1)(B); redesignated former (a)(1)(C) as (a)(1)(B); and substituted “Both” for “All three (3)” in (a)(2).

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-947. Jackson County District Court.

    1. Jackson County shall have one (1) district court with four (4) departments:
      1. One (1) located in Newport;
      2. One (1) located in Diaz;
      3. One (1) located in Swifton; and
      4. One (1) located in Tuckerman.
    2. All four (4) departments are to be served by one (1) judge.
  1. The Jackson County District Court Judge shall be elected countywide.
  2. The Jackson County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-948. Johnson County District Court.

    1. Johnson County shall have one (1) district court with three (3) departments:
      1. One (1) located in Clarksville;
      2. One (1) located in Lamar; and
      3. One (1) located in Coal Hill.
    2. All three (3) departments are to be served by one (1) judge.
  1. The Johnson County District Court Judge shall be elected countywide.
  2. The Johnson County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-949, 16-17-950. [Repealed.]

Publisher's Notes. These sections, concerning the Lafayette County District Court and the Lincoln County District Court, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-949. Acts 2007, No. 663, § 51.

16-17-950. Acts 2007, No. 663, § 51.

16-17-951. Little River County District Court.

    1. Little River County shall have one (1) district court with three (3) departments:
      1. One (1) located in Ashdown;
      2. One (1) located in Foreman; and
      3. One (1) located in Winthrop.
    2. All departments are to be served by one (1) judge.
  1. The Little River County District Court Judge shall be elected countywide.
  2. The Little River County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2011, No. 1218, § 7; 2017, No. 723, § 1.

Amendments. The 2011 amendment substituted “three (3)” for “two (2)” in the introductory language of (a)(1); and inserted (a)(1)(C).

The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-952. [Repealed.]

Publisher's Notes. This section, concerning Marion County District Court, was repealed by Acts 2017, No. 723, § 1. The section was derived from Acts 2007, No. 663, § 51.

16-17-953. Pike County District Court.

    1. Pike County shall have one (1) district court with two (2) departments:
      1. One (1) located in Murfreesboro; and
      2. One (1) located in Glenwood.
    2. Both departments are to be served by one (1) judge.
  1. The Pike County District Court Judge shall be elected countywide.
  2. The Pike County District Court shall have countywide jurisdiction.

History. Acts 2007, No. 663, § 51; 2017, No. 723, § 1.

Amendments. The 2017 amendment made no changes to this section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-954 — 16-17-957. [Repealed.]

Publisher's Notes. These sections, concerning the St. Francis County District Court, the Van Buren County District Court, the Perry County District Court, and the Clark County District Court, were repealed by Acts 2017, No. 723, § 1. The sections were derived from the following sources:

16-17-954. Acts 2007, No. 663, § 51.

16-17-955. Acts 2007, No. 663, § 51.

16-17-956. Acts 2007, No. 663, § 51; 2011, No. 1218, § 8.

16-17-957. Acts 2007, No. 663, § 51; 2011, No. 1218, § 9.

Subchapter 10 — District Court Resource Assessment

16-17-1001. Legislative findings.

The General Assembly finds that:

  1. The goal expressed by Arkansas citizens with the adoption of Amendment 80 to the Arkansas Constitution was the creation of a three-tiered, unified court system;
  2. The current structure of limited jurisdiction courts consists of a combination of full-time and part-time district and city court judges funded by city and county governments;
  3. Based on availability of local resources, the cumulative effect of the creation and funding of those courts by local governments has been an unequal level of access to and an inequitable distribution of judicial services to communities;
  4. While Amendment 80 does not require the state to fund the district court system, there is a state interest in providing a more uniform level of judicial resources to all citizens of the state;
  5. Because the current system of limited jurisdiction courts is not uniform, it is contrary to the interest of the state to merely shift the funding of the system from local government to state government without addressing the district court system's structure;
  6. A way of addressing the shortage of resources for circuit courts in some areas of the state is the expansion of the jurisdiction of the district court, which will shift cases from the circuit court to the district court and reduce expenses for the state;
  7. A state-funded district court system should include an analysis by the state that furthers the goal of a unified and equitable system for the delivery of judicial services; and
  8. It is the intent of this subchapter to begin that analysis process by establishing a pilot program that creates a limited number of state-funded district court judgeships and a process for the study and consideration of establishing additional district courts in the future.

History. Acts 2007, No. 663, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

16-17-1002. District Court Resource Assessment Board.

  1. There is created the District Court Resource Assessment Board.
    1. The board shall consist of eleven (11) members appointed as follows:
      1. Two (2) members of the Senate appointed by the Chair of the Senate Committee on Judiciary;
      2. Two (2) members of the House of Representatives appointed by the Chair of the House Committee on Judiciary; and
      3. Seven (7) members appointed by the Supreme Court as follows:
        1. Two (2) members of the Arkansas District Judges Council;
        2. One (1) member of the Association of Arkansas Counties;
        3. One (1) member of the Arkansas Municipal League;
        4. One (1) Justice of the Supreme Court;
        5. One (1) member of the Arkansas Bar Association who is engaged in the full-time private practice of law; and
        6. One (1) circuit judge.
    2. The board shall have three (3) ex officio members who shall serve as nonvoting members:
      1. The Chair of the Senate Committee on Judiciary or his or her designee;
      2. The Chair of the House Committee on Judiciary or his or her designee; and
      3. The Attorney General or his or her designee.
      1. Each member of the board shall serve a term of four (4) years.
      2. However, the initial board members shall serve terms to be determined by lot so that:
        1. Two (2) members serve an initial term of one (1) year;
        2. Three (3) members serve an initial term of two (2) years;
        3. Three (3) members serve an initial term of three (3) years; and
        4. Three (3) members serve an initial term of four (4) years.
      3. A member may be reappointed successively for one (1) four-year term.
    3. If a vacancy occurs on the board, the original appointing authority shall appoint a successor to serve the remainder of the unexpired term.
    4. The board shall elect annually one (1) member to serve as chair and one (1) member to serve as secretary.
    5. The board shall meet:
      1. Initially whenever called by the Supreme Court;
      2. On or before the first Tuesday of the December before each regular session of the General Assembly to consider making a recommendation to the General Assembly for:
        1. The creation and placement of new state-funded district court judgeships;
        2. Any redistricting of the district courts; and
        3. The reorganization, consolidation, abolition, or creation of any district court or district court judgeship;
      3. Upon the end of the term, resignation, retirement, death, or election to another judicial office of any district judge to:
        1. Recommend the reorganization, consolidation, abolition, or continuation of that district court judgeship to the General Assembly; and
          1. Evaluate the status of the vacated district court judgeship and make a recommendation to the General Assembly before the next regular session, fiscal session, or special session or during a current session.
          2. An appointment or election to fill a vacant district court judgeship does not affect the mandatory evaluation required by subdivision (b)(6)(C)(ii)(a ) of this section; and
      4. Upon the call of the chair or a majority of the board.
    6. Six (6) members of the board is a quorum for the transaction of business.
    7. Members of the board shall serve without pay, but may be reimbursed for expenses under § 25-16-902.

History. Acts 2007, No. 663, § 1; 2009, No. 962, § 35.

Amendments. The 2009 amendment inserted “session, fiscal session” preceding “or special session” in (b)(6)(C)(ii)(a).

16-17-1003. Duties of the District Court Resource Assessment Board.

The District Court Resource Assessment Board shall recommend to the General Assembly at each regular session:

  1. Criteria for the creation and placement of full-time, state-funded district court judgeships;
  2. Revisions of current district court judgeships or the redistricting of the district court districts of this state after considering:
    1. The caseload and the geographic area of the district court district;
    2. The November 25, 2002, per curiam opinion of the Supreme Court; and
    3. Any other matter the board determines to be appropriate; and
  3. The number and placement of full-time, state-funded district court judgeships.

History. Acts 2007, No. 663, § 1.

Subchapter 11 — Pilot State District Courts

Effective Dates. Acts 2007, No. 663, § 56(a): Jan. 1, 2008.

Acts 2009, No. 345, § 57: July 1, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act is immediately necessary to coincide with the beginning of the 2009 — 2010 fiscal year to further the goal of a unified court system in order to provide judicial economy and the fair 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 July 1, 2009.”

Acts 2009, No. 356, § 2: Mar. 10, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that Alpena and Salesville were inadvertently left out of Act 663 of 2007; and that this act is immediately necessary to further the goal of unified court system to provide judicial economy and fair administration of justice. 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 2017, No. 172, § 2: Feb. 15, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that a state district court has been approved in Green Forest; that it is in the interest of Arkansas and the Third District to promote an efficient and fair judiciary; and that this act is immediately necessary because the people served by the Third District are entitled to the operation of a district court in Green Forest. 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. 935, § 4: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the twenty-fifth judicial district has an immediate need for an additional district court judge due to the number of cases pending in the judicial district. 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”.

16-17-1101. Legislative findings.

The General Assembly finds that:

  1. The goal expressed by Arkansas citizens with the adoption of Amendment 80 to the Arkansas Constitution was the creation of a three-tiered unified court system;
  2. The current structure of limited jurisdiction courts consists of a combination of full-time and part-time district and city courts funded by city and county governments;
  3. Based on availability of local resources, the cumulative effect of the creation and funding of those courts by local governments has been an unequal level of access to and an inequitable distribution of judicial services to communities;
  4. While Amendment 80 to the Arkansas Constitution does not require the state to fund the district court system, there is a state interest in providing a more uniform level of judicial resources to all citizens of the state;
  5. Because the current system of limited jurisdiction courts is not uniform, it is contrary to the interest of the state to merely shift the funding of the system from local government to state government without addressing the structure of the district court system;
  6. A way of addressing the shortage of resources for circuit courts in some areas of the state is the expansion of the jurisdiction of the district court which will shift cases from circuit court to district court and reduce expenses for the state;
  7. A state-funded system should include an analysis by the state that furthers the goal of a unified and equitable system for the delivery of judicial services;
  8. The District Court Resource Assessment Board, created in § 16-17-1001 et seq., has studied the effectiveness of the state's creation of pilot district courts and found that they are successful in creating a more uniform and equitable judicial system, reducing the number of district and city court judges, maintaining the level of service to the communities served by district and city courts, allowing the shift of cases from circuit to district courts, decreasing the number of conflicts requiring the appointment of special judges, and improving public access to the court system;
  9. The state should continue the incremental creation of state district courts served by full-time judges and designate geographic districts that have sufficient caseloads to justify a full-time judge until the system is implemented and operating statewide on January 1, 2017; and
  10. For purposes of the program, cities and counties should keep one hundred percent (100%) of all their current revenue from fines and costs with the exception of the adjustment from the cost-sharing formula.

History. Acts 2007, No. 663, § 2; 2011, No. 1219, § 1.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Amendments. The 2011 amendment rewrote (8); inserted present (9) and redesignated the remaining subdivision accordingly; and deleted “pilot” preceding “program” in (10).

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Case Notes

District Court Clerk.

Federal district court erred in dismissing plaintiff's § 1983 action alleging that defendant city violated her constitutional rights by failing to document that she paid certain fines and requesting issuance of a warrant for her arrest, as the complaint stated at least a plausible claim that the Phillips County district court clerk was a city official at the time of the alleged wrongdoing, rather than a state official, in which case the city could be accountable for actions of the clerk that established or carried out an unconstitutional policy or custom of the municipality. Evans v. City of Helena-West Helena, 912 F.3d 1145 (8th Cir. 2019).

It was not until after the events alleged in the complaint that Phillips County was one of several counties that were reorganized as state district courts and served by a state district court judge. Before that time, state law gave cites and counties authority to set salaries for the district court clerk, and the complaint alleged that employees of the district court were hired by the city and paid by the city. Evans v. City of Helena-West Helena, 912 F.3d 1145 (8th Cir. 2019).

Reorganization.

Due process violation arising from a district court judge's installment fee policy could be imputed to the city because the judge was an employee of the city since the Little Rock District Court had not yet been reorganized as a state district court at the times relevant to the case; the Little Rock District Court was not part of the state district court program at the time of the events alleged in the complaint. City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

16-17-1102. Definitions.

As used in this subchapter:

  1. “Department” means the physical location where sessions of court are held;
  2. “District” means the geographical area in which a state district court may exercise jurisdiction and from which a state district court judge is elected;
  3. “Division” means the designation of the judicial positions for case management or election purposes and does not refer to “subject matter divisions” under Arkansas Constitution, Amendment 80, § 7;
  4. “Local district court” includes a department of a district court;
    1. “State district court” means a district court that is created by this subchapter and has:
      1. Criminal jurisdiction, as established by the General Assembly; and
      2. Civil jurisdiction, as established by the Supreme Court.
    2. “State district court” includes a department of a state district court; and
  5. “State district court judge” means a full-time judge:
    1. Whose salary is paid by the state;
    2. Who is not engaged in the private practice of law; and
    3. Who is available for work in circuit court under rules adopted by the Supreme Court.

History. Acts 2007, No. 663, § 2; 2011, No. 1219, § 2.

Amendments. The 2011 amendment deleted former (1) through (3) and inserted present (1) through (6).

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-1103. [Repealed.]

Publisher's Notes. This section, concerning creation of pilot state district court judgeships, was repealed by Acts 2011, No. 1219, § 3. The section was derived from Acts 2007, No. 663, § 2; 2009, No. 345, § 3.

16-17-1104. State district court judges — Salaries.

  1. The judges who are appointed or elected to serve the courts created under this subchapter are state district court judges.
  2. The salaries of the state district court judges are uniform and shall be paid with moneys appropriated from the Constitutional Officers Fund, § 19-5-205, by the General Assembly.

History. Acts 2007, No. 663, § 2; 2009, No. 345, § 4; 2011, No. 1219, § 4.

Amendments. The 2009 amendment substituted “16-17-1103” for “16-17-1003” in (a).

The 2011 amendment rewrote the section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-1105. [Repealed.]

Publisher's Notes. This section, concerning consolidation of city courts with district courts, was repealed by Acts 2017, No. 723, § 2. The section was derived from Acts 2007, No. 663, § 2; 2009, No. 345, § 5; 2009, No. 356, § 1.

16-17-1106. Salary of state district court judges — Cost-sharing.

  1. The state shall pay the salary and benefits of state district court judges created under this subchapter.
      1. Each county and town or city in a district in which a state district court judgeship is created under this subchapter shall pay to the state an amount equal to its proportionate share of one-half (½) of the base salary established by law for state fiscal year 2009 for that district's state district court judge.
        1. The proportionate share is calculated as follows:
          1. Determine the sum total of the base salary paid by each county and town or city in a district to that county and town or city's district court judge or city court judge for the calendar year immediately preceding the creation of the state district court judgeship; and
          2. Determine the proportion of the base salary of each county and town or city to the sum total base salary of the district.
        2. Each county and town or city shall pay to the state its proportionate share as determined in subdivision (b)(1)(B)(i)(a) of this section of one-half (½) of the base salary established by law for state fiscal year 2009 for each state district court judge in the district at the time the county and town or city had a state district court judgeship created.
      2. On a form provided by the Administration of Justice Funds Section, each county and town or city in a district shall certify annually on or before October 31 the amount to be paid to the state for its share of one-half (½) of the salary as determined in this section for that district's state district court judge.
      1. This section does not prohibit a county and town or city in a district in which a state district court judgeship is created under this subchapter from agreeing in writing on the amount to be paid to the state by the county and the town or city for its proportionate share of one-half (½) of the salary as determined in this section for that district's state district court judge.
      2. If a written agreement is reached under subdivision (b)(2)(A) of this section, the county and town or city shall submit on or before October 31 a copy of that written agreement to the Administration of Justice Funds Section.
  2. The amount of the state district court judge's salary initially paid by the county and the town or city in a district and annually afterwards shall be the amount determined under subsection (b) of this section.
    1. Beginning with its annual meeting of 2011, the quorum court in each county in a district in which a state district court judgeship is created under this subchapter and the council in each town or city in a district in which a state district court judgeship is created under this subchapter shall appropriate annually from its general revenues an amount sufficient to pay its share of the state district court judgeship salary allocated to it under subsection (b) of this section.
    2. The duty under subdivision (d)(1) of this section may be enforced in a court of competent jurisdiction.
  3. On or before December 15, 2011, and annually afterwards, the Administration of Justice Funds Section shall certify to the county and the town or city in each district the amount of its share of one-half (½) of the base salary established under subsection (b) of this section.
  4. On or before January 15, 2012, and annually afterwards, the county and the town or city shall remit to the Administration of Justice Funds Section for deposit into the Constitutional Officers Fund the sum necessary to fund its share of the base salary allocated to it under subsection (e) of this section.

History. Acts 2007, No. 663, § 2; 2011, No. 1219, § 5.

Amendments. The 2011 amendment rewrote the section.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-1107. Salary of judges serving city or county.

This subchapter shall not in any way limit the power and authority of local district courts currently existing. Except for the state district court judgeships created under this subchapter, a judge serving in another full-time or part-time local district court position shall continue to be an employee of the cities or counties, or both, that he or she serves and shall be paid according to state law.

History. Acts 2007, No. 663, § 2; 2011, No. 1219, § 6.

Amendments. The 2011 amendment substituted “local district courts” for “other district courts” and substituted “part-time local district court position” for “part-time district court position.”

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

Case Notes

District Court Clerk.

Federal district court erred in dismissing plaintiff's § 1983 action alleging that defendant city violated her constitutional rights by failing to document that she paid certain fines and requesting issuance of a warrant for her arrest, as the complaint stated at least a plausible claim that the Phillips County district court clerk was a city official at the time of the alleged wrongdoing, rather than a state official, in which case the city could be accountable for actions of the clerk that established or carried out an unconstitutional policy or custom of the municipality. Evans v. City of Helena-West Helena, 912 F.3d 1145 (8th Cir. 2019).

It was not until after the events alleged in the complaint that Phillips County was one of several counties that were reorganized as state district courts and served by a state district court judge. Before that time, state law gave cites and counties authority to set salaries for the district court clerk, and the complaint alleged that employees of the district court were hired by the city and paid by the city. Evans v. City of Helena-West Helena, 912 F.3d 1145 (8th Cir. 2019).

Reorganization.

Due process violation arising from a district court judge's installment fee policy could be imputed to the city because the judge was an employee of the city since the Little Rock District Court had not yet been reorganized as a state district court at the times relevant to the case; the Little Rock District Court was not part of the state district court program at the time of the events alleged in the complaint. City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

16-17-1108. Travel expense reimbursement.

  1. From the appropriation provided for the expenses of state district court judges, a state district court judge is authorized to be reimbursed for those travel expenses at the rate as authorized for state employees and for mileage at the rate established in the state travel rules for state employees while traveling within the state in the performance of official duties.
  2. When a state or local district judge is appointed by the Chief Justice to hear a case or cases in a jurisdiction outside that in which he or she is elected, the judge shall be entitled to reimbursement for travel expenses and mileage as provided in subsection (a) of this section.

History. Acts 2009, No. 345, § 6; 2011, No. 274, § 8; 2011, No. 1219, § 7; 2019, No. 315, § 1298.

A.C.R.C. Notes. Acts 2011, No. 274, § 1, provided:

“Legislative intent.

“(a) Arkansas Constitution, Amendment 80, § 13(C), provides that the Chief Justice of the Arkansas Supreme Court may appoint a special judge to serve in circuit court or district court whenever a judge is disqualified or temporarily unable to serve or when there is other need for a temporary appointment, under rules prescribed by the Supreme Court.

“(b) Special judges may include retired justices or judges, active circuit judges or district judges, or licensed attorneys.

“(c) The current laws that govern the payment of special judges have not been revised since the adoption of Amendment 80 and are in conflict and need of clarification.”

Amendments. The 2011 amendment by No. 274 deleted “pilot” twice preceding “state district court” in (a); and added (b).

The 2011 amendment by No. 1219 deleted “pilot” preceding “state district court” in two places.

The 2019 amendment substituted “rules” for “regulations” in (a).

16-17-1109. Jurisdiction.

    1. State district courts are courts of limited jurisdiction with criminal jurisdiction as defined by the General Assembly and by Arkansas Constitution, Amendment 80, § 7, and civil jurisdiction as defined by the Supreme Court.
    2. State district courts may be given greater criminal and civil jurisdiction than that provided for local district courts, subject to the provisions of Arkansas Constitution, Amendment 80, §§ 7 and 10.
  1. Under rules prescribed by the Supreme Court, a state district court judge may hear cases filed in the circuit court that arise within the territorial jurisdiction of the state district court judge.
    1. Under rules prescribed by the Supreme Court, a state district court judge may be assigned by the Chief Justice to hear cases outside the territorial jurisdiction of the court.
    2. When assigned, the state district court judge is entitled to the reimbursement of travel expenses under § 16-17-1108.

History. Acts 2011, No. 1219, § 8.

16-17-1110. Organization and designation.

The following state district courts shall be organized and designated in numbered judicial districts as follows:

    1. The First District is composed of Benton County.
    2. The First District has fourteen (14) departments as follows:
      1. One (1) located in Rogers;
      2. One (1) located in Bentonville;
      3. One (1) located in Siloam Springs;
      4. One (1) located in Gentry;
      5. One (1) located in Decatur;
      6. One (1) located in Bethel Heights;
      7. One (1) located in Cave Springs;
      8. One (1) located in Centerton;
      9. One (1) located in Gravette;
      10. One (1) located in Little Flock;
      11. One (1) located in Lowell;
      12. One (1) located in Pea Ridge;
      13. One (1) located in Sulphur Springs; and
      14. One (1) located in Bella Vista.
      1. The district is served by four (4) state district court judges.
      2. One (1) judgeship shall be designated as Division 1.
      3. One (1) judgeship shall be designated as Division 2.
      4. One (1) judgeship shall be designated as Division 3.
      5. One (1) judgeship shall be designated as Division 4.
    3. The assignment of judges to departments under subdivision (1)(B) of this section is determined by the mutual agreement of the state district court judges.
    4. For the purpose of venue, the district court boundaries in Benton County are as follows:
      1. Division 1 — Rogers District Court:
        1. All of District 94, District 95, and District 96 of the House of Representatives as drawn by The Board of Apportionment in 2002;
        2. That part of District 98 of the House of Representatives as drawn by The Board of Apportionment in 2002 that is in Benton County Quorum Court District 1 as established by the Benton County Election Commission;
        3. That part of Benton County Quorum Court District 6 as established by the Benton County Election Commission that is in District 96 and District 98 of the House of Representatives as drawn by The Board of Apportionment in 2002; and
        4. All of precinct 43, precinct 44, and precinct 49 as they existed on January 1, 2011;
      2. Division 2 — Bentonville District Court:
        1. All of District 7, District 8, District 9, and District 10 except for the now-existing precinct 22, of the Benton County Quorum Court as established by the Benton County Election Commission;
        2. All of District 99 of the House of Representatives as drawn by The Board of Apportionment in 2002 except for the now-existing precinct 43, precinct 44, and precinct 49; and
        3. All of precinct 45 as it existed on January 1, 2011;
      3. Division 3 — Siloam Springs District Court:
        1. All of District 97 of the House of Representatives as drawn by The Board of Apportionment in 2002; and
        2. All of precinct 7, precinct 14, precinct 16, and precinct 17 as they existed on January 1, 2011; and
      4. Division 4 — Benton County West District Court:
        1. All of Benton County Quorum Court District 11 as established by the Benton County Election Commission; and
        2. All of precinct 6, precinct 15, precinct 18, precinct 19, and precinct 22 as they existed on January 1, 2011.
    5. The First District judges are elected districtwide.
    6. The First District court has districtwide jurisdiction;
    1. The Second District shall be composed of Washington County and the city limits of Springdale as of January 1, 2011, including that portion of the City of Springdale which extends into Benton County.
    2. The Second District shall have ten (10) departments as follows:
      1. One (1) located in Springdale;
      2. One (1) located in Elm Springs;
      3. One (1) located in Johnson;
      4. One (1) located in Fayetteville;
      5. One (1) located in Elkins;
      6. One (1) located in West Fork;
      7. One (1) located in Greenland;
      8. One (1) located in Prairie Grove;
      9. One (1) located in Lincoln; and
      10. One (1) located in Farmington.
    3. The Second District shall be served by four (4) state district court judges:
      1. One (1) judgeship shall be designated as Division 1;
      2. One (1) judgeship shall be designated as Division 2;
      3. One (1) judgeship shall be designated as Division 3; and
      4. One (1) judgeship shall be designated as Division 4.
    4. The presiding judge of the departments under subdivision (2)(B) of this section shall be determined by the mutual agreement of the state district court judges of the Second District.
    5. The Second District judges shall be elected districtwide.
    6. The Second District court shall have districtwide jurisdiction;
    1. The Third District shall be composed of Carroll County and Madison County.
    2. The Third District shall have four (4) departments as follows:
      1. One (1) located in Berryville;
      2. One (1) located in Eureka Springs;
      3. One (1) located in Huntsville; and
      4. One (1) located in Green Forest.
    3. The Third District shall be served by one (1) state district court judge.
    4. The Third District judge shall be elected districtwide.
    5. The Third District court shall have districtwide jurisdiction;
    1. The Fourth District shall be composed of Boone County, the City of Alpena in Carroll County, Newton County, and Searcy County.
    2. The Fourth District has four (4) departments as follows:
      1. One (1) located in Alpena;
      2. One (1) located in Harrison;
      3. One (1) located in Marshall; and
      4. One (1) located in Jasper.
    3. The Fourth District is served by one (1) state district court judge.
    4. The Fourth District judge is elected districtwide.
    5. The Fourth District court has districtwide jurisdiction;
    1. The Fifth District shall be composed of Crawford County.
    2. The Fifth District shall have five (5) departments as follows:
      1. One (1) located in Van Buren;
      2. One (1) located in Mountainburg;
      3. One (1) located in Alma;
      4. One (1) located in Mulberry; and
      5. One (1) located in Dyer.
    3. The Fifth District shall be served by one (1) state district court judge.
    4. The Fifth District judge shall be elected districtwide.
    5. The Fifth District court shall have districtwide jurisdiction;
    1. The Sixth District is composed of the Greenwood District of Sebastian County and the Fort Smith District of Sebastian County.
    2. The Greenwood District of Sebastian County has one (1) district court with one (1) judge and three (3) departments as follows:
      1. One (1) located in Greenwood;
      2. One (1) located in Barling; and
      3. One (1) located in Central City.
      1. The Fort Smith District of Sebastian County has one (1) district court with three (3) departments and one (1) judge for each department.
      2. One (1) judgeship shall be designated Division 1.
      3. One (1) judgeship shall be designated Division 2.
      4. One (1) judgeship shall be designated Division 3.
    3. The assignment of judges to departments under subdivision (6)(C) of this section is determined by the mutual agreement of the state district court judges of the Sixth District.
    4. The judge of any district court in Sebastian County shall be elected by the electors of the judicial district in which the court is located.
    5. The jurisdiction of the district courts in Sebastian County shall be limited to the judicial district in which the court is located;
    1. The Eighth District is composed of Pope County.
    2. The Eighth District has five (5) departments as follows:
      1. One (1) located in Russellville;
      2. One (1) located in Atkins;
      3. One (1) located in Dover;
      4. One (1) located in London; and
      5. One (1) located in Pottsville.
    3. The Eighth District is served by one (1) state district court judge.
    4. The Eighth District judge is elected districtwide.
    5. The Eighth District court has districtwide jurisdiction;
    1. The Ninth District shall be composed of Faulkner County and Van Buren County.
    2. The Ninth District shall have seven (7) departments as follows:
      1. One (1) located in Conway;
      2. One (1) located in Greenbrier;
      3. One (1) located in Guy;
      4. One (1) located in Mayflower;
      5. One (1) located in Vilonia;
      6. One (1) located in Clinton; and
      7. One (1) located in Damascus.
    3. The Ninth District shall be served by two (2) state district court judges:
      1. One (1) judgeship shall be designated as Division 1; and
      2. One (1) judgeship shall be designated as Division 2.
    4. The assignment of judges to departments under subdivision (8)(B) of this section shall be determined by the mutual agreement of the state district court judges of the Ninth District.
    5. The Ninth District judges shall be elected districtwide.
    6. The Ninth District court shall have districtwide jurisdiction;
    1. The Tenth District is composed of Baxter County and Marion County.
    2. The Tenth District has ten (10) departments as follows:
      1. One (1) located in Briarcliff;
      2. One (1) located in Cotter;
      3. One (1) located in Gassville;
      4. One (1) located in Lakeview;
      5. One (1) located in Mountain Home;
      6. One (1) located in Norfork;
      7. One (1) located in Salesville;
      8. One (1) located in Yellville;
      9. One (1) located in Bull Shoals; and
      10. One (1) located in Flippin.
    3. The Tenth District is served by one (1) state district court judge.
    4. The Tenth District judge is elected districtwide.
    5. The Tenth District court has districtwide jurisdiction;
    1. The Thirteenth District is composed of Cleburne County.
    2. The Thirteenth District has four (4) departments as follows:
      1. One (1) located in Heber Springs;
      2. One (1) located in Greers Ferry;
      3. One (1) located in Concord; and
      4. One (1) located in Quitman.
    3. The Thirteenth District is served by one (1) state district court judge.
    4. The Thirteenth District judge is elected districtwide.
    5. The Thirteenth District court has districtwide jurisdiction.
    6. Court costs in the Cleburne County District Court —
    1. The Fourteenth District is composed of Independence County.
    2. The Fourteenth District has one (1) department located in Batesville.
    3. The Fourteenth District is served by one (1) state district court judge.
    4. The Fourteenth District judge is elected districtwide.
    5. The Fourteenth District court has districtwide jurisdiction;
    1. The Seventeenth District is composed of Greene County.
    2. The Seventeenth District has two (2) departments as follows:
      1. One (1) located in Paragould; and
      2. One (1) located in Marmaduke.
    3. The Seventeenth District is served by one (1) state district court judge.
    4. The Seventeenth District judge is elected districtwide.
    5. The Seventeenth District court has districtwide jurisdiction;
    1. The Eighteenth District shall be composed of the Chickasawba District and the Osceola District in Mississippi County.
    2. The Eighteenth District has five (5) departments in the Chickasawba District as follows:
      1. One (1) located in Blytheville;
      2. One (1) located in Manila;
      3. One (1) located in Leachville;
      4. One (1) located in Gosnell; and
      5. One (1) located in Dell.
    3. The Eighteenth District has one (1) department located in Osceola in the Osceola District.
    4. The Eighteenth District is served by two (2) state district court judges, with one (1) elected from the Chickasawba District and one (1) elected from the Osceola District.
    5. Each district court within the Eighteenth District only has jurisdiction within each of the district court's respective districts;
    1. The Nineteenth District shall be composed of Craighead County.
    2. The Nineteenth District shall have two (2) departments as follows:
      1. One (1) department located in Jonesboro; and
      2. One (1) department located in Lake City.
    3. The Nineteenth District shall be served by two (2) state district court judges:
      1. One (1) judgeship shall be designated as Division 1; and
      2. One (1) judgeship shall be designated as Division 2.
    4. The assignment of judges to departments under subdivision (14)(B) of this section shall be determined by the mutual agreement of the state district court judges of the Nineteenth District.
    5. The Nineteenth District judges shall be elected districtwide.
    6. The Nineteenth District court shall have districtwide jurisdiction;
    1. The Twentieth District is composed of Poinsett County.
    2. The Twentieth District has five (5) departments as follows:
      1. One (1) located in Marked Tree;
      2. One (1) located in Trumann;
      3. One (1) located in Tyronza;
      4. One (1) located in Lepanto; and
      5. One (1) located in Harrisburg.
    3. The Twentieth District is served by one (1) state district court judge.
    4. The Twentieth District judge is elected districtwide.
    5. The Twentieth District court has districtwide jurisdiction;
    1. The Twenty-First District shall be composed of Crittenden County.
    2. The Twenty-First District shall have seven (7) departments as follows:
      1. One (1) located in Earle;
      2. One (1) located in Gilmore;
      3. One (1) located in Jennette;
      4. One (1) located in Jericho;
      5. One (1) located in Marion;
      6. One (1) located in Turrell; and
      7. One (1) located in West Memphis.
    3. The Twenty-First District shall be served by one (1) state district court judge.
    4. The Twenty-First District judge shall be elected districtwide.
    5. The Twenty-First District court shall have districtwide jurisdiction;
    1. The Twenty-Second District shall be composed of Lee County and Phillips County.
    2. The Twenty-Second District shall have five (5) departments as follows:
      1. One (1) located in Marianna;
      2. One (1) located in Helena-West Helena;
      3. One (1) located in Lake View;
      4. One (1) located in Elaine; and
      5. One (1) located in Marvell.
    3. The Twenty-Second District shall be served by one (1) state district court judge.
    4. The Twenty-Second District judge shall be elected districtwide.
    5. The Twenty-Second District court shall have districtwide jurisdiction;
    1. The Twenty-Third District shall be composed of White County and Prairie County.
    2. The Twenty-Third District shall have thirteen (13) departments as follows:
      1. One (1) located in Beebe;
      2. One (1) located in Searcy;
      3. One (1) located in Bald Knob;
      4. One (1) located in Bradford;
      5. One (1) located in Judsonia;
      6. One (1) located in McRae;
      7. One (1) located in Kensett;
      8. One (1) located in Pangburn;
      9. One (1) located in Rose Bud;
      10. One (1) located in Des Arc;
      11. One (1) located in Hazen;
      12. One (1) located in Biscoe; and
      13. One (1) located in De Valls Bluff.
    3. The Twenty-Third District shall be served by two (2) state district court judges:
      1. One (1) judgeship shall be designated as Division 1; and
      2. One (1) judgeship shall be designated as Division 2.
    4. The assignment of judges to departments under subdivision (18)(B) of this section shall be determined by the mutual agreement of the state district court judges of the Twenty-Third District.
    5. The Twenty-Third District judges shall be elected districtwide.
    6. The Twenty-Third District court shall have districtwide jurisdiction;
    1. The Twenty-Fifth District is composed of St. Francis County.
    2. The Twenty-Fifth District has three (3) departments as follows:
      1. One (1) located in Forrest City;
      2. One (1) located in Madison; and
      3. One (1) located in Palestine.
    3. The Twenty-Fifth District is served by two (2) state district court judges.
    4. The Twenty-Fifth District judges are elected districtwide.
    5. The Twenty-Fifth District courts have districtwide jurisdiction;
    1. The Twenty-Sixth District shall be composed of Ashley County.
    2. The Twenty-Sixth District shall have two (2) departments as follows:
      1. One (1) located in Crossett; and
      2. One (1) located in Hamburg.
    3. The Twenty-Sixth District shall be served by one (1) state district court judge.
    4. The Twenty-Sixth District judge shall be elected districtwide.
    5. The Twenty-Sixth District court shall have districtwide jurisdiction;
    1. The Twenty-Seventh District shall be composed of Desha County and Chicot County.
    2. The Twenty-Seventh District shall have five (5) departments as follows:
      1. One (1) located in Dermott;
      2. One (1) located in Eudora;
      3. One (1) located in Lake Village;
      4. One (1) located in Dumas; and
      5. One (1) located in McGehee.
    3. The Twenty-Seventh District shall be served by one (1) state district court judge.
    4. The Twenty-Seventh District judge shall be elected districtwide.
    5. The Twenty-Seventh District court shall have districtwide jurisdiction;
    1. The Twenty-Eighth District shall be composed of Bradley County and Drew County.
    2. The Twenty-Eighth District shall have two (2) departments as follows:
      1. One (1) located in Monticello; and
      2. One (1) located in Warren.
    3. The Twenty-Eighth District shall be served by one (1) state district court judge.
    4. The Twenty-Eighth District judge shall be elected districtwide.
    5. The Twenty-Eighth District court shall have districtwide jurisdiction;
    1. The Twenty-Ninth District shall be composed of Jefferson County and Lincoln County.
    2. The Twenty-Ninth District shall have nine (9) departments as follows:
      1. One (1) located in Pine Bluff;
      2. One (1) located in Altheimer;
      3. One (1) located in Humphrey;
      4. One (1) located in White Hall;
      5. One (1) located in Wabbaseka;
      6. One (1) located in Redfield;
      7. One (1) located in Star City;
      8. One (1) located in Grady; and
      9. One (1) located in Gould.
    3. The Twenty-Ninth District shall be served by three (3) state district court judges:
      1. One (1) judgeship shall be designated as Division 1;
      2. One (1) judgeship shall be designated as Division 2; and
      3. One (1) judgeship shall be designated as Division 3.
    4. The assignment of judges to departments under subdivision (23)(B) of this section shall be determined by the mutual agreement of the state's district court judges of the Twenty-Ninth District.
    5. The Twenty-Ninth District judge shall be elected districtwide.
    6. The Twenty-Ninth District court shall have districtwide jurisdiction;
    1. The Thirty-First District is composed of Pulaski County.
    2. The Thirty-First District shall have eleven (11) departments that shall be served by eight (8) state district judges. All the following judges shall be elected districtwide and shall have districtwide territorial jurisdiction:
      1. The Jacksonville District Court and the Maumelle District Court shall be served by one (1) judge;
      2. The Little Rock District Court — First Division shall be served by one (1) judge;
      3. The Little Rock District Court — Second Division shall be served by one (1) judge;
      4. The Little Rock District Court — Third Division, the Wrightsville District Court, and the Cammack Village District Court shall be served by one (1) judge;
      5. The North Little Rock District Court — First Division shall be served by one (1) judge;
      6. The North Little Rock District Court — Second Division shall be served by one (1) judge;
      7. The Pulaski County District Court shall be served by one (1) judge; and
      8. The Sherwood District Court shall be served by one (1) judge.
      1. Any judge serving as a local district judge in the Thirty-First District whose base annual salary is paid by a city and whose base annual salary is more than the annual salary paid to a state district judge, upon becoming a state district judge, shall continue to be paid by the city the differential amount between his or her annual salary as of December 31, 2016, and the annual salary established by the state for a state district judge.
      2. The differential amount as calculated as of December 31, 2016, shall continue as long as the judge continues to serve as a state district judge.
      3. Upon leaving office of state district court judge, by retirement or otherwise, his or her successor shall be paid only the salary established for a state district judge without regard to the differential amount provided for in this section;
    1. The Thirty-Second District is composed of Saline County and the City of Alexander in Pulaski County.
    2. The Thirty-Second District has six (6) departments as follows:
      1. One (1) located in Benton;
      2. One (1) located in Bryant;
      3. One (1) located in Alexander;
      4. One (1) located in Bauxite;
      5. One (1) located in Haskell; and
      6. One (1) located in Shannon Hills.
      1. The Thirty-Second District is served by two (2) state district court judges.
      2. One (1) judgeship shall be designated as Division 1.
      3. One (1) judgeship shall be designated as Division 2.
    3. The assignment of judges to departments under subdivision (25)(B) of this section is determined by the mutual agreement of the state district court judges in the Thirty-Second District.
    4. The Thirty-Second District judges are elected districtwide.
    5. The Thirty-Second District court has districtwide jurisdiction;
    1. The Thirty-Third District shall be composed of Grant County and Hot Spring County.
    2. The Thirty-Third District shall have three (3) departments as follows:
      1. One (1) located in Sheridan;
      2. One (1) located in Malvern; and
      3. One (1) located in Rockport.
    3. The Thirty-Third District shall be served by one (1) state district court judge.
    4. The Thirty-Third District judge shall be elected districtwide.
    5. The Thirty-Third District court shall have districtwide jurisdiction;
    1. The Thirty-Fourth District shall be composed of Calhoun County, Cleveland County, and Dallas County.
    2. The Thirty-Fourth District shall have four (4) departments as follows:
      1. One (1) located in Hampton;
      2. One (1) located in Rison;
      3. One (1) located in Fordyce; and
      4. One (1) located in Sparkman.
    3. The Thirty-Fourth District shall be served by one (1) state district court judge.
    4. The Thirty-Fourth District judge shall be elected districtwide.
    5. The Thirty-Fourth District court shall have districtwide jurisdiction;
    1. The Thirty-Fifth District is composed of Union County.
    2. The Thirty-Fifth District has one (1) department located in El Dorado and one (1) state district court judge.
    3. The Thirty-Fifth District judge is elected districtwide.
    4. The Thirty-Fifth District court has districtwide jurisdiction;
    1. The Thirty-Seventh District is composed of Miller County and Lafayette County.
    2. The Thirty-Seventh District has five (5) departments as follows:
      1. One (1) located in Lewisville;
      2. One (1) located in Bradley;
      3. One (1) located in Stamps; and
      4. Two (2) located in Texarkana.
    3. The Thirty-Seventh District is served by one (1) state district court judge.
    4. The Thirty-Seventh District judge is elected districtwide.
    5. The Thirty-Seventh District court has districtwide jurisdiction;
    1. The Thirty-Eighth District shall be composed of Hempstead County and Nevada County.
    2. The Thirty-Eighth District shall have two (2) departments as follows:
      1. One (1) located in Hope; and
      2. One (1) located in Prescott.
    3. The Thirty-Eighth District shall be served by one (1) state district court judge.
    4. The Thirty-Eighth District judge shall be elected districtwide.
    5. The Thirty-Eighth District court shall have districtwide jurisdiction; and
    1. The Fortieth District shall be composed of Clark County.
    2. The Fortieth District shall have four (4) departments as follows:
      1. One (1) located in Arkadelphia;
      2. One (1) located in Amity;
      3. One (1) located in Caddo Valley; and
      4. One (1) located in Gurdon.
    3. The Fortieth District shall be served by one (1) state district court judge.
    4. The Fortieth District judge shall be elected districtwide.
    5. The Fortieth District court shall have districtwide jurisdiction.

Quitman Department shall be allocated as described in § 16-10-604(d)(1)(A);

History. Acts 2011, No. 1219, § 9; 2015, No. 1081, § 1; 2017, No. 723, § 3; 2019, No. 935, § 1.

A.C.R.C. Notes. Minor corrections were made to the designations of the district courts in consultation with the Administrative Office of the Courts.

Acts 2019, No. 935, § 3, provided: “(a) For the district court judgeship created under this act, the Governor shall appoint a qualified person who is a resident of the judicial district that is the subject of this act to temporarily fill the newly created district court judgeship, and the appointed person shall serve until January 1, 2021, or until a successor has been elected and qualified.

“(b)(1) The qualified electors of the judicial district shall elect the additional district court judge created by this act at the 2020 preferential primary election to take office on January 1, 2021.

“(2) The additional district court judge shall be elected from the judicial district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by law.

“(3) The district court judge shall serve for an elected term of four (4) years.

“(c) The counties receiving the new district court judgeship shall provide courtroom and office facilities and supplies as provided by law”.

Amendments. The 2015 amendment deleted former (9)(A) and (9)(F) and redesignated the remaining subdivisions accordingly; in present (9)(A), substituted “January 1, 2017” for “January 1, 2021” and inserted “the Chickasawba District and the Osceola District in”; inserted “in the Chickasawba District” in the introductory language of present (9)(B); rewrote the introductory language of present (9)(C); and rewrote present (9)(D) and (9)(E).

The 2017 amendment rewrote the section.

The 2019 amendment substituted “served by two (2) state district court judges” for “served by one (1) state district court judge” in (19)(C); substituted “District judges are elected” for “District judge is elected” in (19)(D); and substituted “District courts have districtwide” for “District court has districtwide” in (19)(E).

Case Notes

Reorganization.

In a private probation company’s 42 U.S.C. § 1983 action challenging two Craighead County district court judges’ implementation of an amnesty program forgiving probation fees, the Craighead County district court judges became employees of the State before the events in the case and thus their actions could not be imputed to the county or city defendants. Justice Network Inc. v. Craighead Cty., 931 F.3d 753 (8th Cir. 2019).

Due process violation arising from a district court judge's installment fee policy could be imputed to the city because the judge was an employee of the city since the Little Rock District Court had not yet been reorganized as a state district court at the times relevant to the case; the Little Rock District Court was not part of the state district court program at the time of the events alleged in the complaint. City of Little Rock v. Nelson, 2020 Ark. 34, 592 S.W.3d 633 (2020).

16-17-1111, 16-17-1112. [Repealed.]

A.C.R.C. Notes. Section 16-17-1112 is set out as repealed by Acts 2017, No. 723, § 5. Section 16-17-1112(b)(2) was amended by Acts 2017, No. 172, § 1 to add an additional department to the Third District at Green Forest. This change to the Third District is also incorporated in Acts 2017, No. 723, § 3 at § 16-17-1110(3).

Publisher's Notes. These sections, concerning reorganization of local district courts to state district courts as of January 1, 2013 and as of January 1, 2017, were repealed by Acts 2017, No. 723, §§ 4, 5. The sections were derived from the following sources:

16-17-1111. Acts 2011, No. 1219, § 10.

16-17-1112. Acts 2011, No. 1219, § 11; 2013, No. 1489, § 1; 2015, No. 1081, § 2; 2017, No. 172, § 1.

16-17-1113. Reorganization of local district courts to state district courts as of January 1, 2021.

    1. Beginning January 1, 2021, the following cities and counties that are currently served by local district courts pursuant to § 16-17-901 et seq. shall be reorganized as state district courts and served by state district court judges as assigned.
    2. The new state district court judgeships created by this section shall become effective January 1, 2021, and shall be placed on the ballot to be elected in the 2020 nonpartisan judicial election from the newly constructed state district court district.
    3. The cities and counties that were previously served by local district courts and will be served by state district courts shall comply with the cost-sharing requirements established in § 16-17-1106, effective January 1, 2021.
    1. The Seventh Judicial District shall be composed of the counties of Franklin and Johnson.
    2. The Seventh District shall have six (6) departments as follows:
      1. One (1) located in Charleston;
      2. One (1) located in Ozark;
      3. One (1) located in Altus;
      4. One (1) located in Clarksville;
      5. One (1) located in Coal Hill; and
      6. One (1) located in Lamar.
    3. The Seventh Judicial District shall be served by one (1) state district court judge.
    4. The Seventh Judicial District judge shall be elected districtwide.
    5. The Seventh Judicial District court shall have districtwide jurisdiction.
    1. The Eleventh Judicial District shall be composed of the counties of Randolph, Sharp, and Lawrence.
    2. The Eleventh District shall have seven (7) departments as follows:
      1. One (1) located in Pocahontas;
      2. One (1) located in Ash Flat;
      3. One (1) located in Cherokee Village;
      4. One (1) located in Walnut Ridge;
      5. One (1) located in Hoxie;
      6. One (1) located in Black Rock; and
      7. One (1) located in Portia.
    3. The Eleventh Judicial District shall be served by two (2) state district court judges.
    4. The Eleventh Judicial District judges shall be elected districtwide.
    5. The Eleventh Judicial District courts shall have districtwide jurisdiction.
    1. The Twelfth Judicial District shall be composed of the counties of Logan, Yell, and Conway.
    2. The Twelfth District shall have nine (9) departments as follows:
      1. One (1) located in Morrilton;
      2. One (1) located in Menifee;
      3. One (1) located in Oppelo;
      4. One (1) located in Paris;
      5. One (1) located in Booneville;
      6. One (1) located in Magazine;
      7. One (1) located in Danville;
      8. One (1) located in Plumerville; and
      9. One (1) located in Dardanelle.
    3. The Twelfth Judicial District shall be served by one (1) state district court judge.
    4. The Twelfth Judicial District judge shall be elected districtwide.
    5. The Twelfth Judicial District court shall have districtwide jurisdiction.
  1. [Repealed.]
  2. [Repealed.]
    1. The Fifteenth Judicial District shall be composed of the counties of Jackson and Woodruff.
    2. The Fifteenth District shall have eight (8) departments as follows:
      1. One (1) located in Newport;
      2. One (1) located in Diaz;
      3. One (1) located in Swifton;
      4. One (1) located in Tuckerman;
      5. One (1) located in Augusta;
      6. One (1) located in Cotton Plant;
      7. One (1) located in McCrory; and
      8. One (1) located in Patterson.
    3. The Fifteenth Judicial District shall be served by one (1) state district court judge.
    4. The Fifteenth Judicial District judge shall be elected districtwide.
    5. The Fifteenth Judicial District court shall have districtwide jurisdiction.
  3. [Repealed.]
    1. The Seventeenth District is composed of the counties of Clay and Greene.
    2. The Seventeenth District has five (5) departments as follows:
      1. One (1) located in Paragould;
      2. One (1) located in Marmaduke;
      3. One (1) located in Corning;
      4. One (1) located in Piggott; and
      5. One (1) located in Rector.
    3. The Seventeenth District is served by one (1) state district court judge.
    4. The Seventeenth District judge is elected districtwide.
    5. The Seventeenth District court has districtwide jurisdiction.
    1. The Twenty-Fourth Judicial District shall be composed of the counties of Scott, Polk, and Montgomery.
    2. The Twenty-Fourth Judicial District shall have three (3) departments as follows:
      1. One (1) located in Waldron;
      2. One (1) located in Mena; and
      3. One (1) located in Mt. Ida.
    3. The Twenty-Fourth Judicial District shall be served by one (1) state district court judge.
    4. The Twenty-Fourth Judicial District judge shall be elected districtwide.
    5. The Twenty-Fourth Judicial District court shall have districtwide jurisdiction.
    1. The Twenty-Fifth District is composed of the counties of St. Francis and Cross.
    2. The Twenty-Fifth District has six (6) departments as follows:
      1. One (1) located in Forrest City;
      2. One (1) located in Madison;
      3. One (1) located in Palestine;
      4. One (1) located in Wynne;
      5. One (1) located in Cherry Valley; and
      6. One (1) located in Parkin.
    3. The Twenty-Fifth District is served by two (2) state district court judges.
    4. The Twenty-Fifth District judges are elected districtwide.
    5. The Twenty-Fifth District courts have districtwide jurisdiction.
    1. The Thirtieth District shall be composed of Lonoke County.
    2. The Thirtieth District shall have six (6) departments as follows:
      1. One (1) located in Cabot;
      2. One (1) located in Ward;
      3. One (1) located in Austin;
      4. One (1) located in Lonoke;
      5. One (1) located in England; and
      6. One (1) located in Carlisle.
    3. The Thirtieth District shall be served by two (2) state district court judges.
    4. The Thirtieth District court judges shall be elected districtwide.
    5. The Thirtieth District courts shall have districtwide jurisdiction.
    1. The Thirty-First District is composed of the counties of Pulaski and Perry.
    2. The Thirty-First District has twelve (12) departments as follows:
      1. One (1) located in Jacksonville, to be known as “Jacksonville District Court”;
      2. Four (4) located in Little Rock, to be known as:
        1. “Little Rock District Court — First Division”;
        2. “Little Rock District Court — Second Division”;
        3. “Little Rock District Court — Third Division”; and
        4. “Pulaski County District Court”;
      3. One (1) located in Maumelle, to be known as “Maumelle District Court”;
      4. Two (2) located in North Little Rock, to be known as:
        1. “North Little Rock District Court — First Division”; and
        2. “North Little Rock District Court — Second Division”;
      5. One (1) located in Sherwood, to be known as “Sherwood District Court”;
      6. One (1) located in Wrightsville, to be known as “Wrightsville District Court”;
      7. One (1) located in Cammack Village, to be known as “Cammack Village District Court”; and
      8. One (1) located in Perryville, to be known as “Perryville District Court”.
    3. The Thirty-First District shall be served by eight (8) state district judges. All the following judges shall be elected districtwide and shall have districtwide jurisdiction:
      1. The Jacksonville District Court and the Maumelle District Court shall be served by one (1) judge;
      2. The Little Rock District Court — First Division shall be served by one (1) judge;
      3. The Little Rock District Court — Second Division shall be served by one (1) judge;
      4. The Little Rock District Court — Third Division, the Wrightsville District Court, and the Cammack Village District Court shall be served by one (1) judge;
      5. The North Little Rock District Court — First Division shall be served by one (1) judge;
      6. The North Little Rock District Court — Second Division shall be served by one (1) judge;
      7. The Pulaski County District Court shall be served by one (1) judge;
      8. The Sherwood District Court shall be served by one (1) judge; and
      9. The Perryville District Court shall be served by one (1) of the district court judges listed under subdivisions (m)(3)(A)-(H) of this section.
    1. The Thirty-Ninth Judicial District shall be composed of the counties of Ouachita and Columbia.
    2. The Thirty-Ninth Judicial District shall have seven (7) departments as follows:
      1. One (1) located in Magnolia;
      2. One (1) located in Waldo;
      3. One (1) located in Camden;
      4. One (1) located in East Camden;
      5. One (1) located in Bearden;
      6. One (1) located in Chidester; and
      7. One (1) located in Stephens.
    3. The Thirty-Ninth Judicial District shall be served by one (1) state district court judge.
    4. The Thirty-Ninth Judicial District judge shall be elected districtwide.
    5. The Thirty-Ninth Judicial District court shall have districtwide jurisdiction.
    1. The Forty-First Judicial District shall be composed of Garland County.
    2. The Forty-First District shall have three (3) departments as follows:
      1. Two (2) located in Hot Springs; and
      2. One (1) located in Mountain Pine.
    3. The Forty-First Judicial District shall be served by two (2) state district court judges.
    4. The Forty-First Judicial District judges shall be elected districtwide.
    5. The Forty-First Judicial District courts shall have districtwide jurisdiction.

History. Acts 2015, No. 1081, § 3; 2019, No. 814, § 1; 2019, No. 868, §§ 1, 2; 2019, No. 909, § 1; 2019, No. 935, § 2.

A.C.R.C. Notes. Acts 2019, No. 935, § 3, provided:

“(a) For the district court judgeship created under this act, the Governor shall appoint a qualified person who is a resident of the judicial district that is the subject of this act to temporarily fill the newly created district court judgeship, and the appointed person shall serve until January 1, 2021, or until a successor has been elected and qualified.

“(b)(1) The qualified electors of the judicial district shall elect the additional district court judge created by this act at the 2020 preferential primary election to take office on January 1, 2021.

“(2) The additional district court judge shall be elected from the judicial district, shall satisfy the same qualifications for holding office, and shall receive the same salary, expenses, and other allowances as provided by law.

“(3) The district court judge shall serve for an elected term of four (4) years.

“(c) The counties receiving the new district court judgeship shall provide courtroom and office facilities and supplies as provided by law”.

Amendments. The 2019 amendment by No. 814 substituted “two (2) state district court judges” for “one (1) state district court judge” in (l)(3); substituted “court judges” for “judge” in (l)(4); and substituted “courts” for “court” in (l)(5).

The 2019 amendment by No. 868 repealed (e) and (h).

The 2019 amendment by No. 909 repealed (f).

The 2019 amendment by No. 935 substituted “two (2) state district court judges” for “one (1) state district court judge” in (k)(3); substituted “judges are elected” for “judge is elected” in (k)(4); and substituted “courts have” for “court has” in (k)(5).

16-17-1114. Reorganization of local district courts to state district courts as of January 1, 2025.

    1. Beginning January 1, 2025, the following cities and counties that are currently served by local district courts under § 16-17-901 et seq. shall be reorganized as state district courts and served by state district court judges as assigned.
    2. The new state district court judgeships created by this section shall become effective January 1, 2025, and shall be placed on the ballot to be elected in the 2024 nonpartisan judicial election from the newly constructed state district court district.
    3. The cities and counties that were previously served by local district courts and will be served by state district courts shall comply with the cost-sharing requirements established in § 16-17-1106, effective January 1, 2025.
    1. The Thirty-Sixth Judicial District shall be composed of the counties of Little River, Sevier, Pike, and Howard.
    2. The Thirty-Sixth Judicial District shall have seven (7) departments as follows:
      1. One (1) located in Ashdown;
      2. One (1) located in Foreman;
      3. One (1) located in Winthrop;
      4. One (1) located in De Queen;
      5. One (1) located in Nashville;
      6. One (1) located in Murfreesboro; and
      7. One (1) located in Glenwood.
    3. The Thirty-Sixth Judicial District shall be served by two (2) state district court judges.
    4. The Thirty-Sixth Judicial District judges shall be elected districtwide.
    5. The Thirty-Sixth Judicial District court shall have districtwide jurisdiction.

History. Acts 2015, No. 1081, § 4; 2019, No. 817, § 1.

Amendments. The 2019 amendment substituted “2025” for “2029” in the section heading and throughout (a); substituted “2024” for “2028” in (a)(2); inserted “Pike” in (b)(1); substituted “seven (7)” for “five (5)” in the introductory language of (b)(2); added (b)(2)(F) and (G); substituted “two (2) state district court judges” for “one (1) state district court judge” in (b)(3); substituted “judges” for “judge” in (b)(4); deleted (c); and a made stylistic change.

16-17-1115. Reorganization of local district courts to state district courts as of January 1, 2025.

    1. Beginning January 1, 2025, the following cities and counties, currently being served by a local district court under § 16-17-901 et seq. shall be reorganized as a state district court district and served by state district court judges as assigned.
    2. The new state district court judgeship created by this section shall become effective January 1, 2025, and shall be placed on the ballot to be elected in the 2024 nonpartisan judicial election from the newly constructed state district court district.
    3. The cities and counties that were previously served by local district courts and will be served by state district courts shall comply with the cost-sharing requirements established in § 16-17-1106, effective January 1, 2025.
    1. The Thirteenth District is composed of the counties of Stone and Cleburne.
    2. The Thirteenth District has five (5) departments as follows:
      1. One (1) located in Heber Springs;
      2. One (1) located in Greers Ferry;
      3. One (1) located in Concord;
      4. One (1) located in Quitman; and
      5. One (1) located in Mountain View.
    3. The Thirteenth District is served by one (1) state district court judge.
    4. The Thirteenth District judge is elected districtwide.
    5. The Thirteenth District court has districtwide jurisdiction.
    1. The Sixteenth Judicial District shall be composed of the counties of Monroe and Arkansas.
    2. The Sixteenth District shall have seven (7) departments as follows:
      1. One (1) located in Stuttgart;
      2. One (1) located in De Witt;
      3. One (1) located in Gillett;
      4. One (1) located in St. Charles;
      5. One (1) located in Brinkley;
      6. One (1) located in Clarendon; and
      7. One (1) located in Holly Grove.
    3. The Sixteenth Judicial District shall be served by one (1) state district court judge.
    4. The Sixteenth Judicial District judge shall be elected districtwide.
    5. The Sixteenth Judicial District court shall have districtwide jurisdiction.

History. Acts 2019, No. 868, § 3.

16-17-1116. Reorganization of local district courts to state district courts as of January 1, 2025.

    1. Beginning January 1, 2025, the following cities and counties under this section that are currently being served by a local district court under § 16-17-901 et seq. shall be reorganized as a state district court and served by state district court judges as assigned.
    2. The new state district court judgeship created by this section shall become effective January 1, 2025, and shall be placed on the ballot to be elected in the 2024 nonpartisan judicial election from the newly constructed state district court district.
    3. The cities and counties that were previously served by local district courts and will be served by state district courts shall comply with the cost-sharing requirements established in § 16-17-1106, effective January 1, 2025.
    1. The Fourteenth District is composed of the counties of Independence, Fulton, and Izard.
    2. The Fourteenth District has six (6) departments as follows:
      1. One (1) located in Batesville;
      2. One (1) located in Melbourne;
      3. One (1) located in Calico Rock;
      4. One (1) located in Horseshoe Bend;
      5. One (1) located in Salem; and
      6. One (1) located in Mammoth Spring.
    3. The Fourteenth District is served by one (1) state district court judge.
    4. The Fourteenth District judge is elected districtwide.
    5. The Fourteenth District court has districtwide jurisdiction.

History. Acts 2019, No. 909, § 2.

Subchapter 12 — City Court Consolidation

Effective Dates. Acts 2007, No. 663, § 56(b): Jan. 1, 2012.

Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-1201. Findings and intent. [Effective January 1, 2012.]

  1. The General Assembly finds that:
    1. The intent of Amendment 80 to the Arkansas Constitution was to create a unified court system to provide judicial economy and a fair administration of justice;
    2. The judicial system in this state should be composed of three (3) tiers to accomplish the intent of Amendment 80 to the Arkansas Constitution:
      1. Appellate courts to be composed of the Supreme Court and the Court of Appeals;
      2. General jurisdiction trial courts to be composed of the circuit courts; and
      3. Limited jurisdiction courts to be composed of the district courts;
    3. The city courts of this state should be consolidated with district courts in order to provide judicial and administrative functions in limited jurisdiction courts that are both necessary and cost-effective; and
    4. City courts provide a valuable service for the citizens of towns and cities that operate city courts and also revenue for those towns and cities and for this state. However, many towns and cities provide law enforcement officers for the safety of citizens but do not operate a city court.
  2. It is the intent of the General Assembly that a town or city that has operated a city court is to continue to receive revenue from cases that originate in its town or city limits and to establish a procedure to allow a town or city that has never operated a city court but that now or in the future may have law enforcement officers to be able to receive a portion of the revenue from cases that originate in its town or city limits.
  3. It is also the intent of the General Assembly that this subchapter will consolidate all limited jurisdiction courts in the state as of January 1, 2012.
    1. On January 1, 2012 , the district courts shall be regarded as a continuation of the city courts now existing.
      1. All papers and records pertaining to the city courts shall be transferred to the appropriate district courts and no suit or prosecution of any kind or nature shall abate because of any change made by this subchapter.
      2. Except as modified in accordance with this subchapter, any of the following existing on January 1, 2012 , shall continue unaffected:
        1. A writ;
        2. An action;
        3. A suit;
        4. A proceeding;
        5. Civil liability;
        6. Criminal liability;
        7. A prosecution;
        8. A judgment;
        9. A decree;
        10. An order;
        11. A sentence;
        12. A regulation;
        13. A cause of action; and
        14. An appeal.

History. Acts 2007, No. 663, § 16.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-1202. Consolidation of city courts with district courts.

  1. As used in this subchapter, “district court” shall include a department of a district court.
    1. Effective January 1, 2012, all city courts shall be consolidated with district courts and continue to exist as departments of district courts unless a city court is abolished by town or city ordinance pursuant to this subchapter.
    2. A city court formerly known as the “________ City Court” shall be redesignated as the “________ District Court, ____________ Department”.
    1. A district court that has a department or departments shall maintain a docket in each department and set court dates for hearing the docket in the town or city in which the department is located, as required by the Arkansas District Courts Accounting Law, § 16-10-201 et seq.
    2. By common agreement, a district court and the town or city where the department of the district court is located may provide locations and dates for hearing the docket.
      1. A town or city that prior to January 1, 2012, operated a city court that becomes a department of a district court may by ordinance of the town or city in which the department is located abolish the department of district court.
      2. A copy of the ordinance abolishing the department of a district court shall be sent to the Administrative Office of the Courts.
      1. On and after the effective date of the ordinance abolishing the department of a district court, the nearest district court in the county shall be regarded as a continuation of the department of district court that was abolished.
      2. All papers and records pertaining to a department of a district court abolished by ordinance shall be transferred to the appropriate district court, and no suit or prosecution of any kind or nature shall abate because of any change made by this subchapter.
      3. Except as modified in accordance with this subchapter, any of the following existing on the effective date of the ordinance abolishing the department of a district court shall continue unaffected:
        1. A writ;
        2. An action;
        3. A suit;
        4. A proceeding;
        5. Civil liability;
        6. Criminal liability;
        7. A prosecution;
        8. A judgment;
        9. A decree;
        10. An order;
        11. A sentence;
        12. A regulation;
        13. A cause of action; and
        14. An appeal.
  2. No town or city shall have the authority to reinstate a department of district court abolished by ordinance.

History. Acts 2007, No. 663, § 16; 2011, No. 1218, § 10.

A.C.R.C. Notes. Section 19 of Amendment 80 to the Arkansas Constitution provided that all municipal courts were to become district courts on January 1, 2005, and that they should assume the jurisdiction previously vested in municipal courts, police courts, justice of the peace courts, and courts of common pleas. Those courts were abolished by the amendment. City courts were to continue, but if abolished by the governing body of the city or by the General Assembly, the jurisdiction of the city court would then vest in the nearest district court.

Amendments. The 2011 amendment deleted the last sentence in (d)(2)(A).

Effective Dates. Acts 2007, No. 663, § 56, as amended by Acts 2009, No. 345, § 7, provided:

“(a) Sections 2 through 15 of this act are effective January 1, 2008.

“(b) Sections 16 through 50 and 52 through 55 of this act are effective January 1, 2012.

“(c) Section 51 of Act 663 of 2007 is effective January 1, 2012, except:

“(1) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-933, establishing the Cleburne County District Court and departments of that court, codified as § 16-17-936 is effective July 1, 2009; and

“(2) That portion of Section 51 of Act 663 of 2007 that is referred to in Act 663 of 2007 as 16-17-950, establishing the St. Francis County District Court and departments of that court, codified as § 16-17-954 is effective July 1, 2009.”

16-17-1203. Procedure for expense cost sharing.

      1. Any town or city that has a police department but does not have a district court may contribute to the operational expenses of the nearest district court in the county where the town or city is located pursuant to a written agreement.
      2. A written agreement is mandatory and is to be entered into between the governing body of the town or city and the governing bodies of the political subdivisions that contribute to the operational expenses of the district court.
      1. The contribution to the operational expenses of a district court described in subdivision (a)(1) of this section shall be a prorated amount based on the number of cases filed in the district court from each of the towns and cities and the county during the preceding calendar year.
      2. The prorated amount of operational expenses shall apply to all fines, fees, and costs not obligated under law that are collected pursuant to § 16-13-701 et seq. in all:
        1. Nontraffic cases that are misdemeanors or violations of a town or city ordinance;
        2. Cases that are misdemeanors or violations under state law; and
        3. Traffic offenses that are misdemeanors or violations under state law or town or city ordinance committed within the corporate limits of a town or city that is a party to an agreement described in subdivision (a)(1) of this section.
  1. Apportionment of the costs of a district court shall be by order of the district court upon certification of the cases filed by the clerk of the district court.
  2. On and after the effective date of the agreement described in subdivision (a)(1) of this section, all fines, fees, penalties, and costs received by a town or city that is a party to the agreement shall be collected and distributed in the manner provided by laws affecting district courts.

History. Acts 2007, No. 663, § 16; 2009, No. 411, § 3.

Publisher's Notes. This section is being set out to reflect an amendment by Acts 2009, No. 411, § 3 which was omitted from the 2010 bound volume.

Amendments. The 2009 amendment divided former (a)(1) into (a)(1)(A) and (B); and added “A written agreement is mandatory and is to be” to the beginning of (a)(1)(B).

Chapter 18 Certain Inferior Courts [Repealed.]

Effective Dates. Acts 1995, No. 1032, § 13: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that in order for the Department of Health to become more efficient in accounting and budgetary practices due to the transfer of the Bureau of Alcohol and Drug Abuse Prevention, changes in various funds are needed; and that the provisions of this Act provide such changes. 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. 663, § 56: Jan. 1, 2012.

Research References

Ark. L. Rev.

Minimum Standards of Judicial Administration—Arkansas, 5 Ark. L. Rev. 15.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

16-18-101 — 16-18-104. [Repealed.]

Publisher's Notes. These sections, concerning the jurisdiction, compulsory attendance, rules, reports, and fees of certain inferior courts, were repealed by Acts 2003, No. 1185, § 169. The sections were derived from the following sources:

16-18-101. Acts 1995, No. 1245, § 1.

16-18-102. Acts 1995, No. 1245, § 2.

16-18-103. Acts 1995, No. 1245, § 3.

16-18-104. Acts 1995, No. 1245, § 4.

16-18-105. [Repealed.]

Publisher's Notes. This section, concerning fees of witnesses, was repealed by Acts 2003, No. 1185, § 171. The section was derived from Acts 1995, No. 1245, § 5; 2003, No. 1185, § 170.

16-18-106. [Repealed.]

Publisher's Notes. This section, concerning disposition of additional court costs, was repealed by Acts 1997, No. 788, § 32 and No. 1341, § 31. The section was derived from Acts 1995, No. 1245, § 6.

16-18-107 — 16-18-109. [Repealed.]

Publisher's Notes. These sections, concerning appeals, seals, elections, and terms in certain inferior courts, were repealed by Acts 2003, No. 1185, § 172. The sections were derived from the following sources:

16-18-107. Acts 1995, No. 1245, § 7.

16-18-108. Acts 1995, No. 1245, § 8.

16-18-109. Acts 1995, No. 1245, § 9.

16-18-110. [Repealed.]

Publisher's Notes. This section, concerning police courts in cities of the second class created by city council, was repealed by Acts 1995, No. 175, § 3. The section was derived from Acts 1949, No. 215, §§ 1, 2; A.S.A. 1947, §§ 22-808, 22-809.

16-18-111. [Repealed.]

Publisher's Notes. This section, concerning establishment of city court in lieu of municipal court in certain cities of the first class, was repealed by Acts 2003, No. 1185, § 173. The section was derived from Acts 1967, No. 98, § 1; A.S.A. 1947, § 22-811; Acts 1995, No. 175, § 1; 2001, No. 1645, § 1.

16-18-112. [Repealed.]

Publisher's Notes. This section, concerning schedule of fees or monthly allowance for judge of city court, jurisdiction, and designation of substitute judge, was repealed by Acts 2007, No. 663, § 52. The section was derived from Acts 1969, No. 229, § 1; 1971, No. 48, § 1; A.S.A. 1947, § 22-812; Acts 1995, No. 175, § 2; 1995, No. 1245, § 10; 2003, No. 1185, § 174.

Chapter 19 Justice Of The Peace Courts

Research References

Am. Jur. 47 Am. Jur. 2d, Justices of the Peace, § 1 et seq.

Ark. L. Rev.

Minimum Standards of Judicial Administration—Arkansas, 5 Ark. L. Rev. 1, 17.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

C.J.S. 51 C.J.S., Justices of the Peace, § 1 et seq.

Subchapter 1 — General Provisions

16-19-101 — 16-19-104. [Repealed.]

Publisher's Notes. This subchapter, concerning justice of the peace courts generally, was repealed by Acts 2003, No. 1185, § 175. The subchapter was derived from the following sources:

16-19-101. Rev. Stat., ch. 86, §§ 16-20; C. & M. Dig., §§ 1490-1494; Pope's Dig., §§ 1790-1794; A.S.A. 1947, §§ 26-701 — 26-705.

16-19-102. Acts 1873, No. 135, § 120, p. 430; C. & M. Dig., § 6502; Pope's Dig., § 8464; A.S.A. 1947, § 26-1201.

16-19-103. Acts 1875, No. 35, §§ 1, 2, p. 111; C. & M. Dig., §§ 6503, 6504; Pope's Dig., §§ 8465, 8466; A.S.A. 1947, §§ 26-1202, 26-1203.

16-19-104. Acts 1879 No. 70 §§ 1-3, p. 92; C. & M. Dig., §§ 6463-6465; Pope's Dig., §§ 8425 — 8427; A.S.A. 1947, §§ 26-1401 — 26-1403.

Subchapter 2 — Justices

16-19-201 — 16-19-208. [Repealed.]

Publisher's Notes. This subchapter, concerning justices of the peace, was repealed by Acts 2003, No. 1185, § 175. The subchapter was derived from the following sources:

16-19-201. Rev. Stat., ch. 86, § 14; C. & M. Dig., § 2822; Pope's Dig., § 3540; A.S.A. 1947, § 26-121.

16-19-202. Acts 1873, No. 135, § 4, p. 430; C. & M. Dig., §§ 6408, 6409; Pope's Dig., §§ 8370, 8371; A.S.A. 1947, § 26-120.

16-19-203. Acts 1871, No. 64, §§ 1-3, p. 312; C. & M. Dig., §§ 6390 — 6392; Pope's Dig., §§ 8352 — 8354; A.S.A. 1947, §§ 26-108 — 26-110.

16-19-204. Acts 1843, §§ 2, 3, 5 — 9, p. 47; C. & M. Dig., § 6391; Pope's Dig., § 8353; A.S.A. 1947, §§ 26-111 — 26-113, 26-115 — 26-118.

16-19-205. Acts 1939, No. 182, §§ 1, 2; A.S.A. 1947, §§ 26-105, 26-106.

16-19-206. Rev. Stat., ch. 43, § 24; C. & M. Dig., §§ 2107, 6400; Pope's Dig., §§ 2711, 8362; A.S.A. 1947, § 22-113.

16-19-207. Acts 1868 (Adj. Sess.), No. 5, § 6, p. 6; C. & M. Dig., § 6394; Pope's Dig., § 8356; A.S.A. 1947, § 26-119.

16-19-208. Rev. Stat., ch. 86, § 23; C. & M. Dig., § 6396; Pope's Dig., § 8358; A.S.A. 1947, § 26-107.

Subchapter 3 — Constables

Cross References. Payment of funds into county treasury, § 26-39-201.

Effective Dates. Acts 1873, No. 135, § 127: effective on passage.

Acts 1941, No. 12, § 3: approved Jan. 30, 1941. Emergency clause provided: “It is hereby ascertained and declared that law enforcement in the several townships of the state should not be impeded or delayed; and for said reasons it is declared that an emergency exists 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.”

Research References

Am. Jur. 70 Am. Jur. 2d, Sheriff, § 1 et seq.

C.J.S. 80 C.J.S., Sheriffs & Constables, § 1 et seq.

16-19-301. Peacekeeping duties and authority — Neglect of duty.

  1. Each constable shall be a conservator of the peace in his township and shall suppress all riots, affrays, fights, and unlawful assemblies, and shall keep the peace and cause offenders to be arrested and dealt with according to law.
  2. If any offense cognizable before a justice of the peace in his township is committed in his presence, the constable shall immediately arrest the offender and cause him to be dealt with according to law.
  3. Nothing in subsection (a) or subsection (b) of this section shall be construed to deprive a constable of authority to serve warrants, summons, writs, and other process as provided by law.
  4. Nothing in this section shall prevent the fresh pursuit by a constable of a person suspected of having committed a supposed felony in his township, though no felony has actually been committed, if there are reasonable grounds for so believing. “Fresh pursuit” as used in this section shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
  5. If it comes to the knowledge of any constable that an offense mentioned in this section has been committed in his township, it shall be the duty of the constable to present the offender to a justice of the peace of the township in order that the offender may be arrested and brought to trial as prescribed by law.
  6. If a constable fails, refuses, or neglects to perform the duties imposed upon him by this section, he shall be deemed guilty of a misdemeanor, and upon conviction, by indictment in the circuit court, shall be fined not less than five dollars ($5.00) nor more than one hundred dollars ($100).

History. Rev. Stat., ch. 29, § 15; Acts 1848, §§ 2-4, p. 36; C. & M. Dig., §§ 1448-1451; Pope's Dig., §§ 1749-1752; Acts 1941, No. 12, §§ 1, 2; A.S.A. 1947, §§ 26-210 — 26-213.

Research References

U. Ark. Little Rock L. Rev.

Article, If the Constable Blunders, Does the County Pay?: Liability Under Title 42 U.S.C. § 1983, 28 U. Ark. Little Rock L. Rev. 519.

Case Notes

Construction.

This section does not conflict with § 16-81-301. Reed v. State, 330 Ark. 645, 957 S.W.2d 174, 1997 Ark. LEXIS 685 (1997).

Powers and Duties.

A constable is a peace officer and, as such, has authority to arrest offenders against the law; but he is not authorized to execute a warrant of arrest or other process directed to the sheriff unless deputized in the manner provided by law. Winkler v. State, 32 Ark. 539 (1877).

Constable is required to discharge his duties in a lawful and prudent manner. Whitlock v. Wood, 193 Ark. 695, 101 S.W.2d 950 (1937).

A constable is authorized to make an arrest and issue a valid citation charging one with the offense of driving a motor vehicle while intoxicated, first offense, which is committed in his presence within the township for which he was elected. Credit v. State, 25 Ark. App. 309, 758 S.W.2d 10 (1988).

Although a constable's general powers and duties are established by this section, a constable's authority to engage in the fresh pursuit of criminal suspects, whether suspected of committing felonies or misdemeanors, is derived from § 16-81-301. Reed v. State, 330 Ark. 645, 957 S.W.2d 174, 1997 Ark. LEXIS 685 (1997).

County ordinance setting constable salaries at $25 per month did not violate equal protection because the evidence and testimony before the circuit court demonstrated that the quorum court had a rational basis for setting the $25-per-month salary for constables. Graves v. Greene County, 2013 Ark. 493, 430 S.W.3d 722 (2013).

Cited: Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991).

16-19-302. Proceedings against constables upon default.

  1. A justice of the peace shall, upon the demand of the party injured, or his agent, issue a summons against a constable to whom any execution has been delivered, or who has received any money upon any judgment of the justice, whether with or without execution:
    1. If the constable fails to make return of the execution according to the command thereof;
    2. If he makes a false return;
    3. If he fails to have any money collected by him on execution before the justice on the return day thereof, ready to be paid over to the party entitled thereto, or the receipt of such person therefor; or
    4. If he fails to pay over on demand to the person entitled thereto, or his agent, any money received by him in payment of any judgment.
  2. The summons shall require the constable to appear before the justice at a place and time to be specified therein, not exceeding ten (10) days, and show cause why an execution should not be issued against him for the amount due upon the execution placed in his hands, or for the amount received by him upon the judgment, according to the nature of the case. The summons shall be served at least four (4) days before the return day thereof and may in other respects be executed in the same manner as an original summons.
  3. If the constable fails to appear, or if he appears but fails to show good cause in reply to the matters alleged against him, the justice shall render judgment against him for the amount due on the execution, or for the amount received by him without execution, according to the nature of the case, together with interest thereon, at the rate of one hundred percent (100%) per annum, from the time the execution ought to have been returned, and from the time the money ought to have been had before the justice ready to be paid over to the parties entitled thereto, or from the time the money was received on the judgment without execution, or was demanded by the party or his agent.
  4. Any process issued against any constable shall be served and executed by a special deputy, who shall be appointed by the justice for that purpose and who shall have the same power to execute and return such process as a constable, and whose return shall be sworn to.
  5. Upon a judgment against a constable pursuant to this section, there shall be no stay of execution, but an appeal may be had as in other cases and with like effect.
  6. The party injured may proceed against the constable as provided in this section or may institute a suit against him on his official bond. When proceeding on the constable's official bond, the injured party shall be entitled to the same recovery as upon a summons against the constable.

History. Acts 1873, No. 135, §§ 88-94, p. 430; C. & M. Dig., §§ 6506-6511; Pope's Dig., §§ 8468-8473; A.S.A. 1947, §§ 26-1501 — 26-1507.

Case Notes

Jurisdiction.

Where a constable was sued before a justice of the peace for a false return on execution, the justice was without jurisdiction as the amount in controversy exceeded the jurisdictional amount. Merfield v. Burkett, 56 Ark. 592, 20 S.W. 523 (1892).

16-19-303. Removal from office.

  1. If any constable fails to pay over any money collected by him after demand is made, or fails to return any execution or other process within the time specified in the process, or fails or neglects to perform any other duty required by law, he shall be removed from office by the county court on motion on charges exhibited against him.
  2. A copy of the charges, together with notice of the time of hearing the charges, shall be served on the constable at least five (5) days before the commencement of the term of the court at which the motion is made, which may be served in the same manner as a summons, and by any person over the age of twenty-one (21) years who would be a competent witness.

History. Rev. Stat., ch. 29, §§ 19, 20; C. & M. Dig., §§ 1453, 1454; Pope's Dig., §§ 1754, 1755; A.S.A. 1947, §§ 26-1508, 26-1509.

16-19-304. Failure to pay moneys collected — Responsibility of sureties — Relief from liability.

  1. If any constable receives from any person any bonds, bills, notes, or accounts for collection and gives his receipt therefor in his official capacity, and fails to pay to that person on demand the amount he may have collected, and fails to return the bonds, bills, notes, or accounts, if they have not been collected, the constable and his securities shall be responsible on his official bond for the amount of the bonds, bills, notes, or accounts not paid over or returned.
  2. No constable shall be responsible for any bond, bill, or note for which he may have given his receipts and on which suit may have been brought.

History. Rev. Stat., ch. 29, §§ 21, 22; C. & M. Dig., §§ 1455, 1456; Pope's Dig., §§ 1756, 1757; A.S.A. 1947, §§ 26-1510, 26-1511.

16-19-305. Continuance in office upon division of township.

If any township is divided, the constable in office at the time of the division shall continue in office and be constable of the township in which he resides.

History. Rev. Stat., ch. 29, § 23; C. & M. Dig., § 1457; Pope's Dig., § 1758; A.S.A. 1947, § 26-207.

16-19-306. Restriction on constables' authority to appoint deputies.

Constables in the various townships in this state shall have no authority to appoint deputies.

History. Acts 1977, No. 358, § 2; A.S.A. 1947, § 26-206.1; Acts 1999, No. 6, § 1.

Amendments. The 1999 amendment deleted the former second and third sentences.

Subchapter 4 — Jurisdiction and Venue

Cross References. Change of venue to municipal court, § 16-17-218.

Exclusive, concurrent, and criminal jurisdiction of justices of the peace, Ark. Const., Art. 7, § 40.

Effective Dates. Acts 1873, No. 135, § 127: effective on passage.

Acts 1875, No. 78, § 2: effective on passage.

Acts 1893, No. 171, § 5: effective on passage.

Acts 1927, No. 60, § 27: approved Feb. 28, 1927. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist for the reason that in cities falling within the provisions of this act, their now exists much litigation which is being handled in justice of peace courts which are unable to try the civil and criminal cases coming before them in such a manner as to render justice, and make possible an efficient enforcement of the law. It is therefore declared that this act shall take effect and be in force from and after its passage.”

Acts 1937, No. 216, § 2: Mar. 8, 1937. Emergency clause provided: “That this act being necessary for the welfare, peace and health, an emergency is hereby declared to exist, and this act shall take effect and be in force from and after its passage and approval.”

Acts 1949, No. 224, § 2: approved Mar. 3, 1949. Emergency clause provided: “Whereas, under the present laws limiting the venue of actions before justice of the peace and municipal courts, considerable delay is caused by reason of the fact that there exists no procedure for the transfer of causes wherein the venue is improper, therefore this Act is necessary for the immediate preservation of the public peace, health and safety and an emergency is hereby declared to exist and this Act shall be in full force and effect from and after its passage.”

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 1995, No. 1032, § 13: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that in order for the Department of Health to become more efficient in accounting and budgetary practices due to the transfer of the Bureau of Alcohol and Drug Abuse Prevention, changes in various funds are needed; and that the provisions of this Act provide such changes. 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.”

Case Notes

Cited: Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988).

16-19-401. Jurisdiction in townships having a municipal court.

  1. Justices of the peace in the townships subject to this act shall have original jurisdiction coextensive with the county.
  2. The jurisdiction of justices of the peace shall be:
    1. Concurrent with the municipal courts and exclusive of the circuit court in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars ($100), excluding interest;
    2. Concurrent with the municipal courts and with the circuit court in matters of contract where the amount in controversy does not exceed the sum of three hundred dollars ($300), exclusive of interest;
    3. Concurrent with the municipal courts and with the circuit court in suits for the recovery of personal property where the value of the property does not exceed the sum of three hundred dollars ($300);
    4. Concurrent with the municipal courts and with the circuit court in all matters of damage to personal property where the amount in controversy does not exceed the sum of one hundred dollars ($100).
  3. Justices of the peace in townships subject to this act shall also have jurisdiction to sit as examining courts and commit, discharge, or recognize offenders to the court having jurisdiction for further trial, and to bind persons to keep the peace or for good behavior, and for purposes set out in this section they shall have power to issue all necessary process.

History. Acts 1927, No. 60, § 17; Pope's Dig., § 9913; A.S.A. 1947, § 22-724.

Publisher's Notes. Acts 1927, No. 60, § 17, is also codified as § 16-17-217.

Meaning of “this act”. Acts 1927, No. 60, codified as §§ 16-17-201, 16-17-202 [repealed], 16-17-20316-17-207, 16-17-20916-17-215, 16-17-216 [repealed], 16-17-217, 16-17-218 [superseded], 16-17-21916-17-222, 16-17-223 [repealed], 16-17-224, 16-19-401, 16-19-409 [superseded], and 16-19-41016-19-412.

Cross References. Jurisdiction of municipal courts, § 16-17-206.

Case Notes

Criminal Offense.

The Arkansas Constitution prohibits the City of Springdale from having jurisdiction over criminal offenses committed in Benton County. Sexson v. Municipal Court, 312 Ark. 261, 849 S.W.2d 468 (1993).

Evidence.

Evidence dehors the record may be received, when it does not tend to contradict the record itself, for the purpose of showing jurisdiction in the suit. St. Louis, Iron Mountain & S. Ry. v. Lindsay, 55 Ark. 281, 18 S.W. 59 (1892) (decision under prior law).

Garnishment.

In garnishment, jurisdiction is coextensive with the county. Foster v. Pollack, 173 Ark. 48, 291 S.W. 989 (1927).

Presumption.

Nothing can be presumed which is necessary to give the justice jurisdiction, but where jurisdiction appears on the face of the proceedings, mere errors or irregularities are not subject to collateral attack; the attack must go to the jurisdiction. Webster v. Daniel, 47 Ark. 131, 14 S.W. 550 (1886) (decision under prior law).

Cited: Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

16-19-402. Venue generally.

  1. Actions cognizable before a justice of the peace, instituted by summons or warrant, shall be brought before a justice of the peace in the township wherein the defendant resides or is found. If there are defendants in different townships, then the action shall be brought in the township where any one of the defendants resides or is found.
  2. Notwithstanding any other provision of this section, in a township having a population of less than three thousand (3,000) as shown by the most recent federal census, actions by attachment, actions for the recovery of personal property, actions for provisional remedy, and all criminal actions and proceedings may be brought before any justice of the peace in the county, although in counties where there is a municipal court having countywide or districtwide jurisdiction, actions by attachment, actions for the recovery of personal property, actions for provisional remedy, and all criminal actions, unless brought in, or transferred to, the municipal court, shall be tried before a justice of the peace in the township where any defendant to the action resides, or in the township where the property or money involved is found.

History. Acts 1873, No. 135, § 2, p. 430; 1875, No. 78, § 1, p. 187; C. & M. Dig., § 6401; Acts 1929, No. 282, § 1; 1937, No. 216, § 1; Pope's Dig., § 8363; A.S.A. 1947, § 26-301.

Publisher's Notes. Acts 1929, No. 282, § 2, provided, in part, that this section should be cumulative to existing laws.

Case Notes

Attachment.

A judgment for the amount of the debt in an attachment suit based on service of process in the county outside of the township of the justice of the peace is valid though no property is found on which to levy the writ of attachment. Ribelin v. Wilks, 135 Ark. 599, 205 S.W. 977 (1918).

Cited: Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988).

16-19-403. Joinder of defendants in different townships — Service of process by constable.

If there are several defendants who reside in different townships and who are jointly liable to a suit, the suit may be brought in any of the townships against all of the defendants. The constable of the township in which the suit may be brought shall serve the process in the several townships wherein the defendants may reside.

History. Acts 1873, No. 135, § 2, p. 430; C. & M. Dig., § 6402; Pope's Dig., § 8364; A.S.A. 1947, § 26-302.

16-19-404. Venue where no justice of the peace in township or all justices disqualified.

Whenever there is no justice of the peace within the township where any suit cognizable before a justice ought to be brought, or when all the justices of the township are interested in any such suit or otherwise disqualified by law from trying the suit, every such suit may be brought before a justice in the same county.

History. Acts 1873, No. 135, § 3, p. 430; C. & M. Dig., § 6403; Pope's Dig., § 8365; A.S.A. 1947, § 26-303.

16-19-405. Venue where defendants residing in different counties.

In any civil action cognizable before any justice of the peace in a township of the county in which any of the defendants resides, suit may be brought before any justice of the peace in the township of the county in which any one of the defendants resides. The summons or other process against the other defendants shall issue to any constable in the counties in which the other defendants may reside, which summons or other process, when served, shall give the justice before whom the suit is brought the same jurisdiction he would have if all of the defendants resided in his county.

History. Acts 1893, No. 171, § 1, p. 301; C. & M. Dig., § 6404; Pope's Dig., § 8366; A.S.A. 1947, § 26-304.

Case Notes

Improper Service.

Where nonresident defendant was not properly served and objected to lower courts' assumption of jurisdiction in apt time, the judgment against him would be reversed and dismissed. Seelbinder v. Witherspoon, 124 Ark. 331, 187 S.W. 325 (1916).

Waiver.

Where the defendant in an action before a justice of the peace filed an affidavit for appeal from a judgment against him rendered by that court and also gave an appeal bond, he will be held to have entered his appearance in the circuit court and cannot object to want of jurisdiction of his person in the lower court. German Inv. Co. v. Westbrook, 101 Ark. 124, 141 S.W. 510 (1911).

Cited: Peel v. Kelley, 268 Ark. 90, 594 S.W.2d 11 (1980).

16-19-406. Change of venue to another justice upon showing of interest or prejudice.

  1. Either party in a suit before a justice of the peace may take a change of venue from one justice of the peace to another in the same township, but it shall be the duty of the party so applying, before the commencement of the trial, to file an affidavit among the papers in the action alleging that the justice is a material witness for the affiant, or of near relation to the other party, or so prejudiced against the affiant that he cannot obtain a fair and impartial trial before that justice. The justice shall thereupon transmit all the original papers in the case and a certified transcript of the proceedings to the nearest justice of the peace in the same township, who shall proceed in the case in the same manner as if the suit had originally been commenced before him.
  2. If there is no other justice of the peace in the township competent to try the case, it shall be certified to the nearest justice in any adjoining township, who shall try and determine the case in the same manner as if the parties were residents of his township and the suit had been originally commenced before him.
  3. Notwithstanding any other provision of this section, the same party shall not be allowed to file an affidavit pursuant to this section against two (2) justices in the same case.

History. Acts 1873, No. 135, §§ 20, 21, p. 430; C. & M. Dig., §§ 6418, 6419; Pope's Dig., §§ 8380, 8381; A.S.A. 1947, §§ 26-306, 26-307.

Case Notes

Applicability.

Where a mayor of a town in a prohibition district institutes a summary proceeding for the destruction of liquors kept therein for sale contrary to law, he is acting as mayor and not as “ex officio” justice of the peace, and this section is not applicable. Betts v. Ward, 79 Ark. 146, 95 S.W. 148 (1906).

Waiver of Disqualification.

When a party to an action, knowing that the justice before which the action is pending is related to the opposing party, permits the judgment to go by default and afterward appeals to the circuit court, he will be held to have waived that disqualification. Morrow v. Watts, 80 Ark. 57, 95 S.W. 988 (1906).

Cited: Peel v. Kelley, 268 Ark. 90, 594 S.W.2d 11 (1980).

16-19-407. Change of venue from township.

  1. Either party, at the calling of a cause before a justice of the peace, may make an affidavit to the effect that he verily believes he cannot obtain a fair and impartial trial in the township in which the action is pending and may include in his affidavit one (1) township in addition to the one in which the action is pending, and the opposite party may, without affidavit, object to the same number of townships to which the party making the application has objected. Thereupon, it shall be the duty of the justice to make an order for the change of venue to a justice in a township to which there is no valid objection and which is in his judgment most convenient to the parties and their witnesses. The justice shall then transmit, without delay, the original papers in the case and a transcript of the proceedings to the justice to whose court the venue is changed, for which the transmitting justice shall receive five cents (5¢) per mile to and from the office of the justice to whom the cause is transmitted, which shall be taxed and collected as other costs in the case, together with his costs for making out the transcript.
  2. If the justice of the peace to whom the papers are so transferred cannot immediately, upon the reception and filing of the papers, proceed to try the case, it shall be his duty at once to fix a time therefor, of which all parties shall take notice.

History. Acts 1873, No. 135, §§ 22, 23, p. 430; C. & M. Dig., §§ 6420, 6421; Pope's Dig., §§ 8382, 8383; A.S.A. 1947, §§ 26-308, 26-309.

16-19-408. Improper venue of action.

  1. Whenever an objection is made by a defendant in any action cognizable before a justice of the peace or a municipal court, instituted by summons or warrant, or in an action by an attachment, an action for the recovery of personal property, an action by provisional remedy, or in any criminal action or proceeding, that the action was brought before a justice of the peace or a municipal court wherein the venue is improper under the laws of the State of Arkansas, the court shall immediately hear proof on the question. If it is established by proof that the venue is improper, then all further proceedings shall be discontinued and the justice of the peace or clerk of the municipal court shall transmit to a justice of the peace or municipal court wherein the venue is proper all the original papers in the case, including the bail bond, if there is any.
  2. If the defendant is in custody, he shall be taken and delivered before the justice of the peace or the municipal court, and the bail, if any, shall be liable for the appearance of the defendant in the court to which the papers are transmitted.
  3. The court to which the papers are transmitted shall proceed to try the action in all respects as if the action had been originally brought to the court.

History. Acts 1949, No. 224, § 1; A.S.A. 1947, § 26-310.

Research References

Ark. L. Rev.

Acts 1949 General Assembly—Act 224 Change of Venue in Inferior Courts, 3 Ark. L. Rev. 359.

16-19-409. Change of venue from justice of peace to municipal court.

  1. In any case, either civil or criminal, brought before a justice of the peace in any township in the county wherein a municipal court exists, the judge may grant a change of venue to the municipal court, upon defendant's motion and a showing of good cause, without the prepayment or tender of any fees. Upon granting of the motion, the justice of the peace shall have no further jurisdiction in the case, except for the purpose of preparing a transcript for the municipal court.
  2. In the event of any change of venue from a justice of the peace to a municipal court in the counties where more than one (1) municipal court exists, the case shall be transferred to the nearest municipal court geographically in the county.
  3. In no event shall any change of venue lie from any municipal court to any justice of the peace in either civil or criminal cases.

History. Acts 1989 (3rd Ex. Sess.), No. 55, § 1.

A.C.R.C. Notes. Former § 16-19-409, concerning change of venue from justice of peace to municipal court, is deemed to be superseded by this section. The former section was derived from Acts 1927, No. 60, § 21; Pope's Dig., § 9917; Acts 1961, No. 178, § 1; A.S.A. 1947, § 22-725.

Publisher's Notes. Acts 1989 (3rd Ex. Sess.), No. 55, § 1, is also codified as § 16-17-218.

Case Notes

Constitutionality.

Divestment of jurisdiction from the city court is not contrary to Ark. Const., Art. 7, § 43, which gives the General Assembly authority to set jurisdiction of corporation courts. City Court v. Tiner, 292 Ark. 253, 729 S.W.2d 399 (1987).

City Court.

Jurisdiction of city court, like that of the justice of peace, is subject to a motion to transfer to municipal court when a state offense is involved, and upon the filing of a motion to take a change of venue, jurisdiction is withdrawn from the city court. City Court v. Tiner, 292 Ark. 253, 729 S.W.2d 399 (1987).

Mandamus.

Mandamus is the proper remedy to compel justice of the peace to transfer case to municipal court when motion is filed. Brickell v. Guaranty Loan & Trust Co., 192 Ark. 652, 93 S.W.2d 656 (1936).

Mayor's Court.

The jurisdiction of the mayor's court, like that of the justice of the peace, is subject to a motion to transfer to municipal court when a state offense is involved. Russell v. Miller, 253 Ark. 583, 487 S.W.2d 617 (1972).

This section does not automatically allow change of venue away from a mayor's court, as § 16-88-101 also applies. McKnight v. Newkirk, 256 Ark. 342, 507 S.W.2d 98 (1974).

Prohibition.

Writ of prohibition held proper where trial court was entirely without jurisdiction. City Court v. Tiner, 292 Ark. 253, 729 S.W.2d 399 (1987).

Request.

The defendant charged with a misdemeanor before a justice of the peace may have a trial in the municipal court only by requesting a change of venue to that court. Lee v. Watts, 243 Ark. 957, 423 S.W.2d 557 (1968).

Cited: Overton v. Alston, 199 Ark. 96, 132 S.W.2d 834 (1939); Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988).

16-19-410. Additional compensation of justices of the peace in townships having a municipal court.

A justice of the peace in a township subject to this act shall receive as compensation for his services the sum of twenty-five dollars ($25.00) per year, in equal quarterly installments, payable by the county, in addition to the compensation provided for by Acts 1875, No. 55, § 76 [repealed], and such fees as are allowed to justices of the peace by law for solemnizing marriages, taking and certifying acknowledgments of instruments, and attending to the duties of coroner, and for service in relation to estrays.

History. Acts 1927, No. 60, § 18; Pope's Dig., § 9914; A.S.A. 1947, § 22-726.

Publisher's Notes. Acts 1927, No. 60, § 18, is also codified as § 16-17-219.

Meaning of “this act”. See note to § 16-19-401.

16-19-411. Filing of reports of fees and costs.

Justices of the peace in townships subject to this act shall, on or before the first day of county court, at each term thereof, file in the office of the county clerk a report, under oath, of all fees and costs taxed and collected in civil actions during the preceding quarter, giving the title of the cause and attaching to the report receipts of the county treasurer of all fees and costs collected during the period.

History. Acts 1927, No. 60, § 22; Pope's Dig., § 9918; A.S.A. 1947, § 22-727.

Publisher's Notes. Acts 1927, No. 60, § 22, is also codified as § 16-17-220.

Meaning of “this act”. See note to § 16-19-401.

16-19-412. Improper use of process — Granting privileges — Failure to report or pay over fines.

Any municipal judge, or any justice of the peace in townships subject to this act, who makes use, directly or indirectly, of the process of his own court, either as a party litigant or in interest or as an attorney or agent for any party litigant or in interest, or who offers or gives by way of remission of fees or otherwise any pecuniary inducements to the instituting or maintaining of any suits, prosecutions, or proceedings in his court, and any justice of the peace, or constable in townships subject to this act, or sheriffs in counties subject to this act, or clerks of the municipal court, or chief of police in any city subject to this act, who fails to report or pay over fines, penalties, forfeitures, fees, or costs collected by him, shall be deemed guilty of a misdemeanor and, on conviction for each of these offenses, shall be punished by a fine of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500). A conviction under this section shall work a forfeiture of office. Notwithstanding any other provision of this section, sheriffs and constables may retain the fees and costs due them out of each cause.

History. Acts 1927, No. 60, § 23; Pope's Dig., § 9919; A.S.A. 1947, § 22-728.

Publisher's Notes. Acts 1927, No. 60, § 23, is also codified as § 16-17-221.

Meaning of “this act”. See note to § 16-19-401.

16-19-413. [Repealed.]

A.C.R.C. Notes. Pursuant to § 1-2-207, the amendment to this section by Acts 1995, No. 1032, §§ 4 and 9, was superseded by the repeal of this section by Acts 1995, No. 1256.

Publisher's Notes. This section, concerning disposition of additional court costs imposed by § 5-65-113 [repealed], 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 1983, No. 918, § 1; A.S.A. 1947, § 75-2531; Acts 1995, No. 1032, §§ 4, 9.

Subchapter 5 — Process

Effective Dates. Acts 1845, § 3, p. 46: effective on passage.

Acts 1873, No. 135, § 127: effective on passage.

Acts 1875, No. 77, § 53: effective on passage.

Acts 1893, No. 171, § 5: effective on passage.

16-19-501. Authority to issue subpoenas.

Justices of the peace shall have the same power to issue subpoenas for witnesses in civil and criminal actions pending before them and in preliminary examinations being heard by them, where such witnesses reside outside of their counties, as is given by law in similar cases to the circuit court.

History. Acts 1893, No. 171, § 2, p. 301; C. & M. Dig., §§ 3322, 6405; Pope's Dig., §§ 4170, 8367; A.S.A. 1947, § 26-508.

16-19-502. Payment in advance for issuance of process.

In all civil cases before a justice of the peace, the same advance payments shall be made, or bond and security given, as are provided for clerks for the issuance of any writ or process.

History. Acts 1875, No. 77, § 35, p. 167; C. & M. Dig., § 4602; Pope's Dig., § 5691; A.S.A. 1947, § 26-509.

16-19-503. Service of process by constable — Fees.

    1. The summons and other process mentioned in § 16-19-405 and the subpoenas mentioned in § 16-19-501 shall be directed to and shall be served by any constable in the county in which the party or parties to be served reside. The constables are given as full powers to serve such process as they are given by law to serve the process of justices of the peace of their own county.
    2. Each constable may execute civil process throughout the county.
  1. In no case shall the constable be allowed mileage for the service of any process he may serve outside of his township, other than from the residence of the defendant in such process to the nearest justice of the peace in the township in which that defendant resides.

History. Rev. Stat., ch. 29, § 26; Acts 1893, No. 171, § 3, p. 301; C. & M. Dig., §§ 1458, 6406; Pope's Dig., §§ 1759, 8368; A.S.A. 1947, §§ 26-502, 26-505.

16-19-504. Vacancy in constable's office — Service by constable of adjoining township — Mileage fees.

  1. When the office of constable in any township becomes vacant by death, resignation, refusal or neglect to qualify, or failure to elect, any constable of any adjoining township, during the vacancy, shall execute and return all process which are issued by any justice of the peace in the township where the constable's office is vacant and which are directed to him, against any person in the township where the vacancy exists.
  2. In addition to the fees now allowed by law, the constable shall receive for the service of each and every summons or subpoena, or other process, except executions, so directed to him, two and one-half cents (2½¢) per mile, going and returning from his own residence to that of the person named in the process residing farthest from him.

History. Acts 1845, § 1, p. 46; C. & M. Dig., § 1459; Pope's Dig., § 1760; A.S.A. 1947, § 26-503.

16-19-505. Appointment of special agents to execute process — Endorsement on writ.

Justices of the peace shall have power to appoint special agents to execute orders of arrest, attachments, and other provisional remedies and the summons which accompanies them, whenever an affidavit is filed with the justice by the plaintiff or his agent to the effect that he believes that, owing to the absence or difficulty of procuring a proper officer, the process or other order cannot be executed without injurious delay. In cases where there is no constable in the township, and the appointment provided for in this section shall be made, an endorsement shall be made on the writ or order and signed by the justice.

History. Acts 1873, No. 135, § 8, p. 430; C. & M. Dig., §§ 6414, 6415; Pope's Dig., §§ 8376, 8377; A.S.A. 1947, § 26-504.

16-19-506. Manner of service and return.

  1. The service and return thereto of the process provided for in this chapter shall be made in the same manner as in the circuit court, except that no service other than is provided for in this chapter shall be made by publication, nor shall any return made by anyone other than the sheriff, coroner, or constable of the county be valid unless sworn to.
  2. The service of process shall be by:
    1. Delivering to the defendant a copy of the summons, and, if he refuses to receive it, the offer of it to him shall be a sufficient service; or
    2. Leaving a copy of such summons at the usual place of abode of the defendant with some person who is a member of his family over the age of fifteen (15) years; or
    3. Reading it to and in the presence of the defendant.

History. Acts 1873, No. 135, §§ 9, 10, p. 430; C. & M. Dig., §§ 6416, 6417; Pope's Dig., §§ 8378, 8379; A.S.A. 1947, §§ 26-506, 26-507.

A.C.R.C. Notes. The Supreme Court of Arkansas stated in its Per Curiam of November 24, 1986, that subsection (a) of this section was deemed superseded by the Arkansas Rules of Appellate Procedure and the Arkansas Rules for Inferior Courts.

Case Notes

Delivery to Neighbor.

Delivery of a copy of the summons to a neighbor of the defendant was insufficient to sustain a judgment. Nelson v. Freeman, 136 Ark. 396, 206 S.W. 667 (1918).

Subchapter 6 — Trial

Effective Dates. Acts 1873, No. 135, § 127: effective on passage.

Acts 1893, No. 71, § 2: effective on passage.

Acts 1893, No. 171, § 5: effective on passage.

16-19-601. Trial by court or jury.

After the parties appear and the issues have been made up, the matters in controversy may be submitted by them to the justice. If a jury is demanded by either party, the justice shall order a jury to be forthwith summoned and impaneled to try the action.

History. Acts 1873, No. 135, § 24, p. 430; C. & M. Dig., § 6431; Pope's Dig., § 8393; A.S.A. 1947, § 26-608.

Case Notes

Equity.

A justice may apply equitable doctrines to the solution of questions properly coming within his jurisdiction, but he cannot administer the flexible remedies of equity jurisprudence. Whitesides v. Kershaw & Driggs, 44 Ark. 377 (1884); Thompson v. Ogle, 55 Ark. 101, 17 S.W. 593 (1891).

16-19-602. Adjournment.

If from any cause, the justice of the peace is unable to attend the trial at the time fixed, or if a jury is demanded, the justice may adjourn the case for a period not exceeding three (3) days, but shall not make more than two (2) adjournments for that cause.

History. Acts 1873, No. 135, § 14, p. 430; C. & M. Dig., § 6425; Pope's Dig., § 8387; A.S.A. 1947, § 26-604.

16-19-603. Continuances — Testimony of adverse party's witness.

  1. Either party may obtain a postponement of the cause not exceeding thirty (30) days, on account of the absence of evidence by filing an affidavit like that required in § 16-63-402, subject to such terms as the court may impose.
  2. Either party who shall apply for the postponement of a cause shall, if required by the adverse party, consent that the testimony of any witness of the adverse party who is in attendance be then taken to be used on the trial of the cause.

History. Acts 1873, No. 135, §§ 18, 19, p. 430; C. & M. Dig., §§ 6429, 6430; Pope's Dig., §§ 8391, 8392; A.S.A. 1947, §§ 26-606, 26-607.

Research References

Ark. L. Rev.

Continuances in Arkansas, 4 Ark. L. Rev. 449.

16-19-604. Jurors — Number and qualifications.

The jury shall be composed of six (6) jurors who shall be qualified as required in the circuit courts. However, a lesser number of jurors may be agreed upon by the parties.

History. Acts 1873, No. 135, § 24, p. 430; C. & M. Dig., § 6431; Pope's Dig., § 8393; A.S.A. 1947, § 26-608.

16-19-605. Challenges to jurors.

  1. In the formation of a jury, each party shall be entitled to three (3) peremptory challenges, and any deficiencies in the number of jurors summoned, arising from any cause, may be supplied by summoning others in their stead.
  2. In all cases before justices of the peace in this state, it shall be a legal cause for challenge that anyone selected as a juror has served as a juror in a justice's court in the same county within three (3) months prior to the institution of the suit in which the juror is selected.

History. Acts 1873, No. 135, § 25, p. 430; 1893, No. 71, § 1, p. 116; C. & M. Dig., §§ 3321, 6432, 6433; Pope's Dig., §§ 4169, 8394, 8395; A.S.A. 1947, §§ 26-609, 26-610.

Research References

U. Ark. Little Rock L.J.

Note, Peremptory Challenges After Purkett v. Elam, 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.

Case Notes

Prosecutorial Misconduct.

Both in this case and in the trial preceding Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), the prosecutor consistently and systematically excluded African-Americans from participating as jurors through the use of peremptory challenges. Ford v. Lockhart, 861 F. Supp. 1447 (E.D. Ark. 1994), aff'd, Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Standard of Review.

—Racial Discrimination.

A constitutional violation involving the selection of jurors in a racially discriminatory manner is a “structural defect” in the trial mechanism which cannot be subjected to a harmless error analysis. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

16-19-606. Jurors — Oath.

The justice of the peace shall administer to each juror an oath well and truly to try the matter in controversy between , plaintiff, and , defendant, and a true verdict give according to the evidence, unless discharged by the justice of the peace.

History. Acts 1873, No. 135, § 26, p. 430; C. & M. Dig., § 6434; Pope's Dig., § 8396; A.S.A. 1947, § 26-611.

16-19-607. Jury to hear evidence in a body.

After the jury are sworn, they shall sit together and hear the allegations and proofs of the parties, which shall be delivered publicly in their presence.

History. Acts 1873, No. 135, § 27, p. 430; C. & M. Dig., § 6435; Pope's Dig., § 8397; A.S.A. 1947, § 26-612.

16-19-608. Witnesses generally.

  1. Every person offered as a witness, before any testimony shall be given by him, shall be duly sworn that the evidence he shall give relating to the matter between , plaintiff, and , defendant, shall be the truth, the whole truth, and nothing but the truth.
  2. If a witness, on being produced, shall be objected to as incompetent, or his testimony, when offered, shall be objected to as irrelevant, the objections shall be heard and determined by the justice.

History. Acts 1873, No. 135, §§ 28, 29, p. 430; C. & M. Dig., §§ 6436, 6437; Pope's Dig., §§ 8398, 8399; A.S.A. 1947, §§ 26-613, 26-614.

16-19-609. Examination of adversary — Effect of refusal to submit to examination — Application on appeal.

  1. Either party may examine the other on oath and for that purpose may cause him to be summoned to attend the trial if he resides in the county or, if he resides out of the county, may file written interrogatories with the court or magistrate before whom the trial is to be had, together with an affidavit that he believes the answers to them are necessary to his obtaining justice, and cause a copy of the interrogatories to be delivered to the party required to answer them, who shall make out, swear to, and file with the court or magistrate, on or before the day of trial, a plain, direct response to the interrogatories, which may be read by either party.
  2. The court shall render judgment against the party who refuses to attend and be examined, when summoned two (2) days before trial, or to make proper responses to interrogatories when a copy has been delivered to him three (3) days before the trial, when he resides within fifty (50) miles of the place of trial, and one (1) additional day for every thirty (30) miles he may reside therefrom. However, the court may grant further time for attending or answering.
  3. Subsections (a) and (b) of this section shall apply to circuit courts upon the trial of appeals from judgments of justices of the peace.

History. Acts 1873, No. 135, §§ 30-32, p. 430; C. & M. Dig., §§ 6438-6440; Pope's Dig., §§ 8400-8402; A.S.A. 1947, §§ 26-616 — 26-618.

Research References

Ark. L. Rev.

Adverse Party as a Witness, 17 Ark. L. Rev. 136.

16-19-610. Witness and juror attendance and mileage fees.

  1. The quorum court of any county may, by a majority vote of the members thereof, fix the fees payable to witnesses and jurors for attendance or service in the justice of the peace court at any sum not to exceed five dollars ($5.00) per day.
    1. Witnesses subpoenaed to attend a justice's court outside of their own county as provided in § 16-19-501 shall have the same mileage and per diem for attending such courts as is provided by law in like cases in the circuit court.
    2. They shall have the same right to demand and receive their mileage and per diem in advance as is provided by law for witnesses subpoenaed to attend the circuit court.

History. Acts 1893, No. 171, § 4, p. 301; C. & M. Dig., § 6407; Pope's Dig., § 8369; Acts 1959, No. 71, § 1; A.S.A. 1947, §§ 26-615, 26-622.

Cross References. Witness fees, § 16-43-801 et seq.

16-19-611. Verdict — Entry on docket.

  1. The jurors must all agree to the verdict.
  2. When the jurors shall have agreed upon their verdict, they shall deliver the verdict to the justice publicly, who shall enter it on his docket.

History. Acts 1873, No. 135, §§ 27, 33, p. 430; C. & M. Dig., §§ 6435, 6441; Pope's Dig., §§ 8397, 8403; A.S.A. 1947, §§ 26-612, 26-619.

16-19-612. Failure of jury to agree — Retrial.

Whenever a justice is satisfied that a jury sworn in a cause before him, after having been out a reasonable time, cannot agree on their verdict, he may discharge them and shall immediately issue a new summons for another to appear, at a time therein fixed, not more than three (3) days distant, unless the parties consent that the justice may render judgment upon the evidence already before him, which he may do in that case, or unless they consent that the new trial, upon a new hearing of the evidence to be adduced by the parties, shall be by the justice.

History. Acts 1873, No. 135, § 34, p. 430; C. & M. Dig., § 6442; Pope's Dig., § 8404; A.S.A. 1947, § 26-620.

Case Notes

Continuance.

Jurisdiction of the subject matter is not lost by continuance beyond three days. Wheeler & Wilson Manufacturing Co. v. Donahoe, 49 Ark. 318, 5 S.W. 342 (1887).

16-19-613. New trial granted on motion — Exception.

A new trial or rehearing may be granted by a justice of the peace, except on trial by jury, upon motion made within ten (10) days after a judgment or final order has been made or rendered. Notice of the motion shall be given to the opposite party. However, no motion for a new trial or a rehearing in a cause tried by a jury shall be entertained by a justice of the peace.

History. Acts 1873, No. 135, § 41, p. 430; C. & M. Dig., §§ 6449, 6450; Pope's Dig., §§ 8411, 8412; A.S.A. 1947, § 26-621.

Case Notes

Appeal after New Trial Granted.

Where a defendant asked for a new trial in a justice's court which was granted and the case was set for retrial and subsequently the defendant withdrew his application for a new trial and prayed an appeal to the circuit court which was granted, the effect of the proceedings was to leave the original judgment in force and the circuit court acquired jurisdiction on appeal. Cathey v. Bowen, 70 Ark. 348, 68 S.W. 31 (1902).

Correction of Errors.

While a justice of the peace has power to set aside a void judgment or to quash void process and an appeal will lie from his judgment either granting or refusing that relief, he has no power to modify or change the judgment or to grant a rehearing for the correction of errors after ten days from the rendition of the judgment. Betterton v. Anderson, 171 Ark. 74, 283 S.W. 364 (1926).

Subchapter 7 — Dismissal, Default, Etc.

Effective Dates. Acts 1873, No. 135, § 127: effective on passage.

16-19-701. Dismissal for want of prosecution generally.

If the plaintiff fails to appear in person, or by his agent or attorney, on the return day of the summons, or at any other time fixed for the trial, the justice may dismiss the action for want of prosecution, except in the case provided for in § 16-19-703(a).

History. Acts 1873, No. 135, § 35, p. 430; C. & M. Dig., § 6443; Pope's Dig., § 8405; A.S.A. 1947, § 26-801.

Case Notes

Appeal.

Where judgment by default was rendered by a justice of the peace since, on day of trial, the plaintiffs as well as the defendants failed to appear, the plaintiffs should have been nonsuited and this error might have been corrected by appeal. Shaver & Son v. Shell, 24 Ark. 122 (1863).

Where a justice of the peace in a garnishment proceeding determined that an interpleader was entitled to the fund garnished as against the plaintiff, the justice could not, by dismissing the plaintiff's motion for want of jurisdiction, prevent the plaintiff from taking an appeal, unless the plaintiff first moved to set aside the judgment of the justice. Ellis v. Citizens' State Bank, 178 Ark. 191, 10 S.W.2d 8 (1928).

16-19-702. Judgment on proof on defendant's nonappearance generally.

When the plaintiff's claim is not founded on a written instrument as described in § 16-19-703(a) and the defendant does not appear, the justice shall proceed to hear the allegations and proofs of the plaintiff, and shall render judgment thereon for the amount to which he shows himself entitled, not exceeding the amount claimed in the action.

History. Acts 1873, No. 135, § 38, p. 430; C. & M. Dig., § 6446; Pope's Dig., § 8408; A.S.A. 1947, § 26-804.

16-19-703. Actions founded on written instruments liquidating the claim of the plaintiff — Effect of failure of parties to appear.

  1. When the suit is founded on an instrument of writing purporting to have been executed by the defendant, in which the demand of the plaintiff is liquidated, and if the signature of the defendant is not denied under oath, and if the instrument has been filed with the justice of the peace previous to the day for appearance, he may proceed with the cause, whether the plaintiff appears or not. The instrument of writing shall be competent proof in the case.
  2. In the case provided for in subsection (a) of this section, if the defendant does not appear in obedience to the summons, judgment shall be rendered against him for the amount of the plaintiff's claim.

History. Acts 1873, No. 135, §§ 36, 37, p. 430; C. & M. Dig., §§ 6444, 6445; Pope's Dig., §§ 8406, 8407; A.S.A. 1947, §§ 26-802, 26-803.

16-19-704. Setoff on written instrument.

In the cases contemplated in §§ 16-19-702 and 16-19-703(b), if the defendant has previously filed a setoff, founded on a written instrument purporting to have been signed by the plaintiff, calling for a certain sum, and if the signature of such plaintiff is not denied under oath, the justice shall allow the setoff in the same manner as if the defendant had appeared and shall render judgment accordingly.

History. Acts 1873, No. 135, § 39, p. 430; C. & M. Dig., § 6447; Pope's Dig., § 8409; A.S.A. 1947, § 26-805.

16-19-705. Setting aside judgment by default or dismissal for want of prosecution.

A judgment of dismissal for want of prosecution, or judgment by default, may be set aside by the justice at any time within ten (10) days after being rendered if the party applying therefor can show a satisfactory excuse for his default, and a meritorious cause of action or meritorious defense. Upon such a showing of a satisfactory excuse for default and a meritorious cause of action or defense, a new day shall be fixed for trial, and notice shall be given to the opposite party, and any execution which may in the meantime have been issued shall be recalled in the same manner as in cases of appeal. The cause shall proceed to trial as though no such judgment had been taken.

History. Acts 1873, No. 135, § 40, p. 430; C. & M. Dig., § 6448; Pope's Dig., § 8410; A.S.A. 1947, § 26-806.

Case Notes

Applicability.

This section does not apply where the parties appeared and had trial. Carroll v. Texport Oil Co., 148 Ark. 18, 228 S.W. 390 (1921).

Remedies.

There are three remedies against default judgment: motion to set aside, appeal to circuit court, and certiorari when appeal lost without fault of appellant. Twin City Bank v. J.S. McWilliams Auto. Co., 182 Ark. 1086, 34 S.W.2d 229 (1931).

Trial Fee.

A justice of the peace is entitled to a trial fee even if the case goes by default. Reigler v. Quinn, 54 Ark. 37, 14 S.W. 1103 (1890).

16-19-706. Compromises — Confession of judgment.

  1. After an action for the recovery of money is brought in a justice of the peace court, the defendant may offer to compromise or to confess judgment in the manner prescribed for, and with the same effect as he could or might do, in the circuit court, and shall be entitled to all the benefits to be derived therefrom to the same extent as on similar proceedings in the circuit court.
  2. The rules and proceedings governing confessions of judgment, as they may apply to the circuit courts, are made to apply to justice of the peace courts.

History. Acts 1873, No. 135, §§ 52, 121, p. 430; C. & M. Dig., § 6461; Pope's Dig., §§ 8423, 8463; A.S.A. 1947, §§ 26-407, 26-807.

Cross References. Agreed cases, § 16-118-101.

Case Notes

Evidence of Appearance.

When an entry of a judgment by confession in the docket of a justice does not show, except by inference, that the defendant personally appeared in the justice court, as provided by law, and where it is shown by parol testimony that defendant did not appear, the judgment against him will be void. Smith v. Finley, 52 Ark. 373, 12 S.W. 782 (1889).

Judgment for Interpleader.

A judgment entered by the justice of the peace in favor of an interpleader in an attachment suit containing a recital that the plaintiff's attorney “acknowledged judgment for the property” will not, on appeal, be treated as a judgment by confession where the plaintiff's attorney resisted the interplea, and no authority is shown to have been possessed by him to confess judgment on behalf of the plaintiff. Jansen v. Strayhorn, 59 Ark. 330, 27 S.W. 230 (1894).

Subchapter 8 — Judgment

Effective Dates. Acts 1873, No. 135, § 127: effective on passage.

16-19-801. Mutual judgments.

  1. Mutual judgments between the same parties rendered by the same or different justices of the peace may be set off against each other.
  2. When judgments are rendered by the same court, the justice shall strike the balance as it appears from the judgments on his docket and shall issue executions therefor in favor of the party to whom the balance appears to be due.
    1. If the judgment proposed to be set off was rendered by another justice of the peace, the party offering it must obtain a transcript thereof, with a certificate of the justice of the peace who rendered it endorsed thereon, stating that no appeal has been taken and that the transcript was obtained for the purpose of being used as a setoff in that case. However, the transcript shall not be given until the time for taking an appeal has elapsed.
    2. The justice so giving a transcript shall make an entry in his docket, and all other proceedings in his court shall be stayed.
      1. When the transcript is presented to the justice who has rendered a judgment between the same parties, as aforesaid, if execution has not been issued on the judgment rendered by him, he shall strike a balance between the judgments and issue execution for such balance.
      2. If, at the time of filing the transcript, execution has already been issued, the justice of the peace shall also issue execution on the transcript filed with him, and deliver it to the same officer who has the other execution. Such officer shall treat the lesser execution as so much cash collected on the larger and proceed to collect the balance then found due.
      1. When the judgment is allowed to be set off, as provided in this section, the transcript thereof shall be filed among the papers of the case in which it is so used and the proper entry made in the docket of the justice of the peace.
      2. However, if the justice of the peace refuses the judgment as a setoff, he shall so certify on the transcript and return it to the party who offered it. When the transcript is filed in the office of the justice of the peace who gave it, proceedings may be held by him in the same manner as if no such transcript had been certified by him.
  3. The costs in suits where mutual judgments have been obtained shall not be set off unless the balance of cash actually collected on the larger judgment be sufficient to pay the costs of both judgments, and such cost shall be paid therefrom accordingly.

History. Acts 1873, No. 135, §§ 44-51, p. 430; C. & M. Dig., §§ 6453-6460; Pope's Dig., §§ 8415-8422; A.S.A. 1947, §§ 26-903 — 26-910.

16-19-802. Remittitur.

If any sum is found in favor of a party, either by verdict of a jury or upon a hearing of the cause before a justice, exceeding the sum for which the justice is authorized to give judgment, the party may remit and release the excess and take judgment for the residue, but shall never thereafter be allowed to institute any suit for the recovery of the excess so remitted and released.

History. Acts 1873, No. 135, § 55, p. 430; C. & M. Dig., § 6462; Pope's Dig., § 8424; A.S.A. 1947, § 26-911.

Subchapter 9 — Stay of Execution

Effective Dates. Acts 1873, No. 135, § 127: effective on passage.

Acts 1889, No. 66, § 4: effective on passage.

Acts 1899, No. 29, § 3: effective on passage.

16-19-901. Stay of execution generally.

The execution from a judgment rendered by a justice of the peace may be stayed in the manner and form as provided in this subchapter.

History. Acts 1873, No. 135, § 56, p. 430; 1889, No. 66, § 3, p. 82; 1899, No. 29, § 1, p. 37; C. & M. Dig., § 6466; Pope's Dig., § 8428; A.S.A. 1947, § 26-1001.

16-19-902. Cases in which no stay to be allowed.

No stay shall be allowed against any collecting officer, or attorney at law or agent, for a delinquency or default in executing or discharging the duties of his office or place or for failing to pay over money collected by him in such capacity, or against a principal by his surety on a stay bond or otherwise, or on a judgment for specific property, or for the property or its value. In the cases mentioned in this section in which a stay is not allowed, the justice of the peace shall note the same on his docket on the day of the rendition thereof.

History. Acts 1873, No. 135, § 67, p. 430; C. & M. Dig., § 6477; Pope's Dig., § 8439; A.S.A. 1947, § 26-1012.

16-19-903. Bond.

  1. To entitle any person to a stay of execution, some responsible person, to be approved by the justice of the peace, who is not a party to the judgment, must enter into an obligation before the justice of the peace to the adverse party, in a sum sufficient to secure the payment of the judgment, conditioned that the obligation shall be void on payment of the judgment at the expiration of the stay.
  2. The obligation must be signed by the party entering into it, must be attested by the justice of the peace before whom it may be taken, and shall have the same force and effect as a judgment rendered by a justice of the peace.
  3. The bond may be in the following form:
  4. The justice shall file the obligation among the papers in the case and make a note in his docket of the day and date thereof.
  5. The stay of execution in all sums under the jurisdiction of the court shall be for six (6) months from the rendition of the judgment.

“I , acknowledge myself indebted to in the sum of dollars, to be void upon this condition: Whereas, obtained a judgment before , a justice of the peace of township, in the County of , on the day of , 19 , against . Now, if such judgment shall be paid at the expiration of months from the time it was rendered, this obligation shall be void. Approved: , J.P.”

Click to view form.

History. Acts 1873, No. 135, §§ 58, 59, p. 430; 1899, No. 29, § 2, p. 37; C. & M. Dig., §§ 6468, 6469; Pope's Dig., §§ 8430, 8431; A.S.A. 1947, §§ 26-1002, 26-1004.

16-19-904. Agreed period of stay.

If all the parties agree upon any other period, the stay shall be for the time so agreed upon.

History. Acts 1873, No. 135, § 57, p. 430; C. & M. Dig., § 6467; Pope's Dig., § 8429; A.S.A. 1947, § 26-1003.

16-19-905. Stayed judgment lien on personal property.

In all cases where execution is stayed on any judgment rendered by a justice of the peace under the provisions of this subchapter, the judgment shall be a lien upon all the personal property subject to execution belonging to the defendant at the time of the rendition of the judgment.

History. Acts 1873, No. 135, § 62, p. 430; C. & M. Dig., § 6472; Pope's Dig., § 8434; A.S.A. 1947, § 26-1007.

Case Notes

Limitation of Lien.

The lien is confined to defendant's personal property in the township in which the judgment was rendered. Carroll v. Gillespie & Bro., 41 Ark. 468 (1883).

16-19-906. Revocation of execution.

If a judgment is stayed in the manner prescribed in this subchapter after an execution shall have been issued thereon, the justice of the peace shall revoke the execution in the same manner and with like effect as he is directed to revoke an execution after an appeal has been allowed.

History. Acts 1873, No. 135, § 66, p. 430; C. & M. Dig., § 6476; Pope's Dig., § 8438; A.S.A. 1947, § 26-1011.

Case Notes

Cited: McBride v. Mullinix, 299 F. 162 (8th Cir. 1924).

16-19-907. Immediate issuance of execution to prevent fraud.

If the plaintiff or his agent makes an oath before the justice of the peace rendering the judgment that he has reason to believe that the defendant is secreting his property or is putting it out of his hands for the purpose of defrauding his just creditors and that he verily believes the debt will be lost if execution is not immediately issued, the justice of the peace shall immediately issue execution on such judgment.

History. Acts 1873, No. 135, § 60, p. 430; C. & M. Dig., § 6470; Pope's Dig., § 8432; A.S.A. 1947, § 26-1005.

16-19-908. Execution issued where bond insufficient.

If any plaintiff, in any judgment rendered before a justice of the peace upon which execution has been stayed, satisfies the justice of the peace before whom an obligation for the stay may have been entered into, by affidavit or by evidence, that the obligation or the security therein is insufficient and that unless execution be immediately issued on such judgment he will be in danger of losing his debt, the justice of the peace shall immediately issue execution regardless of the stay.

History. Acts 1873, No. 135, § 61, p. 430; C. & M. Dig., § 6471; Pope's Dig., § 8433; A.S.A. 1947, § 26-1006.

16-19-909. Failure to satisfy judgment — Levy against principal and security — Judgment for bail.

  1. If at the expiration of the stay, any judgment is not paid, the execution shall be issued against both principal and security.
    1. If the principal does not satisfy the execution, and the officer cannot find sufficient property belonging to him upon which to levy, he shall levy upon the property of the bail, and in his return shall state what amount of the money collected by him on the execution was collected from the bail and the time the money was received.
      1. After the return of the execution, the bail shall be entitled, upon motion, to a judgment before the justice of the peace for the amount collected from him in satisfaction of the execution, with interest thereon at the rate of ten percent (10%) per annum. The return of the officer shall be evidence of the amount of money paid by the bail.
      2. No such motion shall be made after the expiration of four (4) months from the return day of the execution.

History. Acts 1873, No. 135, §§ 63-65, p. 430; C. & M. Dig., §§ 6473-6475; Pope's Dig., §§ 8435-8437; A.S.A. 1947, §§ 26-1008 — 26-1010.

Subchapter 10 — Execution, Levy, and Sale

Effective Dates. Acts 1873, No. 135, § 127: effective on passage.

Acts 1941, No. 333, § 3: approved Mar. 26, 1941. Emergency clause provided: “Many causes of action are now pending before various courts of this state and this act being necessary for the immediate preservation of the public peace, health, and safety, an emergency is hereby declared to exist and this act shall be in full force and effect from and after its passage.”

16-19-1001. Issuance generally.

  1. Upon every judgment rendered by a justice of the peace, execution shall be issued by the justice of the peace in the manner prescribed in this subchapter, at any time on demand, unless the execution has been stayed.
  2. The execution shall be directed to any constable of the county.
  3. The execution must be dated, as on the day on which it is issued and made returnable within thirty (30) days thereafter, and may be substantially in the form used in the circuit court.
  4. Before any execution shall be delivered, the justice of the peace shall state in his docket and also on the back of the execution an account of debt, damages, and costs and of the fees due to each person separately, and the officer receiving the execution shall endorse thereon the time of receiving the execution.

History. Acts 1873, No. 135, §§ 54, 70, 76, p. 430; C. & M. Dig., §§ 6482, 6483; Pope's Dig., §§ 8444, 8445; A.S.A. 1947, §§ 26-1102, 26-1103, 26-1105n.

Case Notes

Recall.

A justice has control of an improper or improvident execution issued by him, and may recall and quash it. Scanland v. Mixer, 34 Ark. 354 (1879); Dunnagan v. Shaffer, 48 Ark. 476, 3 S.W. 522 (1886).

16-19-1002. Issuance of execution — Time limitations.

Executions for the enforcement of judgments in a justice of the peace court, except when filed in the clerk's office of the circuit court of the county in which the judgment was rendered, may be issued by the justice of the peace before whom judgment was rendered on the application of the party entitled thereto at any time within five (5) years from the entry of the judgment, but not afterwards.

History. Acts 1873, No. 135, § 53, p. 430; C. & M. Dig., § 6481; Pope's Dig., § 8443; A.S.A. 1947, § 26-1101.

Case Notes

Applicability.

The five-year limitation on issuance of execution on judgment does not apply to suits on judgment which may be brought at any time within the limitation prescribed by § 16-56-114. A. Karcher Candy Co. v. Hopkins, 211 Ark. 810, 202 S.W.2d 588 (1947).

Revival of Judgment.

No execution can be issued after five years from the rendition of the judgment, and there can be no revivor of the judgment by scire facias or any of the modes peculiar to courts of superior jurisdiction. Trammell v. Anderson, 52 Ark. 176, 12 S.W. 328 (1889).

16-19-1003. Execution by other than regular justice.

  1. Whenever a justice of the peace in any township in any county in this state, before whom a judgment has been obtained and upon whose docket the judgment appears against any person or persons, is absent from his office so that he cannot be found or has resigned or died and no successor been appointed, or when there is a judgment on the docket against the justice of the peace, it shall be the duty of any other qualified and acting justice of the peace in the township, or in the county, at the request of the plaintiff and the judgment, or at the request of the plaintiff's attorney or agent, or of the constable or other officer having the collection of the judgment, to issue an execution upon the judgment against the party against whom the judgment was obtained, and the same proceedings shall be had thereon as are prescribed by law.
    1. In order to carry out the provisions of subsection (a) of this section, it shall be the duty of every justice of the peace before whom a judgment has been obtained, whenever he is about to be absent from the township or county for more than ten (10) days, or has resigned and his successor has not been appointed, to deposit his docket or to cause his docket to be deposited with the nearest justice of the peace in his township or county.
    2. When the docket has been so deposited, it shall be lawful for the justice of the peace with whom the docket is deposited, upon application as provided in subsection (a) of this section, to issue an execution upon any judgment which appears unsatisfied upon the docket against any person or persons.
  2. It may be lawful for any justice of the peace in the same township, in the absence of the justice of the peace before whom the judgment has been obtained against any person or persons, when so requested by the persons provided for in subsection (a) of this section, after he has examined the judgment on the docket of the absent justice of the peace, to issue an execution on the judgment, as provided for in this section.
  3. When such other justice of the peace as contemplated in this section shall issue an execution upon a judgment rendered upon the docket of another justice of the peace, the execution shall be in the following form:
  4. The execution shall be directed to the constable of the township where the justice of the peace resides, unless when it is otherwise specially provided, shall be dated on the day it is issued, and shall be made returnable in thirty (30) days after its issuance.

“County of The State of Arkansas to any constable of the township of , greetings: Whereas, it appears from an examination of the docket of , a justice of the peace in and for the township of , in the County of , in the State of Arkansas, that , on the day of , 19 , obtained judgment before said justice against for dollars for his debt (or damages) and dollars for his damages, and also dollars for his costs; and, whereas, an execution has been ordered out on said judgment by said (or his attorney, agent, or constable, charged with the collection of the same, as the case may be), which judgment bears interest at the rate of percent on debt and damages from its date. You are therefore commanded to levy the same on the goods and chattels of the said according to law. You are further commanded to return this writ to the undersigned justice, on the day of , 19 . Given under my hand this day of , 19 . , J.P.”

Click to view form.

History. Acts 1873, No. 135, §§ 71-75, p. 430; C. & M. Dig., §§ 6485-6488; Pope's Dig., §§ 8447-8450; A.S.A. 1947, §§ 26-1105 — 26-1107, 26-1107n, 26-1108.

16-19-1004. Issuance against goods and chattels — Real estate exempt.

  1. The execution shall be against the goods and chattels of the person against whom the execution is issued.
  2. No real estate shall be levied upon or sold by virtue of any execution issued from a justice of the peace court.

History. Acts 1873, No. 135, §§ 54, 122, p. 430; C. & M. Dig., §§ 6482, 6495; Pope's Dig., §§ 8444, 8457; A.S.A. 1947, §§ 26-1102, 26-1115.

Case Notes

Cited: Smith v. Credit Serv. Co., 339 Ark. 41, 2 S.W.3d 69 (1999).

16-19-1005. Levy outside of township.

In case the defendant resides outside of the township where the judgment was rendered, or does not have sufficient goods and chattels therein to satisfy the judgment, the constable to whom the execution is directed may levy the execution upon the goods and chattels of the defendant in any township in the county where the defendant resides and where his goods and chattels may be found.

History. Acts 1873, No. 135, § 77, p. 430; C. & M. Dig., § 6484; Pope's Dig., § 8446; A.S.A. 1947, § 26-1104.

16-19-1006. Renewal of execution upon return unsatisfied.

  1. On executions issued and returned not satisfied, it shall be the duty of the justice of the peace to renew all such executions by endorsing the renewal on such executions to that effect, signed by him and dated when the renewal is made.
  2. Every such endorsement shall renew the execution in full force, in all respects for twelve (12) months and no longer.
  3. An entry of the renewal shall be made in the docket of the justice. However, execution so docketed shall be subject to be acted upon at any time at the instance of the plaintiff in all such cases as provided for.
  4. If part of the execution has been satisfied, the endorsement of renewal shall express the sum due on the execution.

History. Acts 1873, No. 135, §§ 78-80, p. 430; C. & M. Dig., §§ 6489-6491; Pope's Dig., §§ 8451-8453; A.S.A. 1947, §§ 26-1109 — 26-1111.

Case Notes

Lien.

An execution constitutes a lien from the time of issuance and levy and continues as a lien during the period of its renewal. McCabe v. Lee, 123 Ark. 82, 184 S.W. 448 (1916).

16-19-1007. Remedy of claimant of property levied upon.

No trial of the right to any property levied upon by a constable or justice of the peace shall be had before the constable. However, this section shall not bar the claimant of the property of his right to bring replevin therefor in the court having jurisdiction to try the action.

History. Acts 1873, No. 135, § 123, p. 430; C. & M. Dig., § 6500; Pope's Dig., § 8462; A.S.A. 1947, § 26-1116.

16-19-1008. Sale of goods and chattels levied upon — Notice.

  1. The constable, after taking goods and chattels into his custody, by virtue of an execution, shall without delay give public notice by at least three (3) advertisements posted in three (3) public places in the township, of the time when and place where they will be exposed to sale. The notice shall describe the goods and chattels taken and shall be posted at least ten (10) days before the day of sale.
  2. At the time and place so appointed, if the goods and chattels are present for the inspection of bidders, the officer shall expose the goods and chattels for sale at public vendue, for cash in hand.
  3. No constable or other officer shall directly or indirectly purchase any goods or chattels at any sale made by him upon execution. Every such sale shall be absolutely void.

History. Acts 1873, No. 135, §§ 81, 82, 84, p. 430; C. & M. Dig., §§ 6492, 6493; Pope's Dig., §§ 8454, 8455; A.S.A. 1947, §§ 26-1112, 26-1113, 26-1120.

Case Notes

Authority of Justice.

A justice has no authority to set aside a sale under execution; if the sale is void, the property is to be levied upon and sold again, but the justice has the authority, for legal cause, to quash an execution and its return, issued by him, thereby removing the only legal obstacle to another levy and sale. Dunnagan v. Shaffer, 48 Ark. 476, 3 S.W. 522 (1886).

Exhibition of Goods.

Unless the merchandise on which execution has been levied is exhibited at a sheriff's sale, the sale is void. Kennedy & Co. v. Clayton, 29 Ark. 270 (1874).

16-19-1009. Return of execution.

The constable shall return the execution and have the money before the justice of the peace at the time of making the return, ready to be paid over to the persons respectively entitled to the money.

History. Acts 1873, No. 135, § 83, p. 430; C. & M. Dig., § 6494; Pope's Dig., § 8456; A.S.A. 1947, § 26-1114.

Cross References. Procedure when execution is returned unsatisfied, § 16-66-417.

16-19-1010. Payment of judgment to constable or justice of the peace — Recovery by party entitled.

    1. The constable of the township shall receive all money that may be tendered to him in payment of any judgment obtained before a justice of the peace of the township and shall give the person paying the money a receipt therefor. The receipt shall specify on what account the money was paid.
    2. The payment shall be valid against the judgment and, upon the production to the justice of the peace of the receipt therefor, shall be credited thereon.
  1. No payment of money upon a judgment made to a justice of the peace, either before or after execution thereon, shall be valid against the judgment, nor shall the justice of the peace be authorized or empowered to collect and receipt for the money.
  2. The person entitled to the money paid shall have the same remedies against the constable and his securities for the recovery thereof as if the money had been collected by the constable on execution.

History. Acts 1873, No. 135, §§ 85-87, p. 430; C. & M. Dig., §§ 6496, 6498, 6499; Pope's Dig., §§ 8458, 8460, 8461; A.S.A. 1947, §§ 26-1117 — 26-1119.

16-19-1011. Suing out execution in circuit court — Procedure — Effect.

    1. Every justice of the peace, on the demand of any person in whose favor he has rendered judgment for more than ten dollars ($10.00), exclusive of costs, shall, upon payment of costs thereon, give to that person a certified copy of the judgment.
    2. The clerk of the circuit court of the same county in which the judgment was rendered, upon the production of any such transcript, shall file the transcript in his office and forthwith enter the judgment in the docket of the circuit court for judgments and decrees, and shall note therein the time of filing the transcript.
  1. The transcript may be filed, and execution may be sued out of the circuit court on the judgment, without an execution having been issued by the justice of the peace.
  2. Every such judgment, from the time of filing the transcript thereof, shall be a lien on the real estate of the defendant in the county, to the same extent as a judgment of the circuit court of the same county, and shall be carried into execution in the same manner and with like effect as the judgments of the circuit courts.

History. Acts 1873, No. 135, §§ 68, 69, p. 430; C. & M. Dig., §§ 6478-6480; Pope's Dig., §§ 8440-8442; Acts 1941, No. 333, § 1; A.S.A. 1947, §§ 26-1121 — 26-1123.

Publisher's Notes. This section may be affected by AICR, Rule 8.

Case Notes

Limitation.

Where commissioner of revenues obtained judgment on certificate of indebtedness for gasoline taxes but did not procure a writ of scire facias or execution to collect or preserve its judgment within statute of limitation, the right of the state to claim a lien was barred. Lion Oil & Refining Co. v. Rex Oil Co., 195 Ark. 1021, 115 S.W.2d 556 (1938).

Priority.

Certificate of assessment for unpaid unemployment compensation taxes acquired status of judgment when filed in circuit court in accordance with § 11-10-718 and constituted a lien on debtor's realty which was superior to federal government's lien for taxes under former 26 U.S.C. § 3670, where state's lien was first in point of time and there was no allegation of insolvency to bring into play the former federal priority statute, 31 U.S.C. § 191. Commercial Credit Corp. v. Schwartz, 130 F. Supp. 524 (E.D. Ark. 1955).

Subsequently Acquired Land.

A judgment from a justice of the peace court, when filed in the office of the clerk of the circuit court, becomes a lien on the real estate of the defendant, including land acquired after judgment, even though the clerk may neglect to enter the judgment in the docket of the circuit court. Petray v. Howell, 20 Ark. 615 (1859) (decision under prior law).

Where a judgment is obtained in the court of a justice of the peace and a transcript of the judgment is subsequently filed in the office of the circuit clerk, that judgment becomes a lien on land subsequently acquired by the judgment debtor by inheritance, and the lien cannot be displaced by the debtor's subsequently moving to the land and occupying it as a homestead. Cazort & McGehee Co. v. Byars, 104 Ark. 637, 150 S.W. 109 (1912).

Cited: St. Louis & S.F.R.R. v. Bowman, 76 Ark. 32, 88 S.W. 1033 (1905); Smith v. Watkins, 187 Ark. 852, 62 S.W.2d 41 (1933); McGehee Bank v. Charles W. Greeson & Sons, 223 Ark. 18, 263 S.W.2d 901 (1954); Thornbrough v. Mayner, 236 Ark. 480, 366 S.W.2d 889 (1963); Farm Serv. Coop. v. Goshen Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1979).

Subchapter 11 — Appeal

Effective Dates. Acts 1873, No. 135, § 127: effective on passage.

16-19-1101. Rule and attachment — Compelling justice of the peace to allow appeal.

If a justice of the peace fails to allow an appeal in a cause where the appeal ought to be allowed, the circuit court or the judge thereof in vacation, on such facts appearing satisfactorily, may by rule and attachment compel the justice of the peace to allow the appeal, and return the record of his proceedings in the suit, together with the papers required to be returned by him.

History. Acts 1873, No. 135, § 106, p. 430; C. & M. Dig., § 6522; Pope's Dig., § 8484; A.S.A. 1947, § 26-1312.

16-19-1102. Rule and attachment — Compelling return of proceedings by justice of the peace.

Upon the appeal being made and allowed, the circuit court may by rule and attachment compel a return by the justice of the peace of the record of his proceedings in the suit and of the papers required to be returned by him.

History. Acts 1873, No. 135, § 105, p. 430; C. & M. Dig., § 6521; Pope's Dig., § 8483; A.S.A. 1947, § 26-1311.

16-19-1103. Amendment of return.

Whenever the court is satisfied that the return of the record of the proceedings of the justice of the peace is substantially defective, the court may by rule and attachment compel him to amend the return.

History. Acts 1873, No. 135, § 107, p. 430; C. & M. Dig., § 6523; Pope's Dig., § 8485; A.S.A. 1947, § 26-1313.

16-19-1104. Securing or correcting bond after allowance of appeal — No dismissal for want of bond.

No appeal allowed by a justice of the peace shall be dismissed because there is no bond or obligation or because the bond or obligation given is defective if the appellant, before the motion to dismiss is determined, enters before the circuit court into such obligation as he ought to have entered into before the allowance of the appeal and pays all costs that shall be incurred by reason of such defect or omission. However, any person appealing without bond and a suspension of the proceedings in the justice of the peace courts shall not be required to enter into bond before the circuit court, as required in this section.

History. Acts 1873, No. 135, § 108, p. 430; C. & M. Dig., § 6524; Pope's Dig., § 8486; A.S.A. 1947, § 26-1314.

16-19-1105. Trial on appeal.

  1. Upon the return of the justice of the peace being filed in the clerk's office, the court shall be in possession of the cause and shall proceed to hear, try, and determine the cause anew on its merits, without any regard to any error, defect, or other imperfection in the proceedings of the justice of the peace.
  2. The same cause of action, and no other, that was tried before the justice of the peace shall be tried in the circuit court upon the appeal.
  3. No setoff shall be pleaded that was not pleaded before the justice of the peace if the summons was served on the person of the defendant.

History. Acts 1873, No. 135, §§ 102, 113, p. 430; C. & M. Dig., §§ 6518, 6529; Pope's Dig., §§ 8480, 8491; A.S.A. 1947, §§ 26-1308, 26-1319.

Case Notes

Applicability.

While this section speaks to appeals from decisions of justices of the peace, it applies to appeals from municipal court misdemeanor convictions. Casoli v. State, 297 Ark. 491, 763 S.W.2d 650 (1989); Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993).

This section provides for de novo appeals from municipal courts to circuit courts. Johnson v. State, 312 Ark. 38, 846 S.W.2d 662 (1993).

Pursuant to Const. Art. 7, §§ 14 and 33, and the circuit court has subject matter jurisdiction to hear attorney's appeal of the fee awarded in municipal court. Johnson v. State, 312 Ark. 38, 846 S.W.2d 662 (1993).

Although a driving while intoxicated (DWI) conviction is tried de novo in circuit court on appeal, the appeal does not affect the validity of the judgment of the district court until that judgment is overturned; thus, defendant's prior DWI conviction, which was on appeal to the circuit court, was properly used to determine defendant's fourth-offense DWI status at sentencing in a subsequent case. Swint v. State, 356 Ark. 361, 152 S.W.3d 226 (2004).

Altering Charge.

Municipal court erred and prejudiced defendant charged with driving while intoxicated (DWI) when it changed the charge to driving under the influence (DUI) on its own motion, because DUI is not a lesser-included offense of DWI and altering the charge violated § 5-65-107; and the circuit court erred in trying and convicting defendant of DUI following his appeal from the municipal court, a judgment it was not authorized to render under this section. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Amendments.

The circuit court may permit amendments and allow new issues to be made, while keeping clear of new causes of action and setoffs not presented in the court below. Texas & St. Louis Ry. v. Hall, 44 Ark. 375 (1884); Birmingham v. Rogers, 46 Ark. 254 (1885); Greer v. Joyce, 138 Ark. 98, 210 S.W. 344 (1919).

Counterclaim and Setoff.

This section expressly excludes the right to present either a counterclaim or setoff in the circuit court on appeal where none was presented before the justice of the peace from whose judgment the appeal comes. McDaniel v. Jonesboro Trust Co., 127 Ark. 61, 191 S.W. 916 (1917); Greer v. Joyce, 138 Ark. 98, 210 S.W. 344 (1919); Upson v. Robison, 179 Ark. 600, 17 S.W.2d 305 (1929).

Defect.

The circuit court may disregard or cure by amendment any defect which the justice might have cured. St. Louis, Iron Mountain & S. Ry. v. Lindsay, 55 Ark. 281, 18 S.W. 59 (1892).

Dismissal.

Dismissal of appeal leaves judgment appealed from in force. Burgess v. Poole, 45 Ark. 373 (1885).

Judgment.

On appeal, the circuit court can render no judgment that the justice could not have rendered. Whitesides v. Kershaw & Driggs, 44 Ark. 377 (1884); Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987).

The circuit court cannot render judgment for an amount exceeding jurisdiction of justice. Norman v. Fife, 61 Ark. 33, 31 S.W. 740 (1895) See Belding v. Sloan, 65 Ark. 175, 45 S.W. 245 (1898).

On appeal from a justice of the peace, the circuit court acquires such jurisdiction as the justice had and can render only such judgment upon the pleadings and proof as the justice could or should have rendered. Woolverton v. Freeman, 77 Ark. 234, 91 S.W. 190 (1905).

Jury Trial.

Since a case is tried anew on appeal to the circuit court, defendant was entitled to jury trial in circuit court on appeal from conviction and fine for violating municipal speeding ordinance. Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975).

Representation by Counsel.

Failure to assign counsel to an indigent defendant in a misdemeanor case in the justice of the peace court does not deprive that defendant of his constitutional rights where, upon appeal to the circuit court, the cause is tried de novo and the defendant is represented by counsel. Cableton v. State, 243 Ark. 351, 420 S.W.2d 534 (1967).

Standing.

Default judgment against one railroad company could not be appealed from by another railroad company claiming to be aggrieved thereby. Chicago, R. I. & P. R. Co. v. Young, 85 Ark. 444, 108 S.W. 831 (1908).

Statute of Limitations.

Defendant may plead the statute of limitations in the circuit court for the first time. Meddock v. Williams, 91 Ark. 93, 120 S.W. 842 (1909).

Cited: Swift & Co. v. Cox, 138 Ark. 606, 212 S.W. 83 (1919); Rockefeller v. Hogue, 246 Ark. 712, 439 S.W.2d 805 (1969); Cox v. Farrell, 292 Ark. 177, 728 S.W.2d 954 (1987).

16-19-1106. Dismissal or failure to prosecute appeal — Effect.

If the party appealing moves to dismiss in the circuit court or fails to prosecute his appeal, it shall be at the option of the appellee either to proceed to trial on the appeal or have judgment rendered for the amount of the original judgment and costs where it was in his favor or in bar of the original judgment where it was against him.

History. Acts 1873, No. 135, § 114, p. 430; C. & M. Dig., § 6530; Pope's Dig., § 8492; A.S.A. 1947, § 26-1320.

16-19-1107. Judgment on appeal and proceedings thereon.

In all cases of appeal from a justice of the peace, if the judgment of the justice of the peace is affirmed or if on the new trial in the circuit court the judgment is against the appellant, the judgment shall be rendered against the appellant and his securities in the bond or obligation for the appeal.

History. Acts 1873, No. 135, § 115, p. 430; C. & M. Dig., § 6531; Pope's Dig., § 8493; A.S.A. 1947, § 26-1321.

Cross References. Retention of jurisdiction by circuit court until final judgment, § 16-67-206.

Case Notes

Liability of Sureties.

Where the circuit court affirmed the judgment of the justice of the peace and directed the defendant to restore the property levied on or account for its value, the plaintiff was not entitled to summary judgment for the amount of the judgment rendered for him on the defendant's appeal bond since the appeal was not from the money judgment of the justice of the peace but was from the order of the justice allowing the claim of exemption, and the sureties were liable only for the satisfaction which the plaintiff would have obtained had the bond not been executed and the property then released. Peel & Co. v. Mooney, 162 Ark. 344, 258 S.W. 366 (1924).

Where the judgment against the appellant omits the sureties, a nunc pro tunc judgment may be rendered against them at a subsequent term. Burgener v. Spooner, 167 Ark. 316, 268 S.W. 6 (1925).

By executing an appeal bond, a surety makes himself a party to the proceeding and, therefore, is constructively present at every step of the litigation and must be deemed to have notice of all the orders made and to have assumed all the obligations imposed by law upon a surety. Judd v. Wilson, 182 Ark. 729, 32 S.W.2d 614 (1930).

Cited: T.J. Moss Tie Co. v. Miller, 169 Ark. 657, 276 S.W. 586 (1925).

16-19-1108. Satisfaction of judgment by security — Judgment for amount paid — Interest.

  1. After the return of an execution, satisfied in whole or in part out of the property of a security, the security shall be entitled to a judgment, upon motion, against the principal for the amount so paid by the security, together with interest thereon at the rate of ten percent (10%) per annum from the time of payment.
  2. The motion must be made within one (1) year after the return day of execution, and the return of the officer shall be evidence upon the hearing of the motion of the facts stated therein.

History. Acts 1873, No. 135, §§ 117, 118, p. 430; C. & M. Dig., §§ 6533, 6534; Pope's Dig., §§ 8495, 8496; A.S.A. 1947, §§ 26-1323, 26-1324.

Chapter 20 Clerks Of Court

Research References

ALR.

Applicability of judicial immunity to acts of clerk of court under state law. 34 A.L.R.4th 1186.

Am. Jur. 15A Am. Jur. 2d, Clerks of Ct., § 1 et seq.

Ark. L. Rev.

Administration of the Courts in Arkansas: Challenge, Performance, and Prospects, 30 Ark. L. Rev. 235.

C.J.S. 21 C.J.S., Courts., § 236 et seq.

Subchapter 1 — General Provisions

Publisher's Notes. Acts 1887, No. 46, § 1, provided that all official acts of any deputy clerk of any court of record in the state, done and performed theretofore when the deputy was under the age of twenty-one (21) years, were legalized and made as valid and binding as though the deputy had been of full and lawful age at the time the official acts were performed.

Cross References. Clerks not to act as attorney, § 16-22-210.

Settlement of moneys collected by clerks, § 26-39-201 et seq.

Effective Dates. Acts 1883, No. 114, § 226: effective on passage.

Acts 1981 (Ex. Sess.), No. 16, § 12: Nov. 25, 1981. Emergency clause provided: “It is hereby found and determined that some of the provisions of Act 824 of 1981, which provides that the official court reporters of the circuit and chancery courts in the State are state employees, and provide for the levy and collection of additional court costs to pay the salaries and expenses of reporters, are vague and difficult to interpret, and that it is essential to the effective and efficient administration of justice that this Act be given effect immediately to clarify the law relating to court reporters. 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 1991, No. 404, § 5: Mar. 8, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly that state law does not provide for the deposit of trust funds held by the probate clerk in interest bearing accounts; that this act is necessary to clarify that such deposit of trust funds is in the best interests of all parties involved. 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. 986, § 5: Apr. 6, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly of the State of Arkansas that the County and Circuit Clerks Continuing Education Board is made up of only five (5) members; that small number of the members needs to be increased to better represent all 75 counties, and all areas and regions of the State of Arkansas; and that expanding the Board's membership will solve this problem in an immediate fashion. 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.”

16-20-101. Endorsement of papers.

The clerk shall endorse, upon every paper filed in an action, the day it was filed; he shall endorse upon every order for a provisional remedy, and upon every bond taken thereunder, the day of its return to his office.

History. Civil Code, § 770; C. & M. Dig., § 1375; Pope's Dig., § 1636; A.S.A. 1947, § 23-101.

16-20-102. Docket entries.

Upon the return of every summons served, the clerk shall enter upon the docket the name of the defendant or defendants summoned and the day of the service upon each one. The entry shall be evidence of the service of summons in case of the loss thereof.

History. Civil Code, § 771; C. & M. Dig., § 1376; Pope's Dig., § 1637; A.S.A. 1947, § 23-102.

16-20-103. Oaths and affidavits.

The clerk may administer any oath or take any affidavit required or permitted in the progress of an action.

History. Civil Code, § 772; C. & M. Dig., § 1377; Pope's Dig., § 1638; A.S.A. 1947, § 23-103.

16-20-104. Bonds.

  1. The clerk shall prepare, in a proper manner, every bond to be taken by or given before him or his court.
  2. He shall refuse any surety offered in a bond to be taken by him who is, in his opinion, insufficient.

History. Civil Code, §§ 773, 774; C. & M. Dig., §§ 1378, 1379; Pope's Dig., §§ 1639, 1640; A.S.A. 1947, §§ 23-104, 23-105.

16-20-105. Circuit Clerks Continuing Education Board.

  1. There is created the Circuit Clerks Continuing Education Board which shall be composed of the following seven (7) members:
    1. Five (5) members of the Arkansas Circuit Clerks Association, designated by the Arkansas Circuit Clerks Association;
    2. The Auditor of State or a person designated by him or her; and
    3. One (1) member designated by the Association of Arkansas Counties.
    1. It shall be the responsibility of the board to establish a continuing education program for the circuit clerks of the various counties in the state.
    2. The program shall be designed to better equip persons elected to serve as circuit clerks to carry out their official responsibilities in an effective and efficient manner. The program shall include requirements and procedures for an effective certification program for circuit clerks.
  2. It shall also be the responsibility of the board to disburse any funds made available to it from the Circuit Clerks Continuing Education Fund and to establish and maintain a continuing education program and a certification program for circuit clerks.

History. Acts 1983, No. 914, §§ 1, 2; A.S.A. 1947, §§ 23-421, 23-422; Acts 1995, No. 986, § 1; 2009, No. 480, § 1.

A.C.R.C. Notes. As originally amended by Acts 1995, No. 986, § 1, subdivision (a)(3) ended:

“beginning with the County Clerks' Association, and then on a rotating basis annually.”

Amendments. The 1995 amendment substituted “nine (9) members” for “five (5) members” in (a); substituted “Three (3) members” for “Two (2) members” in (a)(1) and (2); inserted (a)(3), redesignating former (a)(3) as (a)(4); and added (a)(5).

The 2009 amendment deleted “County and” preceding “Circuit Clerks” and “county clerks and” preceding “circuit clerks” throughout the section; in (a), substituted “seven (7)” for “nine (9)” in the introductory language, substituted “Five (5)” for “Three (3)” and “Circuit” for “County” twice in (a)(1), deleted (a)(2) and (a)(3), and redesignated the remaining subdivisions accordingly; and made minor stylistic changes.

16-20-106. Fines, penalties, taxes, etc. — Collection and settlement — Accounting — Audit and adjustment.

  1. The clerks of the several courts of record of this state shall collect and pay over to the treasurer of their respective counties all taxes due on writs, executions, and official seals. They shall also collect and pay over other sums of money, by whatever name designated, coming to their hands and belonging to the state or county.
  2. The clerks of the several courts of record of the state shall render account at each term of their respective courts, verified by oath, of all moneys which have been received to the use of the state or county not before accounted for.
    1. The clerks shall keep a true account of all fines, penalties, forfeitures, and judgments imposed, adjudged, or rendered in favor of the state or any county by their respective courts, distinguishing those payable to the state from those payable to the county.
    2. The clerks shall keep the account open to the inspection of the judges of the respective courts and the members of the grand jury.
  3. It shall be the duty of the judges of such courts to audit and adjust the accounts of their respective clerks, according to the records, dockets, and papers of their respective courts, and to make two (2) separate bills of the several sums, wherewith their clerks shall be chargeable, specifying on what account the bill is payable. The judges shall certify a copy thereof to the clerk of the county court, who shall file and charge the bill accordingly. The copy shall be certified and delivered to the county treasurer.

History. Acts 1883, No. 114, §§ 179-181, p. 199; C. & M. Dig., §§ 10141-10143; Pope's Dig., §§ 13923-13925; A.S.A. 1947, §§ 23-107 — 23-109.

Case Notes

Forced Settlement.

If the circuit court neglects to require the circuit clerk to report during the term of his office, the county court may force him to settle. Lee County v. Abrahams, 31 Ark. 571 (1876) (decision under prior law).

Setting Off.

The circuit clerk cannot set off allowances made him by the county court against the amount of taxes in his hands. Lee County v. Govan, 31 Ark. 610 (1876) (decision under prior law).

16-20-107. [Repealed.]

Publisher's Notes. This section, concerning collection and payment of additional fees and use of funds, 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 (Ex. Sess.), No. 16, § 3; A.S.A. 1947, § 22-156.

16-20-108. Investment of moneys held in trust — Disposition of funds.

  1. Moneys received by a clerk of the circuit, chancery, or probate court to be held by the clerk in trust shall hereafter be invested by the clerk in an interest-bearing account, unless a court with proper jurisdiction over the fund orders otherwise.
  2. The interest earned by such account shall be paid over to the general fund of the county, in the absence of an order to the contrary from a court of competent jurisdiction.

History. Acts 1981, No. 279, § 1; A.S.A. 1947, § 23-112; Acts 1991, No. 404, § 1.

16-20-109. [Repealed.]

Publisher's Notes. This section, concerning facsimile copies transmitted as pleadings, was repealed by Acts 2003, No. 1185, § 176. The section was derived from Acts 1989, No. 58, § 1; 1989 (3rd Ex. Sess.), No. 19, § 1; 1997, No. 874, § 1.

16-20-110. County Clerks Continuing Education Board.

  1. There is created the County Clerks Continuing Education Board which shall be composed of the following seven (7) members:
    1. Five (5) members of the Arkansas Association of County Clerks, designated by the Arkansas Association of County Clerks;
    2. The Auditor of State or a person designated by him or her; and
    3. One (1) member designated by the Association of Arkansas Counties.
    1. It shall be the responsibility of the board to establish a continuing education program for the county clerks of the various counties in the state.
    2. The program shall be designed to better equip persons elected to serve as county clerks to carry out their official responsibilities in an effective and efficient manner. The program shall include requirements and procedures for an effective certification program for county clerks.
  2. It shall also be the responsibility of the board to disburse any funds made available to it from the County Clerks Continuing Education Fund and to establish and maintain a continuing education program and a certification program for county clerks.

History. Acts 2009, No. 480, § 2.

Subchapter 2 — Supreme Court Clerk

Cross References. Appointment, Ark. Const., Art. 7, § 7.

Effective Dates. Acts 1895, No. 145, § 9: effective on passage.

Acts 1937, No. 22, § 2: effective on passage.

16-20-201. Bond.

  1. The Clerk of the Supreme Court shall, before he enters on the duties of his office, enter into bond to the state in any sum not less than three thousand dollars ($3,000), with good and sufficient security. The bond shall be approved by the court in term time, or by either of the justices thereof in vacation, conditioned upon the faithful discharge of his office, that he will seasonably record the judgments, decrees, orders, and proceedings of the court, and do and perform all other things that may be required of him by law, and that he, his executors, or administrators will deliver to his successor, safe and undefaced, all books, papers, records, seals, and furniture belonging to his office. The bond shall be filed in the office of the Secretary of State.
  2. The Clerk of the Supreme Court shall be liable on his official bond for the acts of his deputies in the discharge of their duties as such.

History. Rev. Stat., ch. 26, § 2; Acts 1895, No. 145, § 6, p. 213; C. & M. Dig., §§ 1351, 1356; Pope's Dig., §§ 1608, 1613; A.S.A. 1947, §§ 23-201, 23-205.

A.C.R.C. Notes. The operation of subsection (a) 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.

16-20-202. Preservation of seal and property of office — Office supplies and equipment.

The Clerk of the Supreme Court shall preserve the seals and other property belonging to the office and shall provide suitable books, stationery, furniture, and such other things as may be necessary for the office and the courts.

History. Rev. Stat., ch. 26, § 3; C. & M. Dig., § 1352; Pope's Dig., § 1609; A.S.A. 1947, § 23-202; Acts 1995, No. 549, § 4.

Amendments. The 1995 amendment rewrote this section.

16-20-203. Recording of judgments and opinions.

It shall be the duty of the Clerk of the Supreme Court to record the judgments, decrees, rules, orders, proceedings, and opinions of the courts and a complete alphabetical index to all the Clerk of the Supreme Court's books of record.

History. Rev. Stat., ch. 26, § 4; C. & M. Dig., § 1353; Pope's Dig., § 1610; A.S.A. 1947, § 23-206; Acts 1995, No. 549, § 5.

Amendments. The 1995 amendment rewrote this section.

16-20-204. Issuance of process.

The Clerk of the Supreme Court shall issue and attest all process and affix the seals of the courts thereto.

History. Rev. Stat., ch. 26, § 5; C. & M. Dig., § 1354; Pope's Dig., § 1611; A.S.A. 1947, § 23-209; Acts 1995, No. 549, § 6.

Amendments. The 1995 amendment rewrote this section.

16-20-205. Acknowledgments taken — Oaths administered.

The Clerk of the Supreme Court and the Clerk of the Supreme Court's deputies shall have authority to take acknowledgments to deeds, mortgages, and other instruments and to administer oaths.

History. Acts 1937, No. 22, § 1; Pope's Dig., § 1614; A.S.A. 1947, § 23-210; Acts 1995, No. 549, § 7.

Amendments. The 1995 amendment rewrote this section.

16-20-206. Copies of opinions to be furnished to Reporter of the Supreme Court.

The Clerk of the Supreme Court shall furnish to the Reporter of the Supreme Court the names of counsel signing briefs and a true copy of the opinions of the courts in all cases.

History. Rev. Stat., ch. 127, §§ 5, 6; C. & M. Dig., §§ 1357, 1358; Acts 1925, No. 357, § 1; Pope's Dig., §§ 1615, 1619, 13328; A.S.A. 1947, §§ 23-207, 23-208; Acts 1995, No. 549, § 8.

Amendments. The 1995 amendment rewrote this section.

Cross References. Time copy of decisions to be furnished to the Reporter of the Supreme Court, § 16-11-201.

16-20-207. Fees — Accounting — Audit.

The Clerk of the Supreme Court shall keep a true and accurate account of all fees earned in the office in accordance with the guidelines as required by law, and such records shall be subject to inspection by the Auditor of State.

History. Acts 1895, No. 145, §§ 2-5, p. 213; C. & M. Dig., §§ 1359-1362; Pope's Dig., §§ 1620-1623; A.S.A. 1947, §§ 23-211 — 23-214; Acts 1995, No. 549, § 9.

Amendments. The 1995 amendment rewrote this section.

Cross References. Fees, § 21-6-401.

Subchapter 3 — Circuit Clerks

Publisher's Notes. Section 14-14-1301(a)(2), in part, provides that the clerk of the circuit court shall be ex officio clerk of the county and probate courts, and recorder. However, § 14-14-1301(a)(2) and (a)(3) also provide, in part, that a county clerk may be elected in the same manner as the clerk of the circuit court, and, in such cases, the county clerk shall be ex officio clerk of the probate court of the county until otherwise provided by the General Assembly.

Cross References. Fees, §§ 21-6-402, 21-6-403.

Supreme Court reports, custody and responsibility, § 25-18-214.

16-20-301. Preservation of seal and property of office.

  1. Each circuit clerk shall preserve the seal and other property belonging to his or her office and shall provide suitable books, stationery, furniture, and other things necessary for his or her office.
  2. A circuit clerk's seal shall be clear and legible and capable of photographic reproduction.
  3. The impression of the seal by stamp shall be sufficient sealing in a situation in which sealing is required.

History. Rev. Stat., ch. 25, § 8; C. & M. Dig., § 1371; Pope's Dig., § 1632; A.S.A. 1947, § 23-307; Acts 2013, No. 469, § 2; 2015, No. 581, § 1; 2015, No. 1152, § 4.

Amendments. The 2013 amendment deleted “Office supplies and equipment” in the section heading; and rewrote the section.

The 2015 amendment by No. 581 added (c).

The 2015 amendment by No. 1152 inserted “circuit” in (a); and substituted “A circuit clerk’s seal” for “The seal” in (b).

Case Notes

Authority to Purchase.

The circuit clerk is authorized to purchase a typewriter under this section. Madison County v. Simpson, 173 Ark. 755, 293 S.W. 34 (1927).

16-20-302. Issuance and attestation of processes.

Every clerk shall seasonably issue and attest all processes when required by law.

History. Rev. Stat., ch. 25, § 11; C. & M. Dig., § 1374; Pope's Dig., § 1635; A.S.A. 1947, § 23-315.

Case Notes

Cited: Edens v. State, 258 Ark. 734, 528 S.W.2d 416 (1975).

16-20-303. List of causes to be tried — Issuance of subpoenas — Penalty for noncompliance.

    1. The several clerks of the circuit courts shall, within twenty (20) days before the commencement of each term of the court, make out a docket of all causes, both civil and criminal, in which an issue of fact is to be tried, an inquiry of damages to be made, a special verdict, agreed case, demurrer, or other matter of law, to be argued at such term.
    2. The clerk shall arrange such causes or indictments upon the docket in the same order in which the original process was issued. However, all criminal matters shall be first set down. A proper portion of the causes shall be set for each day the term is supposed to continue.
  1. Every clerk, within the time specified in subdivision (a)(1) of this section, shall post in some convenient place in his office a list of all causes specified in subdivision (a)(1) of this section, distinguishing therein the day on which each cause is to be tried. He shall keep such list so affixed until the end of such term, for the inspection of the parties litigant, and their attorneys.
  2. Every clerk of the circuit court, upon the demand of any party or his attorney and upon the payment of the legal fee therefor, shall issue subpoenas for witnesses to appear and testify on the day for which the cause is set in which the subpoenas are demanded.
  3. Every clerk who neglects or refuses to make out the docket or to set and keep up such lists of causes, or to issue subpoenas according to the provisions of this section, shall, on motion, be fined by the court in any sum not exceeding one hundred dollars ($100).

History. Rev. Stat., ch. 116, §§ 144, 145; C. & M. Dig., §§ 1380, 1381; Pope's Dig., §§ 1641, 1642; A.S.A. 1947, §§ 23-316, 23-317.

16-20-304. Record and index of court proceedings.

  1. A clerk shall seasonably record the judgments, rules, orders, and other proceedings of the courts of which he or she is the clerk and shall make a complete alphabetical index of the judgments, rules, orders, and other proceedings of the court.
  2. A clerk may make only an electronic alphabetical index under subsection (a) of this section if he or she is able to electronically scan the judgments, rules, orders, or other proceedings of the court so that the judgments, rules, orders, or other proceedings of the court are accessible on an internet-based computer database searchable by name or case number.

History. Rev. Stat., ch. 25, § 11; C. & M. Dig., § 1374; Pope's Dig., § 1635; A.S.A. 1947, § 23-315; Acts 2019, No. 183, § 1.

Amendments. The 2019 amendment added (b) and designated the former section as (a); substituted “of the judgments, rules, orders, and other proceedings of the court” for “thereto” in (a); and made stylistic changes.

Cross References. Records to contain judgment debtor's social security number, § 16-65-122.

Case Notes

Cited: Edens v. State, 258 Ark. 734, 528 S.W.2d 416 (1975).

16-20-305. Authority to remove records.

In case of danger from an invading enemy, the clerk may remove the records, papers, and other things belonging to his office to some secure place until the danger ceases.

History. Rev. Stat., ch. 25, § 10; C. & M. Dig., § 1373; Pope's Dig., § 1634; A.S.A. 1947, § 23-308.

16-20-306. [Repealed.]

Publisher's Notes. This section, concerning masters or commissioners, was repealed by Acts 2003, No. 1185, § 177. The section was derived from Acts 1873, No. 53, § 7, p. 113; C. & M. Dig., §§ 1364, 1365; Pope's Dig., §§ 1625, 1626; A.S.A. 1947, § 23-314.

16-20-307. Account and settlement of arrearages accruing to county or state.

Every clerk shall keep a perfect account of all arrearages coming into his hands and accruing to the county or state on account of taxes, fines, or otherwise. He shall then make settlement with the proper court at each stated term and pay over all balances.

History. Rev. Stat., ch. 25, § 11; C. & M. Dig., § 1374; Pope's Dig., § 1635; A.S.A. 1947, § 23-315.

Case Notes

Cited: Edens v. State, 258 Ark. 734, 528 S.W.2d 416 (1975).

16-20-308. Resignation, removal, or death — Delivery of records to successor.

If any clerk of the circuit court resigns, is removed from office, or dies, he or his executors or administrators shall deliver all records, papers, books, files, seals, and other things belonging to his office to his successor, as soon as he is qualified, who shall take charge of and make receipt for those items.

History. Rev. Stat., ch. 25, § 19; C. & M. Dig., § 1382; Pope's Dig., § 1643; A.S.A. 1947, § 23-318.

Cross References. Delivery of records to successor, § 21-12-401.

Case Notes

Cited: Edens v. State, 258 Ark. 734, 528 S.W.2d 416 (1975).

16-20-309. Resignation, removal, or death — Settlement of accounts.

  1. Any clerk who resigns or is removed from office, or the executor or administrator of any clerk who dies, shall render a perfect account to the proper court, at the next term after the death, resignation, or removal. This account, on oath, shall be made of all arrearages of moneys received by him by virtue of his office, not previously accounted for, and shall settle with the court as if the clerk were still in office.
  2. For this purpose, free access may be had to the office and the records, books, papers, and files therein.
  3. The court may compel such settlement and enforce the payment of any balance by attachment.

History. Rev. Stat., ch. 25, § 20; C. & M. Dig., § 1383; Pope's Dig., § 1644; A.S.A. 1947, § 23-319.

16-20-310. Charges against or indictment of clerk — Proceedings — Removal.

    1. When any prosecuting attorney is required to prosecute charges against any clerk, if the offense is indictable, the prosecuting attorney shall submit the charges to the grand jury, in order that an indictment may be found.
      1. If the charges are for an offense not indictable, the prosecuting attorney shall make the charges out and file them in the court. He shall cause a copy thereof to be served on the clerk, together with a notice requiring him to appear before the circuit court of the county in which the clerk may reside, on some specified day in the term, and answer the charges.
      2. The notice and copy of the charges shall be delivered to the clerk at least fifteen (15) days before the day appointed for the answering thereof.
    1. The prosecuting attorney shall cause witnesses to be summoned to support such charges or any indictment that may have been found against the clerk and shall prosecute the charges or indictment with speed.
    2. The clerk shall appear and plead at the next term of the court unless further time is given for that purpose.
    3. If the clerk pleads not guilty to the charges or indictment, the court shall require a jury to be summoned to try the issue joined.
    4. If the jury finds the clerk guilty, or if he pleads guilty to the charges or indictment, it shall be the duty of the court to enter up an order removing the clerk from office. From that time he shall cease to be clerk of such court, and the vacancy shall be filled according to law.

History. Rev. Stat., ch. 25, §§ 15-18; C. & M. Dig., §§ 1387-1390; Pope's Dig., §§ 1648-1651; A.S.A. 1947, §§ 23-322 — 23-325.

Subchapter 4 — County and Probate Clerks

Publisher's Notes. Section 14-14-1301(a)(2) provides, in part, that the clerk of the circuit court shall be ex officio clerk of the county and probate courts, and recorder. However, § 14-14-1301(a)(2) and (a)(3) also provide, in part, that a county clerk may be elected in the same manner as the clerk of the circuit court, and, in such cases, the county clerk shall be ex officio clerk of the probate court of the county until otherwise provided by the General Assembly.

Cross References. Fees, § 21-6-406.

Records to be kept when two judicial districts, § 14-15-901.

Effective Dates. Acts 1873, No. 31, § 30: effective on passage.

Acts 1935, No. 170, § 12: Mar. 21, 1935. Emergency clause provided: “Whereas the status of the tax forfeiture laws of this state are such as to encourage tax delinquencies and has greatly decreased the efficient operation of the schools and various governmental functions, now, therefore, an emergency is declared and this Act being necessary for the immediate preservation of the public peace, health, and safety, it shall become effective immediately upon its passage and approval.”

Identical Acts 2016 (3rd Ex. Sess.), Nos. 6 and 7, § 4: May 23, 2016. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are currently many vacancies in levee district boards across the state; that the current procedure for filling these vacancies makes the process more difficult; and that this act is immediately necessary because of the critical importance of the efficient functioning of levee district boards. 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.”

16-20-401. Duties of clerk generally.

  1. The county clerk shall be clerk of the county court for his or her county, by virtue of his or her office.
  2. It shall be his or her duty to attend each regular or special session of the county court, either in person or by deputy, and to keep and preserve in his or her office a complete and correct record of the proceedings of the county court.
    1. When a report filed under § 14-86-103 or an affidavit of a district resident containing substantially the same information required under § 14-86-103(b) or § 14-86-103(c) and filed with the county clerk indicates a vacancy in a district board or district commission, the county clerk shall provide a written notice of the vacancy to:
      1. The members of the district board or the district commission; and
      2. The county court.
    2. A copy of the notice shall be published:
      1. In a newspaper of general circulation in the county; and
      2. On a county-owned or county-affiliated website, if any.
    1. When a report filed under § 14-86-103 or an affidavit of a district resident containing substantially the same information required under § 14-86-103(b) or § 14-86-103(c) and filed with the county clerk indicates a vacancy in a district board or a district commission has not been filled in the interval after the county clerk gave the notices required under subsection (c) of this section, the county clerk shall provide a written notice of the continuing vacancy to:
      1. The members of the district board or the district commission; and
      2. The county court.
    2. A copy of the notice shall be published on a county-owned or county-affiliated website, if any, and in a newspaper of general circulation in the county and shall contain:
      1. The time, date, and location of a hearing on the vacancy before the county court;
      2. The purpose of the hearing before the county court that requires the landowners in the district to appear; and
      3. Notice that the landowners in attendance by majority vote may fill the continuing vacancies in the district board or district commission.

History. Acts 1873, No. 31, § 5, p. 53; C. & M. Dig., § 1392; Pope's Dig., § 1653; A.S.A. 1947, § 23-405; Acts 2009, No. 386, § 2; 2016 (3rd Ex. Sess.), No. 6, § 2; 2016 (3rd Ex. Sess.), No. 7, § 2.

Amendments. The 2009 amendment added (c) and (d).

The 2016 (3rd Ex. Sess.) amendment by identical acts Nos. 6 and 7 inserted “county” in (b); added (c)(2) and (d)(2); inserted “§ 14-86-103(b) or” in the introductory language of (c)(1) and (d)(1); deleted former (d)(3); and made stylistic changes.

16-20-402. Duties as to accounts.

It shall be the duty of the clerk of the county court of each county:

  1. To keep a regular account between the treasurer and the county, charging him with all moneys paid into the treasury, and crediting him with the amount he may have disbursed, between the period of his respective settlements with the court;
  2. To keep just accounts between the county and all persons, bodies politic or corporate, chargeable with moneys payable into the county treasury;
    1. To file and preserve in his office all documents, vouchers, and other papers pertaining to the settlement of any account to which the county shall be a party;
    2. Copies of such documents, vouchers, and papers certified under the hand and seal of such clerk shall be admitted to be read in evidence in any of the courts of this state;
  3. To issue warrants on the treasury for all moneys ordered to be paid by the court, keep an abstract thereof, and present the abstract to the county court at every regular term;
  4. To balance and exhibit the accounts kept by him as often as required by the court; and
  5. To keep his books and papers at all times ready for the inspection of the county court or the presiding judge thereof.

History. Rev. Stat., ch. 41, § 15; C. & M. Dig., §§ 1394-1398; Pope's Dig., §§ 1657-1661; A.S.A. 1947, § 23-406.

Cross References. Enforcement of Const., Amend. 10, § 14-23-107.

Fees for prosecuting cases in municipal court, § 16-17-222.

Fees generally, § 21-6-101 et seq.

Payment of funds into county treasury, § 26-39-201.

16-20-403. [Repealed.]

Publisher's Notes. This section, concerning annual financial report of clerk, was repealed by Acts 1993, No. 538, § 1. The section was derived from Acts 1935, No. 170, §§ 11-A, 11-B; Pope's Dig., §§ 13799, 13800; Acts 1981, No. 678, § 1; A.S.A. 1947, §§ 23-408, 23-409.

16-20-404. Fee for making settlement with collector.

The clerks of the county courts and of the probate division of the circuit courts are authorized to charge a fee of not more than ten dollars ($10.00) per day for making settlement with the collector for each day employed, including quarterly apportionments, but not exceeding thirty (30) days during any calendar year.

History. Acts 1963, No. 491, § 1; A.S.A. 1947, § 23-420; Acts 2003, No. 1185, § 178.

Amendments. The 2003 amendment deleted “and probate” following “of the county” and substituted “and of the probate division of the circuit courts” for “of the various counties in the state.”

16-20-405. [Repealed.]

Publisher's Notes. This section, concerning a fiscal report to the quorum or levying court, was repealed by Acts 1995, No. 232, § 11. The section was derived from Acts 1927, No. 340, § 4; Pope's Dig., § 13827; A.S.A. 1947, § 23-407.

16-20-406. Receipts for papers filed with clerk of circuit court.

Whenever the clerk of the county and probate court shall deliver to the clerk of the circuit court any original papers, he shall take a receipt therefor and file the receipt in place of the papers.

History. Civil Code, § 22; C. & M. Dig., § 2235; Pope's Dig., § 2863; A.S.A. 1947, § 23-411.

16-20-407. Additional marriage license fee.

  1. Each county clerk in this state shall charge an additional fee of thirteen dollars ($13.00) for each marriage license issued.
    1. The clerk shall deposit two dollars ($2.00) of the moneys collected under this section into the county treasury to the credit of the county clerk's cost fund as special revenue as provided under § 21-6-413(e)(2) and shall be appropriated and expended exclusively for the operation of the office of county clerk.
    2. The clerk shall transmit eleven dollars ($11.00) of the moneys collected under this section to the Treasurer of State who shall deposit it in the Domestic Peace Fund as special revenue.

History. Acts 2003, No. 1029, § 1; 2007, No. 745, § 1.

Cross References. Domestic Peace Fund, § 19-6-491.

16-20-408. Fee for filing a district report or affidavit.

The fee for filing a report or an affidavit under § 14-86-103 shall be the same as the fee for initiating a cause of action under § 21-6-415.

History. Acts 2009, No. 386, § 3.

Cross References. County court clerks — Uniform filing fees, § 21-6-415.

Chapter 21 Prosecuting Attorneys

A.C.R.C. Notes. Acts 2015, No. 1261, § 3, provided: “Interim study. The House Committee on Judiciary shall study during the interim whether a prosecuting attorney and his or her deputies should be full-time or part-time positions.”

Research References

ALR.

Prosecutor's power to grant prosecution witness immunity from prosecution. 4 A.L.R.4th 1221.

Availability of writ of prohibition or similar remedy against acts of public prosecutor. 16 A.L.R.4th 112.

Enforceability of agreement not to prosecute if accused would help in criminal investigation or would become witness against others. 32 A.L.R.4th 990.

Am. Jur. 63A Am. Jur. 2d, Pros. Attys., § 5 et seq.

C.J.S. 27 C.J.S., Dist. & Pros. Attys., § 1 et seq.

Subchapter 1 — General Provisions

A.C.R.C. Notes. References to “this subchapter” in §§ 16-21-10116-21-150 may not apply to §§ 16-21-15116-21-158 which were enacted subsequently.

Effective Dates. Acts 1875 (Adj. Sess.), No. 5, § 3: effective on passage.

Acts 1893, No. 59, § 4: effective on passage.

Acts 1895, No. 80, § 5: effective on passage.

Acts 1937, No. 214, § 8: July 1, 1937.

Acts 1937, No. 286, § 7: approved Mar. 22, 1937. Emergency clause provided: “It appearing to the legislature that, without immediate legislation, the prosecuting attorney of the several judicial circuits of the State of Arkansas, will be without adequate assistants and authority to properly represent and protect the public, unless this act is made effective immediately, it is hereby declared that this act is necessary for the immediate preservation of the public peace, health and safety, and an emergency is hereby declared to exist, and this act shall take effect and be in full force, from and after its passage.”

Acts 1947, No. 52, § 2: Feb. 7, 1947; Acts 1947, No. 151, § 2: Mar. 3, 1947. Emergency clauses provided: “In view of the increase in the volume of criminal cases in certain of the judicial districts of this state and in order to expedite and facilitate the function of justice, an emergency is hereby declared to exist and it being necessary for the preservation of public peace, health, safety and welfare, this act shall take effect and be in full force from and immediately after its passage and approval.”

Acts 1947, No. 152, § 2: approved Mar. 3, 1947. Emergency clause provided: “Whereas, in recent months, it is evident that crime is increasing, particularly among juvenile offenders, and whereas, it is necessary that such cases be thoroughly investigated and prepared, and whereas, the present expense account of the prosecuting attorney of the Eleventh Judicial Circuit is inadequate, now therefore, an emergency is hereby declared to exist, and this act shall be in full force and effect from and after its passage.”

Acts 1947, No. 422, § 2: Mar. 28, 1947; Acts 1949, No. 213, § 2: Mar. 3, 1949; Acts 1949, No. 466, § 2: Mar. 29, 1949; Acts 1951, No. 61, §§ 2, 3: retroactive to Jan. 1, 1951. Emergency clauses provided: “It is hereby ascertained by the General Assembly that this act is necessary for the successful and efficient functioning of the judicial circuits of the State of Arkansas and that this act is necessary for the immediate preservation of the public peace, health and safety of the people of the State of Arkansas and an emergency is hereby declared to exist; and this act shall be in full force and effect from and after its passage and approval.”

Acts 1949, No. 94, § 4: approved Feb. 16, 1949. Emergency clause provided: “Whereas, in recent months, it is evident that crime is increasing, particularly among juvenile offenders, and whereas, it is necessary that such cases be thoroughly investigated and prepared, and whereas, the present expense account of the prosecuting attorney of the Tenth Judicial Circuit is inadequate, now therefore, an emergency is hereby declared to exist, and this act shall be in full force and effect from and after its passage.”

Acts 1951, No. 17, § 2: approved Jan. 25, 1951. Emergency clause provided: “It appearing to the legislature that without immediate legislation, the prosecuting attorneys of the counties affected by this Act will be without adequate funds for the contingent expense of his office to properly represent and protect the public unless this Act is made effective immediately, it is hereby declared that this Act is necessary for the immediate preservation of the public peace, health and safety, and an emergency is hereby declared to exist, and this act shall take effect and be in full force from and after its passage.”

Acts 1951, No. 32, § 4: approved Feb. 2, 1951. Emergency clause provided: “It appearing that the present salary and contingent expense allowed the prosecuting attorney of the Fourteenth Judicial Circuit is inadequate for the efficient and proper administration of the duties of the office, and that the expenses of such office has greatly increased within recent years, the legislature hereby declares an emergency to exist and this Act, being necessary for the immediate preservation of the public peace, health and safety, shall become effective from and after its passage.”

Acts 1951, No. 61, §§ 2, 3: retroactive to Jan. 1, 1951. Emergency clause provided: “It is hereby ascertained by the General Assembly that this Act is necessary for the successful and efficient functioning of the judicial circuits of the state of Arkansas and that this Act is necessary for the immediate preservation of the public peace, health and safety of the people of the state of Arkansas and an emergency is hereby declared to exist; and this Act shall be in full force and effect from and after its passage and approval.”

Acts 1951, No. 355, § 6; 1951, No. 387, § 4: both acts approved Mar. 20, 1951. Emergency clause provided: “It appearing to the legislature that without immediate legislation, the prosecuting attorneys of the counties affected by this act will be without adequate funds for the contingent expense of his office to properly represent and protect the public, and it is hereby declared that this act is necessary for the immediate preservation of the public peace, health and safety, and an emergency is hereby declared to exist and this act shall take effect and be in full force from and after its passage.”

Acts 1957, No. 420, § 4: approved Mar. 28, 1957. Emergency clause provided: “Whereas, this Act being necessary to the public peace, health and safety of the people of the state of Arkansas, and for the proper law enforcement in the 18th Judicial District, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage.”

Acts 1961, No. 176, § 2: Mar. 6, 1961. Emergency clause provided: “It is hereby declared by the General Assembly that recent shifts in population and recent increases of assessed valuation within the judicial circuits within the state of Arkansas have changed the classification of the Fourteenth Judicial Circuit, and the law as now in effect, does not truly reflect the pay classification of the Fourteenth Judicial Circuit; and, that only by the immediate passage of this Act may such condition be corrected. 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 1963, No. 454, § 4: July 1, 1963.

Acts 1963, No. 486, §§ 2, 4: retroactive to Jan. 1, 1963. Emergency clause provided: “It has been found by the General Assembly of the State of Arkansas that the salaries of the prosecuting attorneys for the Fifteenth and Sixteenth Judicial Circuits are insufficient to adequately compensate the person filling those offices, and that the salaries of those offices must be increased in order to maintain efficient operation of the courts and adminstration of justice. Therefore, this act being immediately necessary for the preservation of the public peace, health, and safety an emergency is declared to exist and this act shall be in force and effect from and after its passage and approval.”

Acts 1965, No. 557, § 2: retroactive to Jan. 1, 1965.

Acts 1967, No. 16, § 4: Jan. 26, 1967; Acts 1973, No. 30, § 4: Jan. 31, 1973; Acts 1977, No. 117, § 6: Feb. 9, 1977; Acts 1979, No. 415, § 4: Mar. 29, 1979; Acts 1979, No. 514, § 4: Mar. 21, 1979; Acts 1981, No. 126, § 4: Feb. 19, 1981; Acts 1983, No. 5, § 4: Jan. 26, 1983. Emergency clauses provided: “It has been found and determined by the General Assembly of the State of Arkansas that due to the enormous increase in the volume of crime in the counties affected by this Act, that the sums previously appropriated are not sufficient to pay the contingency expenses of the prosecuting attorney's office. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1967, No. 307, § 4: retroactive to Jan. 1, 1967. Emergency clause provided: “It has been found by the General Assembly of the State of Arkansas that there is an unequal classification of the various judicial circuits of this State, and in order to maintain efficient operation of the courts and administration of justice and for the preservation of the public peace, health and safety, an emergency is hereby found and declared to exist, and this Act shall be in force and effect from and after its passage and approval.” Became law without Governor's signature, Mar. 13, 1967.

Acts 1967, No. 472, § 2: July 1, 1967.

Acts 1969, No. 317, § 3: became law without Governor's signature, Mar. 25, 1969. Emergency clause provided: “It is hereby found and determined by the General Assembly that the contingency expense allowed the prosecuting attorney in certain judicial circuits is inadequate for the efficient and proper administration of the duties of the office; that in order to provide proper facilities for the prosecuting attorney of Garland County, 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 from and after its passage and approval.”

Acts 1971, No. 384, § 4: retroactive to Jan. 1, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that the prosecuting attorneys of the various Judicial Circuits in this State are inadequately compensated; that the case load of the various Circuits has increased substantially; that this Act is indispensable to assure the efficient administration of justice in these Circuits, and it is necessary that this Act become effective from and after January 1, 1971. 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 upon passage and approval and shall be retroactive to January 1, 1971.”

Acts 1971, No. 430, §§ 2, 3: retroactive to Jan. 1, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that the amount paid to the contingent expense fund of the prosecuting attorney in certain counties of this State is inadequate and must be increased immediately in order to assure proper and efficient administration of justice in such counties. 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 effect from and after the date of its passage and approval.”

Acts 1973, No. 779, § 4: July 1, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Prosecuting Attorneys of the various Judicial Circuits in this State are inadequately compensated; that the case load of the various Circuits has increased substantially; that this Act is indispensable to assure the efficient administration of justice in these Circuits, and it is necessary that this Act become effective from and after July 1, 1973. 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 upon passage and approval.” Approved April 16, 1973.

Acts 1975, No. 898, § 7: Apr. 7, 1975; Acts 1977, No. 319, § 5: Mar. 1, 1977; Acts 1979, No. 447, § 5: Mar. 21, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the prosecuting attorneys of the various judicial districts in this State are inadequately compensated; that the caseload of the various circuits has increased substantially; that this Act is indispensable to assure the efficient administration of justice in these circuits. 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 upon passage and approval.”

Acts 1977, No. 439, § 7: 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 (2) 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 1977, No. 565, § 6: became law without Governor's signature, Mar. 21, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that there is no practical means now in existence for the enforcement of collection of child support payments; that as a result many families are forced to accept Aid to Families with Dependent Children; and whereas this Act is indispensable in carrying out the purposes of the Federal Child Support Program (Title IV-D) of the Social Security Act of 1935. Therefore, an emergency is hereby declared to exist and this Act being necessary for immediate preservation of the public peace, health and safety shall be in full force and effect from and after its date of passage and approval.”

Acts 1979, No. 662, § 2: Mar. 29, 1979. Emergency clause provided: “It is hereby found and determined by the Seventy-Second General Assembly that the immediate passage and approval of this Act is necessary in order to allow city attorneys to prosecute violations of state misdemeanor laws in the name of the 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.”

Acts 1981 (Ex. Sess.), No. 5, § 4: Nov. 24, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Tenth Judicial Circuit was accidentally designated a Class B Judicial Circuit and that this Act is immediately necessary to redesignate the Tenth Judicial Circuit as a Division A Circuit. 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. 450, § 4: Mar. 20, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that glaring errors were made in Act 526 of 1983, which was an Act providing needed assistance to victims and witnesses of crimes; that this Act is immediately necessary to correct these obvious errors. 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. 76, § 3: Feb. 19, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that the salaries of the prosecuting attorneys of the Third, Seventh, Eighth, Sixteenth and Twentieth Judicial Circuits are insufficient to adequately compensate the persons filling those offices; that designating those circuits as Division A circuits instead of Division B circuits will entitle the prosecuting attorneys for those circuits to increase compensation; and that such increased compensation cannot occur until this act becomes effective. 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. 221, § 7: 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. 21, § 7: 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 1991, No. 79, § 10: 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. 1124, § 5: Apr. 9, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law pertaining to the funding of the Victim/Witness Programs is unclear; this Act clarifies the law by providing that the additional court cost levied under Arkansas Code § 16-21-106 must be used only to defray the cost of the Victim/Witness Program; and that this Act should go into effect immediately in order to clarify the law 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 1992 (1st Ex. Sess.), No. 33, § 7: Mar. 10, 1992. Emergency clause provided: “It is hereby found and determined by the General Assembly that the maximum annual salary for the Marianna municipal court judge is inadequate and should be increased as soon as possible and that this act will accomplish the same. 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. 995, § 5: Apr. 12, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that the caseload of the First Judicial District has decreased substantially and that is no longer necessary for the Prosecuting Attorney to continue as a full time prosecutor. This act should go into effect as soon as possible to allow the current prosecuting attorney to establish a private law practice. 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 upon passage and approval.”

Acts 1994 (2nd Ex. Sess.), Nos. 17 and 18, § 2: Jan. 1, 1995.

Acts 1995, No. 118, § 2: effective retroactively to Jan. 1, 1995. Secton 6, the emergency clause provided: “It is hereby found and determined by the General Assembly that the Prosecuting Attorney of the Fifth Judicial District in this state is inadequately compensated; that the caseload of the circuit has increased substantially; and that this act is indispensable to assure the efficient administration of justice in this circuit. 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 effective upon passage and approval.” The date of approval was February 1, 1995.

Acts 1995 (1st Ex. Sess.), No. 13, § 13: Oct. 23, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state; and it is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible, and the lack of reliable data on the current costs of the state judicial system prohibits any comprehensive change in the funding of the system at this time. 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. 865, § 5: March 27, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Prosecuting Attorney of the Twenty-first Judicial District is inadequately compensated; that the caseload of the District has increased substantially; and that this act is indispensable to assure the efficient administration of justice in the District. 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. 1262, § 18: January 1, 1998.

Acts 1999, No. 35, § 5: Feb. 9, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that designating the Eighth Judicial District North a Division A Judicial District results in the prosecuting attorney of that district being denied the privilege of engaging in a private law practice; that the Eighth Judicial District North would be best served by being designated a Division B Judicial District and thereby allow the prosecuting attorney to maintain a private law practice; that this act accomplishes that purpose; and that until this act becomes effective, the prosecuting attorney of the Eighth Judicial District North will be subjected to an unnecessary and burdensome restriction. 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. 456, § 12: Mar. 8, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act is essential to the operation of the criminal justice system within the Seventeenth and the Twenty-Third Judicial Districts, and is necessary to avoid confusion between the two districts. 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. 1044, § 21: 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. 1508, § 19: Apr. 15, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act makes various technical corrections in the Arkansas Code; that this act further clarifies the law to provide that the Arkansas Code Revision Commission may correct errors resulting from enactments of prior sessions; and that this act should go into effect immediately in order to be applicable during the codification process of the enactments of this 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 2001, No. 203, § 2: Feb. 9, 2001. Emergency clause provided: “It is found and determined by the Eighty-third General Assembly that the Fifteenth Judicial District would operate more effectively with a Class B prosecutor in that it is no longer necessary for the Prosecuting Attorney to continue as a full time prosecutor. 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. 67, § 2: Feb. 5, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Fourteenth Judicial District will operate more effectively and efficiently with a Class B prosecutor and that it is urgent that this change be given effect at the earliest date practical. 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 2003, No. 765, § 2: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is a sufficient current caseload and significant backlog of cases in the Northern District and Southern District of the Eleventh Judicial District-East to justify the prosecutor being fulltime. 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 2005, No. 872, § 2: Mar. 15, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the workload of the Ninth Judicial District-East is burdensome; that the prosecuting attorney for the Ninth Judicial District-East should be employed on a full-time basis; that this act is indispensable to ensure the efficient administration of justice in the Ninth Judicial District-East. 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. 85, § 2: Feb. 9, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is sufficient current caseload and a significant backlog of cases in the Thirteenth Judicial District to justify the change to a Division A Judicial District with a full-time prosecuting attorney's position. 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. 459, § 2: July 1, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is sufficient current caseload and a significant backlog of cases in the Fifteenth Judicial District to justify the change to a Division A Judicial District with a full time prosecuting attorney's position. 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, 2009.”

Acts 2011, No. 220, § 3: Mar. 1, 2011. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the workload of the Eighth Judicial District-North is burdensome and the prosecuting attorney for the Eighth Judicial District-North should be employed on a full-time basis; that the workload of the Ninth Judicial District-West does not justify Division A status; and that this act is immediately necessary in order to ensure the efficient administration of justice in the Eighth Judicial District-North. 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 March 1, 2011.”

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 2015, No. 1261, § 4: July 1, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Thirteenth Judicial District and the Fifteenth Judicial District should be Division B judicial districts; that the fiscal year starts on July 1, 2015; and it is necessary for budgeting purposes that this act become effective on July 1, 2015. 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, 2015.”

Identical Acts 2016 (3rd Ex. Sess.), Nos. 6 and 7, § 4: May 23, 2016. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are currently many vacancies in levee district boards across the state; that the current procedure for filling these vacancies makes the process more difficult; and that this act is immediately necessary because of the critical importance of the efficient functioning of levee district boards. 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 2017, No. 328, § 2: July 1, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Fifteenth Judicial District should be a Division B Judicial District; that the fiscal year starts on July 1, 2017; and it is necessary for budgeting purposes that this act become effective on July 1, 2017. 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 2017, No. 814, § 2: July 1, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Thirteenth Judicial District should be a Division B Judicial District; that the fiscal year starts on July 1, 2017; and it is necessary for budgeting purposes that this act become effective on July 1, 2017. 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 2018, No. 198, § 7: July 1, 2018.

Acts 2019, No. 715, § 6: 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”.

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.

Misconduct related to performance of official duties as prosecuting attorney. 10 A.L.R.4th 605.

Writ of prohibition against acts of public prosecutor. 16 A.L.R.4th 112.

Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or information. 44 A.L.R.4th 401.

16-21-101. Residence.

Each prosecuting attorney shall reside in the judicial district for which he may be elected, under the provisions of the Constitution of this state.

History. Acts 1981, No. 888, § 1; A.S.A. 1947, § 24-135.

16-21-102. Opinion on criminal law matters to be given to public officers.

The prosecuting attorney, without fee or reward, shall give his opinion to any county or township office in his judicial district, on matters of criminal law in which the state or county is concerned, pending before the official.

History. Acts 1981, No. 888, § 2; A.S.A. 1947, § 24-136.

Case Notes

Cited: Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987).

16-21-103. Duty to commence and prosecute criminal actions.

Each prosecuting attorney shall commence and prosecute all criminal actions in which the state or any county in his district may be concerned.

History. Acts 1981, No. 888, § 1; A.S.A. 1947, § 24-135.

Case Notes

Appointment of Special Prosecutor Improper.

Certiorari relief was appropriate where a circuit court erred by disqualifying prosecutors and appointing a special prosecutor because there was no evidence that the prosecutors neglected a capital murder case or failed to attend court; the prosecutors attended and filed a nolle pros motion. There was no other remedy, and the circuit court exceeded its jurisdiction; however, the circuit court was not directed to nolle pros the case because review of a discretionary decision was not allowed where certiorari was sought. Smith v. Simes, 2013 Ark. 477, 430 S.W.3d 690 (2013).

Cited: Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990).

16-21-104. Summoning witnesses before grand jury.

It shall be the duty of each prosecuting attorney, whenever he has information of the commission of any offense against the criminal and penal laws of this state or has reason to believe that any offense has been committed, to cause to be summoned all persons that he may think necessary to testify before the grand jury in relation to the offense.

History. Rev. Stat., ch. 16, § 11; C. & M. Dig., § 8318; Pope's Dig., § 10895; A.S.A. 1947, § 24-102.

Case Notes

Cited: Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987).

16-21-105. Justice of the peace to notify prosecutor of pendency of certain criminal proceedings — Duty of prosecutor.

  1. In any criminal action pending before any justice of the peace court, where the defendant is charged with any offense of carrying weapons unlawfully, unlawful sale of or being interested in the sale of intoxicating liquors, or gambling, by affidavit or otherwise, and pleads not guilty and secures the services of an attorney to represent him at the trial, it shall be the duty of the justice to cause the prosecuting attorney or deputy for the county to be notified of the nature of the charge and of the time and place of the trial.
    1. The prosecuting attorney shall attend and prosecute in behalf of the state.
    2. In case of a conviction, the prosecuting attorney shall be allowed the same fee as is allowed for similar cases in the circuit court. However, no prosecuting attorney or his deputy shall receive any fee unless he personally appears and prosecutes in the case, nor shall any court tax any fee where such officer does not appear and personally prosecute.

History. Acts 1895, No. 80, § 4, p. 106; C. & M. Dig., § 8310; A.S.A. 1947, § 24-123.

Case Notes

Fees.

Where a conviction obtained in a case prosecuted by a deputy was confirmed on appeal, the deputy was entitled to a fee for conviction in the justice court and the prosecuting attorney was entitled to a fee for conviction before the circuit court. Goad v. State, 73 Ark. 458, 84 S.W. 638 (1904).

A prosecuting attorney or his deputy cannot collect from a county contractor fees in a case where he was not personally present and prosecuting. Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912).

No fee is allowed the prosecuting attorney in prosecutions for vagrancy. Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912).

—Guilty Plea.

A deputy prosecuting attorney is not entitled to fees except when present and prosecuting and, therefore, is not entitled to a fee where the defendant appeared before a justice of the peace and pleaded guilty before the day set for trial. Allen v. Davis, 138 Ark. 154, 211 S.W. 151 (1919).

A deputy prosecuting attorney is entitled to a fee on conviction where he filed an information which caused the arrest of the accused and attended the court on the day of the trial, though the accused pleaded guilty. Brown v. Welch, 151 Ark. 142, 235 S.W. 997 (1920).

A prosecuting attorney is not entitled to a fee where the accused pleads guilty. State v. Staples, 158 Ark. 502, 250 S.W. 517 (1923); Duncan v. West, 167 Ark. 14, 267 S.W. 567 (1924).

16-21-106. Assistance to victims and witnesses of crimes — Victim of crimes case coordinator.

    1. The prosecuting attorneys shall, upon request, provide to a victim and the immediate family members of all homicide victims, whether or not they are witnesses in criminal proceedings, notice of critical events in the criminal justice process, which shall include, but not be limited to:
      1. Notice of motions or hearings to establish or reduce bail or authorize other pretrial release from custody;
      2. Notice of proceedings in which any plea agreement may be submitted;
      3. Notice of trial;
      4. Notice of any motion that may substantially delay the prosecution;
      5. Notice that a court proceeding for which the victim has been subpoenaed will not transpire as scheduled;
      6. Notice of the date, time, and place of the defendant's appearance before a judicial officer;
      7. The function of a presentence report, the name, street address, and telephone number of the agency preparing the report, and the defendant's right of access to the report;
      8. Notice of the victim's right under this act to present a victim impact statement and the defendant's right to be present at the sentencing proceeding;
      9. Notice of the date, time, and place of any sentencing proceeding;
      10. Notice of the date, time, and place of any hearing for reconsideration of a sentence imposed;
      11. Notice of any sentence imposed and any modification of that sentence; and
      12. Notice of the right to receive information from the Department of Corrections, Arkansas State Hospital, and any other facility to which the defendant is committed by the court.
    2. After a prosecution is commenced, the prosecuting attorney shall promptly inform a victim of:
      1. Relevant criminal justice procedures;
      2. The crime with which the defendant has been charged, including an explanation of the elements of the crime, if necessary to an understanding of the nature of the crime; and
      3. The file number of the case and the prosecuting attorney's name, office address, and telephone number.
      1. The notice may be accomplished by providing the victim or immediate family member with a telephone number to a computer notification program.
      2. Prosecutors remain responsible for providing the notice in instances where no computer notification program exists.
    3. When an immediate family member has been charged with the homicide, that person shall not be notified in accordance with this section.
    1. Prosecuting attorneys shall confer with the victim before amending or dismissing a charge or agreeing to a negotiated plea or pretrial diversion.
    2. Failure of the prosecuting attorney to confer with the victim does not affect the validity of an agreement between the prosecuting attorney and the defendant or of an amendment, dismissal, plea, pretrial diversion, or other disposition.
    1. The prosecuting attorney of the county from which the inmate was committed shall notify the Parole Board at the time of commitment of the desire of the victim or member of the victim's family to be notified of any future parole or clemency hearings, and to forward to the board the last known address and telephone number of the victim or member of the victim's family.
    2. It shall be the responsibility of the victim or the victim's next of kin to notify the board after the date of commitment of any change in regard to the desire to be notified of any future parole or clemency hearings.
  1. The prosecuting attorneys and deputy prosecuting attorneys shall provide the following services to victims of crimes and witnesses of crimes and the family members of all homicide victims, whether or not they are witnesses in criminal proceedings:
    1. Assisting the persons in obtaining protection from harm and threats of harm arising out of their cooperation with law enforcement and prosecution efforts;
    2. Assisting the persons in applying for financial assistance and other social services available as a result of being a witness or victim of a crime;
    3. Assisting the persons in applying for any witness fees to which they are entitled;
    4. Providing, when possible, a secure waiting area during court proceedings that does not require the persons to be in close proximity to the defendants and families and friends of the defendants and otherwise make a reasonable effort to minimize unwanted contact between the victim, members of the victim's family, or prosecution witnesses and the defendant, members of the defendant's family, or defense witnesses before, during, and immediately after a judicial proceeding; and
    5. Interceding with the persons' employers to assure that the employers cooperate with the criminal justice process in order to minimize loss of pay and other benefits resulting from court appearances.
  2. In order to enable the prosecuting attorney to perform the additional duties provided in this section:
    1. The prosecutor may request the county judge of the county to designate or provide an appropriate room or area in the county courthouse, reasonably close to the courtroom, to serve as a waiting area during court proceedings to accommodate the families and friends of the defendants, as provided in subsection (d) of this section; and
    2. The prosecutor may request the quorum court of the county to provide additional employees for his or her office to be known as victim of crimes case coordinators at such salary as may be determined by the quorum court, to be in addition to any other position available to the prosecutor's office.

History. Acts 1983, No. 526, §§ 1, 2; 1985, No. 450, §§ 1, 2; A.S.A. 1947, §§ 24-141, 24-142; Acts 1991, No. 904, §§ 14, 20; 1991, No. 1124, § 1; 1995, No. 1256, § 20; 1995 (1st Ex. Sess.), No. 13, § 4; 1997, No. 736, § 1; 1997, No. 1262, § 16; 1999, No. 1508, § 7; 2005, No. 1975, § 2; 2019, No. 910, § 853.

A.C.R.C. Notes. Acts 1997, No. 1262, § 2, codified as § 16-90-1102, provided:

“Failure to comply with this act does not create a claim for damages against a government employee, official, or entity.”

Acts 1997, No. 1262, § 15, codified as § 16-90-1115, provided:

“None of the provisions of this act shall be deemed to relieve any person of the duty of providing information or notices required by any other law.”

The amendment of this section by Acts 1997, No. 1262 conflicts with the amendment by Acts 1997, No. 736, and the resolution of the conflict is not governed by the later effective date of Acts 1997, No. 1262. As to the resolution of multiple legislation affecting a section, see §§ 1-2-207 and 1-2-303.

Publisher's Notes. Acts 1991, No. 904, § 22, provided:

“It is hereby found that the passage of many court cost bills over several legislative sessions has caused confusion in the collection of such costs and that reasonable people can interpret the varying language of such court costs statutes differently. This legislation is necessary to standardize the language of such court cost statutes to provide that such costs are collected in a uniform manner statewide.”

Acts 1991, No. 904, § 23, provided:

“This act is hereby declared to be remedial in nature and is to be liberally construed to effect its purpose.”

Acts 1991, No. 904, § 24, provided:

“Nothing herein shall prohibit courts from assessing reasonable probation fees.”

Amendments. The 1995 amendment by No. 1256, as amended by Acts 1995 (1st Ex. Sess.), No. 13, § 4, repealed (b)(2)(B) and (C), redesignating (b)(2)(A) as (b)(2).

The 1997 amendment by No. 736 inserted present (a) and redesignated the remaining subsections accordingly; and substituted “friends of the victims ” for “friends of the defendants ” in present (c)(1).

The 1997 amendment by No. 1262 rewrote this section.

The 1999 amendment repealed the version of this section as amended by Acts 1997, No. 736.

The 2019 amendment substituted “Department of Corrections” for “Department of Correction” in (a)(1)(L).

Meaning of “this act”. Acts 1997, No. 1262, codified as §§ 16-21-106, 16-90-110116-90-1115, § 16-93-702(b), 16-97-102.

Cross References. Registration of sex and child offenders and community notification, § 12-12-901 et seq.

Victim notification system, § 12-12-1201 et seq.

Research References

Ark. L. Rev.

Killenbeck, And Then They Did …? Abusing Equity in the Name of Justice, 44 Ark. L. Rev. 235.

16-21-107. Victim/Witness Coordinator.

  1. This section shall be known as the “Victim/Witness Coordinator Act”.
  2. There is created a Victim/Witness Coordinator to provide technical assistance and support to all victims of crimes and their families and to witnesses to crimes who are involved in the criminal justice system, to establish programs intended to result in such support, and to provide a communication network for victim/witness programs.
  3. The Victim/Witness Coordinator shall be located in the Office of the Prosecutor Coordinator.

History. Acts 1985, No. 408, §§ 1-3; A.S.A. 1947, §§ 24-143 — 24-145.

16-21-108. Child support enforcement — Participation in federal programs — Collection and assessment of costs.

  1. The prosecuting attorneys of the several judicial districts in the State of Arkansas shall be designated as local units of government for the express purpose of permitting contracting with the Department of Finance and Administration for the provision of legal services under Part D of Title IV of the Social Security Act of 1935, as delegated to the states in 1975.
  2. All collections resulting from such a program shall be placed in a special account for each county, namely a child support enforcement account, and distributed in keeping with the requirements of Pub. L. No. 93-647 and rules and regulations promulgated by the department.
    1. In all cases when any circuit court shall levy a fine or forfeiture as a result of an appearance by the prosecutor or his or her deputy, the fine or forfeiture shall be deposited directly with the county treasurer, who shall enter the exact amount into a separate account and deposit the funds into the prosecuting attorney's fund.
    2. The county treasurer of those counties composing the Sixth Judicial District shall account for the prosecuting attorney's fund on a separate ledger sheet and shall provide a monthly statement to the prosecuting attorney of the district, itemizing the total by amount of fines, fees, forfeitures, and costs assessed for the month.
    1. In each case in which the prosecuting attorney shall make an appearance and the defendant is judged guilty, the court shall assess the defendant costs, which shall be paid directly to the prosecuting attorney's fund.
    2. The prosecuting attorney shall enforce the provisions of this section by action to compel assessment of costs, where necessary.
    1. The Prosecuting Attorney of the Sixth Judicial District shall submit a proposed budget to the quorum courts of the counties composing the Sixth Judicial District for their advice and counsel.
    2. The quorum court shall then make advisory recommendations to both houses of the General Assembly concerning the prosecuting attorney's proposed budget.

History. Acts 1977, No. 565, §§ 1-5; A.S.A. 1947, §§ 24-130 — 24-134; Acts 2005, No. 1994, § 262.

A.C.R.C. Notes. The Child Support Enforcement Unit was transferred from the Department of Human Services to the Department of Finance and Administration as the Office of Child Support Enforcement.

U.S. Code. Part D of Title IV of the Social Security Act of 1935, referred to in this section, is codified as 42 U.S.C. § 651 et seq.

Public Law 93-647, referred to in this section, is codified primarily as 42 U.S.C. §§ 303, 602-604, 606, 622, 651-660, 1203, 1306, 1308, 1315, 1316, 1320b (note), 1353, 1383 (note), and 1397-1397f.

16-21-109. Fees in felony cases paid to general revenue fund of county.

The prosecuting attorney's fees provided by law shall be charged against the defendants in felony cases, and when they are collected shall be paid into the county treasury to the credit of the general revenue fund.

History. Acts 1937, No. 214, § 7; Pope's Dig., § 10908; A.S.A. 1947, § 24-116.

16-21-110. Report of, and payment over of, moneys received — Penalty for noncompliance.

  1. Each prosecuting attorney shall, on or before January 1 in each year, file in the office of the Auditor of State, and in the offices of the several county treasurers in his district, an account in writing, verified by the affidavit of such attorney, of all the moneys received by him by virtue of his office, during the preceding year, for the use of the state or any county and, at the same time, shall pay over all such moneys to the Treasurer of State or to any county treasurer entitled to receive the moneys.
  2. If any prosecuting attorney neglects to perform the duties required of him in subsection (a) of this section, he shall be deemed guilty of negligence in his office and shall be proceeded against accordingly.

History. Rev. Stat., ch. 16, §§ 13, 14; C. & M. Dig., §§ 8321, 8322; Pope's Dig., §§ 10898, 10899; A.S.A. 1947, §§ 24-105, 24-106.

16-21-111. Law library.

  1. In all judicial districts in this state in which there is a county with more than one hundred twenty thousand (120,000) inhabitants according to the most recent federal census and where there are more than two (2) divisions of the circuit court and more than one (1) municipal court with countywide jurisdiction, and in which county the office of the prosecuting attorney is maintained permanently in the county courthouse, the prosecuting attorney may expend from the contingent fund provided by the county such sums as are necessary for the purchase and maintenance of an adequate law library.
  2. The law library, when purchased, shall become the property of the county.

History. Acts 1949, No. 245, §§ 1, 2; A.S.A. 1947, §§ 24-124, 24-125.

Case Notes

Cited: Kendall v. Henderson, 238 Ark. 832, 384 S.W.2d 954, 384 S.W.2d 955 (1964).

16-21-112. Prosecuting attorney pro tempore.

  1. If any prosecuting attorney neglects, or fails from sickness or any other cause, to attend any of the courts of the district for which he was elected and to prosecute as required by law, it shall be the duty of the court to appoint some proper person, being an attorney at law, to prosecute for the state during the term. That person shall, on taking the oath of office, perform all the duties of the regular prosecuting attorney for the term.
    1. The person so appointed shall be entitled to receive the same fees on convictions as the prosecuting attorney, and the sum of forty dollars ($40.00) for each term of the court, for prosecuting as provided in subsection (a) of this section, to be paid by the Treasurer of State out of any money appropriated for that purpose.
    2. It shall be the duty of the Auditor of State, on receiving the certificate of the judge of the circuit court making the appointment of the prosecuting attorney pro tempore, to audit and allow the account and draw his warrant on the Treasurer of State for the payment thereof.
    3. The amounts allowed in this subsection for prosecuting attorneys pro tempore shall be deducted from the regular prosecuting attorney's salary whenever a failure occurs on his part which is not occasioned by sickness of himself or family.
  2. Judges of municipal courts shall have the same authority as judges of circuit courts to appoint a special prosecutor under the circumstances as prescribed in this section.

History. Acts 1875 (Adj. Sess.), No. 5, §§ 1, 2, p. 6; C. & M. Dig., §§ 8323, 8324; Pope's Dig., §§ 10900, 10901; A.S.A. 1947, §§ 24-117, 24-118; Acts 1989, No. 825, § 1.

Research References

Ark. L. Rev.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds Nolle Prosequi Motion Does Not Trigger a Circuit Court's Statutory Power to Disqualify an Elected Prosecutor, 67 Ark. L. Rev. 193 (2014).

Case Notes

Appointment.

The literal reading of this section expresses an intent that a special prosecutor shall be appointed when the prosecuting attorney both fails to attend court and to prosecute as required by law, and this section and § 16-21-116 fall short of providing authority for circuit court to appoint a special prosecuting attorney to assist the grand jury when the elected prosecuting attorney is allegedly involved in the commission of a crime. Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974).

Since this section expressly provides how a special prosecutor is appointed, it excludes an appointment by an inferior court. Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984).

Certiorari relief was appropriate where a circuit court erred by disqualifying prosecutors and appointing a special prosecutor because there was no evidence that the prosecutors neglected a capital murder case or failed to attend court; the prosecutors attended and filed a nolle pros motion. There was no other remedy, and the circuit court exceeded its jurisdiction; however, the circuit court was not directed to nolle pros the case because review of a discretionary decision was not allowed where certiorari was sought. Smith v. Simes, 2013 Ark. 477, 430 S.W.3d 690 (2013).

Compensation.

The inherent power of the courts to order the expenditure of funds to compensate court-appointed prosecutors is limited by statute in Arkansas. An attorney appointed by a municipal court as a special prosecutor is not entitled to recover from the county for the services rendered by him in the absence of statutory authority for the appointment or the compensation. Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984).

16-21-113. Deputies.

    1. The prosecuting attorneys of the several judicial districts of this state may appoint one (1) deputy in each of the several counties composing their districts. In counties having two (2) judicial districts, a deputy may be appointed for each district.
    2. The appointment shall not take effect until approved, in writing, by the judge of the circuit court of the district. The approval shall be filed in the office of the clerk of the circuit court of the county for which such deputy is appointed.
  1. In judicial districts which contain a county which has two (2) levying courts or in those judicial districts where the prosecuting attorney and the circuit judge concur in the necessity therefor, the prosecuting attorney of the judicial districts may appoint one (1) or more deputies whose jurisdiction shall be the same as that of the prosecuting attorney.
    1. The deputy prosecuting attorney provided for in this section shall have authority to file an information with any justice of the peace, municipal court judge, or the circuit court of his judicial district, in the name of the prosecutor charging any person with the commission of any offense against the laws of this state.
    2. Upon the filing of the information, it shall be the duty of such justice of the peace or municipal court judge, or the clerk of the circuit court, to issue a warrant for the arrest of the offender. In such a case, no bond for cost of prosecution shall be required.
  2. When any person shall have been arrested under a warrant issued in accordance with the provisions of this section, it shall be the duty of the deputy prosecuting attorney to attend and prosecute such charges on behalf of the state. He shall in a similar manner attend and prosecute on behalf of the state in any criminal case pending before any justice of the peace or municipal court judge or in the circuit court of his judicial district, when so requested by the justice of the peace, municipal court judge, or the prosecuting attorney of the judicial district.
  3. In the event of a conviction, he shall be allowed the same fees as provided by law for the prosecuting of misdemeanor cases. However, the deputy prosecuting attorney shall not be entitled to fees for the prosecution of felony cases.
  4. The deputy prosecuting attorney shall receive no fees or salary from the state for his services and may be removed at any time by the prosecuting attorney appointing him.
  5. The special deputy prosecuting attorney for the Eleventh Judicial District shall be available to provide services to any other judicial district in the state in which state penal facilities are located or in which state penal matters are involved, when called upon by the prosecutor of any such judicial district.

History. Acts 1893, No. 59, § 3, p. 88; C. & M. Dig., § 8311; Acts 1937, No. 286, §§ 1, 3, 4; Pope's Dig., §§ 10884-10886, 10888; Acts 1947, No. 52, § 1; 1947, No. 151, § 1; 1977, No. 439, § 3; A.S.A. 1947, §§ 24-119 — 24-122; Acts 1987, No. 221, § 3; 1989 (1st Ex. Sess.), No. 21, § 3; 1991, No. 79, § 3; 1995, No. 1256, § 20; 1995 (1st Ex. Sess.), No. 13, § 4.

A.C.R.C. Notes. Former versions of subsection (h) are deemed to be superseded by the current subsection enacted in 1991.

Acts 1989, No. 585, § 1, provided:

“In addition to the deputy prosecutor positions created by § 16-21-113 and other Arkansas Code provisions, the prosecuting attorneys of the Eighth, Ninth-West, Tenth, Thirteenth, Sixteenth and Twentieth Judicial Districts shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. Said investigators and case coordinators shall have jurisdiction throughout the judicial district served, and have the power granted to peace officers by the statutes of this State and may serve process issuing out of all courts within the judicial district.”

Amendments. The 1995 amendment by No. 1256, as amended by Acts 1995 (1st Ex. Sess.), No. 13, § 4, repealed former (f), redesignating former (g) and (h) as present (f), and (g).

Cross References. Authority to appoint deputy prosecuting attorneys and employees, § 16-21-145.

Case Notes

Approval by Judge.

The approval by the judge as provided for in this section involves judicial discretion and is not a ministerial act and, consequently, cannot be controlled by mandamus; however, there must be good reason for failure to approve, and, the authority being judicial, the judge's action under this section is reviewable on certiorari. State ex rel. Pilkinton v. Bush, 211 Ark. 28, 198 S.W.2d 1004 (1947).

Authority.

Appellant's postconviction challenge to the adequacy of the deputy prosecutor's signature on the felony information was, on its face, without merit; the trial court correctly stated that the elected prosecuting attorney was not required to sign a felony information when the deputy prosecuting attorney signed on his/her behalf as long as the elected prosecuting attorney's name was made clear in the felony information. Todd v. State, 2017 Ark. App. 587, 535 S.W.3d 638 (2017).

General Assembly Member.

Since the deputy prosecuting attorney's office is a state office and he is a state officer, a member of General Assembly is prohibited from being appointed or serving as a deputy prosecuting attorney. Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976).

Reappointment.

Where deputy prosecuting attorney was not formally reappointed when prosecuting attorney began new term but continued to function as deputy with acquiescence of circuit judge, deputy was de facto official and his authority could not be collaterally attacked by motion to dismiss the informations he had filed as deputy. State v. Roberts, 255 Ark. 183, 499 S.W.2d 600 (1973).

Removal.

This section is read into the appointment the same as if fully written therein and prosecuting attorney could not make an appointment and abrogate his statutory right to remove the deputy. Sheffield v. Heslep, 206 Ark. 605, 177 S.W.2d 412 (1944).

Though appointment of deputy prosecuting attorney was for a fixed time, he was subject to removal at any time. Sheffield v. Heslep, 206 Ark. 605, 177 S.W.2d 412 (1944).

Ineligibility of successor deputy prosecuting attorney would not allow former appointee to hold over after his removal. Sheffield v. Heslep, 206 Ark. 605, 177 S.W.2d 412 (1944).

Cited: Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982); Summers v. State, 300 Ark. 525, 780 S.W.2d 540 (1989).

16-21-114. County attorneys.

  1. A county civil attorney or county attorney may be selected pursuant to ordinance of the quorum court for each county in the state.
  2. The county attorney shall commence and prosecute or defend all civil actions in which his county is concerned.
  3. The county attorney shall give his opinion, without fee or reward, to any township or county official on any question of civil law concerning the county which is pending before the official.
  4. All civil duties provided by the laws of the State of Arkansas or the ordinances of the several counties to be performed by the prosecuting attorney shall be performed by the county attorney in those counties which have established the office of civil attorney.
  5. The office of county attorney shall be funded pursuant to ordinance of the quorum court of the county.
    1. In counties having a full-time office of county civil attorney or a contract county civil attorney, every municipality, school district, and other local taxing unit receiving ad valorem or other tax funds collected by county collectors shall reimburse the county for the taxing unit's pro rata share of the necessary legal costs incurred by the county in assessing property, collecting taxes, and receiving and disbursing revenues for the unit.
    2. Such legal costs shall include:
      1. Reasonable expenses incurred by a county civil attorney and his staff while providing tax-related legal services for the unit; and
      2. A percentage of the salaries and fringe benefits of a full-time county civil attorney and his staff based on the ratio between time spent on tax-related legal services for the taxing unit and time spent on all legal services; and
      3. A reasonable fee charged by a contract county civil attorney for services rendered regarding the assessment, collection, receipt, or disbursement of taxes.
    3. The amount to be reimbursed annually by each taxing unit, as its pro rata share of the county's necessary legal costs, shall be based on the proportion that the total of taxes collected for the benefit of each taxing unit bears to the total of taxes collected for the benefit of all taxing units.
    4. To facilitate reimbursement, there is hereby created a county attorney's fund, which shall be administered in the same manner as the county assessor's fund established in § 14-15-204.

History. Acts 1981, No. 888, §§ 3-6; A.S.A. 1947, §§ 24-137 — 24-140; Acts 1989, No. 633, § 1.

Case Notes

Cited: Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987); Hollowell v. Gravett, 703 F. Supp. 761 (E.D. Ark. 1988).

16-21-115. City attorneys.

A prosecuting attorney may designate the duly elected or appointed city attorney of any municipality within the prosecutor's district to prosecute in the name of the state in the district and city courts violations of state misdemeanor laws, which violations occurred within the limits of the municipality, if the city attorney agrees to the appointment.

History. Acts 1979, No. 662, § 1; A.S.A. 1947, § 24-122.1; Acts 2003, No. 1185, §§ 179, 180.

Amendments. The 2003 amendment substituted “the district and city” for “municipal or other corporation.”

Case Notes

In General.

City attorney of a first-class city had authority to prosecute a state misdemeanor violation because he was acting as a de facto official. Chronister v. State, 55 Ark. App. 93, 931 S.W.2d 444 (1996).

Cited: Bigham v. State, 23 Ark. App. 108, 743 S.W.2d 405 (1988).

16-21-116. Indictment and punishment for misdemeanor in office or neglect of duty — Prosecution.

  1. Prosecuting attorneys may be indicted for any misdemeanor in office or neglect of duty and punished by fine of not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000).
    1. When a bill of indictment has been found against any prosecuting attorney, for any offense whatever, it shall be the duty of the court in which the indictment is found to appoint some person, being an attorney at law, to conduct the prosecution against the prosecuting attorney.
    2. If the prosecuting attorney is convicted, the attorney conducting the prosecution shall be entitled to receive the sum of fifty dollars ($50.00) out of the salary of the prosecuting attorney. The Auditor of State, on receiving a certificate of the conviction of the prosecuting attorney, shall draw his warrant on the Treasurer of State for such sum, if so much of the attorney's salary is due.

History. Rev. Stat., ch. 16, §§ 8-10; C. & M. Dig., §§ 8315-8317; Pope's Dig., §§ 10892-10894; A.S.A. 1947, §§ 24-107 — 24-109.

Case Notes

Constitutionality.

The adoption by the State of Arkansas of the Constitution of 1874 making the prosecuting attorney a constitutional officer did not void the provisions of this section. That part of this section providing for a fee for the special prosecutor if a conviction of the prosecuting attorney is obtained, is not violative of due process, since the amount involved is so small as to be inconsequential when compared to the overall expenses of prosecuting the prosecutor, and because the fee portion of this section is severable from the remainder so that if the fee portion were held unconstitutional the remainder could be severed and any error would be harmless error. Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974).

Prosecuting Attorney as Witness.

The trial court did not abuse its discretion in failing to grant the defendant's motion to disqualify the prosecuting attorney and his entire staff on the ground that the prosecuting attorney was to appear as a witness in the criminal prosecution where the prosecuting attorney did not participate at all in the decision to charge, preparation of the case, pretrial matters, or the actual trial, except to testify. Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982).

Special Prosecutor.

This section falls short of providing authority for circuit court to appoint a special prosecuting attorney to assist the grand jury when the elected prosecuting attorney is allegedly involved in the commission of a crime. However, Arkansas circuit courts have an inherent power to appoint a special prosecuting attorney where the elected prosecuting attorney is under investigation for alleged commission of a crime. Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974).

The inherent power of the circuit court to appoint a special prosecuting attorney to investigate a charge, to assist the grand jury and prosecute the prosecuting attorney, surely includes the right to appoint a special prosecutor to investigate, assist the grand jury, and prosecute a person charged as co-conspirator with the prosecuting attorney. Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974).

This section does not require that the special prosecuting attorney be a resident of the judicial district for which he is appointed. Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974).

A special prosecutor does not displace the prosecuting attorney from his constitutional office, but in order for him to be effective in the investigation and prosecution of the matters for which he has been appointed, he must have the right to proceed in the same manner as the prosecuting attorney. Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974).

16-21-117. Salaries of prosecuting attorneys — Classification of judicial districts.

For the purposes of fixing just and equitable salaries for the several prosecuting attorneys of the State of Arkansas, the judicial districts of the State of Arkansas are divided as follows:

    1. All judicial districts having a population in excess of one hundred fifteen thousand (115,000), with at least one (1) county having a population in excess of eighty-five thousand (85,000), or any judicial district with two (2) county seats, in which one of the county seats has a population in excess of sixty thousand (60,000) by the most recent federal census, or any other judicial district in which the prosecuting attorney executes and files with the Clerk of the Senate and the Clerk of the House of Representatives an affidavit stating that:
      1. The workload of the district, in his opinion, justifies the designation of the district as a Division A Judicial District; and
      2. Adequate funds for the efficient operation of the office have been appropriated by the quorum court of the counties which comprise the district
    2. No district shall be changed from Division B to Division A except by legislative enactment of the General Assembly.
  1. All judicial districts not designated as Division A Judicial Districts shall be Division B Judicial Districts for the purposes of this section.

shall be designated Division A Judicial Districts for the purposes of this section.

History. Acts 1937, No. 214, §§ 1, 2; Pope's Dig., §§ 10902, 10903; Acts 1947, No. 422, § 1; 1949, No. 213, § 1; 1949, No. 466, § 1; 1951, No. 32, § 1; 1951, No. 61, § 1; 1953, No. 57, §§ 1, 2; 1957, No. 420, § 1; 1961, No. 176, § 1; 1963, No. 454, § 1; 1963, No. 486, § 1; 1965, No. 406, § 1; 1967, No. 307, § 1; 1971, No. 384, §§ 1, 2; 1973, No. 779, §§ 1-3; 1975, No. 898, §§ 1, 2; 1977, No. 319, §§ 1, 2; 1979, No. 447, §§ 1, 2; 1979, No. 834, § 2; 1981, No. 193, § 1; 1981 (Ex. Sess.), No. 5, § 1; A.S.A. 1947, §§ 24-110, 24-111; Acts 1987, No. 76, § 1; 1988 (3rd Ex. Sess.), No. 12, § 1; 1989, No. 13, § 1; 1989, No. 813, § 1; 1992 (1st Ex. Sess.), No. 33, § 2; 1993, No. 1306, § 11.

Publisher's Notes. Similar provisions to former subsection (b) may now be found at §§ 16-21-121—16-21-144.

Amendments. The 1993 amendment deleted former (b)(1) and (2).

Cross References. Salaries of prosecuting attorneys, Ark. Const. Amend. 21, § 2.

Case Notes

Appropriation.

Prosecuting attorneys are entitled to receive the salary fixed by law even where no legislative appropriation was made therefor, since no specific appropriation by the legislature is necessary. Smith v. Page, 192 Ark. 342, 91 S.W.2d 281 (1936) (decision under prior law).

Cited: Riviere v. Hardegree, 278 Ark. 167, 644 S.W.2d 276 (1983).

16-21-118. Division A Districts.

The prosecuting attorneys in the Division A Judicial Districts shall not engage in the private practice of law during their terms in office.

History. Acts 1937, No. 214, § 3; Pope's Dig., § 10904; Acts 1953, No. 57, § 3; 1959, No. 308, § 1; 1965, No. 557, § 1; 1967, No. 472, § 1; 1971, No. 384, § 3; 1975, No. 898, § 3; 1977, No. 319, § 3; 1979, No. 447, § 3; A.S.A. 1947, § 24-112; Acts 1999, No. 553, § 29.

Amendments. The 1999 amendment deleted (b).

16-21-119. Contingent expense funds generally.

  1. The prosecuting attorney of each judicial district shall be allowed a contingent expense of his office, including telephone, telegraph, postage, printing, office supplies and equipment, office rent, stationery, traveling expense, special service, operation of automobiles, and such other expenses which, within the discretion of the prosecuting attorney, may be a proper expense of the office. It shall also include necessary expenses in connection with any proper investigation incident to any criminal law violation or trials before any grand jury, or any court within the judicial district, coming within the duties of his office.
  2. The expense provided for in subsection (a) of this section shall be paid by the several counties of this state by vouchers signed by the prosecuting attorney and allowed by the county court as claims against the general revenue fund of said county, and for the purpose of providing a just and equitable manner and method of payment, the several counties of the State of Arkansas are classified as follows:
    1. All counties having a population of less than fifteen thousand (15,000) persons according to the most recent federal census and with an assessed valuation of less than two million dollars ($2,000,000) shall pay annually not in excess of two hundred dollars ($200). However, Cleveland County, Dallas County, Nevada County, Lafayette County, and Montgomery County shall pay annually not in excess of four hundred dollars ($400);
    2. All counties having a population in excess of fifteen thousand (15,000) persons and not in excess of twenty-five thousand (25,000) persons according to the most recent federal census and with an assessed valuation of less than five million dollars ($5,000,000) shall pay annually not in excess of four hundred dollars ($400). However, Drew County, Bradley County, and Clark County shall pay annually not in excess of six hundred dollars ($600) and Woodruff County shall pay annually not in excess of eight hundred dollars ($800);
    3. All counties now or hereafter having a population in excess of twenty-five thousand (25,000) persons and not in excess of twenty-nine thousand (29,000) persons according to the most recent federal census and with an assessed valuation of less than seven million five hundred thousand dollars ($7,500,000) shall pay annually not in excess of five hundred dollars ($500). However, Hempstead County, Chicot County, and Ashley County shall pay annually not in excess of eight hundred dollars ($800);
    4. All counties having a population in excess of twenty-nine thousand (29,000) persons and not in excess of forty thousand (40,000) persons according to the most recent federal census and with an assessed valuation of less than eleven million dollars ($11,000,000) shall pay annually not in excess of eight hundred dollars ($800). However, St. Francis County and White County shall pay annually not in excess of one thousand two hundred dollars ($1,200), and Saline County shall pay annually not in excess of three thousand dollars ($3,000);
      1. All counties having a population in excess of forty thousand (40,000) persons and not in excess of fifty thousand (50,000) persons according to the most recent federal census and with assessed valuation of less than fifteen million dollars ($15,000,000) shall pay annually not in excess of one thousand dollars ($1,000). However, Phillips County shall pay annually not in excess of one thousand four hundred dollars ($1,400);
      2. Any county with a population of not less than fifty-two thousand (52,000) persons nor more than sixty-one thousand (61,000) persons according to the 1970 federal census shall pay annually the sum of six thousand dollars ($6,000);
    5. All counties now or hereafter having a population in excess of fifty thousand (50,000) persons and not in excess of seventy-five thousand (75,000) persons according to the most recent federal census and with an assessed valuation of less than twenty-five million dollars ($25,000,000) shall pay annually not in excess of one thousand two hundred dollars ($1,200). However, Jefferson County shall pay annually not in excess of one thousand eight hundred dollars ($1,800);
    6. All counties having a population in excess of seventy-five thousand (75,000) persons and not in excess of one hundred twenty thousand (120,000) persons according to the most recent federal census and with an assessed valuation of less than fifty million dollars ($50,000,000) shall pay annually not in excess of two thousand five hundred dollars ($2,500);
    7. All counties having a population in excess of two hundred forty thousand (240,000) persons according to the most recent federal census and with an assessed valuation of not less than fifty million dollars ($50,000,000) shall pay annually not less than one hundred twenty-seven thousand dollars ($127,000), nor more than one hundred fifty thousand dollars ($150,000), as established by the quorum court of the counties.
  3. Any county falling within one (1) classification according to population, but falling within a smaller classification according to the assessed valuation, shall be considered as being within, and shall pay expense according to, the larger classification.

History. Acts 1937, No. 214, §§ 4-6; Pope's Dig., §§ 10905-10907; Acts 1947, No. 152, § 1; 1949, No. 94, §§ 1-3; 1951, No. 17, § 1; 1951, No. 241, § 1; 1951, No. 387, §§ 1-3; 1951, No. 355, §§ 1-5; 1957, No. 420, §§ 2, 3; 1967, No. 16, § 1; 1969, No. 317, § 1; 1971, No. 430, § 1; 1973, No. 30, § 1; 1973, No. 322, § 1; 1977, No. 117, § 1; 1979, No. 415, § 1; 1979, No. 514, § 1; 1981, No. 126, § 1; A.S.A. 1947, §§ 24-113—24-115.

Publisher's Notes. Acts 1977, No. 117, § 3, provided, in part, that the contingency allowances authorized in the act for the operation of the prosecuting attorney's office in the Sixth Judicial District should be provided by appropriation from the county general fund by the quorum court, and further provided that in the event the quorum court should fail to appropriate the funds, or should make an appropriation of funds less than the amount provided in the act, the circuit court might, upon petition of the prosecuting attorney of the Sixth Judicial District, enter an appropriate order compelling the payment of the full amount thereof by the appropriate county officials or in such amount as determined by the circuit court as being necessary for the efficient operation of the office.

Case Notes

Payment of Expenses.

Where the legislature has established payment of expenses to prosecuting attorneys by paying a monthly lump sum without itemization, a court has no power to inquire into the wisdom, amount, necessity or propriety of the legislative decision; in the absence of proof by the plaintiff taxpayers that the moneys were not used as expenses by the prosecuting attorney, the legislative authorization cannot be disregarded and the prosecuting attorney could not be required to repay monthly lump sum payments he received for expenses. Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980).

Services Outside County.

Where a county prosecuting attorney was paid for expenses for work done in another county, the prosecuting attorney could not be required to reimburse the county he served for those expense payments, since it was clear that the payments were for proper expenses of the prosecuting attorney's office and nothing in this section mandates the separation of expenses by the county. Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980).

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-21-120. Fees from persons issuing bad checks — Special fund — Expenditures — Reports.

  1. Fees collected under this act shall be deposited in a special fund to be administered by the prosecuting attorney.
  2. Expenditures from this fund shall be at the sole discretion of the prosecuting attorney and may be used only to defray the salaries and expenses of the prosecuting attorney's office, but in no event may the prosecuting attorney or any deputy prosecutor who is paid on the fee system supplement his or her own salary, nor may the prosecuting attorney increase any employee's salary, without approval of the quorum court of the county where employed from this fund.
  3. The prosecuting attorney shall annually prepare and present to the quorum courts of each county within his or her district a report showing all receipts and disbursements from the special fund created by this section.
  4. Nothing in this act shall be construed to decrease the total salaries, expenses, and allowances which a prosecuting attorney's office is receiving as of June 26, 1985.
  5. This act is cumulative to all other acts and shall not repeal any other act.

History. Acts 1985 (1st Ex. Sess.), No. 33, §§ 3, 4; A.S.A. 1947, §§ 67-728, 67-728n.

Meaning of “this act”. Acts 1985 (1st Ex. Sess.), No. 33 is codified as §§ 5-37-307, 16-21-120, 21-6-411.

Cross References. Fees for collecting and processing certain checks, orders, or drafts, § 21-6-411.

Fee reports by agencies and public officials, § 16-21-205.

Power and authority of prosecutor and deputies, § 16-21-1703.

16-21-121. First Judicial District Prosecuting Attorney.

The First Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 995, § 1; Acts 2005, No. 1177, § 1.

16-21-122. The Second Judicial District.

The Second Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

16-21-123. The Third Judicial District.

The Third Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Acts 1987, No. 76, § 1, provided that the Third and Sixteenth Judicial Districts are Division A districts retroactive to January 1, 1987, the Eighth Judicial District is a Division A district as of March 1, 1987, the Seventh and Twentieth Judicial Districts are Division A districts as of July 1, 1987, the Eighth Judicial District will remain a Division B district until March 1, 1987, and the Seventh and Twentieth Judicial Districts will remain Division B districts until July 1, 1987.

16-21-124. The Fourth Judicial District.

The Fourth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

16-21-125. The Fifth Judicial District.

The Fifth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1; 1995, No. 118, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Amendments. The 1995 amendment substituted “Division A” for “Division B.”

16-21-126. The Sixth Judicial District.

The Sixth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

16-21-127. The Seventh Judicial District — The Twenty-second Judicial District.

  1. The Seventh Judicial District shall be a Division A Judicial District.
  2. The Twenty-second Judicial District shall be a Division A Judicial District.

History. Acts 1997, No. 827, § 7.

A.C.R.C. Notes. As enacted in 1997, this section provided:

“(a) Effective January 1, 1999, the Seventh Judicial District-North shall be a Division A Judicial District.

“(b) Effective January 1, 1999, the Seventh Judicial District-South shall be a Division A Judicial District.”

Under Acts 1999, No. 7, codified as § 16-13-3101 et seq., the Seventh Judicial District-South became the Seventh Judicial District and the Seventh Judicial District-North became the Twenty-Second Judicial District.

Publisher's Notes. Former § 16-21-127, concerning the Seventh Judicial District, was repealed by Acts 1997, No. 827, § 9. The section was derived from Acts 1993, No. 1305, § 1.

16-21-128. The Eighth Judicial District.

  1. The Eighth Judicial District-North shall be a Division A Judicial District.
  2. Effective January 1, 1999, the Eighth Judicial District-South shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1; 1997, No. 1270, § 5; 1999, No. 35, § 1; 2011, No. 220, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Acts 1987, No. 76, § 1, provided that the Third and Sixteenth Judicial Districts are Division A districts retroactive to January 1, 1987, the Eighth Judicial District is a Division A district as of March 1, 1987, the Seventh and Twentieth Judicial Districts are Division A districts as of July 1, 1987, the Eighth Judicial District will remain a Division B district until March 1, 1987, and the Seventh and Twentieth Judicial Districts will remain Division B districts until July 1, 1987.

The repeal of this section by Acts 1997, No. 1270, § 8, effective January 1, 1999, has been superseded by its 1999 amendment.

Amendments. The 1999 amendment, in (a), deleted “Effective January 1, 1999” from the beginning, and substituted “Division B” for “Division A.”

The 2011 amendment substituted “Division A” for “Division B” in (a).

16-21-129. The Ninth Judicial District-East.

The Ninth Judicial District-East shall be a Division B Judicial District.

History. Acts 1993, No. 1306, § 1; 2005, No. 872, § 1; 2007, No. 494, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Amendments. The 2007 amendment substituted “Division B” for “Division A.”

16-21-130. The Ninth Judicial District-West.

The Ninth Judicial District-West shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1; 1994 (2nd Ex. Sess.), No. 17, § 1; 1994 (2nd Ex. Sess.), No. 18, § 1; 2011, No. 220, § 2; 2018, No. 198, § 4.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

As enacted by identical Acts 1994 (2nd Ex. Sess.) Nos. 17 and 18, § 1 began: “Beginning January 1, 1995.”

Amendments. The 1994 (2nd Ex. Sess.) amendment by identical acts Nos. 17 and 18 substituted “Division A” for “Division B.”

The 2011 amendment substituted “Division B” for “Division A.”

The 2018 amendment substituted “Division A” for “Division B”.

Effective Dates. Acts 2018, No. 198, § 7: July 1, 2018.

16-21-131. The Tenth Judicial District.

The Tenth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

16-21-132. The Eleventh Judicial District-East.

The Eleventh Judicial District-East shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1; 2003, No. 765, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Amendments. The 2003 amendment substituted “Division A” for “Division B.”

16-21-133. The Eleventh Judicial District-West.

The Eleventh Judicial District-West shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

16-21-134. The Twelfth Judicial District.

The Twelfth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

16-21-135. The Thirteenth Judicial District.

The Thirteenth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1; 2009, No. 85, § 1; 2015, No. 1261, § 1; 2017, No. 814, § 1; 2019, No. 614, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Amendments. The 2009 amendment substituted “Division A” for “Division B.”

The 2015 amendment added (a); designated the existing language as (b); and added “Effective July 1, 2017” in (b).

The 2017 amendment deleted former (b); deleted the (a) designation; and substituted “The” for “Effective until July 1, 2017, the”.

The 2019 amendment substituted “Division A” for “Division B”.

16-21-136. The Fourteenth Judicial District.

The Fourteenth Judicial District shall be a Division B Judicial District.

History. Acts 1993, No. 1306, § 1; 2003, No. 67, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Amendments. The 2003 amendment substituted “Division B” for “Division A.”

16-21-137. The Fifteenth Judicial District.

The Fifteenth Judicial District shall be a Division B Judicial District.

History. Acts 1993, No. 1306, § 1; 1997, No. 322, § 1; 2001, No. 203, § 1; 2009, No. 459, § 1; 2015, No. 1261, § 2; 2017, No. 328, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Amendments. The 1997 amendment substituted “Division A” for “Division B.”

The 2001 amendment substituted “ Division B” for “Division A.”

The 2009 amendment substituted “Division A” for “Division B.”

The 2015 amendment added (a); designated the existing language as (b); and added “Effective July 1, 2017” in (b).

The 2017 amendment deleted former (b); deleted the (a) designation; and substituted “The” for “Effective until July 1, 2017, the”.

16-21-138. The Sixteenth Judicial District.

The Sixteenth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1; 2001, No. 249, § 1.

Publisher's Notes. By its own terms, the 2001 amendment is retroactive to January 1, 2001.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Acts 1987, No. 76, § 1, provided that the Third and Sixteenth Judicial Districts are Division A districts retroactive to January 1, 1987, the Eighth Judicial District is a Division A district as of March 1, 1987, the Seventh and Twentieth Judicial Districts are Division A districts as of July 1, 1987, the Eighth Judicial District will remain a Division B district until March 1, 1987, and the Seventh and Twentieth Judicial Districts will remain Division B districts until July 1, 1987.

Acts 1993, No. 360, § 1, provided that:

“Retroactive to January 1, 1993, the Sixteenth Judicial District Division A Prosecuting Attorney shall be reclassified as a Division B Judicial District Prosecuting Attorney.”

Amendments. The 2001 amendment substituted “Division A” for “Division B.”

16-21-139. The Seventeenth Judicial District.

The Seventeenth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1; 1999, No. 456, § 5.

A.C.R.C. Notes. Acts 1993, No. 168, § 1 provided:

“Retroactive to January 1, 1993 the Judicial District Seventeenth-East Division B Prosecuting Attorney shall be reclassified as a Division A Judicial District Prosecuting Attorney.”

As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Acts 1999, No. 456, § 7, provided:

“Subject to review by the Senate Interim Committee on Judiciary of the Arkansas General Assembly, the Arkansas Code Revision Commission is authorized and directed to prepare a technical corrections bill for introduction in the next regular or special session of the Arkansas General Assembly to make the necessary changes to the Arkansas Code of 1987 Annotated consistent with the provisions of this act. Specifically, in addition to other necessary changes determined to be consistent with this act and subject to review by the Senate Interim Committee on Judiciary, the Arkansas Code Revision Commission shall prepare legislation to change references to the Seventeenth Judicial District-East and the Seventeenth Judicial District-West, as well as similar and related references used throughout the Arkansas Code of 1987 Annotated to references consistent with the Seventeenth Judicial District and the Twenty-Third Judicial District, or divisions thereof, for purposes of uniformity and style.”

Acts 1999, No. 456, § 8, provided:

“Nothing in this Act shall be construed to decrease the term of office of the judges and prosecuting attorneys of the Seventeenth Judicial District-East or the Seventeenth Judicial District-West serving on the effective date of this Act. The judges and prosecuting attorneys shall continue to serve in their respective capacities in the Seventeenth Judicial District and the Twenty-Third Judicial District until the expiration of their terms.”

Amendments. The 1999 amendment substituted “Seventeenth Judicial District” for “Seventeenth Judicial District-East.”

16-21-140. The Twenty-third Judicial District.

The Twenty-third Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1; 1999, No. 456, § 6; 2001, No. 199, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Acts 1999, No. 456, § 7, provided:

“Subject to review by the Senate Interim Committee on Judiciary of the Arkansas General Assembly, the Arkansas Code Revision Commission is authorized and directed to prepare a technical corrections bill for introduction in the next regular or special session of the Arkansas General Assembly to make the necessary changes to the Arkansas Code of 1987 Annotated consistent with the provisions of this act. Specifically, in addition to other necessary changes determined to be consistent with this act and subject to review by the Senate Interim Committee on Judiciary, the Arkansas Code Revision Commission shall prepare legislation to change references to the Seventeenth Judicial District-East and the Seventeenth Judicial District-West, as well as similar and related references used throughout the Arkansas Code of 1987 Annotated to references consistent with the Seventeenth Judicial District and the Twenty-Third Judicial District, or divisions thereof, for purposes of uniformity and style.”

Acts 1999, No. 456, § 8, provided:

“Nothing in this Act shall be construed to decrease the term of office of the judges and prosecuting attorneys of the Seventeenth Judicial District-East or the Seventeenth Judicial District-West serving on the effective date of this Act. The judges and prosecuting attorneys shall continue to serve in their respective capacities in the Seventeenth Judicial District and the Twenty-Third Judicial District until the expiration of their terms.”

Amendments. The 1999 amendment substituted “Twenty-third Judicial District” for “Seventeenth Judicial District-West.”

The 2001 amendment substituted “Division A” for “Division B.”

16-21-141. The Eighteenth Judicial District-East.

The Eighteenth Judicial District-East shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Acts 1988 (3rd Ex. Sess.), No. 12, § 1, provides that the Eighteenth Judicial District-East Judicial District shall be a Division B Judicial District until January 1, 1989; at that time, the district shall become a Division A Judicial District.

16-21-142. The Eighteenth Judicial District-West.

The Eighteenth Judicial District-West shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. Acts 1993, No. 844, § 1, provided:

“Retroactive to January 1, 1993 the Judicial District Eighteenth-West Division B Prosecuting Attorney shall be reclassified as a Division A Judicial District Prosecuting Attorney.”

As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

16-21-143. The Nineteenth Judicial District.

The Nineteenth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

16-21-144. The Twentieth Judicial District.

The Twentieth Judicial District shall be a Division A Judicial District.

History. Acts 1993, No. 1306, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 1, this section ended “effective January 1, 1993.”

Acts 1987, No. 76, § 1, provided that the Third and Sixteenth Judicial Districts are Division A districts retroactive to January 1, 1987, the Eighth Judicial District is a Division A district as of March 1, 1987, the Seventh and Twentieth Judicial Districts are Division A districts as of July 1, 1987, the Eighth Judicial District will remain a Division B district until March 1, 1987, and the Seventh and Twentieth Judicial Districts will remain Division B districts until July 1, 1987.

16-21-145. Authority to appoint deputies and employees.

Prosecuting attorneys shall have the power to appoint all deputies and employees without confirmation of any court or tribunal.

History. Acts 1993, No. 1306, § 2.

Cross References. Appointment of deputies generally, § 16-21-113.

Restriction on publication of report, § 21-7-401.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-21-146. Appropriation of funds for salaries and expenses.

  1. The quorum courts of the respective counties of a judicial district shall annually appropriate sufficient amounts to cover the salaries and expenses of the prosecuting attorney's office.
  2. The quorum courts of the respective counties may appropriate any additional funds and create such additional deputy prosecutor positions as they deem necessary for the efficient operation of the office of the prosecuting attorney.

History. Acts 1993, No. 1306, § 3.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-21-147. Powers of deputy prosecuting attorney — Disposition of federal forfeiture funds.

  1. A deputy prosecuting attorney who is duly appointed in any county of a judicial district shall, with the prosecuting attorney's consent, have the authority to perform all official acts as a deputy prosecuting attorney in all counties within the district.
    1. A prosecuting attorney and those deputy prosecuting attorneys and other staff members he or she designates shall be considered law enforcement officers for the purposes of utilizing emergency, protective, and communication equipment in coordination with interagency cooperative investigations and operations.
    2. However, the prosecuting attorney and all members of his or her office shall have no greater arrest powers than those accorded all citizens under the Arkansas Constitution and the Arkansas Code.
    3. A prosecuting attorney and those deputy prosecuting attorneys designated by the prosecuting attorney may carry firearms.
    4. A prosecuting attorney who elects to carry a firearm or authorize his or her deputy prosecuting attorneys to carry a firearm shall adopt a weapons policy and a use of force policy.
  2. A prosecuting attorney shall have the power to appoint deputy prosecuting attorneys and other employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration's Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, as amended, or its successor.
  3. All federal forfeitures to a prosecuting attorney's office shall be deposited in a separate account pursuant to § 5-64-505(i)(4).

History. Acts 1993, No. 1306, § 4; 1999, No. 1120, § 7; 2013, No. 539, § 4.

A.C.R.C. Notes. References to “this chapter” in subchapters 1-25 may not apply to §§ 16-21-121, 16-21-14516-21-158 and 16-21-170216-21-1704, which were enacted subsequently.

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.”

Amendments. The 1999 amendment substituted “deposited in a separate account pursuant to § 5-64-505(i)(4)” for “deposited in the drug control fund” in (d).

The 2013 amendment substituted “he or she” for “he” in (b)(1); in (b)(2), substituted “However” for “Provided that” and “his or her” for “his”; and added (b)(3) and (b)(4).

U.S. Code. The Anti-Drug Abuse Act of 1986, referred to in this section, is P.L. 99-570 and is codified throughout the U.S. Code. Its successor is the Anti-Drug Abuse Act of 1988, P.L. 100-690 which is also codified throughout the U.S. Code.

16-21-148. Deputy prosecutor for civil asset forfeiture actions.

  1. In addition to the deputy prosecuting attorney positions created by § 16-21-113(a)(1) and other Arkansas Code provisions and laws, a prosecuting attorney shall have the power to enter into a contract for personal services with a licensed attorney whose duty it will be to act as a deputy prosecutor to prosecute civil asset forfeiture actions at such hourly amount as is deemed proper by the prosecuting attorney.
  2. This attorney may be paid from funds generated from § 5-64-505(i)(2).

History. Acts 1993, No. 1306, § 5; 1999, No. 1120, § 5.

A.C.R.C. Notes. References to “this chapter” in subchapters 1-25 may not apply to §§ 16-21-121, 16-21-14516-21-158 and 16-21-170216-21-1704, which were enacted subsequently.

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.”

Amendments. The 1999 amendment substituted “§ 5-64-505(i)(2)” for “§ 5-64-505(k)(4)” in (b).

Cross References. Property subject to forfeiture — Procedure — Disposition of property, § 5-64-505.

16-21-149. Appointment of special deputy prosecuting attorneys.

  1. Notwithstanding any other provision of law, the prosecuting attorney in every judicial district is authorized to appoint as special deputy prosecuting attorneys:
    1. Persons employed as attorneys in the office of the Prosecutor Coordinator; or
      1. With the consent of the Attorney General, persons employed as attorneys in the office of the Attorney General.
      2. In cases involving the appointment of a staff attorney from the office of the Attorney General, the authority conferred by the appointment is limited to the matter for which the appointment is sought.
  2. Appointment as a special deputy prosecuting attorney under this section shall not enable an attorney employed in the office of the Attorney General to receive any additional fees or salary from the state or counties for services provided pursuant to the appointment.
  3. The prosecuting attorney may revoke the appointment of a special prosecuting attorney under this section at any time.
  4. Nothing in this section shall obligate the Attorney General to provide an attorney for purposes of assisting the prosecuting attorney in criminal actions designated in subsection (b) of this section, and nothing in this section shall prevent the Attorney General from withdrawing from participation in such cases at any time.

History. Acts 1993, No. 1306, § 6; 1999, No. 1300, § 1.

A.C.R.C. Notes. The reference in subsection (d) to “subsection (b)” is in error.

Amendments. The 1999 amendment rewrote this section.

Cross References. Prosecutor Coordinator Act, § 16-21-201 et seq.

16-21-150. Prosecution of appeals.

No prosecuting attorney shall prosecute city misdemeanor cases or appeals to circuit or appellate courts unless the prosecuting attorney consents to do so.

History. Acts 1993, No. 1306, § 7.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 1306, § 7, this section began “From and after the effective date of this act.” Acts 1993, No. 1306, § 7 was effective August 13, 1993.

16-21-151. Prosecutor's victim/witness fund.

  1. In those offices where the prosecuting attorney is desirous of paying for the victim/witness program from more than one (1) county or fund, the prosecuting attorney may establish a cash account.
  2. Notice of such shall be sent by the prosecuting attorney to the applicable county treasurers.
  3. Each month the county treasurers shall pay to the office of the prosecuting attorney those funds collected pursuant to § 16-21-106 in the special revenue account entitled “Prosecutor's victim/witness fund” or the portion of the county administration of justice fund allotted to the prosecuting attorney's victim/witness program fund.
    1. The prosecuting attorney shall deposit the funds in a bank account entitled “prosecutor's victim/witness fund”.
    2. Moneys deposited into the fund shall be used exclusively to pay the costs of the prosecuting attorney's victim/witness program.
  4. Expenditures and deposits must be made according to the Arkansas Prosecuting Attorneys Financial Management Guidelines as published by the Division of Legislative Audit in conjunction with the Prosecution Coordination Commission.

History. Acts 1995, No. 1221, § 1.

A.C.R.C. Notes. References to “this subchapter” in §§ 16-21-10116-21-150 may not apply to this section which was enacted subsequently.

As enacted by Acts 1995, No. 1221, § 1, subsection (c) of this section also provided that the county treasurers shall pay to the office of the prosecuting attorney those funds in the prosecutor's victim/witness fund “if created by the legislature in 1995.”

The General Assembly created the county administration of justice fund by Acts 1995, No. 1256, § 10, codified as § 16-10-307.

16-21-152. The Twenty-first Judicial District.

The Twenty-first Judicial District shall be a Division A Judicial District.

History. Acts 1995, No. 900, § 6; 1997, No. 865, § 1.

A.C.R.C. Notes. As enacted, this section began:

“At the 1996 General Election the qualified electors of Crawford County shall elect a person who shall serve as the prosecuting attorney for the Twenty-First Judicial District beginning January 1, 1997.”

References to “this subchapter” in §§ 16-21-10116-21-158 may not apply to this section which was enacted subsequently.

Amendments. The 1997 amendment added “Effective January 1, 1997”; and substituted “Division A” for “Division B.”

16-21-153. License — Confirmation — Vacancies.

  1. Each person selected as a deputy prosecuting attorney shall be licensed to practice law in the State of Arkansas.
  2. Deputy prosecuting attorneys shall be appointed by elected prosecuting attorneys without confirmation of any court or tribunal and may be removed at any time by the prosecuting attorneys appointing them.
  3. Vacancies in the office of deputy prosecuting attorney shall be filled in the same manner as the initial appointment.

History. Acts 1999, No. 1044, § 3.

A.C.R.C. Notes. Acts 1999, No. 1044, § 8, provided:

“LEAVE BENEFITS. Deputy prosecuting attorneys who convert from county or grant funded employment to state employment and are employed prior to July 1, 1999, shall have their length of service with the county recognized for purposes of accrual rates for sick leave and annual leave.”

16-21-154. Entry-level salary.

The entry level salaries of deputy prosecuting attorneys shall be consistent with that established by the state pay plan for the appropriate grade of each position.

History. Acts 1999, No. 1044, § 4.

16-21-155. Attendance and leave.

The deputy prosecuting attorneys shall be subject to the Uniform Attendance and Leave Policy Act, § 21-4-201 et seq., as administered by the elected prosecuting attorneys by whom they are employed.

History. Acts 1999, No. 1044, § 5.

16-21-156. Funding of expenses and additional employees of the prosecuting attorneys' offices.

Each county or counties within a judicial district shall continue to bear the responsibility and expense of providing, at the county's expense through an annual appropriation, the following, at sufficient levels for operation, but not less than the amounts appropriated by ordinance in effect January 1, 1999:

  1. The cost of facilities, equipment, supplies, salaries and benefits of existing support staff, and other office expenses for elected prosecuting attorneys and deputy prosecuting attorneys, and any and all other line item appropriations as approved in the 1999 county budget except for deputy prosecuting attorneys' salaries and benefits; and
  2. The county shall provide compensation of additional personnel and expenses within the office of prosecuting attorney and deputy prosecuting attorney, when approved by the quorum court.

History. Acts 1999, No. 1044, § 10.

16-21-157. State employment and assignment of positions.

  1. On January 1, 2000, all deputy prosecuting attorneys shall become state employees.
  2. The number of positions authorized by this section equal the total number of county and grant-funded deputy prosecuting attorney positions in place as of January 1, 1999, less one (1) position.
    1. The initial allocation of the state funded deputy prosecuting attorney positions for the 1999-2001 biennium shall be determined by the Prosecution Coordination Commission and shall be consistent with the number of county and grant funded positions in place for each judicial district as of January 1, 1999, less one (1) position.
    2. The final allocations shall be reported to the Legislative Council for its review prior to July 1, 1999.
  3. The Prosecution Coordination Commission shall assist in the maintenance of a system which equitably serves all areas of the state by providing quality deputy prosecuting attorneys.

History. Acts 1999, No. 1044, § 11; 2019, No. 715, § 3.

Amendments. The 2019 amendment added (d).

16-21-158. Hour limitations — Part-time deputy prosecuting attorneys.

There are no upper limit restrictions on the number of hours which a part-time deputy prosecuting attorney may work.

History. Acts 1999, No. 1044, § 12.

16-21-159. Duty after receiving notice of vacancy on district board.

  1. A county judge who receives notice under § 16-20-401(d) of a continuing vacancy on a district board or district commission shall investigate the alleged vacancy, and after conducting a hearing under § 16-20-401(d), enter a county order reflecting the majority vote of the landowners of the district in attendance at the hearing to fill any continuing vacancies in the district board or district commission.
    1. The county judge's order may assess the district fines for violations as well as the costs of the required publications of notices.
    2. A fine under subdivision (b)(1) of this section shall be not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000) for each offense.
    3. A fine recovered under subdivision (b)(2) of this section shall be deposited into the county clerk's cost fund.

History. Acts 2009, No. 386, § 4; 2016 (3rd Ex. Sess.), No. 6, § 3; 2016 (3rd Ex. Sess.), No. 7, § 3.

Amendments. The 2016 (3rd Ex. Sess.) amendment by identical acts Nos. 6 and 7 rewrote the section.

Subchapter 2 — Prosecutor Coordinator Act

A.C.R.C. Notes. References to “this subchapter” in §§ 16-21-20116-21-205 may not apply to §§ 16-21-206 and 16-21-207 which were enacted subsequently.

Acts 2001, No. 1786, § 5: Apr. 19, 2001. Emergency clause provided: “It is found and determined by the Eighty-third General Assembly that immediate clarification is needed with regard to the authority to administer funds provided to the State of Arkansas under the federal Victims of Crime Act, the Violence Against Women Act, and the Family Violence Prevention and Services Act; and that this act, in order to comply with federal law, removes state legislative restrictions on the administration of such funds where the federal government has previously enacted legislation or regulations governing the authority to administer these funds. 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.”

16-21-201. Title.

This subchapter shall be known as the “Prosecutor Coordinator Act of 1975”.

History. Acts 1975, No. 925, § 1; A.S.A. 1947, § 24-126.

16-21-202. Existing duties of prosecuting attorneys unaffected by subchapter.

No provision in this subchapter shall be construed to be in derogation of the already existing duties, authorities, responsibilities, or discretions of the various prosecuting and deputy prosecuting attorneys of this state.

History. Acts 1975, No. 925, § 4; A.S.A. 1947, § 24-129.

Cross References. Authority of prosecuting attorney to appoint the attorneys of the Prosecutor Coordinator's Office as deputy prosecuting attorneys, § 16-21-149.

16-21-203. Prosecution Coordination Commission.

    1. There is created a Prosecution Coordination Commission which shall be composed of seven (7) prosecuting attorneys elected by the prosecuting attorneys of the various judicial districts of this state from among their own members.
    2. The Prosecution Coordination Commission shall be elected by the prosecuting attorneys according to rules adopted by them for a term of one (1) year which shall run from January 1 through December 31 of each year.
  1. The commission members shall select from among their members a chairman, and they shall establish rules and procedures for the effective performance of their duties and responsibilities as set forth in this subchapter.
  2. The commission shall have the following duties and responsibilities:
    1. Accept and evaluate applications for the position of Prosecutor Coordinator and, by a majority vote of its members, appoint from among the applicants considered a Prosecutor Coordinator who shall serve in such capacity at the pleasure of the commission. However, any person serving in the capacity of Prosecutor Coordinator at any of the various times that the commission is elected pursuant to this section may continue to so serve, at the pleasure of the newly elected commission, without further consideration of other applicants;
    2. Advise the Prosecutor Coordinator as to the immediate needs and priorities of the prosecution function throughout the state;
    3. Establish the various duties and responsibilities of the Prosecutor Coordinator beyond those set forth in this subchapter;
    4. Develop long-range educational services and other support programs for the various prosecuting attorneys of this state;
    5. Serve as an advisory committee to the Prosecutor Coordinator for the production and supplementation of an office and trial manual and standardized criminal litigation forms; and
    6. Render assistance and advice in the investigation of organized crime as requested by any organized crime prevention council which may be created on a statewide basis.

History. Acts 1975, No. 925, § 2; A.S.A. 1947, § 24-127.

A.C.R.C. Notes. Acts 2013, No. 1367, § 4, provided: “LEGISLATIVE INTENT. It is the intent of the General Assembly, in the transition to a state-funded deputy prosecuting attorney system, to provide an appropriate and adequate level of legal representation through deputy prosecuting attorneys in all areas of the state. It is recognized by the General Assembly that in many areas of the state, resources have not been available to support deputy prosecuting attorney salaries at the necessary level. With the transition of local funding of deputy prosecuting attorney salaries to state funding, it is not the intent of the General Assembly to adversely affect those districts whose system has been working well or to implement a system which is too inflexible to respond to the needs of each judicial district. Therefore, the Prosecution Coordination Commission is charged with the responsibility of assisting in the maintenance of a system which equitably serves all areas of the state by providing quality deputy prosecuting attorneys.”

Acts 2014, No. 107, § 4, provided: “LEGISLATIVE INTENT. It is the intent of the General Assembly, in the transition to a state-funded deputy prosecuting attorney system, to provide an appropriate and adequate level of legal representation through deputy prosecuting attorneys in all areas of the state. It is recognized by the General Assembly that in many areas of the state, resources have not been available to support deputy prosecuting attorney salaries at the necessary level. With the transition of local funding of deputy prosecuting attorney salaries to state funding, it is not the intent of the General Assembly to adversely affect those districts whose system has been working well or to implement a system which is too inflexible to respond to the needs of each judicial district. Therefore, the Prosecution Coordination Commission is charged with the responsibility of assisting in the maintenance of a system which equitably serves all areas of the state by providing quality deputy prosecuting attorneys.”

Acts 2015, No. 976, § 5, provided: “LEGISLATIVE INTENT. It is the intent of the General Assembly, in the transition to a state-funded deputy prosecuting attorney system, to provide an appropriate and adequate level of legal representation through deputy prosecuting attorneys in all areas of the state. It is recognized by the General Assembly that in many areas of the state, resources have not been available to support deputy prosecuting attorney salaries at the necessary level. With the transition of local funding of deputy prosecuting attorney salaries to state funding, it is not the intent of the General Assembly to adversely affect those districts whose system has been working well or to implement a system which is too inflexible to respond to the needs of each judicial district. Therefore, the Prosecution Coordination Commission is charged with the responsibility of assisting in the maintenance of a system which equitably serves all areas of the state by providing quality deputy prosecuting attorneys.

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

Acts 2016, No. 212, § 4, provided: “LEGISLATIVE INTENT. It is the intent of the General Assembly, in the transition to a state-funded deputy prosecuting attorney system, to provide an appropriate and adequate level of legal representation through deputy prosecuting attorneys in all areas of the state. It is recognized by the General Assembly that in many areas of the state, resources have not been available to support deputy prosecuting attorney salaries at the necessary level. With the transition of local funding of deputy prosecuting attorney salaries to state funding, it is not the intent of the General Assembly to adversely affect those districts whose system has been working well or to implement a system which is too inflexible to respond to the needs of each judicial district. Therefore, the Prosecution Coordination Commission is charged with the responsibility of assisting in the maintenance of a system which equitably serves all areas of the state by providing quality deputy prosecuting attorneys.

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

16-21-204. Prosecutor Coordinator.

  1. There is created the position of Prosecutor Coordinator which shall be filled as specified in § 16-21-203.
  2. In addition to any other duties and responsibilities established by the commission, the Prosecutor Coordinator, for the benefit of the prosecuting attorneys of this state, shall:
    1. Produce and promote in-state training and continuing education programs at such intervals as shall be determined by the commission;
    2. Coordinate interjudicial district investigation and prosecution of organized criminal activities as so requested by police or prosecuting officials of this state or by any organized crime prevention council which may be created;
    3. Develop and supplement, in conjunction with the Criminal Justice Division of the Office of the Attorney General, an office and trial manual, standardized criminal litigation forms, and a comprehensive criminal law brief bank;
    4. Maintain a crisis center for emergency research for and assistance to prosecutors at trial; and
    5. Facilitate an exchange of information between the various prosecuting and deputy prosecuting attorneys and the Office of the Attorney General in the preparation of criminal appeals and in any other matter of mutual concern.

History. Acts 1975, No. 925, § 3; A.S.A. 1947, § 24-128.

16-21-205. Fee reports.

    1. All agencies and public officials receiving fees pursuant to § 5-37-307 or § 16-21-120 shall submit a report to the Prosecutor Coordinator's office monthly.
    2. The Prosecution Coordination Commission shall determine the contents of the report.
    3. This report shall be reviewed by the Prosecutor Coordinator's office.
    1. After three (3) months where the accounts and accounting systems are not reconciled or reports are not received by the Prosecution Coordination Commission, the commission shall have the authority, after a hearing, to suspend an agency's or officer's ability to have a hot check program for failure to comply with good governmental accounting procedures and practices and the reporting requirement mandated by this section.
    2. Any entity with a program suspended shall be reported to the Legislative Joint Auditing Committee.

History. Acts 1993, No. 1306, § 12.

Cross References. Fees from issuing bad checks, § 16-21-120.

Knowingly issuing worthless checks, § 5-37-307.

16-21-206. Additional duties of commission.

In addition to existing duties, the Prosecution Coordination Commission may:

  1. Administer and disburse federal funds, grants, donations, and funds from public and private sources to carry out its responsibilities;
  2. Educate professionals, law enforcement, judges, state agencies, and victim services providers on:
    1. The role of the Arkansas Prosecuting Attorneys Association;
    2. The impact of crime on victims; and
    3. Prosecutor victim advocacy services;
  3. Maintain information on criminal justice information systems for prosecuting attorneys and victim services;
  4. Advise the Governor and the General Assembly as to the long-range and short-range goals and needs concerning crime rates and the criminal justice system and its impact on the victims of crime;
  5. Provide support, coordination, education, and technical assistance on issues of concern to prosecuting attorneys and crime victim services providers;
  6. Provide support, coordination, technical assistance, and training in accounting, programmatic, and service delivery to subgrantees;
  7. Establish peer-review panels in the course of the award and administration of grants; and
  8. Approve the expenditure of funds from the Law Enforcement and Prosecutor Drug Enforcement Training Fund.

History. Acts 1995, No. 1221, § 2.

A.C.R.C. Notes. References to “this subchapter” in §§ 16-21-20116-21-205 may not apply to this section which was enacted subsequently.

16-21-207. [Repealed.]

A.C.R.C. Notes. References to “this subchapter” in §§ 16-21-2016-21-205 may not apply to this section which was enacted subsequently.

Publisher's Notes. This section, concerning peer review of certain prosecution and law enforcement grant applications, was repealed by Acts 2001, No. 1786, § 2. The section was derived from Acts 1995, No. 1221, § 3.

U.S. Code. The Violence Against Women Act, referred to in this section, is codified as a note to 42 U.S.C. § 13701.

Subchapters 3-5 [Reserved.]

[Reserved]

Subchapter 6 — First Judicial District

Effective Dates. Acts 1983, No. 249, §§ 3, 4: effective retroactive to Sept. 1, 1982, for Monroe County; retroactive to Jan. 1, 1983, for other counties. Emergency clause provided: “It has been ascertained and determined by the General Assembly of the State of Arkansas that the expense allowance now provided by law for the prosecuting attorney of the First Judicial Circuit is inadequate to reimburse said prosecuting attorney for expenses incurred in the performance of his duties and that it is essential to the effective and efficient administration of justice in the First Judicial Circuit that the expense allowance of said prosecuting attorney be increased 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.” Became law without Governor's signature, Feb. 24, 1983.

16-21-601. Contingent expense allowance.

In lieu of any other contingent expense allowance provided by law for the Prosecuting Attorney of the First Judicial District, the prosecuting attorney shall receive an expense allowance to be borne by the respective counties of the First Judicial District as follows:

  1. Cross County Such amount as may be approved by the Quorum Court of Cross County, not to exceed one thousand dollars ($1,000) per annum; (2) Lee County Such amount as may be approved by the Quorum Court of Lee County, not to exceed one thousand dollars ($1,000) per annum; (3) Monroe County Such amount as may be approved by the Quorum Court of Monroe County, not to exceed one thousand eight hundred dollars ($1,800) per annum; (4) Phillips County Such amount as may be approved by the Quorum Court of Phillips County, not to exceed one thousand eight hundred dollars ($1,800) per annum; (5) St. Francis County Such amount as may be approved by the Quorum Court of St. Francis County, not to exceed one thousand eight hundred dollars ($1,800) per annum; and (6) Woodruff County Such amount as may be approved by the Quorum Court of Woodruff County, not to exceed one thousand four hundred dollars ($1,400) per annum.

Click to view table.

History. Acts 1983, No. 249, § 1; A.S.A. 1947, § 24-114.12.

16-21-602. Funding of expenses and employees — Definitions.

  1. As used in this section:
      1. “Employee and assistant expenses” includes without limitation the following expenses and related expenses with respect to employees and assistants of the Prosecuting Attorney of the First Judicial District and deputy prosecuting attorneys:
        1. Salaries and benefits;
        2. Social Security;
        3. Matching;
        4. Retirement;
        5. Health insurance; and
        6. Other employee and assistant expenses determined by the prosecuting attorney to be a proper employee and assistant expense.
      2. “Employee and assistant expenses” does not include salaries and benefits for deputy prosecuting attorneys;
    1. “Investigative expenses” means necessary expenses in connection with an investigation incident to a criminal law violation or trial before a court within the First Judicial District that is within the duties of the prosecuting attorney's office; and
    2. “Office expenses” includes without limitation the cost of:
      1. Facilities, equipment, maintenance and operation, service contracts, capital outlay, telephones, copy machines, computers, and printers;
      2. Office supplies, postage, and copying;
      3. Contract labor;
      4. Travel;
      5. The Arkansas Code of 1987 Annotated and Arkansas Model Jury Instructions; and
      6. Other office expenses determined by the prosecuting attorney to be a proper office expense.
  2. Through an annual appropriation at sufficient level for operation, each county within the district shall provide at the county's expense the office expenses, investigative expenses, and employee and assistant expenses of the prosecuting attorney and deputy prosecuting attorneys.

History. Acts 2017, No. 749, § 1.

16-21-603. Phillips County Prosecuting Attorney expenses.

  1. Through an annual appropriation at sufficient level for operation, Phillips County shall provide at the county's expense the office expenses under § 16-21-602(a) in such amount of no less than thirty-five thousand dollars ($35,000) per year as appropriated by the quorum court and approved by the county judge.
    1. The office expenses under § 16-21-602(a) shall be paid in equal monthly installments from the county general fund, and the checks shall be made payable to the office of the Prosecuting Attorney of the First Judicial District or as directed by the prosecuting attorney.
    2. Disbursements shall be made by the prosecuting attorney for the necessary expenses of the office based upon adequate documentation.
  2. The prosecuting attorney may also be allowed additional office expenses upon appropriation of the quorum court and approval of the county judge.
    1. In addition to office expenses, the prosecuting attorney shall be entitled to one (1) secretary and administrative assistant, whose salary shall not be less than twenty-eight thousand dollars ($28,000) per year.
    2. The salary, Social Security, matching, retirement, health insurance, and all related salary expenses of the secretary and administrative assistant shall be paid by Phillips County in accordance with the pay periods and payroll policy of Phillips County.
  3. This section does not prohibit the quorum court in Phillips County from appropriating additional positions, salaries, or expenses greater than the amounts mandated in this section.
  4. The prosecuting attorney shall be allowed additional assistants and employees in Phillips County upon appropriation of the quorum court and approval of the county judge.
  5. The expenses required to be paid by this section are specifically declared to be separate and distinct from the responsibility of Phillips County to pay the contingent expense allowance of the prosecuting attorney as provided in § 16-21-601 and § 16-21-119(b)(5)(A), and as otherwise provided by law.

History. Acts 2017, No. 749, § 2.

Subchapter 7 — Second Judicial District

A.C.R.C. Notes. Acts 1989 (3rd Ex. Sess.), No. 96, § 1, provided:

“In addition to the deputy prosecutor positions created by Arkansas Code Annotated § 16-21-113 and other Arkansas Code provisions, the prosecuting attorney of the Second Judicial District shall have the power to appoint deputy prosecuting attorneys, investigators, case coordinators or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. The investigators and case coordinators shall have jurisdiction throughout the judicial district served, and have the power granted to peace officers by the statutes of this State and may serve process issuing out of all courts within the judicial district.”

Publisher's Notes. Acts 1989 (3rd Ex. Sess.), No. 96, § 2, provided:

“Nothing in this Act shall be construed to prohibit the quorum courts or city governing bodies of the Second Judicial District from providing additional personnel or funds, from whatever sources available, to the prosecuting attorney's office for the Anti-Drug Abuse program. Further, nothing in this Act shall be construed as to imply that the employees authorized herein are employees of the State of Arkansas.”

Effective Dates. Acts 1981, No. 961, § 4: retroactive to Jan. 1, 1981. Became law without Governor's signature, April 8, 1981.

Acts 1987, No. 411, §§ 4, 6: retroactive to Jan. 1, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that the salaries and contingent expense allowances provided for herein are immediately necessary to provide adequate compensation and allowances for the officers provided for herein to assume the effective and efficient administration of justice in the Second Circuit-Chancery Court Circuit 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.” Approved Mar. 25, 1987.

Acts 1991, No. 196, §§ 4, 7, 9: retroactive to January 1, 1991 and thereafter. Feb. 20, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the salaries and contingent expense allowances provided for herein are immediately necessary to provide adequate compensation and allowances for the officers provided for herein to assure the effective and efficient administration of justice in the Second Circuit-Chancery Court Circuit 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. 945, § 10: Apr. 6, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly of the State of Arkansas that the salaries and contingent expense allowances, provided for herein are immediately necessary to provide adequate compensation and allowances for the officers provided for herein to assure the effective and efficient administration of justice in the Second Circuit-Chancery Court Circuit 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.”

16-21-701. Expense allowance.

    1. The Prosecuting Attorney for the Second Judicial District shall be allowed the expenses of his office, including telephone, telegraph, postage, printing, office supplies and equipment, automobiles, office rent, and other expenses which, within the discretion of the prosecuting attorney, may be a proper expense of the office, and also including necessary expenses in connection with any proper investigation instant to any criminal law violation or trials before any grand jury or any court within the judicial district, coming within the duties of his office.
    2. The expenses provided for in subdivision (a)(1) of this section shall be borne by the counties comprising the Second Judicial District as follows:
      1. Clay County $2,300.00;
      2. Craighead County $8,500.00;
      3. Crittenden County $8,500.00;
      4. Greene County $2,703.96;
      5. Mississippi County $8,500.00; and
      6. Poinsett County $3,735.96.
    3. The expenses provided for in this subsection shall be paid on a monthly or quarterly basis by each county.
      1. The Prosecuting Attorney of the Second Judicial District may appoint one (1) or more deputy prosecuting attorneys for Crittenden County at a combined salary not to exceed one hundred seventy thousand dollars ($170,000) per annum, and in such amounts within the total amounts provided in this subsection as may be designated by the prosecuting attorney, plus a combined contingent expense allowance in the amount established by the quorum court not to exceed fifty thousand dollars ($50,000) per annum.
      2. The salaries provided for in this subsection shall be paid by the county court in twenty-four (24) semimonthly installments from the county general fund, and the expense allowance shall be paid monthly in an amount necessary to provide office rental, postage, printing, office supplies, equipment, stationery, secretarial assistance, automobile operation, and other proper expenses supported by written itemized claims filed by the deputy prosecuting attorney with the county judge and subject to the approval of the county judge.
      1. Expenses actually incurred by the deputy prosecuting attorney or attorneys in Crittenden County in excess of the contingent expense allowance provided for such attorney or attorneys shall be paid upon itemized claims filed by such deputy or deputies.
      2. The expense and allowances provided in subdivision (b)(1) of this section shall be in addition to any necessary expense incurred in connection with any proper investigation incident to violations or alleged violations of the criminal laws or any hearing or trial before a grand jury or any court, including expenses of obtaining evidence and securing attendance of witnesses from within or outside of the State of Arkansas and any unusual travel expenses incurred in connection with the duties of his office, which shall be paid by the county from the county general revenue fund upon the filing of a proper claim by the deputy prosecuting attorney or by the person or firm entitled to compensation therefor and having the approval of the deputy prosecuting attorney, the prosecuting attorney, or the court in which such matter is pending.
    1. It is not the purpose of this subsection to repeal any laws now or hereafter enacted fixing the fees collectible as prosecuting attorney's fees, but rather to update and make possible a more efficient administration of justice and county government. All courts shall collect the fees heretofore provided by law as prosecuting attorney's fees and all such fees collected shall be paid into the county treasury as required by law regarding funds belonging to the county. It is the explicit legislative intent to provide the salaries and expense allowances set forth in this subsection without regard to the amount of prosecuting attorney's fees and emoluments earned or collected in the counties affected by the subsection. However, nothing in this subsection shall be so interpreted as to preclude Crittenden County from paying additional expense allowances in addition to those enumerated in this subsection upon proper action of the appropriate quorum courts.

History. Acts 1981, No. 961, § 2; A.S.A. 1947, § 24-114.16; Acts 1987, No. 343, § 1; 1987, No. 411, § 1; 1991, No. 196, §§ 1, 5; 1995, No. 945, §§ 1-3, 5; 1999, No. 1038, § 1.

A.C.R.C. Notes. The operation of subdivision (b)(3) may be affected by the enactment of Acts 1995, No. 1256.

Acts 1995, No. 945, § 4, provided:

“The provisions of this act shall be retroactive to January 1, 1995, and thereafter.”

Acts 1995, No. 945, § 6, provided:

“Beginning January 1, 1995 the clerk-secretary-case coordinator of the Ninth Circuit-Chancery Court Circuit West shall receive an annual salary of not less than sixteen thousand five hundred dollars ($16,500), nor more than twenty-five thousand dollars ($25,000). The salaries and expenses shall be paid by each county comprising the Ninth Circuit-Chancery Court Circuit West with the proportion to be paid by each county to be determined by the judge of the Circuit with consideration of the assessed value of all real and personal property in each county, the population of each county, and the case load of the court in each county. The salary provided for in this act shall be paid by each county as herein specified in equal monthly payments on the first day of each month.”

Amendments. The 1995 amendment repealed former (a)(2); redesignated former (b) and (c) as (a)(2) and (3); substituted “subdivision (a)(1)” for “subsection (a)” in present (a)(2); substituted “this subsection” for “this section” in present (a)(3); and added present (b).

The 1999 amendment substituted “one hundred seventy thousand dollars ($170,000)” for “one hundred fifty thousand dollars ($150,000)” in (b)(1)(A); and made stylistic changes.

16-21-702. Disposition of fees — Payment of expenses.

  1. All fees earned and payable to the deputy prosecuting attorneys in Crittenden County under laws now or hereafter in effect, including fees under the Arkansas Hot Check Law, § 5-37-301 et seq., shall be deposited in the county treasury and shall be credited to the county general fund.
  2. Expenses actually incurred by the deputy prosecuting attorney or attorneys in Crittenden County in excess of the contingent expense allowance provided for the attorney or attorneys shall be paid upon itemized claims filed by the deputy or deputies.
  3. The expenses and allowances provided in § 16-21-701(a)(2) shall be in addition to any necessary expense incurred in connection with any proper investigation incident to violations or alleged violations of the criminal laws or any hearing or trial before a grand jury or any court, including expenses of obtaining evidence and securing attendance of witnesses from within or outside of the State of Arkansas and any unusual travel expenses incurred in connection with the duties of his office, which shall be paid by the county from the county general revenue fund upon the filing of a proper claim by the deputy prosecuting attorney, or by the person or firm entitled to compensation therefor and having the approval of the deputy prosecuting attorney, the prosecuting attorney, or the court in which the matter is pending.

History. Acts 1991, No. 196, § 2.

A.C.R.C. Notes. Former § 16-21-702, concerning the disposition of fees — payment of expenses, is deemed to be superseded by this section. The former section was derived from: Acts 1987, No. 411, § 2.

Publisher's Notes. Acts 1991, No. 196, § 4 provided that the provisions of the act shall be retroactive to January 1, 1991, and thereafter.

16-21-703. Collection of fees.

  1. It is not the purpose of this section, § 16-21-701(a)(2), and § 16-21-702 to repeal any laws now or hereafter enacted fixing the fees collectible as prosecuting attorneys' fees, but rather to update and make possible a more efficient administration of justice and county government.
  2. All courts shall collect the fees heretofore provided by law as prosecuting attorneys' fees, and all such fees collected shall be paid into the county treasury as required by law regarding funds belonging to the county.
  3. It is the explicit legislative intent to provide the salaries and expense allowances set forth in this section, § 16-21-701(a)(2), and § 16-21-702 without regard to the amount of prosecuting attorneys' fees and emoluments earned or collected in the counties affected by this section, § 16-21-701(a)(2), and § 16-21-702. However, nothing in this section, § 16-21-701(a)(2), and § 16-21-702 shall be so interpreted as to preclude Crittenden County from paying additional expense allowances in addition to those enumerated herein upon proper action of the appropriate quorum courts.

History. Acts 1991, No. 196, § 3.

A.C.R.C. Notes. Former § 16-21-703, concerning the collection of fees, is deemed to be superseded by this section. The former section was derived from: Acts 1987, No. 411, § 3.

Publisher's Notes. Acts 1991, No. 196, § 4, provided that the provisions of the act shall be retroactive to January 1, 1991, and thereafter.

Subchapter 8 — Third Judicial District

Effective Dates. Acts 1981, No. 945, § 10: retroactive to Jan. 1, 1981.

Acts 1993, No. 240, § 5: Noted Feb. 26, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law establishing the salary of deputy prosecuting attorney for Randolph County is inadequate; that this act will give Randolph County more flexibility in setting the salary for its deputy prosecuting attorney; and that until this act goes into effect the county will not have the necessary flexibility for establishing an adequate salary for the deputy prosecuting attorney. 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. 1242, §§ 5, 6: effective retroactively to Jan. 1, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act is essential to the operation of the criminal justice system within the Third Judicial District. It is also determined that the prosecuting attorney of the Third Judicial District is in need of these personnel in order to fight the war on drugs and combat crime in the Third Judicial District. 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. 458, § 3: Mar. 2, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act is essential to the operation of the criminal justice system in the Third Judicial District; that this act will provide needed personnel to the prosecuting attorney of the Third Judicial District; and that this act is immediately necessary because the additional personnel are critical to the effort to combat crime in the Third Judicial District. 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.”

16-21-801. Contingent expense allowance.

  1. The office of the Prosecuting Attorney of the Third Judicial District shall receive not less than a contingent expense reimbursement for the expenses of his or her office, including, but not limited to, telephone, telegraph, postage, printing, office supplies and equipment, office rent, stationery, traveling expense, special service, operation of automobiles, and such other expense which, within the discretion of the prosecuting attorney, may be a proper expense of the office, and also including necessary expenses in connection with any proper investigation incident to any criminal law violation or trials before any grand jury or any court within the judicial district coming within the duties of his or her office.
  2. The expenses provided for in subsection (a) of this section shall be borne by the counties constituting the Third Judicial District as follows:
    1. Jackson $6,250 per year;
    2. Lawrence $6,250 per year;
    3. Randolph $6,250 per year; and
    4. Sharp $6,250 per year.
    1. The expenses provided for shall be paid in equal quarterly installments from each county general fund, and the checks shall be made payable to the office of the Prosecuting Attorney of the Third Judicial District.
    2. Disbursements shall be made by the prosecuting attorney for the necessary expenses of the office based upon adequate documentation.
    1. Each deputy prosecuting attorney of the Third Judicial District shall receive a reimbursement for the expenses of his or her office, including, but not limited to, maintenance and operation, capital outlay, office supplies, telephone, postage, copying, insurance, and library.
      1. Disbursements shall be made for the necessary expenses of the office based upon adequate documentation and upon appropriation of the respective county's quorum court and approval of each respective county judge.
      2. The prosecuting attorney or deputies may also be allowed additional expenses upon appropriation of the quorum court and approval of each respective county judge.
  3. The Prosecuting Attorney of the Third Judicial District shall be entitled to the following assistants and employees:
        1. One (1) administrative assistant, whose salary shall not be less than twenty-four thousand five hundred dollars ($24,500) per annum.
        2. The salary is to be paid in accordance with the pay periods and payroll policy of Jackson County.
        1. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by Jackson County.
        2. The counties of Lawrence, Randolph, and Sharp each shall reimburse Jackson County for a pro rata share of the salary, Social Security, matching retirement, insurance, and all related salary expenses paid for the position in subdivision (e)(1)(A)(i) of this section;
        1. One (1) part-time secretary, whose salary shall not be less than ten thousand dollars ($10,000) per annum.
        2. The salary is to be paid in accordance with the pay periods and payroll policy of Lawrence County.
      1. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by Lawrence County;
        1. One (1) full-time secretary, whose salary shall not be less than ten thousand dollars ($10,000) per annum.
        2. The salary is to be paid in accordance with the pay periods and payroll policy of Randolph County.
      1. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by Randolph County;
        1. One (1) full-time secretary, whose salary shall not be less than ten thousand dollars ($10,000) per annum.
        2. The salary is to be paid in accordance with the pay periods and payroll policy of Sharp County.
      1. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by Sharp County; and
        1. One (1) full-time Jackson County — Third Judicial District secretary, whose salary shall not be less than twenty thousand dollars ($20,000) per annum.
        2. The salary is to be paid in accordance with the pay periods and payroll policy of Jackson County.
        1. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by Jackson County.
        2. The counties of Lawrence, Randolph, and Sharp each shall reimburse Jackson County for a one-eighth (1/8) share of the salary, Social Security, matching retirement, insurance, and all related salary expenses paid for this position.
  4. Nothing in this section shall prevent or prohibit each quorum court in the respective counties in the Third Judicial District from appropriating additional positions, salaries, salary matching requirements, or expenses greater than the amounts mandated in this section should they deem it necessary to do so.
  5. The Prosecuting Attorney of the Third Judicial District shall be allowed additional assistance and employees in each county upon appropriation of the quorum court and approval of the county judge in each respective county.

History. Acts 1981, No. 945, §§ 8, 9; A.S.A. 1947, §§ 24-114.8b, 24-114.8c; Acts 1987, No. 120, §§ 1, 2; 1989, No. 394, § 1; 1993, No. 240, § 1; 1999, No. 1242, § 1; 2005, No. 458, § 1.

A.C.R.C. Notes. As originally amended by Acts 1993, No. 240, § 1, subsection (d) also provided, in part, that the salary and expenses provided therein shall apply retroactively to January 1, 1993.

Acts 2005, No. 458, § 2, provided:

“The provisions of this act shall be retroactive to January 1, 2005.”

Amendments. The 1993 amendment, all in (d), substituted “a minimum of twelve thousand five hundred dollars ($12,500) and a maximum of twenty thousand dollars ($20,000)” for “eleven thousand dollars ($11,000),” substituted “a minimum of six thousand dollars ($6,000) and a maximum of ten thousand dollars ($10,000)” for “three thousand dollars ($3,000),” and deleted the third sentence.

The 1999 amendment, in (a), inserted “Office of the” preceding “Prosecuting Attorney” and substituted “shall receive not less than a contingent expense reimbursement for the expenses of his office, including, but not limited to” for “shall be allowed the contingent expense of his office, including”; in (b), substituted “$5,000” for “$2,700” twice, “$5,000” for “$2,400” and “$5,000” for “$200”; rewrote (c) and (d); added (e)-(g); and made stylistic changes.

Subchapter 9 — Fourth Judicial District

Effective Dates. Acts 1981, No. 992, § 8: became law without Governor's signature, Apr. 8, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly of Arkansas that the increase in the volume of crime, together with the establishment and maintenance in Washington and Madison counties of municipal courts, circuit courts, juvenile courts, and additional county civil litigation all of which require the services of the prosecuting attorney's office, that the personnel and funds previously authorized are now insufficient to pay the salaries and contingency expenses required of the prosecuting attorney's office. Therefore, an emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in force from and after its passage and approval.”

16-21-901. Office space, etc. — Contingent expense allowance.

  1. The Prosecuting Attorney of the Fourth Judicial District shall be furnished, by Washington County, suitable office space, telephone expenses, postage, printing, office supplies, and equipment.
    1. In addition, the prosecuting attorney shall be allowed two thousand five hundred dollars ($2,500) per annum as a contingent expense of his office for traveling expenses, special service, operation of automobiles, and such other expenses which, within the discretion of the prosecuting attorney, may be proper expenses of the office, and also including necessary expense in connection with any proper investigation incident to any criminal law violation or trials before any grand jury, or any court within the Fourth Judicial District, coming within the duties of his office.
    2. The contingent expense is to be paid by Washington County in an amount of two thousand three hundred dollars ($2,300) per year and Madison County in an amount of two hundred dollars ($200) per year from the general revenue fund. However, the annual amount shall be paid in equal monthly installments by each county.

History. Acts 1981, No. 992, § 2; A.S.A. 1947, § 24-114.7.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

Subchapter 10 — Fifth Judicial District

Effective Dates. Acts 1983, No. 485, §§ 8, 11: July 1, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that there has been an increase in the rate of crime in the State and that in order to curb this rise in the crime rate and to promote the orderly administration of criminal justice in the Fifth Judicial Circuit, it is necessary that this Act become effective July 1, 1983.”

Acts 1993, No. 878, § 12: Noted: Apr. 4, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that this act is essential to the operation of criminal justice within the Fifth Judicial District; that the Prosecuting Attorney of the Fifth Judicial Circuit is in need of personnel and expense funding in order to fight the war on crime. 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.”

16-21-1001. Operating expenses.

  1. The Prosecuting Attorney of the Fifth Judicial District shall be entitled to an operating expense of not less than seventeen thousand five hundred dollars ($17,500) to cover the cost of printing, supplies, equipment, janitorial services, cleaning supplies, food, service contracts, accounting, postage, photocopies, travel, training, utilities, rent, juror and witness fees, and such other expenses which within the discretion of the prosecuting attorney may be proper expenses of the office in connection with the investigation and prosecution of criminal activity within the district. Said expenses shall be paid in equal monthly installments from the Pope County general fund.
  2. At the end of each quarter, one-third (1/3) of said sum shall be reimbursed to Pope County by Johnson County and Franklin County equally, being one-sixth (1/6) each.
  3. In addition, the telephone bill shall be submitted to the county for payment, this payment to be in addition to the operating expenses set forth in subsection (a) of this section.

History. Acts 1983, No. 485, § 4; A.S.A. 1947, § 24-114.13a; Acts 1993, No. 878, § 3.

Amendments. The 1993 amendment deleted “telephone” following “accounting” and made minor punctuation changes in the first sentence of (a), and added the second sentence; deleted former (b)(1); added “said” preceding “sum” in (b) and added (c).

Subchapter 11 — Sixth Judicial District

A.C.R.C. Notes. Acts 1997, No. 522, § 1, began:

“Effective January 1, 1997 and thereafter, Arkansas Code Annotated Title 16, Chapter 21, Subchapter 11 is amended to read as follows:”

Publisher's Notes. Former subchapter 11 was repealed by Acts 1993, No. 997, § 8. The subchapter was derived from the following sources:

16-21-1101. Acts 1975, No. 870, § 1; A.S.A. 1947, § 24-119n.

16-21-1102. Acts 1975, No. 870, § 2; 1987, No. 542, §§ 1, 2; 1989, No. 656, §§ 1-3; 1991, No. 819, § 1.

16-21-1103. Acts 1989, No. 656, §§ 4, 9; 1991, No. 819, § 2.

16-21-1104. Acts 1989, No. 656, § 6.

16-21-1105. Acts 1989, No. 656, § 7.

16-21-1106. Acts 1989, No. 656, § 8.

16-21-1107. Acts 1989, No. 656, § 5.

16-21-1108. Acts 1991, No. 758, § 1.

Former § 16-21-1104 was also previously repealed by Acts 1991, No. 904, § 9.

Effective Dates. Acts 1995 (1st Ex. Sess.), No. 13, § 13: Oct. 23, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state; and it is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible, and the lack of reliable data on the current costs of the state judicial system prohibits any comprehensive change in the funding of the system at this time. 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. 1234, § 7: Apr. 8, 1999, retroactive to January 1, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act is essential to the operation of the criminal justice system within the Sixth Judicial District. It is also determined that the prosecuting attorney of the Sixth Judicial District is in need of these personnel in order to fight the war on drugs and combat crime in the Sixth Judicial District. 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.”

Act 2005, No. 2201, § 12: Apr. 13, 2005. Emergency Clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Legislative Joint Auditing Committee and the Division of Legislative Audit provide essential auditing and investigative services to the General Assembly and the State of Arkansas; that to avoid confusion, the General Assembly finds it is necessary to combine the Arkansas Code provisions concerning the Division of Legislative Audit and the local audit section of the division in one Arkansas Code chapter; that to avoid certain undue hardships on public entities of the state, it is also necessary for the General Assembly to provide a basis of financial statement presentation for certain public entities; that the American Institute of Certified Public Accountants' Statement on Auditing Standards Number 99 regarding the detection of fraud requires auditors to document unsubstantiated allegations of fraud in their working papers; and that this act is immediately necessary because the General Assembly finds that the public disclosure of such unsubstantiated allegations do not serve a public purpose and may cause irreparable harm to innocent individuals and public employees. 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.”

16-21-1101. Applicability.

This subchapter shall apply to the Sixth Judicial District, which is composed of Pulaski County and Perry County.

History. Acts 1993, No. 997, § 1; 1995, No. 803, § 1; 1997, No. 522, § 1.

Amendments. The 1995 amendment made no change in this section.

The 1997 amendment made no change in this section.

16-21-1102. Assistants and employees.

  1. The Prosecuting Attorney of the Sixth Judicial District shall be entitled to the following assistants and employees:
    1. To be paid by the county in which they serve:
      1. A minimum of thirty-five (35) deputy prosecuting attorneys, whose salaries shall be as follows:
        1. One (1) chief deputy at not less than seventy thousand three hundred fifty-five dollars ($70,355);
        2. Three (3) senior deputies at not less than forty-five thousand seven hundred one dollars ($45,701);
        3. A minimum of seven (7) division chiefs at not less than forty thousand one hundred dollars ($40,100);
        4. A minimum of eight (8) staff attorneys at not less than thirty-five thousand two hundred dollars ($35,200);
        5. A minimum of fourteen (14) staff attorneys at not less than thirty thousand nine hundred dollars ($30,900); and
        6. Two (2) trial attorneys at not less than forty thousand one hundred dollars ($40,100);
        1. A minimum of eight (8) investigators as follows:
          1. One (1) chief investigator at not less than twenty-two thousand four hundred one dollars ($22,401); and
          2. Seven (7) investigators at not less than twenty thousand seven hundred dollars ($20,700).
        2. In addition to the investigators listed in subdivision (a)(1)(B)(i) of this section by salary, the prosecuting attorney shall have the authority to appoint other investigators as necessary for the administration of justice who shall serve without pay.
          1. All investigators authorized and so appointed shall have the authority to issue process, serve warrants, and possess all law enforcement officer powers.
          2. They shall be certified by the Arkansas Commission on Law Enforcement Standards and Training and shall be defined as public safety members under Arkansas law.
          3. In the event that investigators shall issue process or serve warrants, the prosecutor's office shall be entitled to receive the same fee as provided in § 21-6-307, which shall be deposited into the hot check fees account;
      2. A minimum of forty-three (43) support personnel whose salaries shall be as follows:
        1. Two (2) lead case clerks at not less than sixteen thousand seven hundred dollars ($16,700);
        2. Twenty (20) case clerks at not less than fifteen thousand four hundred one dollars ($15,401);
        3. One (1) administrative coordinator at not less than thirty thousand nine hundred dollars ($30,900);
        4. One (1) budget administrator at not less than twenty-seven thousand one hundred dollars ($27,100);
          1. Two (2) executive secretaries who shall serve at the will of the prosecuting attorney.
          2. The executive secretaries shall receive a salary of not less than seventeen thousand nine hundred ninety-nine dollars ($17,999);
        5. One (1) hot check administrator at not less than twenty-two thousand four hundred one dollars ($22,401);
        6. Three (3) hot check accounting clerks III at not less than seventeen thousand nine hundred ninety-nine dollars ($17,999);
        7. One (1) victim assistance program coordinator at not less than twenty-seven thousand one hundred dollars ($27,100);
        8. One (1) volunteer coordinator at not less than twenty-four thousand six hundred dollars ($24,600);
        9. A minimum of seven (7) victim assistance case coordinators at not less than seventeen thousand nine hundred ninety-nine dollars ($17,999);
        10. One (1) systems analyst at not less than thirty-four thousand four hundred dollars ($34,400);
        11. Two (2) youth resource officers at not less than seventeen thousand nine hundred ninety-nine dollars ($17,999); and
        12. One (1) precharging division supervisor at not less than twenty-three thousand six hundred fifty-three dollars ($23,653);
      1. One (1) part-time deputy prosecuting attorney whose duties shall be to represent the office of the Prosecuting Attorney of the Sixth Judicial District in all cases involving food stamp fraud and Aid to Families with Dependent Children fraud referred to the prosecuting attorney by the Department of Human Services and any other responsibilities that may be delegated to him by the prosecuting attorney.
      2. The Prosecuting Attorney of the Sixth Judicial District shall contract with the Department of Human Services to determine the compensation of the deputy prosecuting attorney to be paid by the Department of Human Services.
      3. The part-time deputy prosecuting attorney so appointed shall be permitted to engage in the private practice of law in the area of civil cases only.
      4. At the discretion of the prosecuting attorney, this part-time deputy prosecuting attorney may be delegated other duties and made a full-time deputy prosecuting attorney and paid therefor from the existing appropriation for full-time deputy prosecuting attorneys;
    2. Four (4) deputy prosecuting attorneys, to be paid by the Prosecutor Coordinator and not through quorum court appropriations, to handle criminal and civil commitments, including involuntary admissions and alcohol and narcotic commitments and insanity acquittees and other deputy prosecuting attorney duties as requested;
    3. The prosecuting attorney may hire part-time, temporary, contract, or permanent paralegals, law clerks, or deputy prosecuting attorneys as authorized by the quorum court or provided for by law if deemed necessary for the proper administration of justice and for the efficient operation of the office of the Prosecuting Attorney of the Sixth Judicial District;
    4. The prosecuting attorney shall have the power to appoint additional deputy prosecuting attorneys and other employees at such salaries as are authorized in grant awards from the Department of Finance and Administration, including, but not limited to, the federal Drug Law Enforcement Program Anti-Abuse Act of 1986, as amended, or its successor, or any other grant funds so awarded; and
    5. In addition to the deputy prosecuting attorney positions created by this subchapter or any other Arkansas Code provisions, the Prosecuting Attorney of the Sixth Judicial District shall have the authority to contract at such salary or compensation amounts as may be available or appropriated by the quorum court for such legal services as are necessary, to include, but not be limited to, asset forfeiture actions.
    1. The prosecuting attorney shall have the power to appoint the assistants and employees authorized in subsection (a) of this section without confirmation of any court or tribunal.
    2. Deputy prosecuting attorneys and other staff members so designated in this subchapter shall be considered law enforcement officers for all protective, emergency, investigative, and communication purposes, either individually or in coordination with interagency cooperative investigations and operations.
    3. Deputy prosecuting attorneys duly appointed shall have such authority as conferred by the prosecuting attorney to perform any official acts so designated in all counties within the district.
      1. The Pulaski County Quorum Court shall annually appropriate funds sufficient to cover salaries, maintenance and operations expenditures, and capital outlay as required by the prosecuting attorney for the administration of justice.
      2. All of the salaries shall be paid by Pulaski County.
      3. When the Pulaski County Quorum Court raises salaries for Pulaski County employees, it shall also raise salaries an equivalent amount for the above employees.
      4. Those employees covered by this subchapter shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.

History. Acts 1993, No. 997, § 2; 1995, No. 803, § 2; 1997, No. 522, § 1; 1999, No. 1234, § 1.

Amendments. The 1995 amendment rewrote (a); inserted the subdivision (b)(1) and (2) designations; and redesignated former (c) and (d) as (b)(3) and (4), respectively.

The 1997 amendment substituted “thirty-three (33)” for “thirty-two (32)” in (a)(1); rewrote (a)(1)(A); substituted “seven (7)” for “six (6)” in (a)(1)(C); substituted “thirty-four (34)” for “thirty-two (32)” in (a)(3); rewrote (a)(3)(D); substituted “Two (2) hot check account clerks” for “One (1) hot check account clerk” in (a)(3)(G); added (a)(3)(K); inserted “and insanity acquittees and other deputy duties as requested” following “narcotic commitments” in (a)(4)(B); and made minor stylistic changes.

The 1999 amendment rewrote (a).

U.S. Code. The reference in this section to the Drug Law Enforcement Program Anti-Abuse Act of 1986 is probably a reference to a former version of 42 U.S.C. § 3796h, repealed in 1988, which contained provisions relating to grants for drug law enforcement programs.

Case Notes

Investigators.

The powers afforded to special investigators of the Sixth Judicial District who operate without pay under subdivision (a)(2)(C) of this section appear to be significant; such investigators are authorized to use their official powers throughout the district, not merely within the city boundaries where they are employed. Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994).

In subdivision (a)(2)(C) of this section, the plain and ordinary meaning of the language “all law enforcement officer powers” includes without question the power to stop an individual suspected of driving while intoxicated and to detain him. Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994).

16-21-1103. Representation of Perry County.

  1. The Prosecuting Attorney of the Sixth Judicial District may designate a part-time deputy prosecuting attorney to represent the office of the Prosecuting Attorney in Perry County.
  2. Perry County shall reimburse the deputy prosecuting attorney on a monthly basis for said representation in Perry County.
    1. The prosecuting attorney may also choose to designate various deputy prosecuting attorneys on his staff to represent the office of the Prosecuting Attorney in Perry County.
    2. When this is done, Perry County shall reimburse the office of the Prosecuting Attorney of the Sixth Judicial District for said representation in Perry County.
  3. The Perry County Quorum Court shall appropriate not less than ten thousand nine hundred seven dollars ($10,907) annually for said representation, as determined by the Quorum Court of Perry County.

History. Acts 1993, No. 997, § 3; 1995, No. 803, § 3; 1995, No. 1256, § 20; 1995 (1st Ex. Sess.), No. 13, § 4; 1997, No. 522, § 1.

Amendments. The 1995 amendment by No. 803 substituted “ten thousand nine hundred seven dollars ($10,907)” for “ten thousand dollars ($10,000)” in present (d).

The 1995 amendment by No. 1256, as amended by Acts 1995 (1st Ex. Sess.), No. 13, § 4, repealed former (b); and added the present subsection designations.

The 1997 amendment made no changes to this section.

16-21-1104. Additional personnel or funds.

Nothing in this subchapter shall be construed to prohibit the Quorum Court of Pulaski County and the Quorum Court of Perry County from providing additional personnel or funds from whatever source available, whether federal, state, county, or municipal, if deemed necessary for the efficient operation of the office of the Prosecuting Attorney of the Sixth Judicial District.

History. Acts 1993, No. 997, § 4; 1995, No. 803, § 4; 1997, No. 522, § 1.

Amendments. The 1995 amendment made no change in this section.

The 1997 amendment made no change in this section.

16-21-1105. Supplemental funding.

  1. The state may provide for supplemental funding directly to the office of the Prosecuting Attorney of the Sixth Judicial District, including, but not limited to, funds collected under the provisions of §§ 5-64-505, 16-21-120, and 21-6-411.
  2. These funds shall be in addition to appropriated funds of the local quorum court, but subject to state audit.

History. Acts 1993, No. 997, § 5; 1995, No. 803, § 5; 1997, No. 522, § 1.

Amendments. The 1995 amendment added the subsection designations.

The 1997 amendment made no change in this section.

16-21-1106. Local appropriation for Pulaski County Division.

The Pulaski County Quorum Court shall appropriate not less than one hundred eighty-two thousand two hundred fifty dollars ($182,250) in funds for the maintenance and operations account of the Pulaski County Division of the office of the Prosecuting Attorney of the Sixth Judicial District.

History. Acts 1993, No. 997, § 6; 1995, No. 803, § 6; 1997, No. 522, § 1.

Amendments. The 1995 amendment substituted “two hundred nineteen thousand two hundred dollars ($219,200)” for “one hundred sixty-three thousand eight hundred eighty-nine dollars ($163,889).”

The 1997 amendment substituted “one hundred eighty-two thousand two hundred fifty dollars ($182,250)” for “two hundred nineteen thousand two hundred dollars ($219,200).”

16-21-1107. Appointment of employees.

  1. The Prosecuting Attorney of the Sixth Judicial District shall have the power to appoint the following employees without confirmation of any court or tribunal, if the prosecutor receives a federal grant award therefor, at such salaries as are indicated in this subsection or as are authorized in grants awarded from the Drug Law Enforcement Program of the Office of Intergovernmental Services of the Department of Finance and Administration:
  2. The Prosecuting Attorney of the Sixth Judicial District shall have the power to appoint deputy prosecuting attorneys to handle cases involving violence against women if the prosecutor receives a federal grant award therefor pursuant to the Violence Against Women Act of 1994, Pub. L. No. 103-322, without confirmation of any court or tribunal, at such salaries as are authorized in the grant.
    1. The positions created in subsection (a) of this section shall be in addition to those created by §§ 16-21-113 and 16-21-1102, and other Arkansas Code provisions.
    2. In the event additional funding becomes available, the prosecuting attorney may employ such additional employees and have expense allowances as are authorized in the grant awards of the program.
  3. All law enforcement investigative positions shall have peace officer jurisdiction throughout the Sixth Judicial District and may serve process issuing out of all courts within the state.
      1. The Prosecuting Attorney of the Sixth Judicial District shall administer the grant.
      2. Expenditures may be made only for purposes of the grant.
      3. All moneys from the grant are:
        1. Appropriated on a continuing basis;
        2. Subject to the prosecuting attorney's financial management system; and
        3. Subject to audit by Arkansas Legislative Audit.
    1. It is the explicit legislative intent that nothing in this section or §§ 16-21-1108 and 16-21-1109 shall be construed to decrease, supplant, or be substituted for employee positions, salaries, expenses, maintenance and operation expenses, or capital equipment expenditures which the office of the Prosecuting Attorney of the Sixth Judicial District will receive through quorum court appropriation from and after January 1, 1999.

Drug unit division chief $43,372 Civil litigation attorney $36,608 Trial attorney $38,071 Financial investigator $32,972 Civil litigation investigator $25,056 Administrative assistant $26,275 Secretary $20,248

Click to view table.

History. Acts 1993, No. 997, § 7; 1995, No. 803, § 7; 1997, No. 522, § 1; 1999, No. 1234, § 2; 2005, No. 2201, § 9.

Amendments. The 1995 amendment rewrote the salaries in (a); inserted the subdivision designations in (b); rewrote (c); inserted the subdivision designations in (d)(1); and substituted “February 1, 1995” for “February 1, 1993” in (d)(2).

The 1997 amendment, in (a), inserted “federal” preceding “grant award,” and rewrote grant award amounts; inserted subsection (b) and redesignated the remaining subsections accordingly; and substituted “January 1, 1997” for “February 1, 1995” in (e)(2).

The 1999 amendment rewrote (a); added “January 1, 1999” at the end of (e)(2); and made stylistic changes.

U.S. Code. The Violence Against Women Act, referred to in this section, is codified as a note under 42 U.S.C. § 13701.

16-21-1108. Federal funds.

The office of the Prosecuting Attorney of the Sixth Judicial District is authorized to receive funds from the federal government in the name of the office of the Prosecuting Attorney of the Sixth Judicial District and to receive both federal and state asset forfeiture funds and to utilize and expend those funds for such purposes as are allowed for by law or specified in § 5-64-505.

History. Acts 1993, No. 997, § 7; 1995, No. 803, § 8; 1997, No. 522, § 1.

Amendments. The 1995 amendment made no change in this section.

The 1997 amendment inserted “office of” preceding “prosecuting attorney.”

16-21-1109. Hot check funds.

The office of the Prosecuting Attorney of the Sixth Judicial District is hereby authorized to establish a hot check program pursuant to state statute to collect fees for the hot check fund as authorized by the General Assembly and to expend those funds in official uses for the benefit of the office.

History. Acts 1993, No. 997, § 7; 1995, No. 803, § 9; 1997, No. 522, § 1.

Amendments. The 1995 amendment made no change in this section.

The 1997 amendment made no change in this section.

Subchapter 12 — Seventh Judicial District

A.C.R.C. Notes. Acts 1989 (3rd Ex. Sess.), No. 97, § 1, provided:

“In addition to the deputy prosecutor positions created by Arkansas Code Annotated § 16-21-113 and other Arkansas Code provisions, the prosecuting attorney of the Seventh Judicial District shall have the power to appoint deputy prosecuting attorneys, investigators, case coordinators or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. The investigators and case coordinators shall have jurisdiction throughout the judicial district served, and have the power granted to peace officers by the statutes of this State and may serve process issuing out of all courts within the judicial district.”

Publisher's Notes. Acts 1989 (3rd Ex. Sess.), No. 97, § 2, provided:

“Nothing in this Act shall be construed to prohibit the quorum courts or city governing bodies of the Seventh Judicial District from providing additional personnel or funds, from whatever sources available, to the prosecuting attorney's office for the Anti-Drug Abuse program.”

Effective Dates. Acts 1975, No. 188, §§ 4, 6: retroactive to Jan. 1, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the effective and efficient administration of justice in the Seventh Judicial District in the State of Arkansas that the compensation of deputy prosecuting attorneys in said district be specifically prescribed by law, and that the contingent expense allowance of the prosecuting attorney in said district be prescribed and allocated to the various counties in the district; that this Act is immediately necessary 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 1977, No. 496, §§ 2, 3: retroactive to Jan. 1, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the effective and efficient administration of justice in the Seventh Judicial District in the State of Arkansas that the contingent expense allowance of the prosecuting attorney in said district be increased and that the increase be given effect at the earliest possible date. 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 1979, No. 458, § 5: Mar. 21, 1979. Emergency clause provided: “It is hereby found and determined by the Seventy-Second General Assembly that the salaries of the support personnel and the expense allowance for the prosecutor of the Seventh Judicial Circuit are inadequate and that this Act is immediately necessary to provide for the efficient administration of justice in said circuit. 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. 1180, § 5: Apr. 8, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act is essential to the operation of the criminal justice system within the Seventh Judicial District. It is also determined that the prosecuting attorney of the Seventh Judicial District is in need of these personnel in order to fight the war on drugs and combat crime in the Seventh Judicial District. 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.”

16-21-1201. Contingent expense allowance.

  1. The Prosecuting Attorney of the Seventh Judicial District shall be entitled to a contingent expense allowance of not less than eleven thousand sixty-three dollars ($11,063) per annum to be paid by the respective counties of the Seventh Judicial District as follows:
    1. Saline County $7,463;
    2. Hot Spring County $2,400; and
    3. Grant County $1,200.
  2. Saline County may at any time increase its contribution to such contingent expense allowance.

History. Acts 1975, No. 188, § 3; 1977, No. 496, § 1; 1979, No. 458, § 1; 1981, No. 986, § 1; A.S.A. 1947, § 24-114.9.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-21-1202. Operating expenses — Staff.

  1. The office of the Prosecuting Attorney of the Seventh Judicial District shall receive not less than a contingent expense reimbursement for the expenses of the office including, but not limited to, maintenance and operation, capital outlay, office supplies, telephone, postage, copying, insurance, and library in the following amounts to be borne by the respective counties of the of the Seventh Judicial District:
    1. Saline County $47,359;
    2. Grant County $14,800; and
    3. Hot Spring County $5,000.
  2. The counties shall pay the authorized annual amounts in equal quarterly installments from the county general fund of the respective counties and the checks shall be made payable to the office of the prosecuting attorney. Disbursements shall be made by the prosecuting attorney for the necessary expenses of the office based upon adequate documentation.
  3. The prosecuting attorney or deputies may also be allowed additional expenses upon appropriation of the quorum court and approval of the county judge.
  4. The Prosecuting Attorney of the Seventh Judicial District shall be entitled to the following assistants and employees:
    1. One (1) chief deputy prosecuting attorney for Saline County, whose salary shall not be less than forty-six thousand two hundred dollars ($46,200) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Saline County;
    2. Two (2) deputy prosecuting attorneys for Saline County, whose salary shall not be less than forty thousand seven hundred ninety-six dollars ($40,796) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Saline County;
    3. One (1) deputy prosecuting attorney for Saline County, whose salary shall not be less than thirty-five thousand dollars ($35,000) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Saline County;
    4. One (1) deputy prosecuting attorney for Saline County, whose salary shall not be less than ten thousand dollars ($10,000) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses may be paid by Saline County. This deputy prosecuting attorney shall be allowed to engage in private practice;
    5. One (1) deputy prosecuting attorney for child support cases for Saline County, whose salary shall not be less than eighteen thousand five hundred sixty-eight dollars ($18,568) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses may be paid by Saline County. This deputy prosecuting attorney shall be allowed to engage in private practice;
    6. One (1) victim/witness director for Saline County, whose salary shall not be less than twenty-four thousand five hundred forty-eight dollars ($24,548) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Saline County;
    7. One (1) victim/witness coordinator for Saline County, whose salary shall not be less than twenty thousand three hundred eleven dollars ($20,311) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Saline County;
    8. One (1) office manager for Saline County, whose salary shall not be less than eighteen thousand three hundred seventy dollars ($18,370) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Saline County;
    9. One (1) hot check coordinator for Saline County, whose salary shall not be less than eighteen thousand nine hundred sixty-one dollars ($18,961) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Saline County;
    10. Two (2) secretaries for Saline County, whose salaries shall not be less than fourteen thousand seven hundred dollars ($14,700) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of Saline County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Saline County;
    11. One (1) deputy prosecuting attorney for Hot Spring County, whose salary shall not be less than fourteen thousand seven hundred ninety dollars ($14,790) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Hot Spring County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses may be paid by Hot Spring County. This deputy prosecuting attorney shall be allowed to engage in private practice;
    12. One (1) deputy prosecuting attorney for child support cases for Hot Spring County, whose salary shall not be less than sixteen thousand six hundred twenty-seven dollars ($16,627) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Hot Spring County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses may be paid by Hot Spring County. This deputy prosecuting attorney shall be allowed to engage in private practice;
    13. One (1) deputy prosecuting attorney for Hot Spring County, whose salary shall not be less than eighteen thousand three hundred ninety-six ($18,396) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Hot Spring County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses may be paid by Hot Spring County;
    14. One (1) legal secretary/hot check coordinator/victim-witness director for Hot Spring County, whose salary shall not be less than nineteen thousand two hundred fifty eight dollars ($19,258) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of Hot Spring County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Hot Spring County;
    15. One (1) deputy prosecuting attorney for Grant County, whose salary shall not be less than nineteen thousand seven hundred two dollars ($19,702) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Grant County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses may be paid by Grant County. This deputy prosecuting attorney shall be allowed to engage in private practice;
    16. One (1) deputy prosecuting attorney for Grant County, whose salary shall not be less than sixteen thousand five hundred dollars ($16,500) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Grant County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses may be paid by Grant County. This deputy prosecuting attorney shall be allowed to engage in private practice;
    17. One (1) deputy prosecuting attorney for child support cases for Grant County, whose salary shall not be less than ten thousand dollars ($10,000) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Grant County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses may be paid by Grant County. This deputy prosecuting attorney shall be allowed to engage in private practice;
    18. One (1) legal secretary for Grant County, whose salary shall not be less than seventeen thousand six hundred forty dollars ($17,640) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of Grant County. In addition to the salary, social security, matching retirement, insurance, and all related salary expenses shall be paid by Grant County; and
    19. The prosecuting attorney of the Seventh Judicial District shall be allowed additional assistance and employees in each county upon appropriation of the quorum court and approval of the county judge in each respective county.

History. Acts 1997, No. 1180, § 1.

16-21-1203. Searcy County — Deputy prosecuting attorney.

Pursuant to the direction of the Prosecution Coordination Commission, a part-time deputy prosecuting attorney from any additional personnel provided to the commission by the Eighty-Fourth General Assembly, at such rates and terms as may be determined by the commission and the elected prosecuting attorney, shall be situated in the Searcy County Courthouse within the Twentieth Judicial District.

History. Acts 2003, No. 1755, § 1.

16-21-1204. Funding.

  1. Searcy County shall continue to bear the responsibility and expense of providing at the county's expense through an annual appropriation the following at sufficient levels for operation, but not less than the amounts appropriated by ordinance in effect February 1, 2003, the cost of facilities, equipment, supplies, salaries, benefits of existing support staff, and other office expenses and an office for the elected prosecuting attorney and deputy prosecuting attorney, and any other line-item appropriation as approved in the 2003 county budget except for deputy prosecuting attorney salary and benefits.
  2. The county shall provide compensation of additional expenses within the office of the prosecuting attorney and deputy prosecuting attorney when approved by the quorum court.

History. Acts 2003, No. 1755, § 2.

Subchapter 13 — Eighth Judicial District

A.C.R.C. Notes. Acts 1989, No. 585, § 1, provided:

“In addition to the deputy prosecutor positions created by § 16-21-113 and other Arkansas Code provisions, the prosecuting attorneys of the Eighth, Ninth-West, Tenth, Thirteenth, Sixteenth and Twentieth Judicial Districts shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. Said investigators and case coordinators shall have jurisdiction throughout the judicial district served, and have the power granted to peace officers by the statutes of this State and may serve process issuing out of all courts within the judicial district.”

Publisher's Notes. Acts 1988 (4th Ex. Sess.), No. 10, §§ 1, 2, and No. 20, §§ 1, 2, provide that, in addition to the deputy prosecutor positions created by § 16-21-113 and other statutory provisions, the Prosecuting Attorney of the Eighth Judicial District shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986; that the investigators and case coordinators shall have jurisdiction throughout the judicial district served, have the power granted to peace officers by the statutes of this state, and may serve process issuing out of all courts within the judicial district; and that nothing in these acts shall be construed to prohibit the quorum courts or city governing bodies of the various judicial districts from providing additional personnel or funds, from whatever sources available, to the prosecuting attorneys' offices for the Anti-Drug Abuse program.

Effective Dates. Acts 1963, No. 64, §§ 3, 4: retroactive to Jan. 1, 1963. Emergency clause provided: “It has been ascertained and determined by the General Assembly of the State of Arkansas that the contingent expense allowance of the prosecuting attorney of the Eighth Judicial Circuit is inadequate to reimburse said prosecuting attorney for expenses incurred in the performance of his duties, and that the efficient operation of the courts and the administration of justice in the Eighth Judicial Circuit has been jeopardized thereby. 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 1979, No. 767, §§ 3, 5: retroactive to Jan. 1, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the contingent expense allowances of the prosecuting attorneys of the Eighth and Ninth Judicial Districts are insufficient to reimburse the prosecutors for expenses incurred in connection with their offices and that this Act is immediately necessary to increase such expense allowances. 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. 954, § 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 contingent expense allowance of the prosecuting attorney of the Eighth Circuit-Chancery Court Circuit is inadequate to enable said prosecuting attorney to effectively and efficiently carry out his responsibilities; 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 immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

16-21-1301. Contingent expense allowances.

    1. In lieu of any other contingent expense allowance now provided by law for the Prosecuting Attorney of the Eighth Judicial District-North and the Prosecuting Attorney of the Eighth Judicial District-South, the office of the Prosecuting Attorney of the Eighth Judicial District-North and the office of the Prosecuting Attorney of the Eighth Judicial District-South shall receive contingent expense reimbursement funds as provided in this section.
    2. The contingent expense reimbursement funds authorized by this section shall be used solely for the purpose of reimbursing the costs of operating the office of the Prosecuting Attorney of the Eighth Judicial District-North and the office of the Prosecuting Attorney of the Eighth Judicial District-South.
    3. Reimbursements shall be based on itemized documentation, which shall be retained for audit purposes.
      1. The respective counties within the Eighth Judicial District-North shall contribute annually to the contingent expense fund such amount as shall be approved by the quorum courts of the respective counties within the prescribed minimum and maximum amounts set forth below:
      2. The respective counties within the Eighth Judicial District-South shall contribute annually to the contingent expense fund such amount as shall be approved by the quorum courts of the respective counties within the prescribed minimum and maximum amounts set forth below:
    1. The counties in the Eighth Judicial District-North and the Eighth Judicial District-South shall pay the approved allowance in equal monthly installments.

Nevada County Minimum $1,500 Maximum 7,500 Hempstead County Minimum 2,000 Maximum 7,500

Click to view table.

Lafayette County Minimum $2,000 Maximum 7,500 Miller County Minimum 2,700 Maximum 7,500

Click to view table.

History. Acts 1963, No. 64, § 1; 1979, No. 767, § 1; 1981, No. 954, § 1; A.S.A. 1947, § 24-114.2; Acts 1997, No. 1167, § 1; 1999, No. 1274, § 1.

Amendments. The 1997 amendment rewrote (a).

The 1999 amendment inserted “-North and the Prosecuting Attorney of the Eighth Judicial District-South” following “Eighth Judicial District” throughout (a); in (b)(1)(A), inserted “-North” following “District”, substituted “7,500” for “3,500” and “7,500” for “5,000”; rewrote (b)(1)(B) and (b)(2); and made stylistic changes.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

Subchapter 14 — Ninth Judicial District

A.C.R.C. Notes. Acts 1989, No. 585, § 1, provided:

“In addition to the deputy prosecutor positions created by § 16-21-113 and other Arkansas Code provisions, the prosecuting attorneys of the Eighth, Ninth-West, Tenth, Thirteenth, Sixteenth and Twentieth Judicial Districts shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. Said investigators and case coordinators shall have jurisdiction throughout the judicial district served, and have the power granted to peace officers by the statutes of this State and may serve process issuing out of all courts within the judicial district.”

16-21-1401. Election.

  1. The qualified electors of Clark County and Pike County shall elect a prosecuting attorney to serve only the Ninth Judicial District-East.
  2. The qualified electors of Howard County, Little River County, and Sevier County shall elect a prosecuting attorney to serve only the Ninth Judicial District-West.

History. Acts 1977, No. 432, § 1; 1979, No. 834, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-21-1402. Expense allowances.

  1. The Prosecuting Attorney of the Ninth Judicial District-East shall receive a contingent expense allowance of two thousand four hundred dollars ($2,400) per annum to be paid one thousand six hundred dollars ($1,600) by Clark County and eight hundred dollars ($800) by Pike County.
  2. The Prosecuting Attorney of the Ninth Judicial District-West shall receive an expense allowance from each county in the district of no less than one hundred fifty dollars ($150) per month per county and no greater than seven hundred dollars ($700) per month per county payable in equal monthly installments.

History. Acts 1979, No. 834, § 4; A.S.A. 1947, § 24-114.15; Acts 1987, No. 656, § 1.

Subchapter 15 — Tenth Judicial District

A.C.R.C. Notes. Acts 1989, No. 585, § 1, provided:

“In addition to the deputy prosecutor positions created by § 16-21-113 and other Arkansas Code provisions, the prosecuting attorneys of the Eighth, Ninth-West, Tenth, Thirteenth, Sixteenth and Twentieth Judicial Districts shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. Said investigators and case coordinators shall have jurisdiction throughout the judicial district served, and have the power granted to peace officers by the statutes of this State and may serve process issuing out of all courts within the judicial district.”

Publisher's Notes. Acts 1988 (4th Ex. Sess.), No. 10, §§ 1, 2, and No. 20, §§ 1, 2, provide that, in addition to the deputy prosecutor positions created by § 16-21-113 and other statutory provisions, the Prosecuting Attorney of the Tenth Judicial District shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986; that the investigators and case coordinators shall have jurisdiction throughout the judicial district served, have the power granted to peace officers by the statutes of this state, and may serve process issuing out of all courts within the judicial district; and that nothing in these acts shall be construed to prohibit the quorum courts or city governing bodies of the various judicial districts from providing additional personnel or funds, from whatever sources available, to the prosecuting attorneys' offices for the Anti-Drug Abuse program.

Effective Dates. Acts 1995 (1st Ex. Sess.), No. 13, § 13: Oct. 23, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the current system of funding the state judicial system has created inequity in the level of judicial services available to the citizens of the state; and it is further determined that the current method of financing the state judicial system has become so complex as to make the administration of the system impossible, and the lack of reliable data on the current costs of the state judicial system prohibits any comprehensive change in the funding of the system at this time. 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.”

16-21-1501. Applicability.

This subchapter shall apply to the Tenth Judicial District, which is composed of Ashley County, Bradley County, Chicot County, Desha County, and Drew County.

History. Acts 1985, No. 1097, § 1; A.S.A. 1947, § 24-114.19.

16-21-1502. Contingent expense allowances.

In lieu of any other contingent expense allowance provided by law for the office of the Prosecuting Attorney of the Tenth Judicial District, the prosecuting attorney shall be authorized an expense allowance of not less than twenty-seven thousand dollars ($27,000) per year nor more than forty-seven thousand dollars ($47,000) per year, as shall be determined by the quorum courts, to be borne by the respective counties of the Tenth Judicial District as follows:

COUNTY MAXIMUM MINIMUM PERCENTAGE Ashley $13,630 $7,830 29% Bradley 4,700 2,700 10% Chicot 10,810 6,210 23% Desha 10,810 6,210 23% Drew 7,050 4,050 15%

Click to view table.

History. Acts 1985, No. 1097, § 4; A.S.A. 1947, § 24-114.17.

16-21-1503. Assessment and collection of prosecuting attorney's fees.

  1. At the end of each calendar month and within ten (10) days thereafter, the officers collecting the fees shall pay them into the treasury of the county, except as otherwise provided in Acts 1985, No. 1097, §§ 2 and 3, and shall receive from the treasurer his receipt in duplicate, a copy of which shall be filed with the county clerk, and the other copy kept by the office or person making the settlement with the treasury.
  2. It is further recognized that for the most important and complicated work performed by the prosecuting attorney of the counties affected by this subchapter, fees are not provided by law. Therefore, it specifically is the legislative intent to provide the salaries and office expenses set forth in this subchapter without regard to the amount of prosecuting attorney's fees and emoluments earned or collected in the judicial district affected by this subchapter.

History. Acts 1985, No. 1097, § 5; A.S.A. 1947, § 24-114.18; Acts 1993, No. 395, § 1; 1995, No. 1256, § 20; 1995 (1st Ex. Sess.), No. 13, § 4.

Publisher's Notes. Acts 1985, No. 1097, §§ 2 and 3, referred to in this section, were special legislation applying to deputy prosecuting attorneys of the Tenth Judicial District.

Amendments. The 1993 amendment, in (a), deleted “except traffic offenses regarded as violations as defined and punished under the Arkansas Criminal Code” following “collect in all cases,” and substituted “§§ 21-6-410 and 15-42-121” for “§§ 12-1707 and 47-519.”

The 1995 amendment by No. 1256, as amended by Acts 1995 (1st Ex. Sess.), No. 13, § 4, repealed former (a), redesignating former (b) and (c) as present (a) and (b).

Subchapter 16 — Eleventh Judicial District

Publisher's Notes. Acts 1981, No. 609, § 4, provided that the division of the Eleventh District into East and West districts was effective January 1, 1983.

Effective Dates. Acts 1979, No. 459, §§ 4, 7: retroactive to Jan. 1, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the expense allowance presently provided for the prosecuting attorney of the Eleventh Judicial District and the compensation and allowances for deputy prosecuting attorneys in said district are inadequate to compensate the prosecuting attorney and his deputies for their services; that this Act is designed to provide adequate compensation and allowances for said officers and to thereby promote the effective and efficient administration of justice in the Eleventh Judicial District, 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 1983, No. 3, § 3: became law without Governor's signature, Jan. 25, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the prosecuting attorney of the Eleventh East Judicial Circuit must be provided adequate secretarial hire, part-time deputy hire, and reimbursement for other reasonable and necessary expenses for the operation of said office; that the providing of adequate allowances for the efficient operation of the prosecuting attorney's office of the Eleventh East Judicial Circuit is essential to the administration of justice in said judicial circuit; and that the immediate passage of this Act is necessary to provide said allowances in order to promote the administration of justice in said judicial circuit. 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. 922, § 18: 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 (2) year period; that the effectiveness of the 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; and that the immediate effectiveness of Section 3 of this Act is essential to maintaining the fiscal integrity of the Judges Retirement Fund which would otherwise work irreparable harm upon the 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 as follows: Section 3 of this Act shall be effective immediately upon passage and approval of this Act; and all other sections and provisions of this Act shall be effective from and after July 1, 1983.”

Acts 1989, No. 7, § 9: Feb. 1, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the duties incumbent upon the Case Coordinators of the Circuit and Chancery Courts of the Eleventh Judicial District-West of Arkansas have materially increased because of increases in population, caseload and the trial dockets of said Circuit and Chancery District, and that there has been a substantial increase in the costs of living, necessitating an increase in salaries in order to properly cope with the prevailing conditions and prevent hardship. 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.”

16-21-1601. Election.

  1. The qualified electors of the Eleventh Judicial District-East shall elect one (1) prosecuting attorney.
  2. The qualified electors of the Eleventh Judicial District-West shall elect one (1) prosecuting attorney.

History. Acts 1977, No. 432, § 1; 1981, No. 609, § 1; 1983, No. 922, § 15; A.S.A. 1947, § 22-365.

Publisher's Notes. Acts 1981, No. 609, § 3, provided that, unless otherwise provided by law, the prosecuting attorney of the Eleventh District-West should continue to receive the salary and allowances provided by law for the office of prosecuting attorney for the Eleventh District, and for the purpose of determining the compensation and allowances of the prosecuting attorney of the Eleventh District-East, the Eleventh District-East should be classified a Division B Judicial District.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-21-1602. Contingent expense allowance.

  1. In lieu of any other contingent expense allowance provided by law for the prosecuting attorney of the Eleventh Judicial District, the prosecuting attorney shall be authorized a contingent expense allowance of twenty thousand dollars ($20,000) per year, to be borne by the respective counties of the Eleventh Judicial District, as follows:
  2. The counties in the Eleventh Judicial District shall pay the above-prescribed annual amounts in equal monthly installments.

Jefferson County $17,000

Arkansas County 2,000

Lincoln County 1,000

History. Acts 1979, No. 459, § 1; A.S.A. 1947, § 24-114.10.

Publisher's Notes. Acts 1979, No. 459, § 3, provided that the salaries and expenses prescribed in the act should be subject to the approval of the quorum courts of the respective counties.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-21-1603. Reimbursement of expenses to Prosecuting Attorney of Eleventh Judicial District-East.

  1. The Quorum Court of Arkansas County shall furnish the Prosecuting Attorney of the Eleventh Judicial District-East reasonable reimbursement for secretarial hire, part-time deputy hire, social security and unemployment matching expenses, and for office supplies, in-state travel, telephone and other utilities, and office equipment rental and upkeep, as may be necessary for the operation of the office, in an amount not less than twenty-five thousand nine hundred sixty-one dollars ($25,961) per annum, or such additional amount as may be provided by the quorum court of the county.
  2. The prosecuting attorney shall file claims monthly for reimbursement of authorized items of expense incurred during the previous month, but in no event shall the amount of the reimbursement during any month be greater than one-twelfth (1/12) of the amount authorized in this section or such additional annual amount as may be approved by the quorum court.

History. Acts 1983, No. 3, § 1; A.S.A. 1947, § 24-114.10a.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

Subchapter 17 — Twelfth Judicial District

A.C.R.C. Notes. Acts 1993, No. 312, § 3, provided, in part, that:

“(d) The Prosecuting Attorney shall have the power to appoint Deputy Prosecuting Attorneys and other employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986.

“(e) The Prosecuting Attorney acting through the Twelfth Judicial Circuit Drug Task Force shall have the authority to expend funds from the Department of Finance and Administration Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. Those funds that are designated “overtime funds” are authorized under the grant to be paid to law enforcement officers who are certified with various police agencies in the State of Arkansas. Law enforcement personnel who are employed by police agencies or sheriffs' offices, including the State Police, may receive these funds without being considered employees of the Prosecuting Attorney's Office. In addition, overtime funds paid these officers under this Drug Task Force Grant procedure are not to be construed as violating any legislative salary cap accorded these officers in the normal course of employment with their various agencies. These funds are intended to supplement funds provided to these departments as salaries to enhance the drug-fighting capabilities of the Twelfth Judicial Circuit Task Force and to a larger extent, the State of Arkansas, and will be paid with the knowledge of the cooperating agencies involved.

“(f) The Prosecuting Attorney's Office of the Twelfth Judicial Circuit is authorized to receive funds from the federal government in the name of the Twelfth Judicial Circuit Task Force both from federal grants and from asset forfeiture funds, and utilize those for official purposes as described in the above paragraph (e).”

Effective Dates. Acts 1985, No. 500, § 8: became law without Governor's signature, Mar. 25, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that this Act is essential to the operation of criminal justice within the Twelfth Judicial Circuit. 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 1991, No. 237, § 9: Feb. 26, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that this act is essential to the operation of criminal justice within the Twelfth (12th) Judicial Circuit. It is also hereby found and determined by the General Assembly that the Prosecuting Attorney of the Twelfth (12th) Judicial Circuit is in need of additional personnel in order to fight the war on drugs; that this act authorizes such additional personnel and expenditures, and that said personnel are cooperating with law enforcement agencies in manners such as to incur threats to their personal safety and the safety of persons they are working with, and that protective measures need to be taken in order to encourage the Prosecutor's Office to undertake such actions which result in greater cooperation between law enforcement agencies within the District and more effective and efficient law enforcement in all areas and particularly the war on drugs. 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. 312, § 8: Noted: Mar. 2, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that this act is essential to the operation of criminal justice within the Twelfth (12th) Judicial Circuit. It is also hereby found and determined by the General Assembly that the Prosecuting Attorney of the Twelfth (12th) Judicial Circuit is in need of additional personnel in order to fight the war on drugs, and that this act authorizes such additional personnel and expenditures, and that said personnel are cooperating with law enforcement agencies in manners such as to incur threats to their personal safety and the safety of persons they are working with, and that protective measures need to be taken in order to encourage the Prosecutor's Office to undertake such actions which result in greater cooperation between law enforcement agencies within the District and more effective and efficient law enforcement in all areas and particularly the war on drugs. The Legislature recognizes that tax funds normally available for law enforcement agencies to increase manpower are unavailable and that the Federal Grant Program and Asset Forfeiture Programs are an excellent means of providing additional law enforcement help to combat drugs without depleting the treasuries of the state. The Legislature specifically intends that these funds are to be utilized to enhance manpower available by allowing the Prosecutor's Office to pay overtime to these officers as an incentive to increase anti-drug effectiveness of these agencies. The question of whether or not this may exceed normal salary caps is specifically addressed in the statute to provide that the salary caps shall not apply in the case of overtime funds expended under 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 1995, No. 1148, § 8: Apr. 6, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that this act is essential to the operation of criminal justice within the Twelfth (12th) Judicial Circuit. It is also hereby found and determined by the General Assembly that the Prosecuting Attorney of the Twelfth (12th) Judicial Circuit is in need of additional personnel in order to fight the war on drugs and combat violent crime, that this act authorizes such additional personnel and expenditures, and that said personnel are cooperating with law enforcement agencies in manners such as to incur threats to their personal safety and the safety of persons they are working with, and that protective measures need to be taken in order to encourage the Prosecutor's Office to undertake such actions which result in greater cooperation between law enforcement agencies within the District and more effective and efficient law enforcement in all areas and particularly the war on drugs and violent and juvenile crime. The Legislature recognizes that tax funds normally available for law enforcement agencies to increase manpower are unavailable and that the Federal Grant Program and Asset Forfeiture Programs are an excellent means of providing additional law enforcement help to combat drugs and violent crimes without depleting the treasuries of the state. The Legislature specifically intends that these funds are to be utilized to enhance manpower available by allowing the prosecutor's Office to pay overtime to these officers as an incentive to increase anti-drug and anti-crime effectiveness of these agencies. The question of whether or not this may exceed normal salary caps is specifically addressed in the code to provide that salary caps shall not apply in the case of overtime funds expended under the provisions of this act. Also, in the event that the Twelfth Circuit is subject to a division, an orderly transition must be set in place to ensure that the public is protected and to further guarantee that the division will not interfere with the effective and efficient operation of the Prosecuting Attorney's Office of the Twelfth Judicial Circuit. 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.”

16-21-1701. Contingent expense allowance.

  1. The Prosecuting Attorney of the Twelfth Judicial District shall receive a contingent expense allowance to provide for office expenses, including telephone, telegraph, postage, printing, office supplies and equipment, office rent, stationery, traveling expenses, special services, operation of automobiles, and such other expenses which, within the discretion of the prosecuting attorney, may be a proper expense of the office, and also including necessary expense in connection with any proper investigation incidental to any criminal law violation or trials before any grand jury or any court within the Twelfth Judicial District, coming within the duties of his office.
    1. The contingent expense allowance is to be borne by the respective counties of the Twelfth Judicial District as follows:
      1. Crawford County $10,995.00; and
      2. Sebastian County $99,375.34.
    2. Provided, the counties in the Twelfth Judicial District shall pay the above-prescribed annual amounts upon vouchers signed by the prosecuting attorney and allowed as claims against the county general revenue funds of the respective counties.
  2. The quorum courts may increase these amounts in their discretion, if necessary.

History. Acts 1995, No. 1148, § 2.

A.C.R.C. Notes. Former § 16-21-1701, concerning contingent expense allowance, is deemed to be superseded by this section. The former section was derived from Acts 1985, No. 500, § 2; A.S.A. 1947, § 24-114.4.

As enacted, subsection (a) began “Effective January 1, 1991, and thereafter.”

As originally amended by Acts 1993, No. 312, § 2, subsection (a) of this section began:

“Effective January 1, 1993, and thereafter.”

As amended by Acts 1995, No. 1148, § 2, subsection (a) began:

“Effective January 1, 1995, and thereafter.”

Publisher's Notes. Acts 1991, No. 237, § 5, provided:

“It is not the purpose of this act to repeal any laws now or hereafter enacted fixing the fees of prosecuting attorneys. In the Fort Smith and Greenwood Districts of Sebastian and in Crawford County, the Justices of the Peace, Municipal Courts, Circuit Courts and other courts shall assess in all cases the prosecuting attorney's fees provided by law. At the end of each calendar month and within five (5) days thereafter, the officers collecting such fees shall pay the same into the treasury of the county, except as herein otherwise provided, and shall recieve from the treasurer his receipt in duplicate, one (1) copy of which shall be filed with the county clerk and the other copy kept by the officer or person making such settlement with the treasury. Any officer or person having in his hands any such fees who fails to settle with the county treasurer within the time and in the manner herein provided shall be suject to indictment, prosecution and punishment for embezzlement. It is further recognized that for the most important and complicated work performed by the prosecuting attorney of the counties affected by this act, fees are not provided by law. Therefore, it specifically is the legislative intent to provide the salaries herein set forth without regard to the amount of prosecuting attorney fees and emoluments earned or collected in the judicial circuit affected by this act.”

Amendments. The 1993 amendment redesignated former (c) as present (b)(2) and redesignated former (d) as present (c); in (b)(1), substituted “$19,498” for “$14,632” and “$53,409” for “$52,284”; and, in present (b)(2), added “Provided” at the beginning and substituted “above-prescribed annual amounts” for “annual amounts prescribed in this section.”

The 1995 amendment, in (b)(1), substituted “$10,995.00” for “$19,498” and substituted “$99,375.34” for “$53,409.”

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-21-1702. Appointment of deputies and employees.

The Prosecuting Attorney in the Twelfth Judicial District shall be entitled to the following assistants and deputies:

  1. Crawford County. Two (2) or more deputies and two (2) or more secretaries whose total salaries shall be one hundred three thousand eight hundred thirty-four dollars ($103,834) per annum; provided, that the quorum court may appropriate additional money for yearly salary increases or additional personnel in its discretion; and
  2. Sebastian County. Nine (9) or more deputies and eleven (11) or more secretaries, whose total salaries shall be five hundred seventy-two thousand six hundred fifty-four dollars ($572,654) per annum; provided, that the quorum court may appropriate additional money for yearly salary increases or additional personnel in its discretion.

History. Acts 1993, No. 312, § 1; 1995, No. 1148, § 1.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 312, § 1, this section began:

“Effective January 1, 1993, and thereafter.”

As amended by Acts 1995, No. 1448, § 1, subsection (a) of this section began:

“Effective January 1, 1995, and thereafter.”

Amendments. The 1995 amendment substituted “one hundred three thousand eight hundred thirty-four dollars ($103,834)” for “ninety-two thousand three hundred seventy-nine dollars ($92,379)” in (1); and, in (2), substituted “Nine (9) or more deputies and eleven (11) or more secretaries” for “Eight (8) or more deputies and eight (8) or more secretaries” and substituted “five hundred seventy-two thousand six hundred fifty-four dollars ($572,654)” for “five hundred ninety-five thousand seven hundred ninety-nine dollars and forty-nine cents ($595,799.49); and made stylistic changes.

16-21-1703. Prosecutor and deputies — Power and authority.

  1. A deputy prosecuting attorney who is duly appointed in any county of the Twelfth Judicial District shall have the authority to perform all official acts as deputy prosecuting attorney in all counties within the Twelfth Judicial District.
  2. Deputy prosecuting attorneys in the Twelfth Judicial District shall not engage in the private practice of law.
    1. The Prosecuting Attorney of the Twelfth Judicial District and those deputy prosecuting attorneys and other staff members he designates shall be considered law enforcement officers for the purposes of utilizing emergency, protective, and communications equipment.
    2. Provided, that the prosecuting attorney and all members of his office shall have no greater arrest powers than that accorded all citizens under the Arkansas Constitution and this Code.
  3. The prosecuting attorney shall have the power to appoint deputy prosecuting attorneys and other employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration Drug Law Enforcement Program, and the federal Anti-Drug Abuse Act of 1986 or other federal programs and may expend funds from any federal program that are tendered to the office for official purposes.
  4. The Prosecuting Attorney of the Twelfth Judicial District, acting through the Twelfth Judicial District Drug Task Force, shall have the authority to expend funds from the Department of Finance and Administration Drug Law Enforcement Program, and the federal Anti-Drug Abuse Act of 1986 or other federal law enforcement program, which tenders funds to the office to be used for official purposes. Those funds that are designated “overtime funds” are authorized under the grant to be paid to law enforcement officers who are certified with various police agencies in the State of Arkansas. Law enforcement personnel who are employed by police agencies or sheriffs' offices, including the Department of Arkansas State Police, may receive these funds without being considered employees of the office of the Prosecuting Attorney of the Twelfth Judicial District. In addition, overtime funds paid these officers under this drug task force grant procedure are not to be construed as violating any legislative salary cap accorded these officers in the normal course of employment with their various agencies. These funds are intended to supplement funds provided to these departments as salaries to enhance the drug-fighting and violent crime-fighting capabilities of the Twelfth Judicial District Task Force and, to a larger extent, the State of Arkansas.
  5. The office of the Prosecuting Attorney of the Twelfth Judicial District is authorized to receive funds from the federal government in the name of the Twelfth Judicial District Task Force both from federal grants and from asset forfeiture funds and utilize those for official purposes as described in subsection (e) of this section.
  6. The prosecuting attorney's office is hereby authorized pursuant to this Code to collect fees for the hot check fund as authorized by the state legislature and to expend those funds in official uses for the benefit of the office.

History. Acts 1993, No. 312, § 3; 1995, No. 1148, § 3.

A.C.R.C. Notes. As originally enacted by Acts 1993, No. 312, § 3, this section provided, in part, that:

“(d) The Prosecuting Attorney shall have the power to appoint Deputy Prosecuting Attorneys and other employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986.

“(e) The Prosecuting Attorney acting through the Twelfth (12th) Judicial Circuit Drug Task Force shall have the authority to expend funds from the Department of Finance and Administration Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. Those funds that are designated ‘overtime funds’ are authorized under the grant to be paid to law enforcement officers who are certified with various police agencies in the State of Arkansas. Law enforcement personnel who are employed by police agencies or sheriffs' offices, including the State Police, may receive these funds without being considered employees of the Prosecuting Attorney's Office. In addition, overtime funds paid these officers under this Drug Task Force Grant procedure are not to be construed as violating any legislative salary cap accorded these officers in the normal course of employment with their various agencies. These funds are intended to supplement funds provided to these departments as salaries to enhance the drug-fighting capabilities of the Twelfth (12th) Judicial Circuit Task Force and to a larger extent, the State of Arkansas, and will be paid with the knowledge of the cooperating agencies involved.

“(f) The Prosecuting Attorney's Office of the Twelfth (12th) Judicial Circuit is authorized to receive funds from the federal government in the name of the Twelfth (12th) Judicial Circuit Task Force both from federal grants and from asset forfeiture funds, and utilize those for official purposes as described in the above paragraph (e).”

As amended by Acts 1995, No. 1148, § 3, this section contained an additional subsection which provided:

“Account funds in the Restitution and Hot Check Accounts which are designated unclaimed by audit for a period of two years or more shall be placed in the Fee Account to be expended for official purposes only.”

Amendments. The 1995 amendment deleted “shall be residents of the Twelfth Judicial District and” following “District” in (b); deleted “in coordination with interagency cooperative investigations and operations” from the end in (c)(1); substituted “this Code” for “Arkansas statutes” in (c)(2); inserted (d)-(f), redesignating former (d) as (g); and substituted “this Code” for “state statutes” in (g).

U.S. Code. The reference in this section to the Drug Law Enforcement Program Anti-Abuse Act of 1986 is probably a reference to a former version of 42 U.S.C. § 3796h, repealed in 1988, which contained provisions relating to grants for drug law enforcement programs.

Cross References. Fees from persons issuing bad checks, § 16-21-120.

16-21-1704. Appropriations by quorum courts.

The quorum courts of the respective counties within the judicial district shall annually appropriate out of the general revenue funds sufficient to cover the salaries and contingent expense fund provided for in this subchapter, provided that the quorum courts shall not be required to pay any additional amounts except by their consent.

History. Acts 1993, No. 312, § 4; 1995, No. 1148, § 4.

A.C.R.C. Notes. As amended by Acts 1995, No. 1148, § 4, this section ended:

“Provided however, that in the event that the district is separated into two districts or one county is removed from the district by state action, the shared time personnel currently funded by Sebastian County will be funded full time by Sebastian County. Provided further, that in the event that a Deputy within the district is selected to be interim Prosecutor said Deputy may take a leave of absence to fulfill this duty. Upon completion of said duty, the Deputy shall be entitled to return to either District's Prosecutor's Office with the consent of the Prosecuting Attorney at the level of funding that said Deputy would have been paid at had he not accepted the appointment duty. The Prosecutor of the Twelfth Circuit, at the request of the interim Prosecutor of the new District, may designate a Deputy to serve as the Deputy Prosecuting Attorney of the new District. In the event that this procedure is followed, that Deputy shall be able to return to Sebastian County at the same pay as he is receiving at the time he is transferred back to Sebastian County from Crawford County at the end of the interim Prosecutor's term or any time before hand. For purposes of this Act, the new District shall be considered the one which is formed with Crawford County as a member county. Upon division, the prosecutor shall transfer all district equipment to Crawford County that is currently placed within the Crawford County Office at the time of the effective date of this Act and all equipment assigned to full time Crawford County personnel at the effective date of the separation Act.”

Amendments. The 1995 amendment deleted (b); and substituted “in this subchapter” for “herein.”

Subchapter 18 — Thirteenth Judicial District

A.C.R.C. Notes. Acts 1989, No. 585, § 1, provided:

“In addition to the deputy prosecutor positions created by § 16-21-113 and other Arkansas Code provisions, the prosecuting attorneys of the Eighth, Ninth-West, Tenth, Thirteenth, Sixteenth and Twentieth Judicial Districts shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. Said investigators and case coordinators shall have jurisdiction throughout the judicial district served, and have the power granted to peace officers by the statutes of this State and may serve process issuing out of all courts within the judicial district.”

Publisher's Notes. Acts 1988 (4th Ex. Sess.), No. 10, §§ 1, 2, and No. 20, §§ 1, 2, provide that, in addition to the deputy prosecutor positions created by § 16-21-113 and other statutory provisions, the Prosecuting Attorney of the Thirteenth Judicial District shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986; that the investigators and case coordinators shall have jurisidiction throughout the judicial district served, have the power granted to peace officers by the statutes of this state, and may serve process issuing out of all courts within the judicial district; and that nothing in these acts shall be construed to prohibit the quorum courts or city governing bodies of the various judicial districts from providing additional personnel or funds, from whatever sources available, to the prosecuting attorneys' offices for the Anti-Drug Abuse program.

Effective Dates. Acts 1985, No. 1093, § 3: retroactive to Jan. 1, 1985. Emergency clause provided: “It has been ascertained and determined that due to increased costs that the current laws pertaining to the expense allowance of the prosecuting attorney of the Thirteenth Judicial Circuit is inadequate and that the efficient operation of the courts and the administration of justice in the Thirteenth Judicial Circuit will be jeopardized. 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.”

16-21-1801. Contingent expense allowances.

  1. In implementation of § 16-21-119(a), and in lieu of any other contingent expense allowance provided by law for the Prosecuting Attorney of the Thirteenth Judicial District, the Prosecuting Attorney shall receive an expense allowance to be borne by the respective counties of the Thirteenth Judicial District as follows:
    1. Calhoun County Such amount as may be approved by the Quorum Court of Calhoun County, not to exceed one thousand seven hundred eighty-two dollars ($1,782) per annum; (2) Columbia County Such amount as may be approved by the Quorum Court of Columbia County, not to exceed three thousand seven hundred eighty dollars ($3,780) per annum; (3) Cleveland County Such amount as may be approved by the Quorum Court of Cleveland County, not to exceed one thousand eight hundred dollars ($1,800) per annum; (4) Dallas County Such amount as may be approved by the Quorum Court of Dallas County, not to exceed two thousand dollars ($2,000) per annum; (5) Ouachita County Such amount as may be approved by the Quorum Court of Ouachita County, not to exceed four thousand one hundred forty dollars ($4,140) per annum; and (6) Union County Such amount as may be approved by the Quorum Court of Union County, not to exceed six thousand six hundred sixty dollars ($6,660) per annum.
  2. The counties in the Thirteenth Judicial District shall pay the annual amounts prescribed in this section in equal monthly installments.
  3. There shall be no requirement that the prosecuting attorney submit vouchers to the respective counties in connection with the expenses.

Click to view table.

History. Acts 1985, No. 1093, §§ 1, 2; A.S.A. 1947, § 24-114.3.

Subchapter 19 — Fourteenth Judicial District

Effective Dates. Acts 1977, No. 950, §§ 4, 5: retroactive to Jan. 1, 1977. Emergency clause provided: “It is hereby found and determined that the efficient operation of the office of the prosecuting attorney of the Fourteenth Judicial Circuit is essential to the administration of justice and for the efficient operation of the county governments of said circuit, and that the immediate passage of this Act is necessary to provide adequate contingent expenses and secretarial allowances for said prosecuting attorney. 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 1979, No. 457, §§ 4, 6: retroactive to Jan. 1, 1979; Acts 1981, No. 952, §§ 4, 6: retroactive to Jan. 1, 1981. Emergency clauses provided: “It is hereby found and determined by the General Assembly that the Fourteenth Judicial Circuit prosecuting attorney's office lacks sufficient manpower; and that in order to assure the proper administration of justice and the efficient functioning of the office of the prosecuting attorney for the Fourteenth Judicial Circuit, 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 from and after its passage and approval.”

Acts 1983, No. 388, § 3: Mar. 10, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the contingent expense allowance for the Fourteenth Judicial Circuit prosecuting attorney and the salary of the office stenographer for such prosecuting attorney should not be limited in amount by the General Assembly and this Act is immediately necessary to eliminate such limitations. 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.”

16-21-1901. Legislative findings and intent.

  1. It is not the purpose of this subchapter to repeal any laws fixing the fees of prosecuting attorneys, but rather to update and make more efficient the administration of law and order and the operation of county governments in the Fourteenth Judicial District.
  2. It is further recognized that for the most important and complicated work performed by the prosecuting attorney of the several counties of the Fourteenth Judicial District affected by this subchapter, fees are not provided by law. Therefore, it is the intent of this subchapter to provide the salaries set forth in this subchapter without regard to the amount of the prosecuting attorney's fees and emoluments earned or collected in the counties comprising the Fourteenth Judicial District.

History. Acts 1977, No. 950, § 3; A.S.A. 1947, § 24-114.1b.

16-21-1902. Prosecuting attorney's fees.

In the Fourteenth Judicial District, the justices of the peace, municipal courts, circuit courts, and other courts shall assess, in all cases, the prosecuting attorney's fees provided by law, and all such fees shall be paid into the county treasury as provided by law.

History. Acts 1977, No. 950, § 3; A.S.A. 1947, § 24-114.1b.

16-21-1903. Contingent expense allowance.

The contingent expenses of the Prosecuting Attorney for the Fourteenth Judicial District shall be limited to the sum of seven thousand eight hundred dollars ($7,800) per annum, to be paid quarterly and to be borne by the counties of the district as follows:

  1. Baxter County (36% by population) $2,808;
  2. Boone County (36% by population) 2,808;
  3. Marion County (16% by population) 1,248; and
  4. Newton County (12% by population) 936.

History. Acts 1977, No. 950, § 1; 1979, No. 457, § 1; 1981, No. 952, § 1; A.S.A. 1947, § 24-114.1.

16-21-1904. Office stenographer.

The salary for the office stenographer for the Prosecuting Attorney of the Fourteenth Judicial District shall be set at the sum of nine thousand dollars ($9,000) annually, to be paid in equal monthly installments and to be borne by the counties of the district as follows:

  1. Baxter County (36% by population) $3,240;
  2. Boone County (36% by population) 3,240;
  3. Marion County (16% by population) 1,440; and
  4. Newton County (12% by population) 1,080.

History. Acts 1977, No. 950, § 2; 1979, No. 457, § 2; 1981, No. 952, § 2; A.S.A. 1947, § 24-114.1a.

16-21-1905. Increase in amounts.

The amounts set forth in §§ 16-21-1903 and 16-21-1904 are minimum amounts, and each county quorum court may increase the amounts paid for either purpose when the quorum court feels it is justified and appropriate to do so without regard to similar increases by other counties in the judicial district.

History. Acts 1983, No. 388, § 1; A.S.A. 1947, §§ 24-114.1n, 24-114.1a note.

Subchapter 20 — Fifteenth Judicial District

Effective Dates. Acts 1981, No. 298, § 5: became law without governor's signature, Mar. 5, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is presently no law which provides adequate compensation and allowances for the prosecuting attorney of the Fifteenth Judicial Circuit; that this Act is designed to establish adequate allowances for said prosecuting attorney to enable him to effectively and efficiently carry out his duties; that it is essential to the effective administration of justice in the Fifteenth Judicial Circuit that this Act be given effect at the earliest possible date; 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 1991, No. 425, § 5: Mar. 11, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is an urgent need for additional personnel to fight the war on drugs. 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. 361, § 5: Mar. 3, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that no attorney at law resides within Scott County who can legally serve as the deputy prosecuting attorney for the county; that this act authorizes a non-resident of Scott County to serve as the deputy prosecuting attorney for Scott County; and that this act should be given effect immediately in order to give the prosecuting attorney of the Fifteenth Judicial District the authority to provide services within the district 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 2005, No. 2201. § 12: Apr. 13, 2005. Emergency Clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Legislative Joint Auditing Committee and the Division of Legislative Audit provide essential auditing and investigative services to the General Assembly and the State of Arkansas; that to avoid confusion, the General Assembly finds it is necessary to combine the Arkansas Code provisions concerning the Division of Legislative Audit and the local audit section of the division in one Arkansas Code chapter; that to avoid certain undue hardships on public entities of the state, it is also necessary for the General Assembly to provide a basis of financial statement presentation for certain public entities; that the American Institute of Certified Public Accountants' Statement on Auditing Standards Number 99 regarding the detection of fraud requires auditors to document unsubstantiated allegations of fraud in their working papers; and that this act is immediately necessary because the General Assembly finds that the public disclosure of such unsubstantiated allegations do not serve a public purpose and may cause irreparable harm to innocent individuals and public employees. 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.”

16-21-2001. Legislative findings and intent.

  1. It is not the purpose of this subchapter to repeal any laws fixing the fees of prosecuting attorneys.
  2. It is further recognized that for the most important and complicated work performed by the prosecuting attorney of the counties affected by this subchapter, fees are not provided by law. Therefore, it is specifically a legislative intent to provide the salaries set forth in this subchapter without regard to the amount of prosecuting attorney's fees and emoluments earned or collected in the judicial district affected by this subchapter.

History. Acts 1981, No. 298, § 4; A.S.A. 1947, § 24-114.11c.

16-21-2002. Office space and telephone expense — Contingent expense allowance.

    1. The Prosecuting Attorney of the Fifteenth Judicial District shall be furnished suitable office space and telephone expense.
    2. The office space is to be furnished in the county in which the prosecuting attorney resides and shall be paid for by that county monthly at the rate of two hundred dollars ($200) per month from the county general fund.
    3. The telephone expense shall be prorated one-fifth (1/5) from Scott County, the balance equally between Logan County, Yell County, and Conway County.
    1. In addition, the prosecuting attorney shall be allowed as contingent expense of this office, including postage, printing, office supplies and equipment, stationery, travel expense, special service, operation of automobiles, and such other expenses which, within the discretion of the prosecuting attorney, may be proper expenses of the office, and also including necessary expense in connection with any proper investigation incident to any criminal law violation or trial before any grand jury or any court within the Fifteenth Judicial District, coming within the duties of his office, eleven thousand three hundred dollars ($11,300) per annum, to be allocated as follows:
      1. Scott County $2,500;
      2. Logan County $3,000;
      3. Yell County $2,500; and
      4. Conway County $3,300.
    2. The expenses are to be paid from the county general fund of the respective counties of the Fifteenth Judicial District and shall be paid in equal monthly installments by each county.

History. Acts 1981, No. 298, § 2; A.S.A. 1947, § 24-114.11a; Acts 1987, No. 415, § 1.

16-21-2003. Prosecutor's fees — Collection, payment, and settlement — Penalty for noncompliance.

  1. In all counties of the Fifteenth Judicial District, the justices of the peace, municipal courts, circuit courts, and other courts shall assess in all cases the prosecuting attorney's fee provided by law.
  2. At the end of each calendar month and within five (5) days thereafter, the officer collecting the fees shall pay the fees to the treasury of the county, except as otherwise provided in this subchapter, and shall receive from the treasurer his receipt in duplicate, one (1) copy of which shall be filed with the county clerk, the other copy kept by the officer or person making the settlement with the treasurer.
  3. Any officer or person having in his hands any such fees who fails to settle with the county treasurer within the time and the manner provided for in this section shall be subject to indictment, prosecution, and punishment for embezzlement.

History. Acts 1981, No. 298, § 4; A.S.A. 1947, § 24-114.11c.

16-21-2004. Prosecutor's assistants generally — Salaries.

  1. The Prosecuting Attorney of the Fifteenth Judicial District of Arkansas shall be entitled to the following assistants:
    1. Deputy prosecuting attorneys:
      1. Scott County $10,000;
      2. Logan County $16,000;
      3. Yell County $13,977;
      4. Conway County $18,000;
    2. Chief deputy prosecuting attorney:
      1. Scott County $3,300;
      2. Logan County $3,300;
      3. Yell County $3,240;
      4. Conway County $4,400;
    3. Secretary-stenographer:
      1. Scott County $1,850;
      2. Logan County $2,500;
      3. Yell County $2,333;
      4. Conway County $2,465; and
    4. Investigator:
      1. Scott County $2,750;
      2. Logan County $3,750;
      3. Yell County $3,600;
      4. Conway County $3,750.
  2. The salaries of the above deputy prosecutors, secretary-stenographer, and investigator shall be paid in twelve (12) monthly installments from the respective county general funds as set forth in subsection (a) of this section.
  3. The deputy prosecuting attorneys shall receive the salaries provided for in this subchapter in lieu of fees, and all such fees shall be deposited in the general funds of the respective counties.
  4. All deputies shall reside in the Fifteenth Judicial District; provided, however, that the deputy prosecuting attorney for Scott County may reside outside the Fifteenth Judicial District so long as he maintains a regular practice of law within Scott County.
  5. The Prosecuting Attorney of the Fifteenth Judicial District shall have the power to appoint deputy prosecuting attorneys, criminal investigators, and all other assistants without confirmation from any court or other tribunal.
  6. The investigator or warrant clerk shall have all powers granted to peace officers by the statutes of this state for the serving of all process issuing out of all courts or the prosecuting attorney's office.

History. Acts 1981, No. 298, §§ 1, 3; A.S.A. 1947, §§ 24-114.11, 24-114.11b; Acts 1993, No. 361, § 1.

Amendments. The 1993 amendment added the proviso at the end of (d).

Case Notes

Cited: Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998).

16-21-2005. Prosecutor's assistants — Expenses.

  1. The deputy prosecuting attorney's office shall be entitled to an expense allowance for travel, telephone, and other related expenses from the county general fund in a minimum amount as follows:
    1. Scott County $ 1,500;
    2. Logan County $ 4,000;
    3. Yell County $ 2,000; and
    4. Conway County $14,025.
  2. The chief deputy prosecuting attorney's office shall be entitled to an expense allowance for travel, telephone, and other related expenses from the county general fund in a minimum amount of two thousand three hundred five dollars ($2,305), payable from the county's general funds as follows:
    1. Scott County $550;
    2. Logan County $550;
    3. Yell County $500; and
    4. Conway County $705.
  3. The investigator's office shall be entitled to an expense allowance for travel, telephone, and other related expenses from the county general fund in a minimum amount of three thousand nine hundred ten dollars ($3,910), payable from the county's general funds as follows:
    1. Scott County $ 800;
    2. Logan County $1,075;
    3. Yell County $ 960; and
    4. Conway County $1,075.

History. Acts 1981, No. 298, § 1; A.S.A. 1947, § 24-114.11.

16-21-2006. Payment of salaries and expenses.

The levying or quorum court of the respective counties shall annually appropriate out of the general revenue fund sufficient amounts to cover the salaries and expenses provided for in this subchapter.

History. Acts 1981, No. 298, § 3; A.S.A. 1947, § 24-114.11b.

16-21-2007. Additional employees — Drug Law Enforcement Program grants.

  1. The Prosecuting Attorney of the Fifteenth Judicial District shall have the power to appoint the following employees if the prosecutor receives a grant award therefor, without confirmation of any court or tribunal, at such salaries as are indicated below, or as are authorized in grants awarded from the Office of Intergovernmental Services of the Department of Finance and Administration and the Arkansas Drug Law Enforcement Program:
    1. The positions created in subsection (a) of this section shall be in addition to those created by § 16-21-113 and other Arkansas Code provisions.
    2. In the event additional funding becomes available, the prosecuting attorney may employ such additional employees and have expense allowances as are authorized in the program grant awards.
    1. The office of the Prosecuting Attorney of the Fifteenth Judicial District shall administer its Drug Law Enforcement Program grant from the Office of Intergovernmental Services of the Department of Finance and Administration.
    2. Expenditures may be made only for purposes of the grant.
    3. All moneys from the grant are appropriated on a continuing basis and are subject to the prosecuting attorney's financial management system.
    4. All law enforcement agent positions shall have peace officer jurisdiction throughout the Fifteenth Judicial District and may serve process issuing out of all courts within the state.
  2. It is the explicit legislative intent that nothing in this section shall be construed to decrease, supplant, or be substituted for employee positions, salaries, or expenses, nor maintenance and operation expenses or capital equipment expenditures which the office of the Prosecuting Attorney of the Fifteenth Judicial District will receive through quorum court appropriation from and after February 1, 1991.

Law enforcement project coordinator $26,000

Law enforcement field supervisor $22,000

Law enforcement undercover officer $16,500

Law enforcement undercover officer $15,125

Bookkeeper-secretary $14,000

Bookkeeper-secretary $11,000

History. Acts 1991, No. 425, § 1; 2005, No. 2201, § 10.

A.C.R.C. Notes. As enacted (a) began “Effective February 1, 1991.”

Subchapter 21 — Sixteenth Judicial District

A.C.R.C. Notes. Acts 1989, No. 585, § 1, provided:

“In addition to the deputy prosecutor positions created by § 16-21-113 and other Arkansas Code provisions, the prosecuting attorneys of the Eighth, Ninth-West, Tenth, Thirteenth, Sixteenth and Twentieth Judicial Districts shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986. Said investigators and case coordinators shall have jurisdiction throughout the judicial district served, and have the power granted to peace officers by the statutes of this State and may serve process issuing out of all courts within the judicial district.”

Publisher's Notes. Acts 1988 (4th Ex. Sess.), No. 10, §§ 1, 2, and No. 20, §§ 1, 2, provide that, in addition to the deputy prosecutor positions created by § 16-21-113 and other statutory provisions, the Prosecuting Attorney of the Sixteenth Judicial District shall have the power to appoint deputy prosecuting attorneys, investigators, or employees at such salaries as are authorized in the grant awards from the Department of Finance and Administration, Intergovernmental Services, Drug Law Enforcement Program, Anti-Drug Abuse Act of 1986; that the investigators and case coordinators shall have jurisdiction throughout the judicial district served, have the power granted to peace officers by the statutes of this state, and may serve process issuing out of all courts within the judicial district; and that nothing in these acts shall be construed to prohibit the quorum courts or city governing bodies of the various judicial districts from providing additional personnel or funds, from whatever sources available, to the prosecuting attorneys' offices for the Anti-Drug Abuse program.

Effective Dates. Acts 1987, No. 1044, §§ 3, 5: effective retroactive to Jan. 1, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is essential to the effective and efficient administration of justice in the Sixteenth Judicial Circuit that the prosecuting attorney of said circuit be provided adequate funds for expenses of his office and for carrying out his official functions and duties; that this Act makes provision for the funding of such expenses, 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.” Became law without Governor's signature. Noted in Governor's office on Apr. 14, 1987.

16-21-2101. Expense allowance — Salary of deputy.

  1. The Prosecuting Attorney of the Sixteenth Judicial District may be allowed the expenses of his office, including telephone, telegraph, postage, printing, office supplies and equipment, office rent, stationery, traveling expenses, special services, operation of automobiles, secretarial and clerical expenses, and other expenses which, within the discretion of the prosecuting attorney, may be a proper expense of the office and also including necessary expense in connection with any proper investigation incident to any criminal law violation or trials before any grand jury, or any court within the judicial district, coming within the duties of his office.
  2. Subject to approval of the several quorum courts, the expenses shall be borne by the counties comprising the Sixteenth Judicial District, as follows:
    1. Independence County forty percent (40%);
    2. Cleburne County twenty-seven percent (27%);
    3. Stone County eleven percent (11%);
    4. Izard County eleven percent (11%); and
    5. Fulton County eleven percent (11%).
  3. The expenses may be drawn in equal monthly installments or be contingent.
  4. The deputy prosecuting attorney for Stone County shall receive an annual salary of not less than twelve thousand dollars ($12,000) nor more than eighteen thousand eight hundred dollars ($18,800), as established by the Quorum Court of Stone County.

History. Acts 1987, No. 1044, §§ 1, 2; 1989, No. 470, § 1.

Subchapter 22 — Seventeenth Judicial District

Effective Dates. Acts 1971, No. 262, §§ 3, 6: retroactive to Jan. 1, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that the contingent expense allowance of the prosecuting attorney's office of the 17th Judicial Circuit and the salary of the official stenographer and grand jury reporter of said 17th Judicial Circuit are inadequate for the administration of justice in said circuit, and that the immediate passage of this Act is necessary to provide sufficient allowances therefor and to promote the administration of justice and the enforcement of the criminal laws of said circuit. 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.” Approved March 10, 1971.

Acts 1979, No. 443, §§ 2, 5: retroactive to Jan. 1, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the contingent expense allowance of the prosecuting attorney's office of the 17th Circuit-Chancery Court Circuit is inadequate for the administration of justice in said circuit, and that the immediate passage of this Act is necessary to provide sufficient allowances therefor and to promote the administration of justice and the enforcement of the criminal laws of said circuit. 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. 1043, § 4: became law without Governor's signature, Apr. 15, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that this Act is essential to the operation of criminal justice within the Seventeenth East Judicial Circuit. 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 full force and effect from and after its passage and approval.”

Acts 1995, No. 886, § 7: became law without Governor's signature. Noted Mar. 31, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that this act is essential to the operation of the criminal justice system within the Seventeenth Judicial District-East. It is also hereby found and determined by the General Assembly that the Prosecuting Attorney of the Seventeenth Judicial District-East is in need of these personnel in order to fight the war on drugs and combat violent crime in the Seventeenth Judicial District-East. 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. 988, § 6: Apr. 1, 1997, retroactive to Jan. 1, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act is essential to the operation of the criminal justice system within the Seventeenth Judicial District-East. It is also determined that the prosecuting attorney of the Seventeenth Judicial District-East is in need of these personnel in order to fight the war on drugs and combat crime in the Seventeenth Judicial District-East. 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. 1001, § 6: Mar. 31, 1999, retroactive to Jan. 1, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act is essential to the operation of the criminal justice system within the Seventeenth Judicial District-East. It is also determined that the prosecuting attorney of the Seventeenth Judicial District-East is in need of these personnel in order to fight the war on drugs and combat crime in the Seventeenth Judicial District-East. 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.”

16-21-2201. Election.

  1. The qualified electors of the Seventeenth Judicial District-West shall elect one (1) prosecuting attorney.
  2. The qualified electors of the Seventeenth Judicial District-East shall elect one (1) prosecuting attorney.

History. Acts 1977, No. 432, § 1; 1983, No. 669, § 1; A.S.A. 1947, § 22-365.

Case Notes

Cited: Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

16-21-2202. Contingent expense allowance.

  1. In lieu of any other contingent expense allowance now provided by law for the Prosecuting Attorney of the Seventeenth Judicial District, the prosecuting attorney shall receive a contingent expense allowance of three thousand six hundred dollars ($3,600) per annum to be borne by the respective counties of the Seventeenth District as follows:
    1. White County $1,400;
    2. Lonoke County $1,200; and
    3. Prairie County $1,000.
    1. The counties shall pay the above authorized annual amounts in equal quarterly installments from the county general funds of the respective counties.
    2. The payment of each county's pro rata part of the contingent expense allowance shall be upon approval of the county judge of each of the respective counties.

History. Acts 1971, No. 262, § 2; 1979, No. 443, § 1; A.S.A. 1947, § 24-114.6.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

16-21-2203. Expense allowance — Seventeenth Judicial District-East.

  1. The office of the Prosecuting Attorney of the Seventeenth Judicial District shall receive a contingent expense reimbursement of two thousand four hundred dollars ($2,400) per annum to be borne by the respective counties of the Seventeenth Judicial District as follows:
    1. White County $1,400
    2. Prairie County 1,000
  2. The counties shall pay the authorized annual amounts in equal quarterly installments from the county general fund of the respective counties, and the checks shall be made payable to the office of the Prosecuting Attorney of the Seventeenth Judicial District. Disbursements shall be made by the prosecuting attorney for the necessary expenses of the office based upon adequate documentation.
  3. The prosecuting attorney or his or her deputies may also be allowed additional expenses upon appropriation of the quorum court and approval of the county judge.
  4. The prosecuting attorney shall be entitled to the following assistants and employees:
    1. One (1) chief deputy prosecuting attorney, whose salary shall be not less than forty-five thousand one hundred twenty-eight dollars ($45,128) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of White County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by White County;
      1. One (1) deputy prosecuting attorney for White County, whose salary shall be not less than thirty-five thousand eighteen dollars ($35,018) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of White County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by White County;
      2. One (1) deputy prosecuting attorney for White County, whose salary shall be not less than thirty-one thousand one hundred dollars ($31,100) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of White County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by White County;
      1. One (1) deputy prosecuting attorney for Prairie County, whose salary shall be not less than thirty-three thousand three hundred forty-two dollars ($33,342) per annum. The salary is to be paid in accordance with the pay periods and payroll policy for county employees of Prairie County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by Prairie County.
      2. The deputy prosecuting attorney for Prairie County shall be entitled to actual operating expenses of not less than thirteen thousand six hundred forty-six dollars ($13,646) to cover the cost of telephone, printing, supplies, equipment, janitorial services, cleaning supplies, food, service contracts, accounting, postage, photocopies, travel, training, utilities, rent, juror and witness fees, and such other expenses which, within the discretion of the prosecuting attorney, may be proper expenses of the office in connection with the investigation and prosecution of criminal activity within the district, to be paid by Prairie County;
    2. One (1) victim/witness coordinator and office manager, whose salary shall be not less than twenty-three thousand two hundred ninety-two dollars ($23,292). The salary is to be paid in accordance with the pay periods and payroll policy of White County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by White County;
    3. One (1) victim/witness clerk, whose salary shall be not less than eighteen thousand seven hundred forty-four dollars ($18,744). The salary is to be paid in accordance with the pay periods and payroll policy of White County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by White County;
    4. One (1) receptionist and municipal intake clerk, whose salary shall be not less than eighteen thousand seven hundred forty-four dollars ($18,744) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of White County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by White County;
    5. One (1) hot check clerk, whose salary shall be not less than seventeen thousand five hundred dollars ($17,500) per annum. The salary is to be paid in accordance with the pay periods and payroll policy of White County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by White County; and
    6. One (1) clerk, whose salary shall be not less than twelve thousand six hundred dollars ($12,600) per annum. The salary shall be paid in accordance with the pay periods and payroll policy of Prairie County. In addition to the salary, Social Security, matching retirement, insurance, and all related salary expenses shall be paid by Prairie County.
    1. The quorum courts of the respective counties of the Seventeenth Judicial District shall annually appropriate out of the funds sufficient amounts to cover the salaries and expenses provided for in this section.
    2. The salaries and expenses provided for in this section are minimum provisions only, and the quorum courts of the respective counties may appropriate any additional funds they deem necessary for the efficient operation of the office of the prosecuting attorney.
  5. A deputy prosecuting attorney who is duly appointed in any county of the Seventeenth Judicial District shall have the authority to perform all official acts as deputy prosecuting attorney in all counties within the district.

History. Acts 1995, No. 886, §§ 1-3; 1997, No. 988, § 1; 1999, No. 1001, § 1.

A.C.R.C. Notes. As enacted by Acts 1995, No. 886, § 1, subsection (d) of this section began:

“Retroactive to January 1, 1995 and thereafter.”

Publisher's Notes. Former § 16-21-2203, concerning Seventeenth Judicial District-East expense allowance, was repealed by implication by Acts 1995, No. 886. The former section was derived from Acts 1987, No. 1043, §§ 1, 2.

Amendments. The 1997 amendment rewrote this section.

The 1999 amendment rewrote this section.

Case Notes

Cited: Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996).

Subchapter 23 — Eighteenth Judicial District

16-21-2301. Expense allowance.

The Garland County Quorum Court may appropriate from the county treasury such funds as it deems necessary to defray the expenses of the Prosecuting Attorney of the Eighteenth Judicial District-East.

History. Acts 1987, No. 669, § 1.

Subchapter 24 — Nineteenth Judicial District

Cross References. Nineteenth Judicial District, § 16-13-2701 et seq. and § 16-13-3001 et seq. [repealed]. For present law, see § 16-21-2401 et seq.

Effective Dates. Acts 1969, No. 71, §§ 2, 3: retroactive to Jan. 1, 1969. Emergency clause provided: “It has been ascertained and determined by the General Assembly of the State of Arkansas that on enactment of the General Assembly of the State of Arkansas, Act 304 of 1967, Section 6, a legal uncertainty as to contingent expense allowance of the prosecuting attorney for the newly created Nineteenth Judicial Circuit was created; that the contingent expense allowance of the prosecuting attorney of the Nineteenth Judicial Circuit is in equal amount of the total contingent expense allowance of the prosecuting attorney of the Fourth Judicial Circuit of which the Nineteenth Judicial Circuit was a part; that the stated contingent expense allowance is necessary to reimburse said prosecuting attorney for expenses incurred in the performance of his duties, and that the efficient operation of the courts and the administration of justice in the Nineteenth Judicial Circuit has been jeopardized by this uncertainty as to the said expense allowance. 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.” Became law without Governor's signature, Feb. 19, 1969.

Acts 1983, No. 386, § 9: became law without Governor's signature, Mar. 10, 1983. Emergency clause provided: “It is hereby found and determined by the Seventy-Fourth General Assembly that because of the vagueness of Act 685 of 1979, legislation is immediately necessary to establish the financing of the prosecuting attorney's office for the 19th Judicial Circuit. The legislation is designed to allow the prosecuting attorney's office of the 19th Judicial Circuit to establish and operate at its current level and to provide for any future needs. 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.”

16-21-2401. Contingent expense allowance.

  1. In lieu of any other contingent expense allowance now provided by law for the Prosecuting Attorney of the Nineteenth Judicial District, the prosecuting attorney shall hereafter receive a contingent expense allowance to be borne by the respective counties of the Nineteenth Judicial District as follows:
    1. Benton County $1,750; and
    2. Carroll County $750.
  2. The counties in the Nineteenth Judicial District shall pay the above prescribed annual amounts in equal monthly installments.

History. Acts 1969, No. 71, § 1; A.S.A. 1947, § 24-114.5.

16-21-2402. Reimbursement of expenses of Benton County office.

  1. The Quorum Court of Benton County shall furnish the Prosecuting Attorney of the Nineteenth Judicial District and his Benton County staff adequate office space in the Benton County Courthouse or, in lieu thereof, appropriate funds for the rental of office facilities and all expenses associated therewith.
  2. The Benton County Quorum Court shall appropriate adequate funds for reimbursing the prosecuting attorney for the actual expenses of the Benton County office, including, but not limited to, telephone, telegraph, postage, printing, office supplies and equipment, stationery, traveling expenses, and such other expenses which the quorum court may deem a proper expense of the prosecutor's office.

History. Acts 1983, No. 386, § 6; A.S.A. 1947, § 24-114.14.

16-21-2403. Reimbursement of expenses of Carroll County office.

The Carroll County Quorum Court shall appropriate adequate funds for reimbursing the Prosecuting Attorney of the Nineteenth Judicial District for the actual expenses of the Carroll County office, including, but not limited to, telephone, telegraph, postage, printing, office supplies and equipment, stationery, traveling expenses, and such other expenses which the quorum court may deem a proper expense of the prosecutor's office.

History. Acts 1983, No. 386, § 7; A.S.A. 1947, § 24-114.14a.

Subchapter 25 — Twentieth Judicial District

Effective Dates. Acts 1999, No. 1238, § 5: Apr. 8, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that this act is essential to the operation of the criminal justice system within the Twentieth (20th) Judicial District. It is also hereby found and determined by the General Assembly that the prosecuting attorney for the Twentieth (20th) Judicial District is in need of these personnel in order to combat crime in the Twentieth (20th) Judicial District. 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 2009, No. 794, § 2: Apr. 3, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that investigators are a vital tool used in the prosecution of criminal offenders; that currently their powers are not specifically provided; and that this act is immediately necessary because the immediate need for empowered investigators is of vital public interest. 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.”

16-21-2501. Investigators.

  1. The prosecuting attorney of the Twentieth Judicial District is hereby authorized to appoint and employ certified law enforcement officers as investigators for the prosecuting attorney's office.
  2. In addition to the investigators listed in subsection (a) of this section, the prosecuting attorney shall have the authority to appoint or employ with or without pay at his or her discretion other investigators necessary for the administration of justice.
    1. An investigator authorized and appointed shall:
      1. Have the authority to issue process, serve warrants, and possess all powers of a law enforcement officer;
      2. Be a certified law enforcement officer commissioned by the Arkansas Commission on Law Enforcement Standards and Training; and
      3. Be defined as a public safety member.
      1. If an investigator issues process or serves warrants, the office of the prosecuting attorney shall be entitled to receive the same fee a sheriff is authorized to charge under § 21-6-307.
      2. The fee is to be deposited into the hot check fees account.
  3. A deputy prosecuting attorney and a staff member designated by the prosecuting attorney shall be considered a law enforcement officer for all protective, emergency, investigative, and commercial purposes, either individually or in coordination with interagency cooperative investigation and operations.

History. Acts 1999, No. 1238, § 1; 2009, No. 794, § 1.

Amendments. The 2009 amendment inserted “and employ” in (a); rewrote (b); and added (c) and (d).

Subchapter 26 — Twenty-First Judicial District

[Reserved]

A.C.R.C. Notes. Acts 1995, No. 1148, § 4, provided, in part:

“Provided, however, that in the event that the district is separated into two districts or one county is removed from the district by state action, the shared time personnel currently funded by Sebastian County will be funded full time by Sebastian County. Provided further, that in the event that a Deputy within the district is selected to be interim Prosecutor said Deputy may take a leave of absence to fulfill this duty. Upon completion of said duty, the Deputy shall be entitled to return to either District's Prosecutor's Office with the consent of the Prosecuting Attorney at the level of funding that said Deputy would have been paid at had he not accepted the appointment duty. The Prosecutor of the Twelfth Circuit, at the request of the interim Prosecutor of the new District, may designate a Deputy to serve as the Deputy Prosecuting Attorney of the new District. In the event that this procedure is followed, that Deputy shall be able to return to Sebastian County at the same pay as he is receiving at the time he is transferred back to Sebastian County from Crawford County at the end of the interim Prosecutor's term or any time before hand. For purposes of this Act, the new District shall be considered the one which is formed with Crawford County as a member county. Upon division, the prosecutor shall transfer all district equipment to Crawford County that is currently placed within the Crawford County Office at the time of the effective date of this Act and all equipment assigned to full time Crawford County personnel at the effective date of the separation Act.”

Cross References. Composition, § 16-13-2901 et seq.

The Twenty-first Judicial District, § 16-21-152.

Subchapter 27 — Twenty-Second Judicial District

16-21-2701. Investigators.

  1. The Prosecuting Attorney of the Twenty-second Judicial District shall be entitled to appoint and employ one (1) investigator at not less than twenty-one thousand dollars ($21,000), to be paid by Saline County when approved by the quorum court and payment is approved by the county judge.
  2. In addition to the investigator listed by salary in subsection (a) of this section, the Prosecuting Attorney of the Twenty-second Judicial District shall have the authority to appoint and employ other investigators as necessary for the administration of justice.
    1. All investigators authorized and so appointed shall have the authority to issue process, serve warrants, and possess all law enforcement officer powers.
    2. They shall be certified law enforcement officers commissioned by the Arkansas Commission on Law Enforcement Standards and Training and shall be defined as public safety members under Arkansas law.
    3. In the event that investigators shall issue process or serve warrants, the prosecutor's office shall be entitled to receive the same fee as provided in § 21-6-307, which shall be deposited into the hot check fees account.

History. Acts 1999, No. 1419, § 1; 2007, No. 211, § 1.

Chapter 22 Attorneys At Law

Research References

Am. Jur. 7 Am. Jur. 2d, Attys., § 1 et seq.

Ark. L. Rev.

Arkansas' Judiciary: Its History and Structure, 18 Ark. L. Rev. 152.

Brill, The Arkansas Code of Judicial Conduct, 35 Ark. L. Rev. 247.

Subchapter 1 — General Provisions

16-22-101. Lawyer referral services.

  1. It is unlawful for any person or organization to operate a lawyer referral service without prior approval of the Arkansas Supreme Court. “Lawyer referral service” means referring clients to attorneys and receiving compensation for the referral.
    1. Any court of competent jurisdiction may order any person or organization violating this section to cease and desist from operating a lawyer referral service.
    2. Any person or entity failing to comply with the court order shall be deemed in contempt of court and subject to such punishment as prescribed by the court.

History. Acts 1991, No. 55, §§ 1, 2.

Case Notes

Cited: In re Arkansas Bar Ass'n, 323 Ark. 203, 913 S.W.2d 768 (1996).

16-22-102. Delinquent noncustodial parents.

The Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration, upon reaching a cooperative agreement with the Arkansas Supreme Court, is hereby authorized to develop procedures under which the Clerk of the Supreme Court may each year furnish the Office of Child Support Enforcement with a list of those persons who possess a law license and the office shall notify the Clerk of the Supreme Court regarding a review of the law license whenever a noncustodial parent on the list is delinquent on a court-ordered child support payment or an adjudicated arrearage in an amount equal to six (6) months' obligation or more or is the subject of an outstanding failure to appear warrant, body attachment, or bench warrant pursuant to a child support order.

History. Acts 1993, No. 1253, § 1.

Subchapter 2 — Admission and Practice

Publisher's Notes. Some provisions of this subchapter may be superseded by the Arkansas Rules Governing Admission to the Bar.

Cross References. Regulating practice of law, Const., Amend. 28.

Effective Dates. Acts 1917, No. 361, § 3: effective on passage.

Acts 1917, No. 362, § 2: effective on passage.

Acts 1927, No. 199, § 2: effective on passage.

Acts 1929, No. 182, § 7: approved Mar. 23, 1929. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in force from and after its passage.”

Acts 1935, No. 168, § 5: approved Mar. 21, 1935. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared, and this act shall take effect and be in force from and its passage.”

Acts 1958 (2nd Ex. Sess.), No. 11, § 2: Sept. 12, 1958. Emergency clause provided: “It has been found and declared by the General Assembly that the orderly administration of the educational facilities of Arkansas have been subjected to abuse by reason of the exemption granted them under the terms of Act 182, Ark. Acts of 1929, § 5 and it is to the public interest that our public schools be administered without such interference, and the passage of this act will tend to alleviate such a situation. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 2011, No. 858, § 2: Mar. 31, 2011. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there are many indigent, poor, or disadvantaged persons in Arkansas who need legal representation; that there are nonprofit corporations and voluntary associations that already are authorized to provide legal assistance to those in need; and that this act is immediately necessary to ensure that citizens in Arkansas have the opportunity to receive legal services in a timely manner. 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.”

Research References

ALR.

Law student acting as counsel. 3 A.L.R.4th 358.

Failure to pay creditors affecting applicant's moral character for purposes of admission to the bar. 4 A.L.R.4th 436.

Solicitation of business by or for attorney. 5 A.L.R.4th 866.

Right of party mitigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law. 7 A.L.R.4th 1146.

Lay person's assistance to party in divorce proceeding as unauthorized practice of law. 12 A.L.R.4th 656.

Reciprocity provisions for admission to bar. 14 A.L.R.4th 7.

Impersonations and other irresponsible conduct as bearing on moral character. 30 A.L.R.4th 1020.

Bar admission or reinstatement of attorney as affected by alcoholism or alcohol abuse. 39 A.L.R.4th 567.

Formal educational requirement for bar admission. 44 A.L.R.4th 910.

Am. Jur. 7 Am. Jur. 2d, Attys, § 12 et seq.

Ark. L. Rev.

Legal Education in Arkansas, 16 Ark. L. Rev. 191.

Legal Profession — Aiding the Unauthorized Practice of Law, 17 Ark. L. Rev. 101.

C.J.S. 7 C.J.S., Atty & C., § 10 et seq.

16-22-201. Qualifications for admission.

  1. Every citizen of the age of twenty-one (21) years, of good moral character, and who possesses the requisite qualifications of learning and ability may, upon application and in the manner provided for in this subchapter, be admitted to practice as an attorney and counselor at law in the courts of this state.
  2. It shall be lawful for the Supreme Court to admit to practice as an attorney and counselor at law in the courts of this state any citizen under the age of twenty-one (21) years who is of good moral character and who possesses the other requisite qualifications of learning and ability, and who is a graduate of any accredited, recognized, or Class A law school.

History. Civil Code, § 760; Acts 1873, No. 88, § 1 [760], p. 213; 1917, No. 362, § 1, p. 1787; C. & M. Dig., § 596; Acts 1927, No. 199, § 1; Pope's Dig., § 633; A.S.A. 1947, § 25-101.

Cross References. Removal of disqualification for criminal offenses, § 17-1-103.

Research References

ALR.

Sexual conduct or orientation as ground for denial of admission to bar. 105 A.L.R.5th 217.

Falsehoods, misrepresentations, impersonations, and other irresponsible conduct as bearing on requisite good moral character for admission to bar — Conduct related to admission to bar. 107 A.L.R.5th 167.

Failure to pay creditors as affecting applicant's moral character for purposes of admission to the bar. 108 A.L.R.5th 289.

Criminal record as affecting applicant's moral character for purposes of admission to the bar. 3 A.L.R.6th 49.

U. Ark. Little Rock L.J.

Sallings, Survey of Arkansas Law, 3 U. Ark. Little Rock L.J. 277.

Case Notes

Rules.

Authority of court in regulating the practice of law includes the preparation of rules determining and setting out the qualifications of one who desires to take the bar examination. In re Pitchford, 265 Ark. 752, 581 S.W.2d 321, cert. denied, 444 U.S. 863, 100 S. Ct. 131, 62 L. Ed. 2d 85 (1979).

16-22-202. Examination required — Petition.

Every applicant for admission to practice law in the courts of this state shall be examined pursuant to rules of the Supreme Court of this state and shall, before his or her admission, produce to the court, by sworn petition, satisfactory proof of the qualifications found in § 16-22-201.

History. Civil Code, § 760; Acts 1873, No. 88, § 1 [760], p. 213; 1917, No. 361, § 1, p. 1786; C. & M. Dig., § 598; Acts 1929, No. 32, § 1; Pope's Dig., § 638; A.S.A. 1947, § 25-103.

Publisher's Notes. Acts 1917, No. 361, § 1, provided in part that the provisions of that act would not apply to any person to whom a license to practice law in any court of record in the state had theretofore been issued.

Case Notes

Cited: Feldman v. State Bd. of Law Exmrs., 438 F.2d 699 (8th Cir. 1971); Taylor v. Safly, 276 Ark. 541, 637 S.W.2d 578 (1982).

16-22-203. Board of examiners.

The Supreme Court may appoint a board of examiners from practitioners in the Supreme Court for each judicial district to conduct the examinations for license, according to a standard adopted by the Supreme Court.

History. Acts 1917, No. 361, § 2, p. 1786; C. & M. Dig., § 599; Pope's Dig., § 639; A.S.A. 1947, § 25-104.

Publisher's Notes. For exclusion of certain persons from provisions of this section, see Publisher's Note to § 16-22-202.

16-22-204. Authority of Justice or judge to license.

No Justice of the Supreme Court or judge of the circuit or other court shall have power to license any applicant to practice law, but such power shall be exercised by the courts of this state, by proper orders, duly recorded.

History. Civil Code, § 760; Acts 1873, No. 88, § 1 [760], p. 213; C. & M. Dig., § 597; Pope's Dig., § 634; A.S.A. 1947, § 25-102.

16-22-205. Oath.

Any person admitted to practice law in this state shall make oath to support the Constitutions of the United States and of the State of Arkansas and to faithfully discharge the duties of the office upon which he is about to enter.

History. Civil Code, § 760; Acts 1873, No. 88, § 1 [760], p. 213; 1917, No. 361, § 1, p. 1786; C. & M. Dig., § 598; Acts 1929, No. 32, § 1; Pope's Dig., § 638; A.S.A. 1947, § 25-103.

Publisher's Notes. For exclusion of certain persons from provisions of this section, see Publisher's Note to § 16-22-202.

Research References

U. Ark. Little Rock L.J.

Wolfram, Lawyer Turf and Lawyer Regulation — The Role of the Inherent-Powers Doctrine, 12 U. Ark. Little Rock L.J. 1.

Case Notes

Cited: Feldman v. State Bd. of Law Exmrs., 438 F.2d 699 (8th Cir. 1971); Taylor v. Safly, 276 Ark. 541, 637 S.W.2d 578 (1982).

16-22-206. Entitlement to practice.

No person shall be licensed or permitted to practice law in any of the courts of record of this state until he has been admitted to practice by the Supreme Court of this state, and every person so admitted shall be entitled to practice in all the courts of this state.

History. Civil Code, § 760; Acts 1873, No. 88, § 1 [760], p. 213; 1917, No. 361, § 1, p. 1786; C. & M. Dig., § 598; Acts 1929, No. 32, § 1; Pope's Dig., § 638; A.S.A. 1947, § 25-103.

Publisher's Notes. For exclusion of certain persons from provisions of this section, see Publisher's Note to § 16-22-202.

Case Notes

In General.

Only the Supreme Court can license persons to practice law. McGehee v. State, 182 Ark. 603, 32 S.W.2d 308 (1930).

The court did not deny assistance of counsel to the plaintiff when it did not allow two non-attorneys to represent him in court. Hooker v. Deere Credit Servs., Inc., 62 Ark. App. 293, 971 S.W.2d 267 (1998).

Where couple's attorneys admitted that they were licensed in Oklahoma, but not Arkansas, they were unauthorized to practice law in Arkansas and the complaint they filed on behalf of the couple was properly dismissed. Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003).

Trial court abused its discretion in denying plaintiff's motion for default judgment because the answer filed on behalf of defendant was a nullity under Ark. R. Civ. P. 11(a) and this section as it was not signed by defendant or a person authorized to practice law in Arkansas. Defendant's mother was not authorized to sign the answer on his behalf, and there was nothing in the record to show that she held a valid power of attorney. Because no valid answer was timely filed, a default judgment should have been entered in favor of plaintiff. White v. Clay, 2013 Ark. App. 166 (2013).

Admission Pro Hac Vice.

Where appellants' attorneys, who were licensed in Oklahoma but not in Arkansas, filed appellants' medical malpractice complaint on the last day of the limitations period but did not file motions for admission pro hac vice until eight months later, the trial court properly dismissed the complaint; since Ark. R. Admis. Bar. XIV required that the pro hac vice motions be filed before the attorneys practiced law in Arkansas, the complaint was a nullity and, thus, no valid complaint was filed within the limitations period. Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003).

License.

It is illegal to practice law in Arkansas without a license. All City Glass & Mirror, Inc. v. McGraw Hill Info. Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988).

After trial court entered order finding that child was a member of a family in need of services the father attempted to appeal on the child's behalf but he was not a licensed attorney who could represent the child on an appeal, and the matter was not a final order. Bass v. State, 93 Ark. App. 411, 219 S.W.3d 697 (2005).

Out-of-State Attorney.

Appeal from a decision in a workers' compensation case was dismissed as untimely where an attorney from Texas filed notices of appeal on behalf of an insurer since he failed to comply with Ark. R. Admis. Bar XIV until later. As such, the pleadings were rendered a nullity. Clarendon Am. Ins. Co. v. Hickok, 370 Ark. 41, 257 S.W.3d 43 (2007).

Pro Se Appearances.

Appellant, who appeared pro se, but tendered a motion on behalf of other appellants, is not a licensed attorney, may not practice law in Arkansas, and may not represent other appellants in this case. Abel v. Kowalski, 323 Ark. 201, 913 S.W.2d 788 (1996).

Because appellant, who was appearing pro se, filed motions on behalf of himself and other parties in the lawsuit, a motion to dismiss the appeal as to all parties besides appellant was granted because he was engaging in the unauthorized practice of law. Davidson Props., LLC v. Summers, 368 Ark. 283, 244 S.W.3d 674 (2006).

Cited: Feldman v. State Bd. of Law Exmrs., 438 F.2d 699 (8th Cir. 1971); Taylor v. Safly, 276 Ark. 541, 637 S.W.2d 578 (1982); SMG 1054, Inc. v. Thompson, 2014 Ark. App. 149 (2014); SMG 1054, Inc. v. Thompson, 2014 Ark. App. 524, 443 S.W.3d 574 (2014).

16-22-207. Register of licensed attorneys.

It shall be the duty of the clerk of each court of record to keep a register in which he shall register and enroll every attorney or counselor at law licensed to practice in the court of which he is clerk.

History. Rev. Stat., ch. 15, § 6; C. & M. Dig., § 600; Pope's Dig., § 640; A.S.A. 1947, § 25-105.

Cross References. Fees of officers of the court, § 21-6-401 et seq.

16-22-208. Barratry or maintenance — Disciplinary action by circuit and chancery courts.

  1. Any person, not a member of the Bar of Arkansas, who shall commit or who shall conspire to commit any act defined by the law of this state to be barratry or maintenance, or who shall solicit for himself or for another person who is not a member of the Bar of Arkansas in any manner or by any method the handling of claims or litigation involving injuries to persons or damage to property, in such a manner as would constitute the practice of law, shall be deemed to have submitted himself to the personal jurisdiction of any circuit or chancery court having territorial jurisdiction of the county where the act was committed for disciplinary proceedings in the same manner as if he were a member of the Bar of Arkansas.
  2. In addition to any other lawful action the court might take in proceedings under this section, the court shall be authorized to enter an injunction restraining the commission of any acts mentioned in subsection (a) of this section and may enforce the injunction with contempt proceedings as provided by law in other cases.
  3. It is declared to be the intent of this section to be in aid of and subordinate to the right of the Supreme Court of Arkansas to regulate and define the practice of law and prevent and prohibit the unauthorized or unlawful practice thereof by appropriate rules, orders, and penalties.

History. Acts 1961, No. 438, §§ 1-3; A.S.A. 1947, §§ 25-215 — 25-217.

Research References

Ark. L. Rev.

Note, Eaton and Benton v. Supreme Court of Arkansas Committee on Professional Conduct: Restrictions on Legal Advertising, 35 Ark. L. Rev. 549.

Case Notes

Cited: Feldman v. State Bd. of Law Exmrs., 438 F.2d 699 (8th Cir. 1971); McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973).

16-22-209. Practicing without license — Contempt of court.

Every person who shall attempt to practice law in any court of record without being licensed, sworn, and registered, as required in this subchapter, shall be deemed guilty of a contempt of court and shall be punished as in other cases of contempt.

History. Rev. Stat., ch. 15, § 7; C. & M. Dig., § 601; Pope's Dig., § 641; A.S.A. 1947, § 25-106.

Research References

ALR.

What constitutes unauthorized practice of law by paralegal. 109 A.L.R.5th 275.

Unauthorized Practice of Law as Contempt. 40 A.L.R.6th 463.

Case Notes

Admission Pro Hac Vice.

Where appellants' attorneys, who were licensed in Oklahoma but not in Arkansas, filed appellants' medical malpractice complaint on the last day of the limitations period but did not file motions for admission pro hac vice until eight months later, the trial court properly dismissed the complaint; since Ark. R. Admis. Bar. XIV required that the pro hac vice motions be filed before the attorneys practiced law in Arkansas, the complaint was a nullity and, thus, no valid complaint was filed within the limitations period. Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003).

Real Estate Brokers.

For a discussion of the unlawful practice of law by real estate brokers, see Ark. Bar Ass'n v. Block, 230 Ark. 430, 323 S.W.2d 912, cert. denied, 361 U.S. 836, 80 S. Ct. 87 (1959), overruled in part, Creekmore v. Izard, 236 Ark. 558, 367 S.W.2d 419 (1963).

Scope of License.

Every attorney regularly licensed and duly admitted to practice in the courts of this state possesses a license to appear in those courts for any suitors who may retain him; but his license is not of itself an authority to appear for any particular person until he is in fact employed or retained by him. Cartwell v. Menifee, 2 Ark. 356 (1840).

Cited: Tally v. Reynolds, 1 Ark. 99 (1838); Conway County v. Little Rock & F.S. Ry., 39 Ark. 50 (1882); Visart v. Bush, 46 Ark. 153 (1885); Concrete Wallsystems of Ark., Inc. v. Master Paint Indus. Coating Corp., 95 Ark. App. 21, 233 S.W.3d 157 (2006); Clarendon Am. Ins. Co. v. Hickok, 370 Ark. 41, 257 S.W.3d 43 (2007).

16-22-210. Clerk or sheriff not to act as attorney.

No clerk of any court of record in this state or sheriff, while he continues to act as such, shall under any pretense whatever act as an attorney at law in the court of which he is clerk or in the county in which he is sheriff.

History. Rev. Stat., ch. 15, § 9; C. & M. Dig., § 602; Pope's Dig., § 642; A.S.A. 1947, § 25-107.

Cross References. Judges barred from practicing law, Ark. Const., Art. 7, § 25.

16-22-211. Corporations or associations — Practice of law or solicitation prohibited — Exceptions — Penalty.

  1. It shall be unlawful for any corporation or voluntary association to practice or appear as an attorney at law for any person in any court in this state or before any judicial body, to make it a business to practice as an attorney at law for any person in any of the courts, to hold itself out to the public as being entitled to practice law, to tender or furnish legal services or advice, to furnish attorneys or counsel, to render legal services of any kind in actions or proceedings of any nature or in any other way or manner, or in any other manner to assume to be entitled to practice law or to assume or advertise the title of lawyer or attorney, attorney at law, or equivalent terms in any language in such a manner as to convey the impression that it is entitled to practice law or to furnish legal advice, service, or counsel or to advertise that either alone or together with or by or through any person, whether a duly and regularly admitted attorney at law or not, it has, owns, conducts, or maintains a law office or any office for the practice of law or for furnishing legal advice, services, or counsel.
  2. It also shall be unlawful for any corporation or voluntary association to solicit itself by or through its officers, agents, or employees any claim or demand for the purpose of bringing an action thereon or of representing as attorney at law or for furnishing legal advice, services, or counsel to a person sued or about to be sued in any action or proceeding or against whom an action or proceeding has been or is about to be brought, or who may be affected by any action or proceeding that has been or may be instituted in any court or before any judicial body, or for the purpose of so representing any person in the pursuit of any civil remedy.
  3. The fact that any officer, trustee, director, agent, or employee shall be a duly and regularly admitted attorney at law shall not be held to permit or allow any such corporation or voluntary association to do the acts prohibited in this section, nor shall that fact be a defense upon the trial of any of the persons mentioned for a violation of the provisions of this section.
  4. This section does not apply to a:
    1. For-profit corporation or voluntary association lawfully engaged in:
      1. The examination and insuring of titles to real property; or
      2. Employing an attorney or attorneys in and about its own immediate affairs or in any litigation to which it is or may become a party;
    2. Nonprofit corporation or voluntary association lawfully engaged in representing or assisting an indigent, poor, or disadvantaged person as a client in a civil or criminal matter, if any legal services rendered by the nonprofit corporation or voluntary association are furnished through licensed attorneys in accordance with rules governing the practice of law in Arkansas; or
    3. Nonprofit corporation, voluntary association, or instrumentality of the government recognized under 26 U.S.C. § 115 that is engaged in representing or assisting as a client in a civil matter one (1) of the following entities, if any legal services rendered are furnished through licensed attorneys in accordance with rules governing the practice of law in Arkansas:
      1. A city, county, or public school district;
      2. The officers and employees of a city, county, or public school district;
      3. A self-funding group of a city, county, or public school district as required under § 14-60-101 et seq., § 14-26-101 et seq., or § 6-17-1401 et seq.; or
      4. A self-insurance risk pool of a city, county, or public school district.
    1. Nothing contained in this section shall be construed to prevent a corporation from furnishing to any person lawfully engaged in the practice of law such information or such clerical services in and about his or her professional work as may be lawful, except for the provisions of this section, if at all times the lawyer receiving such information or such services shall maintain full professional and direct responsibility to his or her clients for the information and services so received.
    2. However, no corporation shall be permitted to render any services that cannot lawfully be rendered by a person not admitted to practice law in this state nor to solicit directly or indirectly professional employment for a lawyer.
    1. Any corporation or voluntary association violating any of the provisions of this section shall be guilty of a violation and punished by a fine of not less than one hundred dollars ($100) nor more than five thousand dollars ($5,000).
    2. Every officer, trustee, director, agent, or employee of the corporation or voluntary association who directly or indirectly engages in any of the acts prohibited in this section or assists such a corporation or voluntary association to do such prohibited acts shall be guilty of a violation and shall be punished by a fine of not less than one hundred dollars ($100) nor more than five thousand dollars ($5,000).

History. Acts 1929, No. 182, §§ 1-6; Pope's Dig., §§ 3630-3635; Acts 1958 (2nd Ex. Sess.), No. 11, § 1; A.S.A. 1947, §§ 25-205 — 25-210; Acts 2005, No. 1994, § 82; 2011, No. 858, § 1; 2017, No. 558, § 1.

Amendments. The 2011 amendment added (d)(2); inserted “For-profit” at the beginning of (d)(1); and deleted “nor shall it prohibit a corporation or a voluntary association from” at the beginning of (d)(1)(B).

The 2017 amendment substituted “does” for “shall” in the introductory language of (d); in (d)(2), substituted “if” for “provided that”, substituted “the nonprofit” for “a nonprofit”, and deleted “duly” preceding “licensed”; and added (d)(3).

Research References

ALR.

What constitutes unauthorized practice of law by paralegal. 109 A.L.R.5th 275.

Ark. L. Notes.

Laurence, Recent Developments in the Arkansas Law of Garnishment: Does a Corporate Garnishee Need a Lawyer to Answer the Writ?, 1997 Ark. L. Notes 95.

Ark. L. Rev.

Legal Profession — Unauthorized Practice — Practice of Law by Banks, 9 Ark. L. Rev. 67.

Professional Corporations — A Current Appraisal, 23 Ark. L. Rev. 215.

Swimming Upstream: A Final Attempt at Persuasion on the Issue of Corporate Pro Se Representation in Arkansas State Court, 54 Ark. L. Rev. 475 (2001).

Rachel A. Orr, Recent Developments: Nonlawyer's Pro Se Representation of a Corporation in Arbitration Proceedings Constitutes the Unauthorized Practice of Law, 65 Ark. L. Rev. 517 (2012).

Dwayne D. Hedges, Case Note: Brown v. Kelton: The Arkansas Prohibition on the Use of Employee Attorneys to Defend the Insured, 65 Ark. L. Rev. 953 (2012).

Suzannah R. McCord, Comment: Corporate Self-Representation: Is It Truly the Unauthorized Practice of Law?, 67 Ark. L. Rev. 371 (2014).

U. Ark. Little Rock L. Rev.

Pierce G. Hunter, Note: Constitutional Law — Unauthorized Practice of Law: Driving Legal Business Without a License, 36 U. Ark. Little Rock L. Rev. 201 (2014).

Case Notes

Activities Not Prohibited.

A banking corporation is not engaged in the unauthorized practice of law when it advertises its services as a fiduciary, recommends that the public consult with their attorneys, and does not attempt to perform legal services in general. A banking corporation, through its employee attorneys, is not engaged in the unauthorized practice of law when it compiles and drafts inventories and accounts in probate. Ark. Bar Ass'n v. Union Nat'l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954).

Appearance.

An appeal in an action by a foreign corporation was dismissed where, inter alia, the corporation was not represented by a person authorized to practice law in Arkansas. Roma Leathers, Inc. v. Ramey, 68 Ark. App. 1, 2 S.W.3d 82 (1999).

Arbitration Proceedings.

Nonlawyer's representation of a corporation in arbitration proceedings constitutes the unauthorized practice of law. Arbitration proceedings bear significant indicia of legal proceedings under the Uniform Arbitration Act, which has been adopted by Arkansas, and if a hearing is held during arbitration, the parties have the right to be heard, present evidence material to the controversy, and cross-examine witnesses appearing at the hearing. NISHA, LLC v. TriBuilt Constr. Group, LLC, 2012 Ark. 130, 388 S.W.3d 444 (2012).

Insurers.

Insurance company was prohibited by this section from appointing one of its in-house attorneys to represent a defendant insured in litigation arising out of an accident. It was undisputed that the insurer was not and would not become a party to the lawsuit as provided in one of the exceptions to this section. Brown v. Kelton, 2011 Ark. 93, 380 S.W.3d 361 (2011).

Self-Representation.

A banking corporation cannot practice law directly or indirectly through employee attorneys, except that it may represent itself in the courts through employee attorneys in its own business affairs. Ark. Bar Ass'n v. Union Nat'l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954).

Although individuals may represent themselves, corporations must be represented by licensed attorneys. All City Glass & Mirror, Inc. v. McGraw Hill Info. Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988).

Unlawful Practice.

A banking corporation, through its employee attorneys, is engaged in the unauthorized practice of law when its attorneys draft fiduciary instruments, prepare and file court papers, appear in court in pending litigation or to invoke processes for its beneficiaries, cofiduciaries or others than the corporation, or advise persons other than the corporation as to legal matters. Ark. Bar Ass'n v. Union Nat'l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954).

Where abstract and title insurance companies draft and prepare for others instruments involving real property and do title examination and curative work for others, they are engaged in the unauthorized practice of law. Beach Abstract & Guar. Co. v. Bar Ass'n, 230 Ark. 494, 362 S.W.2d 900 (1959).

County, circuit, and appellate courts lacked jurisdiction over a corporate taxpayer's appeal because, while the taxpayer maintained that it was represented by an attorney at all stages of the case, its petitions for appeal filed in county court were signed by its accounting manager and not its attorney, the accounting manager was practicing law in violation of Arkansas law when he signed the petitions, and the petitions were null and void. Stephens Prod. Co. v. Bennett, 2015 Ark. App. 617 (2015).

Despite § 26-27-318(a)(1)(A) and a property owner's right to appeal an assessment, corporations are prohibited from acting pro se or representing themselves in legal actions. Desoto Gathering Co., LLC v. Hill, 2017 Ark. 326, 531 S.W.3d 396 (2017).

Circuit court did not err in dismissing a company's tax assessment appeal for lack of jurisdiction when its tax manager, a nonlawyer, initiated the appeal on its behalf because the company invoked the legal process and its nonattorney representative engaged in the unauthorized practice of law. Because the notices of appeals were consequently a nullity and the deadline for filing an appeal under § 26-27-318 had lapsed when the amended notices were filed, the petitions of appeal were a nullity. Desoto Gathering Co., LLC v. Hill, 2017 Ark. 326, 531 S.W.3d 396 (2017).

Validity of Instruments Unlawfully Prepared.

Deed prepared by nonlawyer, who also gives advice as to its legal effect, is not void, although amounting to the unauthorized practice of law, since this section only penalizes the persons engaged in the unlawful practice. Gaylor v. Gaylor, 224 Ark. 644, 275 S.W.2d 644 (1955).

Cited: Ark. Bar Ass'n v. Union Nat'l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954); SMG 1054, Inc. v. Thompson, 2014 Ark. App. 149 (2014); SMG 1054, Inc. v. Thompson, 2014 Ark. App. 524, 443 S.W.3d 574 (2014).

16-22-212. Disbarment in another state — Effects.

  1. It shall be unlawful for any person to practice law or attempt to practice law in any court in this state or to solicit business as or in any manner represent himself or herself to be an attorney at law when such a person so practicing or attempting to practice law or soliciting business as or representing himself or herself to be an attorney at law has previously been disbarred from the practice of law in any other state of the United States of America while a resident of that state.
    1. No person shall be admitted to practice law in this state who has been disbarred from the practice of law in any other state.
    2. The disbarment of any person from the practice of law in any other state shall operate as a disbarment of the person from the practice of law in this state under any license, permit, or enrollment issued to the person by any court in this state prior to his or her disbarment in the other state.
    3. A certified copy of the order, judgment, or decree of the disbarment in the other state shall be prima facie evidence of the disbarment in the other state when filed in any court in this state.
  2. It shall be unlawful for any judge of any court of record, district judge, mayor, or other judge or magistrate to knowingly permit any person to practice law or attempt to practice law, or to appear in any manner as an attorney at law before him or her or in his or her court in violation of any of the terms and provisions of this section.
    1. Any person violating the terms of this section shall be guilty of a violation and upon conviction shall be fined in any sum not less than five hundred dollars ($500) and not more than one thousand dollars ($1,000).
    2. Each violation of this section shall constitute a separate offense.

History. Acts 1935, No. 168, §§ 1-4; Pope's Dig., §§ 633, 635-637; A.S.A. 1947, §§ 25-201 — 25-204; Acts 2003, No. 1185, § 181; 2005, No. 1994, § 82.

Publisher's Notes. Acts 1935, No. 168, § 1, provided in part that the act would not apply to any person who had been disbarred in another state and who had been reinstated in the state where the disbarment occurred prior to January 1, 1935.

Amendments. The 2003 amendment, in (a), deleted “of the courts of record, municipal courts, justice courts, or any other” preceding “court in this state”; and made gender neutral and minor punctuation changes.

16-22-213. [Repealed.]

Publisher's Notes. This section, concerning advertising to directly solicit clients or encourage litigation, was repealed by Acts 2005, No. 1994 § 525. The section was derived from Acts 1987, No. 317, §§ 1, 2.

Subchapter 3 — Rights and Liabilities

Publisher's Notes. Former §§ 16-22-30116-22-304, concerning attorney liens, were repealed by Acts 1989, No. 293, § 3. They were derived from the following sources:

16-22-301. Acts 1941, No. 59, § 1; 1941, No. 306, § 1; A.S.A. 1947, § 25-301.

16-22-302. Acts 1941, No. 59, § 1; 1941, No. 306, § 1; A.S.A. 1947, § 25-301.

16-22-303. Acts 1941, No. 59, § 1; 1941; No. 306, § 1; A.S.A. 1947, § 25-301.

16-22-304. Acts 1909, No. 293, § 2, p. 892; C. & M. Dig., § 629; Pope's Dig., § 669; Acts 1983, No. 755, § 1; A.S.A. 1947, § 25-302.

Cross References. Attorney's fees, award of in refund action brought under Ark. Const., Art. 16, § 13, § 26-35-902.

Volunteers, liability for negligence in rendering legal services, § 16-6-104.

Effective Dates. Acts 1915, No. 240, § 3: approved Mar. 24, 1915. Emergency declared.

Acts 1987, No. 661, § 5: Apr. 6, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that the liability of accountants and attorneys to persons not in privity of contract with them should be specifically outlined by legislative enactment; that this Act establishes the limits of such liability; and that this Act should go into effect 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 1989, No. 293, § 4: Mar. 2, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the Supreme Court in Henry, Walden and Davis v. Goodman, 294 Ark. 25 (1987), limited the existing Attorney's Lien Law by allowing only a quantum meruit recovery in a case in which the attorney was dismissed by the client; that the Supreme Court's interpretation of the Attorney Lien Law is contrary to what was intended by the enactment of Acts 59 and 306 of 1941, the Attorney Lien Law; that an attorney should have the right to rely on his contract with his client; and that the Attorney's Lien Law should be reenacted to protect the contractual rights of attorneys. 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.”

Research References

ALR.

State statute or court rule fixing maximum fees for attorney appointed to represent indigent. 3 A.L.R.4th 576.

Attorney's death as affecting compensation under contingent fee contract. 9 A.L.R.4th 191.

Charging excessive fee as ground for disciplinary action. 11 A.L.R.4th 133.

Statute establishing contingent fee scale for attorneys representing parties in medical malpractice actions. 12 A.L.R.4th 23.

Statute or rule providing for arbitration of fee disputes between attorneys and their clients. 17 A.L.R.4th 993.

Attorney's charging lien as including services rendered or disbursements made in other than instant action or proceeding. 23 A.L.R.4th 336.

Referral fee agreement between attorneys. 28 A.L.R.4th 665.

“Structured settlement” and attorney's fees arrangements in relation thereto. 31 A.L.R.4th 95.

Priority between judgment creditor's lien and attorney's lien. 34 A.L.R.4th 665.

Retaining lien as affected by action to collect legal fees. 45 A.L.R.4th 198.

Am. Jur. 7 Am. Jur. 2d, Attys, § 183 et seq., § 357 et seq.

Ark. L. Rev.

Legal Profession — Non-Compromise Provisions in Attorney-Client Contracts, 3 Ark. L. Rev. 474.

Attorney-Client — Compensation of Attorney as Condition Precedent to Substitution, 13 Ark. L. Rev. 140.

Legal Malpractice, 27 Ark. L. Rev. 452.

Note, Henry, Walden & Davis v. Goodman: The Value of a Discharged Attorney's Contingent Fee Contract in Arkansas, 42 Ark. L. Rev. 549.

U. Ark. Little Rock L.J.

Survey, Legal Profession, 12 U. Ark. Little Rock L.J. 649.

C.J.S. 7 C.J.S., Atty & C., § 131 et seq.

Case Notes

Applicability.

The statutory lien provided in this subchapter is available to attorneys who have been dismissed only if they have been fired without cause. Crockett & Brown v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993).

Scope.

Act 293 of 1989, codified as § 16-22-301 et seq., explicitly provides that attorneys may rely on their contractual rights with clients and are entitled to obtain a lien for services based on such agreements. The Attorneys Lien Law also provides that, under appropriate circumstances, the lien may be enforced not only against the client but against anyone, including another attorney, who knowingly settles with an opposing litigant without the consent of the attorney, and being remedial legislation, Act 293 is not confined to prospective operation. Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990).

16-22-301. Legislative intent.

It is hereby found and determined by the General Assembly of the State of Arkansas that the Supreme Court, in Henry, Walden, and Davis v. Goodman, 294 Ark. 25 (1987), limited the existing Attorney's Lien Law by allowing only a quantum meruit recovery in a case in which the attorney was dismissed by the client; that the Supreme Court's interpretation of the Attorney Lien Law is contrary to what was intended by the enactment of Acts 59 and 306 of 1941, the Attorney Lien Law; that an attorney should have the right to rely on his contract with his client; and that the Attorney's Lien Law should be reenacted to protect the contractual rights of attorneys. Therefore, it is the intent of §§ 16-22-30216-22-304 to allow an attorney to obtain a lien for services based on his or her agreement with his or her client and to provide for compensation in case of a settlement or compromise without the consent of the attorney.

History. Acts 1989, No. 293, § 1.

Publisher's Notes. As to repeal of former provisions relating to lien of attorney, see Publisher's Notes to this subchapter.

Research References

Ark. L. Notes.

Brill, Equity and the Restitutionary Remedies: Constructive Trust, Equitable Lien, and Subrogation, 1992 Ark. L. Notes 1.

U. Ark. Little Rock L.J.

Survey—Miscellaneous, 11 U. Ark. Little Rock L.J. 235.

Case Notes

Applicability.

The attorney's lien statutes, this section through § 16-22-304, do not apply to cases in which an attorney is terminated for cause. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995).

An attorney's lien extends only to fees and disbursements rendered in the particular action in which they were incurred, and does not cover a general balance due the attorney, charges rendered in other causes, or charges in causes not intimately connected with the particular action. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998).

Attorney that had been retained by an employee to represent the employee in a workers' compensation case, but then had been told by the employee that he wanted to end the case, was entitled to assert a lien on a final settlement that was reached after the employee hired a second lawyer instead of abandoning the case; the fact that the attorney had been involved in the case before there was any controversy did not preclude the attorney from imposing a lien for fees. Wren v. DeQueen Sand & Gravel Co., 87 Ark. App. 212, 189 S.W.3d 522 (2004).

Attorney-Client Relationship.

Without an attorney-client relationship, there is no basis for claiming an attorney's fee under the statute. Fox v. AAA U-Rent It, 341 Ark. 483, 17 S.W.3d 481 (2000).

Attorneys are entitled to obtain a lien for services based on agreements with their clients and, while an attorney's lien may in some instances be enforceable against another attorney, such a lien is not created where there is no attorney-client relationship; thus, a former employer was not entitled to such a lien on a settlement obtained by a former employee in a class action suit. Morgan v. Chandler, 367 Ark. 430, 241 S.W.3d 224 (2006).

Cited: Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990); Haskins Law Firm v. American Nat'l Property & Cas. Co., 304 Ark. 684, 804 S.W.2d 714 (1991); Lancaster v. Fitzhugh, 310 Ark. 590, 839 S.W.2d 192 (1992); Finnegan v. Johnson, 326 Ark. 586, 932 S.W.2d 344 (1996).

16-22-302. Compensation governed by contract.

The compensation of an attorney at law, solicitor, or counselor for his services is governed by agreement, expressed or implied, which is not restrained by law.

History. Acts 1989, No. 293, § 1.

Publisher's Notes. As to repeal of former provisions relating to lien of attorney, see Publisher's Notes to this subchapter.

Research References

U. Ark. Little Rock L.J.

Survey—Miscellaneous, 11 U. Ark. Little Rock L.J. 235.

Case Notes

Construction.

Former similar section was remedial in character and was to be liberally construed. Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943); Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (preceding decisions under prior law).

Applicability.

The attorney's lien statutes, §§ 16-22-30116-22-304, do not apply to cases in which an attorney is terminated for cause. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995).

Compliance.

Strict compliance with the statute is not required, substantial compliance will suffice. Gary Eubanks & Assocs. v. Black & White Cab Co., 34 Ark. App. 235, 808 S.W.2d 796 (1991).

Attorney failed to comply with this section where the letter did not contain notice of intent to assert an attorney's lien on the proceeds of the claim, the letter was not dispatched by registered mail, and did not contain the signature of attorney or client. Gary Eubanks & Assocs. v. Black & White Cab Co., 34 Ark. App. 235, 808 S.W.2d 796 (1991).

Contingency Fees.

Contingency contracts for legal services are valid and enforceable, and when those services have been performed as contemplated in contract, attorney is entitled to fee fixed in the contract and to lien granted by attorney's lien provisions. Former statute did not authorize an attorney to recover full contingency fee under contract where contract had not been fully performed, and attorney was limited to recovery of a reasonable fee for his services. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law).

Contract.

There was no requirement under former statute that a contract for the compensation of attorney be in writing. Equifax, Inc. v. Luster, 463 F. Supp. 352 (E.D. Ark. 1978), aff'd, Arkansas La. Gas Co. v. Luster, 604 F.2d 31 (8th Cir. 1979) (decision under prior law).

Discharge for Cause.

An attorney discharged for cause is entitled only to a “reasonable fee” rather than a contract fee. Crockett & Brown v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993).

Where attorney was discharged for cause, this section was not applicable, and the chancellor properly awarded a reasonable fee for attorney's services rendered to the date of termination, rather than at the contracted rate. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995).

Discharge Without Cause.

Where an attorney was retained to represent an heir in the settlement of an estate upon an agreement that he should receive a certain percentage of the heir's interest in the estate and was discharged without cause before the estate was settled and suit was brought at once, he was entitled to recover his expenses and the value of his services but not to recover the amount of compensation agreed upon, as the amount that would be due under the contract could not be ascertained until the estate was settled. Weil v. Finneran, 70 Ark. 509, 69 S.W. 310 (1902) (decision under prior law).

Cited: Lancaster v. Fitzhugh, 310 Ark. 590, 839 S.W.2d 192 (1992); Fox v. AAA U-Rent It, 341 Ark. 483, 17 S.W.3d 481 (2000).

16-22-303. Compromise or settlement without attorney's consent — Effect.

  1. Any agreement, contract, or arrangement between litigants or any conduct of the one seeking affirmative relief at the instance and procurement of his adversary which deprives the litigant of his asserted right against his adversary shall constitute a compromise or settlement of his cause of action within the meaning of this section.
    1. In case a compromise or settlement is made by the parties litigant to the action after service of the notice by certified mail and before the filing of suit, or if made after suit is filed upon the action and such compromise or settlement is made without the consent of such attorney at law, solicitor, or counselor, the court of proper jurisdiction shall, upon motion, enter judgment for a reasonable fee or compensation against all of the parties to the compromise or settlement so made without the consent of the attorney at law, solicitor, or counselor, and the amount of the fee or compensation shall not be necessarily limited to the amount, if any, of the compromise or settlement between the parties litigant.
    2. If the compromise or settlement is effected by an agent or agents of such party, the judgment shall be entered against the agent or agents as well as against those parties from whom the attorney at law, solicitor, or counselor is entitled to judgment for the fee or compensation, and, if the compromise or settlement is made with the knowledge or advice of the attorney at law, solicitor, or counselor of those parties from whom the attorney at law, solicitor, or counselor is entitled to judgment for the fee or compensation, the court shall also enter judgment against such attorneys at law, solicitors, or counselors as well.

History. Acts 1989, No. 293, § 1.

Publisher's Notes. As to repeal of former provisions relating to lien of attorney, see Publisher's Notes to this subchapter.

Research References

U. Ark. Little Rock L.J.

Survey—Miscellaneous, 11 U. Ark. Little Rock L.J. 235.

Case Notes

Construction.

Former similar section was remedial in character and must be liberally construed. Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943); Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (preceding decisions under prior law).

Applicability.

The attorney's lien statutes, §§ 16-22-30116-22-304, do not apply to cases in which an attorney is terminated for cause. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995).

Abandonment of Client.

Counsel's protest to client and advice against making what he thought was an improvident settlement did not constitute abandonment of his client or forfeiture of any right he may have had under contract with client. St. Louis-San Francisco Ry. v. Hurst, 198 Ark. 546, 129 S.W.2d 970 (1939) (decision under prior law).

Collection of Fee.

The right of the attorney to collect his fee from his client's adversary is dependent upon this section and he must bring his case in conformity therewith. Missouri Pac. Transp. Co. v. Geurin, 200 Ark. 755, 140 S.W.2d 691 (1940) (decision under prior law).

Where client settles claim without attorney's knowledge, attorney can recover fee by separate action in the court in which his client's action was instituted and is not limited to file a motion in the origianl suit. Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W.2d 944 (1943) (decision under prior law).

Judgment for a reasonable fee may be against any of the parties litigant. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law).

Because it was “patently clear” that the attorney's Pulaski County suit over disputed contingency fees from a former client's settlement with the insurer had no chance of success and was a collateral attack, where the settlement was entered in Cleburne County, and the proper venue was in Cleburne County, and because the attorney attempted to manufacture venue by claiming unwarranted costs and expenses, the trial court did not abuse its discretion in imposing sanctions against the attorney under Ark. R. Civ. P. 11. Pomtree v. State Farm Mut. Auto. Ins. Co., 353 Ark. 657, 121 S.W.3d 147 (2003).

—Lien.

Probate court had jurisdiction to enforce attorney's lien pending in that court for case tried before that court. Baxter Land Co. v. Gibson, 236 Ark. 664, 367 S.W.2d 741 (1963) (decision under prior law).

If a proceeding to collect attorney's fee is against the client, the amount of the fee is to be governed by their agreement and, to ensure payment of that fee, the attorney is entitled to a lien upon the client's cause of action which attaches to any settlement recovered by the client; however, when the attorney proceeds against the other party, this section contains no provision for a lien upon the cause of action which might attach to a settlement recovered by the other party and the attorney is entitled only to a reasonable fee or compensation. Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983); Cato v. Arkansas Mun. League Mun. Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985) (preceding decisions under prior law).

Where attorney filed suit for accounting and aided in preparing divorce suit, which was dismissed, and there was no showing that client received tangible assets in return for the dismissal of her claim, no useful purpose would be served by reopening suit for purposes of enforcing attorney's lien. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984) (decision under prior law).

Entitlement to Fee.

Defendant, by compromising and settling with client, recognizes the attorney's absolute right to recover a fee of some amount and the attorney is entitled to a recovery without having to prove that client could recover in the original case. Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943) (decision under prior law).

When a client settles a claim without the attorney's consent, with or without a monetary consideration for the settlement, the attorney is nevertheless entitled to a reasonable fee. Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W.2d 944 (1943) (decision under prior law).

Attorney who, when it developed at the trial that client's suit had been settled without his knowledge, entered a nonsuit, did not lose his right to an attorney's fee. Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W.2d 944 (1943) (decision under prior law).

In suit by attorneys to recover fees where parties to a suit have compromised, attorneys need not show that suit would have been successful, if tried, or that client received any consideration for the compromise or settlement. Hamm v. Howard, 216 Ark. 326, 225 S.W.2d 333 (1949) (decision under prior law).

Attorney was entitled to fee for services rendered in suing debtor where debtor paid client directly, if client had agreed to pay attorney a reasonable cash fee for any services performed. Stevens v. Gilliam, 220 Ark. 867, 251 S.W.2d 241 (1952) (decision under prior law).

To be entitled to a fee under this section the attorney does not have to show that the suit would have been successful. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (decision under prior law).

An attorney discharged with or without cause can recover the reasonable value of his or her services to the date of discharge. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).

Motion to Fix Fee.

Proof of a compromise or settlement after suit is filed and without the attorney's consent constitutes, under this section, the only prerequisite to the proper filing by the attorney of a motion to have his fee fixed. Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943) (decision under prior law).

Reasonableness of Fee.

This section provides for a fee on a quantum meruit basis and in determining what would be a reasonable fee, court takes into consideration the amount of time and labor involved, the skill and ability of the attorney, and the nature and extent of the litigation. St. Louis-San Francisco Ry. v. Hurst, 198 Ark. 546, 129 S.W.2d 970 (1939) (decision under prior law).

Fee is not necessarily limited to the amount of the settlement; other elements may be considered in determining a reasonable fee on a quantum meruit. Missouri Pac. Transp. Co. v. Geurin, 200 Ark. 755, 140 S.W.2d 691 (1940) (decision under prior law).

For discussion of reasonableness of fee in various contexts, see St. Louis S.W. Ry. v. Poe, 201 Ark. 93, 143 S.W.2d 879 (1940); Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943); Holland v. Harley, 206 Ark. 244, 174 S.W.2d 567 (1943); Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W.2d 944 (1943); Equifax, Inc. v. Luster, 463 F. Supp. 352 (E.D. Ark. 1978), aff'd, Arkansas La. Gas Co. v. Luster, 604 F.2d 31 (8th Cir. 1979) (decisions under prior law).

Among the pertinent considerations in determining the reasonableness of an attorney's fee, not specifically fixed by contract, are: (1) the attorney's judgment, learning, ability, skill, experience, professional standing and advice; (2) the relationship between the parties; (3) the amount or importance of the subject matter of the case; (4) the nature, extent and difficulty of services in research; (5) the preparation of pleadings; (6) the proceedings actually taken and the nature and extent of the litigation; (7) the time and labor devoted to the client's cause, the difficulties presented in the course of the litigation and the results obtained. In making these determinations, both the trial court's and the appellate court's experience and knowledge of the character of such services may be used as a guide. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).

Fee award held reasonable. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).

There is no requirement that the trial judge consider his own experience and knowledge in assessing the reasonableness of a fee. Harper v. Shackleford, 41 Ark. App. 116, 850 S.W.2d 15 (1993).

Cited: Haskins Law Firm v. American Nat'l Property & Cas. Co., 304 Ark. 684, 804 S.W.2d 714 (1991).

16-22-304. Lien of attorney created.

    1. From and after service upon the adverse party of a written notice signed by the client and by the attorney at law, solicitor, or counselor representing the client, which notice is to be served by certified mail and a return receipt being required to establish actual delivery of the notice, the attorney at law, solicitor, or counselor serving the notice upon the adversary party shall have a lien upon his or her client's cause of action, claim, or counterclaim, which attaches to any settlement, verdict, report, decision, judgment, or final order in his or her client's favor, and the proceeds thereof in whosoever's hands they may come.
    2. The lien cannot be defeated and impaired by any subsequent negotiation or compromise by any parties litigant.
    3. However, the lien shall apply only to the cause or causes of action specifically enumerated in the notice.
  1. In the event that the notice is not served upon the adverse party by an attorney at law, solicitor, or counselor representing his client, the same lien created in this section shall attach in favor of the attorney at law, solicitor, or counselor from and after the commencement of an action or special proceeding or the service upon an answer containing a counterclaim, in favor of the attorney at law, solicitor, or counselor who appears for and signs a pleading for his or her client in the action, claim, or counterclaim in which the attorney at law, solicitor, or counselor has been employed to represent the client.
    1. This lien shall apply to proceedings before the Workers' Compensation Commission.
    2. The lien shall attach from the date a notice of claim is filed with the commission, if served by certified mail, return receipt requested, or from the date the commission mails notice of the claim to the employer or carrier, regardless of whether this mailing by the commission is by certified mail or regular mail, whichever date occurs first.
    1. This lien shall apply to procedures set forth in § 18-50-101 et seq.
    2. The lien shall attach on the date a mortgagee's power of attorney or beneficiary's appointment of substitute trustee is recorded pursuant to § 18-50-102.
    3. If a mortgagee's power of attorney or beneficiary's appointment of substitute trustee is not recorded, then the lien shall attach on the date a notice of default and intention to sell is mailed in accordance with § 18-50-104.
    4. The lien shall secure all work performed by the attorney for the mortgagee or beneficiary, including, but not limited to, expenses incurred by the attorney for abstracting and title insurance services and giving notice of the trustee's or mortgagee's sale.
  2. The court or commission before which an action was instituted, or in which an action may be pending at the time of settlement, compromise, or verdict, or in any circuit court of proper venue, upon the petition of the client or attorney at law, shall determine and enforce the lien created by this section.

History. Acts 1989, No. 293, § 1; 1991, No. 1229, § 1; 2003, No. 1047, § 1.

Publisher's Notes. As to repeal of former section, see Publisher's Notes to this subchapter.

Amendments. The 2003 amendment added the subdivision designations in (c); inserted present (d) and redesignated former (d) as present (e); substituted “circuit” for “chancery” in present (e); and made gender neutral and stylistic changes.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Practice, Procedure, and Courts, Attorneys Liens, 26 U. Ark. Little Rock L. Rev. 448.

Annual Survey of Case Law: Contract Law, 29 U. Ark. Little Rock L. Rev. 845.

Case Notes

Constitutionality.

Former statute did not unconstitutionally deprive one of the right of trial by jury, since constitutional right of trial by jury applies only to rights that existed at common law before the adoption of the constitution, and does not apply to new rights created by the legislature since the adoption of the constitution. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law).

In General.

Former similar statute provided the only method by which an attorney's lien could be enforced. McNeill v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940) (decision under prior law).

An attorney's lien which has attached to the proceeds of litigation follows the property when it is conveyed to others. Nash v. Estate of Swaffar, 336 Ark. 235, 983 S.W.2d 942 (1999).

Construction.

Former statute was remedial in character and was to be liberally construed. Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943); Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958); Rush v. Metrocentre Improv. Dist. No. 1, 686 F.2d 625 (8th Cir. 1982) (preceding decisions under prior law).

Attorney that had been retained by an employee to represent the employee in a workers' compensation case, but then had been told by the employee that he wanted to end the case, was entitled to assert a lien on a final settlement that was reached after the employee hired a second lawyer instead of abandoning the case; the fact that the attorney had been involved in the case before there was any controversy did not preclude the attorney from imposing a lien for fees. Wren v. DeQueen Sand & Gravel Co., 87 Ark. App. 212, 189 S.W.3d 522 (2004).

Attorneys are entitled to obtain a lien for services based on agreements with their clients and, while an attorney's lien may in some instances be enforceable against another attorney, such a lien is not created where there is no attorney-client relationship; thus, a former employer was not entitled to such a lien on a settlement obtained by a former employee in a class action suit. Morgan v. Chandler, 367 Ark. 430, 241 S.W.3d 224 (2006).

Purpose.

Purpose of former statute was to establish a lien for attorney's fees, after specified notice to adverse parties, which attached to proceeds of any settlement, verdict, report, decision, judgment, or final order. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law).

The 1989 amendments to the Attorney's Lien Law expressed a clear legislative intent that attorneys be allowed to rely on the contracts they make with their clients, regardless of whether the contract is for a contingent fee or otherwise. Lancaster v. Fitzhugh, 310 Ark. 590, 839 S.W.2d 192 (1992).

Applicability.

The attorney's lien statutes, § 16-22-301 through this section, do not apply to cases in which an attorney is terminated for cause. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995).

Court properly denied attorney a lien on client's real property because the case did not come within the province of the attorney's lien statute where the attorney sought to extend a lien over property that the client already owned and was not the subject of the litigation; this section is limited to cases where there has been an actual recovery of money or property. Northwest Ark. Recovery, Inc. v. Davis, 89 Ark. App. 62, 200 S.W.3d 481 (2004).

Appeal.

Where, upon appeal from suit in which appellants intervened, appellants filed an affidavit to the effect that they had not authorized an appeal, appeal was dismissed without prejudice to rights of counsel to pursue any action or lien which he may have had for services. Martin v. Pope, 226 Ark. 522, 290 S.W.2d 849 (1956) (decision under prior law).

Collection of Fee.

The right of the attorney to collect his fee from his client's adversary was dependent upon former statute and he had to bring his case in conformity therewith. Missouri Pac. Transp. Co. v. Geurin, 200 Ark. 755, 140 S.W.2d 691 (1940) (decision under prior law).

Where client settles claim without attorney's knowledge, attorney can recover fee by separate action in the court in which his client's action was instituted and is not limited to file a motion in the original suit. Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W.2d 944 (1943) (decision under prior law).

Because it was “patently clear” that the attorney's Pulaski County suit over disputed contingency fees from a former client's settlement with the insurer had no chance of success and was a collateral attack, where the settlement was entered in Cleburne County, and the proper venue was in Cleburne County, and because the attorney attempted to manufacture venue by claiming unwarranted costs and expenses, the trial court did not abuse its discretion in imposing sanctions against the attorney under Ark. R. Civ. P. 11. Pomtree v. State Farm Mut. Auto. Ins. Co., 353 Ark. 657, 121 S.W.3d 147 (2003).

—Lien.

Probate court had jurisdiction to enforce attorney's lien pending in that court for case tried before that court. Baxter Land Co. v. Gibson, 236 Ark. 664, 367 S.W.2d 741 (1963) (decision under prior law).

If a proceeding to collect attorney's fees is against the client, the amount of the fee is to be governed by their agreement and, to ensure payment of that fee, the attorney is entitled to a lien upon the client's cause of action which attaches to any settlement recovered by the client; however, when the attorney proceeds against the other party, former statute contained no provision for a lien upon the cause of action which might attach to a settlement recovered by the other party and the attorney was entitled only to a reasonable fee or compensation. Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983); Cato v. Arkansas Mun. League Mun. Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985) (preceding decisions under prior law).

Where attorney filed suit for accounting and aided in preparing divorce suit, which was dismissed, and there was no showing that client received tangible assets in return for the dismissal of her claim, no useful purpose would be served by reopening suit for purposes of enforcing attorney's lien. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984) (decision under prior law).

Where the client did not receive a verdict in his favor in the interpleader action, and did not receive any portion of the interpled fund, no judgment existed on which his attorney could attach a lien. Birdsong Cabinet Shop, Inc. v. Bland, 307 Ark. 149, 817 S.W.2d 886 (1991).

The circuit court erred in making the particular declaration allowing attorney a 20% interest in client's potential recovery against the disputed trust and estate. The circuit court should have considered a declaration of whether or not the attorney was entitled to a fee based on quantum meruit. Lancaster v. Fitzhugh, 310 Ark. 590, 839 S.W.2d 192 (1992).

Contingency Fee.

Where legal services had been fully performed as contemplated in a contingency fee contract, attorney was entitled to the fee fixed in the contract and to the lien granted by former statute. Former statute did not authorize an attorney to recover full contingency fee under contract where contract had not been fully performed, and attorney was limited to recovery of a reasonable fee for his services. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law). But see § 16-22-301.

Expenses.

Where client agreed to pay attorney one-third of amount recovered and, out of his share, any expenses properly incurred, expenses properly incurred were a part of the fee and within the purview of former statute. Moreover, compensation of assisting attorney should have been considered as one of expenses properly incurred and embraced in the attorney's lien. McNeill v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940) (decision under prior law).

The lien for an attorney's fee also includes the expenses properly incurred by the attorney in prosecuting the suit. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958); Equifax, Inc. v. Luster, 463 F. Supp. 352 (E.D. Ark. 1978), aff'd, Arkansas La. Gas Co. v. Luster, 604 F.2d 31 (8th Cir. 1979) (preceding decisions under prior law).

Interpleader.

Attorneys who contracted on a contingent fee basis to bring action against insurance companies for fire loss were entitled to fee based on total recovery even though a percentage of the amount would actually be paid to mortgagee in interpleader action, and attorneys were entitled to lien for that amount on mortgagor's portion of recovery. Consolidated Underwriters of S.C. Ins. Co. v. Bradshaw, 136 F. Supp. 395 (W.D. Ark. 1955) (decision under prior law).

Jurisdiction.

The lien must be enforced in the trial court. May v. Ausley, 103 Ark. 306, 146 S.W. 139 (1912) (decision under prior law).

Probate court had jurisdiction to enforce attorney's lien pending in that court for case tried before that court. Baxter Land Co. v. Gibson, 236 Ark. 664, 367 S.W.2d 741 (1963) (decision under prior law).

Even though petitioner argued that venue was improper under § 16-60-116(a) because he neither resided nor was summoned in Crawford County, but because the complaint was one quasi in rem to determine the rights to the money in the registry of the Crawford County Circuit Court and, specifically, his rights to attorney fees, Crawford County was the proper venue for hearing the complaint in intervention under subsection (d) of this section. Milligan v. Circuit Court, 331 Ark. 439, 959 S.W.2d 747 (1998).

Notice.

In suit to recover fee from adverse party, attorney should allege and prove that defendant had notice of his interest in the suit. Kansas City, F.S. & M.R. Co. v. Joslin, 74 Ark. 551, 86 S.W. 435 (1905); Rachels & Robinson v. Doniphan Lumber Co., 98 Ark. 529, 136 S.W. 658 (1911) (preceding decisions under prior law).

A letter to the adverse party from the attorney, even though not signed by his client, that he was impressing a lien constituted substantial compliance with former statute. Metropolitan Life Ins. Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967) (decision under prior law).

Attorney not entitled to relief under this section where attorney failed to comply with this section's requirement of written notice signed by the client. Childs v. Mid-Century Ins. Co., 55 Ark. App. 168, 934 S.W.2d 533 (1996).

Chancellor erred in finding that the attorney's lien could not be enforced upon the check the client gave her boyfriend based on a lack of notice to the boyfriend; once the attorney filed the petition for citation of contempt on behalf of the client, an attorney's lien attached to any judgment the client received as a result of the attorney's work. Froelich v. Graham, 349 Ark. 692, 80 S.W.3d 360 (2002).

Purpose of this section was to ensure that the adverse party was aware of the attorney's intention to claim a lien on the proceeds of the litigation before the settlement was paid; the record showed that the adverse parties' attorney sent a letter to the law firm and the client's new attorney acknowledging the law firm's claim such that there was no question that the adverse parties had actual notice of the asserted lien before any settlement money was paid to the client. Mack v. Brazil, Adlong & Winningham, PLC, 357 Ark. 1, 159 S.W.3d 291 (2004).

Priority.

Attorney's lien on judgment which was garnished by third party was held superior to garnishment, even though service of garnishment antedated attorney's petition to establish lien, because the lien attached and dated from the filing of the complaint and the issuance of summons thereon. McNeill v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940) (decision under prior law).

In action by mortgagor against insurance companies for fire loss, attorney's lien attached when complaints were filed and summons issued thereon and were superior to liens of mortgagor's creditors, including lien of judgment creditor under § 16-66-112, where judgment creditor had not obtained execution or garnishment against personal property or delivery of the writ to the officer in the proper county. Consolidated Underwriters of S.C. Ins. Co. v. Bradshaw, 136 F. Supp. 395 (W.D. Ark. 1955) (decision under prior law).

Mortgagee's right to the proceeds of fire policy containing open loss payable and standard mortgage clauses was superior to lien of attorneys who represented mortgagor in action to recover on policy. Consolidated Underwriters of S.C. Ins. Co. v. Bradshaw, 136 F. Supp. 395 (W.D. Ark. 1955) (decision under prior law).

Circuit court properly granted priority to an attorney-fee lien in the sales proceeds of 46 acres where the validity of the attorney's lien, her right of foreclosure, and her right to one-third of the sales proceeds from the 46 acres had been established by the law of the case. Howard v. Adams, 2016 Ark. App. 222, 490 S.W.3d 678 (2016).

Procedure for Enforcement.

Where client settles claim without attorney's knowledge, attorney can recover fee by separate action in the court in which his client's action was instituted and is not limited to file a motion in the original suit. Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W.2d 944 (1943) (decision under prior law).

The procedure for enforcing an attorney's lien may be by motion in court where action is pending, or may be by separate suit in that court. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (decision under prior law).

Where suit began as a contract action in which the circuit court had proper subject matter jurisdiction, after the suit was amended to include a request for declaratory relief, the suit was still properly before the circuit court, as §§ 16-111-103 and 16-111-104 permit courts of record within their respective jurisdictions to declare relief in cases involving the interpretation of contracts. Lancaster v. Fitzhugh, 310 Ark. 590, 839 S.W.2d 192 (1992).

Property Subject to Lien.

A solicitor has no lien upon his client's land for services rendered in removing a cloud from his title to it. Hershy v. Du Val, 47 Ark. 86, 14 S.W. 469 (1885) (decision under prior law).

Attorney is not entitled to lien on land allotted to client in partition suit. Gibson v. Buckner, 65 Ark. 84, 44 S.W. 1034 (1898); Weatherford v. Hill, 68 Ark. 80, 56 S.W. 448 (1900); Houpt v. Bohl, 71 Ark. 330, 75 S.W. 470 (1903) (preceding decisions under prior law).

Former statute did not give the attorney any interest in, or control over, the cause of action; he had a lien only on the fruits of the litigation. St. Louis, Iron Mountain & S. Ry. v. Blaylock, 117 Ark. 504, 175 S.W. 1170 (1915) (decision under prior law).

An interest of one of the parties in certain oil leases was not subject to attorney's lien. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (decision under prior law).

Reasonable Fees.

Although former statute made no distinction between a contingency fee and a fee based on other criteria, it did not require that the fee should be anything other than reasonable. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law).

Once it was determined that a law firm was discharged by its client for cause, the firm's lien under this section, the Arkansas' attorney-lien statute, was determined on a quantum-meruit basis, despite a contingent-fee contract between the firm and the client, to provide compensation for the reasonable value of the firm's services. Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, 378 S.W.3d 135 (2011).

Reopening Suit.

Where attorney filed suit for accounting and aided in preparing divorce suit, which was dismissed, and there was no showing that client received tangible assets in return for the dismissal of her claim, no useful purpose would be served by reopening suit for purposes of enforcing attorney's lien. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984).

Settlement.

The right of an attorney to his fees is unaffected by a release executed by his client, relieving the defendant from liability. American Nat'l Ins. Co. v. Mooney, 111 Ark. 514, 164 S.W. 276 (1914) (decision under prior law).

Attempted compromise by one of distributees of proceeds of judicial sale, absent authority by other distributees, did not bind other distributees or defeat the contingent fee interest of their attorney. Holland v. Wait, 193 Ark. 1179, 102 S.W.2d 550 (1937) (decision under prior law).

Where an attorney, employed by finance company to collect balance due or repossess car from delinquent purchaser, called on defendant and received his promise to pay balance or deliver car on following day, and the attorney neither filed suit nor gave defendant a written notice by registered mail, and defendant made compromise settlement directly with finance company, the attorney had no right of action or lien against defendant for attorneys fees under former statute. Whetstone v. Daniel, 217 Ark. 899, 233 S.W.2d 625 (1950) (decision under prior law).

Where debtor of attorney's client settled with client without attorney's knowledge after registered letter had been sent to debtor informing him that client had instructed attorney to file suit on the account, attorney acquired statutory lien and was entitled to a reasonable fee from debtor for his services. Whetstone v. Travis, 223 Ark. 856, 269 S.W.2d 320 (1954) (decision under prior law).

A client's action in settling or dismissing his claim or cause of action without consulting his attorney could also entitle the latter to a lien for his fee under former statute. Martin v. Pope, 226 Ark. 522, 290 S.W.2d 849 (1956) (decision under prior law).

A client could dismiss or settle his cause of action without consulting his attorney, but if he does so, the attorney had a lien for his fee under former statute. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (decision under prior law).

Where a general contractor and an insurance company resolved claims between them by entering into a comprehensive settlement agreement which decreased the monetary obligations owed by the general contractor to the insurer, the agreement was a settlement in the general contractor's favor within the meaning of former statute and, therefore, the general contractor's attorney had a valid and enforceable lien which had attached to the settlement sum. Rush v. Metrocentre Improv. Dist. No. 1, 686 F.2d 625 (8th Cir. 1982) (decision under prior law).

By the language of the attorney's lien statute, the lien applies to “any settlement”; thus, where a law firm, that had agreed to represent a client for a contingent fee and later was fired, claimed an attorney's lien on behalf of its former client against any recovery, but entered into an express contract with the client's new attorney for a guaranteed attorney's lien for a specific dollar amount, the law firm bargained away its right to any future recovery by substituting a liquidated sum in exchange for surrendering its right to a percentage of any subsequent recovery. Haskins Law Firm v. American Nat'l Property & Cas. Co., 304 Ark. 684, 804 S.W.2d 714 (1991).

Time of Attachment.

Lien attaches when summons is issued. Union Sawmill Co. v. Pace, Campbell & Davis, 163 Ark. 598, 260 S.W. 428 (1924) (decision under prior law).

Attorney employed under written contract had a lien on client's cause of action from the date the complaint was filed and summons issued thereon. McNeill v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940) (decision under prior law).

In an action under former statute against an insurance company, the cause of action attached upon the happening of total and permanent disability, although not recoverable until due proof of disability was made, and the fact that notice was given prior to the furnishing of proof of disability would not defeat the lien. Metropolitan Life Ins. Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967) (decision under prior law).

When an attorney fails to give the required written notice to the adverse party, a lien does not attach until summons, issued on the complaint, is placed in the hands of the proper sheriff. Home Ins. Co. v. Jones, 253 Ark. 218, 485 S.W.2d 190 (1972) (decision under prior law).

Cited: Teasley v. Hermann Cos., 92 Ark. App. 40, 211 S.W.3d 40 (2005).

16-22-305. Unnecessary costs satisfied by attorney.

If any attorney at law or other person admitted to conduct causes in any court in the State of Arkansas appears to have multiplied the proceedings in any cause before such court, so as to increase costs unreasonably and vexatiously, he shall be required, by order of the court, to satisfy any excess of costs so increased.

History. Acts 1915, No. 240, § 2; C. & M. Dig., § 607; Pope's Dig., § 647; A.S.A. 1947, § 25-303.

Cross References. Liability of attorney for costs, §§ 16-68-306, 16-68-407.

16-22-306. Negligence of attorney resulting in dismissal — Liability for costs and damages.

If any suit in any court of record in this state is dismissed on account of the negligence of any attorney at law, or for his nonattendance at the court without having a just and reasonable excuse for such absence, it shall be at the costs of the attorney at law. Such attorney at law shall be liable for all damages his client may have sustained by the dismissal or by any other neglect by the attorney at law of his duty, in an action in any court within this state having jurisdiction thereof.

History. Rev. Stat., ch. 15, § 10; C. & M. Dig., § 608; Pope's Dig., § 648; A.S.A. 1947, § 25-304.

Case Notes

Good Faith.

In dealing with their clients, attorneys are required to exercise the utmost good faith. Weil v. Fineran, 78 Ark. 87, 93 S.W. 568 (1906).

Negligence.

An attorney is not liable in the discharge of his official duty for claims put into his hands to collect as an attorney, unless it is shown that he has been guilty of culpable negligence in the prosecution of his suit, and thereby the plaintiff has lost his debt. Cummins v. McLain, 2 Ark. 402 (1840); Sevier v. Holliday, 2 Ark. 512 (1840); Palmer & Southmayd v. Ashley & Ringo, 3 Ark. 75 (1840).

Statute of Limitations.

Clients' legal malpractice suit under this section for failure of a law firm to properly file a medical malpractice suit, was barred by the three-year statute of limitations under § 16-56-105(3), because, under the occurrence rule, the clients' legal malpractice action ran no later than three years after the last day that their medical malpractice action could have been properly instituted. Rice v. Ragsdale, 104 Ark. App. 364, 292 S.W.3d 856 (2009).

Cited: Barr v. Cockrill, 224 Ark. 570, 275 S.W.2d 6 (1955).

16-22-307. Failure to pay over money — Judgment for money and costs — Penalized by court.

If any attorney at law receiving money for his client refuses or fails to pay the money over on demand, the attorney at law may be proceeded against in a summary way on motion before the circuit court, either in the county in which he may reside or in the county in which he received the money. The court shall render judgment against him for the amount of money received by the attorney at law for the use of his client, with costs, and he shall be further dealt with as the court may deem just under the provisions of this subchapter.

History. Rev. Stat., ch. 15, § 11; C. & M. Dig., § 609; Pope's Dig., § 649; A.S.A. 1947, § 25-305.

Cross References. Judgment on motion obtained by client against attorney, § 16-65-201.

Case Notes

Basis of Liability.

An attorney cannot be held liable for money collected by him as such, unless a demand is made upon him and he refuses to pay it over or remit it according to instructions of his client. His liability depends upon the principle of agency, and he holds money when collected as bailee. Taylor v. Spears, 6 Ark. 381 (1846).

Notice of Collection.

It is the duty of an attorney who has collected money as such to give notice of the fact to his client within a reasonable time, and if he fails to do so he may be sued without previous demand. Jett v. Hempstead, 25 Ark. 462 (1869).

If the client has notice, he must make demand in a reasonable time. Whitehead v. Wells, 29 Ark. 99 (1874).

Summary Proceedings.

This section was not intended as a substitute for an ordinary action for money had and received, and where the attorney files a verified answer showing a meritorious defense, the court cannot render summary judgment upon the client's motion. Davies & Davies v. Patterson, 132 Ark. 484, 201 S.W. 504 (1917).

Suspension from Practice.

A complaint charging an attorney with failure to pay over client's funds, asking that the court deal with him as the court might deem just, is sufficient to base an order suspending defendant from practice. Nichols v. Little, 112 Ark. 213, 165 S.W. 301 (1914).

Wrongful Payment.

If an attorney, without authority, pays money of his client to another, who was not authorized to receive it, the client may recover it from the attorney. Wood & Henderson v. Claiborne, 82 Ark. 514, 102 S.W. 219 (1907), superseded by statute as stated in, Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981).

Cited: Wallis v. State, 54 Ark. 611, 16 S.W. 821 (1891).

16-22-308. Attorney's fees in certain civil actions.

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney's fee to be assessed by the court and collected as costs.

History. Acts 1987, No. 519, § 1; 1989, No. 800, § 1.

Publisher's Notes. Acts 1999, No. 135, § 5, provided: “All laws and parts of laws in conflict with this Act are hereby repealed. Specifically, any other law or parts of law of general application regarding the award of attorneys' fees, as applied in litigation involving policies of insurance, are superseded by this Act. Specifically, the provisions of § 16-22-308 regarding the award of attorneys' fees to the prevailing party in a civil action for breach of contract are expressly superseded by the provisions of this Act.” Acts 1999, No. 135 amended § 23-79-208.

Cross References. Actions on bonds, notes, etc., § 16-107-101 et seq.

Costs generally, § 16-68-401 et seq.

Research References

ALR.

Recovery of Computer-Assisted Research Costs as Part of or in Addition to Attorney's Fees Under State Law. 33 A.L.R.6th 305.

Ark. L. Notes.

Brill, Arkansas Law of Damages, Fifth Edition, Chapter 30: Real Property, 2004 Arkansas L. Notes 9.

Ark. L. Rev.

Note, Crockett and Brown, P.A. v. Courson: Determining the Fee of an Attorney Discharged “For Cause,” 47 Ark. L. Rev. 725.

Recent Development, Attorney's Fees — Prevailing Party Status BKD, LLP v. Yates, 59 Ark. L. Rev. 1005.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds Attorney's Fees and Costs Available to Prevailing Parties in Wrongful-Discharge Actions Under Ark. Code Ann. § 16-22-308, 67 Ark. L. Rev. 193 (2014).

Britta Palmer Stamps, Recent Developments: Attorney's Fees — Fees May Be Awarded Under Arkansas Deceptive Trade Practices Act Regardless of Overall Prevailing Party, 67 Ark. L. Rev. 1111 (2014).

U. Ark. Little Rock L.J.

Survey — Attorneys, 10 U. Ark. Little Rock L.J. 539.

Survey — Miscellaneous, 12 U. Ark. Little Rock L.J. 219.

U. Ark. Little Rock L. Rev.

Annual Survey of Case Law: Practice, Procedure, and Courts, 29 U. Ark. Little Rock L. Rev. 905.

Stephanie Mantell, Note: Fee-Shifting Statutes and Landlord-Tenant Law—A Call for the Repeal of the English Rule “Loser Pays” System Regarding Contract Disputes and Its Effect on Low-Income Arkansas Tenants, 39 U. Ark. Little Rock L. Rev. 105 (2016).

Case Notes

In General.

Power to award attorney's fees under this section does not mean that the court can do so without first informing its discretion as to the reasonableness of the requested amount; in a wrongful termination case where the employer prevailed, the circuit court abused its discretion when it awarded a substantial attorney's fee in the employer's favor before receiving any evidence regarding the work counsel had performed and before giving the employees a meaningful opportunity to challenge the fee. McCabe v. Wal-Mart Assocs., 2019 Ark. App. 566, 591 S.W.3d 335 (2019).

Construction.

This section covers the same subject as § 23-89-207 and aids in determining legislative intent for that section. Wenrick v. Crater, 315 Ark. 361, 868 S.W.2d 60 (1993).

The legislature's use of the word “may” in this section indicates that the legislature intended a court's award of attorney's fees pursuant to this section to be permissive and discretionary with the court rather than mandatory. Reliance Ins. Co. v. Tobi Eng'g, Inc., 735 F. Supp. 326 (W.D. Ark. 1990).

Trial court did not err in awarding plaintiff attorney's fees and costs as the prevailing party under this section, then ruling they were not recoverable as a “preliminary expense” under § 14-92-238; the attorney's fees and costs were not “preliminary expenses” and, hence, not subject to a tax levy against the district's land. Perkins v. Cedar Mt. Sewer Improvement Dist. No. 43, 360 Ark. 50, 199 S.W.3d 667 (2004).

Applicability.

Statutes such as this section providing for attorney's fees to be taxed as costs are to be given retrospective application. Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989).

This section, defining costs as including discretionary attorney's fees in certain cases, must be applied by federal court in a diversity case. Reliance Ins. Co. v. Tobi Eng'g, Inc., 735 F. Supp. 326 (W.D. Ark. 1990).

Plaintiff was not entitled to attorney's fees where he brought an action to recover on a materialman's lien, unjust enrichment and detrimental reliance and not on any of the instruments or contracts expressly listed in this section, and where plaintiff obtained only partial relief on its detrimental reliance claim and could not be said to have prevailed on its unjust enrichment claim. Westside Galvanizing Services, Inc. v. Georgia-Pacific Corp., 921 F.2d 735 (8th Cir. 1990).

This statute allows a trial court to assess a reasonable attorney's fee and is inapplicable upon appeal. University Hosp. v. Undernehr, 307 Ark. 445, 821 S.W.2d 26 (1991); 215 Club v. Devore, 311 Ark. 309, 843 S.W.2d 317 (1992); Precision Steel Whse., Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993).

This section does not embrace tort actions such as deceit. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992).

An attorney discharged with or without cause can recover the reasonable value of his or her services to the date of discharge. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).

This section does not provide for a reasonable attorney's fee in tort actions. Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993).

While this section allows for attorney's fees in breach of contract cases, it does not allow attorney's fees in tort actions. Security Pac. Hous. Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993).

A written agreement, specifically providing for the payment of attorney's fees incurred, is enforceable in accordance with its terms, and is independent of the statutory authorization providing for attorney's fees under the circumstances covered by this section. Griffin v. First Nat'l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).

This section is a general statute providing for the recovery of attorney's fees in actions on breach of contract, and a general statute does not apply where there is a specific statute covering a particular subject matter. State Farm Mut. Auto. Ins. Co. v. Brown, 48 Ark. App. 136, 892 S.W.2d 519 (1995).

As this section does not mention insurance policies or provide for attorney's fees for either insureds or insurers, it does not allow an award of attorney's fees to a prevailing insurer in an action seeking recovery for a claim under a policy. Village Mkt., Inc. v. State Farm Gen. Ins. Co., 334 Ark. 227, 975 S.W.2d 86 (1998).

Attorney’s fees should not have been awarded in an action involving a mortgagee's failure to cancel a mortgage because the action was not primarily based on contract; the action was based on a violation of § 18-40-104 and negligence. Nationsbanc Mortg. Corp. v. Hopkins, 82 Ark. App. 91, 114 S.W.3d 757 (2003).

Trial court abused its discretion in awarding all of appellees' requested attorney’s fees where only one of their causes of action provided for fees; nothing in this section or § 4-88-113(f) provides that a party is entitled to an award of all fees in cases where multiple claims have been pursued. FMC Corp. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005).

Fireman who was reinstated to his previous rank and awarded backpay following a suspension and demotion in a disciplinary proceeding was not entitled to an award of attorney's fees as the prevailing party because the fireman had no contract with the fire department; thus, this section was not applicable. City of Little Rock v. Hudson, 366 Ark. 415, 236 S.W.3d 509 (2006).

Attorney’s fee award, pursuant to this section, was premature because the prevailing party could not be determined until the end of the breach of contract action. Heflin v. Brackelsberg, 2010 Ark. App. 261, 374 S.W.3d 755 (2010).

Appellate court did not need to address if this section applied to an action for termination of alimony based on the cohabitation provision of a property-settlement agreement, as a trial court has inherent power to award attorney's fees in domestic-relations cases and whether the circuit court should award such fees and the amount thereof are matters within the circuit court's discretion. Collins v. Collins, 2015 Ark. App. 526 (2015).

Award of attorney's fees affirmed, but as the case was a judicial proceeding that involved the administration of a trust, attorney's fees should have been awarded under § 28-73-1004 rather than under this section. Reed v. Smith, 2018 Ark. App. 313, 551 S.W.3d 407 (2018).

Attorney's Duty.

The burden of obtaining a ruling from the trial court is on the attorney requesting fees; any objections and matters left unresolved below are waived and may not be raised on appeal. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).

Bankruptcy.

A creditor's status as unsecured does not bar it from asserting a claim in bankruptcy court for attorney's fees under this section. In re Hunter, 203 B.R. 150 (Bankr. W.D. Ark. 1996).

Mortgage lien was not perfected and could be avoided by a trustee under 11 U.S.C.S. §§ 544(a) and 550(a), who was also entitled to an award of reasonable attorney’s fees, because an acknowledgement that did not comply with §§ 16-47-106 and 16-47-101 did not provide constructive notice. The omission of the debtor's name alone would not have been fatal, as the omitted information could have been filled in by reference to the document as a whole; however, omission of the name plus the use of a different gender led to an ambiguity that would have required extrinsic evidence. Williams v. JPMorgan Chase Bank, N.A. (In re Stewart), 422 B.R. 185 (Bankr. W.D. Ark. 2009).

Chapter 12 debtors' in possession 11 U.S.C.S. § 544 cause of action allowed the debtors to set aside creditor bank's mortgage lien due to the debtors' bona fide purchaser status, but was a cause of action peculiar to the Bankruptcy Code and differed from the types of actions which this section addressed. Thus this section was inapplicable to the avoidance action and the debtors were not entitled to their attorney's fees. Caine v. First State Bank of Crossett (In re Caine), 462 B.R. 688 (Bankr. W.D. Ark. 2011), aff'd, No. 1:12-CV-1012, 2014 U.S. Dist. LEXIS 43360 (W.D. Ark. Mar. 31, 2014).

Where LLC's operating agreement provided that in a dispute between members, the losing party would pay the prevailing party reasonable costs and expenses, and where the LLC and its member also claimed attorney's fees under Arkansas statute providing for a prevailing party fee award in a breach of contract action, and where judgment debt was found dischargeable under one provision of Bankruptcy Code and nondischargeable under two other sections, then remand was required for bankruptcy court to determine whether the fee provision in the operating agreement rendered all or any part of the fee award part of the nondischargeable debt. Clear Sky Props. LLC v. Roussel (In re Roussel), 504 B.R. 510 (E.D. Ark. 2013).

Bankruptcy court awarded a bank attorney’s fees and costs it incurred to enforce a settlement agreement it entered with a husband and wife who declared Chapter 11 bankruptcy because the husband and wife had not timely fulfilled their obligations under the agreement in an attempt to persuade the bank to accept changes to the agreement; although a Chapter 11 trustee argued that the husband and wife had substantially complied with their obligations under the agreement and the concept of substantial compliance was recognized in Arkansas law, the bank had bargained for strict compliance. In re Griffin, 509 B.R. 864 (Bankr. W.D. Ark. 2014).

Breach of Contract.

Although the supreme court held in O'Bar v. Hight, 169 Ark. 1008, 277 S.W. 533 (1925), that a covenantee could not recover attorney's fees from the covenantor in an action for breach of warranty, Act 800 of 1989 amended this section to permit a trial court to allow a reasonable attorney's fee to the prevailing party in an action for breach of contract. Murchie v. Hinton, 41 Ark. App. 84, 848 S.W.2d 436 (1993).

A warranty deed should be considered a contract between a grantor and his grantee who has accepted it for the purposes of this section. Murchie v. Hinton, 41 Ark. App. 84, 848 S.W.2d 436 (1993).

Since an implied-in-law contract, or quasi-contract, is indeed no contract at all, there was no authority for an award of attorney’s fees. Friends of Children, Inc. v. Marcus, 46 Ark. App. 57, 876 S.W.2d 603 (1994).

Where defendant prevailed against plaintiff's allegations that they breached their lease terms, the trial court was authorized to award reasonable attorney's fees under this section. Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995).

The circuit court was authorized to award attorney’s fees not subject to a specified limit where the plaintiff's action was for breach of contract. Marshall Sch. Dist. v. Hill, 56 Ark. App. 134, 939 S.W.2d 319 (1997).

It was too late for the plaintiff to attempt to recharacterize her suit as one for breach of contract in order to trigger an attorney's fee award under this section where she previously characterized the suit as one for illegal exaction and entered into a settlement which provided for attorney's fees under § 26-35-902(a), which authorizes attorney's fees in illegal exaction cases. Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998).

This section does not allow the discretionary award of attorney's fees to a prevailing insurer in an action for breach of contract. Employers Surplus Ins. Co. v. Murphy Oil USA, Inc., 338 Ark. 299, 993 S.W.2d 481 (1999).

Trial court did not abuse its discretion in awarding attorney's fees to municipal improvement districts in a suit where the districts prevailed over the trustee of a public bond financing by proving a breach of contract claim against the trustee, resulting in reimbursement to bond funds of attorney's fees expended by the trustee in unwarranted litigation. First United Bank v. Phase II, Edgewater Addition Residential Prop. Owners Improvements Dist. No. 1 of Maumelle, 347 Ark. 879, 69 S.W.3d 33 (2002).

Where court found that the damages sought by home buyers were for the costs of correcting defects to the house, the complaint stated a cause of action on the contract; the buyers' action for breach of the implied warranty of fitness and habitability was an action in contract and, thus, the trial court properly awarded attorney's fees to a home builder. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).

In homeowners' defective construction case, the builder was entitled to a directed verdict because the statute of limitations had expired and, as it was an action “in contract” concerning the implied warranty of habitability, the trial court properly awarded the builder attorney's fees under this section. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).

Because the trial court did not give its reasons for failing to award tenants, the prevailing parties in litigation over an alleged breach of a lease, their attorney's fees, the case was remanded for the court to consider whether to make such an award. Vereen v. Hargrove, 80 Ark. App. 385, 96 S.W.3d 762 (2003).

Where the homeowner alleged that the builder breached an implied warranty because the home's foundation was defective due to the soil properties and sought damages in the amount of repairs made by the homeowner, the case was a contract action, as opposed to a tort action, and provided the trial court with a basis to award the builder, the prevailing party, attorney’s fees under this section. Curry v. Thornsberry, 81 Ark. App. 112, 98 S.W.3d 477 (2003), aff'd, 354 Ark. 631, 128 S.W.3d 438 (2003).

Minor should have been allowed to recover attorney’s fees in his action against a bank because the action sounded in contract; the bank's obligations would not have arisen had it not entered into a contract with the minor's guardian to accept funds' deposit. Jiles v. Union Planters Bank, 90 Ark. App. 245, 205 S.W.3d 187 (2005).

Plaintiff borrowers' argument that defendant bank's fee request was excessive because it included fees and costs on appeal was well-taken; fees could not be awarded on appeal of a contract case pursuant to this section. Even if there was authority to allow the fees, the court would have exercised its discretion not to do so in the instant case because on remand, the court granted summary judgment on an issue that could have been, but was not, argued in the appeals court and the failure to raise the issue earlier resulted in an unnecessary round of litigation following appeal. Mountain Pure LLC v. Bank of Am., No. 4:02CV00100 JLH, 2008 U.S. Dist. LEXIS 115227 (E.D. Ark. July 8, 2008).

Although plaintiff borrowers' breach of contract claim was submitted to arbitration, the court concluded that their remaining promissory estoppel claim was based on contract, and the court could not find any material way in which the briefs and arguments would have differed had there been no count alleging promissory estoppel; consequently, the court concluded that the action litigated was based primarily on the breach of contract claim so that fees could be awarded pursuant to this section to defendant bank as prevailing party. Mountain Pure LLC v. Bank of Am., No. 4:02CV00100 JLH, 2008 U.S. Dist. LEXIS 115227 (E.D. Ark. July 8, 2008).

In an action for breach of contract arising from an employment agreement and purchase agreement, the jury rendered a verdict for the company but the trial court denied its motion for attorney’s fees under this section. The trial court held that this section did not apply because the parties intended that in the event of dispute arising out of the agreements, each party would bear its own costs and attorney’s fees. Asbury Auto. Used Car Ctr. v. Brosh, 375 Ark. 121, 289 S.W.3d 88 (2008).

Award of attorney's fees under this section was proper because the debtor claimed the bank violated the promissory note when it failed to release the lien on the property after full payment. First State Bank of Crossett v. Fowler, 427 B.R. 1 (W.D. Ark. 2010).

Where the debtor objected to her deed of trust secured creditor's claim pursuant to 11 U.S.C.S. § 502(b) and Fed. R. Bankr. P. 3007, asserting breach of contract, and the claim was in part unenforceable due to the miscalculation of charges and interest, and misapplied payments, the debtor was entitled to an award of damages and reasonable attorney's fees for breach of contract under this section. Bateman v. S. Dev. Corp. (In re Bateman), 435 B.R. 600 (Bankr. E.D. Ark. 2010).

Although a commercial tenant was a prevailing party in a breach of lease action against a landlord, and allowed to recover reasonable attorney’s fees, the trial court reduced the tenant's attorney fee request without explanation or reference to certain factors, which warranted a remand. Conway Commer. Warehousing, LLC v. FedEx Freight East, Inc., 2011 Ark. App. 51, 381 S.W.3d 94 (2011).

Trial court did not err in awarding attorney’s fees to real estate buyers in their breach of contract action because their request for fees was based on a contractual provision, not the statute; hence, the buyers' inclusion of a tort claim for damages was no impediment to an award of fees authorized under the real estate contract. Marx Real Estate Invs., LLC v. Coloso, 2011 Ark. App. 426, 384 S.W.3d 595 (2011).

In this breach of contract action, plaintiff was entitled to an attorney’s fee award in the amount of one-third of the total judgment because the attorneys were experienced and reputable attorneys with superior legal skills, the legal issues in this case arose from complicated and hotly disputed factual questions, and plaintiff entered a one-third contingency fee agreement with counsel. Razorback Concrete Co. v. Dement Constr. Co. LLC, No. 3:07CV00135 SWW, 2012 U.S. Dist. LEXIS 76761 (E.D. Ark. June 4, 2012).

Trial court erred in awarding attorney's fees to appellees because its dismissal of appellant's complaint under Ark. R. Civ. P. 12(b)(6) was improper; appellant alleged facts sufficient to support the application of fraudulent concealment and that the statutes of limitation were tolled. Russenberger v. Thomas Pest Control, Inc., 2012 Ark. App. 86, 394 S.W.3d 303 (2012).

Appellee was properly awarded attorney’s fees because employees' breach of contract and wrongful discharge claims sounded in contract and appellee prevailed; the wrongful discharge claim was based on a violation of public policy. Marlow v. United Sys. of Ark., Inc., 2013 Ark. 460 (2013).

District court correctly determined that the award of attorney's fees was appropriate in this case because appellant's primary focus was its claim that appellee breached a contract with appellant as the first count of the complaint was for breach of an express contract and Count II raised a claim of breach of an implied contract. Futurefuel Chem. Co. v. Lonza, Inc., 756 F.3d 641 (8th Cir. 2014).

In a breach of contract action, the Supreme Court was unable to discern exactly on what basis the circuit court denied appellee's motion for attorney’s fees under this section; therefore, the Supreme Court reversed and remanded to the circuit court for the limited purpose of making findings that would enable it to review the circuit court's fee decision. Arkansas Realtors Ass'n v. Real Forms, LLC, 2014 Ark. 385, 442 S.W.3d 845 (2014).

Damages could only have been for the breach of contract claim, and appellee was the prevailing party on that claim, and thus the award of attorney’s fees to appellee was allowable under the statute and was within the discretion of the circuit court. Cozart v. Logue, 2014 Ark. App. 626, 447 S.W.3d 133 (2014).

Where a hospital was entitled to recovery in its breach of contract suit against a doctor because the balance due on a promissory note was payable when the doctor resigned, and the doctor's shoulder injury did not excuse his obligation to pay the remaining note debt, the hospital was entitled to recovery of its attorney's fees; the contractual attorney's fees provision was enforceable independent of the statutory authorization, and, in any event, the hospital was clearly the prevailing party. Johnson Reg'l Med. Ctr. v. Halterman, 867 F.3d 1013 (8th Cir. 2017).

Trial court did not abuse its discretion by awarding the sellers of a business attorney's fees as the prevailing party on their breach of contract claim against the buyer of the business; although there were conversion claims involved and substantially more money was awarded for the tort claims than for the breach-of-contract claims, the action was based primarily in contract and the trial court considered the relevant factors in determining the amount of the attorney's fee award. DWB, LLC v. D&T Pure Trust, 2018 Ark. App. 283, 550 S.W.3d 420 (2018).

Case Law Factors.

Case law factors were not referred to in the denial of one company's motion for attorney’s fees, and thus the court reversed and remanded on this point so the proper analysis could be conducted. Knesek v. Cameron Hubbs Constr., Inc., 2013 Ark. App. 380 (2013).

Computation of Fees.

Although there is no fixed formula in determining the computation of attorney's fees, the courts should be guided by recognized factors in making their decision, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the amount involved in the case and the results obtained, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, whether the fee is fixed or contingent, the time limitations imposed upon the client or by the circumstances, and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).

Among the pertinent considerations in determining the reasonableness of an attorney's fee, not specifically fixed by contract, are: (1) the attorney's judgment, learning, ability, skill, experience, professional standing and advice; (2) the relationship between the parties; (3) the amount or importance of the subject matter of the case; (4) the nature, extent and difficulty of services in research; (5) the preparation of pleadings; (6) the proceedings actually taken and the nature and extent of the litigation; (7) the time and labor devoted to the client's cause, the difficulties presented in the course of the litigation and the results obtained. In making these determinations, both the trial court's and the appellate court's experience and knowledge of the character of such services may be used as a guide. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).

There is no requirement that the trial judge consider his own experience and knowledge in assessing the reasonableness of a fee. Harper v. Shackleford, 41 Ark. App. 116, 850 S.W.2d 15 (1993).

Any attorney's fees awarded should be reasonable; there are established principles which a court should use in determining the reasonableness of an attorney's fee and, among others, these should include consideration of whether or not the actions taken by a party seeking such fees were meritorious and successful. Griffin v. First Nat'l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).

Where the trial court properly found that a company was entitled to attorney’s fees, but reduced the hourly rate charged without explanation, the appellate court remanded the matter back to the trial court to determine if the reduction in the hourly rate was proper. Swink v. Lasiter Constr., Inc., 94 Ark. App. 262, 229 S.W.3d 553 (2006).

In members' breach of contract action against a country club, the trial court did not abuse its discretion in awarding attorney’s fees to the members in the amount of $6,000, even though their total recovery was only $5,242, because there was no fixed formula in determining what was a reasonable attorney’s fee. Millwood-RAB Mktg., Inc. v. Blackburn, 95 Ark. App. 253, 236 S.W.3d 551 (2006).

In awarding an attorney's fee pursuant to this statute, the court reduced the amount requested by 50% because it was a relatively simple slip and fall case, a discount was required for nonsuit in state court, the billing reflected too much time on discovery and other projects, and fees incurred reflected missed opportunities for compromise. Mo. & N. Ark. R.R. v. Entergy Ark., Inc., No. 1:10-cv-8-DPM, 2013 U.S. Dist. LEXIS 139204 (E.D. Ark. Sept. 27, 2013).

Sufficient findings were not made for the court to review the amount awarded, and the court remanded and left the fee calculation issue to the trial court's discretion. Avery v. Warren Sch. Dist., 2013 Ark. App. 392 (2013).

Counter-claimant was entitled to attorney's fees under this section for the portion of a lawsuit primarily driven by the contract claims, as well as fees for work primarily driven by the trade secret claims, pursuant to § 4-75-607. The trial court determined that the counter-claimant was entitled to $2,174,073.11 in attorney's fees. Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, No. 5:14-CV-5262, 2018 U.S. Dist. LEXIS 55242 (W.D. Ark. Mar. 31, 2018).

—Procedure.

Trial court's decision concerning entitlement to fees under this section required an inquiry separate from its decision on the merits of the underlying action — an inquiry which could not commence until party prevailed in the underlying action. Marsh & McLennan v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).

Contingency Fees.

Award of attorney’s fees under this section in favor of a freight agent in its breach of contract suit against a carrier was proper even though it was based on a contingency fee that was significantly larger than the lodestar figure, as the district court considered all relevant factors in determining the amount of fees, such as counsel's experience, reputation, and skills; the degree to which the agent prevailed; and the time that counsel spent on the case, which included a six-month period where he turned away other clients. All-Ways Logistics, Inc. v. USA Truck, Inc., 583 F.3d 511 (8th Cir. 2009).

As long as a trial court is guided by the relevant factors, fee awards based in part on a contingency agreement are permissible under Arkansas law. The fact that the agreed upon fee was a contingency fee does not automatically entitle the attorney to that amount under this section. All-Ways Logistics, Inc. v. USA Truck, Inc., 583 F.3d 511 (8th Cir. 2009).

Court's Authority.

A trial court may not award an attorney's fee for services performed by an attorney on appeal after the case in which the fee is sought has been returned to the trial court by a mandate which does not order the fee. National Cashflow Systems, Inc. v. Race, 307 Ark. 131, 817 S.W.2d 876 (1991).

Where the additional award of costs on appeal was not awarded at the direction of the appellate court, was not of a ministerial nature, and was for the services of the prevailing party's attorney on appeal, the trial court was without authority to award attorney’s fees following the appeal. Race v. National Cashflow Sys., 34 Ark. App. 261, 810 S.W.2d 46 (1991), aff'd, National Cashflow Systems, Inc. v. Race, 307 Ark. 131, 817 S.W.2d 876 (1991).

This section permits trial courts, but not appellate courts, to assess attorney’s fees. Millwood-RAB Mktg., Inc. v. Blackburn, 95 Ark. App. 253, 236 S.W.3d 551 (2006).

Declaratory Judgment.

Statutory attorney's fees under this section were not available in an action brought under the Declaratory Judgment Act; however, costs were available under § 16-111-111. Hanners v. Giant Oil Co. of Ark., Inc., 373 Ark. 418, 284 S.W.3d 468 (2008).

Discretion of Court.

The word “may” is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used; and within the context in which the word “may” is employed in this section, allowance of attorney's fees is permissive and discretional with the trial court. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).

This section is clearly not mandatory and the decision whether to award attorney’s fees in cases governed by this section is left to the sound discretion of the trial court. Logue v. Seven-Hot Springs Corp., 926 F.2d 722 (8th Cir. 1991).

While this section allows for the award of attorney's fees in certain civil actions, including actions for breach of contract, the decision whether to award a fee in such cases is a decision within the trial court's discretion. Security Pac. Hous. Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993).

Since the award of attorney's fees is discretionary under this section, and since neither party cited authority or presented argument indicating that the trial court abused its discretion, there was no abuse of discretion in denying attorney's fees pursuant to this section. Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995).

The statute is permissive and the award of attorney’s fees is within the discretion of the trial court. Ouachita Trek & Dev. Co. v. Rowe, 341 Ark. 456, 17 S.W.3d 491 (2000).

Language in buyer's e-mail did not constitute a sufficient writing for purposes of the statute of frauds because it did not evince an agreement between retailer/buyer and importer/seller on price markdowns; attorney’s fees in contract dispute were discretionary. General Trading Int'l, Inc. v. Wal-Mart Stores, Inc., 320 F.3d 831 (8th Cir. 2003).

Under this section, no award of fees was mandatory, and an insurer was not entitled to attorney’s fees simply because it prevailed. Angelo Iafrate Constr., LLC v. Potashnick Constr., Inc., 370 F.3d 715 (8th Cir. 2004).

Beverage distributor was not improperly denied attorney's fees pursuant to this section after it had obtained a judgment against a beverage producer for breach of contract because no award of attorney's fees was mandatory under this section, the distributor was not considered a prevailing party by the district court since the producer had prevailed on a counterclaim for breach of an implied covenant of good faith and fair dealing, and the distributor asserted no facts to support its contention that it merited an award of attorney's fees under this section despite its own breaching conduct. Southern Wine & Spirits of Nev. v. Mt. Valley Spring Co., 712 F.3d 397 (8th Cir. 2013).

Certain appellants failed to cite any evidence that demonstrated that the circuit court abused its broad discretion in not awarding them attorney’s fees, and as the award of attorney’s fees is discretionary and not mandatory, there was no abuse of discretion in granting appellee attorney’s fees and in denying of attorney’s fees to appellants. Cozart v. Logue, 2014 Ark. App. 626, 447 S.W.3d 133 (2014).

Election of Remedies.

The policy concern supporting the election doctrine (which operates to preclude a complainant from receiving an award that over-compensates and over-restores him for his injury by permitting recovery on two different theories) is not a valid consideration with respect to a fee request. Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995).

Evidence.

The failure of an attorney to keep detailed time records is not fatal to his claim. Harper v. Shackleford, 41 Ark. App. 116, 850 S.W.2d 15 (1993).

Explanation by Court.

Court reversed and remanded the partial award of fees to a company, given that the trial court provided no explanation for granting less than one third of the fee request and the court could not determine why. Knesek v. Cameron Hubbs Constr., Inc., 2013 Ark. App. 380 (2013).

Fees Allowed.

Where plaintiff was awarded relief for failure to promote and back pay, the recovery he received was pay for labor or services and recovery could be had for attorney's fees. City of Fort Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991).

As the holding of the trial court was that there was an employment contract which was breached, the awarding of an attorney's fee was not improper. Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991).

Fee award held reasonable. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).

Appellees, guarantors, pursuant to contract and this section, awarded reasonable attorney's fees. Arkansas Indus. Dev. Comm'n v. FABCO of Ashdown, Inc., 312 Ark. 26, 847 S.W.2d 13 (1993).

Where the trial judge agreed with a crop lender that its security interest in a government crop check was superior to the farm owner's, an award of attorney's fees in that contract claim was appropriate, however, the trial judge erred in awarding attorney's fees regarding a conversion claim. Nef v. Ag Servs. of Am., Inc., 79 Ark. App. 100, 86 S.W.3d 4 (2002).

Attorney's fees were properly awarded to a prevailing party in an action seeking an accounting of a partnership's assets because the partnership was based on a contract. Harrison v. Harrison, 82 Ark. App. 521, 120 S.W.3d 144 (2003).

In a case where a teacher alleged that a school district breached its contract with the teacher by violating the Arkansas Teacher Fair Dismissal Act (TFDA) and that such breach entitled him to all the monetary benefits which he had under the 1999-2000 contract, plus interest and attorney's fees, because the district failed to provide written notice of the problems or evaluations as required by § 6-17-1504 of the TFDA, the district failed to strictly comply with the statutory provisions of the TFDA and the teacher's contract was renewed by operation of law; however, the teacher's refusal to mitigate his damages limited his damages to the difference in what he earned under the 1999-2000 contract and what he could have earned had he accepted the offer of the district, but the teacher was entitled to reasonable attorney's fees pursuant to this section. Sheets v. Dollarway Sch. Dist., 82 Ark. App. 539, 120 S.W.3d 119 (2003).

Although attorney’s fees were not available in a contract recission case, the case began as a proceeding to foreclose on a home and enforce a promissory note and the buyers prevailed on those grounds; therefore, they were the prevailing party in a foreclosure action entitling them to attorney’s fees. Hudson v. Hilo, 88 Ark. App. 317, 198 S.W.3d 569 (2004).

Defendant insurer was liable under the policy it issued to manufacturer for sums awarded to plaintiff farmers as attorney's fees in the underlying action by the farmers against the manufacturer for crop damage because, in addition to coverage for those sums insured became legally obligated to pay as damages because of property damage to which the insurance applied, the policy also covered certain “supplementary payments” and the attorney's fee award was part of the “costs” taxed against the manufacturer in the underlying lawsuit; as such, the award was a “supplementary payment” covered under the policy. Ferrell v. West Bend Mut. Ins. Co., 393 F.3d 786 (8th Cir. 2005).

Where supplier's bank wrongly encoded a check and supplier's claim against the supplier's bank was premised on its failure to use ordinary care in complying with the Uniform Commercial Code, attorney's fees were warranted because the amount of the claim was readily ascertainable. Douglas Cos. v. Commercial Nat'l Bank of Texarkana, 419 F.3d 812 (8th Cir. 2005).

Trial court did not err in awarding home sellers attorney’s fees in buyers' action against sellers for breach of contract and fraud because the issue of whether the action was primarily a contract action in which attorney’s fees were authorized was moot; buyers paid the attorney’s fees and, in the absence of an explanation for the payment of a satisfaction of judgment, the court considered it as having been voluntarily paid, thus rendering the appeal of that judgment moot. Barringer v. Hall, 89 Ark. App. 293, 202 S.W.3d 568 (2005).

In a domestic relations case, the trial court appropriately granted an ex-wife's motion for attorney's fees pursuant to this section and § 9-12-309 because her ex-husband, in challenging the attorney's fee award, offered only his own reasoning and the language of the statutes in support of his argument; he cited no legal authority in support of his position, which was a sufficient reason to affirm the trial court's ruling. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007).

Award of attorney’s fees to a corporation in a breach of contract action against a home builder was not unreasonable merely because the fee award was nearly the sum of the judgment. Crown Custom Homes, Inc. v. Buchanan Servs., 2009 Ark. App. 442, 319 S.W.3d 285 (2009).

In buyers' declaratory-judgment action, attorney’s fees were properly awarded to buyers under this section because the case involved a contract action—either through the seller's counterclaim or the fact that the declaratory-judgment action arose from the seller's breach of contract. Screeton v. Asco Vending, Inc., 2010 Ark. App. 230, 374 S.W.3d 749 (2010).

As appellee was the prevailing party in a lawsuit involving a breach-of-contract claim, it was properly awarded attorney’s fees under this section. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793 (2011).

District court's calculation of an attorney’s fee award was supported by the detailed affidavits and time sheets attached to appellees' motion for attorney’s fees; because the case involved a complicated factual background, the potential for millions of dollars in liability, and a 10 count initial complaint that included 555 pages of exhibits, the district court did not abuse its discretion in awarding attorney’s fees. Retro TV Network, Inc. v. Luken Communs., LLC, 696 F.3d 766 (8th Cir. 2012).

Because counsel for defendants were experienced attorneys with excellent legal skills, potentially millions of dollars were at stake and defendants prevailed on all of plaintiff's claims, and the attorneys charged reasonable hourly rates, under this section, counsel for defendants were entitled to an award of $46,795 in attorney’s fees. Retro TV Network, Inc. v. Luken Communs., LLC, No. 4:11-cv-00489-SWW, 2012 U.S. Dist. LEXIS 27679 (E.D. Ark. Mar. 2, 2012), aff'd, 696 F.3d 766 (8th Cir. 2012).

Even though the underlying case was in the nature of a quiet title action, it was necessitated by a dispute regarding the terms of leases covering the owners' property, and they sought fees, and the trial court limited the award of fees to those associated with the settlement agreement; the dispute arose out of the language in a lease, which was in the nature of a contract, and the manner in which the trial court decided the issue was not error. Stephens Prod. Co. v. Blackard, 2013 Ark. App. 530 (2013).

Damages awarded were based in contract, and the circuit court used equity to put the parties back where they were prior to the execution of the contract, rather than money damages to compensate for any tort liability; because appellants did not challenge the reasonableness of the fees awarded and the circuit court properly considered the appropriate factors, there was no abuse of discretion in the award of attorney's fees. Gladden v. Trustees of Pruitt Family Trust, 2015 Ark. App. 680, 477 S.W.3d 530 (2015).

In this action for breach of contract and unjust enrichment, the creditor was awarded the sum of $2,000 in attorney's fees where the debtor conceded that (1) he wholly failed to perform under the terms of the contract and was in breach, and (2) his inability to obtain materials and pay employees, both circumstances attendant to the creditor closing its business, occasioned the default. Coleman v. Fields (In re Fields), 544 B.R. 156 (Bankr. E.D. Ark. 2016).

In a case involving the conveyance of mineral rights, litigation was contentious and presented novel and difficult issues, and the circuit court clearly considered the reasonable fee factors and did not abuse its discretion in awarding $17,500 in attorney's fees and $165 in costs to appellees. Mt. Pine Timber, Inc. v. Smith, 2016 Ark. App. 197, 487 S.W.3d 832 (2016).

In this case, the vast majority of the work was related to issues primarily based in contract, and it is certainly common and allowable for more than one lawyer to work on a case--especially a difficult one; the circuit court did not abuse its discretion in its award of attorney's fees. Patton Hospitality Mgmt., LLC v. Bella Vista Vill. Coopershares Owners Ass'n, 2016 Ark. App. 281, 493 S.W.3d 798 (2016).

Although dismissal was prompted by appellee's request for summary judgment on its claims for declaratory and injunctive relief, the resolution of each of the claims hinged on the interpretation of two contracts, and thus the action was clearly based primarily in contract, and the circuit court was authorized to award a reasonable attorney's fee. Patton Hospitality Mgmt., LLC v. Bella Vista Vill. Coopershares Owners Ass'n, 2016 Ark. App. 281, 493 S.W.3d 798 (2016).

Trial court did not abuse its discretion in awarding a credit card holder attorney's fees where the trial court considered his counterclaims of conversion, outrage, and abuse of process as an integral part of his defense to the credit card company's breach of contract action, and he had successfully defended against the breach of contract action. Am. Express Bank, FSB v. Davenport, 2017 Ark. App. 105, 513 S.W.3d 880 (2017).

In an air-bag explosion case, in which a default judgment was entered against the car manufacturer, the circuit court did not abuse its discretion in awarding $5,000 in attorney's fees, given the allegations of breach of express warranty and contract in the complaint. Nissan N. Am., Inc. v. Harlan, 2017 Ark. App. 203, 518 S.W.3d 89 (2017).

Because the complaint was brought as a breach-of-contract action, the award of attorney's fees to the purchaser, as the prevailing party, was appropriate; the seller's lawsuit was filed as a breach-of-contract action and sounded entirely in contract, and the mere fact that the parties agreed to rescind that contract did not defeat the original nature of the action. Thompson v. Broussard, 2017 Ark. App. 423, 526 S.W.3d 899 (2017).

Fees Denied.

The trial court erred in awarding attorney's fees in an interpleader action. Construction Mach. v. Roberts, 307 Ark. 252, 819 S.W.2d 268 (1991).

An appeal from a decision of the Civil Service Commission is an action which does not fall within the language of this section and therefore attorney's fees are not authorized. City of Little Rock v. Quinn, 35 Ark. App. 77, 811 S.W.2d 6 (1991).

Where the contract for or purchase of materials was made by previous owners and the suit was a suit in rem against the property, the only recovery that could be made by the plaintiff was under the section that grants a lien against the property for materials and labor furnished, § 18-44-101, which does not provide that the supplier of the materials or labor has a lien for attorney's fees, so that attorney's fees were not recoverable. Transportation Properties, Inc. v. Central Glass & Mirror of N.W. Ark., Inc., 38 Ark. App. 60, 827 S.W.2d 667 (1992).

Costs for depositions, expert fees and travel expenses are not allowable. Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995).

Award of attorney's fees was reversed where the plaintiff's action was based primarily in tort. Meyer v. Riverdale Harbor Mun. Prop. Owners Improvement Dist. No. 1, 58 Ark. App. 91, 947 S.W.2d 20 (1997).

The chancery court did not abuse its discretion in refusing to award cross-appellants attorney's fees where their argument was nothing more than an assertion that they were entitled to attorney's fees because of the manner in which they prevailed, that is, by winning a motion to dismiss at the chancery court level. Jones v. Abraham, 67 Ark. App. 304, 999 S.W.2d 698 (1999), aff'd, 341 Ark. 66, 15 S.W.3d 310 (2000), overruled in part, Lamontagne v. Ark. Dep't of Human Servs., 2010 Ark. 190, 366 S.W.3d 351 (2010).

Attorney's fees were properly denied in an action to enforce an oral contract to make a will where the trial court found that the plaintiffs acted in good faith and that their attorneys did an excellent job under the constraints of Arkansas law and the rules of evidence and the fact that they were trying to prove something that occurred years and years ago with deceased witnesses. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000).

Where mental health facility obtained a default judgment against psychiatrist and was awarded $775,000 for indemnification, because the trial court's order offered no statutory authority for awarding attorney’s fees to the mental health facility, and because that award was contrary to the general rule against awarding such fees in the absence of a statute or rule, that portion of the trial court's order was reversed. Jean-Pierre v. Plantation Homes of Crittenden County, Inc., 350 Ark. 569, 89 S.W.3d 337 (2002).

Attorney's fees were not awarded in an action seeking specific performance of a real estate contract because itemized bills were not provided to the circuit court and there was no showing as to why allegedly privileged information contained therein could not have been redacted. Van Carr Enters. v. Hamco, Inc., 365 Ark. 625, 232 S.W.3d 427 (2006).

Although two writings entered into for the construction of a house were not valid contracts, once the house was built and the debtors moved in, that took the contract out of § 4-59-101(a)(4), the statute of frauds, and based on the debtors' testimony regarding the parties' oral agreement with respect to the price to be paid, which the court found credible, the creditors' proof of claim for an additional amount was disallowed. Although the debtors were the prevailing party, they were not entitled to attorney’s fees under this section, as both parties were responsible for an incoherent agreement with no agreed upon purchase price. In re Cameron, 452 B.R. 754 (Bankr. E.D. Ark. 2011).

As claims by an estate executrix of fraud, estoppel, and fiduciary-duty were paramount, and a contract claim was not the primary basis for the action, the trial court properly refused to awarded attorney’s fees to the prevailing party pursuant to this section. Gibbs v. Bumgarner, 2012 Ark. App. 81 (2012).

In an action seeking the cancellation of a lease, assignment, and deed, attorney's fees should not have been awarded because the litigation did not concern a breach of these documents. The issue was whether there were innocent purchasers of property. Walls v. Humphries, 2013 Ark. 286, 428 S.W.3d 517 (2013).

In an action to enforce an oral contract for services performed by a consulting company for an investment company, the trial court did not abuse its discretion by denying the consulting company attorney's fees under this section as the prevailing party because the investment company's defense was taken in good faith. Steve's Outdoor Invs., LLC v. Reynolds Forestry Consulting-RFC, Inc., 2013 Ark. App. 40 (2013).

While a debtor prevailed in an action brought under 11 U.S.C. § 525(b)(3) based on his employer terminating his employment solely because of the debtor's nonpayment of his obligation to the employer, the debtor was not entitled to attorney's fees because this section was inapplicable and the debtor was not able to direct the court to a basis for fees under a specific statute, rule, or other ground. Dwelle v. Arvest Bank (In re Dwelle), No. 6:12-bk-71728, 2015 Bankr. LEXIS 4514 (Bankr. W.D. Ark. May 27, 2015).

Circuit court properly denied an attorney's request for attorney's fees under this section because the attorney was not the prevailing party where the insurer's payment to the attorney was not made as a result of an adjudication by the circuit court resolving the merits of the issue. Swindle v. Southern Farm Bureau Cas. Ins. Co., 2015 Ark. 241, 464 S.W.3d 905 (2015).

Attorney's fees could not be recovered because no contract existed between the parties. Anderson's Taekwondo Ctr. Camp Positive, Inc. v. Landers Auto Group No. 1, Inc., 2015 Ark. 268 (2015).

Insured was not entitled to relief against an insurer under this section because the insured (1) did not bring a contract claim in a pleading or point to a contractual provision the insurer did not perform, and (2) first raised breach of contract in the insured's reply in opposition to the insurer's summary judgment motion. Cooper v. Gen. Am. Life Ins. Co., 827 F.3d 729 (8th Cir. 2016).

Circuit court erred in awarding a son attorney's fees because the litigation did not concern a breach of a contract but alleged a quiet title action; the quiet-title statutes do not authorize attorney's fees, and in the absence of statutory authority, attorney's fees are not available. Stokes v. Stokes, 2016 Ark. 182, 491 S.W.3d 113 (2016).

Circuit court erred in awarding a son attorney's fees because the son asserted an unjust-enrichment claim and thus was not entitled to attorney's fees. Stokes v. Stokes, 2016 Ark. 182, 491 S.W.3d 113 (2016).

Circuit court erred in awarding the sibling attorney's fees under this section; although the sibling's action referenced a warranty deed between the sibling and the father, the sibling did not allege that there had been a breach of contract, but merely sought reformation of the deed to reflect the property's correct legal description. Alexander v. Alexander, 2016 Ark. App. 554 (2016).

Where sister filed suit to dissolve a family farming partnership, the circuit court did not abuse its discretion by denying two partners' requests for attorney's fees against the sister where the requesting partners never submitted time records or actual fees charged and paid. Hitt v. Lyle, 2020 Ark. App. 124 (2020).

Insurance.

Recovery of attorney's fees to insureds in an insurance-contract action is exclusively available under § 23-79-208, and an award under this section is prohibited; because this section does not contain a condition on a fee award, § 23-79-208 falls squarely within this section's exception that it does not apply when attorney's fees are “otherwise provided by law.” Gafford v. Allstate Ins. Co., 2015 Ark. 110, 459 S.W.3d 277 (2015).

Mandamus Actions.

Circuit court did not have discretion to award attorney's fees because a city prevailed on its petition for a writ of mandamus, not a breach-of-contract action, and nothing in Arkansas's statutory law on mandamus actions permitted recovery of attorney's fees even if a writ of mandamus was an action to enforce an underlying agreed order. Lonoke County v. City of Lonoke, 2013 Ark. 465, 430 S.W.3d 669 (2013).

Not Requested.

Although appellants claimed the trial court erred in not awarding them attorney’s fees under this section, the court could not discern that they filed a motion or otherwise requested such fees, there was no specific prayer for such in the complaint, and the trial court did not rule on the issue; a party could not complain on appeal about the trial court not granting a particular kind of relief when it was not requested. Grisanti v. Zanone, 2009 Ark. App. 545, 336 S.W.3d 886 (2009).

Prejudgment Interest.

Attorney was not entitled to an award of prejudgment interest in a fee dispute with a client because the court set the attorney's fee as a percentage of the future sales proceeds of a real estate property that the attorney obtained for a client in a dispute; thus, the fee could not be determined until the future sale of the property. Moreover, the attorney was not a prevailing party for the purpose of an award of attorney's fees. Adams v. Howard, 2014 Ark. App. 328, 436 S.W.3d 473 (2014).

Preservation for Review.

Trial court awarded the plaintiff attorney’s fees, but the defendant did not object and failed to make a record before the trial court as required, and thus the appellate did not address the attorney’s fee issue. Washington v. Kingridge Enters., 2014 Ark. App. 705, 450 S.W.3d 685 (2014).

In upholding an award of attorney's fees under this section, the Supreme Court concluded that appellant's claim that certain meeting minutes did not fall into any of the categories outlined by this section was not preserved for the Supreme Court's review because appellant failed to make this argument to the superior court. Miracle Kids Success Acad., Inc. v. Maurras, 2019 Ark. 146, 573 S.W.3d 533 (2019).

Because there was no indication in the record that a landowner challenged—in a postjudgment motion or otherwise—a circuit court's failure to make specific findings when it awarded attorney's fees to a contractor, the issue was not preserved for appellate review. Reynolds Forestry Consulting & Real Estate, PLLC v. Colbey, 2019 Ark. App. 209, 575 S.W.3d 176 (2019).

Prevailing Party.

Where six of the seven counts contained in plaintiff's complaint were dismissed on defendant's motion for directed verdict at the close of plaintiff's case-in-chief and jury returned a verdict in favor of plaintiff on remaining count, plaintiff was the “prevailing party” under this section. ERC Mtg. Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990).

Even though defendant was simply defending the cause of action on the basis that no contract existed between the parties, defendant was a prevailing party within the meaning of the statute and entitled to attorney's fees. Cumberland Fin. Group, Ltd. v. Brown Chem. Co., 34 Ark. App. 269, 810 S.W.2d 49 (1991).

Although the original request for fees was based on claims dismissed before trial, the district court did not abuse its discretion in awarding the prevailing parties their attorney's fees under this section. TCBY Sys. v. RSP Co., 33 F.3d 925 (8th Cir. 1994).

The chancellor did not abuse her discretion in awarding attorney's fees to the party she determined to be the prevailing party in a breach of contract action. Gill v. Transcriptions, Inc., 319 Ark. 485, 892 S.W.2d 258 (1995).

A third-party beneficiary may recover attorney's fees under this section. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. 303, 902 S.W.2d 760 (1995).

The court properly ruled that its award of attorney's fees could be recovered only from an estate's personal representative and not from the estate where three of the four of the cases were dismissed or nonsuited and, therefore, there was no prevailing party in those three cases. Boatmen's Trust Co. v. Buchbinder, 343 Ark. 1, 32 S.W.3d 466 (2000).

One must prevail on the merits in order to be considered a prevailing party; a dismissal without prejudice does not sufficiently conclude the matter such that a determination of the prevailing party can be stated with certainty. Burnette v. Perkins & Assocs., 343 Ark. 237, 33 S.W.3d 145 (2000).

In a landlord/tenant dispute pertaining to a fraternity house, the trial court erred in determining that there was no prevailing party where the fraternity prevailed on its claim for conversion of property and breach of lease, the officers of the fraternity prevailed in defending third-party claims by the landlord, and where the landlord was entitled to only $2,000, rather than the $40,000 sought, for damages. Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001).

Award of an attorney's fee to husband as the “prevailing party” in company's action to recover on a credit card was improper because the company was the prevailing party where judgment was rendered in its favor on its complaint for a money judgment regarding the credit card account; as husband was ordered to pay a money judgment that he did not appeal, the trial court erred in declaring husband to be the prevailing party for purposes of this section. C & W Asset Acquisition, LLC v. Whittington, 90 Ark. App. 213, 205 S.W.3d 157 (2005).

Appellate court affirmed trial court's order denying attorney’s fees to a firm as the fact that the firm prevailed on the forum selection clause issue did not mean that it was the prevailing party as to the substantive issues, and the former partner's involuntary dismissal of the case without prejudice did not cause the firm to be the prevailing party where the substantive issues remained. BKD, LLP v. Yates, 367 Ark. 391, 240 S.W.3d 588 (2006).

Sixty-five thousand dollar attorney's fee award in a breach of contract case was upheld on review because the assertion of an unsuccessful counterclaim did not mean that a health organization was not the prevailing party where it successfully defended against doctor's contract claim; moreover, the amount was reasonable considering the legal expenses incurred. Perry v. Baptist Health, 368 Ark. 114, 243 S.W.3d 310 (2006).

When a corporation sought a retainage from a contractor, but the contractor refused to return the money because of alleged deficiencies in the corporation's work, the circuit court properly awarded attorney's fees to the contractor because the contractor was the prevailing party, as it had received three-fourths of the money at issue. CJ Bldg. Corp. v. TRAC-10, 368 Ark. 654, 249 S.W.3d 793 (2007).

Because the physician prevailed on two of the three issues he raised against the doctor and the professional association he, therefore, came out “on top” at the end of the case for purposes of this section. Further, the district court awarded the physician $12,000 in attorney's fees for successfully defending against the breach of contract counterclaim and did not abuse its discretion in so doing. Baptist Health v. Smith, 536 F.3d 869 (8th Cir. 2008).

An award of attorney's fees to the landowners as the prevailing party under this section in a lease dispute, was affirmed although the judgment was reversed on appeal because a farm did not preserve its prevailing party argument made on appeal of a denial of a motion to vacate the award under Ark. R. Civ. P. 60(a). Seidenstricker Farms v. Doss, 374 Ark. 123, 286 S.W.3d 142 (2008).

Trial court erred in a breach of contract action in holding that a buyer was not entitled to attorney’s fees after judgment was rendered in its favor because the language of the purchase agreement did not indicate that the parties intended that each party would pay its own attorney’s fees and costs in the event of litigation. Asbury Auto. Used Car Ctr. v. Brosh, 2009 Ark. 111, 314 S.W.3d 275 (2009).

Sellers who asserted a successful breach-of-contract claim against a buyer who moved into a home without paying the balance due were the prevailing party entitled to attorney's fees because even though the buyer prevailed on some warranty claims for unfinished household repairs, the sellers came out on top in the end. Carroll v. UV Props., LLC, 2009 Ark. App. 599 (2009).

In an action by home buyers against the sellers for recovery of the earnest money, in which the sellers asserted a counterclaim for damages for breach of contract, which resulted in a decision that the sellers were not entitled to damages but were entitled to keep the earnest money, neither party was the prevailing party for purposes of awarding attorney's fees under this section or the terms of the parties' real estate contract, or for costs under Ark. R. Civ. P. 54(d)(2). Brackelsberg v. Heflin, 2011 Ark. App. 678, 386 S.W.3d 636 (2011).

Circuit court did not abuse its discretion in finding that the client was the prevailing party where she successfully defended the breach-of-contract claim; the court limited the fee award and a successful defendant in a contract action could be considered a “prevailing party” for the purposes of this section. Harrill & Sutter P.L.L.C. v. Kosin, 2012 Ark. 385, 424 S.W.3d 272 (2012).

Trial court did not err in awarding attorney’s fees to the purchaser of an accounting office in a breach of contract action because the purchaser was the prevailing party; while the trial court dismissed the purchaser's claims for fraud, reimbursement of the purchase money for the building, and tortious interference, it awarded the purchaser all of the purchaser's requested fees. Spann v. Lovett & Co., 2012 Ark. App. 107, 389 S.W.3d 77 (2012).

While appellants were granted summary judgment on individual claims against them, appellee recovered a judgment against appellants' company, and thus appellee was a prevailing party in terms of the entirety of the case; thus, the trial court did not err in denying appellants' motion for attorney’s fees. Armstrong Remodeling & Constr., LLC v. Cardenas, 2012 Ark. App. 387, 417 S.W.3d 748 (2012).

Because the only issue remaining for trial was whether the rail service should be liable for the employer's share of a settlement amount, and at trial the district court determined that the rail service was not liable for any additional amount, the district court did not err when it found that the employer was not a prevailing party under this section. Rice v. Union Pac. R.R. Co., 712 F.3d 1214 (8th Cir. 2013).

Because appellee prevailed in a breach of contract action under the theory of collateral estoppel, he was the prevailing party and an award of attorney’s fees to him was not in error. Rose v. Nutt, 2013 Ark. App. 688 (2013).

It was necessary to remand for a determination of whether defendant was entitled to attorney’s fees on its counterclaim under the Arkansas Deceptive Trade Practices Act because a party who prevailed on a cause of action to recover actual damages under the Act was eligible for an award of attorney’s fees, in the discretion of the court, even when another party was the prevailing party in the overall action for purposes of the statute. G&K Servs. Co. v. Bill's Super Foods, Inc., 766 F.3d 797 (8th Cir. 2014).

Because the circuit court erred in denying a surety's motion for directed verdict, a subcontractor was no longer the prevailing party and was not entitled to attorney's fees under either the subcontractor or the attorney-fee statute, and it was not the “successful party” entitled to attorney's fees under the materialmen's lien statute. Travelers Cas. & Sur. Co. of Am. v. Sweet's Contr., Inc., 2014 Ark. 484, 450 S.W.3d 229 (2014).

Trial court erred in finding that the consignees were not the prevailing parties and, consequently, denying their motion for attorney’s fees because, even though the jury awarded no damages, the consignees prevailed in the consignor’s breach-of-contract claim against them and in their breach-of-contract counterclaim against the consignor. Sluyter v. Toney, 2014 Ark. App. 247 (2014).

Circuit court, which awarded attorney's fees to a city pursuant to this section, erred in its analysis of determining the prevailing party; when considered as a whole, the contractor was the prevailing party because it was declared entitled to 100% of the amount it claimed in the litigation while the city was awarded only 53% of the amount it sought. Southern Bldg. Servs. v. City of Fort Smith, 2014 Ark. App. 437, 440 S.W.3d 346 (2014).

Appellees successfully held shareholders liable for breach of warranty of title in a case involving the conveyance of mineral rights; although appellees did not receive the full amount of damages they requested, they prevailed on their breach of warranty claim, and thus the circuit court did not abuse its discretion in determining that appellees were the prevailing party in the action. Mt. Pine Timber, Inc. v. Smith, 2016 Ark. App. 197, 487 S.W.3d 832 (2016).

Rescission.

Remedy of rescission in a contract case does not foreclose this section's authorization for attorney's fees in a breach-of-contract case. Where a trial court's order and its oral findings indicate that a case sounded primarily in contract, rather than in tort, and the trial court was misled by dicta in case law, a remand was necessary for the reconsideration of a motion for fees. Beck v. Inter City Transp., Inc., 2012 Ark. App. 370, 417 S.W.3d 740 (2012).

Reversal of Judgment.

Where trial court relied on this section in authorizing award of attorney's fees to the prevailing party, the Supreme Court, in reversing judgment, also reversed the award of attorney's fees. Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990).

Since the judgment in favor of the prevailing party was reversed, the award of the attorney's fee was also reversed. American States Ins. Co. v. Tri Tech, Inc., 35 Ark. App. 134, 812 S.W.2d 490 (1991).

Assignee of trucking companies stood in the companies' position and was subject to any defenses a transportation company had against the companies, including fraud, and the trial court erred in finding otherwise; in addition, because the assignee was no longer a prevailing party, the appellate court also reversed the award of attorney’s fees under this section. Am. Transp. Corp. v. Exch. Capital Corp., 84 Ark. App. 28, 129 S.W.3d 312 (2003).

Where litigants failed in an action on a trust and the trial court dismissed their cross-claims for waste, bad faith, and breach of fiduciary duty, and rejected their arguments regarding the interpretation of the trust instrument, the trial court erred in awarding them conditional attorney's fees. Bailey v. Delta Trust & Bank, 359 Ark. 424, 198 S.W.3d 506 (2004).

School district was not required under this section to pay a county an attorney's fee because an order directing the district to reimburse the county for overtime pay provided by the county to the county clerk for work related to a school district election was reversed. Helena-West Helena Sch. Dist. v. Fluker, 371 Ark. 574, 268 S.W.3d 879 (2007).

Standard of Review.

Due to the trial judge's intimate acquaintance with the record and the quality of service rendered, the appellate court usually recognizes the superior perspective of the trial judge in assessing the applicable factors. Accordingly, an award of attorney's fees will not be set aside absent an abuse of discretion by the trial court. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).

Supreme court affirmed the circuit court's order denying a general contractor's motion for attorney's fees because the general contractor challenged the ruling that it was not the prevailing party, but it did not challenge the alternative, independent ruling that it could not be awarded attorney's fees due to its conduct in the case. Travelers Cas. & Sur. Co. of Am. v. Sweet's Contr., Inc., 2014 Ark. 484, 450 S.W.3d 229 (2014).

Summary Judgment.

In a subcontractor's fraudulent inducement suit against a contract, a trial court did not abuse its discretion in awarding the contractor $40,000 in attorney's fees under this section, although the contractor prevailed on summary judgment, given the volume of discovery that was necessary before the contractor could determine that the subcontractor had violated § 17-25-103, defeating the subcontractor's claims. Meyer v. CDI Contrs., LLC, 102 Ark. App. 290, 284 S.W.3d 530 (2008).

Award of $200,000 in attorney's fees and costs to defendants was vacated on appeal from summary judgment because defendants were no longer the prevailing party in an action based on a non-compete contract; there was a genuine dispute of material fact about whether defendant employees' former employer assigned defendants' non-compete agreements to plaintiff. Stuart C. Irby Co. v. Tipton, 796 F.3d 918 (8th Cir. 2015).

Teachers.

An action brought pursuant to the Teacher Fair Dismissal Act, § 6-17-1501 et seq., is both a civil action and a claim for labor or services, and thus covered by this section. Junction City Sch. Dist. v. Alphin, 56 Ark. App. 61, 938 S.W.2d 239 (1997); Hall v. Kingsland Sch. Dist., 56 Ark. App. 110, 938 S.W.2d 571 (1997).

Actions brought pursuant to the Teacher Fair Dismissal Act of 1983, § 6-17-1501 et seq., are actions in contract for labor or services such that attorney's fees may be awarded by the trial court pursuant to this section. Love v. Smackover Sch. Dist., 329 Ark. 4, 946 S.W.2d 676 (1997).

Court found no abuse of discretion in the decision to limit the attorney’s fees award to the work done on a teacher fair dismissal case, and the court affirmed the holding that services regarding the teacher's criminal case, child maltreatment case, and teacher license case should have been disallowed. Avery v. Warren Sch. Dist., 2013 Ark. App. 392 (2013).

Time Limitations.

There is no statute or local court rule that prescribes any specific time limit on a motion for an attorney's fee under this section. Therefore, because the essence of waiver is the voluntary relinquishment of a known right, it was impossible to waive right to request a fee award under this section by filing motion more than 30 days after the underlying judgment was rendered. Marsh & McLennan v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).

District court's verdict was reversed on appeal where the applicable statute of limitations began to run at the latest date the plaintiff lessor learned its land had suffered a remediable injury, though it did not yet know the extent of the injury; thus, the award of attorney's fees was reversed and remanded for further consideration. Highland Indus. Park, Inc. v. BEI Def. Sys. Co., 357 F.3d 794 (8th Cir. 2004).

Trial court did not err in denying terminated county employee's motion for an award of attorney's fees as her motion seeking attorney's fees was not timely filed; the same result held true even if the time was measured from the denial of the county's motion for JNOV because the fee motion was filed 21 days after the order denying the motion was entered. Crawford County v. Jones, 365 Ark. 585, 232 S.W.3d 433 (2006).

Tort Action.

When the prevailing party's claim is based in tort, an award of attorney's fees cannot be justified under this section. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993).

Where a case was submitted to the jury on alternate theories, both contract and tort, and the jury based its award on the tort theory, the trial judge did not err in declining to award attorney's fees. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993).

Attorney's fees denied where the action was one for replevin and, alternatively, for conversion of two trucks; this section does not allow attorney's fees in tort actions. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998).

Trial court did not abuse its discretion in refusing to award attorney's fees in a conversion action. Brown v. Blake, 86 Ark. App. 107, 161 S.W.3d 298 (2004).

Attorney’s fees should not have been awarded under this section because the action was not primarily based in contract; the case sounded primarily in tort because, in order for a cause of action for legal malpractice to be maintained, the contractual relationship requirement in § 16-22-310 had to be met. The core dispute was whether there was an oral contract to make a claim against an attorney and his legal-malpractice carrier. Howard v. Adams, 2012 Ark. App. 562, 424 S.W.3d 337 (2012).

Although attorney's fees and costs were recoverable under this section for successfully defending a contract claim, fees and costs associated with a third-party negligence claim were not recoverable. Carter v. Cline, 2013 Ark. 398, 430 S.W.3d 22 (2013).

Cited: Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988); Meyers Gen. Agency v. Lavender, 301 Ark. 503, 785 S.W.2d 28 (1990); Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990); Eddings v. Lippe, 304 Ark. 309, 802 S.W.2d 139 (1991); Woodhaven Homes, Inc. v. Kennedy Sheet Metal Co., 304 Ark. 415, 803 S.W.2d 508 (1991); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992); Loewer v. National Bank, 311 Ark. 354, 844 S.W.2d 329 (1992); P.A.M. Transp., Inc. v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Hardison v. Jackson, 45 Ark. App. 49, 871 S.W.2d 410 (1994); Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728 (1996); City of Ozark v. Nichols, 56 Ark. App. 85, 937 S.W.2d 686 (1997); Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997); Milligan v. Circuit Court, 331 Ark. 439, 959 S.W.2d 747 (1998); Arkansas Okla. Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998); State Auto Property & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999); Bharodia v. Pledger, 66 Ark. App. 349, 990 S.W.2d 581 (1999); Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999); Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999); Stilley v. James, 347 Ark. 74, 60 S.W.3d 410 (2001); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001); GMAC v. Union Bank & Trust Co., 329 F.3d 594 (8th Cir. 2003); BAAN, United States v. USA Truck, Inc., 82 Ark. App. 202, 105 S.W.3d 784 (2003); Hickman v. Kralicek Realty & Constr. Co., 84 Ark. App. 61, 129 S.W.3d 317 (2003); Patton v. TPI Petroleum, Inc., 356 F. Supp. 2d 921 (E.D. Ark. 2005); Taylor v. George, 92 Ark. App. 264, 212 S.W.3d 17 (2005); Sluyter v. Hale Fireworks P'ship, 370 Ark. 511, 262 S.W.3d 154 (2007); Helena-West Helena Sch. Dist. v. Fluker, 371 Ark. 574, 268 S.W.3d 879 (2007); Medical Liab. Mut. Ins. Co. v. Alan Curtis Enters., 373 Ark. 525, 285 S.W.3d 233 (2008); Hearne v. Banks, 2009 Ark. App. 590, 376 S.W.3d 444 (2009); Booth v. Riverside Marine Remanufacturers, 2010 Ark. App. 366, 376 S.W.3d 450 (2010); Bonds v. Hunt, 2010 Ark. App. 415, 379 S.W.3d 57 (2010); Dunn v. Womack, 2011 Ark. App. 393, 383 S.W.3d 893 (2011); Worley v. City of Jonesboro, 2011 Ark. App. 594, 385 S.W.3d 908 (2011); Piping Indus. Co. v. Future Fuel Chem. Co., 2013 Ark. App. 549 (2013); Trakru v. Mathews, 2014 Ark. App. 154, 434 S.W.3d 10 (2014); Liberty Bank of Ark. v. Byrd, 2016 Ark. App. 86, 482 S.W.3d 746 (2016); Watson Chapel Sch. Dist. v. Vilches, 2016 Ark. App. 87, 482 S.W.3d 755 (2016); One Bank & Trust, N.A. v. Lenderman, 2017 Ark. App. 42, 512 S.W.3d 651 (2017).

16-22-309. Attorney's fees in actions lacking justiciable issue.

    1. In any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court shall award an attorney's fee in an amount not to exceed five thousand dollars ($5,000), or ten percent (10%) of the amount in controversy, whichever is less, to the prevailing party unless a voluntary dismissal is filed or the pleadings are amended as to any nonjusticiable issue within a reasonable time after the attorney or party filing the dismissal or the amended pleadings knew, or reasonably should have known, that he would not prevail.
    2. This section shall not apply to actions arising out of a written instrument or agreement which entitles the prevailing party to an award of reasonable attorney's fees.
  1. In order to find an action, claim, setoff, counterclaim, or defense to be lacking a justiciable issue of law or fact, the court must find that the action, claim, setoff, counterclaim, or defense was commenced, used, or continued in bad faith solely for purposes of harassing or maliciously injuring another or delaying adjudication without just cause or that the party or the party's attorney knew, or should have known, that the action, claim, setoff, counterclaim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
  2. In awarding attorney's fees, the court may pronounce its decision on the fees at the conclusion of the trial or special proceedings without written motion and with or without presentation of additional evidence. The judgment for attorney's fees, if any, shall be included in the final judgment entered in the action.
  3. On appeal, the question as to whether there was a complete absence of a justiciable issue shall be determined de novo on the record of the trial court alone.

History. Acts 1987, No. 601, §§ 1-5.

Research References

U. Ark. Little Rock L.J.

Survey — Attorneys, 10 U. Ark. Little Rock L.J. 539.

U. Ark. Little Rock L. Rev.

Annual Survey of Case Law: Contract Law, 29 U. Ark. Little Rock L. Rev. 845.

Case Notes

Applicability.

Although the filing of the petition may not have triggered the application of this section, the continuation of the suit beyond a reasonable time after this section became effective rendered the litigant subject to its terms. Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989).

Burden of Proof.

This section is not applicable to appellate courts. Mosley Mach. Co. v. Gray Supply Co., 310 Ark. 448, 837 S.W.2d 462 (1992).

Subsection (c) makes it clear that it applies in trial rather than appellate courts and thus furnishes no authority for an award of fees requested for the first time on appeal. Cowan v. Schmidle, 312 Ark. 256, 848 S.W.2d 421 (1993).

Where it was obvious from the parties' arguments, the trial court's thorough opinion and the parties' written briefs on appeal that the plaintiffs made a reasonable inquiry into the facts and law and a good faith argument that defendant had waived its defenses, the defendant failed in meeting the burden of proving a violation of ARCP 11 or showing its entitlement to attorney's fees under this section. Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993).

Defense and Counterclaim.

Chancellor abused his discretion in awarding fees to plaintiff where the issues raised by defendant in defending the action and in pursuing her counterclaim had a basis in fact and a partial basis in law. Lawson v. Sipple, 319 Ark. 543, 893 S.W.2d 757 (1995).

Whether counterclaims were filed with the purpose of delaying municipal court claim of $510 without just cause, it was clear that opponent knew or should have known that he could not prove all the elements or perhaps even one element of complaint. There was no justification for taking the counterclaims to trial when the settlement failed so that he would not be totally empty before the trial court. Wynn v. Remet, 321 Ark. 227, 902 S.W.2d 213 (1995).

Fees.

Attorney's fees allowed. Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991).

As a general rule, attorney's fees are not allowed in Arkansas unless expressly authorized by statute; however, in any civil action which the court having jurisdiction finds there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court may award an attorney's fee in an amount not to exceed $5,000, or ten percent of the amount in controversy. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).

Where there was no showing of bad faith or harassment in plaintiffs' claim that defective feed caused animals' deaths or that the claim was without any reasonable basis, and thus defendant was not entitled to attorney's fees under this section. Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995).

Attorney's fees were not awarded to the defendant city in an inverse condemnation action where there was nothing to indicate that the argument made by the plaintiffs was made in bad faith or solely for the purpose of harassing or maliciously injuring the city. Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998).

Trial court did not err by denying a telecommunications company's motion for attorney's fees following the trial court's denial of a city's declaratory judgment action against the company because the trial court never made a finding of a complete absence of a justiciable issue, and the appellate court could not find that the city acted in bad faith by bringing the action. City of Fort Smith v. Didicom Towers, Inc., 362 Ark. 469, 209 S.W.3d 344 (2005).

Although appellant did not prevail, his claim was supported, and thus the court could not find that there was a complete absence of a justiciable issue and the trial court erred in ordering the payment of fees. Laster v. Williams, 2012 Ark. App. 282 (2012).

Circuit court properly denied the landowners attorney's fees in a boundary dispute where the action was based on the contention that the adjacent owners were trespassing to access another tract owned by landowners, and although the circuit court found that the adjacent owners' claims were barred by res judicata and that there was a boundary by acquiescence, there was nothing to indicate that the argument was made in bad faith or that it was made solely for the purpose of harassing or of maliciously injuring the landowners. Cross v. Cross, 2016 Ark. App. 327, 497 S.W.3d 712 (2016) (sub. op. on reh'g).

Award of attorney's fees was justified under this section. Talley v. Peedin, 2017 Ark. App. 80, 515 S.W.3d 611 (2017).

Final Judgment.

The unliquidated award of attorney's fees pursuant to this section is not a final order. Stewart Title Guar. Co. v. Cassill, 41 Ark. App. 22, 847 S.W.2d 465 (1993).

This section specifically requires that judgment for attorney's fees be included in the final judgment entered in the action, but no such requirement appears in § 26-35-902. Stewart Title Guar. Co. v. Cassill, 41 Ark. App. 22, 847 S.W.2d 465 (1993).

Justiciable Issue.

Where there was not a complete absence of a justiciable issue, chancellor's award of attorney's fees was reversed. Bailey v. Montgomery, 31 Ark. App. 1, 786 S.W.2d 594 (1990); Cureton v. Frierson, 41 Ark. App. 196, 850 S.W.2d 38 (1993).

On appeal, the question as to whether there was a complete absence of a justiciable issue shall be determined de novo on the record of the trial court alone. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).

To obtain an attorney's fee pursuant to subdivision (a)(1), a prevailing party must show there was a complete absence of a justifiable issue of either law or fact raised by the losing party or his attorney; to obtain an attorney's fee or other sanction pursuant to ARCP 11, it must be shown that an attorney or party signed a pleading not ground in fact, not warranted by existing law or a good faith argument for a change in the law, or filed for an improper purpose. Cowan v. Schmidle, 312 Ark. 256, 848 S.W.2d 421 (1993).

Court properly dismissed student's petition for a writ of mandamus requesting the court to enjoin school officials to reinstate his cancelled test scores in a voluntary reading program after he was accused of cheating as the court knew of no law to compel the school officials to reinstate the student's scores in a voluntary reading program; further, an award of attorney’s fees to appellees under this section was proper because no justiciable issue was raised. T.J. v. Hargrove, 362 Ark. 649, 210 S.W.3d 79 (2005).

Circuit court did not err in denying attorney’s fees because there was not a complete absence of justiciable issues; the applicability of § 17-42-107(b), regarding capacity to sue for real estate commissions, had not, until the instant appeal, been interpreted by Arkansas' courts and, further, the language of the statute was sufficiently unclear that a party or his attorney would be justified in making an argument regarding its meaning. Keahey v. Plumlee, 94 Ark. App. 121, 226 S.W.3d 31 (2006).

Trial court erred in awarding attorney's fees against a neighboring land owner, who had asserted a claim for an easement by prescription, because there was no bad faith shown. The neighboring land owner presented a valid claim, and offered some evidence that he used the roadway over the course of years. Drummond v. Shepherd, 97 Ark. App. 244, 247 S.W.3d 526 (2007).

There was no evidence in the record, other than the neighbor's bare, unfounded assertion, that the boundary line established and confirmed by all of the surveys was not in fact the boundary line, and there was a complete absence of a justiciable issue on the neighbor's part in his defense; pursuant to § 16-22-309, the landowners were entitled to attorney's fees. Adams v. Atkins, 97 Ark. App. 328, 249 S.W.3d 166 (2007).

In an easement dispute between adjoining landowners dismissed on res judicata grounds, the award of attorney's fees was reversed because precedent requires that the circuit court find a “complete absence of a justiciable issue” as a prerequisite to an award of attorney's fees under this section, which was not done in this case. Shonting v. Connor, 2020 Ark. App. 154, 597 S.W.3d 129 (2020).

Limit on Amount.

Where the trial court found that plaintiff's complaint lacked merit, the defendant was entitled to an award of attorney's fees but subject to the limit prescribed by this section. Steward v. Wurtz, 327 Ark. 292, 938 S.W.2d 837 (1997).

Review.

Abstracts of the trial court's sanction ruling are required for an appellate court to determine whether the trial court erred in denying fees and costs pursuant to this section; appellate courts will not review the record to make this determination. McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996).

Claim that an attorney was entitled to fees under subdivision (a)(1) of this section for the filing of an allegedly nonjusticiable claim was not heard on review because the circuit court made no ruling on the issue. Morgan v. Chandler, 367 Ark. 430, 241 S.W.3d 224 (2006).

Summary Judgment.

Where Supreme Court determined there were disputed issues of material fact, reversing trial court's grant of summary judgment, it could not be said that plaintiffs were pursuing a claim not grounded in fact and that defendant was entitled to attorney's fees under ARCP 11 or this section. Chlanda v. Killebrew, 329 Ark. 39, 945 S.W.2d 940 (1997).

Cited: Martin v. Couey Chrysler Plymouth, Inc., 308 Ark. 325, 824 S.W.2d 832 (1992); Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995); Marshall Sch. Dist. v. Hill, 56 Ark. App. 134, 939 S.W.2d 319 (1997); Jones v. Abraham, 67 Ark. App. 304, 999 S.W.2d 698 (1999); Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001); Farm Bureau Mut. Ins. Co. of Ark. v. VJM Enters., LLC, 2017 Ark. App. 28, 511 S.W.3d 349 (2017).

16-22-310. Liability for civil damages.

  1. No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person, partnership, or corporation, except for:
    1. Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations; or
      1. Other acts, omissions, decisions, or conduct if the person, partnership, or corporation was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action.
      2. For the purposes of subdivision (a)(2)(A) of this section, if the person, partnership, or corporation identifies in writing to the client those persons who are intended to rely on the services and sends a copy of the writing or similar statement to those persons identified in the writing or statement, then the person, partnership, or corporation or any of its employees, partners, members, officers, or shareholders may be held liable only to the persons intended to so rely, in addition to those persons in privity of contract with the person, partnership, or corporation.
  2. This section shall apply only to acts, omissions, decisions, or other conduct in connection with professional services occurring or rendered on or after April 6, 1987.
  3. The appointment of an attorney as a successor trustee or attorney-in-fact as provided in § 18-50-101 et seq. shall not expand the liability of the attorney, the entity, or partnership employing the attorney, or the firm in which the attorney is a member or partner beyond the liability provided in this section.

History. Acts 1987, No. 661, §§ 2, 3; 2005, No. 1883, § 1.

Publisher's Notes. This section is also codified as §§ 16-114-30116-114-303, 17-12-701, and 17-12-702.

Research References

Ark. L. Rev.

Morrison & George, Arkansas's Privity Requirement for Attorney and Accountant Liability, 51 Ark. L. Rev. 697.

Legal Malpractice: The Law in Arkansas and Ways to Avoid Its Reach, 55 Ark. L. Rev. 267.

Molly S. Magee, Comment: Who Is the Client? Who Has the Privilege?: The Attorney Client Privilege in Trust Relationships in Arkansas, 65 Ark. L. Rev. 637 (2012).

U. Ark. Little Rock L. Rev.

Survey — Attorneys, 10 U. Ark. Little Rock L.J. 539.

Annual Survey of Caselaw, Tort Law, 24 U. Ark. Little Rock L. Rev. 1085.

Annual Survey of Case Law: Practice, Procedure, and Courts, 29 U. Ark. Little Rock L. Rev. 905.

Case Notes

Applicability.

This section exempts from its privity requirement actions involving fraud, collusion, or malicious or tortious acts. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

This section does not apply to federal civil rights claims. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

As a general rule, an attorney is not liable to persons not in privity with him for negligence in the performance of his duties; the attorney is held liable only for conduct constituting fraud, intentional misrepresentations, or intentional torts. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

This section protects attorneys from liability to those not in privity with them but excepts from this protection actions for intentional fraud. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).

The contract contemplated by this section relates to a contract for professional services performed by the attorney for the client; thus, where the asserted contract did not relate to attorney's performance of professional services rendered to plaintiff, but rather the alleged breach appears to have been related to attorney's representation of plaintiff's husband in matters concerning divorce, the alleged contract did not involve attorney's legal representation of plaintiff, and privity of contract was lacking. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).

Where wife's attorney in divorce suit negotiated the terms of a general settlement with the husband's attorney and the wife subsequently refused to accept the settlement agreement, the husband could not seek to hold the wife's attorney liable to him under a claim of breach of an implied promise; the wife's attorney was not in privity of contract with the husband and there were no allegations of fraud or misrepresentation by the wife's attorney. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).

Because this section did not bar client's claim of professional negligence against the lawyer and a material fact remained as to whether the client was in privity with the lawyer, and a material fact remained as to whether there was an employer-employee relationship between the lawyer and the firm at the time of the lawyer's alleged negligence, the trial court erred in granting summary judgment for the lawyer and the law firm. Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (2003).

Because insurers were not in direct privity with attorneys who allegedly provided inadequate representation to an insured, and a valuation sent to one insurer did not indicate that the insurer was a party intended to rely on the valuation, this section precluded the insurers from suing the attorneys for legal malpractice.Great American Ins. Co. v. Dover, 456 F.3d 909 (8th Cir. 2006).

In a negligence action, the real question was whether the property appraiser owed any legal duty to the plaintiff property owners, and the plaintiffs' reliance on §§ 4-86-101, 16-114-303, and 16-22-310 to support their proposition that privity of contract with an appraiser was not a requirement in their negligence suit was misplaced. Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007).

Where heirs had filed an action against lawyers alleging negligence related to a will executed by their deceased relative, the lawyers were entitled to summary judgment because none of the heirs had ever had a lawyer-client relationship with the lawyers. Under this section, the lawyers were protected from such actions filed by persons with whom they were not in privity. Yeary v. Baptist Health Found., No. 4:06CV01702 JLH, 2008 U.S. Dist. LEXIS 1376 (E.D. Ark. Jan. 7, 2008).

Dismissal was proper in an action by debtors against a law firm acting as a debt collector because the firm was immune from claims of abuse of process, civil conspiracy, constructive fraud, and negligence under this section. Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324 (2010).

Bond counsel was not liable to the banks for malpractice for failing to indicate in the disclosure documents prepared for the bond underwriter that there was a prior lien on the real property pledged as security for the bonds because the banks did not have direct privity of contract or any attorney-client relationship with counsel. First Ark. Bank & Trust v. Gill Elrod Ragon Owen & Sherman, P.A., 2013 Ark. 159, 427 S.W.3d 47 (2013).

Constitutionality.

This section does not usurp Supreme Court's authority to regulate the practice of law as the statute enunciates the parameters for litigation by clients against attorneys and does not conflict with any rule or decision by the Supreme Court. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).

Construction.

The language of this section appears to be nothing more than a restatement of the general rule of liability. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

Trial court properly concluded that the lawyer placed a lien on land in which he believed the landowner held an interest and that the acts were the lawful actions of an attorney representing his client; therefore, the lawyer was immune under this section and § 16-114-303 from the landowner's slander of title lawsuit. Fleming v. Cox Law Firm, 363 Ark. 17, 210 S.W.3d 866 (2005).

Purpose.

This section was not intended to make attorneys immune from liability for damages in the case of an intentional tort, but appears to be a legislative statement that the privity requirement still exists in connection with contract or negligence actions. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

If this section were to grant an attorney immunity from liability for abuse of process, then this section would be a shield behind which an attorney could take action to intentionally and improperly deprive someone of his property. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

Attorney’s Fees.

Attorney’s fees should not have been awarded under § 16-22-308 because the action was not primarily based in contract; the case sounded primarily in tort because, in order for a cause of action for legal malpractice to be maintained, the contractual relationship requirement in this section had to be met. The core dispute was whether there was an oral contract to make a claim against an attorney and his legal-malpractice carrier. Howard v. Adams, 2012 Ark. App. 562, 424 S.W.3d 337 (2012).

Employees.

Employer attorney was not entitled to the immunity protection of this section for her own negligence in not adequately supervising her employee, another attorney, who was suspected of dishonest conduct in his transaction with clients who were not in privity of contract with the employer attorney, as the employer attorney's negligence was not related to the performance of professional services as required under the statute, but instead involved her supervision of his conduct as his employer. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001).

Exceptions.

Although this section uses the terms fraud or intentional misrepresentation when discussing exceptions to the privity requirement, the exception includes intentional torts that are committed on third parties. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

A limited exception to the strict privity rule is commonly made when the third party is found to be a third party beneficiary. Almand v. Benton County, 145 B.R. 608 (Bankr. W.D. Ark. 1992).

The exception to this section appears to be for intentional actions. Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).

Exception in subdivision (a)(2) did not apply in the case of trustees who brought a legal malpractice action against a lawyer and others; the lawyer was aware that the purpose of the lawyer's relationship with the trustees as individuals was to benefit the trusts, and the trustees did not present any specific evidence that showed that the statutory requirements had been met. Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005).

Second exception to the general rule of privity in § 16-22-310(a)(2) on which trusts relied in their legal malpractice claims against attorneys was inapplicable because the trusts had no potential action against one attorney due to lack of the statutorily required privity of contract with him, and the trusts' claims that an attorney's acts during the second period of representation affected the 1999 claim regarding a sale of the family farm failed. While it was undisputed that counsel during the first period of representation was aware that the purpose of his relationship with the individuals was to benefit the trusts, the trusts did not present any specific evidence, such as specific documents or correspondence, that showed that the statutory requirements as to sending correspondence had been met. Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005).

Bond counsel could not be liable to the banks under subdivision (a)(2) of this section for failing to indicate in the disclosure documents prepared for the bond underwriter that there was a prior lien on the real property pledged as security for the bonds because there was no writing by which counsel identified the banks as persons counsel's services were intended to benefit or influence. First Ark. Bank & Trust v. Gill Elrod Ragon Owen & Sherman, P.A., 2013 Ark. 159, 427 S.W.3d 47 (2013).

Fraud.

Complaint alleging actual fraud and constructive fraud against the attorney for an opposing party in prior litigation dismissed for failure to state claim under ARCP 12(b)(6). Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).

Where there was no factual basis for the conclusory allegation in plaintiff's amended complaint that attorney intentionally misrepresented his statement of neutrality in divorce case, the attorney was immune under this section. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).

Pursuant to §§ 16-22-310(a)(1) and 16-114-303, an attorney and law firm were immune from a couple's slander of title claim where there was no privity between the parties, there were no factual assertions of fraud, and it appeared that a lis pendens action to enforce a child arrearage judgment obtained by the husband's ex-wife was simply filed in error. Fleming v. Cox Law Firm, 363 Ark. 17, 210 S.W.3d 866 (2005).

Bond counsel was not entitled to summary judgment on the claim that he committed malpractice by failing to indicate in the disclosure documents prepared for the bond underwriter that there was a prior lien on the real property pledged as security for the bonds because there remained genuine issues of material fact on whether the existence of the prior lien was a material item of information that should have been disclosed by bond counsel, whether the failure to disclose was an intentional omission, and whether the failure to disclose was done with the intent to defraud bond purchasers as a means to secure the fees bond counsel expected to realize from the bond transaction. First Ark. Bank & Trust v. Gill Elrod Ragon Owen & Sherman, P.A., 2013 Ark. 159, 427 S.W.3d 47 (2013).

Relation to Other Remedies.

Where this section precluded insurers from filing a legal malpractice claim against attorneys who allegedly provided inadequate representation for an insured, the insurers also could not recover from the attorneys under a theory of equitable subrogation; allowing the insurers to proceed under that alternative theory would contravene this section, which enunciates the parameters for litigation by clients against attorneys. Great American Ins. Co. v. Dover, 456 F.3d 909 (8th Cir. 2006).

Respondeat Superior.

Client's respondeat superior claims against the law firm were not barred by this section due to lack of privity between the client and the lawyer who worked for the law firm. Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (2003).

Standing.

Privity of contract is not required in order to have a cause of action against an attorney for intentional misrepresentations or fraud. Calandro v. Parkerson, 327 Ark. 131, 936 S.W.2d 755 (1997).

A plaintiff in a legal malpractice action must be in direct privity with the attorney or entity being sued for legal malpractice; thus, the children of a decedent could not bring a legal malpractice action against the attorney who drafted the decedent's will either under a theory of indirect privity or as third-party beneficiaries of the contract for legal representation. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

The children of a decedent did not have standing to bring a legal malpractice action against the attorney who drafted the decedent's will under the exception contained in subdivision (a)(2) of this section, as there was no evidence that the attorney ever sent a copy of the will to the children. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

A decedent's personal representatives did not have standing to bring a legal malpractice action against the attorney who drafted the decedent's will as there was direct privity between the decedent and the attorney. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

Although the law firm, lawyer's estate, and attorneys were in privity of contract with the individuals who created the trusts and became trustees, the existence of privity for the claims against the attorneys did not stand on its own because the actual claims of legal malpractice occurred during the lawyer's representation when the trustees had no privity with the firm; thus, the trustees were without standing to bring their legal malpractice suit and the trial court was without jurisdiction to hear the case. Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005).

Trustees lacked standing to file legal malpractice claims against appellees, attorneys, and a law firm, because appellees provided legal services for the sale of a family farm to the trustees in their individual capacities, and not to the trusts of which the individuals were trustees. Although the parties were, in fact, the same individuals, they were different legal entities from the trusts; thus privity for the individuals did not necessarily equate to privity for the trusts, and the trustees had no privity of contract with appellees as required by § 16-22-310(a). Giles v. Harrington, Miller, Neihouse & Krug, 362 Ark. 338, 208 S.W.3d 197 (2005).

Where a decedent, prior to his death, and his wife retained the services of a lawyer to set up a revocable trust for the benefit of the decedent's son, where the decedent became incapacitated before executing deeds to transfer his assets to the trust, where the lawyer consulted with the decedent's son and wife and petitioned to have the son appointed guardian so that he could execute the deeds, where the lawyer did not disclose that, if the son did not sign the deed, he would inherit by intestate succession but that, if he executed the deeds, his stepmother would gain control and could divest him of the assets, and where the stepmother did just that after the decedent succumbed, the trial court erred in granting summary judgment to attorneys hired to pursue a legal malpractice claim against the lawyer and in holding that no valid claim existed because the son lacked privity of contract with his father's lawyer. Summary judgment was improper because the evidence revealed conflicting accounts of the son's contractual relationship with the lawyer and gave rise to the implication that the lawyer had a duty to advise the son of his inheritance rights and the possibility that his stepmother could cut him out of the trust. Howard v. Adams, 2009 Ark. App. 621, 332 S.W.3d 24 (2009).

16-22-311. Reports of visits with incarcerated indigent clients.

    1. An attorney at law representing an indigent client who is incarcerated in any county jail, city jail, juvenile detention facility, or other facility operated by the Division of Youth Services in the State of Arkansas shall make a report of personal visits with the client.
    2. The report shall be on a sign-in document to be provided by the correctional facility or criminal detention facility in which the client is incarcerated.
    3. The sign-in document shall be designed in order to allow the attorney to record:
      1. The date of the visit;
      2. The time the attorney is signing in for the visit;
      3. The name of the inmate visited; and
      4. The time the attorney is signing out after the visit.
    1. Each county jail, city jail, juvenile detention facility, or other detention facility operated by the division shall furnish a sign-in document for attorneys required to make a report under this section.
    2. The facilities shall maintain the reports for a period of one (1) year following the release, discharge, or transfer of an inmate represented by an attorney who is required to make a report under this section.

History. Acts 2005, No. 1279, § 1.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

Subchapter 4 — Suspension and Disbarment

Publisher's Notes. Some provisions of this subchapter may be superseded by the Arkansas Rules of Court Regulating Professional Conduct of Attorneys at Law.

Cross References. Regulating professional conduct of attorneys, Ark. Const. Amend. 28.

Research References

ALR.

Solicitation of business by or for attorney. 5 A.L.R.4th 866.

Disciplinary action against attorney for misconduct related to performance of official duties. 10 A.L.R.4th 605.

Conduct in connection with malpractice claim as meriting disciplinary action. 14 A.L.R.4th 209.

Attorney's delay in handling decedent's estate as ground for disciplinary action. 21 A.L.R.4th 75.

Disciplinary action against attorney based on communications to judge respecting merits of cause. 22 A.L.R.4th 917.

Communication with party represented by counsel. 26 A.L.R.4th 102.

Election campaign activities as ground for disciplining attorney. 26 A.L.R.4th 170.

Mental or emotional disturbance as defense to or mitigation of charges in attorney disciplinary action. 26 A.L.R.4th 995.

Assumed or trade name: use as ground for disciplinary action. 26 A.L.R.4th 1083.

Privilege against self-incrimination in disbarment or other disciplinary proceedings. 30 A.L.R.4th 243.

Advertising as ground for disciplinary action against attorney. 30 A.L.R.4th 742.

Failure to co-operate with or obey disciplinary authorities as ground for disciplining attorney. 37 A.L.R.4th 646.

Bar admission or reinstatement of attorney as affected by alcoholism or alcohol abuse. 39 A.L.R.4th 567.

Initiating, or threatening to initiate, criminal prosecution as ground for disciplining counsel. 42 A.L.R.4th 1000.

Sexual misconduct as ground for disciplining attorney. 43 A.L.R.4th 1062.

Propriety of Website Attorney Advertisements, 26 A.L.R.7th Art. 2 (2018).

Am. Jur. 7 Am. Jur. 2d, Attys, § 25 et seq.

Ark. L. Rev.

Discipline of Attorneys for Nonprofessional Misconduct, 5 Ark. L. Rev. 411.

Legal Malpractice, 27 Ark. L. Rev. 452.

Brill, The Arkansas Supreme Court Committee on Professional Conduct 1969-1979: A Call for Reform, 33 Ark. L. Rev. 571.

C.J.S. 7 C.J.S., Atty & C., § 59 et seq.

16-22-401. Grounds for removal or suspension.

Any attorney who is guilty of any felony or infamous crime, of improperly retaining his client's money, of any malpractice, deceit, or misdemeanor in his professional capacity, is an habitual drunkard, or is guilty of any ungentlemanly conduct in the practice of his profession may be removed or suspended from practice, upon charges exhibited against him, and proceedings thereon had as provided in this subchapter.

History. Rev. Stat., ch. 15, § 12; C. & M. Dig., § 610; Pope's Dig., § 650; A.S.A. 1947, § 25-401.

Case Notes

Discretion of Court.

The trial court may remove or suspend an attorney, and its discretion in so doing will not be reversed unless abused. Maloney v. State ex. rel. Prosecuting Att'y, 182 Ark. 510, 32 S.W.2d 423 (1930). See McGehee v. State, 182 Ark. 603, 32 S.W.2d 308 (1930).

Due Process.

The circuit court has the inherent power to disbar an attorney who makes a personal attack upon the judge for his action as such; but the attorney is entitled to notice and an opportunity to be heard in defense, the usual practice being to make charges in writing against the attorney and issue a rule upon him to show cause why he should not be disbarred. Beene v. State, 22 Ark. 149 (1860).

Sufficiency of Evidence.

Where an attorney sold bonds of his clients, for theft of which they were at the time being prosecuted, the action of the court in suspending the attorney from practice for one year instead of disbarring him was not an abuse of discretion in view of his previous good conduct and professed intention to apply the proceeds on the judgment against his client. State ex rel. Greene County Bar Ass'n v. Huddleston, 173 Ark. 686, 293 S.W. 353 (1927).

Evidence that attorney concealed receipt of checks payable to clients in settlement of their claims, that he indorsed and deposited the drafts without clients' authorization and that he drew on the account for payment of personal expenses, was sufficient to support a disbarment order. Weems v. Supreme Court Comm. on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975).

16-22-402. Venue.

The charges shall be exhibited in the county in which the offense has been committed, or in which the accused may reside.

History. Rev. Stat., ch. 15, § 13; C. & M. Dig., § 611; Pope's Dig., § 651; A.S.A. 1947, § 25-402.

16-22-403. Time for hearing.

The court in which the charges may be exhibited shall fix a time for the hearing of the charges, allowing a reasonable time to notify the accused.

History. Rev. Stat., ch. 15, § 14; C. & M. Dig., § 612; Pope's Dig., § 652; A.S.A. 1947, § 25-403.

16-22-404. Service of citation.

  1. The clerk of the court in which the charges may be exhibited shall issue a citation, notifying the accused to appear at the time and place fixed for the hearing and answer the charges exhibited against him. A copy of the charges shall be attached to the citation.
    1. The citation may be served in any county in this state.
    2. The citation shall be served in the same manner as a summons in suits at law, and the service shall be at least ten (10) days before the return day thereof.

History. Rev. Stat., ch. 15, §§ 15, 16; C. & M. Dig., §§ 613, 614; Pope's Dig., §§ 653, 654; A.S.A. 1947, §§ 25-404, 25-405.

16-22-405. Failure to appear — Compelling appearance.

If the accused fails to appear according to the command of the citation, his appearance may be compelled by attachment, or the court may proceed ex parte.

History. Rev. Stat., ch. 15, § 17; C. & M. Dig., § 615; Pope's Dig., § 655; A.S.A. 1947, § 25-406.

16-22-406. Other charges — Suspension only.

Upon charges other than a conviction for an indictable offense, the court shall have power only to suspend the accused from practice until the facts shall be ascertained in the manner prescribed in this subchapter.

History. Rev. Stat., ch. 15, § 19; C. & M. Dig., § 617; Pope's Dig., § 657; A.S.A. 1947, § 25-408.

16-22-407. Limitation of proceedings.

If the charges are for an indictable offense and no indictment is found or, if found, is not prosecuted to trial within six (6) months, the suspension shall be discontinued unless the delay is produced by the absence or the procurement of the accused, in which case the suspension may continue until the final decision.

History. Rev. Stat., ch. 15, § 20; C. & M. Dig., § 618; Pope's Dig., § 658; A.S.A. 1947, § 25-409.

16-22-408. Record of conviction or acquittal of offense as evidence.

The record of conviction or acquittal of any indictable offense shall in all cases be conclusive evidence of the facts, and the court shall proceed thereon accordingly.

History. Rev. Stat., ch. 15, § 21; C. & M. Dig., § 619; Pope's Dig., § 659; A.S.A. 1947, § 25-410.

16-22-409. Trial when offense not indictable.

When the matter charged is not indictable, the trial of the facts alleged shall be had in the court in which the charges are pending. The trial shall be by jury. If the accused fails to appear or, upon appearing, does not require a jury, the trial shall be by the court sitting without a jury.

History. Rev. Stat., ch. 15, § 22; C. & M. Dig., § 620; Pope's Dig., § 660; A.S.A. 1947, § 25-411.

Case Notes

Disciplinary Proceedings.

The Supreme Court Committee on Professional Conduct, after hearing charges of professional misconduct, may choose to proceed with disciplinary proceedings according to this section and § 16-22-410 or by the Rules Regulating Professional Conduct of Attorneys, and a formal statement of election is unnecessary. Weems v. Supreme Court Comm. on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975).

Trial Without Jury.

The accused is deprived of no right of which he can complain where the case is tried by the court, if the evidence is uncontroverted. Wernimont v. State, 101 Ark. 210, 142 S.W. 194 (1911).

16-22-410. Verification of charges.

All charges exhibited under this subchapter shall be verified by affidavit and shall be prosecuted by the prosecuting attorney, prosecuting in the district in which the charges are pending.

History. Rev. Stat., ch. 15, § 24; C. & M. Dig., § 622; Pope's Dig., § 662; A.S.A. 1947, § 25-413.

Case Notes

Disciplinary Proceedings.

The Supreme Court Committee on Professional Conduct, after hearing charges of professional misconduct, may choose to proceed with disciplinary proceedings according to this section and § 16-22-409 or by the Rules Regulating Professional Conduct of Attorneys, and a formal statement of election is unnecessary. Weems v. Supreme Court Comm. on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975).

16-22-411. Judgment.

  1. In all cases of conviction, the court shall pronounce judgment of removal or suspension, according to the facts found.
  2. Every judgment of removal or suspension made in pursuance of this subchapter shall operate, while it continues in force, as a removal or suspension from practice in all the courts of this state.

History. Rev. Stat., ch. 15, §§ 23, 26; C. & M. Dig., §§ 621, 624; Pope's Dig., §§ 661, 664; A.S.A. 1947, §§ 25-412, 25-415.

Case Notes

Discretion of Court.

This section vests the trial court with discretion either to remove or suspend, which discretion will not be disturbed on appeal save for abuse. State ex rel. Greene County Bar Ass'n v. Huddleston, 173 Ark. 686, 293 S.W. 353 (1927).

Sufficiency of Punishment.

On a charge of having secured a divorce on perjured testimony, temporary suspension from practice for one year was sufficient under the circumstances. McGehee v. State, 182 Ark. 603, 32 S.W.2d 308 (1930).

16-22-412. Conviction in another state — Effect.

  1. In all cases of conviction for felony or other infamous crime of any attorney at law in any other state or territory of the United States, such conviction, on the production of a copy of the record thereof, shall have the same effect as if such attorney had been convicted in this state.
  2. In all cases of conviction of any of the crimes specified in the preceding section, if the attorney shall have been licensed in this state, after such conviction, his license shall be revoked in the same manner as if the conviction had been had after the granting of such license.

History. Rev. Stat., ch. 15, §§ 27, 28; C. & M. Dig., §§ 625, 626; Pope's Dig., §§ 665, 666; A.S.A. 1947, §§ 25-416, 25-417.

16-22-413. Review by Supreme Court.

In all cases of a trial of charges, the accused may except to any decision of the court and may prosecute an appeal to the Supreme Court, or writ of error, in all respects as in actions at law.

History. Rev. Stat., ch. 15, § 25; C. & M. Dig., § 623; Pope's Dig., § 663; A.S.A. 1947, § 25-414.

Case Notes

Cited: Beene v. State, 22 Ark. 149 (1860).

Subchapter 5 — Unauthorized Practice of Law

16-22-501. Prohibited activities.

  1. A person commits an offense if, with intent to obtain a direct economic benefit for himself or herself, the person:
    1. Contracts with any person to represent that person with regard to personal causes of action for property damages or personal injury;
    2. Advises any person as to the person's rights and the advisability of making claims for personal injuries or property damages;
    3. Advises any person as to whether or not to accept an offered sum of money in settlement of claims for personal injuries or property damages;
    4. Enters into any contract with another person to represent that person in personal injury or property damage matters on a contingent fee basis with an attempted assignment of a portion of the person's cause of action;
    5. Enters into any contract, except a contract of insurance, with a third person which purports to grant the exclusive right to select and retain legal counsel to represent the individual in any legal proceeding; or
    6. Contacts any person by telephone or in person for the purpose of soliciting business which is legal in nature, as set forth above.
  2. This section does not apply to a person currently licensed to practice law in this state, another state, or a foreign country and in good standing with the State Bar of Arkansas and the state bar or licensing authority of any and all other states and foreign countries where licensed.
  3. Except as provided by subsection (d) of this section, an offense under subsection (a) of this section is a Class A misdemeanor.
  4. An offense under subsection (a) of this section is a Class D felony if it is shown on the trial of the offense that the defendant has previously been convicted under subsection (a) of this section.
  5. This section shall not apply to a person who is licensed as an adjuster or employed as an adjuster by an insurer as authorized by § 23-64-101.

History. Acts 1997, No. 1301, § 1.

Publisher's Notes. For the rules of Procedure established by the Supreme Court Committee on the Unauthorized Practice of Law, see the Rules Volume.

Cross References. Regulating the practice of law, Ark. Const. Amend. 28.

Research References

ALR.

Unauthorized practice of law — Real estate closings. 119 A.L.R.5th 191.

Matters Constituting Unauthorized Practice of Law in Bankruptcy Proceedings. 32 A.L.R.6th 531.

Ark. L. Rev.

Bobbi J. Boyd, Do It in the Sunshine: A Comparative Analysis of Rulemaking Procedures and Transparency Practices of Lawyer-Licensing Entities, 70 Ark. L. Rev. 609 (2017).

Case Notes

Disciplinary Proceedings.

Where an attorney, after his license was temporarily suspended due to his felony conviction for DWI, held himself out as a landlord's attorney, advised the landlord's tenant that the tenant had to vacate leased premises, and represented the landlord at a city council meeting concerning a condemnation matter, the attorney was disbarred pursuant to Ark. Sup. Ct. Prof. Conduct P. § 13(D) because the special judge did not clearly err in concluding (1) that the DWI conviction constituted a serious crime under Ark. Sup. Ct. Prof. Conduct P. § 2(J); (2) that the attorney violated Ark. R. Prof. Conduct 8.4(b); and (3) that the attorney's DWI conviction and unauthorized practice of law in violation of § 16-22-501(a)(2) constituted serious misconduct under Ark. Sup. Ct. Prof. Conduct P. § 17(B). Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007).

Chapter 23 Law Libraries

Effective Dates. Acts 1971, No. 284, § 8: Mar. 15, 1971. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that a number of counties of this State are in need of legal educational materials and that such materials are immediately necessary for the continued improvement and development of legal education and the administration of justice. Therefore, it is declared, for these reasons, that an emergency exists, and this Act being essential 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 1975, No. 589, § 5: Mar. 27, 1975. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that at least one and possibly other county law libraries of this State are currently in need of additional financing to support the purchase of legal educational materials and that without the clear cut application of Act 284 of 1971 to apply to bond forfeitures in criminal cases, such libraries may well cease to exist causing a loss to the counties involved to the extent of books already purchased and depriving the public of a substantial investment which has heretofore been made. 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. 89, § 3: Jan. 31, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that in some counties of the State there are fewer than three practicing attorneys and in such counties it is technically impossible to establish a county law library board as contemplated in the current law since the current law provides for a board of not less than three nor more than five persons all of whom shall be practicing attorneys residing in the county; that this Act is designed to permit such counties to establish a county law library board by providing that when there are fewer than three practicing attorneys in a county, the three (3) to five (5) member county law library board shall be composed of the practicing attorneys residing in the county together with other legal residents and qualified electors of the county appointed by the county court; that this Act should be given effect immediately in order to enable those counties in which there are fewer than three practicing attorneys to provide for the establishment and maintenance of a law library and to establish a county law library board to administer the county law library, at the the earliest possible date. 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. 652, § 3: Mar. 22, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that in some counties of the state there are excess funds in the County Law Library Book Fund which under the present law cannot be used for any purposes other than the operation and maintenance of the law library, which excess funds could be used appropriately for improvement in the administration of justice in the county if this Act is amended, and this Act is necessary for improvement in the administration of justice in the several counties of the 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.”

16-23-101. Authorization.

  1. Any county of this state is authorized to own, operate, and maintain a county law library and, in connection therewith, to own, buy, sell, lend, borrow, receive bequests and donations of, and otherwise deal in and contract concerning books, volumes, treatises, pamphlets, and other educational materials useful for the purpose of legal education and to use therefor any available funds, including proceeds of the court costs levied and collected pursuant to the provisions of this chapter.
  2. The funds derived from the levy of costs in criminal and civil cases as provided by this chapter may be used for any purpose relating to the establishment, maintenance, and operation of a county law library, including, but not limited to:
    1. Construction, renovation, and maintenance of facilities to house such libraries;
    2. The purchase of books, supplies, furnishings, and appointments;
    3. The payment of salaries and expenses of librarians and assistants; and
    4. Such other expenditures necessary to carry out the purpose and intent of this chapter.
    1. Each county which has two (2) judicial districts, an organized bar association organized in each district prior to March 1, 1991, and a county law library established prior to March 1, 1991, shall create a county law library to be located within each judicial district.
    2. The court costs levied under this chapter and collected by the courts within the judicial districts shall be used only for the county law library located within that judicial district.

History. Acts 1971, No. 284, § 1; 1985, No. 915, § 1; A.S.A. 1947, § 25-504; Acts 1991, No. 1241, § 1.

16-23-102. County law library boards.

    1. A county law library established pursuant to this chapter shall be under the control of a county law library board of not less than three (3) nor more than five (5) persons, who shall be practicing attorneys residing in the county and who shall be appointed by the county court from attorneys nominated by the county bar association or, in counties where there is no county bar association, by a regional bar association which includes that county.
    2. In any county in which there are fewer than three (3) practicing attorneys, the board shall be composed of not less than three (3) nor more than five (5) persons, including the practicing attorney or attorneys in the county together with one (1) or more additional persons who are legal residents and qualified electors of the county, appointed by the county court.
  1. Members of the board shall be appointed for a term of five (5) years, but the initial appointments shall be so arranged that the terms of each member initially appointed expire in succeeding years.
    1. The board shall have charge of the operation and maintenance of the county law library and the custody and care of the county law library's property. The board shall direct the expenditure of funds derived for county law library purposes under this chapter, and any other funds received by the county, or the board, for the use of the county law library.
    2. Any excess funds in the county law library book fund not needed for the operation and maintenance of the county law library may be expended by the board for any other purpose necessary for improvement in the administration of justice in the county.
      1. The board may dispose of any personal property of the county law library it determines is junk, scrap, discarded, or otherwise of no value to the county law library.
      2. The board may dispose of the personal property under subdivision (c)(3)(A) of this section by methods that include without limitation private sale, public sale, gift, or destruction.
    1. The board, subject to approval of the county court, is authorized, in implementation of the purposes of this chapter, to enter into agreements with any person, including other public bodies, in this state pertaining to the operation and maintenance of a county law library.
    2. Without limiting the generality of the foregoing, agreements entered into pursuant to the provisions hereof may contain provisions:
      1. Making available to any institution of higher learning the county law library, and related facilities, and the books, volumes, treatises, pamphlets, and other educational materials located therein;
      2. Authorizing the institution to maintain, locate, and relocate in the county law library, select, replace, supervise the use of, buy, sell, lend, borrow, receive bequests and donations of, and otherwise deal in and contract concerning, such books, volumes, treatises, pamphlets, and other educational materials; and
      3. Providing for the operation, maintenance, and supervision of the county law library and related facilities for the benefit of the institution, the county, judges and attorneys, and the public.
    3. The agreements may make available to the institution all or a portion of the collections of the costs levied pursuant to the provisions of this chapter, for the purpose of performing the obligations of the institution thereunder.

History. Acts 1971, No. 284, §§ 4, 5; 1977, No. 89, § 1; 1983, No. 652, § 1; A.S.A. 1947, §§ 25-507, 25-508; Acts 2013, No. 43, § 1; 2015, No. 1152, § 5.

Amendments. The 2013 amendment, in (c)(1), substituted “the county law library's” for “its” in the first sentence, and “The board” for “It” and “county law” for “law” in the second sentence; and added (c)(3).

The 2015 amendment inserted “county law” twice in (c)(3)(A).

Case Notes

Constitutionality.

This section is not a “special act” within the meaning of the 14th Amendment to the Arkansas Constitution. Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 (1974).

16-23-103. [Repealed.]

Publisher's Notes. This section, concerning levy of costs, 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 1971, No. 284, § 2; 1975, No. 589, § 1; 1985, No. 915, § 2; A.S.A. 1947, § 25-505; Acts 1987, No. 773, § 1.

16-23-104. Conditions precedent to levy and collection.

  1. The costs levied pursuant to the provisions of this chapter shall not be levied and collected unless there has been filed with the county court of a county a resolution of the county bar association or, in counties where there is no county bar association, a resolution of the regional bar association which includes that county, signed by the president and attested to by the secretary of such bar association, requesting the levying and collecting of the costs levied pursuant to the provisions of this chapter.
  2. After receipt of the resolution, the county court may enter an order levying the costs levied pursuant to the provisions of this chapter and directing their collection.

History. Acts 1971, No. 284, § 3; A.S.A. 1947, § 25-506.

16-23-105. County law library book fund.

All collections from costs levied pursuant to the provisions of this chapter shall forthwith be paid over by the collecting officer to the county treasurer and by him credited on his records to a fund to be designated and known as the county law library book fund. The book fund shall be used for no other purposes than those provided in this chapter, and expenditures therefrom shall not require appropriation by the quorum court.

History. Acts 1971, No. 284, § 2; 1985, No. 915, § 2; A.S.A. 1947, § 25-505.

Chapter 24 Court Bailiffs

Subchapter 1 — General Provisions

16-24-101. Oaths for court bailiffs.

  1. The following oath, in substance, shall be administered to a court bailiff at the start of a jury trial:
  2. The following oath, in substance, shall be administered to a court bailiff prior to the deliberation of a jury:

“I do solemnly swear (or affirm) that I will faithfully, impartially, and to the best of my ability, discharge the duties of bailiff of this court, to which office I have been appointed, and strictly obey all orders of the court, as bailiff during the present session now being held.”

“I do solemnly swear (or affirm) that I will keep this jury together, not allowing any person to speak to them or overhear their deliberations, nor to speak to them myself, unless it is in the performance of my official duties as bailiff to this court.”

History. Acts 2007, No. 227, § 1.

Chapters 25-29 [Reserved.]

[Reserved]

Subtitle 3. Juries And Jurors

Chapter 30 General Provisions

Cross References. Right to trial by jury, Ark. Const., Art. 2, § 7; Ark. Const. Amend. 16.

Preambles. Acts 1963, No. 490 contained a preamble which read:

“Whereas, in many lengthy civil and criminal trials in circuit courts of this State it sometimes occurs that a juror may become ill, pass on or otherwise become incapacitated; and

“Whereas, the General Assembly of the State of Arkansas thinks it necessary in the interest of justice that alternate jurors be provided for, to be selected only within the sound discretion of the court; and

“Whereas, the utilization of alternate jurors may in many instances prevent mistrials and nonsuits, thus averting expensive retrials;

“Now, therefore….”

Effective Dates. Acts 1969, No. 568, § 29 provided: “This Act shall be effective on and after January 1, 1970, except that the procedures outlined in this Act to be carried out prior to the empaneling of a jury shall be effective on and after July 1, 1969, so that jurors empaneled at terms of any circuit court beginning after January 1, 1970, shall be selected as provided herein.”

Acts 2018 (2nd Ex. Sess.), No. 13, § 3: Mar. 19, 2018. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that decisions of the Arkansas Supreme Court regarding contractual jury waiver provisions leave parties in doubt about the applicability of their contracts; that this uncertainty must be resolved immediately; and that this uncertainty may only be resolved through the immediate effectiveness of this act. 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.”

Case Notes

In General.

In this state, jurors are presumed to be unbiased. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

Construction.

Acts 1969, No. 568 must be construed as mandatory and not as directory only. Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973).

Cited: Cantrell v. State, 265 Ark. 263, 577 S.W.2d 605, 1979 Ark. LEXIS 1336 (1979).

16-30-101. Multijudge and divided circuits.

  1. In multijudge circuits, the circuit judges may select one (1) of their number to perform any of the duties imposed upon a judge by this act.
  2. Divisions of any circuit court may either have separate jurors, or the circuit judges by concurrence may share a single jury wheel or box or a single list of jurors.

History. Acts 1969, No. 568, § 28; A.S.A. 1947, § 39-220; Acts 2017, No. 600, § 4.

Amendments. The 2017 amendment, in (b), deleted “jury commissioners and” following “separate”, inserted “circuit” preceding “judges”, and deleted “single set of commissioners, a” following “share a”.

Meaning of “this act”. Acts 1969, No. 568, codified as §§ 16-30-101, 16-30-103, 16-31-10116-31-104, 16-31-106, 16-31-107, 16-32-10116-32-104, 16-32-106, 16-32-107, 16-32-109.

16-30-102. Alternate jurors.

  1. When in the discretion of the court it shall be deemed advisable in the interests of the furtherance of justice, the court may direct that not more than three (3) jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.
  2. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examinations and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.
  3. Each opposing side shall be entitled to one (1) peremptory challenge in addition to those otherwise allowed by law. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules by this section may not be used against an alternate juror.

History. Acts 1963, No. 490, §§ 1-3; A.S.A. 1947, §§ 39-232 — 39-234.

Publisher's Notes. Committee comments to Rule 47 of the Arkansas Rules of Civil Procedure indicate that this section is superseded by Rule 47 with respect to civil proceedings but is probably not superseded with respect to criminal proceedings.

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that subsections (a) and (c) of this section were deemed superseded by the Arkansas Rules of Civil Procedure.

Research References

U. Ark. Little Rock L.J.

Note, Peremptory Challenges After Purkett v. Elam, 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.

Case Notes

Peremptory Challenges.

Both in this case and in Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), the prosecutor consistently and systematically excluded African-Americans from participating as jurors through the use of peremptory challenges. Ford v. Lockhart, 861 F. Supp. 1447 (E.D. Ark. 1994), aff'd, Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Defendant's change-of-venue motion alleging adverse pretrial publicity was properly denied in light of the testimony introduced at the hearing which showed less-than-pervasive publicity, the failure of defendant to demonstrate during voir dire that there were publicity-affected jurors, and the fact that he did not use all his peremptory challenges. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

Presence in Jury Room.

Where the trial court found that no extraneous prejudicial information was improperly brought to the jury's attention, nor was any outside influence brought to bear upon any juror as a result of an alternate juror's presence in the jury room for a short time, defendant did not show he suffered any prejudice. McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992).

Standard of Review.

—Racial Discrimination.

A constitutional violation involving the selection of jurors in a racially discriminatory manner is a “structural defect” in the trial mechanism which cannot be subjected to a harmless error analysis. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Cited: Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000).

16-30-103. Oaths.

  1. The following oath, in substance, shall be administered to the grand jurors:
  2. Petit jurors upon being impaneled pursuant to this act shall take the following oath:

“Saving yourselves and fellow jurors, you do swear that you will diligently inquire of, and present all treasons, felonies, misdemeanors, and breaches of the penal laws over which you have jurisdiction, of which you have knowledge or may receive information.”

“I do solemnly swear (or affirm) that I will well and truly try each and all of the issues submitted to me as a juror and a true verdict render according to the law and the evidence.”

History. Crim. Code, § 406; Acts 1871, No. 49, § 1 [406], p. 255; C. & M. Dig., § 2979; Pope's Dig., § 3801; Acts 1969, No. 568, § 24; A.S.A. 1947, §§ 39-216, 43-904.

Meaning of “this act”. See note to § 16-30-101.

Case Notes

Criminal Cases.

The oath of jurors required in criminal cases is that prescribed by § 16-89-109. Chiles v. State, 45 Ark. 143 (1885); Mabry v. State, 50 Ark. 492, 8 S.W. 823 (1888) (decisions under prior law).

Grand Jurors.

The record entry of the swearing of the grand jury must show that all of them were sworn; otherwise, the judgment of conviction will be reversed and, upon return of the case, unless a nunc pro tunc order that all were sworn can be truthfully made, the prisoner may be held to answer a new indictment. Baker v. State, 39 Ark. 180 (1882), overruled, Hobbs v. State, 86 Ark. 360, 111 S.W. 264 (1908).

16-30-104. Contractual waiver of jury trial.

A written provision in a contract to borrow money or to lend money in which the parties agree to waive their respective rights to a trial by jury under Arkansas Constitution, Article 2, § 7, is valid and enforceable except upon those grounds that exist at law or in equity for the revocation of any contract.

History. Acts 2018 (2nd Ex. Sess.), No. 13, § 1.

A.C.R.C. Notes. Acts 2018 (2nd Ex. Sess.), No. 13, § 2, provided: “Retroactivity.

“(a) This act applies retroactively to a contract to waive a jury trial entered into before the effective date of this act.

“(b) This act applies retroactively to all judicial proceedings in which a contract to waive a jury trial is at issue if the judicial proceeding is still pending on the effective date of the act.” This act was effective March 19, 2018.

Chapter 31 Juror Qualifications and Exemptions

Effective Dates. Acts 1971, No. 364, § 3: Mar. 23, 1971. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that the present law is uncertain as to whether a petit juror is required to continue to report for his period of permitted service when the calendar year for which he is selected has ended and that this Act is needed in order to avoid confusion and provide for the proper 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 take effect and be in force from the date of its approval.”

Acts 1975, No. 650, § 19: Mar. 28, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is a shortage of practitioners of veterinary medicine in the State of Arkansas and that the revision of the laws governing the practice of veterinary medicine including but not limited to the certification of animal technicians will help alleviate such shortage and that the immediate passage of this Act is necessary to provide a safeguard for the people of the State of Arkansas against dishonest, incompetent and unprincipled practitioners of veterinary medicine. 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 1994 (1st Ex. Sess.), No. 4, § 6: Mar. 4, 1994. Emergency clause provided: “It is hereby found and determined by the General Assembly that Arkansas Code 16-31-102 disqualifies from acting as a juror any person who is mentally retarded or insane, and any person whose sense of hearing or seeing is substantially impaired; this act eliminates those disqualifications and in their place disqualifies from jury service persons who by reason of a physical or mental disability are unable to render jury services, with the exception that no person may be disqualified solely on the basis of loss of hearing or sight; this modification to Arkansas Code 16-31-102 will bring Arkansas law into compliance with federal law; and this act should go into effect immediately in order to allow those persons to begin serving as grand or petit jurors 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. 897, § 5: Apr. 4, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that this act authorizes necessary additional auxiliary aids for persons with hearing impairments who are called for jury duty; this modification to Arkansas Code 16-31-108 is necessary to enable persons with hearing impairments to serve on Arkansas juries; and this act should go into effect immediately in order to allow for those accommodations 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 2005, No. 87, § 12: Feb. 8, 2005. Emergency Clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the present method of selecting grand jurors and petit jurors is inadequate to permit computerized random selection; that this act will provide for the computerized random selection of jurors; and that until this act becomes effective, the validity of findings and judgments issued by juries selected randomly by computer is subject to question. 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.”

Research References

Am. Jur. 47 Am. Jur. 2d, Jury, § 96 et seq.

Ark. L. Rev.

Arkansas Civil Juries, 21 Ark. L. Rev. 527.

The Arkansas Jury Wheel Act of 1969, 24 Ark. L. Rev. 43.

Criminal Procedure: A Survey of Arkansas Law and the American Bar Association's Standards, 26 Ark. L. Rev. 169.

Gingerich, The Arkansas Grand Jury, Etc., 40 Ark. L. Rev. 55.

C.J.S. 50 C.J.S., Juries, § 134 et seq.

U. Ark. Little Rock L.J.

Sullivan, An Overview of the Law of Jury Selection for Arkansas Criminal Trial Lawyers, 15 U. Ark. Little Rock L.J. 37.

Case Notes

Construction.

Acts 1969, No. 568, must be construed as mandatory and not as directory only. Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973).

Cited: Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

16-31-101. Qualifications.

Every registered voter or, in counties where an enhanced prospective jury list is utilized, every registered voter, licensed driver, or person issued an identification card under § 27-16-805 who is a citizen of the United States and a resident of the State of Arkansas and of the county in which he or she may be summoned for jury service is legally qualified to act as a grand or petit juror if not otherwise disqualified under the express provisions of this act.

History. Acts 1969, No. 568, § 1; A.S.A. 1947, § 39-101; Acts 2003, No. 1404, § 6[5].

A.C.R.C. Notes. Acts 2003, No. 1404, did not contain a Section 4.

Amendments. The 2003 amendment inserted “or, in counties where … under § 27-16-805.”

Meaning of “this act”. Acts 1969, No. 568, codified as §§ 16-30-101, 16-30-103, 16-31-10116-31-104, 16-31-106, 16-31-107, 16-32-10116-32-104, 16-32-106, 16-32-107, 16-32-109.

Research References

ALR.

Prejudical effect of juror's inability to comprehend English. 117 A.L.R.5th 1.

Case Notes

Residency.

Where juror did not meet qualifications because she was not a resident of the county where the case was tried, but she did not knowingly answer falsely any question on voir dire relating to her qualifications, the verdict was not voidable. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

Although defendant's jury included a woman who was a registered voter in the county where the trial was held but was not a resident of that county, defendant was not prejudiced or denied an impartial jury. Bennett v. Lockhart, 39 F.3d 848 (8th Cir. 1994), cert. denied, Bennett v. Arkansas, 514 U.S. 1018, 115 S. Ct. 1363 (1995).

Cited: Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970); Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981); Brown v. Lockhart, 781 F.2d 654 (8th Cir. 1986); Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990).

16-31-102. Disqualifications.

  1. The following persons are disqualified to act as grand or petit jurors:
    1. Persons who do not meet the qualifications of § 16-31-101;
    2. Persons who are unable to speak or understand the English language;
    3. Persons who are unable to read or write the English language, except that the circuit judge, in the exercise of his discretion, may waive these requirements when the persons are otherwise found to be capable of performing the duties of jurors;
    4. Persons who have been convicted of a felony and have not been pardoned;
    5. Persons who are:
      1. Not of good character or approved integrity;
      2. Lacking in sound judgment or reasonable information;
      3. Intemperate; or
      4. Not of good behavior;
    6. Persons who, by reason of a physical or mental disability, are unable to render satisfactory jury service, except that no person shall be disqualified solely on the basis of loss of hearing or sight in any degree; and
    7. Persons who are less than eighteen (18) years of age at the time they are required to appear.
  2. Except by the consent of all the parties, no person shall serve as a petit juror in any case who:
    1. Is related to any party or attorney in the cause within the fourth degree of consanguinity or affinity;
    2. Is expected to appear as a witness or has been summoned to appear as a witness in the cause;
    3. Has formed or expressed an opinion concerning the matter in controversy which may influence his judgment;
    4. May have a material interest in the outcome of the case;
    5. Is biased or prejudiced for or against any party to the cause or is prevented by any relationship or circumstance from acting impartially; or
    6. Was a petit juror in a former trial of the cause or of another case involving any of the same questions of fact.
  3. Nothing in this section shall limit a court's discretion and obligation to strike jurors for cause for any reason other than solely because of sight or hearing impairment.

History. Acts 1969, No. 568, §§ 2, 5; A.S.A. 1947, §§ 39-102, 39-105; Acts 1994 (1st Ex. Sess.), No. 4, § 1; 2005, No. 87, § 1.

Amendments. The 1994 (1st Ex. Sess.) amendment inserted “persons” in the introductory language of (a); deleted former (a)(2) and (a)(6), redesignating the remaining subdivisions accordingly; added present (a)(6); and added (c).

Research References

ALR.

Prejudical effect of juror's inability to comprehend English. 117 A.L.R.5th 1.

Ark. L. Rev.

Witnesses, 27 Ark. L. Rev. 229.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

Case Notes

Constitutionality.

The state has a legitimate interest in providing physically competent jurors for trials in criminal cases, and the disqualification from jury service of persons with substantial hearing impairments rationally relates to and furthers that interest and does not violate the Fourteenth Amendment to the United States Constitution. Moreover, the Sixth Amendment to the United States Constitution requires that prospective jurors possess the physical and mental attributes necessary to adequately receive and evaluate the evidence presented. Eckstein v. Kirby, 452 F. Supp. 1235 (E.D. Ark. 1978).

This section is not unconstitutional on its face because it can be put into effect without any racial discrimination whatever. Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981).

Ability to Hear.

Whether a person is legitimately disqualified from jury service on account of a substantial hearing impairment is a question of law committed to the sound discretion of the trial court. Eckstein v. Kirby, 452 F. Supp. 1235 (E.D. Ark. 1978).

The presence of a thirteenth person serving as an interpreter for a deaf juror during jury deliberations would violate the secrecy of the jury room and thereby deprive an accused person of his right to trial by jury. Eckstein v. Kirby, 452 F. Supp. 1235 (E.D. Ark. 1978).

Ability to Read or Write.

A trial court is not required to disclose to counsel a juror's inability to read or write. Illiteracy, as a disqualification for jury service, would be excepted in the discretion of the judge rather than of counsel. Arkansas La. Gas Co. v. Morgan, 256 Ark. 250, 506 S.W.2d 560 (1974).

Ability to Understand English.

Circuit court was within its discretion to excuse a juror because, during voir dire, the juror approached the bench and expressed to the judge that he did not know how to write English and could speak and read English “just a little bit”; when asked if he spoke some English but did not understand all the words, the juror replied that was correct; and, in response to questions by the court, the juror explained that his limited knowledge of English would impact his ability to understand the evidence in the case. Doll v. State, 2020 Ark. App. 153, 598 S.W.3d 47 (2020).

Affinity.

“Affinity” is the tie which arises from marriage between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband; there is no affinity between the blood relations of the husband and the blood relations of the wife. Mitchell v. Goodall, 297 Ark. 332, 761 S.W.2d 919 (1988).

There can be no affinity between the blood relations of the husband and the blood relations of the wife, and juror would not be disqualified to serve on the jury under § 16-31-107 because her in-laws were related to plaintiffs by marriage. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990).

Bias.

Where a juror acknowledged during voir dire that his nephew was a drug undercover agent and that he had talked with the nephew about his experiences, the juror's presumptive bias, even after court interrogation, was sufficient to require his exclusion from the trial of defendant for sale and delivery of a controlled substance. Pickens v. State, 260 Ark. 633, 542 S.W.2d 764 (1976).

Jurors are assumed to be unbiased; the burden of demonstrating actual bias on the part of any member of the panel is on the petitioner. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982).

Denial of a motion for a new trial filed by injured parties and estate administrators (appellants) in their action against a motor company after a van rolled over and killed and injured 11 persons was appropriate because appellants failed to demonstrate that four jurors should have been stricken for cause given the questions as to whether appellants had challenged the jurors for cause; the jurors' indication that they would not impose a greater burden of proof on appellants, under subsection (b) of this section; and the fact that any potential bias was cured by the circuit court's inquiries and instructions. Herrington v. Ford Motor Co., 2010 Ark. App. 407, 376 S.W.3d 476 (2010).

Discretion of Court.

The question of a juror's qualification lies within the sound judicial discretion of the trial judge and defendant has the burden of showing the prospective juror's disqualification. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

This section essentially codifies the existing case law and does not change the fact that the seating of a juror is a matter to be determined at the discretion of the trial judge. Irons v. State, 272 Ark. 493, 615 S.W.2d 374 (1981).

The impartiality of a prospective juror is a question of fact for the trial court to determine in its sound discretion. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982).

Felon.

A juror who, at the age of twelve or thirteen, was found guilty of burglary and sentenced to the Arkansas Boys' Industrial School, which sentence was suspended, was not a convicted felon within the meaning of this section and was not thereby disqualified to act as a juror. Tucker v. State, 248 Ark. 979, 455 S.W.2d 888 (1970).

Although subdivision (a)(5) of this section disqualifies convicted felons from serving on a jury, where no juror was asked during voir dire whether he or she had been convicted of a felony, the trial court did not abuse his discretion in finding the juror, who had been convicted of a felony, did not knowingly answer falsely to any question on voir dire, and thus, the jury's verdict was not void or voidable under § 16-31-107. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993).

Law Enforcement Officer.

The fact that a venireman held a card showing him to be an honorary deputy sheriff was not sufficient reason to excuse him for cause. Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974).

Opinion.

Where juror, when examined by the court, showed clearly that he had not formed or expressed an opinion, this section had no application even though juror was employed by investment company in which witness for party was principal stockholder. Arkansas State Hwy. Comm'n v. Kennedy, 233 Ark. 844, 349 S.W.2d 132 (1961) (decision under prior law).

This section does not make any substantial change in the law and whether venireman's opinion may influence his judgment is a matter to be determined by the trial judge. Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972).

In a rape prosecution where the victim was a police officer, the fact that the prosecutor asked the jurors during voir dire to agree that a combat trained person could be raped with minimal force did not violate subdivision (b)(3) of this section, as the jurors were not asked to agree that rape could occur without force, but the questions were directed to the amount of force necessary. McElroy v. State, 2011 Ark. App. 533, 385 S.W.3d 406 (2011).

Relationship.

If the challenging party fails to make out a prima facie case of the juror's relationship within the prohibited degree by questions asked of the juror or by offer of other proof, there will be no error on the part of the court in pronouncing the juror competent. Shaffstall v. Downey, 87 Ark. 5, 112 S.W. 176 (1908) (decision under prior law).

That two of the jurors of the panel from which a drawn jury was to be selected were related to a person who was killed in the same automobile collision in which the plaintiff's intestate was killed did not render them disqualified. Roark Transp., Inc. v. West, 188 Ark. 941, 68 S.W.2d 1000 (1934) (decision under prior law).

The trial court did not commit reversible error in discharging a juror related to defendant within the prohibited degree. McDaniel v. State, 228 Ark. 1122, 313 S.W.2d 77 (1958) (decision under prior law).

The relationship of a juror to a witness did not per se disqualify the juror. Arkansas State Hwy. Comm'n v. Bryant, 233 Ark. 841, 349 S.W.2d 349 (1961) (decision under prior law).

Where a close relative of a juror was a witness to a controverted issue in the case and matter was brought to the attention of the trial court before the jury was sworn, it was an abuse of discretion for trial court to refuse to strike relative from the jury for cause. Arkansas State Hwy. Comm'n v. Young, 241 Ark. 765, 410 S.W.2d 120 (1967) (decision under prior law).

The trial court did not err in failing to excuse a juror who was the wife of an assistant police chief. Johnson v. State, 270 Ark. 871, 606 S.W.2d 381 (1980).

A juror was properly excused by the court after being accepted by both prosecution and defense when it was learned that he was a cousin to a secretary of the prosecuting attorney, since the judge has the discretion to excuse a juror even where the issue of bias may be more implied than actual and even though the situation does not clearly fall within this section or § 16-33-304, since it would be impossible for the statutes to cover every conceivable circumstance touching on a juror's possible bias. Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), cert. denied, Ruiz v. Arkansas, 454 U.S. 1093, 102 S. Ct. 659 (1981).

Juror, whose husband was a cousin of a paralegal working for one party's law firm, was not shown to be within the prohibited degree of relationship. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).

Same Questions of Fact.

Where a number of cases involving the same issue are pending against the same defendant, a juror who sat in one of them and rendered a verdict, or who was a plaintiff in another of those actions, is presumed to be under a disqualifying bias against the defendant and is incompetent to sit as a juror in another of those cases. Missouri Pac. Ry. v. Smith, 60 Ark. 221, 29 S.W. 752 (1895); Little Rock & Ft. S. Ry. v. Wells, 61 Ark. 353, 61 Ark. 354, 33 S.W. 208 (1895) (decisions under prior law).

The court did not abuse its discretion in not making the members of the regular panel available who had served on a connected case. Wells v. State, 247 Ark. 386, 446 S.W.2d 217 (1969) (decision under prior law).

The credibility of a government witness who had testified against different defendants in previous prosecutions for selling marijuana was not a “question of fact” within the meaning of subdivision (b)(6) of this section, and thus jurors who had served at the preceding trials were not disqualified from defendant's trial for sale of marijuana. Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976); Pickens v. State, 260 Ark. 633, 542 S.W.2d 764 (1976).

Witness.

Where juror had been summoned as a witness but did not testify and no objection was made to his serving as a juror before he was sworn in as a juryman, the trial court did not err in refusing to grant a new trial. Arkansas State Hwy. Comm'n v. Bryant, 233 Ark. 841, 349 S.W.2d 349 (1961) (decision under prior law).

Cited: Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983); Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985); Brown v. Lockhart, 781 F.2d 654 (8th Cir. 1986); Hulsey v. Sargent, 821 F.2d 469 (8th Cir. 1987); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992); Hughes v. State, 98 Ark. App. 375, 255 S.W.3d 891 (2007).

16-31-103. Exemptions from service.

Any person may be excused from serving as a grand or petit juror or a jury commissioner for such period as the court deems necessary or may have his service deferred to another specified term of court when the state of his health or that of his family reasonably requires his absence, or when, for any reason, his own interests or those of the public will, in the opinion of the court, be materially injured by his attendance.

History. Acts 1969, No. 568, §§ 7, 8; 1971, No. 374, § 1; 1975, No. 650, § 16; 1979, No. 612, § 1; 1981, No. 294, §§ 1, 2; 1985, No. 291, § 1; A.S.A. 1947, §§ 39-107, 39-108, 39-121, 39-122, 72-1147; Acts 1991, No. 379, § 1; 1993, No. 167, § 1.

Amendments. The 1993 amendment inserted “or may have his service deferred to another specified term of court.”

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 8 U. Ark. Little Rock L.J. 555.

Survey—Civil Procedure, 14 U. Ark. Little Rock L.J. 747.

Case Notes

Automatic Excusal.

The automatic excusal of 12 jurors and an alternate in one lot, however laudable the trial court's intention may have been to spare the previous jury a second consecutive trial and however well-known or established the court's policy may have been, it amounted to a systematic exclusion to exempt as a body the 13 jurors and, as such, was error. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

Discretion of Court.

Court did not abuse its discretion by allowing possible jurors to be excused for reasons stated in this section, where there was no deliberate exclusion of a large class of eligible jurors. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, Miller v. Arkansas, 450 U.S. 1035, 101 S. Ct. 1750 (1981), superseded by statute as stated in, Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994).

Trial court properly excused persons from the jury venire, without affording trial counsel a chance to voir dire them with respect to the reasons they did not wish to serve, since the trial court has the discretion to excuse any juror to protect the public interest or the court's interests. Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973, 101 S. Ct. 3127 (1981); Race v. National Cashflow Sys., 30 Ark. App. 116, 783 S.W.2d 370 (1990).

A court's power to excuse jurors need not be exercised only for good cause shown; this section vests in the trial judge the discretion to excuse any juror. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

Excusal Held Proper.

The trial court did not err in excusing one of the selected jurors to allow the juror to attend a job interview on the day scheduled for trial. Latham v. State, 318 Ark. 19, 883 S.W.2d 461 (1994).

Farmers.

The wholesale excusal from the venire of individuals who claim farming as their occupation is reversible error if it is automatic and based solely on that fact. Jones v. State, 317 Ark. 131, 876 S.W.2d 262, 1994 Ark. LEXIS 318 (1994).

Where trial judge noted that the farmers were harvesting their crop and would suffer extreme hardship if they served, the trial court further stated that the farmers were excused only after requesting to be excused “either orally before the court or through questionnaires,” there was not a wholesale dismissal of potential jury members based solely on occupation. Jones v. State, 317 Ark. 131, 876 S.W.2d 262, 1994 Ark. LEXIS 318 (1994).

While the wholesale excusal from the venire of persons who claim farming as their occupation is reversible error if it is automatic and based solely on that fact, when each farmer is considered on an individual basis and the trial court determines that each would suffer extreme hardship, no systematic exclusion has occurred. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

Objection to Service.

Disqualification was waived by the juror's failure to claim the excuse of being over 65 years of age. Edens v. State, 235 Ark. 178, 359 S.W.2d 432 (1962), cert. denied, Edens v. Arkansas, 371 U.S. 968, 83 S. Ct. 551 (1963) (decision under prior law).

This section does not provide for the automatic exclusion of persons within the classifications mentioned, but rather provides for exclusion if the individual objects to serving and makes the court aware of such objection before the jury is sworn. Penelton v. State, 277 Ark. 225, 640 S.W.2d 795 (1982).

Prejudice.

In cases involving alleged irregularities in the jury panel and its selection, the appellant must demonstrate prejudice as well as any error. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).

Prejudice in jury selection is not presumed simply because error might have occurred; the basic issue decided by the appellate court on review is not whether it approves or disapproves of the procedure followed in jury selection, but whether there was prejudicial error. Race v. National Cashflow Sys., 30 Ark. App. 116, 783 S.W.2d 370 (1990).

Cited: Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

16-31-104. Limitations on frequency and period of service.

  1. Any person who is sworn as a member of a grand or petit jury shall be ineligible to serve on another grand or petit jury in the same county for a period of two (2) years from the date the person is excused from further jury service by the court or by operation of law.
  2. No petit juror shall be required to report for jury duty on more than ten (10) days or for more than a four-month period during the calendar year for which he or she is selected, except that any juror actually engaged in the trial of a case at the time of the expiration of the period of permitted service shall serve until the trial of the case is concluded.
  3. A summons to serve on jury duty shall include a description of the maximum periods of service under this section.

History. Acts 1969, No. 568, §§ 3, 4; 1971, No. 364, § 1; 1983, No. 425, § 1; A.S.A. 1947, §§ 39-103, 39-104; Acts 2007, No. 225, § 1.

Cross References. Disqualification from further duty, § 16-32-107.

Case Notes

Frequency.

Upon retrial, trial court properly refused to quash jury panel on grounds that two of the jury commissioners who selected the wheel of jurors had served on a petit jury within the preceding two years and had in fact served on the petit jury which convicted the defendant at his first trial, where no possibility of prejudice was shown. Norris v. State, 262 Ark. 188, 555 S.W.2d 560, 1977 Ark. LEXIS 1772 (1977), cert. denied, Norris v. Arkansas, 435 U.S. 970, 98 S. Ct. 1610 (1978).

Jury Wheel.

There was no statutory exclusion from new jury wheel of jurors whose names were in the prior wheel which had been quashed. Maxwell v. State, 259 Ark. 86, 531 S.W.2d 468 (1976).

Cited: Worley v. State, 259 Ark. 433, 533 S.W.2d 502 (1976); Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979).

16-31-105. Exemption from overtime parking penalties.

  1. No person shall be subject to a fine or other penalty for the offense of overtime parking incurred while the person is engaged in actual service as a grand or petit juror in any court, federal or state, in this state.
  2. The person may evidence the fact of jury service by exhibiting to the appropriate official of the city or town offended by the violation a certificate of the clerk of the court similar to the form now in use to the effect that the person was engaged in jury service on the date of the violation and the hours of actual service.
  3. Any person attempting to enforce any fine or other penalty notwithstanding the provisions of this section shall be subject to contempt proceedings before the judge of the court being served by the person so charged.
  4. Nothing contained in this section shall be construed to give immunity from fine or penalty other than for the offense of overtime parking.

History. Acts 1971, No. 729, §§ 1-4; 1979, No. 423, § 1; A.S.A. 1947, §§ 39-117 — 39-120.

Publisher's Notes. Acts 1971, No. 364, § 1 and 1971, No. 729, §§ 3, 4 are also codified as § 16-10-131.

16-31-106. Penalty for employees' service prohibited.

    1. Any person who is summoned to serve on jury duty shall not be subject to discharge from employment, loss of sick leave, loss of vacation time, or any other form of penalty as a result of his or her absence from employment due to jury duty, upon giving reasonable notice to his or her employer of the summons.
    2. No employer shall subject an employee to discharge, loss of sick leave, loss of vacation time, or any other form of penalty on account of his or her absence from employment by reason of jury duty.
  1. Any person violating the provisions of this section shall be guilty of a Class A misdemeanor.

History. Acts 1969, No. 568, § 3; 1983, No. 425, § 1; A.S.A. 1947, § 39-103.

Case Notes

Salary.

An employer is not legally required to pay an employee during her absence on jury duty. Frolic Footwear, Inc. v. State, 284 Ark. 487, 683 S.W.2d 611 (1985).

Cited: Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979).

16-31-107. Effect of unqualified juror upon verdict or indictment.

No verdict or indictment shall be void or voidable because any juror shall fail to possess any of the qualifications required in this act unless a juror shall knowingly answer falsely any question on voir dire relating to his qualifications propounded by the court or counsel in any cause. A juror who shall knowingly fail to respond audibly or otherwise as is required by the circumstances to make his position known to the court or counsel in response to any question propounded by the court or counsel, the answer to which would reveal a disqualification on the part of the juror, shall be deemed to have answered falsely.

History. Acts 1969, No. 568, § 6; A.S.A. 1947, § 39-106.

Meaning of “this act”. See note to § 16-31-101.

Case Notes

Applicability.

Former similar section applied to both criminal and civil cases. Arkansas State Hwy. Comm'n v. Kennedy, 233 Ark. 844, 349 S.W.2d 132 (1961) (decision under prior law).

Affinity.

There can be no affinity between the blood relations of the husband and the blood relations of the wife, and juror would not be disqualified to serve on the jury under this section because her in-laws were related to plaintiffs by marriage. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990).

Burden of Proof.

To obtain a new trial on the grounds of juror misconduct, a party must first demonstrate that a juror failed to honestly answer a question or deliberately concealed a matter during voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. Pineview Farms, Inc. v. A.O. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).

In a hearing on a motion for a new trial because of ineligibility of a juror, the complaining party has the burden of first establishing that: (1) diligence was used to ascertain the desired information and (2) he made known to the juror the specific information desired. Pineview Farms, Inc. v. A.O. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).

Duty of Court.

A trial court is not required to disclose to counsel a juror's inability to read or write. Arkansas La. Gas Co. v. Morgan, 256 Ark. 250, 506 S.W.2d 560 (1974).

Failure to Question Juror.

A new trial will not be granted on account of the disqualification of a juror by reason of relationship to the appellee where the bill of exceptions (abolished) does not disclose that any questions were asked on voir dire as to the relationship of the jurors to the parties. Fones Bros. Hdwe. Co. v. Mears, 182 Ark. 533, 32 S.W.2d 313 (1930) (decision under prior law).

Where court reporter failed to take shorthand notes on juror's voir dire and court refused to let the record show that juror was questioned as to his relationship with plaintiff, or his denial of same, uncontroverted affidavits of the other jurors and bystanders were taken as being true by the Supreme Court. Brundrett v. Thompson, 203 Ark. 726, 159 S.W.2d 65 (1942) (decision under prior law).

Where the question asked the juror was not one in which the silence of the juror amounted to an answer, the appellant failed to show due diligence to determine grounds for disqualification of that juror. Kane v. Erich, 250 Ark. 448, 465 S.W.2d 327 (1971) (decision under prior law).

Although § 16-31-102(a)(5) disqualifies convicted felons from serving on a jury, where no juror was asked during voir dire whether he or she had been convicted of a felony, the trial court did not abuse his discretion in finding the juror, who had been convicted of a felony, did not knowingly answer falsely to any question on voir dire, and thus, the jury's verdict was not void or voidable under this section. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993).

A juror's failure to admit during voir dire a business connection with the defendant's insured did not amount to juror misconduct warranting a new trial where the plaintiff did not use due diligence in seeking information concerning the juror's relationship to the defendant's insured. Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997).

Failure to Reveal Disqualification.

Where a juror failed, upon questioning, to reveal his relationship to a witness for the prosecution, and such relationship would have disqualified him, the defendant was entitled to a new trial. Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977).

Although juror's apparently unintentional failure to disclose disqualifying information was not done knowingly, the trial court did not abuse its discretion in granting a new trial. Arkansas Power & Light Co. v. Bolls, 48 Ark. App. 23, 888 S.W.2d 319 (1994).

Judgment Valid.

Where juror did not meet qualifications because she was not a resident of county where the case was tried, but she did not knowingly answer falsely any question on voir dire relating to her qualifications, the verdict was not voidable. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

Timely Objection.

A verdict in an action by a physician for professional services will not be set aside because of the relationship of a juror to another physician who assisted in performing the services and was in some way interested in the result of the suit, where the relationship was known before the trial. Arkansas S.R.R. v. Loughridge, 65 Ark. 300, 45 S.W. 907 (1898) (decision under prior law).

An objection to an unqualified person's serving as a juror must have been made before he was sworn as a juryman. Arkansas State Hwy. Comm'n v. Bryant, 233 Ark. 841, 349 S.W.2d 349 (1961) (decision under prior law).

It was too late after rendition of verdict to raise the ineligibility of a juror to serve unless it could be shown by the complaining party that diligence was used to ascertain his disqualification and to prevent his selection as a juror. Arkansas State Hwy. Comm'n v. Kennedy, 233 Ark. 844, 349 S.W.2d 132 (1961) (decision under prior law).

Cited: Arkansas La. Gas Co. v. Morgan, 256 Ark. 250, 506 S.W.2d 560 (1974).

16-31-108. Interpreters for visually or hearing impaired jurors.

      1. The state, through the Administrative Office of the Courts, shall provide and pay the cost of reasonable accommodations for the hearing and visually impaired when necessary to enable a person with those disabilities to act as a venireperson or juror.
      2. Such accommodations may include a qualified sign language interpreter, real-time captioning, or other reasonable auxiliary aid for the hearing impaired or a reader for the visually impaired.
      3. In the event the juror indicates that he or she can be accommodated by several means, the Administrative Office of the Courts may consider the cost and availability of each accommodation when deciding which to provide.
    1. The interpreter, the person writing real-time captioning, and the reader, when necessary, shall be present throughout jury service, the trial, and when the jury assembles for deliberation.
    1. Whenever a sign language interpreter, real-time captioning, or a reader is utilized in judicial proceedings or in jury deliberations, the court will administer an oath to the interpreter, the person writing the real-time captioning, and the reader, to ensure objective and unbiased translation and complete confidentiality of the proceedings.
    2. The court shall also instruct the interpreter, the person writing the real-time captioning, and the reader to make a true and complete translation of all testimony and other relevant colloquy to the best of his ability.
    3. The court shall further instruct the interpreter, the person writing the real-time captioning, and the reader to refrain from participating in any manner in the deliberations of the jury, except for the complete translations of jurors' remarks made during deliberations.
  1. The verdict of the jury shall be valid notwithstanding the presence of the interpreter during deliberations.

History. Acts 1994 (1st Ex. Sess.), No. 4, § 2; 1995, No. 897, § 1.

Amendments. The 1995 amendment substituted “reasonable accommodations for the hearing and visually impaired” for “reasonable services of, a qualified interpreter for the hearing impaired or a reader for the visually impaired” in (a)(1); and rewrote current (a)(1)(B), (a)(1)(C), (a)(2) and (b).

Cross References. Court interpreters, § 16-10-127.

Method of procuring services, § 16-10-135.

Chapter 32 Selection and Attendance

Research References

Am. Jur. 47 Am. Jur. 2d, Jury, § 136 et seq.

Ark. L. Rev.

Minimum Standards of Judicial Administration — Arkansas, 5 Ark. L. Rev. 1, 6.

Selection of Juries, 5 Ark. L. Rev. 384.

Arkansas Civil Juries, 21 Ark. L. Rev. 527.

The Arkansas Jury Wheel Act of 1969, 24 Ark. L. Rev. 43.

Gingerich, The Arkansas Grand Jury, Etc., 40 Ark. L. Rev. 55.

C.J.S. 50 C.J.S., Juries, § 155 et seq.

Case Notes

Venire.

Defendant failed to show he was prejudiced by the absence of black males on his jury panel where he failed to produce any evidence that showed black males were systematically excluded from the venire or that the method used to assemble the venire produced a venire from which black males were systematically excluded. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

Subchapter 1 — General Provisions

A.C.R.C. Notes. References to “this subchapter” in §§ 16-32-101 to 16-32-109 may not apply to § 16-32-110 which was enacted subsequently.

Effective Dates. Acts 1975, No. 485, § 7, provided: “This Act shall be effective on and after January 1, 1976, except that the procedures outlined in this Act to be carried out prior to the empaneling of a jury shall be effective on and after July 1, 1975, so that jurors empaneled at terms of any circuit court beginning after January 1, 1976 shall be selected as provided herein.”

Acts 1979, No. 816, § 4: July 1, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that the method of selecting jurors is vital to the proper administration of justice and that this Act is necessary to establish the most equitable method of such selection. 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, 1979.”

Acts 1997, No. 1021, § 5: April 2, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present method of selecting grand jurors and petit jurors is inadequate to assure random selection; that this act will provide for the random selection of jurors; and until this act becomes effective, the validity of findings and judgments issued by juries in this state is subject to question. 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. 87, § 12: Feb. 8, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the present method of selecting grand jurors and petit jurors is inadequate to permit computerized random selection; that this act will provide for the computerized random selection of jurors; and that until this act becomes effective, the validity of findings and judgments issued by juries selected randomly by computer is subject to question. 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.”

Case Notes

Construction.

Acts 1969, No. 568, must be construed as mandatory and not as directory only. Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973).

Irregularities.

While the provisions of the jury wheel act are mandatory, some sections of Acts 1969, No. 568 are more important than others, and any irregularity in the selection process does not per se invalidate the proceedings. Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988).

16-32-101. Selection pursuant to act required — Waiver.

No person shall be summoned to serve as a grand or petit juror who has not been selected under the provisions of this act unless this requirement is waived by the parties.

History. Acts 1969, No. 568, § 26; A.S.A. 1947, § 39-218.

Meaning of “this act”. See note to § 16-32-104.

Case Notes

Applicability.

This section must be complied with in the selection of a special grand jury under § 16-85-517. Streett v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975).

16-32-102. [Repealed.]

Publisher's Notes. This section, concerning jury commissioners, was repealed by Acts 2013, No. 1148, § 6. The section was derived from Acts 1969, No. 568, §§ 10-12; 1975, No. 485, § 1; A.S.A. 1947, §§ 39-201.1 — 39-204.

16-32-103. Master list.

  1. During the month of November or December of each year, the prospective jurors for the following calendar year shall be selected from among the current list of registered voters of the applicable district or county in the following manner:
    1. The circuit judge, in the presence of the circuit clerk, shall select at random a number between one (1) and one hundred (100), inclusive, which shall be the starting number, and the circuit court shall then select the person whose name appears on the current voter registration list in that numerical position, counting sequentially from the first name on the list;
    2. The circuit clerk shall then select the one hundredth voter registrant appearing on the list after the starting number. As an example, if the starting number is sixty-seven (67), which is the first selection, the second selection would be the one hundred sixty-seventh registered voter, the third selection would be the two hundred sixty-seventh registered voter, and so forth until the current registered voter list is exhausted; and
    3. The circuit judge and the circuit clerk shall then repeat the random selection process until the number of jurors set out in this subsection have been selected.
  2. The number of persons to be selected shall be based upon the number of qualified registered voters in the appropriate district or county as reflected by the current list of registered voters provided by the county clerk under legal requirements and, unless a larger number is designated by the circuit judge, the minimum number selected shall be as follows:
    1. After the list of prospective jurors has been submitted by the circuit clerk, the circuit judge may, in the exercise of his or her discretion, authorize clerical assistance in preparing the alphabetized master list and separate cards, chips, disks, or other appropriate means of including the names and addresses of the prospective jurors in the wheel or box.
    2. The expense of this clerical help shall be paid by the county as an expense of the administration of justice.
    3. Clerical employees shall take the following oath:
  3. Subsections (a)-(c) of this section shall be applicable to all circuit courts and counties within the state that are not using a computerized random jury selection process.
      1. All circuit clerks who maintain on computers voter registration lists or the enhanced list of prospective jurors authorized by § 16-32-302, whether in-house or contracted, may utilize the computers and associated equipment for the purpose of selecting jury panels from the voter registration lists or the enhanced list of prospective jurors instead of compiling a master list under subsections (a)-(c) of this section if the computer program is capable of randomly selecting names for the jury panels from the voter registration lists or enhanced list of prospective jurors.
      2. If the computer program is not capable of randomly selecting names for the jury panels from the voter registration lists or enhanced list of prospective jurors, the clerks may use the computers and associated equipment for the purpose of creating the master list under subsections (a)-(c) of this section.
    1. The master list of jurors' names and addresses shall not be available for public inspection, publication, or copying, but it may be examined in the presence of the circuit judge by litigants or their attorneys who desire to verify that names drawn from the wheel or box were placed there in the manner provided in this act by the commissioners.
      1. In counties where jury selection is conducted by a computerized random process, the source list of potential jurors' names and addresses shall not be available for public inspection, publication, or copying.
      2. The source list may be examined in the presence of the circuit judge by litigants or their attorneys who desire to verify that names randomly selected by computer were selected from the list.

Number of Registered Voters Minimum Number of Prospective Petit Jurors Minimum Number of Prospective Grand Jurors 90,000 or more 1,200 120 16,000 to 89,999 1,000 100 10,000 to 15,999 800 90 6,000 to 9,999 600 75 2,000 to 5,999 500 75 0 to 1,999 250 or 50% of the registered voters, whichever is smaller

Click to view table.

“I will not make known to anyone the names of the prospective jurors who have been selected and I will not, directly or indirectly, converse with anyone selected as a juror concerning the merits of any proceeding pending or likely to come before the grand jury or court until after the case is tried or otherwise finally disposed of.”

History. Acts 1969, No. 568, § 15; 1975, No. 485, § 2; 1979, No. 816, §§ 1, 2; 1981, No. 687, § 1; 1985, No. 1066, § 1; A.S.A. 1947, §§ 39-205.1, 39-205.1n, 39-205.2, 39-207; Acts 2005, No. 87, § 2.

Meaning of “this act”. See note to § 16-32-104.

Case Notes

Constitutionality.

This section is constitutional. Richardson v. Williams, 327 Ark. 156, 936 S.W.2d 752 (1997).

Construction.

Acts 1969, No. 568 must be construed as mandatory for to construe it as directory only would tend to exclude from jury service those voters who registered after the last full selection of the jury wheel. Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973).

This section is so clear that it needs no construction or interpretation, even though it contains a typographical error; it is a well-thought-out statute, has a solid foundation in public policy, and is to be followed by the circuit judges and clerks. Bates v. State, 322 Ark. 738, 912 S.W.2d 417, 1995 Ark. LEXIS 738 (1995).

Discrimination.

Where there was a 14% disparity between the percentage of blacks on the jury venire and the percentage of registered black voters and the jury venire was chosen by the subjective judgment of white jury commissioners who could exercise untrammeled discretion subject only to the requirement that persons selected be of good moral character, of approved integrity, sound judgment and reasonable information, a prima facie case of discrimination was established. Sanford v. Hutto, 394 F. Supp. 1278 (1975), aff'd, 523 F.2d 1383 (8th Cir. Ark. 1975) (decision under prior law).

No defendant has a right to have jurors selected in a manner to assure him of a jury from his own ethnic group or occupation. Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975) (decision under prior law).

To the extent that persons not registered to vote did not constitute a distinct and identifiable group, use of voter registration lists in the overall composition of petit and grand juries did not discriminate against unregistered citizens. Murrah v. Arkansas, 532 F.2d 105 (8th Cir. 1976) (decision under prior law).

Evidence insufficient to show that the Arkansas system of selecting jurors at random from the current list of registered voters unlawfully underrepresented blacks and persons between the ages of eighteen and thirty-four. Sullivan v. State, 287 Ark. 6, 696 S.W.2d 709 (1985).

When the panel is drawn by chance, a showing that its racial make-up does not correspond to that of the county does not in itself make a prima facie case of racial discrimination; therefore, the defendant's motion for a continuance to enable him to show that the particular panel was not representative of the population was properly refused. Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986).

This process of selecting jurors has been upheld frequently and while jury selection may not be the result of discrimination against racial groups, each jury need not have on it persons representative of each distinctive group in the population from which it is chosen; thus a jury of 15% African-Americans in county where the African-American population is 23% did not show purposeful discrimination. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Capital murder defendant's challenge to the use of voter-registration records to select the jury panel on the grounds that African-Americans and women would be under-represented was properly rejected; where the venire was chosen using the random selection process required by this section, there was no possibility of a systematic or purposeful exclusion of any group. State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005).

Multi-District County.

Where jury was drawn only from one district of multi-district county, the trial court properly refused to grant motion quashing the jury panel since Ark. Const., Art. 13, § 5, and this section both clearly contemplate that a jury may properly be drawn from only one district within a county having more than one district. Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981), overruled in part on other grounds, White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

The electoral subdistricts within the Tenth Judicial District are not judicial districts and that the venire in this case was properly drawn from Drew County as a whole. Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995), cert. denied, Caldwell v. Arkansas, 517 U.S. 1124, 116 S. Ct. 1361, 134 L. Ed. 2d 528 (1996).

Oath.

The trial court properly refused to quash the jury panel merely because a clerical employee who assisted in preparing the jury list had not taken the oath required by this section, since this section is not mandatory and no question about the integrity of the list had been shown. Williams v. State, 278 Ark. 9, 642 S.W.2d 887, 1982 Ark. LEXIS 1606 (1982).

Sufficient Compliance.

Where the bailiff testified that he put the names in alphabetical order as a convenience to help him in locating the jurors and to help attorneys in matching the names with the jurors' information sheets, where the alphabetical listing was just as random and impartial as any other procedure, and where there was no hint that alphabetical order was chosen for a sinister purpose, in the absence of any showing whatever of possible prejudice, the trial judge was right in denying the motion to quash the panel. Welch v. State, 269 Ark. 208, 599 S.W.2d 717, cert. denied, 449 U.S. 996, 101 S. Ct. 535, 66 L. Ed. 2d 294 (1980).

The fact that jurors were called for a particular term of court rather than for the calendar year in general did not offend the spirit of this section. Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985).

Jury selection satisfied requirements of this section. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989).

The trial court erred by selecting the random numbers outside the presence of the circuit clerk and by not being present when the selection was made, but the error was harmless where there was no hint that the circuit judge did anything other than randomly select the numbers, and there was no hint that the circuit clerk did anything other than correctly apply the random numbers to the voter registration list. Bates v. State, 322 Ark. 738, 912 S.W.2d 417, 1995 Ark. LEXIS 738 (1995).

Violation.

In a civil tort proceeding, the plaintiff has an equal protection right to jury-selection procedures that produce juries from a representative cross-section of his community; however, in order to establish a prima facie violation of the cross-section requirement, he must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Richardson v. Williams, 327 Ark. 156, 936 S.W.2d 752 (1997).

Cited: Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973); Robillard v. State, 263 Ark. 666, 566 S.W.2d 735 (1978); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983); Brown v. Lockhart, 781 F.2d 654 (8th Cir. 1986); Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989); Wainwright v. Norris, 872 F. Supp. 574 (E.D. Ark. 1994); Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996); Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Thompson v. State, 2015 Ark. App. 275, 461 S.W.3d 368 (2015).

16-32-104. Jury wheel or box.

    1. The names and last known addresses of the persons selected shall be placed, in the presence of the circuit judge and the circuit clerk, in a circular hollow wheel or a large box constructed of sturdy and durable material. In place of names and addresses, the court may cause cards or discs, numbered serially, to reflect the number of prospective jurors required to be placed in the box and shall cause the names on the master list to be numbered serially so that a juror on the list may be identified when his number is drawn for entry in the jury book.
      1. The wheel or box shall thereafter remain locked at all times, except when in use as provided in this subchapter, by the use of two (2) separate locks so arranged that the key to one will not open the other lock. The clasps into which the locks shall be fitted shall be so arranged that the wheel or box cannot be opened unless both locks are unlocked.
      2. The key to one (1) lock shall be kept by the circuit judge, and the key to the other shall be kept by the circuit clerk.
      3. The circuit clerk of each county shall keep the wheel or box, when not in use, in a safe and secure place.
    2. Whenever the circuit judge finds that there is sufficient reason to believe that the integrity of the contents of the wheel or box may have been compromised, he or she shall cause the names in the wheel or box to be compared with the names on the master list, and the verified names shall then be placed in the wheel or box in open court.
    3. Any person other than one acting in open court as authorized by this act who shall open a jury wheel or box with intent to remove, alter, or add to its contents shall be deemed guilty of a felony, and upon conviction shall be imprisoned in the penitentiary not less than one (1) year nor more than twenty-one (21) years.
  1. The courts are authorized to use a computer program that is capable of random selection of names from the list of registered voters or the enhanced list of prospective jurors authorized under § 16-32-302 instead of maintaining the jury wheel or box required under subdivisions (a)(1)-(4) of this section.

History. Acts 1969, No. 568, §§ 14, 16, 27; A.S.A. 1947, §§ 39-206, 39-208, 39-219; Acts 2005, No. 87, § 3.

Meaning of “this act”. Acts 1969, No. 568, codified as §§ 16-30-101, 16-30-103, 16-31-10116-31-104, 16-31-106, 16-31-107, 16-32-10116-32-104, 16-32-106, 16-32-107, 16-32-109.

Case Notes

Special Grand Jury.

The jury wheel method of selection is mandatory when a special grand jury is selected under § 16-85-517. Streett v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975).

Cited: Arkansas State Hwy. Comm'n v. Sadler, 248 Ark. 887, 454 S.W.2d 325 (1970); Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970); Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973); Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983); Brown v. Lockhart, 781 F.2d 654 (8th Cir. 1986).

16-32-105. Drawing for petit jurors.

    1. After the names have been placed in the wheel or box and not less than fifteen (15) days prior to the first jury trial in the year for which the prospective jurors have been selected, the circuit judge shall enter an order which shall be spread of record stating a time and place for the initial drawing for the names of petit jurors from the wheel or box.
    2. At the time and place designated, the wheel or box shall be unlocked in open court.
    3. After the names have been thoroughly mixed, the circuit judge shall cause to be drawn the number of names which in his or her opinion shall be necessary to provide a panel of qualified petit jurors for the trial of cases, after excuses from attendance have been granted to those who are entitled to be excused.
    4. As the names are drawn, they shall be recorded in the same order by the circuit clerk in a book to be provided for that purpose, and if the name of any person known to have died or found by the court upon inquiry to be unfit and disqualified under § 16-31-102(a) is drawn, that name shall be put aside and not used and a notation of the discarding of the name and reason therefor shall be made in the jury book.
    5. The same procedures outlined in this section shall be followed in the event all of the jurors whose names are listed in the jury book shall be excused from further service.
  1. The drawing and recording of jurors under subdivisions (a)(1)-(5) of this section may be accomplished by a computerized random jury selection process.

History. Acts 1975, No. 485, § 3; A.S.A. 1947, § 39-209.1; Acts 2005, No. 87, § 4.

Case Notes

Construction.

This section, on its face, does not require the presence of the judge when the names are drawn. Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

Alternative Procedure.

Where the bailiff testified that he put the names in alphabetical order as a convenience to help him in locating the jurors and to help attorneys in matching the names with the jurors' information sheets, where the alphabetical listing was just as random and impartial as any other procedure, and where there was no hint that alphabetical order was chosen for a sinister purpose, in the absence of any showing whatever of possible prejudice, the trial judge was right in denying the motion to quash the panel. Welch v. State, 269 Ark. 208, 599 S.W.2d 717, cert. denied, 449 U.S. 996, 101 S. Ct. 535, 66 L. Ed. 2d 294 (1980).

Discrimination.

Fact that one of three jury commissioners testified that in selection of jurors he partly took into consideration whether selection of certain jurors would cause a hardship on them was not sufficient to establish that wage earners were systematically and unconstitutionally excluded from the jury so as to deprive defendant of a jury of his social and economic peers. Kimble v. State, 246 Ark. 407, 438 S.W.2d 705 (1969) (decision under prior law).

An accused in Arkansas has never had the right to have the jury commissioners select jurors in such a manner as to assure the accused of a jury from his own ethnic group or occupation. Pointer v. State, 248 Ark. 710, 454 S.W.2d 91 (1970), cert. denied, Pointer v. Arkansas, 400 U.S. 959, 91 S. Ct. 359 (1970) (decision under prior law).

Where the panel is drawn by chance from a jury wheel made up from a list of names taken from voter registration lists by jury commissioners appointed in accordance with statute and who were properly instructed to select jurors from a representative cross section of a county without discrimination as to race, the mere showing that the composition of a particular jury panel did not correspond to the racial makeup of the community did not in and of itself make a prima facie case of racial discrimination. One attacking the jury panel must show that there has been systematic and intentional exclusion of any particular group before the panel can be quashed on that account. Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975) (decision under prior law).

Entry of Names in Jury Book.

Where names were withdrawn from the jury wheel for use by the chancery court, but had never been entered in the jury book, it was error not to quash the jury panel. Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973) (decision under prior law).

Where names of prospective jurors were recorded by circuit clerk on yellow legal pad instead of in jury book as required by this section, trial court properly denied defendant's motion to quash the jury panel because the motion was not timely presented at the pretrial conference but rather on the day of the trial. Beasley v. State, 258 Ark. 84, 522 S.W.2d 365 (1975) (decision under prior law).

The defendant was not prejudiced by the court clerk's practice of making a typewritten list of the names of jurors rather than recording the names in a jury book, where the typewritten list had been used all during that term of court and where defendant's objection to the list was not made until the morning of the trial. Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977) (decision under prior law).

This section requires that the names be recorded in the jury book in the same order as they are drawn, but it does not specify the order in which they are to be summoned. Welch v. State, 269 Ark. 208, 599 S.W.2d 717, cert. denied, 449 U.S. 996, 101 S. Ct. 535, 66 L. Ed. 2d 294 (1980) (decision under prior law).

The failure to list the names in the jury book of the twenty-three veniremen who were excused from serving as jurors, or to record the reasons for their excusal, was not reversible error where the names were recorded in a file retained by the clerk, as well as the reasons for excusal in all but a single instance, on individual questionnaires, which were also kept in a separate file. Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985).

Motion to Quash Jury Venire.

Where 300 jury summonses were mailed to prospective jurors, the court clerk received 200 responses, a number of prospective jurors were excused based upon their responses, and only 63 prospective jurors appeared for jury selection, the trial court did not err in denying defendant's motion to quash the jury panel because there was no suggestion that the discrepancy in the number of venire persons scheduled for jury service and the number that actually appeared was the result of any attempt to influence the makeup of the jury panel. Because there was substantial compliance with this section and the record did not reflect the wholesale excusal of any distinctive group of prospective jurors, the trial court did not abuse its discretion in refusing to quash the entire jury panel. Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744 (2009).

Cited: Brown v. Lockhart, 781 F.2d 654 (8th Cir. 1986).

16-32-106. Summons of petit jurors.

  1. The persons whose names have been selected under § 16-32-105 shall be summoned to appear on a date set by the court to answer questions concerning their qualifications and unless excused or disqualified, to serve the required number of days or for the maximum period during the calendar year for which selected unless sooner discharged.
  2. Jurors shall be summoned by the court or by the sheriff, as the court directs, by:
    1. A notice dispatched by first-class mail;
    2. Notice given personally on the telephone; or
    3. Service of summons personally or by such other method as is permitted or prescribed by law.
      1. If a notice is dispatched by first-class mail, the prospective jurors shall be given a date certain to contact the sheriff or the court to confirm receipt of the notice.
      2. Not later than five (5) days before the prospective juror is to appear, the sheriff or the court shall contact the prospective juror if the prospective juror has failed to acknowledge receipt of the notice.
      3. The court shall have discretion to determine whether the sheriff or the court will be the prospective juror's primary contact.
    1. A notice dispatched by first-class mail shall be sent on a form approved by the Administrative Office of the Courts or it shall include the following language:
  3. Unless excused by the circuit judge, a juror who has been legally summoned and who shall fail to attend on any date when directed to do so may be fined in any sum not less than five dollars ($5.00) nor more than five hundred dollars ($500). However, nothing in this subsection shall be construed to limit the inherent power of the court to punish for contempt. All excuses granted by the circuit judge shall be noted in the jury book or the computer program described in § 16-32-103.

“You are hereby notified that you have been chosen as a prospective juror. You must notify the sheriff [or the court] on or before (date) to confirm that you have received this notice. If you do not notify the sheriff [or the court] to confirm this notice, the sheriff [or the court] will contact you and there will be added cost. Please call the sheriff [or the court] at (phone number)

History. Acts 1969, No. 568, §§ 18, 19; A.S.A. 1947, §§ 39-210, 39-211; Acts 1989, No. 892, § 1; 2005, No. 87, § 5.

Cross References. Alternate jurors authorized, § 16-30-102.

Case Notes

Construction.

Subdivision (c)(1) did not require five days' notice to jurors; rather, it provides that when jurors were mailed a notice to serve, they were to confirm with the sheriff that it was received and if no confirmation was given, the sheriff was to follow up with a telephone call to the non-responsive panel member not later than five days before trial. Taylor v. State, 76 Ark. App. 279, 64 S.W.3d 278 (2001).

Borrowing Jurors.

It was proper for the chancery court to borrow jurors for trial of issues in equity as long as the jurors were taken from the jury book and returned to it for use in future trials. Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973) (decision under prior law).

Method of Summons.

Once trial was in progress, the trial judge was within his discretion in approving the most expeditious method of summoning additional prospective jurors, regardless of defendant's claim that the sheriff's use of the telephone to summon more jurors systematically excluded a large class of jurors. Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977).

Although this section authorizes summoning of prospective jurors by telephone, it was reversible error for the trial court to permit telephone summoning of jurors only four hours prior to trial, especially where only about one-third of the prospective jurors could be so reached in time. Kitchen v. State, 264 Ark. 579, 572 S.W.2d 839 (1978).

Where, inter alia, the defendant failed to show that he was prejudiced by the fact that the jurors were summoned by ordinary mail and not by certified mail as required by this section, any error in the jury selection process was properly considered harmless. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1847, 85 L. Ed. 2d 145 (1985).

Subdivision (c)(1) does not require five-days' notice to jurors, but only requires that if no confirmation is given, the sheriff must follow up with a telephone call to the nonresponsive panel member not later than five days before trial. King v. State, 312 Ark. 89, 847 S.W.2d 37 (1993).

16-32-107. Excess number of jurors drawn and listed.

  1. Whenever it shall appear that the names of more jurors have been drawn and listed in the jury book than are needed for jury service at the current or at any subsequent session of the court, the judge, if the jurors are present in court, shall designate the number of jurors required, the names of whom shall be taken from the jury book in the same order as they appear thereon.
  2. If the jurors are not present in court, the judge shall direct the sheriff to summon the number of jurors needed, the names of whom shall be taken from the jury book in the same order as they appear thereon, exempting those who have been excused from attendance.
  3. Persons whose names are drawn and recorded in the jury book shall not be disqualified from further duty as provided for in § 16-31-104(a) until they have been required to report for jury service and sworn therefor.

History. Acts 1969, No. 568, § 21; 1985, No. 1066, § 2; A.S.A. 1947, § 39-213.

Case Notes

Preparation of List.

Even though defendant failed to demonstrate prejudice where the trial court prepared a list of jurors which excluded not only those persons excused from duty but also those persons who failed to appear at a prior impaneling of the jury or to answer the questionnaire and who had not been served in order to avoid the expense and time of calling jurors who had not responded to their call to duty, it is a better practice for the trial courts to follow the method of jury selection prescribed in the Arkansas Jury Wheel Act. Henry v. State, 29 Ark. App. 5, 775 S.W.2d 911 (1989).

Cited: Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973).

16-32-108. Additional jurors.

    1. If at any time it appears that a sufficient number of qualified jurors are not available to try scheduled cases, additional names may be drawn and recorded in the jury book in open court or randomly selected by computer program described in § 16-32-103. These jurors shall be summoned as provided in § 16-32-106(b).
      1. The circuit judge may direct the circuit clerk who selected the original names placed in the jury wheel or box to submit the names and last known addresses of additional registered voters whom the circuit clerk shall select in the manner provided by § 16-32-103(a)-(d).
      2. These names and addresses shall be placed by the circuit clerk within the jury wheel or box when it is next unlocked in open court and prior to any additional drawing of jurors, and a master list shall be presented to the court as provided in § 16-32-103(a)-(d).
  1. The drawing and recording of additional jurors pursuant to subdivisions (a)(1) and (2) of this section may be accomplished by a computerized random jury selection process.

History. Acts 1975, No. 485, § 4; A.S.A. 1947, § 39-212.1; Acts 2005, No. 87, § 6; 2017, No. 600, § 5.

Amendments. The 2017 amendment redesignated (a)(2) as (a)(2)(A) and (B); rewrote (a)(2)(A); and, in (a)(2)(B), substituted “circuit clerk” for “commissioners” and “jury wheel” for “wheel”.

Case Notes

Discretion of Court.

No abuse of discretion found when trial judge did not call additional jurors. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989).

Maintenance of Names.

There is no requirement that the minimum number of names be constantly maintained after the original panel has been drawn from it. Worley v. State, 259 Ark. 433, 533 S.W.2d 502 (1976).

Special Venire.

Where jury panel had been selected to try another case dependent on the same facts, when the defendant's case was called for trial and the other members of the regular panel were either engaged in the trial of another case or were excused for cause, it was not an abuse of discretion to call a special venire. Rose v. State, 178 Ark. 980, 13 S.W.2d 25 (1929) (decision under prior law).

Cited: Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

16-32-109. Selection upon challenge by litigant.

    1. A challenge to the use of the names selected by the circuit clerk and placed in the jury wheel or box for the drawing of trial panels from the jury wheel or box may be made only by a litigant in a particular case.
      1. If the trial judge sustains the challenge to the use of names in the jury wheel or box for the drawing of trial jurors, he or she shall instruct the circuit clerk to select such a number of persons as the trial judge may designate from the current voter registration list in the manner provided by § 16-32-103(a)-(d).
      2. The list of persons, upon being summoned, shall constitute the panel of jurors for the trial of the cause.
    2. If the panel is exhausted prior to the formation of the trial jury for any reason, the trial judge shall instruct the circuit clerk to select additional names as provided for in this section and place the additional names on the list to be summoned as special jurors in such numbers as is deemed necessary to complete the jury for the trial of the cause.
    1. A challenge to the jury drawn from the jury wheel or box may be made by a litigant in a particular case and shall be sustained by the court if it appears that there was a substantial irregularity in the drawing or summoning of the jury.
    2. In such a case, the court shall order in open court another panel drawn for the trial of the case and other cases in which a similar challenge is sustained.

History. Acts 1969, No. 568, § 23; 1975, No. 485, § 5; A.S.A. 1947, §§ 39-214.1, 39-215; Acts 2017, No. 600, § 6.

Amendments. The 2017 amendment substituted “circuit clerk” for “jury commissioners” in (a)(1); redesignated (a)(2) as (a)(2)(A) and (B); substituted “instruct the circuit clerk” for “appoint a jury commission of not less than three (3) persons, qualified and sworn as commissioners as provided by law” in (a)(2)(A); rewrote (a)(3); and made stylistic changes.

Case Notes

Challenge.

Failure to present testimony in support of motion to quash jury panel, prior to jury's being sworn to try the case, on ground that jury commissioners allowed race to be factor in its determination of qualified jurors, waived right to challenge jury. Johnson v. State, 238 Ark. 15, 377 S.W.2d 865 (1964), cert. denied, Johnson v. Arkansas, 379 U.S. 948, 85 S. Ct. 444, 1964 U.S. LEXIS 38 (1964) (decision under prior law).

Evidence did not support claim that panel failed to constitute a reasonable cross section of the community. Harper v. State, 249 Ark. 1013, 462 S.W.2d 847 (1971); Mosby v. State, 253 Ark. 904, 489 S.W.2d 799 (1973) (preceding decisions under prior law).

Summoning of wrong juror through inadvertent error and writing of names on a yellow legal pad before transfer to the jury book were trivial errors and did not amount to such substantial irregularities as to be a basis for a challenge to the entire jury. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).

Method of Selection.

Discharge of original jury panel because of willful exclusion of blacks and selection of special panel by resummoning all but six of the quashed panel as new jurors, plus selection of six blacks because of their race, was improper, since members of jury must be selected as individuals on basis of individual qualifications and not included or excluded as members of a race. Thomas v. State, 238 Ark. 201, 379 S.W.2d 26, 1964 Ark. LEXIS 558 (1964) (decision under prior law).

Where commissioners were instructed to replace only the number of names used in the previous year, the deviation was prejudicial to the accused. Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973).

The number of persons to be selected by newly appointed jury commissioners to constitute the panel for the trial of a case after the jury wheel has been quashed is within the discretion of the trial judge. Maxwell v. State, 259 Ark. 86, 531 S.W.2d 468 (1976); Harris v. State, 259 Ark. 187, 532 S.W.2d 423 (1976) (preceding decisions under prior law).

Where three names appeared both in the original jury wheel which was quashed and in the new wheel, and where one of the three persons was seated after defendant exhausted all his peremptory challenges, defendant was not entitled to reversal of his conviction, since there was no statutory exclusion from the new wheel of jurors whose names were in the prior wheel. Maxwell v. State, 259 Ark. 86, 531 S.W.2d 468 (1976) (decision under prior law).

In a criminal prosecution, it was not error for the trial court to draw ten jurors from the panel of jurors selected for the civil division. Hewell v. State, 261 Ark. 762, 552 S.W.2d 213 (1977).

Recusal of Judge.

The judge's selection of a new jury commission subsequent to his disqualification was prejudicial error, for after his voluntary disqualification, the judge lost jurisdiction of the case and was without authority to act further in any judicial capacity except to make proper transfer of the case or take the appropriate steps for the selection of another judge. Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978).

Summons.

Although § 16-32-106 authorizes summoning of prospective jurors by telephone, it was reversible error for the trial court to permit telephone summoning of jurors only four hours prior to trial, especially where only about one-third of the prospective jurors could be so reached in time. Kitchen v. State, 264 Ark. 579, 572 S.W.2d 839 (1978).

16-32-110. Electronic random selection.

Beginning January 1, 1998, and thereafter, during every step in the procedure for the selection of grand jurors and petit jurors, electronic devices or mechanical devices shall be utilized to assure the random selection of all jury panels.

History. Acts 1997, No. 1021, § 1.

A.C.R.C. Notes. References to “this subchapter” in §§ 16-32-101 to 16-32-109 may not apply to this section which was enacted subsequently.

16-32-111. Confidentiality of juror information — Definition.

  1. As used in this section, “juror information” means:
    1. An original or a copy of a list of potential jurors;
    2. A list of potential jurors who were sworn and qualified;
    3. Any response to a juror questionnaire; and
    4. A list of an individual venire panel.
  2. Upon application by any person and findings on the record for good cause, any juror information submitted to a circuit court or circuit clerk from which the identity of a particular juror can be determined is confidential and shall not be released or otherwise made available except:
    1. To any attorney eligible to represent a party in a proceeding before the circuit court;
    2. To a party appearing pro se in a proceeding before the circuit court and limited to the juror information relevant to that particular proceeding;
    3. For any audit or similar activity conducted with the administration of any plan or program by any governmental agency that is authorized by law to conduct the audit or activity; or
    4. To a grand jury or court upon a finding that the juror information is necessary for the determination of an issue before the grand jury or court.
    1. The circuit clerk shall require a signed receipt from any person who receives juror information under subsection (b) of this section.
    2. The signed receipt shall be maintained in the jury records of the circuit clerk.
    1. Except as provided in subdivision (d)(2) of this section, no person to whom disclosure is made under this section may disclose to any other person juror information obtained under this section.
    2. Disclosure of juror information may be made to the following persons without violating subdivision (d)(1) of this section:
      1. A client or a legally authorized representative of a client of an attorney who receives the juror information;
      2. An employee of an attorney who receives the juror information;
      3. An attorney associated with an attorney who receives the juror information; or
      4. A person with whom an attorney or a party appearing pro se who receives the juror information may consult or confer regarding potential jurors in a specific case.
  3. A disclosure of juror information in violation of this section is a Class C misdemeanor.

History. Acts 2007, No. 226, § 2.

Subchapter 2 — Criminal Proceedings

Effective Dates. Acts 1975, No. 485, § 7, provided: “This Act shall be effective on and after January 1, 1976, except that the procedures outlined in this Act to be carried out prior to the empaneling of a jury shall be effective on and after July 1, 1975, so that jurors empaneled at terms of any circuit court beginning after January 1, 1976 shall be selected as provided herein.”

Acts 2005, No. 87, § 12: Feb. 8, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the present method of selecting grand jurors and petit jurors is inadequate to permit computerized random selection; that this act will provide for the computerized random selection of jurors; and that until this act becomes effective, the validity of findings and judgments issued by juries selected randomly by computer is subject to question. 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.”

Publisher's Notes. Acts 1993, No. 592, codified at §§ 16-32-202 and 16-32-203, was declared unconstitutional in Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994).

16-32-201. Selection of grand jury.

    1. The selecting, summoning, and impaneling of a grand jury shall be as prescribed by law.
      1. Circuit courts to which criminal cases are assigned may call grand jurors from the jury wheel or box from which petit jurors are drawn, or the circuit judge may direct the circuit clerk to provide the minimum number of names for a separate grand jury wheel or box in the minimum number set forth in § 16-32-103(a)-(d).
      2. In the event the circuit judge directs the circuit clerk to provide the minimum number of names for a separate grand jury wheel or box, the circuit clerk shall select the names of persons whom the circuit clerk believes to be qualified from the current voter registration list or the enhanced prospective juror list authorized by § 16-32-302.
    2. In either event, when a grand jury is selected, the names of a sufficient number of persons shall be drawn from the appropriate box or wheel to provide a panel of sixteen (16) qualified grand jurors, plus a reasonable number of alternates, after excuses from attendance have been granted to those who are entitled to be excused.
    3. As the names are drawn, they shall be recorded in the grand jury book, and the grand jurors shall be summoned and directed to appear in the same manner as provided for petit jurors.
    4. The grand jury shall be made up of the first sixteen (16) persons summoned whose names appear as grand jurors in the jury book after the elimination of the disqualified or excused persons.
      1. The remaining grand jurors whose names appear in the jury book after the elimination of disqualified or excused persons shall be considered as alternates and shall be designated in the order as they appear in the jury book to replace regular grand jurors who become incapacitated or who are unavailable.
      2. Alternate grand jurors shall not be disqualified from further jury duty as provided in § 16-31-104 until they have been required to report for grand jury service during the year.
    5. Grand jurors shall serve during the calendar year in which selected unless sooner discharged by the court.
  1. The drawing and recording of grand jurors under subsection (a) of this section may be accomplished by a computerized random jury selection process.
  2. In either event, when a grand jury is selected, the names of a sufficient number of persons shall be drawn from the appropriate box or wheel to provide a panel of sixteen (16) qualified grand jurors, plus a reasonable number of alternates, after excuses from attendance have been granted to those who are entitled to be excused.
  3. As the names are drawn, they shall be recorded in the grand jury book, and the grand jurors shall be summoned and directed to appear in the same manner as provided for petit jurors.
  4. The grand jury shall be made up of the first sixteen (16) persons summoned whose names appear as grand jurors in the jury book after the elimination of the disqualified or excused persons.
  5. The remaining grand jurors whose names appear in the jury book after the elimination of disqualified or excused persons shall be considered as alternates and shall be designated in the order as they appear in the jury book to replace regular grand jurors who become incapacitated or who are unavailable. Alternate grand jurors shall not be disqualified from further jury duty as provided in § 16-31-104 until they have been required to report for grand jury service during the year.
  6. Grand jurors shall serve during the calendar year in which selected unless sooner discharged by the court.

History. Crim. Code, § 98; C. & M. Dig., § 2977; Pope's Dig., § 3799; Acts 1975, No. 485, § 6; A.S.A. 1947, §§ 39-217.1, 43-901; Acts 2005, No. 87, § 7; 2017, No. 600, § 7.

Amendments. The 2017 amendment, in (a)(2)(A), inserted “jury” preceding “wheel”, and substituted “circuit clerk” for “jury commissioners”; in (a)(2)(B), substituted “circuit clerk” for “jury commissioners” twice, and substituted “the circuit clerk believes” for “they believe”.

Cross References. Qualifications of grand jurors, § 16-31-101.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

Case Notes

In General.

Grand jury may be lawfully selected pursuant to statutory provisions or where the circuit court causes them to be selected in the exercise of its inherent constitutional right. Rowland v. State, 213 Ark. 780, 213 S.W.2d 370 (1948), cert. denied, 336 U.S. 918, 69 S. Ct. 641, 93 L. Ed. 1081 (1949).

Discrimination.

It is error not to permit accused black to show discrimination against his race in selection of grand jury. Castleberry v. State, 69 Ark. 346, 63 S.W. 670 (1901).

Evidence that a grand jury contained but one black, no women, no one under fifty years of age, and that all but one were business men or retired persons, and that all were college graduates or had some college training, was evidence that discrimination against the excluded groups was practiced in the selection of the grand jury and that the grand jury was unconstitutionally selected. Jewell v. Stebbins, 288 F. Supp. 600 (E.D. Ark. 1968) (decision under prior law).

Method of Selection.

A motion to quash on the grounds that a juror was sworn under a different name than appeared on the jury list was properly refused where the court found that the juror was the same person selected by the commissioners. Boles v. State, 58 Ark. 35, 22 S.W. 887 (1893).

Objections.

Objections to the organization of the grand jury must be made by motion to set aside the indictment; by pleading to the indictment, the illegality of the grand jury is waived. Wright v. State, 42 Ark. 94 (1883); Carpenter v. State, 62 Ark. 286, 36 S.W. 900 (1896).

Any alleged illegal discrimination in the selection and impaneling of the grand jury will be raised by a motion to quash. Rowland v. State, 213 Ark. 780, 213 S.W.2d 370 (1948), cert. denied, 336 U.S. 918, 69 S. Ct. 641, 93 L. Ed. 1081 (1949) (decision under prior law).

Presumption.

When the record discloses that persons named were duly impaneled as grand jury, it will be presumed, in the absence of a contrary showing, that the other persons who were summoned but did not serve as grand jurors were excused for cause; presumption is that grand jury was properly constituted. Wallis v. State, 54 Ark. 611, 16 S.W. 821 (1891); Bates v. State, 60 Ark. 450, 30 S.W. 890, 1895 Ark. LEXIS 186 (1895).

Cited: Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988).

16-32-202. Selection, summons, and composition of trial generally.

  1. The jurors for the trial of criminal prosecutions shall be selected and summoned as provided by law.
    1. Juries shall be composed of twelve (12) jurors.
    2. However, cases other than felonies may be tried by a jury of fewer than twelve (12) jurors by agreement of the parties.

History. Crim. Code, § 191; C. & M. Dig., § 3142; Pope's Dig., § 3977; A.S.A. 1947, § 43-1901; Acts 1993, No. 592, § 1; 1995, No. 1296, § 61.

Publisher's Notes. This section, as amended by Acts 1993, No. 592, § 1, was declared unconstitutional in Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994). The court declared that the pre-amendment version remains viable and extant.

Amendments. The 1993 amendment redesignated the first and second sentences in (a) as (a)(1) and (a)(2); and substituted “in the discretion of the trial court judge, by a jury of six (6) jurors,” for “by a jury of less than twelve (12) jurors by agreement of the parties” in (b).

The 1995 amendment redesignated former (a)(1), (a)(2) and (b) as (a), (b)(1) and (b)(2), respectively; and substituted “by a jury of less than twelve (12) jurors by agreement of the parties” for “in the discretion of the trial court judge, by a jury of six (6) jurors” in present (b)(2).

Research References

Ark. L. Rev.

Note, Constitutional Law — Twelve Angry People. Arkansas Constitution Guarantees Right to Trial by Jury of Twelve Persons in Criminal Cases. Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994), 18 U. Ark. Little Rock L.J. 489.

U. Ark. Little Rock L.J.

Sullivan, An Overview of the Law of Jury Selection for Arkansas Criminal Trial Lawyers, 15 U. Ark. Little Rock L.J. 37.

Seventeenth Annual Survey of Arkansas Law — Constitutional Law, 17 U. Ark. Little Rock L.J. 450.

Case Notes

Constitutionality.

The 1993 amendment of this section and § 16-32-203, which provided for a jury of six persons at the trial court's discretion, violates Ark. Const., Art. 2, § 7. Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994).

This section and § 16-32-203, as they existed prior to the enactment of Acts 1993, No. 592, remain viable and extant. Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994).

Agreement.

By agreement, misdemeanors may be tried by less than 12 jurors, but a mere failure to object to trial by less than 12 does not constitute such agreement within this section. Warwick v. State, 47 Ark. 568, 2 S.W. 335 (1886).

It is not error for a charge of manslaughter to be tried by a jury of eleven men where defendant not only agreed in open court to a jury of eleven, but also made no objections, saved no exceptions and did not assign this as error in his motion for a new trial. Ford v. State, 222 Ark. 16, 257 S.W.2d 30 (1953).

There is no federal rule binding the state courts to use a 12-member jury in state criminal prosecutions, and an agreement to proceed with an 11-member jury in accordance with state law and court rules is not a violation of the constitutional right to trial by jury. Vinston v. Lockhart, 850 F.2d 420 (8th Cir. 1988).

Composition.

Although selection of a jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to trial by jury, there is no requirement that the jury which is chosen mirror the community and reflect the distinctive racial groups in the population. Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996).

Right to Twelve Jurors.

Defendant was deprived of her right to be tried by a twelve-member jury for charges of disorderly conduct and refusal to submit to arrest because she was tried by a jury composed of only six members. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995).

Where the defendant was not able to show any prejudice, he was not entitled to a new trial even though the jury contained 13 people. Davies v. State, 64 Ark. App. 12, 977 S.W.2d 900 (1998).

16-32-203. Selection for misdemeanor trial.

The jury, for the trial of all prosecutions for misdemeanors, shall be selected in the following manner:

  1. Each party shall have three (3) peremptory challenges, which may be made orally; and
    1. The court shall cause the names of twenty-four (24) competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of eighteen (18) jurors shall be drawn and entered on a list in the order in which they were drawn, and numbered.
    2. Each party shall be furnished with a copy of the list, from which each may strike the names of three (3) jurors and return the list so stricken to the judge, who shall strike from the original list the names struck from the copies.
    3. The first twelve (12) names remaining on the original list shall constitute the jury.

History. Crim. Code, § 192; C. & M. Dig., § 3143; Pope's Dig., § 3978; A.S.A. 1947, § 43-1902; Acts 1993, No. 592, § 2; 1995, No. 1296, § 61.

Publisher's Notes. This section, as amended by Acts 1993, No. 592, § 1, was declared unconstitutional in Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994). The court declared that the pre-amendment version remains viable and extant.

Amendments. The 1993 amendment rewrote this section.

The 1995 amendment deleted the former introductory language of (2); inserted “jurors” following “eighteen (18)” in (2)(A); and deleted former (3).

Research References

U. Ark. Little Rock L.J.

Note, Peremptory Challenges After Purkett v. Elam, 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.

Case Notes

Constitutionality.

The 1993 amendment of this section and § 16-32-202, which provides for a jury of six persons at the trial court's discretion, violates Ark. Const., Art. 2, § 7. Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994).

This section and § 16-32-202, as they existed prior to the enactment of Acts 1993, No. 592, remain viable and extant. Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994).

Right to Twelve Jurors.

Defendant was deprived of her right to be tried by a twelve-member jury for charges of disorderly conduct and refusal to submit to arrest because she was tried by a jury composed of only six members. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995).

Subchapter 3 — Enhanced Prospective Juror Pool

Effective Dates. Acts 2005, No. 87, § 12: Feb. 8, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the present method of selecting grand jurors and petit jurors is inadequate to permit computerized random selection; that this act will provide for the computerized random selection of jurors; and that until this act becomes effective, the validity of findings and judgments issued by juries selected randomly by computer is subject to question. 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.”

16-32-301. Enhanced prospective juror pool.

  1. The pool of names from which prospective jurors are chosen may be expanded from the list of registered voters to include the list of licensed drivers and persons issued an identification card under § 27-16-805.
  2. The qualifications for serving on a jury under § 16-31-101 and the disqualifications under § 16-31-102 shall apply to the enhanced prospective juror pool permitted under subsection (a) of this section.

History. Acts 2003, No. 1404, § 1; 2005, No. 87, § 8.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

Case Notes

Enhancement Not Warranted.

In a capital murder case, the trial court did not abuse its discretion by failing to enhance the prospective jury pool because the decision to use a list of registered voters instead of a list of licensed drivers was clearly within the court's discretion pursuant to § 16-32-303. In addition, the jury venire was randomly selected by a computer program and race was not identified. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92, cert. denied, 552 U.S. 1025, 128 S. Ct. 620, 169 L. Ed. 2d 399 (2007).

Motion to Strike Denied.

Defendant's motion to strike the jury panels called for his trial was properly denied as he failed to provide any evidence of a prima facie case of racial discrimination. Although no African Americans presented themselves for jury duty, defendant failed to offer evidence that representation of African Americans in the jury pool was not fair and reasonable in relation to the number of African Americans in the community, and defendant did not made a prima facie showing of systematic exclusion of African American jurors, as the jury manager/deputy clerk testified that the jury selection was done in compliance with the relevant statute, which generally provides for a random-selection process. Henderson v. State, 2019 Ark. App. 220, 575 S.W.3d 617 (2019).

16-32-302. Enhanced list of prospective jurors.

    1. In order to allow for the use of the enhanced prospective juror pool, the Secretary of State shall compile and make available no later than November 1 of each year, and at other times determined by the Secretary of State, an enhanced list of prospective jurors in automated or nonautomated form, as provided for in subsection (b) of this section, for:
      1. Any circuit clerk requesting an enhanced list of prospective jurors for his or her county; and
      2. The Administrative Office of the Courts for use in its automated jury management system.
    2. Neither the enhanced list of prospective jurors nor its component parts may be released by the Secretary of State, the Administrative Office of the Courts, or any county or agency receiving the list or its component parts unless otherwise permitted by law.
    3. Unlawful release of the enhanced list of prospective jurors shall be a Class B misdemeanor.
    1. The Secretary of State shall receive from the Department of Finance and Administration at mutually agreeable times each year a list of all licensed drivers and persons issued identification cards under § 27-16-805 who are citizens of the United States and sixteen (16) years of age or older.
    2. The Department of Finance and Administration, the Arkansas Crime Information Center, the Department of Health, and the Administrative Office of the Courts shall assist the Secretary of State in developing a process whereby the Secretary of State will create a merged list from the voter registration list, the list of licensed drivers, and persons issued identification cards under § 27-16-805, who are citizens of the United States and who will be eighteen (18) years of age or older at the time the list is provided to the counties or the Administrative Office of the Courts.
      1. In order to improve the quality of the enhanced list of prospective jurors and to decrease the cost of summoning potential jurors, the Arkansas Crime Information Center and the Administrative Office of the Courts are authorized to provide information to the Secretary of State and the Department of Finance and Administration to identify which voters, licensed drivers, and persons issued identification cards under § 27-16-805 have been convicted of a felony and have not been pardoned.
      2. The Department of Health is authorized to provide information to the Secretary of State and the Department of Finance and Administration in order to identify which voters, licensed drivers, and persons issued identification cards under § 27-16-805 are deceased, have changed names, or have been married or divorced.
    3. The Arkansas Crime Information Center, the Administrative Office of the Courts, and the Department of Health are authorized to provide as much information as they agree is necessary and possible to enable the Secretary of State to compile the most accurate, timely, and complete merged list of voters, licensed drivers, and persons issued identification cards under § 27-16-805, who are citizens of the United States, eighteen (18) years of age or older, are still living, and who have not been convicted of a felony and have not been pardoned.

History. Acts 2003, No. 1404, § 2; 2005, No. 87, § 9.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

16-32-303. Judicial determination of need for expanded list.

  1. The administrative circuit judge for each county shall determine that either the list of registered voters or the enhanced list, but not both, shall be utilized in the selection of all prospective jurors for all circuit court divisions within the county, based upon a consideration of whether the use of registered voters creates a sufficient pool for the selection of jurors to offer an adequate cross section of the community.
  2. If the judge determines that the enhanced prospective juror list, as described in § 16-32-302, should be used by the county, then the judge on or before October 1 shall inform the circuit clerk who shall notify the Secretary of State and the Administrative Office of the Courts that the enhanced list will be requested for the county.

History. Acts 2003, No. 1404, § 3; 2005, No. 87, § 10.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

Case Notes

Enhancement Not Warranted.

In a capital murder case, the trial court did not abuse its discretion by failing to enhance the prospective jury pool because the decision to use a list of registered voters instead of a list of licensed drivers was clearly within the court's discretion pursuant to this section. In addition, the jury venire was randomly selected by a computer program and race was not identified. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92, cert. denied, 552 U.S. 1025, 128 S. Ct. 620, 169 L. Ed. 2d 399 (2007).

16-32-304. List of disqualifications not affected.

This subchapter shall not affect the list of disqualifications from jury service found in § 16-31-102.

History. Acts 2003, No. 1404, § 5[4].

A.C.R.C. Notes. Acts 2003, No. 1404, did not contain a Section 4.

Chapter 33 Examination and Challenge

Research References

ALR.

Statute or court rule prescribing number of challenges according to nature of offense or extent of punishment. 8 A.L.R.4th 149.

Propriety of asking prospective female jurors questions on voir dire not asked of prospective male jurors, or vice versa. 39 A.L.R.4th 450.

Am. Jur. 47 Am. Jur. 2d, Jury, § 195 et seq.

C.J.S. 50 C.J.S., Juries, § 247 et seq.

Subchapter 1 — General Provisions

Effective Dates. Acts 2005, No. 87, § 12: Feb. 8, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the present method of selecting grand jurors and petit jurors is inadequate to permit computerized random selection; that this act will provide for the computerized random selection of jurors; and that until this act becomes effective, the validity of findings and judgments issued by juries selected randomly by computer is subject to question. 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.”

16-33-101. Examination of prospective jurors.

  1. In all cases, both civil and criminal, the court shall examine all prospective jurors under oath upon all matters set forth in the statutes as disqualifications.
  2. Further questions may be asked by the court or by the attorneys in the case, in the discretion of the court.
        1. If a court utilizes prospective juror questionnaires, the questionnaires may request a prospective juror's mailing or residential address or phone number.
        2. However, the address and phone number shall be redacted from the questionnaires before providing completed questionnaires to the attorneys for the parties.
      1. The attorneys for the parties shall be precluded from asking for that information during voir dire.
      2. However, the attorneys or the court may ask a prospective juror his or her city or town of residence.
    1. Except as provided in § 13-4-302, nothing in this section shall preclude the clerk of the court from keeping and maintaining records of potential jurors that contain mailing or residential addresses or phone numbers.

History. Init. Meas. 1936, No. 3, § 16, Acts 1937, p. 1384; Pope's Dig., § 3996; A.S.A. 1947, § 39-226; Acts 2001, No. 210, § 1; 2005, No. 87, § 11; 2007, No. 226, § 3.

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that this section was deemed superseded by the Arkansas Rules of Civil Procedure as to civil cases only.

Amendments. The 2001 amendment added (c).

The 2005 amendment redesignated former (c)(1)(A) as present (c)(1)(A)(i); substituted “may request” for “shall not request” in (c)(1)(A)(i); and added (c)(1)(A)(ii).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

U. Ark. Little Rock L.J.

Sullivan, An Overview of the Law of Jury Selection for Arkansas Criminal Trial Lawyers, 15 U. Ark. Little Rock L.J. 37.

Case Notes

Discretion of Court.

“Discretion of the court,” referred to in this section, does not invest trial court with an arbitrary, all powerful authority to transform discretion into prohibition, nor does it require that in the process of ascertaining the desired facts, counsel must utilize the court as a conduit through which communication must be megaphoned to the jury by way of the dais. Missouri Pac. Transp. Co. v. Johnson, 197 Ark. 1129, 126 S.W.2d 931 (1939); Griffin v. State, 239 Ark. 431, 389 S.W.2d 900 (1965).

Scope of voir dire examination is largely a matter lying within the sound discretion of the trial judge, the latitude of that discretion being rather wide and not subject to reversal in the absence of clear abuse, and this rule has not been materially affected by ARCrP 32.2. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

The scope of voir dire examination by counsel is largely within the sound discretion of the trial court, and counsel's limitation of that examination is not reversible on appeal unless it is a clear abuse of discretion. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979).

The trial court did not abuse its discretion by refusing to allow defendant to strike members of the jury panel in chambers. Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991).

Examination by Litigants.

This section does not change rule giving litigants right to examine jurors separately in order to determine whether jurors are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject to the right of the court, acting in its sound discretion, to control the extent of such examination. Missouri Pac. Transp. Co. v. Johnson, 197 Ark. 1129, 126 S.W.2d 931 (1939); Griffin v. State, 239 Ark. 431, 389 S.W.2d 900 (1965).

There was no error in a felony case whereby prospective jurors were questioned on voir dire and subjected to challenges for cause and peremptory challenges two jurors at a time, as long as the state and the defendant were allowed to examine jurors individually and the state was required to exercise its peremptory challenges first. Chenowith v. State, 291 Ark. 372, 724 S.W.2d 488 (Ark. 1987).

Presumption.

Where the record recited that certain jurors were duly selected, sworn and impaneled as members of the jury, it would be presumed on appeal that they were examined under oath as to whether they were qualified jurors. Wilfong v. State, 96 Ark. 627, 132 S.W. 928 (1910).

Questions.

“Further questions,” referred to in this section, includes any pertinent inquiry, respectfully addressed, through which qualifications may be determined, or by which counsel, regardless of the juror's qualifications, may secure information upon which to predicate peremptory challenge. Missouri Pac. Transp. Co. v. Johnson, 197 Ark. 1129, 126 S.W.2d 931 (1939).

Questions held to be proper. Missouri Pac. Transp. Co. v. Talley, 199 Ark. 835, 136 S.W.2d 688Certiorari or review denied by311 U.S. 722, 61 S. Ct. 5 (1940); Stovall v. State, 233 Ark. 597, 346 S.W.2d 212 (1961); Griffin v. State, 239 Ark. 431, 389 S.W.2d 900 (1965).

Trial court did not err in not permitting defendants to ask again the simple questions that had been answered on a jury questionnaire. Clark v. State, 258 Ark. 490, 527 S.W.2d 619 (1975), overruled, Chenowith v. State, 291 Ark. 372, 724 S.W.2d 488 (Ark. 1987).

Refusal to permit certain questions held not prejudicial. Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976).

Waiver.

Where counsel for defense was aware of failure to swear prospective jurors prior to voir dire examination but made no objection until after trial began, and judgment recited that defense counsel announced in open court that all members of the jury “were good for defendant”, the objection was waived. Edens v. State, 235 Ark. 996, 363 S.W.2d 923 (1963).

Where counsel was offered opportunity to question jurors, but declined, plaintiff was not deprived of any rights under this section. Hogg v. Darden, 237 Ark. 478, 374 S.W.2d 184 (1964).

Cited: Jones v. City of Newport, 29 Ark. App. 42, 780 S.W.2d 338 (1989).

Subchapter 2 — Civil Proceedings

Research References

Ark. L. Rev.

Arkansas Civil Juries, 21 Ark. L. Rev. 527.

16-33-201. Challenge to the array.

A challenge to the array shall be decided by the court.

History. Civil Code, § 345; C. & M. Dig., § 6379; Pope's Dig., § 8341; A.S.A. 1947, § 39-227.

16-33-202. Challenge for cause.

  1. A challenge for cause shall be decided by the court, and, in order to determine the challenge, the particular juror challenged may be sworn, or, at the instance of either party, all of the jurors may be sworn to make true and perfect answers to such questions as may be demanded of them, touching their qualifications as jurors.
  2. The court may allow other testimony in regard to the qualifications of any juror.

History. Civil Code, § 346; C. & M. Dig., § 6380; Pope's Dig., § 8342; A.S.A. 1947, § 39-228.

Case Notes

Examination by Litigants.

Litigants in civil cases, as well as criminal cases, have the right to examine the jurors separately in order to determine whether they are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject to the right of the court to control extent of examination in its sound discretion. Baldwin v. Hunnicutt, 192 Ark. 441, 93 S.W.2d 131 (1936).

Harmless Error.

Error in overruling a challenge of a juror for cause is not prejudicial where the court afterwards allowed the defendant an additional peremptory challenge. Brewer v. State, 72 Ark. 145, 78 S.W. 773 (1904).

Objection.

Objections to the qualifications of jurors must be made before they are sworn and impaneled; it is too late on a motion for a new trial even if the cause for disqualification could not have been discovered earlier. Whitehead v. Wells, 29 Ark. 99 (1874).

Opinion.

A prospective juror is not disqualified if, from reading newspapers, he has formed an opinion as to the guilt or innocence of the accused. Daughtry v. State, 80 Ark. 13, 96 S.W. 748 (1906).

In a criminal case, a juror is not disqualified for cause if he holds to a fixed opinion based on hearsay or rumor, which opinion can be removed by evidence or if he states that he can go into a jury box and disregard such opinions and that he holds no bias or prejudice for or against the accused. St. Louis, I. M. & S. R. Co. v. Stamps, 84 Ark. 241, 104 S.W. 1114 (1907); Jackson v. State, 103 Ark. 21, 145 S.W. 559 (1912).

Jurors held not to have formed disqualifying opinion. McElvain v. State, 101 Ark. 443, 142 S.W. 840 (1911).

Juror held to have formed disqualifying opinion. Collins v. State, 102 Ark. 180, 143 S.W. 1075 (1912).

A juror will not be rendered incompetent because of an opinion based upon rumor where he states that he can discard such opinion and try the defendant upon the evidence. Bealmear v. State, 104 Ark. 616, 150 S.W. 129 (1912).

Jurors are not incompetent by reason of having formed an opinion as to the defendant's guilt or innocence, where that opinion was based on rumor and where the jurors stated that they would disregard such opinions and base their verdict on testimony. Ham v. State, 179 Ark. 20, 13 S.W.2d 805 (1929).

Racial Bias.

Where the questioning allowed regarding racial bias was insufficient to focus the attention of the prospective jurors to any racial prejudice they might entertain, the trial court abused its discretion in restricting voir dire with reference to possible racial bias. Smith v. State, 33 Ark. App. 52, 800 S.W.2d 440 (1990).

16-33-203. Peremptory challenges — Panel.

  1. Each party shall have three (3) peremptory challenges, which may be made orally.
    1. However, if either party desires a panel, the court shall cause the names of twenty-four (24) competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of eighteen (18) shall be drawn and entered on a list in the order in which they were drawn, and numbered.
    2. Each party shall be furnished with a copy of the list, from which each may strike the names of three (3) jurors and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve (12) names remaining on the original list shall constitute the jury.

History. Civil Code, § 347; C. & M. Dig., §§ 6381, 6383, 6384; Pope's Dig., §§ 8343, 8345, 8346; A.S.A. 1947, § 39-229.

Cross References. Peremptory challenge of alternate juror, § 16-30-102.

Research References

U. Ark. Little Rock L.J.

Note, Peremptory Challenges After Purkett v. Elam, 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.

Case Notes

Construction.

Under this section, parties are entitled to have 18 jurors on the list before they are required to exercise the right of peremptory challenge; this requirement is mandatory, and a failure to comply with it is reversible error. Gulf, C. & S.F. Ry. v. James, 48 F. 148 (8th Cir. 1891); Gulf, C. & S.F. Ry. v. Washington, 49 F. 347 (8th Cir. 1891).

This section is mandatory. Young v. Morrison, 159 Ark. 270, 251 S.W. 869 (1923).

Discrimination.

Where there were several black persons on the panel, the state had strikes remaining, and there was no indication of discrimination in the record, the defendant did not show such facts and circumstances to raise the inference that the prosecutor used strikes to exclude the veniremen from the petit jury solely on account of their race. Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986).

Drawing from List.

It was error for the court, in response to claimant's motion for a drawn and struck jury, without subjecting the panel of jurors to challenges for cause and without drawing eighteen names from a list of twenty-four, to call a list of eighteen jurors and direct the parties to challenge peremptorily from that list. Arkansas State Hwy. Comm'n v. Stanley, 237 Ark. 664, 375 S.W.2d 229 (1964).

Examination by Litigants.

Litigants in civil and criminal cases have right to examine the jurors separately in order to determine if they are subject to challenge for cause or to elicit information on which to base a peremptory challenge. Baldwin v. Hunnicutt, 192 Ark. 441, 93 S.W.2d 131 (1936).

Exhaustion of Challenges.

Where appellant had exhausted all of its peremptory challenges under this section, one of which was used to strike the juror in question, it was in a position to complain of any error of the trial court in refusing to strike a juror for cause. Arkansas State Hwy. Comm'n v. Young, 241 Ark. 765, 410 S.W.2d 120 (1967).

Right to peremptory challenges is conferred as a means to reject jurors, not to select jurors, and until such time as a party is forced to take an objectionable juror without the privilege of exercising a peremptory challenge, he has shown no prejudice. Arkansas State Hwy. Comm'n v. Dalrymple, 252 Ark. 771, 480 S.W.2d 955 (1972).

Method of Selection.

Method of selecting jurors and exercising challenges held to be proper. Young v. Morrison, 159 Ark. 270, 251 S.W. 869 (1923); Myers v. Martin, 168 Ark. 1028, 272 S.W. 856 (1925).

Substitution of different juror for one of the first 12 jurors on the list was harmless error. Falcon Zinc Co. v. Flippin, 171 Ark. 1151, 287 S.W. 394 (1926).

Trial court did not abuse its discretion in allowing a drawn jury upon motion of plaintiffs after three names of prospective jurors had been stricken from the list by defendants and the list returned to the clerk, since defendants' challenges were not revealed to anybody. Caldarera v. Giles, 235 Ark. 418, 360 S.W.2d 767 (1962).

Multiple Parties.

In a suit for damages, where several tortfeasors are joined together as co-defendants, they are allowed but three peremptory challenges. Waters-Pierce Oil Co. v. Burrows, 77 Ark. 74, 96 S.W. 336 (1905); Fidelity-Phenix Fire Ins. Co. v. Friedman, 117 Ark. 71, 174 S.W. 215 (1915).

Where causes of action against several defendants were improperly joined, all of the defendants were entitled jointly to the statutory number of challenges. Ft. Smith Light & Traction Co. v. Bailey, 153 Ark. 574, 241 S.W. 42 (1922).

Third-party defendants whose interests are in conflict with the regular defendants in the suit are not entitled to three peremptory challenges in the selection of the jury in addition to the three already allowed the regular defendant. Hogan v. Hill, 229 Ark. 758, 318 S.W.2d 580 (1958).

For the purpose of exercising peremptory challenges the court had some jurisdiction to group the parties. Utley v. Heckinger, 235 Ark. 780, 362 S.W.2d 13 (1962).

The owner of the fee and her lessee were entitled to a total of three peremptory challenges in a condemnation suit brought against them by the Arkansas State Highway Commission. Arkansas State Highway Com. v. Sisson, 238 Ark. 720, 384 S.W.2d 264 (Ark. 1964).

In an action in which the defendants interpleaded additional parties on a third-party complaint, it was not error to require the plaintiffs to share their three peremptory challenges with the primary defendants. Smith v. Goble, 248 Ark. 415, 452 S.W.2d 336 (1970).

Time of Challenge.

It is within the court's discretion to permit the state to challenge jurors peremptorily after they have been examined and accepted as jurors in the case. Carr v. State, 81 Ark. 589, 99 S.W. 831 (1907).

Where the defendant has not exhausted all of his peremptory challenges, the court, in the exercise of its discretion, may permit the state to peremptorily challenge a juror after he has been accepted on the jury. Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914).

Subchapter 3 — Criminal Proceedings

Research References

ALR.

Additional peremptory challenges because of multiple criminal charges. 5 A.L.R.4th 533.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case. 39 A.L.R.4th 465.

Ark. L. Rev.

Criminal Procedure: A Survey of Arkansas Law and the American Bar Association's Standards, 26 Ark. L. Rev. 169.

U. Ark. Little Rock L.J.

Note, Criminal Procedure — Voir Dire — Prosecutors Must Now Show That a Juror is Irrevocably Committed to Voting Against the Maximum Penalty Before Striking For Cause, Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980), 4 U. Ark. Little Rock L.J. 371.

Note, Peremptory Challenges in Felony Prosecutions, 10 U. Ark. Little Rock L.J. 415.

Note, Peremptory Challenges After Purkett v. Elam, 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.

Case Notes

Discretion of Court.

The trial court did not abuse its discretion by refusing to allow defendant to strike members of the jury panel in chambers. Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991).

16-33-301. Challenge to grand juror.

  1. Every person held to answer a criminal charge may object to the competency of anyone summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against the person or that he is a witness on the part of the prosecution and has been summoned or bound in a recognizance as such.
  2. If the objection is established, the person so challenged shall be set aside and another juror summoned.

History. Rev. Stat. ch. 45, § 60; C. & M. Dig., § 3005; Pope's Dig., § 3827; A.S.A. 1947, § 43-902.

Case Notes

Applicability.

This section applies only to those persons held to answer criminal charges which are to be investigated and acted upon by the grand jury, the formation of which they are entitled to challenge, and not to persons who are already indicted but against whom a second indictment is found for the same offense. Hudspeth v. State, 50 Ark. 534, 9 S.W. 1 (1888); Baker v. State, 58 Ark. 513, 25 S.W. 603 (1894).

Grounds.

In a prosecution for arson in burning a hotel, the son-in-law of the hotel owner was not incompetent as a grand juror. Dame v. State, 191 Ark. 1107, 89 S.W.2d 610 (1936).

Challenge to grand juror on ground he had unsuccessfully opposed defendant as a candidate for office was properly overruled. Rice v. State, 204 Ark. 236, 161 S.W.2d 401 (1942).

The practice of allowing jurors to socialize with prosecutors and discuss the intricate interaction that occurs amongst jurors during deliberations, when the panel is still being used and the prosecutor can use such information in its selection of jurors in future cases, is troubling; the state certainly cannot rely upon such secret and undocumented, nebulous hearsay, referred to simply as “information,” as a justification for the exercising of peremptory strikes against a cognizable racial group when the record discloses no other significant nonracial distinctions between the jurors stricken and the jurors accepted. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

Opportunity to Challenge.

One accused of a felony cannot, on appeal, raise the objection that, although in jail, he was not afforded an opportunity to appear and object to the formation of the grand jury if, in his motion to quash the indictment, he did not show that any of the grand jury was disqualified. Eastling v. State, 69 Ark. 189, 62 S.W. 584 (1901).

An indictment will not be quashed on the ground that the accused was confined in jail at the time the grand jury was impaneled and was not given an opportunity to challenge the competency of any member thereof when it does not appear that he was prejudiced thereby or denied the benefit of any statutory right. Threet v. State, 110 Ark. 152, 161 S.W. 139 (1913).

Timeliness of Objection.

A disqualification of a grand juror is good cause for challenge before an indictment is found or of a plea in abatement before the trial, but it is too late to make such objection after verdict. Fenalty v. State, 12 Ark. 630 (1852).

An objection that the name of a member of the grand jury was indorsed on an indictment for burglary as a state witness and that he was cashier of the bank which was burglarized cannot be raised for the first time on appeal by one who, being held to answer a criminal charge, was in the court room when the grand jury was impaneled and was afforded an opportunity to challenge any member of the panel. Edwards v. State, 171 Ark. 778, 286 S.W. 935, 1926 Ark. LEXIS 526 (1926).

16-33-302. Challenge to trial jurors generally.

A challenge is an objection to the trial jurors and is of two (2) kinds:

  1. To the panel;
  2. To the individual juror.

History. Crim. Code, § 199; C. & M. Dig., § 3151; Pope's Dig., § 3986; A.S.A. 1947, § 43-1910.

Research References

U. Ark. Little Rock L.J.

Sullivan, An Overview of the Law of Jury Selection for Arkansas Criminal Trial Lawyers, 15 U. Ark. Little Rock L.J. 37.

Case Notes

Cited: Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973); Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).

16-33-303. Challenge to trial jurors — Individual juror generally.

  1. The challenge to the individual juror is:
    1. For cause;
    2. Peremptory.
  2. The challenge must be taken before he is sworn in chief, but the court, for a good cause, may permit it to be made at any time before the jury is completed.
  3. The challenge to the juror shall first be made by the state and then by the defendant, and the state must exhaust its challenges to each particular juror before the juror is passed to the defendant for challenge or acceptance.

History. Crim. Code, §§ 203, 204, 216; C. & M. Dig., §§ 3153, 3154, 3164; Pope's Dig., §§ 3988, 3989, 4000; A.S.A. 1947, §§ 43-1913, 43-1914, 43-1924.

Case Notes

Challenges.

There was no error in a felony case whereby prospective jurors were questioned on voir dire and subjected to challenges for cause and peremptory challenges two jurors at a time, as long as the state and the defendant were allowed to examine jurors individually and the state was required to exercise its peremptory challenges first. Chenowith v. State, 291 Ark. 372, 724 S.W.2d 488 (Ark. 1987).

Trial court did not abuse its discretion under subsection (b) of this section in refusing to grant defendant's peremptory challenge after a jury had been selected as defendant failed to show good cause for the challenge; defendant's failure to timely strike the juror was due to defendant's counsel relying upon juror numbers, rather than juror names. Scales v. State, 2011 Ark. App. 395 (2011).

Discharge of Sworn Juror.

Court properly discharged a juror related to defendant within the prohibited degree after swearing in. McDaniel v. State, 228 Ark. 1122, 313 S.W.2d 77 (1958).

For Cause.

When a defendant has used all his peremptory challenges before a prospective juror is called, he may only challenge that juror for cause and not peremptorily, and it is reversible error to thereafter hold a biased juror competent. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Where, during voir dire, a prospective juror indicated that there was a possibility that she could not consider sending anyone to the penitentiary for a crime of the type involved, the trial court did not err in excusing the juror for cause. Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982).

Because the trial court (a) failed to make a finding, from all relevant circumstances, as to the sufficiency of the state's gender-neutral explanation, and then (b) failed to conduct a sensitive inquiry into the basis for each of the challenges by the state, the evidence did not establish that the state's challenges were for valid reasons without any gender bias; therefore, the defendant's constitutional rights had not been protected and the trial court's error required a reversal and retrial. Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994).

Prosecutorial Misconduct.

Both in this case and in Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), the prosecutor consistently and systematically excluded African-Americans from participating as jurors through the use of peremptory challenges. Ford v. Lockhart, 861 F. Supp. 1447 (E.D. Ark. 1994), aff'd, Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Standard of Review.

—Racial Discrimination.

A constitutional violation involving the selection of jurors in a racially discriminatory manner is a “structural defect” in the trial mechanism which cannot be subjected to a harmless error analysis. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Time of Challenge.

The refusal of the court to permit the defendant to challenge a juror peremptorily after accepting him is not error if no abuse of discretion is shown. Allen v. State, 70 Ark. 337, 68 S.W. 28 (1902).

In the absence of a showing to the contrary, it is presumed that the challenge was made before the juror was sworn in chief. Daniels v. State, 76 Ark. 84, 88 S.W. 844 (1905).

Court may permit peremptory challenge by state after juror is accepted. Carr v. State, 81 Ark. 589, 99 S.W. 831 (1907).

The right of the state to challenge peremptorily after a juror has been accepted must be exercised before the defendant has exhausted his challenges. Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914). But see Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (Ark. 1959).

It was not prejudicial error to permit the prosecuting attorney to exercise a peremptory challenge on a juror whom he had accepted where the defendants had a peremptory challenge left. Ruloff v. State, 142 Ark. 477, 219 S.W. 781 (1920). But see Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (Ark. 1959).

It is not error to permit the state to interpose peremptory challenges to jurors who have been accepted by both parties even though defendant's challenges have been exhausted, unless it first be shown that the defendant will be prejudiced by the service of the venireman accepted in lieu of the juror excused. Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (Ark. 1959).

Where there were grounds for disqualification of juror but the state reluctantly accepted the juror at first in a good faith attempt to get a jury, and the state's tardy request to strike came after it was apparent that additional prospective jurors had been called, the trial court did not abuse its discretion in permitting the tardy strike. Johnson v. State, 261 Ark. 13, 545 S.W.2d 639 (1977).

This section does not forbid a challenge for cause after a jury is impaneled and sworn. Strickland v. State, 74 Ark. App. 206, 46 S.W.3d 554 (2001).

Waiver of Objection.

Defendant could not object to the alleged bias of juror in original trial in a federal habeas corpus proceeding where counsel had not objected in state court as required by this section. Graham v. Mabry, 645 F.2d 603 (8th Cir. 1981).

Cited: Jeffries v. State, 255 Ark. 501, 501 S.W.2d 600 (1973).

16-33-304. Challenge to trial jurors — Individual juror for cause.

  1. The challenge for cause may be taken either by the state or by the defendant.
  2. It may be general, that the juror is disqualified in serving in any case, or particular, that he is disqualified from serving in the case on trial.
    1. Causes of general challenge are:
      1. A want of the qualifications prescribed by law;
      2. A conviction for a felony;
      3. Unsoundness of mind, or such defect in the faculties of the mind, or organs of the body, as renders him incapable of properly performing the duties of a juror.
    2. Particular causes of challenge are actual and implied bias.
      1. Actual bias is the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court, in the exercise of a sound discretion, that he cannot try the case impartially and without prejudice to the substantial rights of the party challenging.
      2. A challenge for implied bias may be taken in the case of the juror:
        1. Being related by consanguinity, or affinity, or who stands in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, employer and employed on wages, or who is a member of the family of the defendant or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted;
        2. Being adverse to the defendant in a civil suit, or having complained against or being accused by him in a criminal prosecution;
        3. Having served on the grand jury that found the indictment or on the coroner's jury that inquired into the death of the party, whose death is the subject of the indictment;
        4. Having served on a trial jury which has tried another person for the offense charged in the indictment;
        5. Having been one of the former jury sworn to try the same indictment and whose verdict was set aside, or who were discharged without a verdict;
        6. Having served as a juror in a civil action brought against the defendant for the act charged in the indictment;
        7. When the offense is punishable with death, the entertaining of such conscientious opinions as would preclude him from finding the defendant guilty.
  3. An exemption from serving on a jury is not a cause of challenge. Having formed or expressed an opinion merely from rumor shall not be a cause of challenge.

History. Crim. Code §§ 207-212, 218; C. & M. Dig., §§ 3156-3160, 3163; Pope's Dig., §§ 3990-3995, 3999; A.S.A. 1947, §§ 43-1915 — 43-1920, 43-1923.

Case Notes

Constitutionality.

Death-qualification of the jury in capital cases has been and continues to be a constitutional procedure. Jurors who are unalterably opposed to capital punishment should not be permitted to participate in the determination of guilt or innocence in capital cases and their exclusion is proper, for either of two reasons; first, because conviction proneness is neither inherently wrong nor destructive of the juror's impartiality, and second, because a jury system that has served its purpose admirably throughout the nation's history ought not to be twisted out of shape for the benefit of those persons least entitled to special favors. It has always been the law in Arkansas, except when the punishment is mandatory, that the same jurors who have the responsibility for determining guilt or innocence must also shoulder the burden of fixing the punishment; that is as it should be, for the two questions are necessarily interwoven. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, Rector v. Arkansas, 466 U.S. 988, 104 S. Ct. 2370, 80 L. Ed. 2d 842 (1984).

Construction.

This section is construed liberally toward insuring the constitutional right of a defendant to a trial by an impartial jury secured by Ark. Const., Art. 2, § 10. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Implied bias arises by implication of law and is liberally construed in criminal cases. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984), cert. denied, Linell v. Arkansas, 470 U.S. 1062, 105 S. Ct. 1778 (1985).

Actual Bias.

It is within discretion of trial court to determine whether a juror has actual bias, and a judgment will not be reversed unless the court abuses that discretion. Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971).

When actual bias is in question, the qualification of a juror is within the sound discretion of the trial judge because he is in a better position to weigh the demeanor of the prospective juror's response to the questions on voir dire; jurors are assumed to be unbiased and the burden of demonstrating actual bias is on the appellant. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984), cert. denied, Linell v. Arkansas, 470 U.S. 1062, 105 S. Ct. 1778 (1985).

A prospective juror does not have to admit his bias before the trial court may excuse him. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984).

Jurors are presumed unbiased and the burden of proving actual bias is on the party challenging the juror. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984); Blann v. State, 15 Ark. App. 364, 695 S.W.2d 382 (1985).

It was an abuse of discretion for the trial court to qualify a juror who indicated a number of times during the questioning that she was biased, where the defendant used all his peremptory challenges and demonstrated that he would have excused another juror if he'd had another peremptory challenge, thereby properly preserving his record. Bovee v. State, 19 Ark. App. 268, 720 S.W.2d 322 (1986).

—Failure to Disclose.

If a prejudiced juror does sit in the case, it is not grounds for a new trial unless it appears that he imposed himself upon the panel by concealment or prevarication. Colbert v. State, 156 Ark. 98, 245 S.W. 801 (1922).

Where a juror heard the testimony of the prosecuting witness at the examining trial and pronounced it the truth, but failed to disclose that fact on voir dire, he was disqualified as a juror notwithstanding that he testified that he entered the jury box without prejudice nor did it matter that the evidence established the defendant's guilt. Lane v. State, 168 Ark. 528, 270 S.W. 974 (1925).

—Preconceived Opinion.

When a juror admits that he has formed or expressed an opinion as to the guilt or innocence of the prisoner, the law regards him as an unfit person to compose part of such impartial jury as the bill of rights secures to the accused, but the disqualification is removed if he is able to state that such opinion is founded upon rumor in its proper sense and is not such as to bias or prejudice his mind. Meyer v. State, 19 Ark. 156 (1857).

When a juror states upon his voir dire that he has formed and expressed an opinion of the prisoner's guilt, but has no prejudice against him, and is accepted by the prisoner without examination as to his feelings and statements, the prisoner cannot afterward urge after-discovered statements of the juror showing strong bias and belief of his guilt, as a ground for a new trial. Werner v. State, 44 Ark. 122 (1884).

Persons offered as jurors who state upon their voir dire that they have formed an opinion as to the guilt or innocence of the accused which it would take evidence to remove, are incompetent and should be rejected, notwithstanding that they further state that they can give the accused a fair and impartial trial. Polk v. State, 45 Ark. 165 (1885). See Caldwell v. State, 69 Ark. 322, 63 S.W. 59 (1901).

Evidence sufficient to find juror competent. Sneed v. State, 47 Ark. 180, 1 S.W. 68 (1886); Gibson v. State, 135 Ark. 520, 205 S.W. 898 (1918); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

A preconceived opinion about the merits of the case renders a juror prima facie incompetent. Taylor v. State, 72 Ark. 613, 82 S.W. 495 (1904); Bealmear v. State, 104 Ark. 616, 150 S.W. 129 (1912); Davidson v. State, 109 Ark. 450, 160 S.W. 385 (1913); McGough v. State, 113 Ark. 301, 167 S.W. 857 (1914), overruled, Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (Ark. 1959); Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914).

Opinion based upon hearsay or mere rumor or formed from reading newspapers does not disqualify, if the juror can try the case on the evidence only. Sullins v. State, 79 Ark. 127, 95 S.W. 159 (1906); Daughtry v. State, 80 Ark. 13, 96 S.W. 748 (1906); Decker v. State, 85 Ark. 64, 107 S.W. 182 (1908); McElvain v. State, 101 Ark. 443, 142 S.W. 840 (1911).

An opinion formed from talking with witnesses and stating that defendant should be lynched disqualifies. Collins v. State, 102 Ark. 180, 143 S.W. 1075 (1912).

Evidence sufficient to find juror incompetent. Snyder v. State, 151 Ark. 601, 237 S.W. 87 (1922).

Discharge of Sworn Juror.

After the jury was sworn, the court, on discovering that one of the jurors was on the bond of the defendant, discharged the juror; the defendant was not entitled to a release on the ground that he had been in jeopardy. Harris v. State, 177 Ark. 186, 6 S.W.2d 34 (1928).

Where, following selection and swearing in of jury, it was brought to the court's attention that one of the jurors was related to the defendant in the case and the court thereupon discharged the juror, the conclusion drawn by appellant that he had been placed in jeopardy was not tenable nor did the trial court commit reversible error in discharging a juror related to defendant within the prohibited degree. McDaniel v. State, 228 Ark. 1122, 313 S.W.2d 77 (1958).

Where there was no sound reason for discharging the jury and there was certainly no overruling necessity, the effect of declaring a mistrial, in view of the fact that defendant was perfectly willing to have relative of officer retained as juror, was to put the accused in jeopardy and his motion to be discharged because of a former jeopardy should have been granted. Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).

Discrimination.

Prima facie case of purposeful discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, demonstrating total or seriously disproportionate exclusion of Negroes from jury venires, or showing a pattern of strikes, or questions and statements, by a prosecuting attorney during voir dire. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)(But see, Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990)) See also MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

The standard of review for reversal of a trial court's evaluation of the sufficiency of the state's racially neutral explanation of alleged discrimination must test whether the court's findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant's objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. Only if the state's explanation appears insufficient, must the trial court then conduct a sensitive inquiry into the basis for each of the challenges by the state. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Exhaustion of Peremptory Challenges.

When defendant's peremptory challenges are exhausted, it is error to hold a biased juror competent. Snyder v. State, 151 Ark. 601, 237 S.W. 87 (1922).

When a defendant has used all his peremptory challenges before a prospective juror is called, he may only challenge that juror for cause and not peremptorily, and it is reversible error to thereafter hold a biased juror competent. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

A defendant may challenge any error of the trial court in refusing to strike a juror for cause if the record shows that, as a result of refusal to strike, defendant was forced to exercise peremptory challenge and a subsequent juror he objected to was forced upon him because he had exhausted his peremptory challenges. For that rule to be applicable, however, the defendant must not only show that the trial judge abused his discretion in not excusing the first juror for cause, but must also demonstrate from the record that he would have excused the subsequent juror had he been able to peremptorily challenge him. Miller v. State, 8 Ark. App. 165, 649 S.W.2d 407, 1983 Ark. App. LEXIS 806 (1983).

Failure to Challenge Juror.

Inmate's trial counsel was not ineffective for failing to challenge a juror for cause, and therefore the inmate's motion for relief under Ark. R. Crim. P. 37 was properly denied, because counsel testified that he did not believe he could prevail on such a challenge. While the juror seemed to favor the death penalty, she also replied affirmatively that she could consider the full range of punishment, that she would consider mitigating circumstances and weigh them against aggravating circumstances, and that she would have to listen to the evidence to make a decision. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007).

Former Police Officer.

The trial court in a criminal prosecution did not commit prejudicial error by failing to excuse for cause a venireman, where the defendant peremptorily excused this venireman and the record reflected that no objectionable juror was forced upon the defendant without his having the privilege of exercising a peremptory challenge. Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982).

Illness.

It was not error to excuse a juror, after he had been accepted by both sides, where the juror stated that he was subject to spells and liable to be sick if confined with the jury. Caughron v. State, 99 Ark. 462, 139 S.W. 315 (1911).

Implied Bias.

The mere fact that a proposed juror ran a boat for the parties that searched for the body of the deceased does not disqualify him. Coats v. State, 101 Ark. 51, 141 S.W. 197 (1911).

Circumstances held not to warrant disqualification of juror. Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Jones v. State, 264 Ark. 935, 576 S.W.2d 198, 1979 Ark. LEXIS 1282 (1979); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980); Moss v. Lockhart, 971 F.2d 77 (8th Cir. 1992).

Circumstances held to warrant disqualification of juror. Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983); Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984).

The question of a juror's qualification lies within the sound judicial discretion of the trial judge and defendant has the burden of showing the prospective juror's disqualification on grounds of implied bias. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Where one juror said that her husband and son had been represented by the prosecuting attorney in a property matter, and another said the prosecutor had represented her adult daughter two years earlier, the trial judge did not abuse his discretion in denying the challenges for cause, for the jurors did not appear to be biased. Bliss v. State, 288 Ark. 546, 708 S.W.2d 74 (Ark. 1986).

Trial court has discretion to excuse a juror for implied bias, even if the bias does not clearly fall within one of the categories provided under subdivision (b)(2)(B), as it would be impossible for the statute to cover every conceivable circumstance touching on a juror's possible bias; therefore, where defendant was charged with evasion of use taxes, the trial court did not abuse its discretion in excusing for cause two prospective jurors who had been delinquent in paying personal property taxes even though subdivision (b)(2)(B) did not include that particular form of implied bias. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).

Court did not abuse its discretion in denying defendant's request to remove a juror and replace the juror with an alternate when midtrial, the juror informed the trial court that the juror belatedly realized that the juror attended church with the mother of one of the victims; the juror gave the trial court and counsel an opportunity to openly address the matter, defense counsel failed to ask any questions of the juror that would demonstrate the trial court abused its discretion, and no one questioned the juror about the meaning of the juror's statement that the juror did not want the case to “get thrown out or something” in the future, so the juror's response could not demonstrate prejudice. Childs v. State, 2010 Ark. App. 675 (2010).

—Capital Punishment.

It was not error, in a capital case, to permit the prosecuting attorney to challenge a juror peremptorily, after he had been accepted but before the jury was complete, where the juror informed the court that he had conscientious scruples against capital punishment. Brewer v. State, 72 Ark. 145, 78 S.W. 773 (1904).

Where several veniremen on their voir dire stated that they would not return a verdict on circumstantial evidence and assess the death penalty, but would return a verdict on such evidence and assess life imprisonment, and the prosecuting attorney announced that he would waive the infliction of the death penalty, the selection of those veniremen as jurors was not prejudicial to the defendant. Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918).

It was proper for prosecutor to ask prospective juror if he had any scruples against death penalty, even though statute provided for either death penalty or life imprisonment. Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949).

Trial court did not err in refusing to allow defense attorney in prosecution for rape to ask a prospective juror if he would feel obligated to impose death penalty rather than life imprisonment upon finding of guilty, as there is no statutory recognition of implied bias in favor of capital punishment; hence, court had the right to exercise its discretion. Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949).

Where qualification of jury on the death penalty was done in accordance with this section, there was no error. Baxter v. State, 225 Ark. 239, 281 S.W.2d 931 (Ark. 1955).

Since this section, which recognizes implied bias when a juror entertains such conscientious opinions as would preclude him from finding the defendant guilty of an offense punishable by death, necessarily shifts the implied bias from the mere finding of guilt to the imposition of the death penalty because the legislature gave the jury the option of imposing life imprisonment in all capital cases, it was not error not to examine the veniremen to determine whether they could even find the defendant guilty. Miller v. State, 273 Ark. 508, 621 S.W.2d 482, 1981 Ark. LEXIS 1399 (1981).

The removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors who state that they cannot under any circumstances vote for the imposition of the death penalty does not violate a defendant's right under the Sixth and Fourteenth Amendments of the United States Constitution to have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758 (1986).

Since Arkansas recognizes the death penalty, jurors in a capital murder case must be able to consider imposing a death sentence if they are to perform their function as jurors; the trial court correctly decided that those excused jurors could not perform their duties because they could not consider imposing a death sentence. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

A state may not carry out a sentence of death imposed by a jury which was selected by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed religious or conscientious scruples against its infliction; the most that can be demanded of a prospective juror is that he or she be willing to consider all of the penalties provided by state law, and that he or she not be irrevocably committed before the trial has begun to vote against the death penalty regardless of the facts and circumstances that might emerge. Orndorff v. Lockhart, 707 F. Supp. 1062 (E.D. Ark. 1988), aff'd in part, vac'd in part, 906 F.2d 1230 (8th Cir. Ark. 1990).

—Employer and Employee.

Employees of victimized corporation were biased by implication and should not have been allowed to sit on jury where defendant was charged with arson of property which belonged to the corporation and defendant had exhausted all of his peremptory challenges. Byrd v. State, 251 Ark. 149, 471 S.W.2d 350 (1971).

—Landlord and Tenant.

Where a juror testified that she was not the landlord of either of the defendants and that she did not rent from either of them, there was no merit to the contention that the juror was disqualified as being landlord of one of the appellees. Crouch v. Richards, 212 Ark. 980, 208 S.W.2d 460 (1948).

—Maximum Penalty.

Where, on voir dire, after stating the minimum and maximum penalties for the crimes charged, the prosecutor asked the prospective jurors whether they would consider the maximum penalty, the trial court properly allowed the inquiry, because the jurors were really only asked whether they would consider all the penalties provided by law. Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982).

Where a prospective juror was irrevocably committed to voting against the possible maximum penalties, regardless of the facts and circumstances that might have ensued in the course of the trial, the trial court did not err in excusing the venireman for cause. Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982).

—Prior Service.

It was prejudicial error for the trial court to require the defendant to peremptorily challenge a venireman who served on the grand jury which indicted the defendant where, before the jury was completed, the defendant exhausted all his peremptory challenges. Holman v. State, 115 Ark. 305, 171 S.W. 107 (1914).

Where some jurors in defendant's prosecution had previously sat on juries which convicted different defendants for the same offense based on the testimony of the same prosecuting witness who testified against defendant, this section did not apply, and thus the trial court did not abuse its discretion in refusing to disqualify the jurors for cause on the grounds that the jurors had prejudged the credibility of the prosecuting witness. Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976); Pickens v. State, 260 Ark. 633, 542 S.W.2d 764 (1976).

The plain language of subdivision (b)(2)(B)(iv) of this section permits persons accused of a crime the right to exclude all jurors who have served as jurors in the trial of a co-defendant; the right need not be extended to exclude potential jurors who had not actually served as a juror in a prior trial involving the same offense. McClendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994); Goins v. State, 319 Ark. 689, 890 S.W.2d 602 (1995).

—Relationship.

Juror was not disqualified by fact that his son had married a member of a family into which member of prosecuting witness' family had also married, since there was no relation of affinity between juror and prosecuting witness or any member of her family, and denial of new trial on ground of juror's failure to disclose the above relation was not abuse of discretion. Thornsberry v. State, 192 Ark. 435, 92 S.W.2d 203 (1936).

In prosecution for destroying school building by means of dynamite, juror, who was brother-in-law of fire chief whose city-owned car was dynamited on the same night as the school building, was not disqualified under this section because fire chief suffered no property damage and was not a witness during the trial. Lauderdale v. State, 233 Ark. 96, 343 S.W.2d 422 (1961).

A juror was properly excused by the court after being accepted by both prosecution and defense when it was learned that he was a cousin to a secretary of the prosecuting attorney, since the judge has the discretion to excuse a juror even where the issue of bias may be more implied than actual and even though the situation does not clearly fall within this section or § 16-31-102, since it would be impossible for the statutes to cover every conceivable circumstance touching on a juror's possible bias. Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), cert. denied, Ruiz v. Arkansas, 454 U.S. 1093, 102 S. Ct. 659 (1981).

The trial court did not err when it denied the defendant's challenge of a juror for cause based on an alleged family relationship between the prosecutor's wife and the juror, where the evidence showed that the relationship between the juror and the deputy prosecuting attorney's wife was one merely of affinity, so distantly removed that the juror was not certain of its degree and could only guess that they were third cousins. Miller v. State, 8 Ark. App. 165, 649 S.W.2d 407, 1983 Ark. App. LEXIS 806 (1983).

The trial court did not err in refusing to grant a mistrial when, after the trial had commenced, a juror told the trial judge that he knew the prosecutrix where the juror stated that the prosecutrix had spoken to him during the lunch hour, that, after reflection, he had recalled meeting her three or four years earlier when he repaired a typewriter at the bank where she worked, that he had not seen her since that time, and that he could be a fair and impartial juror. Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986).

Juror Improperly Excused.

Because the trial court (a) failed to make a finding, from all relevant circumstances, as to the sufficiency of the state's gender-neutral explanation, and then (b) failed to conduct a sensitive inquiry into the basis for each of the challenges by the state, the evidence did not establish that the state's challenges were for valid reasons without any gender bias; therefore, the defendant's constitutional rights had not been protected and the trial court's error required a reversal and retrial. Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994).

Juror Properly Excused.

Trial court did not abuse discretion in excusing venireperson, acquaintance of defendant's daughter, for cause. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992).

Preserving Issue.

Defendant objected to seating a juror during voir dire and requested that the trial court dismiss her for cause, such that the point was preserved for review; case law does not support the argument that a party must make an additional objection at the conclusion of voir dire. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764 (2009), cert. denied, 559 U.S. 1021, 130 S. Ct. 1922, 176 L. Ed. 2d 392 (2010).

Refusal to Strike.

Petitioner was not denied his right to an impartial jury by the trial court's refusal to strike for cause a venireman whose mother had already been empaneled as a juror. The Arkansas trial and appellate courts found that the juror manifested no bias. Moss v. Lockhart, 971 F.2d 77 (8th Cir. 1992).

Once it was revealed that the juror knew the robbery victim's father through a golfing club and business matters, the trial court appropriately inquired as to the juror's ability to be fair and unbiased, and also allowed defense counsel and the prosecuting attorney to ask the juror questions; because the juror could set aside the his knowledge of the parties, decide the case on the facts, and abide by the law as given by the court, there was no for-cause basis to exclude the juror under this section. Miller v. State, 81 Ark. App. 337, 101 S.W.3d 860 (2003).

Juror did not evidence any specific bias against defendant, nor did she express any opinion concerning defendant's guilt and defendant failed to overcome the presumption of impartiality accorded the juror, nor had defendant shown actual prejudice resulting from the trial court's refusal to strike her from the jury for cause. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764 (2009), cert. denied, 559 U.S. 1021, 130 S. Ct. 1922, 176 L. Ed. 2d 392 (2010).

Trial court did not err in refusing to strike a juror for actual bias; although the juror initially equivocated about whether he could presume the innocence of defendant, when questioned by the trial judge, he agreed that he could in fact make a presumption of innocence in the case. Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744 (2009).

Trial court did not err in refusing to strike a juror for actual bias because the juror, when questioned by the trial judge, made clear that he could follow the law, put aside what he had seen about the case outside the courtroom, and judge the prosecution's case on its own merits. Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744 (2009).

Silence of Juror.

Defendant failed to raise an issue of actual or implied bias, where his sole contention was that he was effectively denied the right to challenge the juror, either for cause or peremptorily, because of the juror's silence in response to the question whether he knew the defendant. Sims v. State, 266 Ark. 922, 587 S.W.2d 604 (Ct. App. 1979).

Standard.

The proper standard to be used in releasing a juror is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

Statement of Impartiality.

While a venireman is generally impartial when he states that he can put aside any preconceived opinions and give the accused the benefit of all doubts that the law requires, it is not an automatic cure-all for opinions, relationships or information that could disqualify one; some opinions and relationships cannot be overcome by a mere recitation by the prospective jurors that they will set aside objectionable factors. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983).

Cited: Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974); Kirk v. State, 270 Ark. 983, 606 S.W.2d 755 (1980); Hulsey v. Sargent, 821 F.2d 469 (8th Cir. 1987); Noel v. State, 28 Ark. App. 158, 771 S.W.2d 325 (1989); Threlkeld v. Worsham, 30 Ark. App. 251, 785 S.W.2d 249 (1990); National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 132 (1990).

16-33-305. Challenge to trial jurors — Individual juror — Peremptory.

  1. The state shall be entitled to ten (10) peremptory challenges in prosecutions for capital murder, to six (6) peremptory challenges in prosecutions for all other felonies, and to three (3) peremptory challenges in prosecutions for misdemeanors.
  2. The defendant shall be entitled to twelve (12) peremptory challenges in prosecutions for capital murder, to eight (8) peremptory challenges in prosecutions for all other felonies, and to three (3) peremptory challenges in prosecutions for misdemeanors.

History. Init. Meas. 1936, No. 3, §§ 17, 18, Acts 1937, p. 1384; Pope's Dig., §§ 3997, 3998; Acts 1981, No. 115, § 1; A.S.A. 1947, §§ 43-1921, 43-1922.

Case Notes

In General.

There is no constitutional right to peremptory challenges. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

Although defendant was entitled to eight peremptory charges and the trial court erred by not requiring the state to prove purposeful discrimination after defendant gave race neutral reasons for the strikes, defendant's conviction was affirmed due to his failure to mount proper arguments on appeal. Childs v. State, 95 Ark. App. 343, 237 S.W.3d 116 (2006).

Defendant's argument that the trial court erred in denying defendant additional peremptory challenges was moot because defendant did not use all of the challenges he was allotted by statute. Tarver v. State, 2018 Ark. 202, 547 S.W.3d 689 (2018).

Burden of Proof.

In order to establish an equal protection violation, a defendant must establish a prima facie case of purposeful discrimination in the selection of the jury panel by showing that the prosecutor exercised peremptory challenges to remove members of a cognizable racial group from the venire, and that the facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race; after a defendant establishes a prima facie case, the burden shifts to the government to articulate a neutral explanation related to the particular case to be tried. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

The mere articulation of a nondiscriminatory reason is not always sufficient for establishing a lack of purposeful discrimination; the court should look at all relevant circumstances to determine if the articulated reason is pretextual. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

Challenge Precluded.

In a driving while intoxicated case, appellant was unable to challenge the jurors on the basis of bias because appellant did not object at the end of the selection process, and there was no evidence that appellant was forced to accept a juror after having exhausted her three peremptory challenges. Carruth v. State, 2012 Ark. App. 305 (2012), modified, 2012 Ark. App. 305 (2012).

Challenges for Cause.

Where the defendant claimed that he was forced to exercise two of his peremptory challenges to exclude two jurors who should have been excluded for cause, but he made no such record at the close of the jury voir dire, the defendant did not present any possible basis for finding two other jurors that the defendant was forced to accept to have been objectionable. Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986).

Discrimination.

Prima facie case of purposeful discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, demonstrating total or seriously disproportionate exclusion of Negroes from jury venires, or showing a pattern of strikes, or questions and statements, by a prosecuting attorney during voir dire. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)(But see Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990)) See also MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Where all of state's peremptory challenges were used to exclude black people and state's explanation was unsatisfactory, state was found to have intentionally used its peremptory challenges to keep black people from the jury. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). (But see Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990)) See also MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

The presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is of some significance. Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

Where black jurors were seated on the jury, the prosecutor still had peremptory challenges remaining, and number of black persons serving on the jury was greater than the number struck by the prosecutor, defendant failed to establish a prima facie case of discrimination. Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

Upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. Only if the state's explanation appears insufficient, must the trial court then conduct a sensitive inquiry into the basis for each of the challenges by the state. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

The standard of review for reversal of a trial court's evaluation of the sufficiency of the state's racially neutral explanation of alleged discrimination must test whether the court's findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant's objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Both in this case and in Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), the prosecutor consistently and systematically excluded African-Americans from participating as jurors through the use of peremptory challenges. Ford v. Lockhart, 861 F. Supp. 1447 (E.D. Ark. 1994), aff'd, Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

The Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude otherwise qualified persons from the petit jury solely on account of their race. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

Habeas corpus petitioner established, at his state trial, a prima facie case of purposeful racial discrimination in the jury selection process and established that the state failed to articulate a believable neutral explanation for its strikes, thus violating petitioner's rights under the Equal Protection Clause. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

In defendant's trial for capital murder, the trial court erred in sustaining the State's Batson objection, where the State argued that defendant was using his peremptory challenges to strike jurors solely on the basis of race, because the State did not prove purposeful discriminatory intent, and because defendant offered race-neutral grounds for potential prejudice by those jurors; the trial court also erred in forcing defendant to accept at least one juror that should have been excused for cause. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003).

—Standard of Review.

A constitutional violation involving the selection of jurors in a racially discriminatory manner is a “structural defect” in the trial mechanism which cannot be subjected to a harmless error analysis. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Examination.

There was no error in a felony case whereby prospective jurors were questioned voir dire and subjected to challenges for cause and peremptory challenges two jurors at a time, as long as the state and the defendant were allowed to examine jurors individually and the state was required to exercise its peremptory challenges first. Chenowith v. State, 291 Ark. 372, 724 S.W.2d 488 (Ark. 1987).

The practice of allowing jurors to socialize with prosecutors and discuss the intricate interaction that occurs amongst jurors during deliberations, when the panel is still being used and the prosecutor can use such information in its selection of jurors in future cases, is troubling; the state certainly cannot rely upon such secret and undocumented, nebulous hearsay, referred to simply as “information,” as a justification for the exercising of peremptory strikes against a cognizable racial group when the record discloses no other significant nonracial distinctions between the jurors stricken and the jurors accepted. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

Explanation Unnecessary.

Where jurors were not excused for cause by the court but were peremptorily stricken by the state, no explanation was necessary as to why a potential juror was being excused. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

No stated reason is necessary in exercising peremptory challenges. Grigsby v. Mabry, 758 F.2d 226 (8th Cir. Ark. 1985).

Joinder.

The appellant, although jointly indicted for homicide with other defendants, had the right, upon request, to a separate trial, in which event he would have been individually entitled to exercise the right to allotted number of peremptory challenges in selecting a jury; but not having asked to sever, and having consented to a joint trial, the defense only had the right to exercise the statutory number of challenges without regard to the number of persons on trial as defendants. Hearne v. State, 121 Ark. 460, 181 S.W. 291 (1915) (decision under prior law).

Number of Challenges.

Where the accused, before the arraignment, had exercised some of his challenges, he was entitled thereafter only to the number of additional challenges necessary to make up the quota of challenges allowed to him by statute. Herring v. State, 170 Ark. 352, 280 S.W. 353 (1926) (decision under prior law).

Defendant charged with capital offense was entitled to number of challenges allotted for capital offenses even though the state waived the death penalty. Tillman v. State, 251 Ark. 896, 475 S.W.2d 529 (1972) (decision prior to 1981 amendment).

Trial judge may not increase the number of peremptory challenges in a noncapitol felony case beyond the eight allowed under subsection (b). Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989).

When more than one defendant is being tried for capital murder, the number of peremptory challenges allotted to a side remains at twelve. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

In an assault case, defendant preserved a jury selection error relating to the number of peremptory challenges under this section and the Sixth Amendment because the basis of defendant's motion was clear from the context and the arguments presented; however, no reversal or mistrial was requried because defendant failed to raise an objection until after the trial had started, and there was no prejudice because the objectionable jurors did not participate in the verdict. Smith v. State, 90 Ark. App. 261, 205 S.W.3d 173 (2005).

Cited: O'Neal v. State, 195 Ark. 357, 112 S.W.2d 615 (1938); Bowen v. State, 205 Ark. 380, 168 S.W.2d 836 (1943); Washington v. State, 213 Ark. 218, 210 S.W.2d 307; Edens v. State, 235 Ark. 178, 359 S.W.2d 432 (1962); Trotter v. State, 237 Ark. 820, 377 S.W.2d 14 (1964); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Brown v. State, 239 Ark. 909, 395 S.W.2d 344, 1965 Ark. LEXIS 1108 (1965); Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982); Miller v. State, 8 Ark. App. 165, 649 S.W.2d 407, 1983 Ark. App. LEXIS 806 (1983); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).

16-33-306. Challenge to trial jurors — Order.

The challenges of either party need not be all taken together, but may be taken separately, in the following order:

  1. To the panel;
  2. To the individual juror for general disqualification;
  3. To the individual juror for implied bias;
  4. To the individual juror for actual bias;
  5. Peremptory.

History. Crim. Code, § 217, C. & M. Dig., § 3165; Pope's Dig., § 4001; A.S.A. 1947, § 43-1925.

16-33-307. Challenge to trial jurors — Several defendants.

When several defendants are tried together, the challenge of any one (1) of the defendants shall be the challenge of all.

History. Crim. Code, § 200, C. & M. Dig., § 3169; Pope's Dig., § 4005; A.S.A. 1947, § 43-1929.

Case Notes

In General.

There is no constitutional right to peremptory challenges. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

Equal Protection.

The limitation of four defendants to a total of 12 peremptory challenges in the joint proceeding did not deny equal protection of the laws under the Fourteenth Amendment. Orndorff v. Lockhart, 707 F. Supp. 1062 (E.D. Ark. 1988), aff'd in part, vac'd in part, 906 F.2d 1230 (8th Cir. Ark. 1990).

The fact that, had defendants been tried separately, each would have been entitled to twelve peremptory challenges, and the fact that they were limited to a total of twelve in the joint proceeding, did not deny them equal protection of the laws under the Fourteenth Amendment. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

Number of Challenges.

Defendants jointly charged with manslaughter were entitled to a total of eight challenges, not eight challenges for each defendant. Lewis v. State, 220 Ark. 914, 251 S.W.2d 490 (1952), superseded by statute as stated in, Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993).

Where two defendants were being tried jointly for first-degree battery, they were entitled to only eight peremptory challenges as a pair, not eight challenges each. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1980).

When more than one defendant is being tried for capital murder, the number of peremptory challenges allotted to a side remains at twelve. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

16-33-308. Challenge to trial jurors — Hearing.

  1. Challenges shall be tried and determined by the court in a summary manner, without the issues of law or of fact arising thereon being reduced to writing.
  2. The juror himself may be examined on oath by either party upon challenge.
  3. Other witnesses may also be examined and their attendance coerced.

History. Crim. Code, §§ 213-215; C. & M. Dig., §§ 3166-3168; Pope's Dig., §§ 4002-4004; A.S.A. 1947, §§ 43-1926 — 43-1928.

Chapter 34 Fees and Expenses

Cross References. Deduction of jury fees from salary of public employee prohibited, § 21-5-104.

Effective Dates. Acts 1911, No. 89, § 6: effective on passage.

Acts 1917, No. 352, § 2: approved Mar. 24, 1917. Emergency declared.

Acts 1953, No. 46, § 5: Feb. 9, 1953. Emergency clause provided: “Whereas it has been ascertained by the Arkansas general assembly that the rate per day being paid for jury service is wholly inadequate thereby forcing the jurors to serve at a financial loss, and there is urgent need for remedying this inequity which will be solved by the enactment of this bill. 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.”

16-34-101, 16-34-102. [Repealed.]

Publisher's Notes. These sections, concerning exceptions and compensation and reimbursement of jurors generally, were repealed by Acts 2007, No. 1033, § 1. The sections were derived from the following sources:

16-34-101. Acts 1911, No. 89, § 5; 1917, No. 352, § 1; C. & M. Dig., § 4610; Pope's Dig., § 5699; A.S.A. 1947, § 39-306.

16-34-102. Acts 1911, No. 89, §§ 1, 4; C. & M. Dig., §§ 4605, 4606, 4609; Pope's Dig., §§ 5694, 5695, 5698; A.S.A. 1947, §§ 39-302, 39-305.

16-34-103. Per diem compensation for jurors and prospective jurors.

  1. Any person who receives official notice that he or she has been selected as a prospective juror or who is chosen as a juror is eligible to receive per diem compensation for service if:
    1. The person actually appears at the location to which the juror or prospective juror was summoned; and
    2. The person's appearance is duly noted by the circuit clerk.
    1. The per diem compensation payable to any person who is eligible for payment under subsection (a) of this section and who is selected and seated to serve as a member of a grand jury or petit jury is fifty dollars ($50.00) per day.
    2. Any person who is eligible for payment under subsection (a) of this section and who is excused or otherwise not selected and seated as a member of a grand jury or petit jury shall be provided per diem compensation of not less than fifteen dollars ($15.00) as established by ordinance of the county quorum court.

History. Acts 1953, No. 46, § 2; 1977, No. 320, § 1; A.S.A. 1947, § 39-301; Acts 1999, No. 629, § 1; 2007, No. 1033, § 2.

Amendments. The 1999 amendment substituted “a minimum of fifteen dollars ($15.00)” for “five dollars ($5.00)” in (2); substituted “a minimum fee of thirty-five dollars ($35.00)” for “a maximum fee of twenty dollars ($20.00), subject to the approval of the quorum court” in (3); and made stylistic changes.

16-34-104. Mileage reimbursement for jurors.

In the event and to the extent that a county quorum court adopts by ordinance a policy for reimbursement of mileage costs for jurors, any person who is eligible to receive per diem compensation under § 16-34-103 and whose primary place of residence is outside the city limits of the city where the court that summoned the juror or prospective juror is located may receive, in addition to the per diem compensation, a mileage reimbursement payment for mileage from and to his or her home by the most direct and practicable route at the rate prescribed by the county.

History. Acts 1911, No. 89, § 2; C. & M. Dig., § 4607; Pope's Dig., § 5696; Acts 1983, No. 169, § 2; A.S.A. 1947, § 39-303; Acts 2007, No. 1033, § 3.

16-34-105. [Repealed.]

Publisher's Notes. This section, concerning an account for mileage for jurors, was repealed by Acts 2007, No. 1033, § 4. The section was derived from Acts 1911, No. 89, § 3; C. & M. Dig., § 4608; Pope's Dig., § 5697; A.S.A. 1947, § 39-304.

16-34-106. Payment by county — Reimbursement by state.

  1. The per diem compensation under § 16-34-103 shall be paid promptly to each juror or prospective juror by a county from funds appropriated for that purpose by the quorum court.
      1. The state shall reimburse a county for a portion of the costs incurred for a payment under § 16-34-103(b)(1) if the county makes a request under subdivision (b)(3) of this section.
        1. If funds are available, the state shall reimburse a county for the cost of a prospective juror orientation for a juror eligible for payment under § 16-34-103(b)(2) up to fifteen dollars ($15.00) if the county makes a request under subdivision (b)(3) of this section.
        2. The reimbursement under this subdivision (b)(1)(B) shall not exceed the minimum per diem compensation under § 16-34-103(b)(2).
    1. The Administrative Office of the Courts shall administer the state reimbursement to a county under subdivision (b)(1) of this section.
    2. A county may request reimbursement for costs incurred for a payment under § 16-34-103(b)(1) or § 16-34-103(b)(2) on a quarterly basis as follows:
      1. On or before May 1 of each year for costs incurred between January 1 and March 31 of that year;
      2. On or before August 1 of each year for costs incurred between April 1 and June 30 of that year;
      3. On or before December 1 of each year for costs incurred between July 1 and September 30 of that year; and
      4. On or before February 1 of each year for costs incurred between October 1 and December 31 of the prior year.
    3. The Administrative Office of the Courts shall consult with Arkansas Legislative Audit and shall prescribe the information that shall be documented and certified by a county in order to receive reimbursement under subdivision (b)(1) of this section.

History. Acts 2007, No. 1033, § 5; 2017, No. 276, § 1.

Amendments. The 2017 amendment redesignated former (b)(1) as (b)(1)(A); added (b)(1)(B); and inserted “or § 16-34-103(b)(2)” in (b)(3).

Chapters 35-39 [Reserved.]

[Reserved]

Subtitle 4. Evidence And Witnesses

Chapter 40 General Provisions

Cross References. Admissibility of evidence and competency of witnesses in impeachment trials, § 21-12-206.

Evidence in military courts and tribunals, § 12-64-508.

Variance between pleading and proof, § 16-63-214.

Research References

Am. Jur. 29 Am. Jur. 2d, Evid., § 1 et seq.

81 Am. Jur. 2d, Witnesses, § 75 et seq.

C.J.S. 31 C.J.S., Evid., § 1 et seq.

97 C.J.S., Witnesses, § 315 et seq.

16-40-101. Burden of proof.

  1. The party holding the affirmative of an issue must produce the evidence to prove it.
  2. The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side.

History. Civil Code, §§ 578, 579; C. & M. Dig., §§ 4112, 4113; Pope's Dig., §§ 5121, 5122; A.S.A. 1947, §§ 28-101, 28-102.

Cross References. Burden of proof, § 16-55-215.

Research References

Ark. L. Rev.

Evidence — Civil Procedure — Burden of Proof on Issue of Statute of Limitations, 4 Ark. L. Rev. 484.

Judicial Regulation of Procedure, 9 Ark. L. Rev. 146.

Case Notes

Conveyance.

In a suit to set aside an absolute conveyance, plaintiff claiming that it was the conveyance of his equity of redemption under a mortgage previously executed, a prima facie case is made by showing that it was an extinguishment of such equity, then the burden shifts to defendant to show that such a conveyance was free from fraud, oppression or undue influence. Green v. Gilbert, 169 Ark. 537, 276 S.W. 8 (1925).

Deceit.

In a suit for deceit brought to recover money alleged to have been secured by fraud the burden of proof is on the plaintiff as he is “the party who would be defeated if no evidence were given on either side.” Looney v. Potts, 163 Ark. 310, 260 S.W. 23 (1924).

Election Contest.

Even though the proof connected the contestees with the spoilation of the poll books, this would not have relieved the contestants of the burden of proving the allegations of their petition that the election returns were fraudulent and void. Webb v. Bowden, 124 Ark. 244, 187 S.W. 461 (1916).

Foreclosure.

Where the plaintiffs bring an action in chancery to restrain the foreclosure of a mortgage executed by their deceased parents, which mortgage is barred on its face by the statute of limitations, the burden is upon the plaintiffs to allege and prove facts sufficient to justify the court in granting the relief prayed. Culberhouse v. Hawthorne, 107 Ark. 462, 156 S.W. 421 (1913).

Where a trial court heard the testimony of two conflicting expert opinions and decided that both experts were credible, it did not err when it placed the burden of proof upon contractors to show that their improvements increased the value of a property that had gone into foreclosure. Del Mack Constr., Inc. v. Owens, 82 Ark. App. 415, 118 S.W.3d 581 (2003).

Insanity.

In a suit to cancel a deed and a mortgage on the ground of insanity, where the prima facie case made by showing that the plaintiff had been adjudged insane was overcome by the agreed statement of facts, the burden was on plaintiff to show insanity. Field v. Koonce, 178 Ark. 862, 12 S.W.2d 772, 68 A.L.R. 1303 (1929).

Insurance.

Where a life insurance policy made payable to a bank as its interest may appear is, on the death of the insured, paid to the bank, an action brought by the deceased's administrator to recover on the policy alleging that deceased owed nothing at the time of his death and that payment to the bank was made in bad faith placed the burden on the administrator to prove these allegations by a preponderance of the evidence. Shelby v. Union Life Ins. Co., 177 Ark. 737, 7 S.W.2d 778 (1928).

Notes.

Where defendants, to whom widow had advanced money to pay note of her deceased husband under an agreement that they would probate and assign the claim to her, failed to do so, though admitting the agreement, the burden was on defendants. Pearson v. Humphreys, 170 Ark. 827, 281 S.W. 388 (1926).

In an action on a note given for corporate stock, where the defense is that the stock was sold in violation of the Blue Sky Law, the defendant has the burden of proof, entitling him to open and close the the argument. Kempner v. Stephens, 186 Ark. 877, 56 S.W.2d 580 (1933).

In action on foreign judgment on a note defended on ground note was a forgery, refusal to permit defendant's counsel to open and close the argument to the jury was proper, since plaintiff had burden to prove genuineness of note, execution of which had been denied under oath; defendant had burden to prove affirmative plea that note was a forgery, but the burden on the whole was on plaintiff. Motsinger v. Walker, 205 Ark. 236, 168 S.W.2d 385 (1943).

Personal Injury.

In an action for damages for personal injuries, the burden is upon the plaintiff to show the fact of the injury by the operation of the causative factor and the damages resulting therefrom. Huckaby v. St. Louis, Iron Mountain & S. Ry., 119 Ark. 179, 177 S.W. 923 (1915).

Statute of Limitations.

Whenever the bar of the statute of limitations does not appear from the pleadings and evidence on behalf of the plaintiff, the burden of proof is upon the defendant, who pleads the statute as a defense, to establish its application to bring him within its terms. Alston v. Bitely, 252 Ark. 79, 477 S.W.2d 446 (1972).

Warranty.

It is necessary for the buyer of a chattel to allege and prove, as a condition precedent to his right to recover on a warranty in the contract of sale, that he has complied with his part of the contract which was contained in the same writing with the warranty. Williams v. Newkirk, 121 Ark. 439, 181 S.W. 304 (1915).

Will.

That will contestants had good theory to prove invalidity of the will was not sufficient since they had burden to establish facts that would support that theory. Chauvin v. Johnson, 193 Ark. 600, 101 S.W.2d 432 (1937).

Cited: Johnson v. Mitchell, 164 Ark. 1, 260 S.W. 710 (1924); Turner v. Rust, 228 Ark. 528, 309 S.W.2d 731 (1958); Vern Barnett Constr. Co. v. J.A. Hadley Constr. Co., 254 Ark. 866, 496 S.W.2d 446 (1973).

16-40-102. Order of proof.

The order of proof shall be regulated by the court so as to expedite the trial and enable the tribunal to obtain a clear view of the whole evidence. However, the party who begins the case must ordinarily exhaust his evidence before the other begins.

History. Civil Code, § 649; C. & M. Dig., § 4182; Pope's Dig., § 5192; A.S.A. 1947, § 28-103.

Research References

Ark. L. Rev.

Direct Examination of Witnesses, 15 Ark. L. Rev. 32.

Witnesses, 27 Ark. L. Rev. 229.

Case Notes

Discretion of Court.

As trial court has considerable discretion in regulating the mode and order of interrogation and presentation of proof, the court may allow a police officer, at the defendant's request, to return to the stand and testify, after his release from the witness rule and in the interruption of the plaintiff's order of proof, in order to allow the officer to testify as to his qualifications in particular area of expertise. Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983).

16-40-103. Modes of taking testimony of witnesses.

  1. The testimony of witnesses is taken in three (3) modes:
    1. By affidavit;
    2. By deposition;
    3. By oral examination.
  2. An affidavit is a written declaration under oath, made without notice to the adverse party.
  3. A deposition is a written declaration under oath, made upon notice to the adverse party, for the purpose of enabling that party to attend and cross-examine; or upon written interrogatories.
  4. An oral examination is an examination in the presence of the tribunal which is to decide the fact or to act upon it, the testimony being heard by the tribunal from the lips of the witness.

History. Civil Code, §§ 596-599; C. & M. Dig., §§ 4195-4198; Pope's Dig., §§ 5206-5209; A.S.A. 1947, §§ 28-104 — 28-107.

Case Notes

Affidavits.

Although letters were not under oath, they could be attached as exhibits to verified petition for relief, but the letters did not become affidavits. Jones v. Jones, 51 Ark. App. 24, 907 S.W.2d 745 (1995), rev'd, 326 Ark. 481, 931 S.W.2d 767 (1996).

Expert Witness.

Ex parte communication between an expert and the judge is improper, particularly if communications from the witness are not under oath. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).

Cited: Cox v. State, 164 Ark. 126, 261 S.W. 303 (1924); Thomas v. Hawkins, 217 Ark. 787, 233 S.W.2d 247 (1950); King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978).

16-40-104. Judicial knowledge of laws of other states.

The courts of this state shall take judicial knowledge of the laws of other states.

History. Acts 1901, No. 98, § 1, p. 164; C. & M. Dig., § 4110; Pope's Dig., § 5119; A.S.A. 1947, § 28-109.

Research References

Ark. L. Notes.

Watkins, A Guide to Choice of Law in Arkansas, 2005 Arkansas L. Notes 151.

Ark. L. Rev.

Evidence — Proof of Statutory Law of Another State, 7 Ark. L. Rev. 66.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Uniform Interstate and International Procedure Act, 17 Ark. L. Rev. 118.

Legislative and Judicial Dynamism in Arkansas: Poisson v. d'Avril, 22 Ark. L. Rev. 724.

Judicial Notice, 27 Ark. L. Rev. 171.

Case Notes

Failure to Take Judicial Notice.

The jury was not qualified to categorize defendant's past violent behavior in North Carolina as a “prior violent felony” because the trial court took no judicial notice of North Carolina law and ignored defense counsel's request that the jury be instructed on North Carolina law. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).

Particular Cases.

Judicial notice taken of laws of other states in particular cases. Rice v. Metropolitan Life Ins. Co., 152 Ark. 498, 238 S.W. 772, 24 A.L.R. 143 (1922); Rumph v. Lester Land Co., 205 Ark. 1147, 172 S.W.2d 916 (1943); Great Am. Ins. Co. v. Stevens, 178 Ark. 84, 10 S.W.2d 356 (1928); Jones v. State, 198 Ark. 354, 129 S.W.2d 249 (1939).

Proof.

It is only necessary to plead foreign law, not to prove it. Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977).

Cited: J.R. Watkins Medical Co. v. Johnson, 129 Ark. 384, 196 S.W. 465 (1917); Bridgeman v. Gateway Ford Truck Sales, 296 F. Supp. 233 (E.D. Ark. 1969).

16-40-105. Death presumed after five years' absence.

Any person absenting himself beyond the limits of this state for five (5) years successively shall be presumed to be dead in any case in which his death may come into question, unless proof is made that he was alive within that time.

History. Rev. Stat., ch. 46, § 1; C. & M. Dig., § 4111; Pope's Dig., § 5120; A.S.A. 1947, § 62-1601.

Research References

Ark. L. Rev.

Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128.

Case Notes

Applicability.

This section applies only to residents of the state at time of their disappearance, and not to a resident who ceased to be such before his final disappearance. Wilks v. Mutual Aid Union, 135 Ark. 112, 204 S.W. 599 (1918); Burnett v. Modern Woodmen of Am., 183 Ark. 729, 38 S.W.2d 24 (1931).

To bring a case within this section, the evidence must show that the insured was a resident of Arkansas. Metropolitan Life Ins. Co. v. Williams, 197 Ark. 883, 125 S.W.2d 441 (1939).

Absence Less Than Five Years.

There may be a proof of death by circumstantial evidence even though there was no absence for the length of time required to create a presumption of death under this section. Mutual Life Ins. Co. v. Wilcoxon, 187 Ark. 992, 63 S.W.2d 522 (1933).

Death of absentee might be proved by circumstantial evidence, but party alleging death before expiration of statutory period must prove facts and circumstances connected with absence of person warranting reasonable conclusion of death within shorter period. Claywell v. Inter-Southern Life Ins. Co., 70 F.2d 569 (8th Cir. 1934).

Where nonresident was last heard from less than five years prior to institution of suit, no presumption of death existed upon the date the suit was commenced. Allison v. Bush, 201 Ark. 315, 144 S.W.2d 1087 (1940).

Burden of Proof.

Both the residence and the absence beyond the limits of the state must be proved and may be proved by circumstantial evidence, but neither death nor the fact of absence can be inferred from the mere fact of disappearance. Metropolitan Life Ins. Co. v. Williams, 197 Ark. 883, 125 S.W.2d 441 (1939).

It is settled that neither the fact of death nor that of absence from the state can be inferred from the bare fact of a disappearance; petitioner has the burden of producing evidence from which the court might fairly conclude that absentee spouse had lived continuously outside the state for at least five years before the petitioner's second marriage. Baxter v. Baxter, 232 Ark. 151, 334 S.W.2d 714 (1960).

Presumption.

Evidence was sufficient to create a presumption of death under this section. Metropolitan Life Ins. Co. v. Fry, 184 Ark. 23, 41 S.W.2d 766 (1931).

Presumption does not arise until time limit required by this section had expired. Aetna Life Ins. Co. v. Robertson, 195 Ark. 237, 112 S.W.2d 436 (1937).

Suit for Absentee.

Wife could not sue for husband under this section where it was not proved that husband at time of disappearance was a resident of the state. Edge v. Buschow Lumber Co., 218 Ark. 903, 239 S.W.2d 597 (1951).

Cited: Southern Farm Bureau Life Ins. Co. v. Burney, 590 F. Supp. 1016 (E.D. Ark. 1984).

16-40-106. Privileged communications made to a certified peer support member by an emergency responder — Definitions.

  1. As used in this section:
    1. “Approved training” means training including, at a minimum, the following subjects:
      1. The core elements of critical incident stress management, including how to help a person understand the need for further assistance;
      2. Psychological crisis and psychological crisis intervention;
      3. The individual aspects of a peer support event and how to work with the aspects of a peer support event through resistance, resiliency, and recovery;
      4. Situational crisis intervention with individual persons and groups;
      5. Practical communication skills and techniques to assist a person in a crisis situation;
      6. How a person reacts in a crisis and how to understand and work with the person in an intervention mode;
      7. Mechanisms to assist in dealing with a person in a crisis situation;
      8. Practical tools to use to work with individual persons and groups in a crisis situation; and
      9. Recognizing issues that may lead a person to have suicidal thoughts;
    2. “Certified peer support member” means a law enforcement officer, firefighter, or emergency medical technician of an emergency service agency or entity who has received approved training certified by the Arkansas Crisis Response Team, the Arkansas Commission on Law Enforcement Standards and Training, or the Arkansas Fire Protection Services Board in critical incident stress management and who is qualified to provide emotional or moral support to an emergency responder who needs emotional or moral support as a result of job-related stress or an incident in which the emergency responder was involved while acting in his or her official capacity; and
    3. “Peer support event” means any debriefing, defusing, or counseling session conducted by a certified peer support member that involves the emotional or moral support of an emergency responder who needs emotional or moral support as a result of job-related stress or an incident in which the emergency responder was involved while acting in his or her official capacity.
    1. A certified peer support member shall not be compelled, without the consent of the emergency responder making the communication, to testify or in any way disclose the contents of any communication made to the certified peer support member by the emergency responder while engaged in a peer support event.
    2. The privilege under subdivision (b)(1) of this section only applies when the communication was made to the certified peer support member during the course of an actual peer support event.
  2. The privilege under subdivision (b)(1) of this section does not apply if:
    1. The certified peer support member was an initial emergency service responder, a witness, or a party to the incident that prompted the providing of the peer support event to the emergency responder;
    2. A communication reveals the intended commission of a crime or harmful act and the disclosure is determined to be necessary by the certified peer support member to protect any person from a clear, imminent risk of serious mental or physical harm or injury or to forestall a serious threat to the public safety; or
    3. A crime has been committed and the crime is divulged to the certified peer support member.
  3. A certified peer support member who knowingly reveals the contents of a communication privileged under this section or any person who knowingly threatens, intimidates, or forcibly compels, or attempts to threaten, intimidate, or forcibly compel a certified peer support member to disclose the contents of a privileged communication upon conviction is guilty of a Class B misdemeanor.

History. Acts 2013, No. 1353, § 1; 2019, No. 555, § 1.

Amendments. The 2019 amendment redesignated former (a)(1) and (a)(2) as (a)(2) and (a)(3); added (a)(1); and, in (a)(2), substituted “received approved training certified by the Arkansas Crisis Response Team, the Arkansas Commission on Law Enforcement Standards and Training, or the Arkansas Fire Protection Services Board in critical incident stress management” for “received training in critical incident stress management” and substituted “who is qualified to provide emotional or moral support” for “who is certified as a peer support member by the Arkansas Crisis Response Team to provide emotional or moral support”.

16-40-107. Evidence of sermons by a religious leader — Definitions.

  1. As used in this section:
    1. “Religious leader or member of the clergy” includes without limitation a:
      1. Minister;
      2. Pastor;
      3. Preacher;
      4. Priest;
      5. Nun;
      6. Rabbi;
      7. Imam; or
      8. Layperson who is engaged in the ministering in, instruction of, or teaching of a religion; and
    2. “Religious organization” means an organization that qualifies as a religious organization under state or federal tax law.
  2. In a civil action or other civil administrative proceeding to which the state or a local government is a party, the state or the local government may not compel the:
    1. Production or disclosure of a written copy or an audio or video recording of a sermon, religious instruction, or religious teaching delivered by a religious leader or member of the clergy during religious services of a religious organization; or
    2. Religious leader or member of the clergy to testify regarding the sermon, religious instruction, or religious teaching described in subdivision (b)(1) of this section.
  3. This section does not apply to a civil action or other civil administrative proceeding to which the state or a local government is a party and that concerns a legitimate investigation into terrorism-related activities.

History. Acts 2019, No. 816, § 1.

Chapter 41 Uniform Rules of Evidence [Repealed.]

16-41-101. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This chapter, concerning the Uniform Rules of Evidence, was repealed by Acts 2013, No. 1148, § 2[7]. The chapter was derived from Acts 1975 (Extended Sess. 1976), No. 1143, § 1; 1985, No. 405, § 1; 1985, No. 462, § 1; reen. Acts 1987, No. 876, § 1; A.S.A. 1947, § 28-1001; Acts 1991, No. 361, § 1; 1992 (1st Ex. Sess.), No. 66, § 1; 1997, No. 794, § 1; 2001, No. 629, § 1.

Chapter 42 Sexual Offenses

Effective Dates. Acts 1977, No. 197, § 5: Feb. 18, 1977. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that the introduction of opinion evidence, reputation evidence, and evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person, where such evidence does not directly pertain to the prosecution upon which the act is based, and the absence of a pretrial hearing on the admissibility of this evidence, has kept many victims of sex crimes from testifying against their attackers, has obscured the facts in sexual assault cases to the extent that juries have often reached improper verdicts, and has greatly hampered the administration of criminal justice in 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 take effect and be in force from the date of its approval.”

Acts 1985, No. 444, § 3: Mar. 20, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that young children who have been victims of sexual crimes suffer tremendous physical and mental trauma. Such trauma is compounded when the child must recount the crime in open court in unfamiliar surroundings. The General Assembly hereby finds that currently there is no provision in Arkansas law that authorizes the victim's parents or legal guardian be present in court during the examination and cross-examination of the child during the trial. Therefore, current law inadequately protects the mental well-being of the minors in this State and this Act is necessary to correct this problem. 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 2005, No. 536, § 2: Mar. 3, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is no rule or statute that allows the introduction of evidence of a defendant's commission of another sexual assault in a criminal case; and that such a rule or statute is necessary to assist in the prosecution of sexual assaults. 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.”

16-42-101. Admissibility of evidence of victim's prior sexual conduct — Definition.

  1. As used in this section, unless the context otherwise requires, “sexual conduct” means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by § 5-14-101.
  2. In a criminal prosecution under § 5-14-101 et seq., the Human Trafficking Act of 2013, § 5-18-101 et seq., or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, evidence of a person's prior sexual conduct when the person was a victim of human trafficking, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
  3. Notwithstanding the prohibition contained in subsection (b) of this section, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:
    1. A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence prohibited by subsection (b) of this section and the purpose for which the evidence is believed relevant;
      1. A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.
      2. A written record shall be made of the in camera hearing and shall be furnished to the Supreme Court on appeal.
      3. If, following the hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence; and
      1. If the court determines that some or all of the offered proof is relevant to a fact in issue, the victim shall be told of the court's order and given the opportunity to consult in private with the prosecuting attorney.
      2. If the prosecuting attorney is satisfied that the order substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the state may be taken in accordance with Rule 36.10 (a) and (c), Arkansas Rules of Criminal Procedure.
      3. Further proceedings in the trial court shall be stayed pending determination of the appeal. However, a decision by the Supreme Court sustaining in its entirety the order appealed shall not bar further proceedings against the defendant on the charge.
  4. In the event the defendant has not filed a written motion or a written motion has been filed and the court has determined that the offered proof is not relevant to a fact in issue, any willful attempt by counsel or a defendant to make any reference to the evidence prohibited by subsection (b) of this section in the presence of the jury may subject counsel or a defendant to appropriate sanctions by the court.

History. Acts 1977, No. 197, §§ 1-4; 1983, No. 889, § 1; A.S.A. 1947, §§ 41-1810.1 — 41-1810.4; Acts 1993, No. 934, §§ 1-3; 1997, No. 970, § 1; 2019, No. 842, § 1.

Amendments. The 1993 amendment inserted “evidence of a victim's prior allegations of sexual conduct … if the victim denies making the allegations” in (b); substituted “prohibited by subsection (b) of this section” for “of the victim's prior sexual conduct” in (c)(1); and substituted “evidence prohibited by subsection (b) of this section” for “victim's prior sexual conduct” in (d).

The 1997 amendment substituted “§ 5-14-101 et seq. or § 5-26-202” for “§§ 5-14-1035-14-110” in (b).

The 2019 amendment, in (b), inserted “the Human Trafficking Act of 2013, § 5-18-101 et seq.” and inserted “evidence of a person’s prior sexual conduct when the person was a victim of human trafficking”; and made a stylistic change.

Research References

Ark. L. Rev.

Cochran, Legislative Note: Act 197 of 1977: Arkansas' Rape-Shield Statute, 32 Ark. L. Rev. 806.

Recent Developments: Criminal Law — Evidence: What Constitutes Relevant Evidence in Rape Trial When Defense is Consent, 32 Ark. L. Rev. 826.

Recent Developments (State v. Babbs), 51 Ark. L. Rev. 647.

Note, The Arkansas Rape-Shield Statute: Does It Create Another Victim?, 58 Ark. L. Rev. 949.

Note, Fells v. State: Good Decision on Procedural Grounds, Dangerous Precedent for Future Application of Arkansas's Rape Shield Statute, 59 Ark. L. Rev. 943.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Evidence, 1 U. Ark. Little Rock L.J. 191.

Legislative Survey, Criminal Law, 4 U. Ark. Little Rock L.J. 583.

Legislative Survey, Evidence, 16 U. Ark. Little Rock L.J. 127.

Case Notes

Constitutionality.

The exception to the general exclusionary policy and the in camera hearing, under this section, provide the accused with a full and fair opportunity to confront his accuser. Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979).

This section does not deny the equal protection of the law, in that it restricts the defendant's freedom to introduce evidence with no similar restriction upon the prosecution, inasmuch as the prosecution is actually restricted by the principle that it cannot bolster its case by proving that the same defendant committed another rape, and since the classification made by this section is not arbitrary, being based upon permissible considerations of public policy. Dorn v. State, 267 Ark. 365, 590 S.W.2d 297 (1979); Burrow v. State, 301 Ark. 222, 783 S.W.2d 52 (1990).

The statute is constitutional and does not violate due process or equal protection rights. Sera v. State, 341 Ark. 415, 17 S.W.3d 61, cert. denied, 531 U.S. 998, 121 S. Ct. 495, 148 L. Ed. 2d 466 (2000).

Rape shield statute, subsection (b) of this section, did not violate defendant's constitutional right to present a defense during defendant's trial for rape of a minor because defendant was able to cross-examine a physician, who testified that the injury to the victim's vaginal area was not a fresh injury, but occurred sometime in the past. Defendant was also able to cross-examine the victim about her allegations. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, cert. denied, 558 U.S. 1047, 130 S. Ct. 736, 175 L. Ed. 2d 514 (2009).

In a case in which defendant was convicted of four counts of sexual assault of a minor, the trial court properly upheld the constitutionality of the rape shield statute. The statute survived defendant's separation of powers challenge. Nelson v. State, 2011 Ark. 429, 384 S.W.3d 534 (2011).

—Ineffective Assistance of Counsel.

Decision by defendant's attorney not to request a hearing under this section to explore the relevance of evidence of the victim's prior sexual conduct, may not, standing alone, be sufficient to establish ineffective assistance of counsel; however, when considered together with counsel's failure to call a witness who would have testified that the eleven-year-old victim had told her that she had fabricated the allegations, the court properly concluded that attorney's conduct fell below an objective standard of competence. Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995).

In General.

This section prohibits evidence of the victim's prior sexual conduct unless, on written motion and hearing, relevancy of the proffered evidence is established and its probative value outweighs its prejudicial effect. Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988).

This section broadly excludes evidence of specific instance of the victim's sexual conduct prior to the trial. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994).

Where defendant proffered the testimony of witnesses who confirmed prior false accusations of rape made by the victim, the victim's denial that she had formerly made false accusations of rape against another person meant that the rape-shield statute applied to the facts in defendant's case and, further, defendant had failed to file pretrial motion for a determination of relevancy pursuant to subsection (c). Taylor v. State, 355 Ark. 267, 138 S.W.3d 684 (2003).

Construction.

This section relates only to proof of the victim's prior “sexual conduct,” as defined in this section, and posing in the nude for a photograph does not fall within that definition of sexual conduct. Bobo v. State, 267 Ark. 1, 589 S.W.2d 5 (1979).

The “prior” acts mentioned in this section do not refer to sexual acts occurring before the incident in question, but merely any sexual conduct by the victim. Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986).

This section excludes evidence of any kind about the victim's prior “sexual conduct” and defines “sexual conduct” as deviate sexual activity, sexual contact, or sexual intercourse. West v. State, 290 Ark. 340A, 290 Ark. 329, 722 S.W.2d 284 (1987).

“Prior” sexual conduct includes all sexual behavior of the victim prior to the date of the trial. Slater v. State, 310 Ark. 73, 832 S.W.2d 846 (Ark. 1992).

Purpose.

Information regarding the sexual history of a victim is usually totally irrelevant to the charge of rape and this section was obviously designed to limit this type of examination and protect the victim from unnecessary humiliation. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978).

The primary purposes of this section were to protect the victim and encourage rape victims to participate in the prosecution of their attackers. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980).

This section is intended to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges, paraded before the jury and the public, when such conduct is irrelevant to the defendant's guilt. Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986); Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

The purpose of this section is to limit evidence of the victim's past sexual conduct and to protect the victim from unnecessary humiliation. Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988).

The purposes of this section is to protect the victim and encourage rape victims to participate in the prosecution of their attackers, and such purposes would be thwarted if defendants were allowed to present uncorroborated evidence that there had been prior consensual acts over the victim's denial that she had ever known her assailant before the incident. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997).

The purpose of subsection (b) of this section is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant's guilt. Bond v. State, 374 Ark. 332, 288 S.W.3d 206 (2008).

Purpose of the rape shield statute, subsection (b) of this section, is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant's guilt. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, cert. denied, 558 U.S. 1047, 130 S. Ct. 736, 175 L. Ed. 2d 514 (2009).

Applicability.

This section did not apply where prosecutor elicited from victim testimony that she had been a virgin prior to the rape since this section relates to specific instances of the victim's prior sexual conduct while prosecutor's question did not relate the victim's prior sexual conduct but to the lack thereof. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980).

This section is not a total bar to evidence of a victim's sexual conduct but instead makes its admissibility discretionary with the trial judge pursuant to the procedures set out at subdivisions (c)(1-3). Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

In order to set in motion a relevancy decision by the trial court regarding prior sexual conduct, subdivision (c)(1) of this section requires that the defendant file a written motion with the court before resting to the effect that the defendant desires to present evidence of the victim's past sexual activity. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994).

This section does not apply to a charge of violation of a minor. Donihoo v. State, 325 Ark. 483, 931 S.W.2d 69 (1996).

Subsection (b) of this section has no application to a prior inconsistent statement made by the victim as to the offense charged. Lindsey v. State, 54 Ark. App. 266, 925 S.W.2d 441 (1996).

Court rejected defendant's claim that the rape-shield statute did not apply; the evidence defendant sought to introduce clearly fell within the parameters of the rape-shield law because it was evidence of prior sexual conduct offered for the purpose of attacking the victim's credibility, and the trial court properly found that the probative value of the victim's inconsistent statements was slight and the prejudicial effect outweighed any probative value, and defendant was not prejudiced by the trial court's ruling in any event because defendant was able to achieve the purpose of impeaching the victim's veracity without touching upon her prior sexual conduct. Turner v. State, 355 Ark. 541, 141 S.W.3d 352 (2004).

In defendant's sexual abuse case, a court properly applied the rape shield law to exclude evidence relating to previous sexual molestation charges brought by the child victim against others where the victim testified that, although she did not remember much of the circumstances surrounding the allegations against another person because she was only four years old at the time, she remembered what he did to her, and she stated that the allegations against him were true; that testimony fell squarely within the ambit of subsection (b) of this section. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).

In defendant's sexual abuse case, the court properly applied the rape shield law where the fact that the victim, who was 12 years old at the time and did not disclose to her boyfriend that her father raped her when recounting the details of her involvement with her 18-year old stepfather, did not factor into her credibility; the proffered testimony would have prejudiced the jury to question the victim's reputation, which was exactly what the rape-shield statute prohibited. Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004).

Human immunodeficiency virus (HIV) status of a rape victim is protected under Arkansas's rape-shield statute. Fells v. State, 362 Ark. 77, 207 S.W.3d 498 (2005).

Admissibility.

Evidence properly held inadmissible. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); Houston v. State, 266 Ark. 257, 582 S.W.2d 958 (1979); Bobo v. State, 267 Ark. 1, 589 S.W.2d 5 (1979); Hubbard v. State, 271 Ark. 937, 611 S.W.2d 526 (1981); Boreck v. State, 272 Ark. 240, 613 S.W.2d 96 (1981); Manees v. State, 274 Ark. 69, 622 S.W.2d 166 (1981); Fields v. State, 281 Ark. 43, 661 S.W.2d 359 (1983); Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

This section only excludes evidence of prior sexual conduct of the victim, and the defendant may testify at trial as to the actions of the prosecuting witness on the night of the alleged rape. Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980).

Evidence of prior consensual sexual conduct is inadmissible unless such prior sexual activities were with the accused, and, even in that event, the testimony is allowed only to show that consent may have been given since this section clearly holds such evidence is inadmissible unless it meets certain tests outlined therein. Eskew v. State, 273 Ark. 490, 621 S.W.2d 220 (1981); Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

Acts of prior consensual intercourse with the accused are admissible only to show that consent may have been given, and where consent is not at issue, because the defendant denies that the act ever occurred, the prior sexual conduct of the prosecutrix is not relevant. State v. Small, 276 Ark. 26, 631 S.W.2d 616 (1982).

The trial court did not err when it refused to allow the defendant to testify that he was told by his codefendant that the codefendant had had prior sexual relations with the alleged rape victim, since the testimony was not coming directly from the codefendant and was, therefore, inadmissible hearsay evidence. Watson v. State, 277 Ark. 197, 640 S.W.2d 447 (1982).

The trial court did not abuse its discretion in not allowing questioning of the victim about her prior sexual conduct, even where the physician stated that he found nonmotile sperm in her vagina and that sperm could remain motile for up to five days. Lackey v. State, 288 Ark. 225, 703 S.W.2d 858 (1986).

This section, on its face, does not deal with matters that may have occurred subsequent to the alleged offense, and therfore it was error to grant the state's motion in limine to preclude the defendant from offering or cross examining on the basis of the taped telephone conversation between the victim and her stepmother that occurred several months after the alleged rape, which included some references to sexual conduct of the victim some time after the alleged rape. Flurry v. State, 18 Ark. App. 64, 711 S.W.2d 163 (1986), rev'd, 290 Ark. 417, 720 S.W.2d 699 (1986)Questioned bySlater v. State, 310 Ark. 73, 832 S.W.2d 846 (Ark. 1992)Questioned byFry v. State, 309 Ark. 316, 829 S.W.2d 415 (Ark. 1992), overruled, Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986).

While evidence of the victim's and defendant's past relationship should be admitted into evidence, evidence of explicit sexual conduct that has no direct bearing on the events which occurred at the time of the alleged rape should be excluded. Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988).

Trial court did not abuse its discretion in allowing question regarding how old bruises were without reference to victim's prior sexual conduct. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995).

Court's decision to exclude from the evidence victim's allegations against her step-grandfather was not clearly erroneous. Samples v. State, 50 Ark. App. 163, 902 S.W.2d 257 (1995).

The court properly excluded evidence that, four years before the incident at issue, the victim filed a rape charge against another person, but withdrew the charge one day after filing her report. Booker v. State, 334 Ark. 434, 976 S.W.2d 918 (1998).

One should not conclude that a defendant can never present evidence of a rape victim's human immunodeficiency virus (HIV) status when that evidence is relevant to a defense at trial; on the contrary, the rape-shield statute specifically contemplates the admission of such evidence once the required procedures have been followed and the trial court has determined that the evidence is more probative than prejudicial. Fells v. State, 362 Ark. 77, 207 S.W.3d 498 (2005).

Trial court did not err by applying the rape shield statute to exclude evidence of the victims' sexual knowledge allegedly obtained while they were in foster care because: (1) there was no proof that the events actually occurred; (2) none of the prior sexual acts closely resembled the allegations that defendant raped the victims; (3) the alleged sexual acts with other minor children were irrelevant to defendant's having sexual intercourse with the victims; and (4) the acts were not prior to defendant's rape offenses. White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006), cert. denied, 550 U.S. 904, 127 S. Ct. 2114, 167 L. Ed. 2d 815 (2007).

At the sentencing phase of a rape trial, the trial court did not abuse its discretion in denying, under the rape-shield statute, defendant's motion to introduce evidence of the victim's prior sexual abuse allegations against a third party because such evidence would have been more prejudicial to the victim than probative. Keller v. State, 371 Ark. 86, 263 S.W.3d 549 (2007).

Trial counsel was not ineffective for failing to invoke the rape shield statute (this section) or for failing to argue that the victim had said someone else had raped her or investigate those statements because if counsel had exculpatory evidence to present, the only proper means to seek admission was through a request for a hearing, and even if counsel erred in failing to request such a hearing, the postconviction relief appellant did not establish that, had counsel requested a hearing, his arguments for admission of the evidence would have been effective; there was no basis to support a claim that the evidence was needed to rebut the inference that the child victim received her knowledge of sexual matters from alleged encounters with appellant, and appellant did not establish that there was potentially relevant evidence to be discovered, or that counsel could have sought to admit, that was suitably compelling so as to overcome its highly prejudicial nature through strong probative value, as subsection (c) of this section required. Bell v. State, 2010 Ark. 65, 360 S.W.3d 98 (2010).

Defendant's conviction for raping his daughter under § 5-14-103(a)(4)(A)(i) was appropriate because the evidence was sufficient and because the circuit court properly denied defendant's rape-shield motions. Consent was never an issue in a rape-by-guardian case, and when consent was not an issue, whether the victim had sexual relations with a third person was entirely collateral and irrelevant under subsections (b) and (c) of this section. Vance v. State, 2011 Ark. 392, 384 S.W.3d 515 (2011).

—Expert Testimony.

Where physician's testimony in a rape case embraced the ultimate issue of forced sex, but did not mandate a legal conclusion because the testimony did not exclude other causes for the victim's injuries, it was not inadmissible opinion testimony on the ultimate issue. Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).

—Impeachment of Non-Victim Witness.

Evidence of a sexual affair between the victim and a witness held inadmissible where defendant failed to show how evidence of the alleged sexual affair would impeach the witness' credibility. Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).

—Impeachment of Victim Witness.

In defendant's sexual assault trial where defendant proffered testimony as evidence of child victim's prior inconsistent statements to undermine her credibility, the proffered testimony violated the rape-shield statute, and the trial court did not abuse its discretion by ruling that the proffered testimony was inadmissible. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002).

Although the rape shield statute is inapplicable to a juvenile delinquency charge, the trial court may otherwise correctly find that the prior sexual history of a victim is entirely irrelevant to the crime with which juvenile is charged; thus, the proper standard of review is whether the trial court abused its discretion in excluding a juvenile's proffered testimony on the basis of that testimony's relevance under the Arkansas Rules of Evidence. M. M. v. State, 350 Ark. 328, 88 S.W.3d 406 (2002).

Consent.

Acts of prior consensual conduct between the victim and the accused are admissible only when consent is at issue; where the victim is younger than the age of consent at the time of the alleged conduct, consent patently cannot be a defense. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994).

Prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act, unless there is additional evidence connecting the prior acts to the consent alleged in the subsequent act. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997).

The court properly ruled that the alleged victim's subsequent consensual sex with one of the defendants was relevant and probative on the consent issue to be raised at the trial of the defendants. State v. Babbs, 334 Ark. 105, 971 S.W.2d 774 (1998).

Allowing an alleged rape victim's prior sexual conduct into evidence was improper because defendant was charged with raping the victim while she was physically helpless and pursuant to subdivision (a)(2)(A) of this section, a person who was physically helpless at the time of the rape was incapable of consent. Therefore, any prior sexual encounters between defendant and the victim, which might have been relevant if consent was a defense, were irrelevant where the victim could not have consented due to being physically helpless. State v. Parker, 2010 Ark. 173 (2010).

Cross-Examination.

The court correctly limited the scope of prosecutrix's cross-examination to allow examination as to the two defendants while excluding testimony about her relations with others. Bobo v. State, 267 Ark. 1, 589 S.W.2d 5 (1979).

What the victim told her father at the time of the rape or what motivated her to cause the charges to be filed was not open to questioning. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979).

Where defense counsel sought to cross-examine prosecutrix about how long it had been before the rape when she had last had intercourse, the court properly refused to allow such cross-examination since proof of that kind is broadly forbidden by this section and since no written motion to permit such proof was filed before the trial, nor was there a showing of good cause for the matter having been delayed until the trial was in progress. Isom v. State, 280 Ark. 131, 655 S.W.2d 405 (1983).

Disclosure of Defense.

An accused must reveal, upon the state's request, the nature of any defense which he intends to establish at trial, and the names and addresses of the witnesses who will testify in support of those defenses; therefore, at the in camera hearing, it appears that the accused is not forced to reveal any more of his defense strategy than he is required to do under existing procedural rules. Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979).

Discretion of Court.

The appellate court could not decide whether the evidence of the victim's prior conduct was admissible where defendant failed to proffer what the evidence would have been. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and the appellate court does not overturn its decision unless it was clearly erroneous. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

Under this section, the trial court, upon proper motion, may engage in a balancing test to assess whether the probative value of the testimony sought outweighs the inflammatory nature of the testimony. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994).

Court properly applied the rape shield law where the ruling did not impede the defense but merely prevented questioning the victim with regard to her admission that she had sex with another person subsequent to the crime by defendant; the trial court did allow defendant to argue that the victim was fabricating the allegations because she thought he was too strict with her. Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004).

Exclusion Improper.

Rape-shield statute was intended to protect victims from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury; in this case, evidence that the victim was asking defendant for sex, offering him oral sex, attempting to undo his shorts, and touching his penis through his shorts, all within approximately 10 minutes of penetration, was conduct related to the charges pending and therefore relevant to the issue of consent, such that excluding the evidence was prejudicial. Herren v. State, 2018 Ark. App. 528, 563 S.W.3d 606 (2018).

Exclusion Upheld.

Three of the pieces of evidence defendant sought to admit fell squarely within this section, the rape-shield statute, and were properly excluded because the victim denied making the allegation that she performed oral sex on a boy at school and she stated that the allegations against other men were true. Burns v. State, 2020 Ark. App. 207 (2020).

Although the diary entries did not fall squarely within this section, defendant did not show prejudice from their exclusion because the diary entries would have been relevant only to attack the victim's credibility, and defendant did that by vigorously cross-examining the victim; it was impossible to say that admission of the two diary entries would have changed the outcome because the victim's testimony alone was sufficient to support defendant's convictions. Burns v. State, 2020 Ark. App. 207 (2020).

Hearing.

The in camera hearing is not designed to be used as a subterfuge to obtain a discovery deposition from the alleged victim, and there is no requirement that the victim present herself for questioning by the accused. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979).

Subdivision (c)(2)(A) of this section clearly provides that a hearing shall be held on a motion; however, the timing of the hearing is not mandatory and may occur closer to the trial as the court permits “for good cause.” Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994).

It was not error to refuse to allow defendant to present evidence that rape victim tested positive for human immunodeficiency virus (HIV) because defendant failed to comply with the rape-shield statute; defendant never filed the required motion or gave the trial court an opportunity to hold a hearing to determine if the probative value of the evidence was outweighed by its highly prejudicial effect. Fells v. State, 362 Ark. 77, 207 S.W.3d 498 (2005).

Interlocutory Appeal.

A ruling on whether testimony is hearsay is not subject to an interlocutory appeal under this section. State v. Small, 276 Ark. 26, 631 S.W.2d 616 (1982).

The rape-shield law is a product of the General Assembly, and until it sees fit to provide for interlocutory appeal by the state of a trial court's decision with respect to admitting evidence of prior false allegations made by an alleged victim, or until some other jurisdictional basis by rule or constitutional provision appears, the Supreme Court lacks jurisdiction to hear such an appeal. State v. Mills, 311 Ark. 363, 844 S.W.2d 324 (1992).

Where defendant was charged with the rape of his niece, he was permitted to introduce evidence concerning the victim's natural father having been found guilty of a sexual assault in California, but was prohibited from making any reference as to the identity of the victim in the father's case. State v. V. Rapp, 368 Ark. 387, 246 S.W.3d 858 (2007).

Because the Supreme Court of Arkansas had never required the “uniform administration of justice” analysis as it did in state appeals from the grant of a motion to suppress evidence or confessions, the state's appeal from an order allowing evidence under the rape-shield statute was treated as automatically appealable without resort to a normal Ark. R. App. P. — Crim. 3 analysis. State v. Parker, 2010 Ark. 173 (2010).

Jurisdiction.

Because defendant's appeal involves a challenge under the rape-shield statute, the court's jurisdiction was pursuant to this section and Ark. Sup. Ct. & Ct. App. R. 1-2(a)(8). Turner v. State, 355 Ark. 541, 141 S.W.3d 352 (2004).

Merits Not Considered.

Defendant argued that the trial court erred in finding that evidence of sexual conversations between the victim and her boyfriend was encompassed by the rape-shield statute under this section but defendant acknowledged that the trial court allowed him to cross-examine the victim regarding her bias and allowed him to redact the messages in question to omit the sexual discussion, and defendant agreed with the trial court that the redacted version was sufficient to challenge the victim's credibility; thus, because defendant in essence agreed to the decision, the court did not reach the merits of this point on appeal. Rackley v. State, 371 Ark. 438, 267 S.W.3d 578 (2007).

It was unnecessary to decide if a trial court erred in excluding defendant's proffered testimony under the rape shield statute because overwhelming evidence supported defendant's convictions, so any error was harmless. Pigg v. State, 2014 Ark. 433, 444 S.W.3d 863 (2014).

Motions by Defendant.

It is the defendant's responsibility to pursue a motion requesting a hearing and to bring the matter of a hearing to the court's attention. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994).

Subdivision (c)(1) of this section requires a written motion to be filed; failure to do so waives the right to challenge application of this section on appeal. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994).

Evidence barred where defendant failed to file a motion as required by subdivision (c)(2)(C); arguments made in response to the State's motion in limine to bar the evidence were insufficient to comply with this section. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996).

Where there was no showing that a motion to admit the evidence of the victim's prior sexual conduct was filed in writing, that the issue was timely raised, or that the trial court in any manner abused its discretion in not finding “good cause” to hold a relevancy hearing later than three days before the trial, the defendant failed to comply with the requirements of subsection (c). Bradley v. State, 327 Ark. 6, 937 S.W.2d 628 (1997).

In a rape prosecution, defendant was not entitled to introduce proof of the victim's prior sexual abuse due to his noncompliance with the rape-shield law; defendant failed to file a written motion as required by subdivision (c)(1) of this section. Hanlin v. State, 356 Ark. 516, 157 S.W.3d 181 (2004).

Trial court did not err under the rape shield law, subsection (b) of this section, in denying defendant's motion to permit testimony concerning prior claims of sexual abuse made by a minor victim because defendant failed to prove that the prior act of sexual abuse clearly occurred; the witness affidavits that defendant presented were determined to be hearsay. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, cert. denied, 558 U.S. 1047, 130 S. Ct. 736, 175 L. Ed. 2d 514 (2009).

Trial court properly disallowed questions about another man's DNA on the victim's sheets because the prosecutor did not “open the door” by inquiring about the victim's DNA, defendant's relevancy argument was not preserved for appeal, and defendant did not file a written motion to the trial court for its consideration. Gipson v. State, 2013 Ark. App. 651 (2013).

Objection Untimely.

Where record reflected the state had already asked and received answers to questions regarding witness's sexual relations with the defendant without objection, later objection to the same questioning was untimely, as failure to object at the first opportunity waives any right to raise the point on appeal. Laymon v. State, 306 Ark. 377, 814 S.W.2d 901 (1991).

Because defendant failed to follow the procedure set forth in this section and did not proffer testimony concerning his assertion that the victim had similar accusations against another grandfather, the error complained of was the result of defense counsel's inaction and neither the third nor the fourth Wicks exception applied. Fukunaga v. State, 2014 Ark. App. 4 (2014).

Preservation.

In a rape case, defendant failed to preserve his argument that bondage activity did not fall under the rape-shield statute where he argued before the trial court that evidence that he and the victim had engaged in “rough sex” before was relevant to the defense, highly probative, and went to the credibility of the victim. Moreover, an argument relating to the right to present a defense under the Sixth and Fourteenth Amendment was also abandoned because, although the argument was contained in a written motion, defendant did not ensure that a ruling was made on it. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008).

Defendant failed to preserve for review his argument that a court erred during his rape trial in not allowing testimony concerning the victim's previous sexual conduct; he failed to follow the procedure set forth in subsection (c) of this section for establishing relevancy and admissibility of evidence otherwise excluded by the rape-shield statute. Stewart v. State, 2012 Ark. 349, 423 S.W.3d 69 (2012).

In a case in which defendant was convicted of three counts of second-degree sexual assault of two victims, defendant's argument that his motion to admit evidence of the first victim's prior sexual conduct was improperly denied was not preserved for review as he failed to proffer any testimony at the in camera hearing pursuant to the rape-shield statute; even if the circuit court already had knowledge of all the relevant details, defendant's failure to proffer evidence so that the appellate court could determine prejudice precluded review of the issue on appeal. Sweeten v. State, 2018 Ark. App. 590, 564 S.W.3d 575 (2018).

Prior Inconsistent Statements.

In a prosecution of a father for the rape and sexual abuse of his daughter over a four year period, the trial court properly refused to allow the victim's mother and grandmother to testify to prior inconsistent statements by the victim that other men, rather than her father, had perpetrated sexual abuse upon her. Hill v. State, 74 Ark. App. 28, 45 S.W.3d 406 (2001).

Relevance.

Virginity is not relevant per se in a rape case. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978).

Where the two defendants sought to show the prosecutrix's prior sexual relations with a third person both earlier on the same evening and in the same room as the alleged rape and at other times in the past, the court correctly allowed testimony about the incident of the same evening that occurred almost as part of the same episode, but that ruling did not establish the relevancy of any other sexual relations the third person may have had with her so as to render the court's order excluding evidence of his prior sexual relations with the prosecutrix erroneous. Bobo v. State, 267 Ark. 1, 589 S.W.2d 5 (1979).

Prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act; there must be some additional evidence connecting such prior acts to the alleged consent in the present case before the prior acts become relevant. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979).

When a female at the very threshold of puberty maintains that her father has been having sexual intercourse with her on a regular basis, sometimes as often as two or three times a week since early childhood, the prosecution's medical evidence that the child demonstrates physical characteristics consistent with prolonged sexual activity has an unmistakable relevance to the factual issue, and is not made inadmissible by this section. Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (Ark. 1989).

Evidence of victim's past homosexual activity, sought to be admitted to impeach victim who stated defendant was the only person to have committed such acts with victim, was properly held not legally relevant. Logan v. Lockhart, 994 F.2d 1324 (8th Cir. 1993), cert. denied, 510 U.S. 1057, 114 S. Ct. 722 (1994); Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

Victim's prior sexual conduct with separate males did not bear on or relate to whether she consented to a group-sex situation. State v. Sheard, 315 Ark. 710, 870 S.W.2d 212 (1994).

Evidence that the victim had a black eye the day before the rape occurred held admissible, but testimony that the victim's husband struck her because she was having an extra-marital affair held inadmissible as hearsay and because, although minimally relevant, its prejudice substantially outweighed its probative value. Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).

In a prosecution for several criminal counts related to three sexual encounters involving the use of the drug Rohypnol with two women, testimony by the defendant regarding a prior oral sexual encounter between himself and one of the victims, which the victim denied, has nothing to do with the episode at issue and was properly excluded. Sera v. State, 341 Ark. 415, 17 S.W.3d 61, cert. denied, 531 U.S. 998, 121 S. Ct. 495, 148 L. Ed. 2d 466 (2000).

In defendant's trial for raping his step-granddaughter when she was six years old, the circuit court abused its discretion by granting defendant's motion to introduce evidence that his step-granddaughter was sexually assaulted by someone else when she was four years old; defendant's step-granddaughter's descriptions of the two incidents were substantially dissimilar and, because there was little evidence that the prior incident resembled the acts defendant allegedly committed, information about the prior incident was not relevant to the allegations against defendant. State v. Townsend, 366 Ark. 152, 233 S.W.3d 680 (2006).

Fact that the victim had sexual intercourse with a boy her own age was not related to whether defendant engaged in inappropriate sexual behavior with the minor victim; therefore, the trial court did not err in denying defendant's motion to have the evidence admitted. Jackson v. State, 368 Ark. 610, 249 S.W.3d 127, cert. denied, 552 U.S. 850, 128 S. Ct. 112, 169 L. Ed. 2d 79 (2007).

Trial court erred, at a rape-shield hearing pursuant to § 16-42-101(c), in granting defendant's request to introduce evidence of the child victim's allegations of sexual abuse against three others in order to show that the victim obtained sexual knowledge from a source other than defendant where the victim's descriptions of the prior abuse and the charged act were very dissimilar. State v. Blandin, 370 Ark. 23, 257 S.W.3d 68 (2007).

Trial court did not err in excluding evidence of the victim's prior conduct under the rape-shield statute, subsection (b) of this section, during defendant's trial for raping his daughter because evidence of the victim's prior recantation against her stepfather was only slightly relevant, if at all, to the victim's credibility and such evidence was more prejudicial than probative; the victim's prior allegation against her stepfather was not false because the victim's mother had discovered sexually explicit photographs of the victim taken by her stepfather. Bond v. State, 374 Ark. 332, 288 S.W.3d 206 (2008).

In a case in which the Director of the Arkansas Department of Correction appealed a district court's decision to grant an inmate's 28 U.S.C.S. § 2254 petition for a writ of habeas corpus in which the inmate argued that the trial judge violated his constitutional right to present a defense by excluding evidence of the victim's prior sexual history pursuant to this section, the rape shield statute, the trial court determined that the evidence was irrelevant, and the decision by the Supreme Court of Arkansas to uphold the evidentiary ruling of the trial court was not contrary to, nor did it involve an unreasonable application of, clearly established federal law. Jackson v. Norris, 651 F.3d 923 (8th Cir. 2011).

In a second-degree sexual assault and attempted rape case, a trial court did not abuse its discretion by excluding evidence from the victim's former classmates because the classmates' testimony about what the victim did in public would not have been similar to the testimony that the victim gave detailing what defendant did to her. The allegations against defendant did not occur in public places; moreover, the evidence that the victim was the aggressor was not relevant since the victim could not have consented. Bean v. State, 2014 Ark. App. 107, 432 S.W.3d 87 (2014).

In a case in which a jury convicted defendant of residential burglary and rape, the circuit court did not commit a manifest abuse of discretion in excluding, under this section, evidence of DNA from semen samples found on the victim's bedsheet and pillow that were inconsistent with defendant's DNA. Defendant failed to show a link between the semen samples found on the victim's bed and the residential burglary and rape. Thacker v. State, 2015 Ark. 406, 474 S.W.3d 65 (2015).

It was not clear error or a manifest abuse of discretion for the circuit court to exclude evidence of semen on the victim's bed. The potential humiliation and embarrassment to the victim, as well as the danger of unfairly prejudicing her character before the jury, outweighed the slight probative value of the evidence. Thacker v. State, 2015 Ark. 406, 474 S.W.3d 65 (2015).

In a case where defendant was convicted of rape and sexual assault, testimony that a victim and her boyfriend were having sexual intercourse was not admitted as irrelevant or unduly prejudicial. The rape shield statute applied because defendant was charged with rape, not just violation of a minor. Thompson v. State, 2015 Ark. App. 275, 461 S.W.3d 368 (2015).

Trial court did not err in denying defendant's motion to admit evidence of the victim's relationship with her boyfriend, where defendant contended that he had threatened to inform the victim's mother that the victim was sexually active with her boyfriend, which showed victim's motive to lie. Any explanation of motive was irrelevant in light of evidence that defendant's wet semen was on the victim's bed on the night of the alleged incident. Robinson v. State, 2016 Ark. App. 550, 506 S.W.3d 881 (2016).

Trial court did not abuse its discretion in excluding DNA evidence found on the victim's clothes where defendant was accused of penetrating the victim with a broomstick, and thus DNA evidence was irrelevant. Sorum v. State, 2017 Ark. App. 384, 526 S.W.3d 50 (2017).

Sexual Conduct.

Partying, drinking, and flirting do not constitute sexual conduct under this section. Slater v. State, 310 Ark. 73, 832 S.W.2d 846 (Ark. 1992).

Masturbation by the victim is not included within the definition of “sexual conduct” under subsection (a) of this section; however, incidents of individual masturbation by a victim have no relevance when the question at hand is whether a defendant raped that victim. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994).

As in the case of prior sexual conduct excluded under this section, there is a definite humiliation and embarrassment to the victim associated with a line of inquiry into victim's masturbation history which is not warranted when the evidentiary value of the evidence is weak. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994).

Probative value of evidence of the victim's prior sexual conduct was outweighed by the prejudicial effect on the victim and the state's case; the evidence sought to be admitted by defendant was improper character evidence offered to show that the victim was an immoral person, thus, the trial court conducted the appropriate balancing test set out in subsection (c) of this section and concluded that the probative value of the evidence outweighed its prejudicial nature. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003).

Where defendant was charged with raping his girlfriend's six-year-old daughter, the circuit court did not err by excluding evidence of the uncle's molestation of the victim under the rape-shield statute, subsection (b) of this section. The sexual abuses perpetrated by defendant and the uncle hardly resembled each other; the victim spoke about the uncle's touching only after she had already told her therapist about defendant's abuse. Swaim v. State, 2009 Ark. App. 557 (2009).

During defendant's trial for sexual assault of a person less than 14 years old, the court erred in granting his motion to introduce evidence of specific instances of sexual conduct of the victim; because the victim asserted that a prior allegation of sexual conduct with her cousin was true, subsection (b) of this section precluded the admissibility of the evidence surrounding the allegation to attack her credibility. State v. Kindall, 2013 Ark. 262, 428 S.W.3d 486 (2013).

Circuit court abused its discretion in admitting evidence of the victim's prior sexual conduct to show the res gestae of the rape charge where defendant failed to demonstrate how evidence of the victim's lap dances with a third party in the presence of the defendant the day before the offense was probative to whether defendant raped the victim the next evening while she was physically helpless and incapable of consent (defendant did not challenge on appeal the circuit court's rejection of his argument that the lap dances did not constitute sexual conduct). State v. Cossio, 2017 Ark. 297, 529 S.W.3d 620 (2017).

Cited: Pruitt v. State, 8 Ark. App. 350, 652 S.W.2d 51 (1983); Johnson v. State, 290 Ark. 166, 717 S.W.2d 805 (1986); Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Rorex v. State, 31 Ark. App. 127, 790 S.W.2d 180 (1990); Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993); Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994); Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994); Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994); Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995); Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007); Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008); Woodall v. State, 2011 Ark. 22, 376 S.W.3d 408 (2011).

16-42-102. Presence of parent or custodian at proceedings involving minor sexual assault victims.

In any prosecution for a sexual offense or inchoate offense to a sexual offense, upon motion of the prosecuting attorney and after notice to opposing counsel, the court may, for good cause shown, allow the presence of the parent, stepparent, guardian, custodian, or other person with custody of an alleged minor victim of a sexual offense or inchoate offense to a sexual offense during the examination and cross-examination of the minor at any hearing, deposition, or trial.

History. Acts 1985, No. 444, § 1; A.S.A. 1947, § 43-2038.

Cross References. Right of victim to be present at hearing, Evid. Rule 616.

16-42-103. Admissibility of evidence of similar crimes in sexual assault cases.

  1. In a criminal case where the defendant is accused of a sexual assault, evidence of the defendant's commission of another sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant, subject to the circuit court's consideration of the admissibility of any such evidence under Rule 403 of the Arkansas Rules of Evidence.
  2. In a case where the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant or the defendant's attorney if an attorney is representing the defendant, including statements of witnesses or a summary of the substance of any testimony at least forty-five (45) days before the scheduled date of trial or at such later time as the court may allow for good cause.
  3. This section shall not be construed to limit the admission or consideration of evidence under any rule of the Arkansas Rules of Evidence, the Arkansas Rules of Criminal Procedure, or any law.
  4. For purposes of this section, the term “sexual assault” includes the following offenses:
    1. Rape, § 5-14-103;
    2. Sexual assault in the first degree, § 5-14-124; and
    3. Sexual assault in the second degree, § 5-14-125.

History. Acts 2005, No. 536, § 1.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

Chapter 43 Witnesses Generally

Subchapter 1 — General Provisions

Research References

Ark. L. Rev.

Witness Privileges, 15 Ark. L. Rev. 93.

16-43-101. Exemption of witnesses from summons when obeying subpoena.

A witness shall not be liable to be sued in a county in which he does not reside by being served with a summons in that county while going, returning, or attending in obedience to a subpoena.

History. Civil Code, § 595; C. & M. Dig., § 4171; Pope's Dig., § 5181; A.S.A. 1947, § 28-521.

Case Notes

In General.

A party cannot be lawfully served with civil process while he is in attendance on a court in a state other than that of his residence either as a party or a witness or while going thereto or returning therefrom. Martin v. Bacon, 76 Ark. 158, 88 S.W. 863 (1905).

Illustrative Cases.

A resident of the state, while attending the taking of depositions in a cause to which he is a party in a county not of his residence, is privileged from service of summons in another action there pending. Powers v. Arkadelphia Lumber Co., 61 Ark. 504, 33 S.W. 842 (1896).

An attorney, while attending court in his professional capacity in a county other than that of his residence, is not exempt from the service of summons in a civil action brought against him in that county. Paul v. Stuckey, 126 Ark. 389, 189 S.W. 676 (1916).

A member of the legislature may be served with summons in a civil action to appear at a future date after the legislature adjourns. Doyle-Kidd Dry Goods Co. v. Munn, 151 Ark. 629, 238 S.W. 40 (1922).

Where a nonresident was served with summons in the course of a trial while he was there as a witness under subpoena, he was immune from such service and the service would have to be quashed. Frier v. Terry, 230 Ark. 302, 323 S.W.2d 415 (1959).

Cited: Caldwell v. Dodge, 179 Ark. 235, 15 S.W.2d 318 (1929); Terry v. Plunkett-Jarrell Grocery Co., 220 Ark. 3, 246 S.W.2d 415, 29 A.L.R.2d 1264 (1952).

16-43-102. Privilege from arrest while serving as witness.

All witnesses shall be privileged from arrest in all cases except treason, felony, or breach of the peace during their attendance on any court where their attendance is required by subpoena, and going to and returning from the place where they may be required to appear to testify, allowing one (1) day for every twenty-five (25) miles from their residence.

History. Rev. Stat., ch. 158, § 10; C. & M. Dig., § 4159; Pope's Dig., § 5169; A.S.A. 1947, § 28-522.

Case Notes

Out-of-state Witnesses.

Subsection (c) of ARCP 45 does not provide for subpoena power over out-of-state witnesses testifying in a civil case. McNees v. Mountain Home, 993 F.2d 1359 (8th Cir. 1993).

Because ARCP 45 does not give the Chancery Court authority to compel an out-of-state witness to appear to testify, a witness' appearance would be voluntary, and the witness would not be entitled to immunity from arrest under this section. McNees v. Mountain Home, 993 F.2d 1359 (8th Cir. 1993).

16-43-103. Unlawful arrest — Abatement of suit — Fine.

Any person who causes a witness to be arrested, knowing him to be in attendance as such upon a subpoena, shall have his suit abated and shall be fined at the discretion of the court from which the subpoena issued, in any sum not exceeding one hundred dollars ($100).

History. Rev. Stat., ch. 158, § 11; C. & M. Dig., § 4160; Pope's Dig., § 5170; A.S.A. 1947, § 28-523.

Subchapter 2 — Securing Attendance Generally

Publisher's Notes. Some provisions of this subchapter may be superseded by the ARCP pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Cross References. Securing testimony of material witness in grand jury investigation, § 16-85-508.

Effective Dates. Acts 1845, § 3, p. 44: effective on passage.

Acts 1875, No. 77, § 53: effective on passage.

Acts 1937, No. 160, § 7: approved Mar. 1, 1937. Emergency clause provided: “It is found to be a fact that the less frequent meeting of the grand jury necessitates vesting authority in the prosecuting attorney to subpoena witnesses in order to properly prepare criminal cases. Therefore, this Act being necessary for the public health, peace, and safety, an emergency is hereby declared to exist, and this Act shall become effective immediately upon its passage.”

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.

Sufficiency of efforts to procure witnesses' attendance to justify admission of his former testimony — state cases. 3 A.L.R.4th 87.

Am. Jur. 81 Am. Jur. 2d, Witn., § 1 et seq.

Ark. L. Rev.

Witnesses, 27 Ark. L. Rev. 229.

C.J.S. 97 C.J.S., Witn., § 1 et seq.

16-43-201, 16-43-202. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that these sections, concerning subpoenas and compulsion of attendance of witnesses, were deemed superseded by the Arkansas Rules of Civil Procedure. The sections were derived from the following sources:16-43-201. Acts 1973, No. 17, §§ 1-4; A.S.A. 1947, §§ 28-537—28-540.16-43-202. Civil Code, § 609; C. & M. Dig., § 4208; Pope's Dig., § 5220; A.S.A. 1947, § 28-519.

16-43-203. Excusing of witness when deposition given.

A witness shall not be compelled to attend court for oral examination where his deposition may be used unless he has failed, when duly summoned, to appear and give his deposition.

History. Civil Code, § 608; C. & M. Dig., § 4207; Pope's Dig., § 5219; A.S.A. 1947, § 28-520.

16-43-204. Attendance until discharged or case decided.

Any person subpoenaed to appear before any court of record of this state, or justice of the peace, to give evidence in any case brought before the court or justice shall attend each and every term, or from time to time, until the case is decided, or until the witness is discharged by the court or justice trying the case.

History. Acts 1845, § 1, p. 44; C. & M. Dig., § 4172; Pope's Dig., § 5182; A.S.A. 1947, § 28-509.

Cross References. Continuance for absence of witness, § 16-63-402.

16-43-205. Authorization for officials taking depositions to compel attendance of witnesses.

Every person in this state who is required to take depositions or examinations of witnesses by virtue of any commission issued out of any court of record of this or any other government shall have power to issue subpoenas for witnesses to appear and testify and to compel their attendance in the same manner and under the same penalties as any court of record of this state.

History. Rev. Stat., ch. 48, § 14; C. & M. Dig., § 4154; Pope's Dig., § 5164; A.S.A. 1947, § 28-504; Acts 2003, No. 1185, § 182.

Amendments. The 2003 amendment deleted “judge, justice of the peace, or master in chancery” following “person” and “in pursuance of this act, or” following “witnesses,” and made a minor stylistic change.

Meaning of “this act”. Chapter 48 of the Revised Statutes, codified as §§ 16-43-205, 16-44-102 [superseded], 16-44-108 [superseded], 16-44-109 [superseded].

16-43-206. Discharge of contempt order.

A witness imprisoned or fined for contempt by an officer before whom his or her deposition is being taken may apply to the circuit judge, who shall have power to discharge the witness if it appears that the imprisonment is illegal.

History. Civil Code, §§ 587, 590-592; C. & M. Dig., §§ 4163, 4166-4168; Pope's Dig., §§ 5173, 5176-5178; A.S.A. 1947, §§ 28-512, 28-515 — 28-517; Acts 2005, No. 1994, § 315.

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that subsections (a), (b), and (d) of this section were deemed superseded by the Arkansas Rules of Civil Procedure.

Cross References. Contempt generally, § 16-10-108.

16-43-207. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that this section, concerning disobedience of subpoenas, was deemed superseded by the Arkansas Rules of Civil Procedure. The section was derived from Civil Code, §§ 588, 589; C. & M. Dig., §§ 4164, 4165; Pope's Dig., §§ 5174, 5175; A.S.A. 1947, §§ 28-513, 28-514.

16-43-208. Criminal proceedings — Subpoenas for witnesses generally.

  1. The clerk of the court, upon request of the prosecuting attorney or upon request of the defendant or his attorney, shall issue subpoenas for witnesses.
  2. The state shall have the right to subpoena at the expense of the county six (6) witnesses if the charge is a misdemeanor and twelve (12) witnesses if it is a felony less than a capital offense. The defendant shall have the right to subpoenas at the expense of the county for six (6) witnesses in misdemeanor and twelve (12) witnesses in felony cases less than capital. There shall be no limit upon the number of witnesses who may be subpoenaed at the expense of the county in capital cases.
  3. Either party shall have the right to recall subpoenas before service and substitute the names of other witnesses for those for whom subpoenas were originally issued.
  4. Neither side shall in any event have at the expense of the county more than six (6) character witnesses in any type of case, capital or otherwise.

History. Crim. Code, § 151; C. & M. Dig., § 3109; Init. Meas. 1936, No. 3, § 34, Acts 1937, p. 1384; Pope's Dig., § 3939; A.S.A. 1947, § 43-2001.

Cross References. County not to pay for making more than two returns for subpoenas in any given case, § 21-6-504.

Right of accused to obtain witnesses by compulsory process, Ark. Const., Art. 2, § 10.

Case Notes

Capital Cases.

The right to subpoena unlimited witnesses in capital murder cases is not absolute when it pertains to out-of-state witnesses; thus, the court did not abuse its discretion in denying subpoenas for a federal prisoner incarcerated out-of-state and for various state prisoners where the defendant did not furnish any information which indicated that these witnesses were material to the defense and where the court specifically ruled on relevance. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, Henry v. Arkansas, 464 U.S. 835, 104 S. Ct. 121 (1983).

This section, which provides for unlimited out-of-state witnesses in capital felony cases, must be read in conjunction with § 16-43-403, which provides that such witnesses must be material; such right to witnesses is not absolute but, rather, rests within the sound discretion of the trial judge. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).

In capital murder prosecution, trial court erred in refusing to subpoena out-of-state government witnesses who performed certain tests which were negative or inconclusive in linking defendant to crime; however, error was harmless where other evidence available to jury indicated that test results were negative. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).

Fees.

Witnesses were entitled to fees whether used or not, or, if used, their testimony excluded as incompetent. Peay v. Searcy County, 111 Ark. 386, 163 S.W. 1147 (1914).

Service.

This section does not impose upon the sheriff a duty to serve subpoenas authorized by this section. MacKintrush v. State, 60 Ark. App. 42, 959 S.W.2d 404 (1997), aff'd, 334 Ark. 390, 978 S.W.2d 293 (1998).

The trial court properly dismissed a petition for mandamus to require the sheriff to serve a subpoena on a defense witness; the section is silent about the duty of the sheriff to serve subpoenas and there are other methods available for service. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Cited: Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Perry v. Lockhart, 871 F.2d 1384 (8th Cir. Ark. 1989); Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003).

16-43-209. Criminal proceedings — Additional witnesses.

  1. Should either party desire additional witnesses at the expense of the county, he may file, in term time or in vacation of the court, his verified application for the additional witnesses with the judge of the court.
  2. The application shall contain a statement of the facts which the party expects to prove by each one of the additional witnesses sought and an affidavit that such facts cannot be adequately established by the witnesses for whom the party has had subpoenas issued. If any such affidavit is willfully false, the party making it may be punished as for contempt of court. If the judge finds the application should be granted, he shall direct the clerk to issue subpoenas for the additional witnesses he finds the party should have.
  3. After the trial of the case or after the witnesses have testified, and not before, the judge shall file the application with the clerk of the court, and it shall become a part of the record in the case. In no event shall the judge disclose the contents of the application until the case has been tried or the witnesses have testified.
  4. While the trial is actually in progress, the court in its discretion may direct the clerk to issue additional subpoenas at the expense of the county without affidavits required by this subchapter.
  5. In any event, either party may have additional witnesses who receive no compensation from the county for their services.

History. Init. Meas. 1936, No. 3, § 35, Acts 1937, p. 1384; Pope's Dig., § 3940; A.S.A. 1947, § 43-2002.

Case Notes

Cited: Perry v. Lockhart, 871 F.2d 1384 (8th Cir. Ark. 1989).

16-43-210. Criminal proceedings — Attendance by witness in several criminal cases.

A witness subpoenaed to attend before any circuit court in more than one (1) criminal case at the same time shall be allowed pay, when the costs are paid by the county, in only one (1) case and only for the actual number of days he or she is in attendance, regardless of the number of cases in which he or she is summoned or called upon to testify.

History. Acts 1875, No. 77, § 40, p. 167; C. & M. Dig., § 4612; Pope's Dig., § 5701; A.S.A. 1947, § 43-2003; Acts 2005, No. 1994, § 263.

Case Notes

Cited: Perry v. Lockhart, 871 F.2d 1384 (8th Cir. Ark. 1989).

16-43-211. Criminal proceedings — Civil procedure to govern.

The provisions of the Code of Practice in Civil Cases shall apply to and govern summoning and coercing the attendance of witnesses and compelling them to testify in all prosecutions and all criminal or penal actions or proceedings, except that the attendance of witnesses residing in any part of the state may be coerced, and it shall never be necessary to tender to the witnesses any compensation for expenses or otherwise before process of contempt shall issue.

History. Crim. Code, § 152; Acts 1871, No. 49, § 1 [152], p. 255; C. & M. Dig., § 3110; Pope's Dig., § 3941; A.S.A. 1947, § 43-2004.

Publisher's Notes. The “Code of Practice in Civil Cases,” referred to in this section, means the Code of Practice in Civil Cases of 1869. See parallel reference table in the tables volume.

Case Notes

Power of Prosecuting Attorney.

At most, this section merely gives the prosecuting attorney the power to coerce the attendance of witnesses at a hearing and force them to testify “in all prosecutions,” and does not give him the power to deny the presence of an attorney requested by a witness. Gill v. State ex rel. Mobley, 242 Ark. 797, 416 S.W.2d 269 (1967).

Pretrial Deposition.

Subpoena duces tecum directing corporate official to appear at pretial deposition with all records relating to work and pay records of co-workers involved in dispute was properly quashed despite defendant's claim that the information was relevant to his defense, since the issue of discrimination by the employer was irrelevant to dispute and, moreover, there was no statutory authority for the taking of a pretrial deposition in such circumstances. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), superseded by statute as stated in, Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001).

Cited: Copeland v. State, 226 Ark. 198, 289 S.W.2d 524 (1956); Williams v. State, 237 Ark. 569, 375 S.W.2d 375 (1964); Dickerson v. State, 546 S.W.2d 712 (1977); Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

16-43-212. Criminal proceedings — Issuance of subpoenas pursuant to investigations.

  1. The prosecuting attorneys and their deputies may issue subpoenas in all criminal matters they are investigating and may administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them. Such oath when administered by the prosecuting attorney or his or her deputy shall have the same effect as if administered by the foreman of the grand jury. The subpoena shall be substantially in the following form:
  2. The subpoena provided for in subsection (a) of this section shall be served in the manner as provided by law and shall be returned and a record made and kept as provided by law for grand jury subpoenas. The fees and mileage of officers serving the subpoenas and of witnesses in appearances in answer to the subpoenas shall be the same and shall be paid in the same manner as provided by law for grand jury witnesses.
  3. The failure of any officer to serve the subpoena or of a witness to appear on the returned date shall constitute a Class B misdemeanor.

“The State of Arkansas to the Sheriff of County: You are commanded to summon to attend before the Prosecuting Attorney at , A.D. 20 .M., and testify in the matter of an investigation then to be conducted by the said Prosecuting Attorney growing out of a representation that has committed the crime of in said County. Witness my hand this , A.D. 20 . Prosecuting Attorney By Deputy Prosecuting Attorney”

Click to view form.

History. Acts 1937, No. 160, §§ 1-3; Pope's Dig., §§ 3793-3795; A.S.A. 1947, §§ 43-801 — 43-803; Acts 2005, No. 1994, § 395.

Research References

Ark. L. Rev.

Hall, The Prosecutor's Subpoena Power, 33 Ark. L. Rev. 122.

Case Notes

Constitutionality.

The court rejected defendant's argument that he was denied due process when he was not allowed equal discovery rights to those given the state pursuant to this section. Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973) does not suggest that the due process clause requires states to adopt discovery procedures in criminal cases, but rather it held that, where a state imposes discovery against a defendant, equivalent rights must be given to a defendant. Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987).

Attorney-Client Privilege.

Where an accident reconstructionist was hired by an attorney representing a driver who was involved in a car accident, the accident reconstruction report and testimony of the accident reconstructionist's employee were confidential, privileged communications that could not be subpoenaed. Holt v. McCastlain, 357 Ark. 455, 182 S.W.3d 112 (2004).

Authority of Prosecutor.

A prosecuting attorney may not, under guise of an investigation of possible vote buying, subpoena the bank records of a political party's checking account and thereby ascertain the identity of all contributors to the party's campaign and the amounts of their contributions without a showing that such information is reasonably relevant to such investigation or that public interest in the disclosure of such information is sufficiently cogent and compelling to outweigh the legitimate and constitutionally protected interests of the party and its contributors in having that information remain private. Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark.), aff'd, 393 U.S. 14, 89 S. Ct. 47, 21 L. Ed. 2d 14 (1968).

The authority of the prosecuting attorney to subpoena witnesses for investigative purposes is limited to subpoenaing those witnesses to appear at a place in the county where the alleged offenses or matters to be investigated occurred. State ex rel. Streett v. Stell, 254 Ark. 656, 495 S.W.2d 846 (1973).

Use of the prosecutor's subpoena power to obtain the presence of a witness for questioning by a police officer, absent the prosecutor, was illegal. Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ct. App. 1980).

A prosecuting attorney who issues a subpoena pursuant to this section takes the place of a grand jury. Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981).

While subpoenas may be used under this section to bring in witnesses to interrogate them about a case under investigation as well as to review their testimony before trial but after the case has been investigated, it was an abuse of the prosecutor's subpoena power to assemble all of the state's witnesses in the trial courtroom prior to trial and question them under oath and in the presence of each other regarding the crime, without the knowledge of the trial judge or defense attorney, since this procedure without cross-examination could pressure recalcitrant witnesses to conform their testimony with the others. Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981).

In the absence of an abuse of the power, a prosecutor's subpoena may be used to prepare for trial after charges have been filed. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984).

Where, without a subpoena, police officers picked up the defendant ostensibly because the prosecutor wished to see her, but the prosecutor did not participate in the subsequent questioning, the defendant's subsequent statement should have been suppressed. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985).

A prosecutor's power to subpoena must be used only for the prosecutor's investigation; the prosecutor abused his power to subpoena when he commanded that records be produced for the police. State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986).

Prosecutor's use of his subpoena power to subpoena three witnesses who did not testify at trial, and to subpoena defendant's school records, was for investigation and preparation and did not amount to an abuse of the power. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Where a prosecutor issued a subpoena to obtain the defendant's medical records from a county health department after two people tested positive for HIV and reported that they believed they had contracted it from the defendant, the prosecutor properly used the subpoena as an investigatory tool and not as a tool for a police investigation. Weaver v. State, 66 Ark. App. 249, 990 S.W.2d 572, cert. denied, 528 U.S. 913, 120 S. Ct. 265, 145 L. Ed. 2d 222 (1999).

Defendant's first-degree murder conviction was overturned and the case was remanded for a new trial where a witness's prior inconsistent statement was improperly admitted. The prosecutor's subpoena of the witness was not used for the deputy prosecutor's investigation, but instead was used for a detective's investigation, and the detective was not an official authorized to take the witness's statement under § 16-43-212(a). Stephens v. State, 98 Ark. App. 196, 254 S.W.3d 1 (2007).

During a capital murder trial, the court did not err in admitting text messages from a cellular telephone number assigned to defendant because the prosecutor's subpoena requests were not unreasonable in scope or irrelevant; the prosecutor did not abuse the prosecutor's subpoena power. Gulley v. State, 2012 Ark. 368, 423 S.W.3d 569 (2012).

Defense Witnesses.

Subpoena of defense witnesses several months after the charges were filed and only one month prior to the original trial date was not an abuse of the prosecutor's subpoena power. Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995).

Federal Court Abstention.

The federal courts should abstain in a suit filed by a subpoena recipient who alleges that the prosecuting attorney subpoenaed papers and documents without probable cause. Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981).

Right to Counsel.

Witnesses required to testify before the prosecuting attorney under this section are entitled to have their attorneys present. Gill v. State ex rel. Mobley, 242 Ark. 797, 416 S.W.2d 269 (1967).

Specificity of Subpoena.

A prosecuting attorney's subpoena issued under this section requiring a bank to produce records pertaining to the bank account of one of its depositors was not objectionable because it failed to specify the crime committed or the name of the person charged with committing it. First Nat'l Bank v. Roberts, 242 Ark. 912, 416 S.W.2d 316 (1967).

Statement Under Oath.

Prior inconsistent statement by witness given under oath to the deputy prosecuting attorney was properly admitted for its substantive content and a limiting instruction was not required since it was given to the prosecuting attorney as provided for in this section. Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 529 (1981).

Waiver of Irregularities.

Defendant waived any irregularity in filing of information with the clerk instead of in open court, when he entered a plea of not guilty, as defendant was then in court. Ogles v. State, 214 Ark. 581, 217 S.W.2d 259 (1949).

Cited: Kiefer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989); In re Badami, 309 Ark. 511, 831 S.W.2d 905 (1992).

16-43-213. Prisoner as witness — Attendance — Examination by deposition.

A person confined in any prison in this state for any cause other than a sentence for felony may, by order of the court, be required to be produced for oral examination in the county where he is imprisoned. However, in all other cases his examination must be taken by deposition.

History. Civil Code, § 593; C. & M. Dig., § 4169; Pope's Dig., § 5179; A.S.A. 1947, § 28-518.

Case Notes

Contempt.

Although a convict may be compelled to testify under this section, he cannot, upon refusal to testify, be punished for contempt and his sentence in the penitentiary suspended during his sentence for contempt. Williams v. State, 125 Ark. 287, 188 S.W. 826 (1916).

Felon.

Where a witness is a convicted felon and incarcerated in the state penitentiary, it is not error, in a criminal trial, for the court to overrule a motion by the defendant requesting that the attendance of the witness upon the trial be procured. Tiner v. State, 110 Ark. 251, 161 S.W. 195 (1913).

16-43-214. Prisoner from Division of Correction as witness.

  1. Upon presentation by the prosecuting attorney or interested defense counsel of a petition duly verified and for good cause, any circuit court having jurisdiction of any criminal offense involving a felony pending for trial in that court may have jurisdiction and authority to provide by proper order for the presence in court, and for the trial and as a witness, of any person incarcerated in the Division of Correction whose testimony would be material either for the State of Arkansas or for the defendant in the action.
  2. Upon the granting of a petition by the circuit court pursuant to subsection (a) of this section and upon presentation to the authorized officials of the division of a signed order or certified copy thereof by the circuit clerk of such court, the officials having custody of the prisoner are authorized and directed to transport or cause to be transported the prisoner by such means and methods as they deem proper, at the time and place as directed by the order of the circuit court.
  3. The custody of a prisoner sought to be used as a witness shall at all times remain in the authorized officials of the division, subject to the order and direction of the circuit court. Immediately upon the completion of the testimony by the prisoner in court or upon the completion of the trial requiring his or her presence, the prisoner shall be immediately returned to the division by the official having his or her custody.

History. Acts 1959, No. 162, §§ 1-3; A.S.A. 1947, §§ 43-2022 — 43-2024; Acts 2019, No. 910, § 854.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” in the section heading and throughout the section; and inserted “or her” twice in (c).

Research References

Ark. L. Rev.

Witness Privileges, 15 Ark. L. Rev. 93.

Case Notes

Failure to Obtain Order.

Where no order was ever obtained under this section, trial court did not err in denying continuance requested because of absence of imprisoned witness. Walker v. State, 280 Ark. 17, 655 S.W.2d 370 (1983); Johnson v. State, 287 Ark. 426, 700 S.W.2d 786, 1985 Ark. LEXIS 2300 (1985).

Cited: Walker v. Lockhart, 807 F.2d 136 (8th Cir. 1986).

16-43-215. Videotaped deposition of State Crime Laboratory analyst — Definition.

  1. As used in this section, the term “videotaped deposition” means the visual recording on a magnetic tape, together with the associated sound, of a witness testifying under oath in the course of a judicial proceeding, upon oral examination, and where an opportunity is given for cross-examination in the presence of the defendant and intended to be played back upon the trial of the action in court.
    1. In all criminal trials in which the defendant is charged under the Uniform Controlled Substances Act, § 5-64-101 et seq., upon motion of the prosecuting attorney and after notice to the opposing counsel, the court, for good cause shown and sufficient safeguards to satisfy all state and federal constitutional requirements of oath, confrontation, cross-examination, and observation of the demeanor of the witness and testimony by the defendant, the court, and the jury, and absent a showing of prejudice by the defendant, may order the taking of a videotaped deposition of any State Crime Laboratory analyst.
    2. The videotaped deposition shall be taken at the State Crime Laboratory, or at a location ordered by the court, in the presence of the prosecuting attorney, the defendant, and the defendant's attorney.
    3. Examination and cross-examination of the analyst shall proceed at the taking of the videotaped deposition in the same manner as permitted at trial under the provisions of the Arkansas Rules of Evidence.
    1. Any videotaped deposition taken under the provisions of this section shall be admissible at trial and received into evidence in lieu of the direct testimony of the analyst.
    2. However, neither the presentation nor the preparation of such videotaped deposition shall preclude the prosecutor or the defendant's attorney from calling the analyst to testify at trial if that is necessary to serve the interests of justice.

History. Acts 2001, No. 1234, § 1; 2013, No. 1148, § 7[8].

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Amendments. The 2013 amendment, in (b)(3), deleted “Uniform” following “Arkansas” and “§ 16-41-101” following “Evidence.”

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.

Subchapter 3 — Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act

16-43-301. Interstate rendition of prisoners as witnesses — Definitions.

As used in this subchapter:

  1. “Witness” means a person who is confined in a penal institution in any state and whose testimony is desired in another state in any criminal proceeding or investigation by a grand jury or in any criminal action before a court;
  2. “Penal institutions” includes a jail, prison, penitentiary, house of correction, or other place of penal detention;
  3. “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory of the United States.

History. Acts 1959, No. 216, § 1; A.S.A. 1947, § 43-2025.

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

16-43-302. Hearing or request for presence of prisoner in another state.

A judge of a state court of record in another state, which by its laws has made provision for commanding persons confined in penal institutions within that state to attend and testify in this state, may certify:

  1. That there is a criminal proceeding or investigation by a grand jury or a criminal action pending in the court;
  2. That a person who is confined in a penal institution in this state may be a material witness in the proceeding, investigation, or action; and
  3. That his presence will be required during a specified time. Upon presentation of the certificate to any judge having jurisdiction over the person confined, and upon notice to the Attorney General, the judge in this state shall fix a time and place for a hearing and shall make an order directed to the person having custody of the prisoner requiring that the prisoner be produced before him at the hearing.

History. Acts 1959, No. 216, § 2; A.S.A. 1947, § 43-2026.

16-43-303. Finding of court — Order that prisoner be produced in other state.

If at the hearing the judge determines:

  1. That the witness may be material and necessary;
  2. That his attending and testifying are not adverse to the interests of this state or to the health or legal rights of the witness;
  3. That the laws of the state in which he is requested to testify will give him protection from arrest and the service of civil and criminal process because of any act committed prior to his arrival in the state under the order; and
  4. That as a practical matter the possibility is negligible that the witness may be subject to arrest or to the service of civil or criminal process in any state through which he will be required to pass, the judge shall issue an order, with a copy of the certificate attached:
    1. Directing the witness to attend and testify;
    2. Directing the person having the custody of the witness to produce him, in the court where the criminal action is pending or where the grand jury investigation is pending, at a time and place specified in the order; and
    3. Prescribing such conditions as the judge shall determine.

History. Acts 1959, No. 216, § 3; A.S.A. 1947, § 43-2027.

16-43-304. Contents of order — Safeguarding custody — Payment of expenses.

The order to the witness and to the person having custody of the witness shall provide for the return of the witness at the conclusion of his testimony, proper safeguards on his custody, and proper financial reimbursement or prepayment by the requesting jurisdiction for all expenses incurred in the production and return of the witness, and may prescribe such other conditions as the judge thinks proper or necessary. The order shall not become effective until the judge of the state requesting the witness enters an order directing compliance with the conditions prescribed.

History. Acts 1959, No. 216, § 4; A.S.A. 1947, § 43-2028.

16-43-305. Insane or mentally ill persons not subject to subchapter.

This subchapter does not apply to any person in this state confined as insane or mentally ill.

History. Acts 1959, No. 216, § 5; A.S.A. 1947, § 43-2029.

16-43-306. Certificate for obtaining prisoner from another state to testify in this state.

If a person confined in a penal institution in any other state may be a material witness in a criminal action pending in a court of record or in a grand jury investigation in this state, a judge of the court may certify:

  1. That there is a criminal proceeding or investigation by a grand jury or a criminal action pending in the court;
  2. That a person who is confined in a penal institution in the other state may be a material witness in the proceeding, investigation, or action; and
  3. That his presence will be required during a specified time. The certificate shall be presented to a judge of a court of record in the other state having jurisdiction over the prisoner confined, and a notice shall be given to the Attorney General of the state in which the prisoner is confined.

History. Acts 1959, No. 216, § 6; A.S.A. 1947, § 43-2030.

16-43-307. Order for compliance with terms prescribed by court of other state.

The judge of the court in this state may enter an order directing compliance with the terms and conditions prescribed by the judge of the state in which the witness is confined.

History. Acts 1959, No. 216, § 7; A.S.A. 1947, § 43-2031.

16-43-308. Prisoner from other state immune from arrest or process while being transported or held as witness.

If a witness from another state comes into or passes through this state under an order directing him to attend and testify in this or another state, he shall not while in this state pursuant to the order be subject to arrest or the service of process, civil or criminal, because of any act committed prior to his arrival in this state under the order.

History. Acts 1959, No. 216, § 8; A.S.A. 1947, § 43-2032.

16-43-309. Uniformity of construction.

This subchapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History. Acts 1959, No. 216, § 9; A.S.A. 1947, § 43-2033.

16-43-310. Short title.

This subchapter may be cited as the “Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act”.

History. Acts 1959, No. 216, § 10; A.S.A. 1947, § 43-2034.

16-43-311. Severability.

If any provision of this subchapter or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the subchapter which can be given effect without the invalid provision or application, and to this end the provisions of this subchapter are severable.

History. Acts 1959, No. 216, § 11; A.S.A. 1947, § 43-2034n.

16-43-312. [Reserved.]

Publisher's Notes. Section 12 of the ULA act, the effective date provision, was not adopted in Arkansas.

Subchapter 4 — Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases

Preambles. Acts 1953, No. 352 contained a preamble which read:

“Whereas, Act. No. 65 of the General Assembly of 1935 makes provision for the attendance of witnesses in criminal cases in this State under certain circumstances where the witness resides in another state, and also makes provisions for payment of these witnesses in advance of the sum of ten cents per mile to and from the court and $5.00 per day for their attendance; and

“Whereas, the same Act does not expressly provide for the method of payment of the aforesaid sums in advance; and

“Whereas, there has been some confusion in some of the judicial circuits of the State as to the correct manner of handling these payments in advance and handling the taxing of costs in the case; and

“Whereas, the General Assembly always intended the following procedure;

“Now, therefore….”

Publisher's Notes. For Comments regarding the Uniform Act to secure the Attendance of Witnesses from Without the State in Criminal Cases, see Commentaries Volume B.

Effective Dates. Acts 1953, No. 352, § 2: Mar. 28, 1953. Emergency clause provided: “The purpose of this Act is to declare and clarify the legislative intent in Act 65 of 1935 and is designed to make uniform the procedures to be followed under such Act is immediately necessary for the administration of justice in 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.”

Acts 1977, No. 453, § 5: approved Mar. 17, 1977. Emergency clause provided: “In 1935, the General Assembly passed Act 65 of 1935 which was Arkansas' version of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Cases. The Arkansas version of the Uniform Act omitted references to grand jury and special criminal proceedings. Arkansas never adopted the new Uniform Act which was amended to correct this deficiency.

“It is hereby found by the General Assembly of the State of Arkansas that there is presently no way a person can be compelled to attend a grand jury proceeding in another state unless the Arkansas Uniform Act so provides. Likewise, persons from other states cannot be compelled to attend before an Arkansas grand jury unless the version of the Uniform Act in both states so provides.

“It is further found by the General Assembly of the State of Arkansas that there has been a tremendous growth of interstate crime. Most of these crimes are not within the United States Code, and the states must cooperate to prosecute them.

“Therefore, this Act being necessary for the efficient and adequate administration of criminal justice in the State, an emergency is hereby declared to exist, and this Act shall be effective and in force from and after its passage.”

Research References

ALR.

Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of subpoena duces tecum. 7 A.L.R.4th 836.

Witness certificate to secure attendance of out-of-state witness under Uniform Act to Secure the Attendance of Witnesses from Without State in Criminal Proceedings. 12 A.L.R.4th 742.

Issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. 12 A.L.R.4th 771.

Ark. L. Rev.

Hall, The Prosecutor's Subpoena Power, 33 Ark. L. Rev. 122.

Case Notes

Cited: Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987).

16-43-401. [Reserved.]

Publisher's Notes. Section 1 of the ULA act, which concerns definitions, was not adopted in Arkansas.

16-43-402. Attendance in another state.

If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution or criminal proceeding pending in such court, or that a grand jury or prosecuting attorney's investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution or proceeding or grand jury or prosecuting attorney's investigation, and that his presence will be required for a specified number of days, and upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or proceeding or a grand jury or prosecuting attorney's investigation in the other state, and that the laws of the state in which the prosecution or proceeding is pending, or grand jury or prosecuting attorney's investigation has commenced or is about to commence, and of any other state through which the witness may be required to pass by ordinary course of travel will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution or proceeding is pending, or where a grand jury or prosecuting attorney's investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for the hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.

If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the sum of twelve cents (12¢) a mile for each mile by the ordinary traveled route or the actual expense of travel, lodging, and meals to and from the court where the prosecution or proceeding is pending or the grand jury or prosecuting attorney's investigation is being conducted and twenty-five dollars ($25.00) for each day, that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

As used in this subchapter, “prosecuting attorney's investigation” shall mean any investigation conducted by a prosecuting attorney in another state under a law substantially similar to § 16-43-212.

History. Acts 1935, No. 65, § 1; Pope's Dig., § 3942; 1977, No. 453, § 1; A.S.A. 1947, § 43-2005.

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Case Notes

Cited: Hale v. State, 246 Ark. 989, 440 S.W.2d 550 (1969); Hill v. Lewis, 361 F. Supp. 813 (E.D. Ark. 1973); Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982); Lackey v. State, 288 Ark. 225, 703 S.W.2d 858 (1986); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989).

16-43-403. Witness from another state.

If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or proceedings or grand jury or prosecuting attorney's investigations commenced or about to commence, in this state, is a material witness in a prosecution or proceeding pending in a court of record in this state, or in a grand jury or prosecuting attorney's investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

If the witness is summoned to attend and testify in this state he shall be tendered the sum of twelve cents (12¢) a mile for each mile by the ordinary traveled route or the actual expenses of travel, lodging, and meals to and from the court where the prosecution or proceeding is pending or the grand jury or prosecuting attorney's investigation is being conducted and twenty-five dollars ($25.00) for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

History. Acts 1935, No. 65, § 2; Pope's Dig., § 3943; Acts 1953, No. 352, § 1; 1977, No. 453, § 2; A.S.A. 1947, § 43-2006.

Case Notes

In General.

This section provides a mechanism for the defendant to request the court to order the attendance of the defendant's witnesses. Perry v. Norris, 879 F. Supp. 1503 (E.D. Ark. 1995), aff'd, 107 F.3d 665 (8th Cir. 1997).

Capital Cases.

Section 16-43-208, which provides for unlimited out-of-state witnesses in capital felony cases, must be read in conjunction with this section; such right to witnesses is not absolute but, rather, rests within the sound discretion of the trial judge. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).

Trial court erred in refusing to subpoena out-of-state government witnesses who performed certain tests which were negative or inconclusive in linking defendant to crime; however, error was harmless where other evidence available to jury indicated that test results were negative. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).

Compulsory Process.

The right to compulsory process is not absolute. In order to be entitled to compulsory process, the defendant must show how the witness' testimony would have been both material and favorable to his defense. Wright v. Lockhart, 914 F.2d 1093 (8th Cir. 1990), cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1193 (1991), cert. denied, Leslie Salt Co. v. United States, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991).

In order to establish that noncompelled testimony is material, defendant must show that the suppressed evidence might have affected the outcome of the trial. Wright v. Lockhart, 914 F.2d 1093 (8th Cir. 1990), cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1193 (1991), cert. denied, Leslie Salt Co. v. United States, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991).

Even if the denial of compulsory process amounts to constitutional error, federal circuit court will not reverse a conviction if the error is harmless. Wright v. Lockhart, 914 F.2d 1093 (8th Cir. 1990), cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1193 (1991), cert. denied, Leslie Salt Co. v. United States, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991).

Trial court's refusal to compel the attendance of nonresident witnesses did not violate defendant's Sixth Amendment right to compulsory process. Wright v. Lockhart, 914 F.2d 1093 (8th Cir. 1990), cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1193 (1991), cert. denied, Leslie Salt Co. v. United States, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991).

Discretion of Court.

The issuance of a petition for certification of a material nonresident witness, which compels attendance at government expense, is not an absolute right and lies within the discretion of the trial court. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979); Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Perry v. Norris, 879 F. Supp. 1503 (E.D. Ark. 1995), aff'd, 107 F.3d 665 (8th Cir. 1997).

Although the court was unaware it had any authority to act under this section, the result was the same as if the trial court had knowingly exercised its discretion by deciding that it would not, under the facts and circumstances of this case, issue a certificate demanding that the Alabama authorities require the attendance of defendant's witnesses; the defendant's constitutional rights were not violated. Perry v. Norris, 879 F. Supp. 1503 (E.D. Ark. 1995), aff'd, 107 F.3d 665 (8th Cir. 1997).

There is no absolute right to the certification process created by this section; the matter is within the discretion of the trial judge. Rowbottom v. State, 327 Ark. 76, 938 S.W.2d 224 (1997).

Expenses.

Where trial court had offered to allow the defendant to either bring four witnesses from out-of-state to testify at the trial or to take the depositions of an unlimited number of out-of-state witnesses, and the defendant chose to take the depositions, the defendant failed to establish that he was prejudiced by the court's failure to also allow him expenses for out-of-state witnesses since apparently all of the witnesses suggested by the defendant appeared at the trial anyway. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Reasonable Efforts to Procure Witness.

It was reversible error to permit the reading in evidence of a transcript of evidence given by a witness at a previous trial because of the absence of the witness from the state when the state's efforts to obtain the presence of the witness at the trial was confined to the issuance of two subpoenas and did not include inquiries as to the exact whereabouts of the witness nor efforts to obtain his testimony under this section. Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970).

Where state waited until it was too late to obtain witness under this section, the state's efforts were not reasonable; however, the state's misconduct in reading into the record the witness's testimony given at the first trial was harmless error, since the testimony was not critical because a rape victim's testimony need not be corroborated. Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980).

Refusal to Subpoena.

Court did not abuse its discretion in refusing to subpoena out-of-state witnesses sought by the defendant in connection with his defense. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).

Where defendant failed to support his claim that witness' out-of-state estranged husband was a material witness, the judge properly refused to compel his attendance. Rowbottom v. State, 327 Ark. 76, 938 S.W.2d 224 (1997).

Witness Taken into Custody.

Testimony of a material witness did not need to be suppressed because the witness was arrested and placed in jail for three days before she was transported back to this state; this section does contemplate that the material witness be taken into custody in the foreign state. Verdict v. State, 315 Ark. 436, 868 S.W.2d 443 (1993).

Cited: Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).

16-43-404. Witnesses immune from arrest.

If a person comes into this state in obedience to a summons directing him to attend and testify in a criminal prosecution in this state he shall not while in this state pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

If a person passes through this state while going to another state in obedience to a summons to attend and testify in a criminal prosecution in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

History. Acts 1935, No. 65, § 3; Pope's Dig., § 3944; A.S.A. 1947, § 43-2007.

Research References

Ark. L. Rev.

Witness Privileges, 15 Ark. L. Rev. 93.

16-43-405. Uniformity of interpretation.

This subchapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it.

History. Acts 1935, No. 65, § 4; A.S.A. 1947, § 43-2008.

16-43-406. Short title — Uniform Act.

This subchapter may be cited as the “Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases”.

History. Acts 1935, No. 65, § 5; A.S.A. 1947, § 43-2009.

16-43-407. Repealer.

All acts or parts of acts inconsistent with this subchapter are hereby repealed.

History. Acts 1935, No. 65, § 6; A.S.A. 1947, § 43-2009n.

16-43-408. [Reserved.]

Publisher's Notes. Section 8 of the ULA act, the severability provision, was not adopted in Arkansas.

16-43-409. Effective date.

Whereas, under the present statutes of the State of Arkansas there is no adequate remedy whereby the attendance of witnesses from without the state may be enforced, and whereas, it is necessary for the immediate preservation of the peace of the State of Arkansas that adequate means be provided whereby the attendance of witnesses from without the state may be had, an emergency is hereby declared and this subchapter shall become operative and in effect and be in force from and after its passage.

History. Acts 1935, No. 65, § 7; A.S.A. 1947, § 43-2009n.

Publisher's Notes. Acts 1935, No. 65 was signed by the Governor and became effective on February 20, 1935.

Subchapter 5 — Competency — Criminal Proceedings

Effective Dates. Acts 1885, No. 82, § 2: effective on passage.

Research References

ALR.

Court's witnesses (other than expert) in state criminal prosecution. 16 A.L.R.4th 352.

Am. Jur. 81 Am. Jur. 2d, Witn., § 69 et seq.

Ark. L. Rev.

Theory of Testimonial Competency and Privilege, 4 Ark. L. Rev. 377.

Character, Corruption and Contradiction in Arkansas, 15 Ark. L. Rev. 50.

C.J.S. 97 C.J.S., Witn., §§ 35 et seq., 49 et seq.

16-43-501. Accused as witness.

On the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors in this state, the person so charged shall, at his own request, but not otherwise, be a competent witness. The failure of the person so charged to make such a request shall not create any presumption against him.

History. Acts 1885, No. 82, § 1, p. 126; C. & M. Dig., § 3123; Pope's Dig., § 3957; A.S.A. 1947, § 43-2016.

Case Notes

Applicability.

This section does not apply to the admission of a voluntary statement made by accused at a coroner's inquest. Dunham v. State, 207 Ark. 472, 181 S.W.2d 242 (1944).

Comments on Failure to Testify.

Prosecutor's comments on defendant's failure to testify held improperly allowed. Curtis v. State, 89 Ark. 394, 117 S.W. 521 (1909); Porterfield v. State, 145 Ark. 472, 224 S.W. 957 (1920); Perry v. State, 188 Ark. 133, 64 S.W.2d 328 (1933); Freeman v. State, 214 Ark. 359, 216 S.W.2d 864 (1949); Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985).

This section does not authorize the defendant's counsel to offer explanation as to defendant's failure to testify, so that where counsel for defendant stated that he did not take the stand because it was not necessary, he cannot complain that the prosecuting attorney replied that he could have taken the stand and denied the charge. Collins v. State, 143 Ark. 604, 221 S.W. 455 (1920).

It is error, presumptively prejudicial, for the prosecuting attorney to call attention of the jury to the failure of the accused to testify. Bridgman v. State, 170 Ark. 709, 280 S.W. 982 (1926)Criticized byBradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995); Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

The prosecuting attorney's statement was not a comment on the defendant's failure to testify but merely an argument that the named witnesses' testimony should be believed because undisputed. Davis v. State, 174 Ark. 891, 298 S.W. 359 (1927).

Prosecutor's remark in his opening statement to the effect that the decedent could not tell his side of the story and that it would all have to come from the defendant resulted in pre-evidentiary coercion which may have forced the defendant to testify against her will. Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974).

A violation of this section, although presumptively prejudicial, can be harmless error if it is shown beyond a reasonable doubt that the error did not influence the verdict. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

Although the prosecutor made an impermissable comment regarding witness' failure to testify, the overwhelming evidence of defendant's guilt rendered the improper comment harmless. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998).

Cross-Examination.

When a defendant in a criminal case becomes a witness in his own behalf, he may be impeached on cross-examination and may be questioned as to whether he has formerly been convicted of an infamous crime. Turner v. State, 100 Ark. 199, 139 S.W. 1124, 1911 Ark. LEXIS 336 (1911).

Directed Verdict.

Court cannot direct verdict of guilty, although there is sufficient evidence to convict and such evidence is undenied, since defendant's failure to testify cannot create a presumption against him. Paxton v. State, 114 Ark. 393, 170 S.W. 80 (1914).

Immunity from Testifying.

Statements made by a witness in the presence of the accused before the examining court did not call for a denial from him as he was not required to testify in the case. Maloney v. State, 91 Ark. 485, 121 S.W. 728 (1909).

Even after an indictment is found, the person charged cannot be made a witness in the trial except at his own request. Claborn v. State, 115 Ark. 387, 171 S.W. 862 (1914).

The trial court erred in requiring defendant to take the witness stand when called as a witness by his codefendant when they were tried together. Brown v. State, 259 Ark. 449, 534 S.W.2d 213, 1976 Ark. LEXIS 2088 (1976).

Instructions.

Where the accused has taken the stand as a witness and his testimony has been impeached by evidence of contradictory statements, it is the duty of the trial court to admonish the jury that the alleged conflicting statements are not to be considered as substantive proof of the accused's guilt. Pinkerton v. State, 126 Ark. 201, 190 S.W. 110 (1916).

An instruction that the defendant had a right to testify and the fact that he did not avail himself of this right was not to be considered against him, was not prejudicial to the defendant. Scott v. State, 169 Ark. 326, 275 S.W. 667 (1925).

Refusal of an instruction that the defendant's failure to testify was neither evidence nor presumption of guilt and should not be considered in determining guilt, was reversible error under this section. Cox v. State, 173 Ark. 1115, 295 S.W. 29 (1927). See Martin v. State, 151 Ark. 365, 236 S.W. 274 (1922).

Instruction that accused's failure to testify was not to be considered in determining his guilt, given without a request therefor, was not error. Thompson v. State, 205 Ark. 1040, 172 S.W.2d 234 (1943)Questioned byRussell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966).

16-43-502. Joint defendant as witness.

When two (2) or more persons are indicted in the same indictment, each defendant may testify in behalf of, or against, the other defendants.

History. Acts 1893, No. 89, § 1, p. 157; C. & M. Dig., § 3124; Pope's Dig., § 3958; A.S.A. 1947, § 43-2017.

Cross References. Joint offender as witness before grand jury, § 16-85-506.

16-43-503. Party injured as witness.

No person shall be rendered incompetent to testify in criminal cases by reason of his being the person injured or defrauded, or intended to be injured or defrauded, or because he would be entitled to satisfaction for the injury or may be liable to pay the costs of prosecution.

History. Rev. Stat., ch. 45, § 166; C. & M. Dig., § 3121; Pope's Dig., § 3955; A.S.A. 1947, § 43-2018.

Subchapter 6 — Immunity — Criminal Proceedings

Preambles. Acts 1973, No. 561, contained a preamble which read:

“Whereas, the law of the State of Arkansas is presently unsettled concerning the extent of authority of a prosecuting attorney to grant immunity from prosecution to persons testifying in criminal matters; and

“Whereas, said uncertainty results in difficulty for grand juries and prosecuting attorneys in obtaining necessary information about crimes committed in this State; and

“Whereas, because of the uncertainty as to the legality of prosecuting attorneys' granting of immunity, persons whose testimony may be material to an investigation or prosecution are reluctant to testify under circumstances which may incriminate them; and

“Whereas, it is essential that guidelines be established in order to facilitate prosecutions and investigations of criminal matters, and to clarify the authority of the prosecuting attorney to grant persons immunity from prosecution where the testimony of the said person is material to an investigation or prosecution by the prosecuting attorney or a grand jury;

“Now, therefore….”

Research References

ALR.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness. 4 A.L.R.4th 617.

Prosecutor's power to grant prosecution witness immunity from prosecution. 4 A.L.R.4th 1221.

Enforceability of agreement not to prosecute if accused would help in criminal investigation or would become witness against others. 32 A.L.R.4th 990.

Ark. L. Rev.

Farrow, New Jersey v. Portash: The Scope of Testimonial Immunity, 34 Ark. L. Rev. 306.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 1 U. Ark. Little Rock L.J. 153.

Note: An Equitable Treatment of Unauthorized Prosecutorial Promises of Immunity, 1 U. Ark. Little Rock L.J. 389.

Davis, Survey of Arkansas Law: Criminal Law, 2 U. Ark. Little Rock L.J. 193.

16-43-601. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Court” means the circuit court for the judicial district of this state in which the proceeding is or may be held;
  2. “Grand jury” means any grand jury impaneled in accordance with the laws of this state;
  3. “Prosecuting attorney” means the prosecuting attorney for the judicial district of this state in which the proceeding is or may be held and includes his duly appointed deputies.

History. Acts 1973, No. 561, § 1; A.S.A. 1947, § 28-531.

Case Notes

Special Prosecutor.

A special prosecutor appointed pursuant to § 16-21-112 or § 16-21-116 or by the inherent power of the circuit court may request the court to require that a person testify upon being granted immunity as provided by this section. Weems v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974).

Cited: Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977); Hodges v. Lamora, 337 Ark. 470, 989 S.W.2d 530 (1999).

16-43-602. Penalty.

Any person who refuses to give testimony after an order has been issued by the circuit court for the judicial district in which the proceeding is or may be held directing him or her to give such testimony, as provided in this subchapter shall be guilty of a Class B misdemeanor. Each refusal of the witness to so testify shall constitute a separate offense.

History. Acts 1973, No. 561, § 5; A.S.A. 1947, § 28-535; Acts 2005, No. 1994, § 396.

16-43-603. Immunity generally.

Whenever a witness refuses, on the basis of his privilege of self-incrimination, to testify or provide other information in a proceeding before or ancillary to a court, a grand jury, or a prosecuting attorney and the person presiding over the proceeding communicates to the witness an order issued under this subchapter, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination. However, no testimony or other information compelled under the order, or any other information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

History. Acts 1973, No. 561, § 2; A.S.A. 1947, § 28-532.

Case Notes

Purpose.

This section is not self-executing and its purpose is only to preserve the constitutional privilege of self-incrimination to one compelled to testify. Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977).

Standing to Contest Immunity.

A defendant has no standing to contest the kind of immunity granted to a witness; information gathered by virtue of witness' immunity, however, is a different matter, at least with respect to the use of such evidence against the person who was granted immunity. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994).

Cited: Balentine v. State, 259 Ark. 590, 535 S.W.2d 221 (1976).

16-43-604. Issuance of order to testify.

  1. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court, a grand jury, or a prosecuting attorney, the circuit court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section and upon the request of the prosecuting attorney for the district, an order requiring the individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in this subchapter.
  2. A prosecuting attorney may request an order under subsection (a) of this section when, in his judgment:
    1. The testimony or other information from the individual may be necessary to the public interest; and
    2. The individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

History. Acts 1973, No. 561, § 3; A.S.A. 1947, § 28-533; Acts 1995, No. 1296, § 62.

Amendments. The 1995 amendment substituted “this subchapter” for “§ 16-43-601” in (a).

Case Notes

Cited: Rood v. State, 4 Ark. App. 289, 630 S.W.2d 543 (1982).

16-43-605. Court order approving grant of immunity — Granting of immunity only after refusal to testify.

No prosecuting attorney shall grant immunity until he has applied for and obtained in each case a written order from the judge of the circuit court approving the grant of immunity. No such immunity shall be granted by a prosecuting attorney until after the individual has declined to answer questions or has requested immunity before answering questions.

History. Acts 1973, No. 561, § 4; A.S.A. 1947, § 28-534.

Case Notes

Purpose.

Where the testimony of a defense witness was offered to impeach the credibility of a prosecution witness, to grant the defense witness immunity would defeat the purpose of this section, which is to aid the prosecution in apprehending criminals. Fears v. State, 262 Ark. 355, 556 S.W.2d 659 (1977).

Discretion of Prosecutor.

The granting of immunity is merely a statutory, not a constitutional, right and lies within the discretion of the prosecutor when he believes such grant is necessary to the public interest. Fears v. State, 262 Ark. 355, 556 S.W.2d 659 (1977).

No Immunity Granted.

The defendant in a prosecution for drug offenses was not entitled to immunity since there was never any agreement to grant immunity made by the prosecuting attorney and, even if there had been such an agreement, there was no written court approval for it. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998).

Request for Immunity.

Where prosecuting attorney did not request immunity for a defense witness and there was no evidence that the defendant had ever requested that the prosecutor seek immunity for the witness, the trial court did not err in refusing to grant immunity to the witness who was also charged with a murder arising out of the same altercation, since there was no statutory authority for a request of a grant of immunity by anyone other than the prosecuting attorney. Rood v. State, 4 Ark. App. 289, 630 S.W.2d 543 (1982).

Cited: Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977); Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000).

16-43-606. Limitation on immunity.

An individual who has once been granted immunity under the provisions of this subchapter for an offense in connection with which his testimony has been sought shall not again be granted immunity under this subchapter in connection with any subsequent offenses.

History. Acts 1973, No. 561, § 6; A.S.A. 1947, § 28-536.

Subchapter 7 — Examination

16-43-701 — 16-43-703. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This subchapter, concerning examination of witnesses, was repealed by Acts 2013, No. 1148, § 8[9]. The subchapter was derived from the following sources:

16-43-701. Civil Code, § 659; C. & M. Dig., § 4192; Pope's Dig., § 5203; A.S.A. 1947, § 28-701.

16-43-702. Civil Code, § 651; C. & M. Dig., § 4184; Pope's Dig., § 5194; A.S.A. 1947, § 28-704.

16-43-703. Civil Code, § 657; C. & M. Dig., § 4190; Pope's Dig., § 5200; A.S.A. 1947, § 28-710.

Subchapter 8 — Compensation

Cross References. Fee bills, § 16-68-501.

Effective Dates. Acts 1875, No. 77, § 53: effective on passage.

Acts 1885, No. 121, § 3: effective on passage.

16-43-801. Witness fees generally.

Witnesses shall be allowed compensation as follows:

  1. For attendance before any circuit court, arbitration, auditor, commissioner, or other persons in civil cases, five dollars ($5.00) per day; and
  2. For attendance in criminal cases, five dollars ($5.00) per day.

History. Acts 1875, No. 77, § 39, p. 167; C. & M. Dig., § 4611; Pope's Dig., § 5700; Acts 1969, No. 157, § 1; 1975, No. 344, § 1; A.S.A. 1947, § 28-524; Acts 2005, No. 1994, § 264.

Case Notes

Amount of Fee.

The language in subdivision (2) which provides that witnesses in criminal cases shall be paid at a rate of $5.00 per day is not intended to be a ceiling amount. Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990).

Civil Cases.

In civil cases, witnesses are entitled to their ferriage and per diem in every case in which they are summoned, however numerous. Springfield & M.R.R. v. Lambert, 42 Ark. 121 (1883).

Expert.

An expert cannot demand extra compensation. Flinn v. Prairie County, 60 Ark. 204, 29 S.W. 459 (1895).

Informant.

Payment of an informant's expenses is not precluded under subdivision (2), nor is any payment made to him by his employer. Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990).

16-43-802. Witness fees in county and probate courts.

Witnesses, duly summoned, shall be allowed for their attendance as such before either county or probate courts the sum of one dollar ($1.00) for each day's attendance, to be taxed as other costs and paid by the unsuccessful party.

History. Acts 1885, No. 121, § 2, p. 198; C. & M. Dig., § 4611; Pope's Dig., § 5700; A.S.A. 1947, § 28-525.

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that this section was deemed superseded by the Arkansas Rules of Civil Procedure to the extent it conflicts with ARCP 45(d).

16-43-803. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that this section, concerning mileage fees, was deemed superseded by the Arkansas Rules of Civil Procedure. The section was derived from Acts 1875, No. 77, §§ 41, 42, p. 167; C. & M. Dig., §§ 4613, 4614; Pope's Dig., §§ 5702, 5703; A.S.A. 1947, §§ 28-526, 28-527.

16-43-804. Proof of attendance.

  1. Every account for attendance of a witness shall be sworn to and shall state that he or she was summoned to attend as a witness in the cause upon which the charge is made, shall state the number of days he or she attended, and, if the witness was summoned outside the limits of the county in which he or she resides, shall state the number of miles he or she traveled in consequence of the summons.
  2. Every witness shall prove his or her attendance before any court, whether the case is determined or not, before the clerk of the court before which he or she may be summoned to appear.

History. Acts 1875, No. 77, §§ 43, 45, p. 167; C. & M. Dig., §§ 4615, 4616; Pope's Dig., §§ 5704, 5705; A.S.A. 1947, §§ 28-528, 28-529; Acts 2003, No. 1185, § 183.

Amendments. The 2003 amendment, in (b), deleted “at each term he may attend” following “attendance,” “or each time he may attend before any justice of the peace” preceding “whether,” and “or the justice” preceding “before which” and made gender neutral changes.

Case Notes

In General.

This section does not require that the account be signed by the witness, nor that he make affidavit to it. Kansas City S. Ry. v. State, 98 Ark. 179, 135 S.W. 846 (1911).

Costs.

The fee for taking witnesses' affidavits to their attendance is part of the costs of the case, and taxable as such. Trimble v. St. Louis & S.F. Ry., 56 Ark. 249, 19 S.W. 839 (1892); Logan County v. Trimm, 57 Ark. 487, 22 S.W. 164 (1893).

Criminal Cases.

A witness is not entitled to attendance fee in criminal cases unless proved up in time. Fulks v. State, 64 Ark. 148, 41 S.W. 54 (1897); Lansing Wheelbarrow Co. v. Montgomery, 91 Ark. 600, 121 S.W. 1052 (1909).

Custom.

This section cannot be abrogated by custom. Lansing Wheelbarrow Co. v. Montgomery, 91 Ark. 600, 121 S.W. 1052 (1909).

16-43-805. Fee for ferriage.

Witnesses who leave home and attend any court in pursuance of a subpoena shall be allowed the amount necessarily paid out for crossing any ferry or toll bridge in going to and returning from the court.

History. Acts 1875, No. 77, § 46, p. 167; C. & M. Dig., § 4617; Pope's Dig., § 5706; A.S.A. 1947, § 28-530.

16-43-806. State employee as a witness.

  1. If a state employee is subpoenaed as a witness to give a deposition or testimony at a hearing in state or federal court or before any body with power to issue a subpoena, the state employee is:
    1. Entitled to retain any witness fees that may be tendered to him or her under state or federal law or court rules only if the matter is:
      1. Outside the employee's scope of state employment; or
      2. The employee is a party to the matter other than as a representative of the state employer; and
    2. Entitled to retain any mileage fees that may be tendered to him or her under state or federal law or court rules only if the matter is:
      1. Within the employee's scope of state employment and the employee uses a personal vehicle for travel in obeying the subpoena and the employee's employer does not reimburse the employee for travel expenses; or
      2. Outside the employee's scope of state employment and the employee does not use a state-owned vehicle for travel in obeying the subpoena.
  2. If the state employee is subpoenaed for purposes under subsection (a) of this section to appear on a nonwork day, the employee may retain any witness and mileage fees tendered to him or her.

History. Acts 2005, No. 1845, § 5.

Subchapter 9 — Paternity or Child Support

16-43-901. Competent witnesses.

  1. The biological mother of a child shall be a competent witness to testify in any court proceeding or administrative hearing as to who is the biological father of the child, the time and place of conception, access by the putative father and by her husband, support or lack of support for the child provided by the putative father or by her husband, and any other matters necessary to the establishment of paternity or a support obligation for the child.
  2. The husband of the biological mother shall be a competent witness to testify in any court proceeding or administrative hearing in which paternity or child support is an issue or may become an issue as to the following:
    1. Date of marriage;
    2. Period of cohabitation with the biological mother;
    3. Period of nonaccess with the biological mother; and
    4. Date of separation from the biological mother.
  3. The putative father of a child shall be a competent witness to testify in any court proceeding or administrative hearing in which paternity or child support is an issue or may become an issue as to the following:
    1. Period of cohabitation with the biological mother;
    2. Period of access with the biological mother; and
    3. Lack of sexual contact with the biological mother.
  4. Upon a finding of the court by clear and convincing evidence that the presumption of legitimacy of a child born of a marriage has been rebutted, the court shall:
    1. Relieve the putative father of further support liability;
    2. Attempt to identify and establish the biological father of the child, if possible; and
    3. Set a support obligation for the child to be paid by the biological father.
    1. To assist the court in this determination, the court may direct the biological mother, her husband, the putative father, and the child to submit to one (1) or more blood tests or other scientific examinations or tests as provided in § 9-10-108.
    2. Such test results shall be admissible as provided in § 9-10-108.
  5. In any case where the court is unable to determine paternity for the child, the lawful husband of the biological mother shall be presumed to be the father of the child, and the court shall establish a support obligation for the child unless blood tests or other scientific evidence conclusively eliminate him from paternity consideration.
    1. The purpose of this section is to enable the courts to receive into evidence relevant facts concerning the paternity of a child in any court proceeding or administrative hearing involving paternity or a support obligation for a child.
    2. The court shall consider foremost the interest of the child in making any determination hereunder and consider only testimony and evidence which will serve the best interest of the child in its findings pursuant to this section.
  6. As used in this section, “putative father” means any man, not deemed or adjudicated under the laws of the jurisdiction of the United States to be the biological father of a child, who claims or is alleged to be the biological father of the child.

History. Acts 1989, No. 657, § 1; 1993, No. 431, § 1.

Amendments. The 1993 amendment rewrote (d)(1); added “Attempt to identify and” at the beginning of (d)(2) and “if possible” at the end of (d)(2); added “to be paid by the biological father” at the end of (d)(3); designated the two sentences of (e) as (e)(1) and (e)(2); added “unless blood tests … consideration” at the end of (f); and made minor stylistic changes.

Cross References. Paternity proceedings generally, § 9-10-101 et seq.

Research References

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Family Law, 24 U. Ark. Little Rock L. Rev. 1021

U. Ark. Little Rock L.J.

Survey, Family Law, 12 U. Ark. Little Rock L.J. 631.

Legislative Survey, Family Law, 16 U. Ark. Little Rock L.J. 131.

Case Notes

Presumption of Legitimacy.

In a divorce proceeding, the chancellor erred in illegitimizing the parties' eldest child, even though the evidence suggested the husband was not the child's father; such was not in the child's best interest nor was it the goal of either parent. Leach v. Leach, 57 Ark. App. 155, 942 S.W.2d 286 (1997).

Cited: Putt v. Suttles, 2011 Ark. App. 688, 386 S.W.3d 623 (2011).

Subchapter 10 — Minors

16-43-1001. Closed-circuit television.

    1. In any criminal proceeding, on motion of the prosecutor after notice to the defendant or on motion of the defense attorney, the court may, upon a showing of clear and convincing evidence that testifying in open court would be harmful or detrimental to the child, order that the testimony of a victim or witness who is a child twelve (12) years of age or under be taken outside the courtroom and the presence of the defendant and communicated to the courtroom by closed-circuit television.
    2. Any such motion shall only apply to the witnesses of the moving party and shall be filed no later than five (5) days before the trial is scheduled to begin, except in cases where, while testifying, it becomes apparent that the child cannot continue with his or her testimony.
  1. In ruling on the motion, the court shall consider the following factors:
    1. The age and maturity of the child;
    2. The possible effect that testimony in person may have on the child;
    3. The extent of the trauma the child has already suffered;
    4. The nature of the testimony to be given by the child;
    5. The nature of the offense, including, but not limited to, the use of a firearm or any other deadly weapon during the commission of the crime or the infliction of serious bodily injury upon the victim during the commission of the crime;
      1. Threats made to the child or the child's family in order to prevent or dissuade the child from attending or giving testimony at any trial or court proceeding or to prevent the child from reporting the alleged offense or from assisting in criminal prosecution.
      2. Threats under this subdivision (b)(6) may include, but not be limited to, threats of serious bodily injury to be inflicted on the child or a family member, threats of incarceration or deportation of the child or a family member, or threats of removal of the child from the family or dissolution of the family;
    6. Conduct on the part of the defendant or the defendant's attorney which causes the child to be unable to continue his testimony; and
    7. Any other matter which the court considers relevant.
      1. If the court orders that the child's testimony be taken by closed-circuit television, the testimony shall be taken outside the courtroom in the judge's chambers or in another suitable location designated by the judge.
      2. Examination and cross-examination of the child shall proceed as though he or she were testifying in the courtroom.
      3. The only persons who may be permitted in the room with the child during the child's testimony are:
        1. The judge or a judicial officer appointed by the court;
        2. The prosecutor;
        3. The defense attorney, except a pro se defendant;
        4. The child's attorney;
        5. Persons necessary to operate the closed-circuit television equipment; and
        6. Any person whose presence is determined by the court to be necessary to the welfare and well-being of the child.
    1. The defendant shall be afforded a means of private, contemporaneous communication with the defendant's attorney during the testimony.
  2. This section does not preclude the presence of both the victim and the defendant in the courtroom together for purposes of establishing or challenging the identification of the defendant when identification is a legitimate issue in the proceeding.
  3. This section does not apply if the defendant is an attorney pro se unless the defendant has a court-appointed attorney assisting the defendant in the defense, in which case only the court-appointed attorney shall be permitted in the room with the child during the child's testimony.
  4. Nothing in this section creates a right of a child witness to a closed-circuit television procedure in lieu of testifying in open court and the intent of this section is that testimony by closed-circuit television be used in limited circumstances.
  5. Videotapes of closed-circuit testimony which are part of the court record are subject to a protective order of the court for the purpose of protecting the privacy of the alleged victim.

History. Acts 1997, No. 1186, § 1.

16-43-1002. Certified facility dogs for child witnesses — Definitions.

  1. As used in this section:
    1. “Certified facility dog” means a dog that has:
      1. Graduated from a program of an assistance dog organization that is a member of Assistance Dogs International or a similar nonprofit organization that attempts to set the highest standard of training for dogs for the purpose of reducing stress in a child witness by enhancing the ability of the child witness to speak in a judicial proceeding by providing emotional comfort in a high stress environment;
      2. Received two (2) years of training; and
      3. Passed the same public access test as a service dog;
    2. “Certified handler” means a person who has received training from an organization accredited by Assistance Dogs International, the American Kennel Club, Therapy Dogs Incorporated, or an equivalent organization on offering the person's animal for assistance purposes and has received additional training on the protocols and policies of courts, the expected roles of the person's animal assistance team, and the expected interaction so as not to interfere with the collection of evidence or the effective administration of justice; and
    3. “Child witness” means a witness testifying in a criminal hearing or trial whose age at the time of his or her testimony is eighteen (18) years of age or younger.
  2. Subject to the Arkansas Rules of Civil Procedure, Arkansas Rules of Evidence, or other rule of the Supreme Court, if requested by either party in a criminal trial or hearing and if a certified facility dog is available within the jurisdiction of the judicial district in which the criminal case is being adjudicated, a child witness of the party shall be afforded the opportunity to have a certified facility dog accompany him or her while testifying in court.
  3. Before the introduction of a certified facility dog into the courtroom and outside the presence of the jury, the party desiring to utilize the presence of a certified facility dog shall file a motion certifying to the court the following information:
    1. The credentials of the certified facility dog;
    2. That the certified facility dog is adequately insured;
    3. That a relationship has been established between the child witness and the certified facility dog in anticipation of testimony; and
    4. That the presence of the certified facility dog may reduce anxiety experienced by the child witness while testifying in the criminal trial or hearing.
    1. If the court grants the motion under subsection (c) of this section, the certified facility dog shall be accompanied by the certified handler of the certified facility dog to the witness stand with the child witness in the absence of the jury.
    2. The jury shall be seated subsequent to the child witness’ and certified facility dog's taking their places in the witness stand.
  4. In the course of jury selection, with the court's approval under Rule 32.2 of the Arkansas Rules of Criminal Procedure, either party may voir dire prospective jury members on whether the presence of a certified facility dog to assist a child witness would create undue sympathy for the child witness or in any way serve as a prejudice to the defendant.
  5. In a criminal trial involving a jury in which the certified facility dog is utilized, the court shall present appropriate jury instructions that are designed to prevent prejudice for or against any party.

History. Acts 2015, No. 957, § 1.

Subchapter 11 — Disclosures of Genetic Information

16-43-1101. Compulsory disclosure.

No person or other entity who maintains genetic information shall be compelled to disclose such information pursuant to a request for compulsory disclosure in any judicial, legislative, or administrative proceeding, unless:

  1. The request for compulsory disclosure is in accordance with court-ordered paternity testing in a civil action to determine paternity;
  2. The individual whose genetic information is requested is a party to the proceeding and the genetic information is at issue;
  3. The genetic information is for use in a law enforcement investigation or criminal trial; or
  4. The genetic information is for use in a law enforcement investigation where an insurer is reporting fraud or criminal activity.

History. Acts 2001, No. 1222, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.

Subchapter 12 — Safeguards for Abused and Neglected Children Act

16-43-1201. Title.

This subchapter shall be known and may be cited as the “Safeguards for Abused and Neglected Children Act”.

History. Acts 2007, No. 703, § 15.

16-43-1202. Safeguards for child victims testifying in judicial and administrative proceedings.

In order to facilitate testimony that is fair and accurate, the following safeguards should be followed:

  1. The prosecuting attorney, victim-witness coordinator, attorney ad litem, or Office of Chief Counsel attorney shall inform the child about the nature of the judicial proceeding or administrative proceeding;
  2. The prosecuting attorney, victim-witness coordinator, attorney ad litem, or Office of Chief Counsel attorney shall explain:
    1. The oath that will be administered to the child; and
    2. That the judge will determine whether the child is competent to testify;
  3. The prosecuting attorney, victim-witness coordinator, attorney ad litem, or Office of Chief Counsel attorney shall explain to the child that if the child does not understand a question while testifying in the judicial proceeding or administrative proceeding, the child has a right to say that he or she does not understand the question;
  4. The prosecuting attorney, attorney ad litem, or Office of Chief Counsel attorney may file a motion to have the child testify at a time of day when the child is most alert and best able to understand questions posed in court;
  5. If it is in the child's best interests, the prosecuting attorney, attorney ad litem, or Office of Chief Counsel attorney may file a motion for the child to have a comfort item when testifying in a judicial or administrative proceeding;
  6. If it is in the child's best interests, the prosecuting attorney, attorney ad litem, or Office of Chief Counsel attorney may file a motion for the child to have a support person present when the child testifies in a judicial proceeding or an administrative proceeding; and
  7. The prosecuting attorney, attorney ad litem, or Office of Chief Counsel attorney shall consider the effect upon the child when the child is subjected to argumentative or harassing questions and shall make the proper objections when appropriate to ensure that the child is not subjected to argumentative or harassing questioning.

History. Acts 2007, No. 703, § 15.

Chapter 44 Depositions

Research References

Am. Jur. 23 Am. Jur. 2d, Depos. & Disc., § 108 et seq.

C.J.S. 26A C.J.S., Depos., § 1 et seq.

U. Ark. Little Rock L.J.

Note, Constitutional Law—Confrontation ClauseArkansas Child Hearsay Exception Regarding Sexual Offenses, Abuse, Or Incest Is Unconstitutional. —George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), 14 U. Ark. Little Rock L.J. 579.

Subchapter 1 — General Provisions

[Superseded]

16-44-101 — 16-44-121. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas has held, in Per Curiams dated November 24, 1986 and November 21, 1988, that this subchapter is superseded in its entirety by the Arkansas Rules of Civil Procedure. The Per Curiam of Nov. 24, 1986, superseded §§ 16-44-107(a), 16-44-108, 16-44-114, and 16-44-11616-44-120; the Per Curiam of Nov. 21, 1988, superseded §§ 16-44-10116-44-106, 16-44-107(b), 16-44-10916-44-113, 16-44-115, and 16-44-121. The subchapter was derived from the following sources:16-44-101. Civil Code, § 606; C. & M. Dig., § 4205; Pope's Dig., § 5216; A.S.A. 1947, § 28-301.16-44-102. Rev. Stat., ch. 48, §§ 16, 17; C. & M. Dig., §§ 4212-4214; Pope's Dig., §§ 5224-5226; A.S.A. 1947, §§ 28-305, 28-306.16-44-103. Acts 1915, No. 290, § 17; C. & M. Dig., § 4206a; Pope's Dig., § 5218; A.S.A. 1947, § 28-308.16-44-104. Civil Code, § 626; C. & M. Dig., § 4222; Pope's Dig., § 5234; A.S.A. 1947, § 28-315.16-44-105. Civil Code, § 627; C. & M. Dig., § 4223; Pope's Dig., § 5235; A.S.A. 1947, § 28-316.16-44-106. Civil Code, § 628; C. & M. Dig., § 4224; Pope's Dig., § 5236; A.S.A. 1947, § 28-317.16-44-107. Civil Code, §§ 629, 637; Acts 1915, No. 290, § 20; C. & M. Dig., §§ 4225, 4230; Pope's Dig., §§ 5237, 5242; A.S.A. 1947, §§ 28-318, 28-323.16-44-108. Rev. Stat., ch. 48, § 18; C. & M. Dig., § 4237; Pope's Dig., § 5249; A.S.A. 1947, § 28-332.16-44-109. Rev. Stat., ch. 48, § 20; C. & M. Dig., § 4238; Pope's Dig., § 5250; A.S.A. 1947, § 28-333.16-44-110. Civil Code, § 668; C. & M. Dig., §§ 4242, 4243; Pope's Dig., §§ 5254, 5255; A.S.A. 1947, § 28-336.16-44-111. Civil Code, § 669; C. & M. Dig., § 4244; Pope's Dig., § 5256; A.S.A. 1947, § 28-337.16-44-112. Civil Code, § 671; C. & M. Dig., § 4246; Pope's Dig., § 5258; A.S.A. 1947, § 28-339.16-44-113. Civil Code, § 642; C. & M. Dig., § 4247; Pope's Dig., § 5259; A.S.A. 1947, § 28-340.16-44-114. Civil Code, § 648; C. & M. Dig., § 4239; Pope's Dig., § 5251; A.S.A. 1947, § 28-346.16-44-115. Acts 1953, No. 335, Preliminary; A.S.A. 1947, § 28-347.16-44-116. Acts 1953, No. 335, § 1; A.S.A. 1947, § 28-348.16-44-117. Acts 1953, No. 335, § 2; A.S.A. 1947, § 28-349.16-44-118. Acts 1953, No. 335, § 3; A.S.A. 1947, § 28-350.16-44-119. Acts 1953, No. 335, § 6; 1957, No. 344, § 1; A.S.A. 1947, § 28-353.16-44-120. Acts 1953, No. 335, § 7; A.S.A. 1947, § 28-354.16-44-121. Acts 1957, No. 288, § 2; A.S.A. 1947, § 28-361.

Subchapter 2 — Criminal Proceedings

Effective Dates. Acts 1979, No. 1022, § 3: Apr. 18, 1979. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that there is presently great confusion as to whether present law allows the use of depositions in criminal cases by both the state and defense, that fundamental fairness requires that the use of depositions be reciprocal, and that there is need for clarification of the statute authorizing the taking of such depositions. 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 effective and fair administration of justice, shall take effect and be in force from the date of its approval.”

Acts 1983, No. 407, § 3: Mar. 13, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law authorizing videotaped depositions of minors who are victims of sexual offenses has been construed to preclude direct testimony by the minor victim at trial if a videotaped deposition is taken; that, in some circumstances, direct testimony should be allowed in addition to or in place of videotaped depositions; that the present interpretation has resulted in injustice, and this Act is immediately necessary to rectify the same. It is not the purpose of this Act to circumvent the original purpose of Act 368 of 1981, which was to protect the minor victim from the trauma of testifying in open court. However, it is recognized that in some limited circumstances the interest in protecting the child is outweighed by the interest in convicting a guilty defendant. 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

ALR.

Accused's right to depose prospective witnesses before trial in state court. 2 A.L.R.4th 704.

Ark. L. Notes.

Watkins, Using the Freedom of Information Act as a Discovery Device, 1994 Ark. L. Notes 59.

Ark. L. Rev.

Jones, Lex, Lies & Videotape, 18 U. Ark. Little Rock L.J. 613.

16-44-201. Authorization for deposition generally — Manner of taking — Use.

  1. The court or judge in vacation, or a Justice of the Supreme Court, may authorize either party to take the deposition of a material witness where there are reasonable grounds to apprehend that, before trial, the witness will die, will become mentally incapable of giving testimony or physically incapable of attending the trial, or will become a nonresident of the state. The materiality of the testimony and the reason for taking the deposition shall be shown by affidavit.
  2. The court or judge shall, by written order, prescribe the manner of taking the deposition whether by interrogatories or upon notice to the parties.
  3. Upon the death of the witness, or upon his becoming mentally incapable of testifying or a nonresident of the state and absent therefrom so that he could not be summoned, the deposition taken in pursuance of such order may be read as evidence, provided that the grounds of nonresidence and absence from the state shall not be sufficient unless the party wishing to use the deposition makes an affidavit that he has tried in good faith to procure the attendance of such witness and been unable to do so.

History. Crim. Code, § 154; C. & M. Dig., §§ 3112-3115; Pope's Dig., §§ 3946-3949; Acts 1979, No. 1022, § 1; A.S.A. 1947, § 43-2011.

Cross References. Prisoners, deposition of, § 16-43-213.

Case Notes

Constitutionality.

Neither the Federal nor Arkansas Constitutions render this section unconstitutional on the basis that it does not provide for compulsory depositions in criminal proceedings. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999).

In General.

This section provides the method of taking depositions in criminal cases. Bailey v. State, 227 Ark. 889, 302 S.W.2d 796.

The right to take depositions in a law case rests upon statutory authority and in no case can the right be exercised unless the authority therefor exists. Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980).

Due Diligence.

Mere issuance of a subpoena does not constitute due diligence that would justify continuance to take deposition of absent witness; the accused must also make an effort to ascertain what progress is being made in the due service of same. Jones v. State, 205 Ark. 806, 171 S.W.2d 298, 1943 Ark. LEXIS 247 (1943).

Defendant's application to take a deposition from a nonresident witness was properly overruled where the defendant did not exercise due diligence. Criner v. State, 236 Ark. 220, 365 S.W.2d 252 (1963).

Nonresidents.

Defendants in criminal cases are entitled to take the depositions of witnesses residing out of the state, and the Supreme Court will compel the circuit court by mandamus to make the order necessary to take depositions of nonresidents. Gibony v. Rogers, 32 Ark. 462 (1877).

Objection.

Where the prosecuting attorney signed a stipulation agreeing that the deposition of a certain witness might be taken before any notary public and waiving all formalities, and the deposition was taken before a justice of the peace and filed with the clerk six days before the trial, an objection at the trial that the deposition was not taken before a notary public was not taken in apt time. Seamster v. State, 74 Ark. 579, 86 S.W. 434 (1905).

Quashing Depositions.

It is proper to quash depositions not taken by consent or pursuant to order. McDonald v. State, 155 Ark. 142, 244 S.W. 20 (1922).

Subpoena duces tecum directing corporate official to appear at pretrial deposition with all records relating to work and pay records of co-workers involved in dispute was properly quashed despite defendant's claim that the information was relevant to his defense, since the issue of discrimination by the employer was irrelevant to the dispute and, moreover, there was not statutory authority for the taking of a pretrial deposition in such circumstances. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), superseded by statute as stated in, Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001).

Cited: State v. Russell, 271 Ark. 817, 611 S.W.2d 518 (1981); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985).

16-44-202. Deposing witnesses upon showing of inability to attend trial — Use of depositions.

  1. If it appears that a prospective witness may be unable to attend or be prevented from attending a trial or hearing, that his or her testimony is material, and that it is necessary to take his or her deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may order, upon motion of either party and notice to the parties, that his or her testimony be taken by deposition and that any designated books, papers, documents, or tangible objects not privileged be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that his or her deposition be taken. After the deposition has been subscribed, the court may discharge the witness.
  2. If a defendant is without counsel, the court shall advise him or her of the right provided for in subsection (a) of this section and assign counsel to represent him or her unless the defendant elects to proceed without counsel or is able to obtain counsel. If it appears that a defendant at whose instance a deposition is to be taken cannot bear the expense thereof, the court may direct that the expenses of travel and subsistence of the defendant's attorney for attendance at the examination shall be paid by the state.
  3. A deposition shall be taken in the manner provided in civil actions. The court at the request of either party may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.
  4. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:
    1. That the witness is dead;
    2. That the witness is out of the State of Arkansas unless it appears that the absence of the witness was procured by the party offering the deposition;
    3. That the witness is unable to attend or testify because of sickness or infirmity; or
    4. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him or her to offer all of it which is relevant to the part offered and any party may offer other parts.
  5. Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.
  6. This section shall be applicable to city, district, and circuit courts of this state.

History. Acts 1971, No. 381, §§ 1, 4; 1979, No. 1022, § 2; A.S.A. 1947, §§ 43-2011.1, 43-2011.4; Acts 2003, No. 1185, §§ 184, 185.

Amendments. The 2003 amendment substituted “city, district” for “municipal, police” in (f).

Research References

Ark. L. Rev.

Arkansas' 1971 Criminal Discovery Act, 26 Ark. L. Rev. 1.

Criminal Procedure: A Survey of Arkansas Law and the American Bar Association's Standards, 26 Ark. L. Rev. 169.

Case Notes

Applicability.

This section authorized defendant, who was charged with drunken driving, to obtain for additional testing a perchlorate tube which the city police had used in making a blood-alchohol test. City of Rogers v. Municipal Court, 259 Ark. 43, 531 S.W.2d 257 (1976).

Error.

Where the deposition testimony of witnesses was obviously damaging to the defendant and it was especially critical that the jury be able to observe these witnesses on the stand, it was error to allow their testimony by deposition without any showing that the witnesses could not attend trial. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

Expenses.

Where trial court had offered to allow the defendant to either bring four witnesses from out-of-state to testify at the trial or to take the depositions of an unlimited number of out-of-state witnesses, and the defendant chose to take the depositions, the defendant failed to establish that he was prejudiced by the court's failure to also allow him expenses for out-of-state witnesses since apparently all of the witnesses suggested by the defendant appeared at the trial anyway. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Quashing Deposition.

Subpoena duces tecum directing corporate official to appear at pretrial deposition with all records relating to work and pay records of co-workers involved in dispute was properly quashed despite defendant's claim that the information was relevant to his defense, since the issue of discrimination by the employer was irrelevant to dispute and, moreover, there was no statutory authority for the taking of a pretrial deposition in such circumstances. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), superseded by statute as stated in, Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001).

Cited: Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970); Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989).

16-44-203. Videotaped deposition of alleged victim under 17 years of age in sexual offense prosecution.

  1. As used in this section, the term “videotaped deposition” means the visual recording on a magnetic tape, together with the associated sound, of a witness testifying under oath in the course of a judicial proceeding, upon oral examination and where an opportunity is given for cross-examination in the presence of the defendant and intended to be played back upon the trial of the action in court.
  2. In any prosecution for a sexual offense or criminal attempt to commit a sexual offense against a minor, upon motion of the prosecuting attorney and after notice to the opposing counsel, the court may, for good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of seventeen (17) years. The videotaped deposition shall be taken before the judge in chambers in the presence of the prosecuting attorney, the defendant, and the defendant's attorneys. Examination and cross-examination of the alleged victim shall proceed at the taking of the videotaped deposition in the same manner as permitted at trial under the provisions of the Arkansas Uniform Rules of Evidence.
  3. Any videotaped deposition taken under the provisions of this section shall be admissible at trial and received into evidence in lieu of the direct testimony of the alleged victim. However, neither the presentation nor the preparation of such videotaped deposition shall preclude the prosecutor's calling the alleged victim to testify at trial if that is necessary to serve the interests of justice.
  4. Videotapes which are a part of the court record are subject to a protective order of the court for the purpose of protecting the privacy of the alleged victim.

History. Acts 1981, No. 368, §§ 1-3; 1983, No. 407, § 1; A.S.A. 1947, §§ 43-2035 — 43-2037.

Research References

Ark. L. Notes.

Gitelman and Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, 1991 Ark. L. Notes 27.

Ark. L. Rev.

Case Notes, McGuire v. State: Arkansas Child Abuse Videotape Deposition Laws, Etc., 41 Ark. L. Rev. 155.

Jones, Lex, Lies & Videotape, 18 U. Ark. Little Rock L.J. 613.

U. Ark. Little Rock L.J.

Legislative Survey, Criminal Law, 4 U. Ark. Little Rock L.J. 583.

Arkansas Law Survey, Junean, Constitutional Law, 9 U. Ark. Little Rock L.J. 111.

Survey—Evidence, 11 U. Ark. Little Rock L.J. 205.

Note, Evidence — The Confrontation Clause — A Literal Right to a Face-to-Face Meeting, Coy v. Iowa, 108 S. Ct. 2798, 487 U.S. 1012, 101 L. Ed. 2d 857 (1988), 11 U. Ark. Little Rock L.J. 591.

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

Case Notes

Constitutionality.

This section affords due process because it only applies to situations where the state has a compelling interest, the protection of children from sexual crimes against which children are virtually defenseless, and uses the least restrictive means of protecting that interest by applying only to sexual offenses against children. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986).

The state has a legitimate interest in the general welfare of minor victims of sex crimes and their protection against further trauma in relating the incident in a crowded courtroom, and this section applies the least restrictive means of carrying out that interest and adequately protects basic constitutional rights of the accused. Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986).

This section provides a reasonable rule of thumb to guide judges in determining whether a videotaped deposition is justified; therefore, the term “good cause” is not unconstitutionally vague. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986); Davis v. State, 24 Ark. App. 152, 751 S.W.2d 11 (1988).

This section requires face-to-face confrontation between the victim, the defendant, and his attorney at the time the deposition is taken and provides the opportunity for cross-examination of the victim by the defendant; therefore, the defendant is not deprived of the right to confront his accuser or witnesses against him. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986).

This section involves procedure and evidence, but has not been preempted by rules of court, and is not an unconstitutional violation of the separation of powers doctrine. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990).

Construction.

The mandatory language of this section is clear and unambiguous. Therefore, when a videotaped deposition is taken of a minor victim, the victim's videotaped depositions must be viewed and heard at trial and entered into the record in lieu of the direct testimony of the alleged victim. State v. Lee, 277 Ark. 142, 639 S.W.2d 745 (1982).

Calling of Victim to Testify.

The provision in this section which permits the prosecutor to call the minor victim to testify even though the victim's testimony has been videotaped is not discriminatory; the advantage to the state, if any, resulting from that provision is rationally related to the state's interest in protecting young witnesses to the extent that the ends of justice will permit, and its exercise is conditioned upon a showing of necessity to serve the interest of justice. Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986).

Competency.

The trial court did not err in failing to suppress a videotaped deposition of children's testimony on the ground that it contained no evidence that the children were qualified as to their competency to testify where, although the deposition as presented to the jury contained no questions pertaining to the children's competency to testify, the record clearly indicated that such questions were asked and answered but were inadvertently left off the videotape. Hendricks v. State, 15 Ark. App. 378, 695 S.W.2d 843 (1985).

The court declined to accept defendant's suggestion that it should alter its standard when reviewing the competency of witnesses in cases where testimony has been videotaped. In Arkansas the competency of children to testify in criminal matters has been found to be within the discretion of the trial court since at least 1869, and the court could see no good reason to adopt two different standards of review; one for cases where testimony is preserved on videotape, and another standard for when the witness testifies in person. Davis v. State, 24 Ark. App. 152, 751 S.W.2d 11 (1988).

Where competency of a witness is at issue on appellate review, there is no good reason to employ de novo review when testimony is by videotape and to employ an abuse-of-discretion standard of review when the witness testifies in person. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990).

Where the victim's answers to questions were at times inconsistent, but more often than not she displayed a clear understanding of the undesirable consequences of telling a falsehood, and conversely, she understood the positive and desirable consequences of telling the truth, she clearly had “a moral awareness of the duty to tell the truth,” and the trial court did not abuse its discretion in determining the victim was competent and in allowing her to testify by means of a videotaped deposition. Richard v. State, 306 Ark. 543, 815 S.W.2d 941 (1991).

Credibility.

Videotaped testimony does not deprive the jury of the opportunity of determining the victim's credibility. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986).

Good Cause.

Where the testimony of the grandparents indicated that the child could be seriously harmed if forced to appear before a jury, the evidence substantiated the trial judge's decision that it was in the best interest of the child to allow the videotaped deposition. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986).

This section does not require the state to submit its showing of good cause by expert testimony; therefore, the case-worker's testimony was properly accepted by the court as establishing good cause sufficient to allow a videotaped deposition, even though she had received no specialized training in dealing with victims of sexual abuse and had no contact with this victim prior to the crime. Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986).

Trial judge made a finding of good cause, and in view of the girls' ages, the sexual abuse they had endured, and the social worker's testimony, judge did not abuse his discretion in permitting videotaped deposition. Cope v. State, 293 Ark. 524, 739 S.W.2d 533 (1987).

Although testimony about the emotional impact on the child witness would be desirable, under the facts in the case, the absence of such testimony was not fatal to the trial court's finding of good cause. Davis v. State, 24 Ark. App. 152, 751 S.W.2d 11 (1988).

Testimony of victim's mother provided ample basis for a finding of good cause. Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994).

Prejudicial Error.

Admission of videotaped deposition into evidence was prejudicial error in that the defendant was denied the right to cross-examine the child at the time she made her videotaped statement and the state was in effect permitted to offer the direct testimony of the victim twice, once through the videotape and once through live testimony. Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987).

Cited: Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986); Hegwood v. State, 297 Ark. 218, 760 S.W.2d 859 (1988); Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989); Kester v. State, 303 Ark. 303, 797 S.W.2d 704 (1990); Cranford v. State, 303 Ark. 393, 797 S.W.2d 442 (1990).

Chapter 45 Affidavits

Publisher's Notes. Some provisions of this chapter may be superseded by the ARCP pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Effective Dates. Acts 1867, No. 102, § 3: effective on passage.

Acts 1895, No. 83, § 4: effective on passage.

Research References

ALR.

Admissibility of affidavit to impeach witness. 14 A.L.R.4th 828.

Am. Jur. 3 Am. Jur. 2d, Affid., § 1 et seq.

C.J.S. 2A C.J.S., Affid., § 1 et seq.

16-45-101. Use of affidavits.

An affidavit may be read to verify a pleading; to prove the service of a summons, notice, or other process in an action; to obtain a provisional remedy, a stay of proceedings, or a warning order, upon a motion; and in any other case permitted by law.

History. Civil Code, § 600; C. & M. Dig., § 4199; Pope's Dig., § 5210; A.S.A. 1947, § 28-201.

Cross References. Proof of service by affidavit, § 16-58-116.

Research References

U. Ark. Little Rock L.J.

Sullivan, The Need for a Business or Payroll Records Affidavit for Use in Child Support Matters, 11 U. Ark. Little Rock L.J. 651.

Case Notes

Opportunity to Cross-Examine.

An affidavit is not allowable on a trial of issues raised by the pleadings, unless an opportunity has been given the adverse party to cross-examine the affiant. Smith v. Feltz, 42 Ark. 355 (1883); Western Union Tel. Co. v. Gillis, 89 Ark. 483, 117 S.W. 749 (1915); Johnson v. Johnson, 122 Ark. 276, 182 S.W. 897 (1916).

Cited: Hamlen & Son v. Allen, 186 Ark. 1104, 57 S.W.2d 1046 (1932).

16-45-102. Officials before whom affidavits may be made.

  1. An affidavit may be made in this state before a judge of the court, justice of the peace, notary public, clerk of a court, or mayor of a city or incorporated town.
  2. An affidavit may be made out of this state before a commissioner appointed by the Governor of this state to take depositions, or before a judge of a court, mayor of a city, notary public, or justice of the peace, whose certificate shall be proof of the time and manner of its being made.

History. Civil Code, §§ 602, 603; Acts 1895, No. 83, § 2, p. 111; C. & M. Dig., §§ 4202, 4203; Pope's Dig., §§ 5213, 5214; A.S.A. 1947, §§ 28-204, 28-205.

Cross References. Armed forces personnel making oath, affidavits before officers, § 16-2-104.

Case Notes

Validity.

An affidavit made to the correctness of a claim for a mechanic's lien is valid in this state when made in another state and valid under the law. Terry v. Klein, 133 Ark. 366, 201 S.W. 801 (1918).

Cited: Whitaker v. State, 37 Ark. App. 112, 825 S.W.2d 827 (1992).

16-45-103. Signature of affiant — Certificate of officer.

Every affidavit shall be subscribed by the affiant. The certificate of the officer before whom the affidavit is made shall be written separately following the signature of the affiant.

History. Civil Code, § 605; C. & M. Dig., § 4204; Pope's Dig., § 5215; A.S.A. 1947, § 28-206.

Case Notes

Construction.

The requirement that the affidavit shall be subscribed by the affiant is merely directory. Gill v. Ward, 23 Ark. 16 (1861); Mahan v. Owen, 23 Ark. (10 Barber) 347 (1861).

Compliance.

There was substantial compliance with statutory requirements with respect to consent to adoption where notary executed and acknowledged mother's signature, saw mother sign consent and heard explanation given to her by attorney, even though there was no evidence to effect that mother held up her hand while notary recited a formal oath. A & B v. C & D, 239 Ark. 406, 390 S.W.2d 116, cert. denied, 382 U.S. 926, 86 S. Ct. 314, 15 L. Ed. 2d 340 (1965).

Cited: Thompson v. Self, 197 Ark. 70, 122 S.W.2d 182 (1938); Thomas v. Hawkins, 217 Ark. 787, 233 S.W.2d 247 (1950); Whitaker v. State, 37 Ark. App. 112, 825 S.W.2d 827 (1992).

16-45-104. Affidavit as to correctness of account.

    1. In a suit on an account, including without limitation a credit card account or other revolving credit account, in a court of this state, the affidavit of the plaintiff that the account is just and correct, taken and certified according to law, is sufficient to establish the account.
    2. However, if the defendant denies under oath the correctness of the account, the plaintiff is held to prove by other evidence the part of the account in dispute.
  1. An affidavit of account under subsection (a) of this section shall be attached to the complaint and shall contain:
    1. The name of:
      1. The creditor to whom the account is owed;
      2. The creditor pursuing collection of the account; and
      3. The debtor obligated to pay the account;
      1. A statement or disclosure of whether or not the debtor's account has been assigned or is held by the original creditor.
      2. If the account has been assigned, the affidavit shall state the name of the original creditor;
    2. A statement of the affiant's authority to execute the affidavit on behalf of the creditor, including the affiant's job title or relationship to the creditor;
    3. A statement that the affiant is familiar with the books and records of the creditor and the account;
    4. A statement that the information and amount stated in the affidavit is true and correct to the best of affiant's knowledge, information, and belief;
    5. The interest rate and the source of the interest rate; and
    6. The total amount due, including interest, at the time the affidavit is executed.

History. Acts 1867, No. 102, § 1, p. 210; C. & M. Dig., § 4200; Pope's Dig., § 5211; A.S.A. 1947, § 28-202; Acts 2011, No. 992, § 1.

Amendments. The 2011 amendment added the (a) designation and rewrote (a); and added (b).

Case Notes

Applicability.

This section does not apply where, in an action on notes, an account is offered in evidence to show consideration for the notes. Boone v. Goodlett & Co., 71 Ark. 577, 76 S.W. 1059 (1903).

Default Judgment.

Where the action is not founded on a verified account, and the allegations of the complaint are denied in the answer, it is error to render judgment for plaintiff by default. Barnes v. Balz, 173 Ark. 417, 292 S.W. 391 (1927).

In action on open account supported by verified affidavit as to amount, judgment was properly entered in favor of plaintiff where defendant failed to appear. Terry v. Esso Std. Oil Co., 220 Ark. 694, 249 S.W.2d 577 (1952).

Where there was filed with the complaint a verified statement of the account, it was sufficient to support a default judgment. Walden v. Metzler, 227 Ark. 782, 301 S.W.2d 439 (1957)Questioned byMoore v. Robertson, 242 Ark. 413, 413 S.W.2d 872 (Ark. 1967)Questioned byEasley v. Inglis, 233 Ark. 589, 346 S.W.2d 206 (1961)Questioned byFitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959).

Failure to File.

A complaint in an action on a contract for services rendered is not, if it states a cause of action, demurrable (now, subject to motion to dismiss) because the plaintiff failed to file an affidavit to establish the account sued on, as required by this section. Bailey v. Fenter, 176 Ark. 1075, 5 S.W.2d 291 (1928).

Prima Facie Case.

Though an account sued on, duly verified, is prima facie correct, where the defendant does not deny its correctness under oath, such prima facie case may be overcome by the plaintiff's testimony showing that he had no account against the defendant. Wilbur v. Ellefson, 95 Ark. 403, 129 S.W. 812 (1910).

A verified account is prima facie correct. Chicago Crayon Co. v. Choate, 102 Ark. 603, 145 S.W. 197 (1912); Ike Stiel & Co. v. Geo. P. Ide & Co., 116 Ark. 244, 172 S.W. 871 (1915).

This section is merely a rule of evidence, and if the allegations of a verified complaint and the sworn-to items of the exhibit to that complaint are not controverted, the allegations sworn to would be a prima facie showing on which a judgment for the complainant would be sustained; the verity of the material in the statement may be denied by defendant by affidavit filed in the case, by verified answer, or by defendant's testimony under oath as a witness in the case. McWater v. Ebone, 234 Ark. 203, 350 S.W.2d 905 (1961).

Where plaintiff attached to his verified complaint a sworn statement of account listing only by numbers invoices with items of credit, such verified account was only prima facie evidence of its correctness, and defendant's answer denying each and every allegation of the complaint, together with his amended answer sworn to by his attorney and setting up a valid defense, was sufficient to join the issues of the case. McWater v. Ebone, 234 Ark. 203, 350 S.W.2d 905 (1961).

Company did not violate Ark. R. Civ. P. 10(d) by failing to attach to its complaint individual charge slips signed by a debtor; the complaint was accompanied by numerous documents on which its claim was based: a signed credit card application; invoices that bore the debtor's name and showed charges and payments made on the account; other statements of account; a card-member agreement containing contractual terms of usage and payment; and an affidavit of account. Cavalry SPV, LLC v. Anderson, 99 Ark. App. 309, 260 S.W.3d 331 (2007).

Sufficiency of Verification.

Judgment for plaintiff warranted. Clarke v. John Wanamaker, 184 Ark. 73, 40 S.W.2d 784 (1931); Cawood v. Pierce, 232 Ark. 721, 339 S.W.2d 861 (1960); Smith v. Chicot-Lipe Ins. Agency, 11 Ark. App. 49, 665 S.W.2d 907 (1984).

Affidavit of plaintiff, made before a notary public, was sufficient verification of itemized statement of open account. Burns v. Hall, 234 Ark. 943, 356 S.W.2d 235 (1962).

Cited: Rice v. Kroeck, 2 Ark. App. 223, 619 S.W.2d 691 (1981); Worthen Bank & Trust Co. v. Adair, 15 Ark. App. 144, 690 S.W.2d 727 (1985).

16-45-105. Production of affiant for cross-examination upon motion to discharge provisional remedy.

Where a provisional remedy is granted upon an affidavit and a motion is made to discharge or vacate the remedy, either before or after pleading to the cause, the party against whom the remedy is granted may, by written notice to the party by whom it was obtained or by an order or rule of the court, require the production of the person who made the affidavit for cross-examination. Thereupon, the party notified shall produce the affiant within ten (10) days before an officer authorized to take depositions, at a time and place of which he shall give the adverse party three (3) days' notice. If the affiant is not produced, his affidavit shall be suppressed. If the affiant is produced, he may be examined by either party. If on cross-examination the affidavit shall be shown to be false, then the provisional remedy shall be discharged.

History. Civil Code, § 601; Acts 1895, No. 83, § 1, p. 111; C. & M. Dig., § 4201; Pope's Dig., § 5212; A.S.A. 1947, § 28-203.

Case Notes

Suppression.

It is only where the affidavit might be used as evidence that it can be suppressed, so that if an attachment is issued on an affidavit and the grounds of attachment are controverted, the affidavit cannot be used as evidence and should not be suppressed because of plaintiff's failure to produce the affiant for cross-examination. Churchill v. Hill, 59 Ark. 54, 26 S.W. 378 (1894).

Cited: Miller v. Transamerica Commercial Fin. Corp., 74 Ark. App. 237, 47 S.W.3d 288 (2001).

Chapter 46 Documentary Evidence Generally

Publisher's Notes. Some provisions of this chapter may be superseded by the ARCP pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Research References

Am. Jur. 29 Am. Jur. 2d, Evid., § 834 et seq.

C.J.S. 32 C.J.S., Evid., § 623 et seq.

Subchapter 1 — General Provisions

Publisher's Notes. For comments regarding the Uniform Photographic Copies of Business and Public Records as Evidence Act, see Commentaries, Volume B.

Effective Dates. Acts 1953, No. 64, § 2: Feb. 13, 1953. Emergency clause provided: “It has been found that great difficulty and confusion exists in the application of rules of evidence respecting public and business records and that enactment of this law will greatly alleviate this situation and provide for more efficient administration of justice. 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 1957, No. 294, § 5: Mar. 27, 1957. Emergency clause provided: “Because the alleged results of blind checking are being used by those engaged in contracting film and other forms of amusement and entertainment upon a percentage rental basis to intimidate exhibitors to settle rental claims for an amount in excess of the amount shown by the books of said exhibitors in order to avoid threats of litigation and the resulting adverse publicity, and this Act being necessary for the preservation of the public peace, health, and safety, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.”

Acts 1977, No. 445, § 6: became law without Governor's signature, Mar. 16, 1977. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that in order to insure candor, objectivity and the presentation of all pertinent information sought by committees reviewing the quality of medical and hospital care and thus contribute to the effective functioning of committees striving to determine and improve such care, an absolute privilege of confidentiality should be afforded to data elicited during the course of such inquiries and that the privilege of confidentiality should be provided for 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 effect from the date of its passage and approval.”

Acts 1995, No. 885, § 5: became law without Governor's signature. Noted Mar. 31, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly that to protect the public and enhance patient care by allowing physicians to freely conduct peer review and quality review of medical and hospital care. 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”.

Research References

ALR.

Admissibility of computerized private business records. 7 A.L.R.4th 8.

Admissibility in evidence of professional directories. 7 A.L.R.4th 638.

16-46-101. Recordation of certain certified copies — Photographic copies of business and public records.

    1. The clerk of any court of record may record any certified copy of any instrument by attaching the certified copy to his or her record book so as to make the copy be and become a part of the record to the extent that the copy cannot be detached, and the copy shall be legally recorded when the attachment has been made by the clerk. This subdivision (a)(1) shall apply to plats, blueprints, and photostatic copies only.
      1. The county recorders, municipal clerks and recorders, clerks of courts of record, and any public officers whose duty it is to make public records are authorized to use and employ an approved system of photographic recording, photostatic recording, microfilm, microcard, miniature photographic recording, optical disc, or other process which accurately reproduces or forms a durable medium for reproducing the original when provided with equipment necessary for such method of recording.
      2. When any document is recorded by the means prescribed by subdivision (a)(2)(A) of this section, the original may be destroyed unless the document is over fifty (50) years old and handwritten or its preservation is otherwise required by law.
    1. If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, optical disk, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law.
    2. The reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not.
    3. An enlargement or facsimile of the reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court.
    4. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original.

History. Acts 1929, No. 189, § 5; Pope's Dig., § 5669; 1953, No. 64, § 1; 1963, No. 235, § 1; A.S.A. 1947, §§ 16-117, 28-932; Acts 1993, No. 1150, § 1; 1995, No. 454, § 1; 1995, No. 566, § 1; 1997, No. 636, § 1.

Publisher's Notes. For Comments regarding the Uniform Photographic Copies of Business and Public Records as Evidence Act, see Commentaries Volume B.

Amendments. The 1993 amendment inserted “optical disk” in (b)(1).

The 1995 amendment by No. 454 added (a)(2)(B); and inserted “photostatic recording, microfilm, microcard, miniature photographic recording, optical disc, or other process which accurately reproduces or forms a durable medium for reproducing the original” in (a)(2)(A).

The 1995 amendment by No. 566 inserted “electronic imaging” in (b)(1).

The 1997 amendment inserted “municipal clerks and recorders” after “county recorders” in (a)(2)(A): and, in (a)(2)(B), inserted “the document is over fifty (50) years old and handwritten or” and inserted “otherwise.”

Cross References. Reproduction of records, § 14-2-201 et seq.

Research References

Ark. L. Rev.

Photographic Copies of Business and Public Records as Evidence, 7 Ark. L. Rev. 332.

The Best Evidence Rule — A Rule Requiring the Production of a Writing to Prove the Writing's Contents, 14 Ark. L. Rev. 153.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Legislation — No. 235 — Photographic Copies of Documents Held in a Custodial or Fiduciary Capacity Admissible as Evidence, 18 Ark. L. Rev. 125.

Contents of Writings, Recordings and Photographs, 27 Ark. L. Rev. 357.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

U. Ark. Little Rock L.J.

Sullivan, The Need for a Business or Payroll Records Affidavit for Use in Child Support Matters, 11 U. Ark. Little Rock L.J. 651.

Case Notes

Docket Entries.

The docket entries of a justice of the peace are quasi-records and, when certified, are receivable in evidence. Gates v. Bennett, 33 Ark. 475 (1878).

Foundation.

There was no proper foundation made for the admission of a photostatic copy of a bill of lading, and under the best evidence rule or under the statutes the copy cannot be introduced until a proper foundation is made. Ebbert v. Hubbell Metals, Inc., 232 Ark. 971, 341 S.W.2d 768 (1961).

Where the microfilm copies of bank records were adequately identified by the bank's officer as being copies of records kept in the normal course of business, they were competent evidence. Reed v. State, 267 Ark. 1017, 593 S.W.2d 472 (Ct. App. 1980).

Cited: Walker v. State, 241 Ark. 300, 241 Ark. 663, 408 S.W.2d 905 (1966); Simolin v. Wilson, 253 Ark. 545, 487 S.W.2d 603 (1972).

16-46-102. Writing filed with pleading read as genuine unless denied.

Where a writing purporting to have been executed by one (1) of the parties is referred to in and filed with a pleading, it may be read as genuine against that party unless he denies its genuineness by affidavit before the trial is begun.

History. Civil Code, § 580; C. & M. Dig., § 4114; Pope's Dig., § 5123; A.S.A. 1947, § 28-927.

Case Notes

Purpose.

The purpose of this section is to permit a party who files a written instrument with his pleadings to introduce it in evidence as genuine unless its genuineness is first denied under oath. J.R. Watkins Medical Co. v. Montgomery, 140 Ark. 487, 215 S.W. 638 (1919).

Affidavit.

The genuineness of the writing may be contested without filing the affidavits. St. Louis, I. M. & S. R. Co. v. Smith, 82 Ark. 105, 100 S.W. 884 (1907); Hall v. T.M. Rea & Son, 85 Ark. 269, 107 S.W. 1176 (1908); Staggers v. White, 121 Ark. 328, 181 S.W. 139 (1915).

Though defendant filed an affidavit denying the genuineness of the note before trial, claiming that the amount filled in was incorrect, the note was properly admitted in evidence where he admitted signing it. Bailey v. Florsheim Bros. Dry Goods Co., 180 Ark. 293, 21 S.W.2d 171 (1929).

A note sued on was properly read in evidence where no affidavit was filed denying the genuineness of the signature. Winfrey v. Moss, 182 Ark. 525, 31 S.W.2d 956 (1930).

Company did not violate Ark. R. Civ. P. 10(d) by failing to attach to its complaint individual charge slips signed by a debtor; the complaint was accompanied by numerous documents on which its claim was based: a signed credit card application; invoices that bore the debtor's name and showed charges and payments made on the account; other statements of account; a card-member agreement containing contractual terms of usage and payment; and an affidavit of account. Cavalry SPV, LLC v. Anderson, 99 Ark. App. 309, 260 S.W.3d 331 (2007).

Burden of Proof.

Where, in a suit on a note or draft, its genuineness is denied by affidavit, the burden is on the plaintiff to prove the execution of the note or draft. Ohio Galvanizing & Mfg. Co. v. Nichol, 170 Ark. 16, 279 S.W. 377 (1926); Ciscell v. Brazil, 206 Ark. 1019, 178 S.W.2d 250 (1944); United States v. Davis, 125 F. Supp. 696 (W.D. Ark. 1954).

Where a defendant, sued on a note, relies on the defense that his signature as a joint maker is a forgery, the burden is his to show that fact where the note is filed as part of the original pleadings and is not denied before trial by answer or otherwise. Terrill v. Fowler, 175 Ark. 1010, 1 S.W.2d 75 (1928).

In a suit by a loan company to foreclose a mortgage, the canceled check bearing the mortgagor's endorsement was exhibited and the defendant denied that he received the money and alleged that their endorsement on the check or draft was a forgery, the burden was on the loan company to show that the mortgagors received the money. Lavender v. Buhrman-Pharr Hdwe. Co., 177 Ark. 656, 7 S.W.2d 755 (1928).

Where defendant before trial files an affidavit denying the execution of the instrument sued on, the plaintiff must prove its execution; but even without filing the affidavit, the defendant may show that it is void because of fraud. Harrell v. Southwest Mtg. Co., 180 Ark. 620, 22 S.W.2d 167 (1929).

In action against husband and wife on note allegedly executed by both, wife's affidavit, attached to answer, denying genuineness of signature, placed burden on holders to establish authenticity of her signature. Wasson v. Patton, 190 Ark. 397, 79 S.W.2d 276 (1935).

Failure to verify answer in foreclosure suit places upon defendant burden to prove she did not sign note and deed of trust and did not acknowledge the execution of the deed of trust. Callaway v. Ashby, 192 Ark. 929, 95 S.W.2d 907 (1936).

In action against husband and wife on note executed by husband and to foreclosure chattel mortgage also executed by him on an automobile in possession of his wife, wife, whose name did not appear on the note and mortgage, was not required to deny their genuineness by verified answer in order to prevent their being read in evidence against her. Bryant v. Lewis, 201 Ark. 288, 144 S.W.2d 37 (1940).

Directed Verdict.

Where defendant surety by affidavit denies the execution of the instrument sued on, and plaintiff offers no evidence on the issues so raised, it is proper to direct a verdict for defendant. J.R. Watkins Medical Co. v. Warren, 150 Ark. 542, 234 S.W. 618 (1921).

Prima Facie Evidence.

In an action on a promissory note, the note itself is prima facie evidence of its execution, in the absence of an affidavit by the purported maker denying the genuineness of his signature. Heathcock v. Brooke, 169 Ark. 73, 272 S.W. 843 (1925).

Mortgage, having been recorded, was admissible without proof of its execution, even though an affidavit of merit did not accompany the complaint. Jones v. Nix, 232 Ark. 182, 334 S.W.2d 891 (1960).

Writing Not Filed.

It was sufficient to invoke this section when the defendants answered plaintiff's request for admissions by denying execution under oath and alleging that the signatures to the note were forgeries when the note sued on was not attached to the complaint nor was defendants' answer verified. United States v. Davis, 125 F. Supp. 696 (W.D. Ark. 1954).

Cited: Worthen Bank & Trust Co. v. Adair, 15 Ark. App. 144, 690 S.W.2d 727 (1985).

16-46-103. Surveys.

No survey made by any person except the county surveyor or his deputy shall be considered as legal evidence in any court of law or equity within this state unless the surveys are made under authority of the United States or by the mutual consent of the parties.

History. Rev. Stat., ch. 40, § 18; C. & M. Dig., § 1901; Pope's Dig., § 2418; A.S.A. 1947, § 28-918.

Case Notes

Constitutionality.

This section, if literally construed, would be unconstitutional, but construed in connection with §§ 14-15-709, 14-15-710, and 14-15-712, it means that the certificate of any other surveyor than the county surveyor or his deputy shall not be admissible as documentary evidence of itself, without other proof. Smith v. Leach, 44 Ark. 287 (1884).

Prima Facie Evidence.

The only effect this section gives the county surveyor's certificate is to make it prima facie evidence of its correctness. Jeffries v. Hargus, 50 Ark. 65, 6 S.W. 328 (1887); Hobbs v. Clark, 53 Ark. 411, 14 S.W. 652 (1890).

The county surveyor's record of the survey made by him is only prima facie evidence of the correctness of the survey, and parol evidence of other surveys is admissible. Walters v. Meador, 211 Ark. 505, 201 S.W.2d 24 (1947).

16-46-104. Investigations of attendance at places of public amusement.

  1. No person employed as a private or confidential investigator shall undertake to determine the attendance or number of paid admissions at a public place of amusement and entertainment without first displaying to the owner or manager of such place his license or credentials as such investigator and receiving acknowledgment thereof in writing and filing a written and signed copy of such investigation and attendance record with the owner or manager immediately after the showing so checked and receiving acknowledgment thereof in writing.
  2. No evidence or testimony of any such investigator as to such admissions shall be admitted in any court in this state unless compliance with subsection (a) of this section is shown.
  3. Blind checking, also known as spot or random checking, of those attending public places of amusement and entertainment is declared to be against the public policy of the State of Arkansas, and any data, figures, or statistics compiled as a result of blind checking shall not be admitted as evidence in any case at law or equity.

History. Acts 1957, No. 294, §§ 1-3; A.S.A. 1947, §§ 28-714, 28-715.

16-46-105. Records of and testimony before committees reviewing and evaluating quality of medical or hospital care.

      1. The proceedings, minutes, records, or reports of organized committees of hospital medical staffs or medical review committees of local medical societies, or a committee organized by and operating pursuant to a written plan or policy under the auspices of a professional corporation or a professional limited liability company whose members are licensed to practice medicine in this state, having the responsibility for reviewing and evaluating the quality of medical or hospital care, and any records, other than those records described in subsection (c) of this section, compiled or accumulated by the administrative staff of such hospitals or a physician group peer review committee as defined under § 20-9-501 in connection with such review or evaluation, together with all communications or reports originating in such committees, shall not be subject to discovery pursuant to the Arkansas Rules of Civil Procedure or the Freedom of Information Act of 1967, § 25-19-101 et seq., or admissible in any legal proceeding and shall be absolutely privileged communications.
      2. The submission of such proceedings, minutes, records, reports, and communications to a hospital governing board or physician group peer review committee as defined under § 20-9-501 shall not operate as a waiver of the privilege.
    1. Neither shall testimony as to events occurring during the activities of such committees be subject to discovery pursuant to the Arkansas Rules of Civil Procedure or the Freedom of Information Act of 1967, § 25-19-101 et seq., or admissible.
    1. Nothing in this section shall be construed to prevent disclosure of the data mentioned in subsection (a) of this section to appropriate state or federal regulatory agencies which by statute or regulation are entitled to access to such data, nor to:
      1. An organized committee of hospital medical staffs or governing boards where the medical practitioner seeks membership or clinical privileges; or
      2. A committee organized by and operating pursuant to a written plan or policy under the auspices of a professional corporation or a professional limited liability company whose members are licensed to practice medicine in this state.
    2. Further, nothing in this section shall be construed to prevent discovery and admissibility if the legal action in which such data is sought is brought by a medical practitioner who has been subjected to censure or disciplinary action by such agency or committee or by a hospital medical staff or governing board.
  1. Nothing in this section or § 20-9-308 shall be construed to apply to original hospital medical records, incident reports, or other records with respect to the care or treatment of any patient or to affect the discoverability or admissibility of such records.

History. Acts 1977, No. 445, §§ 1, 3; A.S.A. 1947, §§ 28-934, 28-935; Acts 1995, No. 885, § 1; 1999, No. 1536, § 8; 2013, No. 441, §§ 3, 4.

Amendments. The 1995 amendment added the subdivision designations in (a); inserted “pursuant to … 25-19-101 et seq.” in (a)(1) and (a)(2); and inserted “subject to discovery” in (a)(2).

The 1999 amendment, in (a)(1), inserted “other than those records described in subsection (c) of this section” and added the last sentence; in (b), inserted the language “to organized … shall be construed,” inserted “agency or,” and added the language following “committee” in (b)(2); in (c), deleted “kept” preceding “with respect,” inserted “the care or treatment of,” and deleted “in the course of business of operating a hospital” following “any patient”; and made stylistic changes.

The 2013 amendment, in (a)(1)(A), inserted “or a committee organized . . . practice medicine in this state” and “or a physician group peer review committee as defined under § 20-9-501”; inserted “or physician group peer review committee as defined under § 20-9-501” in (a)(1)(B); inserted the (b)(1)(A) designation; substituted “An organized committee” for “organized committees” in (b)(1)(A); and added (b)(1)(B).

Research References

Ark. L. Rev.

Watkins, Open Meetings Under the Arkansas Freedom of Information Act, 38 Ark. L. Rev. 268.

Watkins, Access to Public Records Under the Arkansas Freedom of Information Act, 38 Ark. L. Rev. 741.

Case Notes

Construction.

Circuit court abused its discretion when it denied plaintiff surgeon's motion to compel discovery of peer review records regarding white physicians at the hospital in his suit alleging, inter alia, racial discrimination in the termination of his staff appointment and clinical privileges. Williams v. Baptist Health, 2019 Ark. App. 482, 587 S.W.3d 275 (2019), review granted, 2019 Ark. LEXIS 387 (Dec. 19, 2019), vacated, 2020 Ark. 350, 598 S.W.3d 487 (2020).

Plain language of subdivision (b)(2) of this section unambiguously provides an exception to the peer review privilege when the plaintiff in the legal action is the doctor who was adversely affected by the peer review proceedings. Nothing in the language of the exception supports the contention that it only allows a physician the right to obtain the medical records and documents reviewed and used in his own peer review proceedings. Williams v. Baptist Health, 2019 Ark. App. 482, 587 S.W.3d 275 (2019), review granted, 2019 Ark. LEXIS 387 (Dec. 19, 2019), vacated, 2020 Ark. 350, 598 S.W.3d 487 (2020).

Section 20-9-503(a)(1) is not read to forbid the use of peer review evidence in a doctor's lawsuit that challenges the peer review process. Rather, the statute appears to prohibit using peer review evidence in a lawsuit, such as a medical malpractice action, against a doctor that is based on the same conduct that led to the doctor's discipline. Williams v. Baptist Health, 2019 Ark. App. 482, 587 S.W.3d 275 (2019), review granted, 2019 Ark. LEXIS 387 (Dec. 19, 2019), vacated, 2020 Ark. 350, 598 S.W.3d 487 (2020).

Disciplinary Proceedings.

All records, documents and other information provided to the state medical board regarding revocation of the medical staff privileges of the defendant are absolutely privileged by Arkansas statutory provisions and cannot be discovered or admitted into evidence in a medical malpractice suit. Hendrickson v. Leipzig, 715 F. Supp. 1443 (E.D. Ark. 1989).

Nonprivileged Communications.

In a negligence action against doctors, hospital and nurses, the treating physician, who was a member of the hospital's pediatric committee, was allowed to testify as to his conversations with the manager and other hospital employees about the shortage of nurses. National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).

Medication incident report was discoverable under subsection (c) because report was not prepared by or at the direction of any organized committee for committee purposes, rather, policy and procedures of hospital required such a report to be generated any time there was a variance between physician's orders with respect to administration of medication and actual administration of medication; medical incident reports were designed to contain contemporaneous statements. Cochran v. St. Paul Fire & Marine Ins. Co., 909 F. Supp. 641 (W.D. Ark. 1995).

Personnel Records.

Response to reprimand was not a medical record, incident report, or other record kept with respect to any patient within the meaning of the language and intent of subsection (c), but instead was a record filed with the administrative staff which became a part of a disciplinary action kept with respect to one of hospital's personnel. HCA Health Servs. of Midwest, Inc. v. National Bank, 294 Ark. 525, 745 S.W.2d 120 (1988).

Privileged Communications.

Trial court should have excluded nurse's written response as privileged communication as proscribed pursuant to subsection (a). HCA Health Servs. of Midwest, Inc. v. National Bank, 294 Ark. 525, 745 S.W.2d 120 (1988).

Records of a post-incident disciplinary proceeding were within the privilege of subsection (a). National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).

Hospital statements taken from witnesses as part of a quality assurance or peer review proceeding were excluded from disclosure and were absolutely privileged communications pursuant to Arkansas statutes. Berry v. Saline Mem. Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995).

Hospital's insurer did not have to respond to a production request seeking the production of documents reflecting the activities of the hospital's strategic quality management committee because those documents were protected by the quality assurance and review privilege provided for in this section. Clark v. Baka, No. 4:07-CV-00477 GTE, 2008 U.S. Dist. LEXIS 84570 (E.D. Ark. Oct. 9, 2008).

Statutory privilege set forth in this section encompasses records compiled by hospital administrative staff “in connection with” its quality-review process, not just the records from those cases that are ultimately referred to a quality-assurance committee (circuit court did not rule on plaintiff's argument concerning the subsection (c) exception, and thus it was not addressed on appeal). Jefferson Hosp. Ass'n v. Smith, 2019 Ark. App. 27, 569 S.W.3d 889 (2019).

Review of Discovery Orders.

In a patient's suit against a rehabilitation institute, where the institute was ordered to produce certain documents that it contended were privileged, certiorari was inappropriate because (1) the institute sought to reverse a discovery order, (2) the supreme court would be required to delve into the underlying merits of the controversy, and (3) the institute was asking the supreme court to interpret the statute at issue and determine whether the circuit court properly construed and applied it. Baptist Health v. Circuit Court, 373 Ark. 455, 284 S.W.3d 499 (2008).

Cited: Baxter County Newspapers, Inc. v. Medical Staff of Baxter Gen. Hosp., 273 Ark. 511, 622 S.W.2d 495 (1981); Saline Mem. Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995).

16-46-106. Access to medical records.

    1. In contemplation of, preparation for, or use in any legal proceeding, any person who is or has been a patient of a doctor, hospital, ambulance provider, medical healthcare provider, or other medical institution shall be entitled to obtain access, personally or by and through his or her attorney, to the information in his or her medical records, upon request and with written patient authorization, and shall be furnished copies of all medical records pertaining to his or her case upon the tender of the expense of such copy or copies.
    2. Cost of each photocopy, excluding X-rays, shall not exceed fifty cents (50¢) per page for the first twenty-five (25) pages and twenty-five cents (25¢) for each additional page. A labor charge not exceeding fifteen dollars ($15.00) may be added for each request for medical records under subdivision (a)(1) of this section, and the actual cost of any required postage may also be charged.
    3. Provided, however, in the alternative to the labor charge described in subdivision (a)(2) of this section, a reasonable retrieval fee for stored records of a hospital, a physician's office, or an ambulance provider may be added to the photocopy charges, only if the requested records are stored at a location other than the location of the hospital, physician's office, or ambulance provider.
    4. Provided, further, this section shall not prohibit reasonable fees for narrative medical reports or medical review when performed by the physician or medical institution subject to the request, but only if a narrative medical report or medical review is requested by the person or entity requesting the records.
    1. If a doctor believes a patient should be denied access to his or her medical records for any reason, the doctor must provide the patient or the patient's guardian or attorney a written determination that disclosure of such information would be detrimental to the individual's health or well-being.
      1. At such time, the patient or the patient's guardian or attorney may select another doctor in the same type practice as the doctor subject to the request to review such information and determine if disclosure of such information would be detrimental to the patient's health or well-being.
      2. If the second doctor determines, based upon professional judgment, that disclosure of such information would not be detrimental to the health or well-being of the individual, the medical records shall be released to the patient or the patient's guardian or attorney.
    2. If the determination is that disclosure of such information would be detrimental, then it either will not be released or the objectionable material will be obscured before release.
    3. The cost of this review of the patient's record will be borne by the patient or the patient's guardian or attorney.
  1. Nothing in this section shall preclude the existing subpoena process; however, if a patient is compelled to use the subpoena process in order to obtain access to, or copies of, their own medical records after reasonable requests have been made and a reasonable time has expired, then the court issuing the subpoena and having jurisdiction over the proceedings shall grant the patient a reasonable attorney's fee plus costs of court against the doctor, hospital, or medical institution.
  2. This section does not apply to the Division of Correction.

History. Acts 1991, No. 767, §§ 1, 2; 1995, No. 708, § 1; 1999, No. 333, §§ 1, 2; 2007, No. 662, § 1; 2019, No. 910, § 855.

Amendments. The 1995 amendment added the language beginning “however” in (c).

The 1999 amendment inserted “medical health care provider” following “ambulance provider” in (a)(1); and inserted “or an ambulance provider” following “records of a hospital” in (a)(3).

The 2019 amendment substituted “Division of Correction” for “Department of Correction” in (d).

Case Notes

Sales Tax.

Trial court properly granted summary judgment to a records company and the Department of Department of Finance and Administration and denied a patient's motion because the company's transfer of copies of the patient's medical records to her was subject to sales tax where the transfer constituted a sale of tangible personal property, payment for the copies constituted valuable consideration, and the patient failed to demonstrate that her request for the copies was exempted from taxation. Holbrook v. Healthport, Inc., 2014 Ark. 146, 432 S.W.3d 593 (2014).

Cited: Chartone, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008).

16-46-107. Identification of medical bills at trial.

  1. Upon the trial of any civil case involving injury, disease, or disability, the patient, a member of his family, or any other person responsible for the care of the patient shall be a competent witness to identify doctor bills, hospital bills, ambulance service bills, drug bills, and similar bills for expenses incurred in the treatment of the patient upon a showing by the witness that such bills were received from a licensed practicing physician, hospital, ambulance service, pharmacy, drug store, or supplier of therapeutic or orthopedic devices, and that such expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation at trial.
  2. Such items of evidence need not be identified by the person who submits the bill, and it shall not be necessary for an expert witness to testify that the charges were reasonable and necessary.

History. Acts 1993, No. 424, § 1.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Evidence, 16 U. Ark. Little Rock L.J. 127.

Case Notes

Chiropractic Services.

Order finding plaintiff's medical expenses excessive in her personal injury action against defendant was upheld because plaintiff failed to provide expert testimony that her chiropractic treatment was medically necessary and reasonable; the only evidence presented was plaintiff's own self-serving testimony and an invoice from her chiropractor. Young v. Barbera, 92 Ark. App. 70, 211 S.W.3d 29 (2005), rev'd, 366 Ark. 120, 233 S.W.3d 651 (2006).

Expenses Incurred.

This section did not apply to orthodontic and dental estimates for future medical treatment. This section plainly states that a patient is competent to identify bills for expenses “incurred”, and plaintiff admitted that he had not incurred the expenses. Dale v. White, 2018 Ark. App. 172, 545 S.W.3d 812 (2018).

Jury Instruction.

Driver's medical bills were admitted into evidence, and that decision was made before the case went to the jury, and thus the statute had no relevance to the issues that would be before the jury; allowing a jury instruction, modified by the statute, would have been more confusing than helpful to the jury in this case. Reed v. Adamec, 2014 Ark. App. 170 (2014).

16-46-108. Photographically reproduced records admissible in court.

    1. Any record or set of records or photographically reproduced copies of such records which would be admissible under Rule 803(6) or (7) of the Arkansas Rules of Evidence shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7) that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided, further, that such record or records, along with such affidavit, are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen (14) days prior to the day upon which the trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit, and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying.
    2. The expense for copying shall be borne by the party, parties, or persons who desire copies and not by the party or parties who file the records and serve notice of said filing in compliance with this rule.
    3. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule 27(a)(2) of the Arkansas Rules of Civil Procedure fourteen (14) days prior to commencement of the trial in said cause.
  1. A form for the affidavit of such person as shall make such affidavit as is permitted in subsection (a) of this section shall be sufficient if it follows this form, though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice, to wit:

No. John Doe (Name of Plaintiff) v. John Roe (Name of Defendant) IN THE COURT OF COUNTY, Arkansas AFFIDAVIT Before me, the undersigned authority, personally appeared , who, being by me duly sworn, deposed as follows: My name is , I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated: I am the custodian of the records of . Attached hereto are pages of records from . These said pages of records are kept by in the regular course of business, and it was the regular course of business of for an employee or representative of , with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original. Affiant SWORN TO AND SUBSCRIBED before me on the day of , 19 . My commission expires: Notary Public, State of Arkansas Notary's printed name

Click to view form.

History. Acts 1995, No. 1136, § 1.

Case Notes

Admissibility.

Finding in favor of the beneficiaries and against the intestate heirs in a will-contest action was proper where the beneficiaries satisfied the requirements of Ark. R. Evid. 803(6) and proved that the bank's records were admissible as an exception to the hearsay rule and, even though the officer was not the custodian of the records, that did not bar the admission; further, the records were adequately authenticated under Ark. R. Evid. 901 because the officer repeatedly testified that the copies were true and accurate copies of the records that they depicted. Metzgar v. Rodgers, 83 Ark. App. 354, 128 S.W.3d 5 (2003).

In an action to collect unpaid credit card debt, the trial court abused its discretion in excluding business records which reflected a credit card debt owed by the cardholder because the documents were supported by an affidavit that complied with subsection (b) of this section. The cardholder never claimed a lack of notice and made no objection to the admission of the business records. Ozark Capital Corp. v. Pullen, 2012 Ark. App. 652 (2012).

Orthodontic and dental estimates were not admissible under Ark. R. Evid. 803(6) where plaintiff failed to cite this section or explain how his proffered certificate of acknowledgement met the statutory requirements. Dale v. White, 2018 Ark. App. 172, 545 S.W.3d 812 (2018).

Notice.

It is proper to exclude either the date of filing or the first day of trial when computing the 14-day statutory period pursuant to this section, but it is improper to exclude both dates from the computation. Phelan v. Discover Bank, 361 Ark. 138, 205 S.W.3d 145 (2005).

Prejudice or Confusion.

The fact that medical records fell within § 16-46-108 and Evid. Rule 803(6) did not equate to automatic admissibility, and the trial court properly excluded such evidence to prevent possible prejudice or confusion. Lovell v. Beavers, 336 Ark. 551, 987 S.W.2d 660 (1999).

Cited: Clater v. State, 2020 Ark. App. 92 (2020).

16-46-109. Proceedings, minutes, records, or reports confidential.

    1. The proceedings, minutes, records, or reports of the quality assurance committees having the responsibility for reviewing and evaluating the quality of medical, nursing, or other care delivered in a long-term care facility, or of professional consultants engaged by long-term care facilities to study quality-of-care issues identified by the committee, and any other records, other than those records described in subsection (c) of this section, compiled or accumulated by the staff of a facility in connection with the review or evaluation, together with all communications or reports originating in the committee are:
      1. Exempt from discovery and disclosure to the same extent that proceedings, minutes, records, or reports of committees evaluating quality of medical or hospital care are exempt under § 16-46-105(a)(1);
      2. Not admissible in any legal proceeding; and
      3. Absolutely privileged communication.
    2. Testimony as to events occurring during the activities of the committee is:
      1. Exempt from discovery and disclosure to the same extent that testimony before committees evaluating quality of medical or hospital care are exempt under § 16-46-105(a)(2); and
      2. Not admissible as evidence in any legal proceeding.
  1. This section does not prevent disclosure of the data mentioned in subsection (a) of this section to an appropriate state or federal regulatory agency that by statute, rule, or regulation is entitled to access to the data.
    1. This section does not apply to or affect the discovery or admissibility into evidence in a civil proceeding of the following records:
      1. Records or reports made in the regular course of business by a long-term care facility or other healthcare provider that are not created by or for the committee;
      2. Records or reports otherwise available from original sources, including without limitation the medical record of specific residents;
      3. Records or reports required to be kept by applicable law, rule, or regulation that are not created by or for the committee;
      4. Incident and accident reports;
      5. The long-term care facility's operating budgets; or
      6. Records of the committee's meeting dates.
    2. Without waiving any privilege, appointments to the committee are available to the Medicaid Fraud Control Unit of the Attorney General's office.

History. Acts 2009, No. 198, § 3; 2019, No. 315, §§ 1299, 1300.

Amendments. The 2019 amendment inserted “rule” in (b) and in (c)(1)(C).

Subchapter 2 — Public Records as Evidence Generally

Cross References. Uniform Interstate and International Procedure Act, § 16-4-101 et seq.

Effective Dates. Acts 1853, § 4, p. 199: effective on passage.

Acts 1949, No. 293, § 6: approved Mar. 19, 1949. Emergency clause provided: “Due to the fact that litigants in the courts of this State are unable to make use of books of account and copies of the records of the agencies and departments of the United States and by reason thereof are compelled to expend huge sums and are denied the right of a speedy and economical disposition of their business in the courts of this State, an emergency is hereby declared to exist, and this Act being also necessary for the immediate preservation of the public peace, health and safety, the same shall take effect and be in full force and effect from and after its passage.”

Acts 1975, No. 285, § 4: Mar. 3, 1975. Emergency clause provided: “It has been found and it is hereby declared that uncertainty as to the admissibility in evidence of copies of schedules, classifications, and tariffs as provided for in this Act has resulted in delays and inefficiencies in the administration of judicial proceedings in the courts of this state and that it is essential to the welfare of this state and her inhabitants that these delays and inefficiencies be remedied. Therefore, this Act being necessary for the preservation of the public peace, health and safety, an emergency is declared to exist and this Act shall be in full force and effect immediately upon its passage and approval.”

Research References

ALR.

Admissibility in state court proceedings of police reports, 31 A.L.R.4th 913.

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

16-46-201 — 16-46-203. [Repealed.]

Publisher's Notes. These sections, concerning statute books and official documents of cities and towns as evidence, were repealed by Acts 2013, No. 1148, §§ 9[10]–11[12]. The sections were derived from the following sources:

16-46-201. Rev. Stat., ch. 59, § 1; C. & M. Dig., § 4115; Pope's Dig., § 5124; A.S.A. 1947, § 28-901.

16-46-202. Rev. Stat., ch. 59, §§ 2, 3; C. & M. Dig., §§ 4116, 4117; Pope's Dig., §§ 5125, 5126; A.S.A. 1947, §§ 28-902, 28-903.

16-46-203. Rev. Stat., ch. 59, § 10; C. & M. Dig., § 4129; Pope's Dig., § 5138; A.S.A. 1947, § 28-904.

16-46-204. [Repealed.]

Publisher's Notes. This section, concerning copies of proceedings before a justice of the peace as evidence, was repealed by Acts 1999, No. 19, § 1. The section was derived from Rev. Stat., ch. 59, §§ 4, 5; C. & M. Dig., §§ 4118, 4119; Pope's Dig., §§ 5127, 5128; A.S.A. 1947, §§ 28-905, 28-906.

16-46-205 — 16-46-210. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning certain copies of documents as evidence, were repealed by Acts 2013, No. 1148, §§ 12[13]–17[18]. The sections were derived from the following sources:

16-46-205. Rev. Stat., ch. 18, § 6; Acts 1853, § 2, p. 199; Civil Code, § 487; C. & M. Dig., §§ 4122, 4123, 4128; Pope's Dig., §§ 5131, 5132, 5137; A.S.A. 1947, §§ 28-908 — 28-910.

16-46-206. Rev. Stat., ch. 59, §§ 11, 13; C. & M. Dig., §§ 4130, 4132; Pope's Dig., §§ 5139, 5141; A.S.A. 1947, §§ 28-912, 28-913.

16-46-207. Rev. Stat., ch. 59, § 12; C. & M. Dig., § 4131; Pope's Dig., § 5140; A.S.A. 1947, § 28-914.

16-46-208. Rev. Stat., ch. 59, § 14; C. & M. Dig., § 4133; Pope's Dig., § 5142; A.S.A. 1947, § 28-915.

16-46-209. Rev. Stat., ch. 59, § 6; C. & M. Dig., § 4120; Pope's Dig., § 5129; A.S.A. 1947, § 28-916.

16-46-210. Acts 1853, § 24, p. 161; C. & M. Dig., § 4127; Pope's Dig., § 5136; A.S.A. 1947, § 28-917.

16-46-211. Notary's protest.

  1. The protest made by a notary public under his hand and seal of office shall be evidence of the facts contained in the protest.
  2. The certificate of a notary public, under his hand and seal of office, that he forwarded notice of protest shall be prima facie evidence of the fact stated in the certificate.

History. Rev. Stat., ch. 20, § 11; Acts 1859, No. 234, § 1, p. 300; C. & M. Dig., §§ 4125, 4126; Pope's Dig., §§ 5134, 5135; A.S.A. 1947, §§ 28-922, 28-923.

Cross References. Declarations, protests, and acknowledgments taken by notary admissible as evidence of facts, § 21-14-110.

Case Notes

Foreign Notary.

A certificate of protest of a note by a notary of another state attested by his seal is prima facie evidence that the acts indicated were done by him. Fletcher v. Arkansas Nat'l Bank, 62 Ark. 265, 35 S.W. 228 (1896).

Cited: Peters v. Hobbs, 25 Ark. 67 (1867).

16-46-212. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning authenticated copies or transcripts of federal documents, was repealed by Acts 2013, No. 1148, § 18[19]. The section was derived from Acts 1949, No. 293, § 4; A.S.A. 1947, § 28-931.

16-46-213. Records of United States Surface Transportation Board and Arkansas Department of Transportation.

Printed copies of schedules, classifications, and tariffs of rates, fares, and charges, and supplements to the printed copies, of all common carriers and contract carriers by railroad, motor vehicle, or otherwise, on file with the United States Surface Transportation Board or the Arkansas Department of Transportation and which reflect a United States Surface Transportation Board number and an effective date, or which reflect an Arkansas State Highway and Transportation Department or Arkansas Department of Transportation number and an effective date, may be received in evidence in any proceeding before the courts or administrative agencies of this state, without certification or authentication, and shall be presumed to be correct copies of the original schedules, classifications, tariffs, and supplements on file with the United States Surface Transportation Board or on file with the Arkansas Department of Transportation.

History. Acts 1975, No. 285, § 1; A.S.A. 1947, § 28-933; Act 2017, No. 707, § 38.

Amendments. The 2017 amendment substituted “United States Surface Transportation Board” for “Interstate Commerce Commission” in the section heading and throughout the section; substituted “Department of Transportation” for “State Highway and Transportation Department” in the section heading and throughout the section; substituted “to the printed copies” for “thereto”, and inserted “or Arkansas Department of Transportation” preceding “number”; and made stylistic changes.

Subchapter 3 — Hospital Records Act

Effective Dates. Acts 1981, No. 255, § 10: Feb. 27, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that presently custodians of hospital records must appear personally in court to verify such records resulting in the waste of a large amount of time of hospital personnel with a resulting increase in cost of medical care; that medical records custodians should be allowed to certified their records for the court and not appear personally in court to verify the same; 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.”

Research References

ALR.

Admissibility of computerized private business records. 7 A.L.R.4th 8.

Physician-patient privilege as extending to patient's medical or hospital records. 10 A.L.R.4th 552.

Ark. L. Notes.

Gitelman and Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, 1991 Ark. L. Notes 27.

16-46-301. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Custodian” means the medical records librarian and the administrator or other chief officer of a duly licensed hospital, physician's office, or comprehensive community mental health center in this state and its proprietor, as well as his or her deputies and assistants, and any other persons who are official custodians or depositories of records; and
    1. “Records” means hospital records, physician's records, or medical records and includes an admitting form, discharge summary, history and physical, progress notes, physicians' orders, reports of operations, recovery room records, lab reports, consultation reports, medication records, nurses' notes, and other reports catalogued and maintained by the hospital's medical record department or by a physician's office.
    2. However, “records” shall not mean and include X-rays, electrocardiograms, and similar graphic matter.

History. Acts 1981, No. 255, § 1; A.S.A. 1947, § 28-936; Acts 1993, No. 274, § 1; 2007, No. 662, § 2.

Amendments. The 1993 amendment redesignated former (1) as (2) and (2) as (1); redesignated the two sentences of present (2) as (2)(A) and (B); in (1), inserted “or comprehensive community mental health center” and substituted “his deputies” for “their deputies”; and made stylistic changes.

Case Notes

Cited: Washington v. State, 2016 Ark. App. 565, 506 S.W.3d 893 (2016).

16-46-302. Furnishing copies of records in compliance with subpoenas.

Except as hereinafter provided, when a subpoena duces tecum is served upon a custodian of records of any hospital or physician's office duly licensed under the laws of this state in an action or proceeding in which the hospital or physician's office is neither a party nor the place where any cause of action is alleged to have arisen and such a subpoena requires the production of all or any part of the records of the hospital or physician's office related to the care or treatment of a patient in the hospital or physician's office, then it shall be sufficient compliance therewith if the custodian delivers, by hand or by registered mail to the court clerk or the officer, court reporter, body, or tribunal issuing the subpoena or conducting the hearing, a true and correct copy of all records described in the subpoena together with the affidavit described in § 16-46-305. However, a subpoena duces tecum for records shall not be deemed to include X-rays, electrocardiograms, and similar graphic matter unless they are specifically referred to in the subpoena.

History. Acts 1981, No. 255, § 2; A.S.A. 1947, § 28-937; Acts 2007, No. 662, § 3.

Cross References. Subpoena for production of documentary evidence, ARCP 45.

Case Notes

Admissibility.

Where the custodian of hospital X rays attached an affidavit to the X rays and hospital records stating that the records were authentic, the trial court did not err in allowing the state medical examiner to use the X rays in order to prove the identity of the murder victim. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983).

Cited: Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987).

16-46-303. Sealing, identification, and direction of copies.

The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, the name of the custodian, and the date of subpoena clearly inscribed thereon. The sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:

  1. If the subpoena directs attendance in court, to the clerk or the judge of the court;
  2. If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at his place of business;
  3. In other cases, to the officer, body, or tribunal conducting the hearing, at a like address.

History. Acts 1981, No. 255, § 3; A.S.A. 1947, § 28-938.

Case Notes

Cited: Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987).

16-46-304. Opening of sealed envelopes.

  1. Unless the sealed envelope or wrapper is returned to the custodian who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, court, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, deposition, or hearing. Before directing that the inner envelope or wrapper be opened, the judge, court, officer, body, or tribunal shall first ascertain that either:
    1. The records have been subpoenaed at the instance of the patient involved or his counsel of record; or
    2. The patient involved or someone authorized in his behalf to do so for him has consented thereto and waived any privilege of confidentiality involved.
  2. Records which are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received.

History. Acts 1981, No. 255, § 4; A.S.A. 1947, § 28-939.

Case Notes

Construction.

The legislature designed this section to be in accord with the other “physician privilege” statute, Evid. Rule 503, by limiting the privilege to confidential communications. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993).

Blood tests.

The results of blood tests are not considered to be confidential information and therefore it is proper to admit them. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993).

Noncompliance.

Blood alcohol report was introduced into evidence without compliance with this section where there was no indication whatsoever that the report was sealed in an inner envelope which was also sealed in an outer envelope. Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987).

16-46-305. Affidavit of custodian as to copies — Charges.

  1. The records shall be accompanied by an affidavit of a custodian stating in substance:
    1. That the affiant is the duly authorized custodian of the records and has authority to certify the records;
    2. That the copy is a true copy of all the records described in the subpoena; and
    3. That the records were prepared by personnel of the hospital, staff physicians, or persons acting under the control of either, or the physician, personnel of the physician's office, or persons acting under control of the physician, in the ordinary course of the hospital's or physician's office business at or near the time of the act, condition, or event reported therein.
  2. If the hospital or physician's office has none of the records described, or only part of them, the custodian shall state so in the affidavit and file the affidavit and any records as are available in the manner described in §§ 16-46-302 and 16-46-303.
  3. The custodian of the records may enclose a statement of costs for copying the records, and the costs of copying the records shall be borne by the party requesting the subpoena duces tecum for the records.

History. Acts 1981, No. 255, § 5; A.S.A. 1947, § 28-940; Acts 2007, No. 662, § 4.

16-46-306. Admissibility of copies and affidavits.

The copy of the record shall be admissible in evidence to the same extent as though the original record was offered and the custodian had been present and testified to the matters stated in the affidavit.

History. Acts 1981, No. 255, § 6; A.S.A. 1947, § 28-941.

16-46-307. Personal attendance of custodian — Production of original record.

  1. Where the personal attendance of the custodian is desired, the subpoena duces tecum shall contain a clause which reads: “The personal attendance of the custodian of records is necessary.”
  2. Where both the personal attendance of the custodian and the production of the original record are desired, the subpoena duces tecum shall contain a clause which reads: “The original records and the personal attendance of the custodian of records are necessary.”
  3. Where the personal attendance of the custodian is requested, the reasonable cost of producing the records and expenses for personal attendance shall be borne by the party requesting the subpoena.

History. Acts 1981, No. 255, § 7; A.S.A. 1947, § 28-942.

16-46-308. Substitution of copies for original records.

In view of the property right of the hospital or physician's office in its records, original records may be withdrawn after introduction into evidence and copies substituted unless otherwise directed by the court, judge, officer, body, or tribunal conducting the hearing. The custodian may prepare copies of original records in advance of testifying for the purpose of making substitution of the original record, and the reasonable charges for making the copies shall be borne by the party requesting the subpoena. If copies are not prepared in advance, they can be made and substituted at any time after introduction of the original record, and the reasonable charges for making the copies shall be borne by the party requesting the subpoena.

History. Acts 1981, No. 255, § 8; A.S.A. 1947, § 28-943; Acts 2007, No. 662, § 5.

Subchapter 4 — Patient Medical Records Privacy Act

16-46-401. Title.

This subchapter shall be known and may be cited as the “Patient Medical Records Privacy Act”.

History. Acts 2005, No. 1436, § 1.

RESEARCH REFERENCES

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Practice, Procedure, and Courts, 28 U. Ark. Little Rock L. Rev. 377.

16-46-402. Definitions.

As used in this subchapter:

    1. “Medical records” means hospital or clinic records, physicians' records, or other healthcare records and includes an admitting form, discharge summary, history and physical, progress notes, physicians' orders, reports of operations, recovery room records, lab reports, consultation reports, medication records, nurses' notes, and other reports catalogued and maintained by the medical records department of a hospital, doctor's office, medical clinic, or any other medical facility.
    2. “Medical records” includes X-rays, computed tomography imaging, magnetic resonance imaging, electrocardiograms, radiographic studies, and other testing that generates a printed result; and
  1. “Party in litigation” means any person who requests copies of a patient's medical records from any doctor, hospital, or other custodian of records for use in any civil legal proceeding.

History. Acts 2005, No. 1436, § 1.

16-46-403. Notice required.

  1. Any party in litigation that receives or obtains a copy of a patient's medical records from a doctor, hospital, or other custodian of records by using a subpoena, court order, or consent form signed by the patient shall provide written notice of the receipt of the records to the:
    1. Patient; or
    2. Patient's attorney if the patient is represented by an attorney.
  2. The notice required by subsection (a) of this section may be made by:
    1. Any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee; or
    2. Facsimile with a receipt or transaction report showing that the transmittal was received.
  3. The notice required by subsection (a) of this section shall include the name and address of the provider for each record that was obtained.

History. Acts 2005, No. 1436, § 1.

16-46-404. Use of medical records at trial.

If notice is not given as required by § 16-46-403, a party in litigation shall be prohibited from introducing the patient's medical records into evidence or referring to the patient's medical records in any manner in a legal proceeding relating to the patient.

History. Acts 2005, No. 1436, § 1.

16-46-405. Scope of subchapter.

  1. This subchapter shall apply to private litigants in civil actions only and shall not alter the rights, duties, or responsibilities of any person or entity in any other type of legal proceeding, including, but not limited to, actions under the Workers' Compensation Law, § 11-9-101 et seq.
  2. All provisions of this subchapter shall be subject to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191.
  3. Upon adoption of a Supreme Court rule which is substantially similar to the provisions of this subchapter, this subchapter shall be deemed superseded.

History. Acts 2005, No. 1436, § 1.

U.S. Code. The Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110, Stat. 1936, referred to in (b), is codified throughout Titles 18, 26, 29 and 42 of the U.S. Code.

Chapter 47 Acknowledgment and Proof of Instruments

Research References

Am. Jur. 1 Am. Jur. 2d, Acknowl., § 1 et seq.

C.J.S. 1A C.J.S., Acknowl., § 1 et seq.

Subchapter 1 — General Provisions

Effective Dates. Acts 1875, No. 13, § 3: effective on passage.

Acts 1887, No. 91, § 2: effective on passage.

Acts 1899, No. 150, § 3: effective on passage.

Acts 1919, No. 45, § 3: effective on passage. Emergency declared. Approved Feb. 4, 1919.

Acts 1921, No. 233, § 2: effective on passage.

Acts 1923, No. 464, § 3: effective on passage.

Acts 1945, No. 263, § 3: Mar. 20, 1945. Emergency clause provided: “That due to the fact that a number of our citizens are far away from home and are out of the state and nation and have no opportunity to appear before some state officer for the purpose of having their signature acknowledged, and that a number of citizens of the State of Arkansas are in the armed forces and have been required and forced by law to sign various papers that should be properly acknowledged, it is hereby declared that an emergency exists and this act being necessary for the immediate preservation of the public peace, health and safety, this act shall take effect and be in full force and effect from and after its passage and approval.”

Acts 1955, No. 101, § 5: Feb. 23, 1955. Emergency clause provided: “The General Assembly finds it to be a fact, and so declares, that many instruments contain defective acknowledgments due to errors in the preparation thereof, without fault upon the part of the person, firm or corporation so executing said instruments; that these defective acknowledgments hamper the sale of real estate throughout the State and retard the development of industries and other businesses in the State of Arkansas; that this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interest of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 2013, No. 999, § 6: Apr. 8, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that many instruments affecting title to real estate are being found to not provide constructive notice because of defects in the certificates of acknowledgment; and that this act is immediately necessary to protect property rights and interests. 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.”

RESEARCH REFERENCES

Ark. L. Notes.

Atkinson, Laurence, The Avoidance by an Arkansas Bankruptcy Trustee of a Mortgage Defectively Acknowledged, 2003 Arkansas L. Notes 1.

16-47-101. Proof or acknowledgment as prerequisite to recording real estate conveyances.

All deeds and other instruments in writing for the conveyance of any real estate, or by which any real estate may be affected in law or equity, shall be proven or duly acknowledged in conformity with the provisions of this act, before they or any of them shall be admitted to record.

History. Rev. Stat., ch. 31, § 22; C. & M. Dig., § 1525; Pope's Dig., § 1835; A.S.A. 1947, § 49-211.

Publisher's Notes. Rev. Stat., ch. 31, § 22, is also codified as § 18-12-201.

Meaning of “this act”. Chapter 31 of the Revised Statutes, codified as §§ 16-47-101, 16-47-10316-47-106, 16-47-110, 18-12-101, 18-12-102, 18-12-104, 18-12-105, 18-12-201, 18-12-20318-12-206, 18-12-209, 18-12-301, 18-12-402, 18-12-501, 18-12-502, 18-12-60118-12-603.

Research References

U. Ark. Little Rock L.J.

Survey — Property, 12 U. Ark. Little Rock L.J. 225.

Case Notes

Defective Acknowledgment.

Even though an acknowledgment may have been defective, it would not affect the validity of the mortgage as between the makers. Rogers v. Great Am. Fed. Sav. & Loan Ass'n, 304 Ark. 143, 801 S.W.2d 36 (1990).

Where a mortgage lien was defective because the mortgage deed failed to comply with the acknowledgement requirements in § 16-47-106 and this section, a creditor was not entitled to reformation of the contract because the trustee had the same rights as a bona fide purchaser under 11 U.S.C.S. § 544(a)(3), and those rights would be prejudiced by the imposition of an equitable lien. Williams v. JPMorgan Chase Bank, N.A. (In re Stewart), 422 B.R. 185 (Bankr. W.D. Ark. 2009).

Failure to Acknowledge.

Unacknowledged mortgage is not entitled to record, and, if recorded, its record is of no validity. Moore v. Ollson, 105 Ark. 241, 150 S.W. 1028 (1912).

Where neither the offer and acceptance nor the purchaser's agreement was acknowledged, they were not recordable and therefore the purchasers of the realty were without means of giving record notice to the world of their equitable interest in the property. Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (Ct. App. 1980).

Curative statute, § 18-12-208, did not operate to cure a mortgage deed that failed to comply with the acknowledgement requirements in this section and § 16-47-101 because the transaction occurred after the passage of the statute. Thus, a mortgage lien was not perfected and could be avoided by a trustee under 11 U.S.C.S. §§ 544(a) and 550(a). Williams v. JPMorgan Chase Bank, N.A. (In re Stewart), 422 B.R. 185 (Bankr. W.D. Ark. 2009).

Recorded affidavit of lost mortgage, with a copy of the mortgage appended, was not constructive notice to a bankruptcy trustee of the mortgagee's interest in the subject property because the affidavit was not an “instrument of writing affecting title,” under § 14-15-404(a)(1), as (1) the affidavit did not affect title, since the affidavit's purpose was to give notice that there was a mortgage executed which was lost, and (2) an instrument affecting real estate had to be acknowledged before being admitted to record, under this section, but the grantor did not acknowledge the affidavit, nor was the grantor required to, as the affidavit was witnessed and notarized only for the purpose of attesting to the signature of the lender's employee who stated the mortgage was lost and the bank claimed an interest in the property, so the trustee, as a bona fide purchaser for value, under 11 U.S.C.S. § 544, could avoid the mortgagee's lien. Wetzel v. Mortgage Elec. Registration Sys., 2010 Ark. 242 (2010).

—Constructive Notice.

A recorded lease which was not acknowledged would not be constructive notice; however, the fact that it was recorded might be considered in determining whether the purchaser had actual notice before purchasing. Prince v. Alford, 173 Ark. 633, 293 S.W. 36 (1927).

Recorded contract of senior purchaser of real estate did not constitute constructive notice to junior purchasers where it was not properly acknowledged. Wyatt v. Miller, 255 Ark. 304, 500 S.W.2d 590 (1973).

Unacknowledged lease was not valid against purchasers who had no actual knowledge of the lease and could not be charged with constructive notice; accordingly, such lease was properly cancelled. George v. George, 267 Ark. 823, 591 S.W.2d 655 (Ct. App. 1979).

Mortgage lien was not perfected and could be avoided by a trustee under 11 U.S.C.S. §§ 544(a) and 550(a), who was also entitled to an award of reasonable attorney fees, because an acknowledgement that did not comply with§ 16-47-106 and this section did not provide constructive notice. The omission of the debtor's name alone would not have been fatal, as the omitted information could have been filled in by reference to the document as a whole; however, omission of the name plus the use of a different gender led to an ambiguity that would have required extrinsic evidence. Williams v. JPMorgan Chase Bank, N.A. (In re Stewart), 422 B.R. 185 (Bankr. W.D. Ark. 2009).

Lis Pendens.

As a lis pendens is not an instrument in writing for the conveyance of any real estate or by which any real estate may be affected in law or equity, acknowledgment of the lis pendens is not required under this section. Benefit Bank v. Rogers, 2012 Ark. 419, 424 S.W.3d 812 (2012).

Cited: McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988); In re Bearhouse, Inc., 99 B.R. 926 (Bankr. W.D. Ark. 1989).

16-47-102. Forms of acknowledgments — Validity — Acknowledgments of married persons.

  1. Either the forms of acknowledgments now in use in this state or any other forms which specify, in the caption or otherwise, the state and county or other place where the acknowledgment is taken, and which set out the name of the person acknowledging and, in instances where he or she acknowledges otherwise than in his or her own right, the name of the person, association, or corporation for which he or she acknowledges, and which recite in substance or the equivalent that the execution of the instrument was acknowledged by the person so named as acknowledging, or any other form of acknowledgment provided by law, may be used in the case of all deeds and other instruments in writing for the conveyance of real or personal property, or whereby such property is to be affected in law or equity, and also in any other case where such acknowledgment is for any purpose required or authorized by law. An acknowledgment in any of these forms shall be sufficient to entitle the instrument to be recorded and to be read in evidence.
  2. The acknowledgment of a married person, both as to the disposition of his or her own property and as to the relinquishment of dower, curtesy, and homestead in the property of a spouse, may be made in the same form as if he or she were sole and without any examination separate and apart from a spouse, and without necessity for a specific reference therein to the interest so conveyed or relinquished.

History. Acts 1937, No. 44, § 1; Pope's Dig., § 1831; Acts 1981, No. 714, § 3; A.S.A. 1947, § 49-201.

Publisher's Notes. Acts 1937, No. 44, § 1, as amended, is also codified as § 18-12-202.

Research References

Ark. L. Rev.

Drafting Instruments for Purchase and Conveyancing of Land, 13 Ark. L. Rev. 26.

Case Notes

Failure to Acknowledge.

Unacknowledged lease was not valid against purchasers who had no actual knowledge of the lease and could not be charged with constructive notice; accordingly, such lease was properly cancelled. George v. George, 267 Ark. 823, 591 S.W.2d 655 (Ct. App. 1979).

Cited: Jackson v. Hudspeth, 208 Ark. 55, 184 S.W.2d 906 (1945); Upshaw v. Wilson, 222 Ark. 78, 257 S.W.2d 279 (1953).

16-47-103. Officers authorized to take proof or acknowledgment of real estate conveyances.

  1. The proof or acknowledgment of every deed or instrument of writing for the conveyance of any real estate shall be taken by one of the following courts or officers:
    1. When acknowledged or proven within this state, before the Supreme Court, the circuit court, the chancery court, or any judges thereof, the clerk of any court of record, any county or probate judge, or before any justice of the peace or notary public;
    2. When acknowledged or proven outside this state, and within the United States or its territories, or in any of the colonies or possessions or dependencies of the United States, before any court of the United States, or any state or territory, or colony or possession or dependency of the United States, having a seal, or a clerk of any such court, or before any notary public, or before the mayor of any incorporated city or town, or the chief officer of any city or town having a seal, or before a commissioner appointed by the Governor of this state;
    3. When acknowledged or proven outside the United States, before any court of any state, kingdom, or empire having a seal; any mayor or chief officer of any city or town having an official seal; or before any officer of any foreign country who by the laws of that country is authorized to take probate of the conveyance of real estate of his own country if the officer has, by law, an official seal.
  2. The acknowledgment of any deed or mortgage, when taken outside the United States, may be taken and certified by a United States consul.

History. Rev. Stat., ch. 31, § 13; Acts 1875, No. 13, § 1, p. 58; 1887, No. 91, § 1, p. 142; 1897, No. 26, § 1, p. 33; 1899, No. 150, § 1, p. 276; C. & M. Dig., § 1516; Acts 1921, No. 233, § 1; 1923, No. 464, §§ 1, 2; Pope's Dig., § 1825; A.S.A. 1947, §§ 49-202, 49-203.

Publisher's Notes. For acts validating prior acknowledgments by certain officers, see Acts 1873, No. 36, § 2; 1875, No. 13, § 2; 1897, No. 26, § 2; 1899, No. 150, § 2.

Rev. Stat., ch. 31, § 13, as amended, is also codified as § 18-12-203.

Cross References. Commissioners in other states may take acknowledgments, § 25-16-204.

Notaries public may take acknowledgments, § 21-14-106.

Case Notes

Interested Party.

An acknowledgment taken by an officer who was a party to the deed does not entitle the instrument to record, and a record of it will impart no notice to subsequent purchasers or encumbrancers; however, the defect may be cured by a proper curative statute. Green v. Abraham, 43 Ark. 420 (1884).

A notary public is not disqualified to take an acknowledgment to a mortgage by reason of the fact that he had acted as agent for the mortgagor in obtaining the loan of money which the mortgage was intended to secure. Penn v. Garvin, 56 Ark. 511, 20 S.W. 410 (1892).

A surety on a note secured by a mortgage has such an interest therein as will disqualify him from taking the mortgagor's acknowledgment. Leonhard v. Flood, 68 Ark. 162, 56 S.W. 781 (1900).

Officer of Other State.

An acknowledgment taken by a justice of the peace or chairman of a county court of another state is invalid. Worsham v. Freeman, 34 Ark. 55 (1879).

Uniform Acknowledgment Act.

This section was not superseded by § 16-47-201 et seq., as those sections merely provide an alternative law on the subject of acknowledgments. Rumph v. Lester Land Co., 205 Ark. 1147, 172 S.W.2d 916 (1943).

Cited: Biscoe v. Byrd, 15 Ark. 655 (1855).

16-47-104. Attestation of acknowledgments.

  1. In cases of acknowledgment or proof of deeds or conveyances of real estate taken within the United States or territories thereof, when taken before any court or officer having a seal of office, the deed or conveyance shall be attested under the seal of office. If the officer has no seal of office, then it shall be attested under the official signature of the officer.
  2. In all cases of deeds and conveyances proven or acknowledged outside the United States or its territories, the acknowledgment or proof must be attested under the official seal of the court or officer before whom the probate is had.

History. Rev. Stat., ch. 31, §§ 14, 15; C. & M. Dig., §§ 1517, 1518; Pope's Dig., §§ 1826, 1827; A.S.A. 1947, §§ 49-204, 49-205.

Publisher's Notes. Rev. Stat., ch. 31, §§ 14, 15, are also codified as § 18-12-204.

Case Notes

Within United States.

Acknowledgment before a county court of another state must be authenticated by the seal of the court. Worsham v. Freeman, 34 Ark. 55 (1879).

16-47-105. Certificate of acknowledgment.

Every court or officer that shall take the proof or acknowledgment of any deed or conveyance of real estate, or the relinquishment of dower of any married woman in any conveyance of the real estate of her husband, shall grant a certificate thereof and cause the certificate to be endorsed on the deed, instrument, conveyance, or relinquishment of dower, which certificate shall be signed by the clerk of the court where probate is taken in court or by the officer before whom the probate is taken and sealed, if he has a seal of office.

History. Rev. Stat., ch. 31, § 16; C. & M. Dig., § 1519; Pope's Dig., § 1828; A.S.A. 1947, § 49-206.

Publisher's Notes. Rev. Stat., ch. 31, § 16, is also codified as § 18-12-205.

Case Notes

Seal.

When an acknowledgment is taken before an officer having an official seal, it should be authenticated by such seal. Little v. Dodge, 32 Ark. 453 (1877).

The absence from a notary's seal of the emblems and devices required by statute does not invalidate his certificate of the acknowledgment of a deed. Sonfield v. Thompson, 42 Ark. 46 (1883).

Signature.

An acknowledgment to the execution of a deed of trust is invalid if the notary does not sign his name thereto, although he does affix the imprint of his official seal. Davis v. Hale, 114 Ark. 426, 170 S.W. 99 (1914).

Sufficiency of Certificate.

It is not sufficient for the officer to certify in general terms that the deed was proved; it should appear from the certificate that the witness was sworn, and that he stated that the party whose name appears to the deed signed it, or executed it, or acknowledged that he had done so, or some such language amounting to proof of the execution of the deed; and it must appear that such proof was made by one of the attesting witnesses, unless it is made to appear that the subscribing witnesses are dead or cannot be had. Trammell v. Thurmond, 17 Ark. 203 (1856).

The certificate of a clerk of a court of record of another state to the acknowledgment of the execution of a deed is admissible as evidence without attestation of his official character by the judge of the court. Ferguson v. Peden, 33 Ark. 150 (1878).

Where there is in fact an appearance and acknowledgment of a deed in some manner, then the official certificate of acknowledgment is conclusive of every fact appearing on its face, and evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate, except in case of fraud or imposition in obtaining the acknowledgment, and where knowledge or notice of the fraud or imposition is brought home to the grantee. Holt v. Moore, 37 Ark. 145 (1881); Meyer v. Gossett, 38 Ark. 377 (1882).

16-47-106. Manner of making acknowledgment — Proof of deed or instrument — Proof of identity of grantor or witness.

  1. The acknowledgment of deeds and instruments of writing for the conveyance of real estate, or whereby such real estate is to be affected in law or equity, shall be by the grantor appearing in person before a court or officer having the authority by law to take the acknowledgment and stating that he had executed the deed or instrument for the consideration and purposes therein mentioned and set forth.
  2. When a deed or instrument referred to in subsection (a) of this section is to be proved, it shall be done by one (1) or more of the subscribing witnesses personally appearing before the proper court or officer and stating on oath that he saw the grantor subscribe the deed or instrument of writing or that the grantor acknowledged in his presence that he had subscribed and executed the deed or instrument for the purposes and consideration therein mentioned, and that he had subscribed the deed or instrument as a witness at the request of the grantor.
  3. If any grantor has not acknowledged the execution of a deed or instrument referred to in subsection (a) of this section, and the subscribing witnesses are dead or cannot be had, then the deed or instrument may be proved by the evidence of the handwriting of the grantor and of at least one (1) of the subscribing witnesses, which evidence shall consist of the deposition of two (2) or more disinterested persons, swearing to each signature.
  4. When any grantor in any deed or instrument that conveys real estate, or whereby any real estate may be affected in law or equity, or any witness to any like instrument, shall present himself before any court or other officer for the purpose of acknowledging or proving the execution of the deed or instrument, if the grantor or witness shall be personally unknown to the court or officer, his identity and his being the person he purports to be on the face of such instrument of writing shall be proven to the court or officer, which proof may be made by witnesses known to the court or officer, or by the affidavit of the grantor or witness if the court or officer shall be satisfied therewith. The proof or affidavit shall also be endorsed on the deed or instrument of writing.

History. Rev. Stat., ch. 31, §§ 17-20; C. & M. Dig., §§ 1520-1523; Pope's Dig., §§ 1829, 1830, 1832, 1833; A.S.A. 1947, §§ 49-207 — 49-210.

Publisher's Notes. Rev. Stat., ch. 31, §§ 17-20, are also codified as § 18-12-206.

Research References

Ark. L. Rev.

The Best Evidence Rule — A Rule Requiring The Production of A Writing to Prove The Writing's Contents, 14 Ark. L. Rev. 153.

Authentication and Identification, 27 Ark. L. Rev. 332.

Case Notes

Proof of Acknowledgment.

Where there was no substantial evidence that the wife had signed or even knew of either a note or a mortgage which her husband had secured from bank for a loan to pay off his company's debts, the trial court properly denied the foreclosure of the mortgage on the lands belonging to the wife. Security Bank v. Paul, 268 Ark. 548, 594 S.W.2d 259 (Ct. App. 1980).

Where a mortgage lien was defective because the mortgage deed failed to comply with the acknowledgement requirements in this section and § 16-47-101, a creditor was not entitled to reformation of the contract because the trustee had the same rights as a bona fide purchaser under 11 U.S.C.S. § 544(a)(3), and those rights would be prejudiced by the imposition of an equitable lien. Williams v. JPMorgan Chase Bank, N.A. (In re Stewart), 422 B.R. 185 (Bankr. W.D. Ark. 2009).

Under §§ 21-14-111, 16-47-205, and 28-68-304(a)(3)(A), the decedent's attorney's secretary signed the certificate of acknowledgement for the November 20 power of attorney before the decedent signed the instrument, and this improper notarization of the acknowledgement was fatal to the validity of the November 20 power of attorney. Jones v. Owen, 2009 Ark. 505, 342 S.W.3d 265 (2009).

Sufficiency of Acknowledgment.

The acknowledgment must show that the deed was executed “for the consideration and purposes” therein expressed. The words “consideration” and “purposes” are both material, and if either is omitted, and no word of similar import is used, the acknowledgment is insufficient. Johnson v. Godden, 33 Ark. 600 (1878); Ford v. Burks, 37 Ark. 91 (1881); Drew County Bank & Trust Co. v. Sorben, 181 Ark. 943, 28 S.W.2d 730 (1930); Donham v. Davis, 208 Ark. 824, 187 S.W.2d 722 (1945).

The word “uses” is not of similar import or substantially the same as the word “consideration” required by this section. Martin v. O'Bannon, 35 Ark. 62 (1879).

An acknowledgment to a mortgage that it was “executed for the consideration and premises hereinafter set forth” sufficiently complied with this section to entitle the mortgage to be recorded. First Nat. Bank v. Meriwether Sand & Gravel Co., 188 Ark. 642, 67 S.W.2d 599 (1934).

A so called “deed within a deed” was not a proper instrument for recordation; the fact that it appeared within an instrument which was duly recorded did not cure the defect of the lack of acknowledgment required by this section. Additionally, title to the interests in question had already vested ownership, and so, although it may have been proper for the chancellor to have received this instrument into evidence, it was clearly error for him to decree that the defective “quit-claim deed” was cured by § 16-47-108. Andrews v. Heirs of Bellis, 297 Ark. 3, 759 S.W.2d 532 (1988).

Mortgage lien was not perfected and could be avoided by a trustee under 11 U.S.C.S. §§ 544(a) and 550(a), who was also entitled to an award of reasonable attorney fees, because an acknowledgement that did not comply with this section and § 16-47-101 did not provide constructive notice. The omission of the debtor's name alone would not have been fatal, as the omitted information could have been filled in by reference to the document as a whole; however, omission of the name plus the use of a different gender led to an ambiguity that would have required extrinsic evidence. Williams v. JPMorgan Chase Bank, N.A. (In re Stewart), 422 B.R. 185 (Bankr. W.D. Ark. 2009).

Validity of Instruments.

If the acknowledgment fails to state the consideration, the mortgage, although recorded, is void against subsequent purchasers, even with notice; however, it is good between the parties. Conner v. Abbott, 35 Ark. 365 (1880).

The omission of the word “consideration” or words of similar import in the acknowledgment of a mortgage renders the record thereof no notice to third parties. Atlas Supply Co. v. McAmis, 185 Ark. 1168, 51 S.W.2d 982 (1932).

Where a deed was not properly acknowledged, this deficiency was not cured by the attempt after the grantor's death to authenticate the signature; therefore, this instrument was not entitled to the weight given to a properly recorded deed. Frazier v. Frazier, 263 Ark. 768, 567 S.W.2d 629 (1978).

Curative statute, § 18-12-208, did not operate to cure a mortgage deed that failed to comply with the acknowledgement requirements in this section and § 16-47-101 because the transaction occurred after the passage of the statute. Thus, a mortgage lien was not perfected and could be avoided by a trustee under 11 U.S.C.S. §§ 544(a) and 550(a). Williams v. JPMorgan Chase Bank, N.A. (In re Stewart), 422 B.R. 185 (Bankr. W.D. Ark. 2009).

Witnessing Signature.

This section requires that two witnesses to a signature on an instrument actually witness the signing of the instrument rather than testify as to the authenticity of the signature. Frazier v. Frazier, 263 Ark. 768, 567 S.W.2d 629 (1978).

Cited: Jackson v. Hudspeth, 208 Ark. 55, 184 S.W.2d 906 (1945); In re Bearhouse, Inc., 99 B.R. 926 (Bankr. W.D. Ark. 1989).

16-47-107. Forms for acknowledgment.

  1. For all deeds, conveyances, deeds of trust, mortgages, and other instruments in writing affecting or purporting to affect the title of any real estate situated in this state and executed by corporations, business trusts, estates, partnerships, limited liability companies, associations, joint ventures, or any other legal entities, the following form is deemed to be a valid acknowledgment and sufficient for recordation or entry into evidence under § 18-12-202:
  2. For all deeds, conveyances, deeds of trust, mortgages, and other instruments in writing affecting or purporting to affect the title of any real estate situated in this state and executed by individuals, the following form is deemed to be a valid acknowledgment and sufficient for recordation or entry into evidence under § 18-12-202:
  3. For all deeds, conveyances, deeds of trust, mortgages, and other instruments in writing affecting or purporting to affect the title of any real estate situated in this state and executed by attorneys in fact, the following form is deemed to be a valid acknowledgment and sufficient for recordation or entry into evidence under § 18-12-202:
  4. All deeds or instruments affecting or purporting to affect the title to land executed in the above and foregoing form listed in subsection (a), (b), or (c) of this section as applicable, shall be good and sufficient.
  5. The bracketed language listed in subsections (a), (b), and (c) above, suggests alternate language and is not required to be in an acknowledgment when the alternate language is not applicable.
  6. The use of the present or past tense in the form of acknowledgment shall not affect the validity of the acknowledgement.
  7. The heading of the acknowledgment may list either:
    1. The county where the officer executing the acknowledgment resides; or
    2. The county where the acknowledgment occurred.

“State of County of On this day of , 20 , before me, , a Notary Public, (or before any officer within this State or without the State now qualified under existing law to take acknowledgments), duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named and , (being the person or persons authorized by said corporation, [business trust, estate, partnership, limited liability company, association, joint venture, or other legal entity] to execute such instrument, stating their respective capacities in that behalf), to me personally well known (or satisfactorily proven to be such person), who stated that [he, she, or they] was [were] the [and ] of the , a corporation [business trust, estate, partnership, limited liability company, association, joint venture, or other legal entity], and was [were] duly authorized in [his, her, or their] respective capacity [capacities] to execute the foregoing instrument(s) for and in the name and behalf of said corporation [business trust, estate, partnership, limited liability company, association, joint venture or other legal entity], and further stated and acknowledged that [he, she, or they] had so signed, executed, and delivered said foregoing instrument for the consideration, uses, and purposes therein mentioned and set forth. “IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 20 . (Notary Public)”

Click to view form.

“State of County of On this day of , 20 , before me, , a Notary Public, (or before any officer within this State or without the State now qualified under existing law to take acknowledgments), appeared the within named [and ], to me personally well known (or satisfactorily proven to be such person), who stated and acknowledged that [he, she, or they] had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. “IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 20 . (Notary Public)”

Click to view form.

“State of County of On this the day of , 20 , before me, , the undersigned officer, personally appeared , known to me (or satisfactorily proven) to be the person whose name is subscribed as attorney in fact for , and acknowledged that [he or she] executed the same as the act of [his or her] principal for the consideration, uses, and purposes therein contained. IN TESTIMONY WHEREOF I hereunto set my hand and official seal. Title of Officer.”

Click to view form.

History. Acts 1919, No. 45, § 1; C. & M. Dig., § 1526; Pope's Dig., § 1836; A.S.A. 1947, § 49-212; Acts 2013, No. 999, § 1[3]; 2015, No. 1152, § 6.

A.C.R.C. Notes. Acts 2013, No. 999, contained two sections designated as “SECTION 1”.

Publisher's Notes. Acts 1919, No. 45, § 1, is also codified as § 18-12-207.

Amendments. The 2013 amendment substituted “Forms for acknowledgment” for “Acknowledgment by corporations” in the section heading; in (a), substituted “corporations, business trusts, estates, partnerships, limited liability companies, associations, joint ventures, or any other legal entities, the following form is deemed to be a valid acknowledgment and sufficient for recordation or entry into evidence under § 18-12-202” for “corporations, the form of acknowledgment shall be as follows” and updated the form; and added (b), (c), (e), (f), and (g) and redesignated former (b) as (d).

The 2015 amendment, in (c), substituted “[he or she]” for “he” and substituted “[his or her]” for “his.”

Case Notes

Compliance.

A notary's certificate attached to a deed purported to be executed by a corporation, which recited that the president of the corporation had appeared and under oath stated that the seal of the corporation had been affixed to the deed by virtue of a resolution of the directors and had been signed by the president and secretary by virtue of such resolution, showed an acknowledgment, although a defective one. Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050 (1900).

This section must be substantially complied with, and courts cannot by intendment suggest important words. Fidelity & Deposit Co. v. Rieff, 181 Ark. 798, 27 S.W.2d 1008 (1930).

16-47-108. Validation of instruments affecting title to property.

All deeds, conveyances, deeds of trust, mortgages, marriage contracts, and other instruments in writing, affecting or purporting to affect the title to any real estate or personal property situated in this state, which have been recorded and which are defective or ineffectual:

  1. Because of failure to comply with § 18-12-403; or
  2. Because the officer who certified the acknowledgment or acknowledgments to such instruments omitted any words required by law to be in the certificate or acknowledgments; or
  3. Because the officer failed or omitted to attach his seal to such certificate; or
  4. Because the officer attached to any such certificate a seal not bearing the words and devices required by law; or
  5. Because the officer was a mayor of a city or an incorporated town in the State of Arkansas and as such was not authorized to certify to executions and acknowledgments to such instruments, or was the deputy of an official duly authorized by law to take acknowledgments but whose deputy was not so authorized; or
  6. Because the notary public failed to state the date of the expiration of his commission on the certificate of acknowledgment, or incorrectly stated it thereon; or
  7. Because the officer incorrectly dated the certificate of acknowledgment or failed to state the county wherein the acknowledgment was taken; or
  8. Because the acknowledgment was certified in any county of the State of Arkansas by any person holding an unexpired commission as notary public under the laws of the state who had, at the time of the certification, ceased to be a resident of the county within and for which he or she was commissioned;

shall be as binding and effectual as though the certificate of acknowledgment or proof of execution was in due form, bore the proper seal, and was certified to by a duly authorized officer.

History. Acts 1955, No. 101, § 1; A.S.A. 1947, § 49-213.

Publisher's Notes. For prior validation acts, see Acts 1873, No. 11, §§ 5, 6, p. 13; Acts 1873, No. 17, §§ 1, 2, p. 25; Acts 1873, No. 41, §§ 1, 2, p. 83; Acts 1883, No. 69, § 6, p. 106; Acts 1883, No. 80, § 1, p. 128; Acts 1885, No. 117, § 1, p. 191; Acts 1893, No. 43, § 1, p. 66; Acts 1893, No. 172, § 1, p. 303; Acts 1895, No. 33, § 1, p. 37; Acts 1897 (Ex. Sess.), No. 21, § 1, p. 58; Acts 1899, No. 56, § 1, p. 107; Acts 1899, No. 175, § 1, p. 313; Acts 1901, No. 41, § 1, p. 79; Acts 1903, No. 87, § 1, p. 150; Acts 1903, No. 87, § 2, p. 150; Acts 1907, No. 147, § 1, p. 354; Acts 1911, No. 24, § 1; Acts 1913, No. 148, § 1; Acts 1915, No. 54, § 1; Acts 1917, No. 142, § 1, p. 765; Acts 1917, No. 142, § 2, p. 765; Acts 1919, No. 333, § 1; Acts 1919, No. 524, § 1; Acts 1923, No. 80, § 1; Acts 1923, No. 185, § 1; Acts 1935, No. 72, § 1; Acts 1937, No. 352, § 1; Acts 1941, No. 422, § 1; Acts 1949, No. 291, § 1.

Acts 1955, No. 101, § 1, is also codified as § 18-12-208(a).

Cross References. Prior releases validated, § 18-40-108.

Research References

Ark. L. Rev.

Validation of Instruments Affecting Title to Property, 9 Ark. L. Rev. 414.

Curative Statutes Affecting Title to Real Property in Arkansas, 12 Ark. L. Rev. 386.

Case Notes

Applicability.

Curative acts, such as Act 101 of 1955 as codified by this section, have retrospective operation and apply to past events and transactions, and do not apply to a transaction that takes place after the passage of the act. Merchants & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990).

Acknowledgment by Interested Party.

An acknowledgment taken by an interested party does not authorize it to be recorded and it imparts no notice; however, such acknowledgments taken before Acts 1883, No. 69, were validated by § 6 of that act. Green v. Abraham, 43 Ark. 420 (1884) (decision under prior law).

Acts 1893, No. 43, did not cure an acknowledgment which was taken by a party to the deed. Meunse v. Harper, 70 Ark. 309, 67 S.W. 869 (1902) (decision under prior law).

Allegation of Defect.

Where complaint merely alleged that acknowledgment of the deed appeared to be defective, such allegation was merely a conclusion and the court was correct in holding that plaintiff failed to state a cause of action. Sample v. Sample, 237 Ark. 178, 372 S.W.2d 609 (1963).

Failure to Sign.

Former curative act did not render valid a certificate of acknowledgment which the notary failed to sign although he affixed the imprint of his seal. Davis v. Hale, 114 Ark. 426, 170 S.W. 99 (1914) (decision under prior law).

Homesteads.

A mortgage of a homestead which was invalid because the grantors' wives did not join therein, was cured by former validating act. Sanders v. Flenniken, 172 Ark. 454, 289 S.W. 485 (1926) (decision under prior law).

Lack of Acknowledgment.

The curative provisions of this section cannot supply an acknowledgment when in fact there is none. Pardo v. Creamer, 228 Ark. 746, 310 S.W.2d 218 (1958).

A so called “deed within a deed” was not a proper instrument for recordation; the fact that it appeared within an instrument which was duly recorded did not cure the defect of the lack of acknowledgment required by § 16-47-106. Additionally, title to the interests in question here had already vested ownership, and so although it may have been proper for the chancellor to have received this instrument into evidence, it was clearly error for him to decree that the defective “quit-claim deed” was cured by this section. Andrews v. Heirs of Bellis, 297 Ark. 3, 759 S.W.2d 532 (1988).

Omission of Essential Words.

An acknowledgment valid in the state where made but ineffectual at the time of recordation in Arkansas because of failure to use words required by § 18-12-206 was held to have been cured by former validating acts. Jackson v. Hudspeth, 208 Ark. 55, 184 S.W.2d 906 (1945) (decision under prior law).

Vested Rights.

Former acts, curing defective acknowledgments, did not interfere with vested rights. McGehee v. McKenzie, 43 Ark. 156 (1884) (decision under prior law).

Cited: Sample v. Sample, 237 Ark. 178, 372 S.W.2d 609 (1963).

16-47-109. Validation of acknowledgments of personnel of armed forces.

All acknowledgments taken before March 20, 1945, and subscribed by officers of the United States armed forces acknowledging the signatures of soldiers in the armed forces are validated in every respect.

History. Acts 1945, No. 263, § 1; A.S.A. 1947, § 49-214.

16-47-110. Recorded deed or written instrument affecting real estate.

  1. Every deed or instrument in writing which conveys or affects real estate and which is acknowledged or proved and certified as prescribed by this act may, together with the certificate of acknowledgment, proof, or relinquishment of dower, be recorded by the recorder of the county where such land to be conveyed or affected thereby is located, and when so recorded may be read in evidence in any court in this state without further proof of execution.
  2. If it appears at any time that any deed or instrument duly acknowledged or proved and recorded as prescribed by this act is lost or not within the power and control of the party wishing to use the deed or instrument, the record thereof or a transcript of the record certified by the recorder may be read in evidence without further proof of execution.
  3. Neither the certificate of acknowledgment nor the probate of any such deed or instrument, nor the record or transcript thereof, shall be conclusive, but it may be rebutted.

History. Rev. Stat., ch. 31, §§ 26-28; C. & M. Dig., §§ 1530-1532; Pope's Dig., §§ 1840-1842; A.S.A. 1947, §§ 28-919 — 28-921.

Publisher's Notes. Rev. Stat., ch. 31, §§ 26-28, are also codified as § 18-12-209.

Meaning of “this act”. Chapter 31 of the Revised Statutes, codified as §§ 16-47-101, 16-47-10316-47-106, 16-47-110, 18-12-101, 18-12-102, 18-12-104, 18-12-105, 18-12-201, 18-12-20318-12-206, 18-12-209, 18-12-301, 18-12-402, 18-12-501, 18-12-502, 18-12-60118-12-603.

Cross References. Admissibility of deeds, § 18-12-605.

Research References

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Case Notes

In General.

The acknowledgment of the execution of a deed of conveyance, as required by statute, does not alone authorize its introduction as evidence; it must also be filed and recorded or its execution proved at the trial. Wilson v. Spring, 38 Ark. 181 (1881); Watson v. Billings, 38 Ark. 278 (1881); Dorr v. School Dist., 40 Ark. 237 (1882).

Burden of Proof.

The burden of proof rests upon the person denying that he signed a deed or acknowledged it, to show the falsity of the certificate, which carries the presumption that the officer making it has certified to the truth. Polk v. Brown, 117 Ark. 321, 174 S.W. 562 (1915); Nevada County Bank v. Gee, 130 Ark. 312, 197 S.W. 680 (1917).

The burden of disproving the authenticity of the acknowledgment of a deed before a notary public is on the moving party in order to have the recorded deed declared void for forgery. Lytton v. Johnson, 236 Ark. 277, 365 S.W.2d 461 (1963).

Certificate.

The only showing upon which a deed can be admitted to evidence is the certificate of acknowledgment by the proper officer. Simpson v. Montgomery, 25 Ark. 365 (1869).

While it is competent for the maker of a deed to prove that there was no appearance before an officer to acknowledge its execution, and no acknowledgment in fact, yet if he did acknowledge it in some manner, the officer's certificate is conclusive as to the terms of the acknowledgment. Petty v. Grisard, 45 Ark. 117 (1885); Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050 (1900).

If a plaintiff in ejectment is not able to introduce an original deed in evidence, a purported copy from the record is not admissible unless certified by the recorder. Robert v. Brown, 157 Ark. 230, 247 S.W. 1058 (1923).

Parol Evidence.

Parol evidence that a deed has been executed, but not recorded, and lost, is sufficient to admit secondary evidence of its contents. Calloway v. Cossart, 45 Ark. 81 (1885); Crawford v. McDonald, 84 Ark. 415, 106 S.W. 206 (1907).

Parol evidence is admissible to prove true date of an acknowledgment. Merrill v. Sypert, 65 Ark. 51, 44 S.W. 462 (1898).

Prima Facie Evidence.

A recorded and properly acknowledged mortgage makes prima facie case thereon. Straughan v. Bennett, 153 Ark. 254, 240 S.W. 30 (1922).

Proof of Execution.

A certified copy of a recorded conveyance is admissible in evidence without proof of the execution. Apel v. Kelsey, 47 Ark. 413, 2 S.W. 102 (1886); Sibly v. England, 90 Ark. 420, 119 S.W. 820 (1909).

An unrecorded mortgage is inadmissible in evidence without proof of its execution. Gardner v. Hughes, 136 Ark. 332, 206 S.W. 678 (1918).

Record.

In a prosecution for forgery, it was not improper to permit the introduction of the record of certain deed, in the chain of title to the land, concerning which it was alleged that forged deed had been uttered by the defendant, without proof that the original deeds were either lost or destroyed. Temple v. State, 126 Ark. 290, 189 S.W. 855 (1916), overruled, Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (Ark. 1959), overruled in part, Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (Ark. 1959).

Subchapter 2 — Uniform Acknowledgment Act

Effective Dates. Acts 1943, No. 169, § 15: approved Mar. 4, 1943. Emergency clause provided: “That because many persons of this State are now in the armed forces of the United States and are now located in the various States of the United States, as well as in many foreign countries, and are unable to comply with the technical requirements of the Arkansas laws as to acknowledgments, an emergency is declared to exist and this act shall be in full force and effect from and after its passage.”

Acts 1971, No. 352, § 2: Mar. 22, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly that among the multitude of real estate transactions and other transactions requiring acknowledgments, there are undoubtedly some which have not strictly complied with the present law; that such transactions raise clouds on title and create other difficulties in land transfers; and that only by the immediate passage of this Act can this situation be remedied. 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 from and after its passage and approval.”

Acts 2013, No. 999, § 6: Apr. 8, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that many instruments affecting title to real estate are being found to not provide constructive notice because of defects in the certificates of acknowledgment; and that this act is immediately necessary to protect property rights and interests. 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.”

Research References

Ark. L. Rev.

Drafting Instruments for Purchase and Conveyancing of Land, 13 Ark. L. Rev. 26.

Authentication and Identification, 27 Ark. L. Rev. 332.

16-47-201. Acknowledgment of instruments.

Any instrument may be acknowledged in the manner and form provided by the laws of this state, or as provided by this act.

History. Acts 1943, No. 169, § 1; A.S.A. 1947, § 49-101.

Meaning of “this act”. Acts 1943, No. 169, codified as §§ 16-47-20116-47-210, 16-47-21316-47-216.

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Case Notes

Alternative System.

Acts 1943, No. 169 did not repeal, modify or in any way impair any law of this state; it provides only an alternative system for acknowledgments. Rumph v. Lester Land Co., 205 Ark. 1147, 172 S.W.2d 916 (1943).

Cited: Jackson v. Hudspeth, 208 Ark. 55, 184 S.W.2d 906 (1945).

16-47-202. Officials authorized to take within the state.

The acknowledgment of any instrument may be made in this state before:

  1. A judge of a court of record or before any former judge of a court of record who served at least four (4) or more years;
  2. A clerk of any court of record;
  3. A commissioner or registrar or recorder of deeds;
  4. A notary public;
  5. A justice of the peace; or
  6. A master in chancery or registrar in chancery.

History. Acts 1943, No. 169, § 2; 1983, No. 850, § 3; A.S.A. 1947, § 49-102.

16-47-203. Officials authorized to take within the United States.

The acknowledgment of any instrument may be without the state but within the United States or a territory or insular possession of the United States and within the jurisdiction of the officer, before:

  1. A clerk or deputy clerk of any federal court;
  2. A clerk or deputy clerk of any court of record of any state or other jurisdiction;
  3. A notary public;
  4. A commissioner of deeds;
  5. Any person authorized by the laws of such other jurisdiction to take acknowledgments.

History. Acts 1943, No. 169, § 3; 1957, No. 411, § 1; A.S.A. 1947, § 49-103.

16-47-204. Officials authorized to take without the United States.

The acknowledgment of any instrument may be made without the United States before:

  1. An ambassador, minister, charge d'affaires, counselor to or secretary of a legation, consul general, consul, vice-consul, commercial attache, or consular agent of the United States accredited to the country where the acknowledgment is made.
  2. A notary public of the country where the acknowledgment is made.
  3. A judge or clerk of a court of record of the country where the acknowledgment is made.

History. Acts 1943, No. 169, § 4; A.S.A. 1947, § 49-104.

16-47-205. Proof of identity of person making.

The officer taking the acknowledgment shall know or have satisfactory evidence that the person making the acknowledgment is the person described in and who executed the instrument.

History. Acts 1943, No. 169, § 5; A.S.A. 1947, § 49-105.

Case Notes

Improper Notarization.

Under §§ 21-14-111, 28-68-304(a)(3)(A), and this section, the decedent's attorney's secretary signed the certificate of acknowledgement for the November 20 power of attorney before the decedent signed the instrument, and this improper notarization of the acknowledgement was fatal to the validity of the November 20 power of attorney. Jones v. Owen, 2009 Ark. 505, 342 S.W.3d 265 (2009).

Purpose Fulfilled.

Purpose of this section had been met where the mother admitted executing a deed conveying property to an LLC, and thus discrepancies in the testimony as to the persons present, including the notary public, at the time the mother executed the deed were of no matter. Franklin v. Waldron Nursing Ctr., Inc., 2017 Ark. App. 449, 527 S.W.3d 742 (2017).

16-47-206. Acknowledgment by a married woman.

An acknowledgment by a married woman may be made in the same form as though she were unmarried.

History. Acts 1943, No. 169, § 6; A.S.A. 1947, § 49-106.

16-47-207. [Repealed.]

Publisher's Notes. This section, concerning forms of certificates, was repealed by Acts 2013, No. 999, § 2. The section was derived from Acts 1943, No. 169, § 7; A.S.A. 1947, § 49-107.

16-47-208. Execution of certificate by officer.

The certificate of the acknowledging officer shall be completed by his signature, his official seal if he has one, the title of his office, and if he is a notary public, the date his commission expires.

History. Acts 1943, No. 169, § 8; A.S.A. 1947, § 49-108.

16-47-209. Authentication of acknowledgments.

  1. If the acknowledgment is taken within this state or is made without this state but in the United States by one (1) of the officers designated in § 16-47-203, or without the United States by an officer of the United States, no authentication shall be necessary.
  2. If the acknowledgment is made without the United States and by a notary public or a judge or clerk of a court of record of the country where the acknowledgment is made, the certificate shall be authenticated by a certificate under the great seal of state of the country, affixed by the custodian of such seal, or by a certificate of a diplomatic, consular, or commercial officer of the United States accredited to that country, certifying as to the official character of such officer.

History. Acts 1943, No. 169, § 9; 1957, No. 411, § 2; 1971, No. 365, § 1; A.S.A. 1947, § 49-109.

Case Notes

Outside State.

Acknowledgment of a deed by a sister state's notary public having a seal, but without certificate by a clerk of a court of record in the county where taken showing the official character of the notary who took the acknowledgment, was entitled to record because valid under § 16-47-103. Rumph v. Lester Land Co., 205 Ark. 1147, 172 S.W.2d 916 (1943).

16-47-210. Acknowledgments under laws of other states.

Notwithstanding any provision in this act contained, the acknowledgment of any instrument without this state in compliance with the manner and form prescribed by the laws of the place of its execution, if in a state, a territory or insular possession of the United States, or in the District of Columbia, or in the Philippine Islands, verified by the official seal of the officer before whom it is acknowledged, shall have the same effect as an acknowledgment in the manner and form prescribed by the laws of this state for instruments executed within the state.

History. Acts 1943, No. 169, § 10; 1971, No. 365, § 2; A.S.A. 1947, § 49-110.

Meaning of “this act”. See note to § 16-47-201.

16-47-211. Validation of unauthenticated writings affecting title to property.

All deeds, conveyances, deeds of trust, mortgages, mineral leases, marriage contracts, and other instruments in writing, affecting or purporting to affect title to any real estate or personal property situated in this state, which have been recorded or executed prior to July 19, 1971, and which may be defective or ineffectual because of the failure to have the authentication formerly required by Acts 1943, No. 169, §§ 9 and 10, prior to these amendments, shall be binding and effectual as though such instruments contained the required authentication.

History. Acts 1971, No. 365, § 3; A.S.A. 1947, § 49-110.1.

Publisher's Notes. Acts 1943, No. 169, §§ 9 and 10, referred to in this section, are codified as §§ 16-47-209, 16-47-210.

The words “these amendments” refer to Acts 1971, No. 365, which amended §§ 16-47-209 and 16-47-210 and enacted §§ 16-47-211 and 16-47-212.

16-47-212. Act cumulative.

This act shall be cumulative to other acts of the General Assembly relating to acknowledgments.

History. Acts 1971, No. 365, § 4; A.S.A. 1947, § 49-110.2.

Meaning of “this act”. Acts 1971, No. 365, codified as §§ 16-47-20916-47-212.

16-47-213. Acknowledgments by persons serving in or with the armed forces of the United States within or without the United States.

In addition to the acknowledgment of instruments in the manner and form and as otherwise authorized by this act, persons serving in or with the armed forces of the United States or their dependents may acknowledge the same wherever located before any commissioned officer in active service of the armed forces of the United States with the rank of second lieutenant or higher in the Army, Air Force or Marine Corps, or ensign or higher in the Navy or United States Coast Guard. The instrument shall not be rendered invalid by the failure to state therein the place of execution or acknowledgment. No authentication of the officer's certificate of acknowledgment shall be required but the officer taking the acknowledgment shall endorse thereon or attach thereto a certificate substantially in the following form:

“On this day of , 19 , before me, , the undersigned officer, personally appeared (Serial No. ) known to me or satisfactorily proven to be (serving in or with the armed forces of the United States) (a dependent of , (Serial No. ) a person serving in or with the armed forces of the United States) and to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. And the undersigned does further certify that he is at the date of this certificate a commissioned officer of the rank stated below and is in the active service of the armed forces of the United States. Signature of the Officer Rank and Serial No. of Officer and Command to which attached.”

Click to view form.

History. Acts 1943, No. 169, § 11; 1961, No. 16, § 1; A.S.A. 1947, § 49-111.

Publisher's Notes. Acts 1961, No. 16, § 2, provided that the act did not repeal or alter laws regarding acknowledgment of instruments which were in effect prior to enactment of the Uniform Acknowledgment Act and which provide an alternative method of acknowledging instruments.

Meaning of “this act”. See note to § 16-47-201.

16-47-214. Acknowledgments previously taken unaffected.

No acknowledgment heretofore taken shall be affected by anything contained in this act.

History. Acts 1943, No. 169, § 12; A.S.A. 1947, § 49-112.

Meaning of “this act”. See note to § 16-47-201.

Case Notes

Cited: Jackson v. Hudspeth, 208 Ark. 55, 184 S.W.2d 906 (1945).

16-47-215. Uniformity of interpretation.

This act shall be so interpreted as to make uniform the laws of those states which enact it.

History. Acts 1943, No. 169, § 13; A.S.A. 1947, § 49-113.

Meaning of “this act”. See note to § 16-47-201.

16-47-216. Title of act.

This act may be cited as the “Uniform Acknowledgment Act”.

History. Acts 1943, No. 169, § 14; A.S.A. 1947, § 49-114.

Meaning of “this act”. See note to § 16-47-201.

16-47-217. Validation of prior acknowledgments — Construction of uniform act.

It is the intent and purpose of this section that all acknowledgments taken subsequent to Acts 1957, No. 411 either in accordance with the Uniform Acknowledgment Act or in accordance with the laws of this state in effect at the time of adoption of the Uniform Acknowledgment Act be cured and validated for all purposes; and that neither Acts 1957, No. 411 nor the Uniform Acknowledgment Act to which it is amendatory shall be construed to repeal or modify any laws relative to the taking of acknowledgments and the authentication thereof which were in effect in this state at the time of adoption of the Uniform Acknowledgment Act, but that the Uniform Acknowledgment Act shall be deemed to provide an alternative system for taking and authenticating acknowledgments.

History. Acts 1959, No. 127, § 2; A.S.A. 1947, § 49-115.

Publisher's Notes. Acts 1957, No. 411, referred to in this section, is codified as §§ 16-47-203 and 16-47-209. The Uniform Acknowledgment Act is codified as §§ 16-47-20116-47-210 and 16-47-21316-47-216.

Acts 1959, No. 127, § 1, validated acknowledgments taken subsequent to the effective date of Acts 1957, No. 411, in accordance with the Uniform Acknowledgment Act or in accordance with state law at the time of adoption of the uniform act.

16-47-218. Validation of acknowledgments — Construction of acts.

All acknowledgments taken subsequent to Acts 1959, No. 127 either in accordance with the Uniform Acknowledgment Act or in accordance with the laws of this state in effect at the time of adoption of the Uniform Acknowledgment Act are cured and validated for all purposes; and neither Acts 1959, No. 127 nor the Uniform Acknowledgment Act shall be construed to repeal or modify any laws relative to the taking of acknowledgments and the authentication thereof which were in effect in this state at the time of adoption of the Uniform Acknowledgment Act, but that the Uniform Acknowledgment Act shall be deemed to provide an alternative system for taking and authenticating acknowledgments.

History. Acts 1971, No. 352, § 1; A.S.A. 1947, § 49-115.1.

Publisher's Notes. Acts 1959, No. 127, referred to in this section, is codified as § 16-47-217. The Uniform Acknowledgment Act is codified as §§ 16-47-20116-47-210 and 16-47-21316-47-216.

Chapters 48-54 [Reserved.]

[Reserved]

Subtitle 5. Civil Procedure Generally

Publisher's Notes. Section 857 of the Civil Code provided, in part, that the repeal of inconsistent statutes by that section did not revive any statute or law which may have been repealed or abolished by the repealed statutes or laws, nor did it affect any right already existing or any proceeding already taken, except as provided in the code.

Effective Dates. Code of Practice in Civil Cases, § 890: effective on passage for purposes of validity of proceedings but no proceeding before Jan. 1, 1869 rendered invalid; effective Jan. 1, 1869, for all purposes and proceedings.

Case Notes

Construction.

The Civil Code of 1869 was not designed to destroy rights or to alter principles of law, but only to formulate remedies, and should not be construed to repeal laws giving a remedy under circumstances where no other is provided under the code. State v. Arkansas Brick & Mfg. Co., 98 Ark. 125, 135 S.W. 843 (1911).

Purpose.

The Civil Code was only intended to change the forms of actions and abolish the old forms and modes of procedure. Whitehead v. Wells, 29 Ark. 99 (1874).

Chapter 55 General Provisions

Publisher's Notes. Some provisions of this subchapter may be superseded by the Arkansas Rules of Civil Procedure, the Arkansas Rules of Appellate Procedure, or the Arkansas Rules for Inferior Courts [now District Courts] pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Cross References. Motion day and hearings on motions, ARCP 78.

Effective Dates. Code of Practice in Civil Cases, § 890: effective on passage for purposes of validity of proceedings but no proceeding before Jan. 1, 1869, rendered invalid; effective Jan. 1, 1869, for all purposes and proceedings.

Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1915, No. 290, § 24: June 1, 1915.

Acts 1991, No. 470, § 7: Mar. 12, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that provisions of a lawsuit settlement contract which would prohibit any person's disclosure of the existence of an environmental hazard is contrary to public policy; that such provisions are included in may lawsuit settlement contracts; that this Act applies to such contracts entered into after its effective date; and that this Act should therefor go into 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.”

Research References

Ark. L. Rev.

La Dolce Vita — Law and Equity Merged at Last!, 24 Ark. L. Rev. 162.

Subchapter 1 — General Provisions

16-55-101. Title of code.

This code shall be known as the “Code of Practice in Civil Cases” in this state.

History. Civil Code, Preliminary Provisions, § 1; A.S.A. 1947, § 27-101.

Publisher's Notes. The code referred to in this section means the Code of Practice in Civil Cases of 1869. See parallel reference tables in the tables volume.

Case Notes

Cited: Hill v. Gallagher, 2016 Ark. 198, 491 S.W.3d 458 (2016).

16-55-102. [Repealed.]

Publisher's Notes. This section, concerning definitions, was repealed by Acts 2003, No. 1185, § 186. The section was derived from Civil Code, Preliminary Provisions, §§ 3, 4; Civil Code, §§ 704, 705, 837-855; C. & M. Dig., §§ 1028, 1029, 1325, 1326, 9732-9750; Pope's Dig., §§ 1230, 1231, 1550, 1551, 13258-13276; A.S.A. 1947, §§ 27-106, 27-107, 27-109 — 27-115, 27-117 — 27-125, 27-127 — 27-129, 27-1201, 27-1202.

16-55-103. Applicability of code.

  1. Except as otherwise provided by law, this code shall regulate the procedure in all civil actions and proceedings in the courts of this state.
  2. Except as otherwise provided by law, the provisions of this code shall apply to and regulate the proceedings of all the courts of this state, though not expressly enumerated, and of all that may hereafter be created.

History. Civil Code, §§ 780, 796; C. & M. Dig., § 1026; Pope's Dig., § 1228; A.S.A. 1947, §§ 27-102, 27-103.

Publisher's Notes. The code referred to in this section means the Code of Practice in Civil Cases of 1869. See parallel reference tables in the tables volume.

Research References

Ark. L. Rev.

Civil Procedure — Application of Class Suits to Unincorporated Associations in Law Actions in Arkansas, 23 Ark. L. Rev. 474.

Case Notes

Contest of Wills.

The Civil Code repealed earlier laws relating to the contest or rejection of wills. Dowell v. Tucker, 46 Ark. 438 (1885).

Garnishment.

The Civil Code repealed former law relating to default against garnishee. St. Louis, Iron Mountain & S. Ry. v. Richter, 48 Ark. 349, 3 S.W. 56 (1886).

Cited: Haller v. Ratcliffe, 215 Ark. 628, 221 S.W.2d 886 (1949); Thomas v. Dean, 245 Ark. 446, 432 S.W.2d 771 (1968); Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978); Hill v. Gallagher, 2016 Ark. 198, 491 S.W.3d 458 (2016).

16-55-104. Construction of code.

  1. The rule of common law that statutes in derogation of the common law are to be strictly construed shall not be applied to the code.
  2. The provisions of the code, and all proceedings under it, shall be liberally construed, with a view to promote its object and to assist the parties in obtaining justice.

History. Civil Code, § 856; C. & M. Dig., § 9751; Pope's Dig., § 13277; A.S.A. 1947, § 27-131.

Publisher's Notes. The code referred to in this section means the Code of Practice in Civil Cases of 1869. See parallel reference tables in the tables volume.

Case Notes

Pleadings.

To deny parties their day in court merely because the captions of their petition and claim recited the name of wrong county, the petition being timely filed and no one being misled or deceived, would be an injustice and not in keeping with Arkansas' liberalized form of pleadings. Edwards v. Brimm, 236 Ark. 588, 367 S.W.2d 433 (1963).

Process.

The statute directing the circuit courts to issue process upon an indictment being found should be liberally construed with a view to promote its object. State ex rel. Nixon v. Grace, 98 Ark. 505, 136 S.W. 670 (1911).

Cited: Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985).

16-55-105. Amendment or repeal of code.

No act shall have the effect to amend or repeal or be construed as amending or repealing any title, chapter, article, section, clause, or provision of this code unless the intention is expressly stated, and the title, chapter, article, or section shall be particularly referred to and recited in the act amending or repealing it.

History. Civil Code, § 858; C. & M. Dig., § 9753; Pope's Dig., § 13279; A.S.A. 1947, § 27-134.

Publisher's Notes. The code referred to in this section means the Code of Practice in Civil Cases of 1869. See parallel reference tables in the tables volume.

Research References

Ark. L. Rev.

Legislative and Judicial Dynamism in Arkansas: Poisson v. d'Avril, 22 Ark. L. Rev. 724.

16-55-106, 16-55-107. [Repealed.]

Publisher's Notes. These sections, concerning courts having jurisdiction similar to circuit, probate, or justice of the peace courts and clerks' duties devolve on magistrates, were repealed by Acts 2003, No. 1185, § 187. The sections were derived from the following sources:

16-55-106. Civil Code, § 797; A.S.A. 1947, § 27-104.

16-55-107. Civil Code, § 808; A.S.A. 1947, § 27-116.

16-55-108. Authority of deputies.

Any duty enjoined by this code upon a ministerial officer and any act permitted to be done by him or her may be performed by his or her lawful deputy.

History. Civil Code, § 781, C. & M. Dig., § 9754; Pope's Dig., § 13280; A.S.A. 1947, § 27-132.

Publisher's Notes. The code referred to in this section means the Code of Practice in Civil Cases of 1869. See parallel reference tables in the tables volume.

Case Notes

Summons.

Summons was not defective where it did not contain the signature of the county circuit clerk, but was signed by the deputy clerk. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004).

16-55-109. [Repealed.]

Publisher's Notes. This section, concerning masters, was repealed by Acts 2003, No. 1185, § 188. The section was derived from Rev. Stat., ch. 23, §§ 72, 74, 77; C. & M. Dig., §§ 7151, 7152, 7155; Pope's Dig., §§ 9137, 9138, 9141; Acts 1981, No. 900, § 1; A.S.A. 1947, §§ 27-1801, 27-1802, 27-1805.

16-55-110. Boards — Authority of majority.

An authority conferred upon three (3) or more persons may be exercised by a majority of them and a majority of three (3) or more persons may do any act directed to be performed by them.

History. Civil Code, § 782; C. & M. Dig., § 9755; Pope's Dig., § 12511; A.S.A. 1947, § 27-133.

Case Notes

Applicability.

This section applies only to boards whose appointment is provided by statute, and not to boards appointed by the court under agreement of the parties. Weaver v. McLean, 141 Ark. 406, 217 S.W. 10 (1919).

Board of Assessors.

Even if this section would be applicable to a board of assessors for an improvement district, the action of two members of the board, in the absence of the third, without notice to him or opportunity on his part to be present or participate, was unauthorized. Kirst v. Street Improv. Dist. No. 1, 86 Ark. 1, 109 S.W. 526 (1908).

Cited: Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921).

16-55-111. Classes of remedies.

Remedies in civil cases are divided into two (2) classes:

  1. Actions;
  2. Special proceedings.

History. Civil Code, Preliminary Provisions, § 2; C. & M. Dig., § 1027; Pope's Dig., § 1229; A.S.A. 1947, § 27-105.

Case Notes

Cited: Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1975); Orlando v. Wizel, 443 F. Supp. 744 (W.D. Ark. 1978).

16-55-112. Authority to grant provisional remedy.

A provisional remedy as provided in this code may be granted only by the judge of the court in which the action is brought, or by any circuit judge.

History. Civil Code, § 791; Acts 1871, No. 48, § 1 [791], p. 219; 1873, No. 88 [791], p. 213; C. & M. Dig., § 5793; Pope's Dig., § 7509; A.S.A. 1947, § 27-108.

Publisher's Notes. The code referred to in this section means the Code of Practice in Civil Cases of 1869. See parallel reference tables in the tables volume.

Case Notes

Habeas Corpus.

Where mother of child consented by verified pleading to appointment of welfare director as guardian for child, and later on the same day attempted to revoke authority, mother was not entitled to writ of habeas corpus, but must file a complaint in probate court to set aside prior order. Haller v. Ratcliffe, 215 Ark. 628, 221 S.W.2d 886 (1949).

16-55-113. Writ of ne exeat abolished.

The writ of ne exeat as a remedy in a civil action is abolished.

History. Civil Code, § 790; C. & M. Dig., § 1040; Pope's Dig., § 1242; A.S.A. 1947, § 27-202.

Case Notes

Cited: Ex parte Caple, 81 Ark. 504, 99 S.W. 830 (1907).

16-55-114. Notices — Form — Service generally.

    1. The notices mentioned in this code shall be in writing and may be served by a sheriff, constable, coroner, or marshal of a town or city, whose return thereon shall be proof of the service.
    2. Notices may also be served by any person not a party or interested in the action or proceeding, whose affidavit shall be proof of the service, or by acknowledgment thereon in writing by the party upon whom served.
  1. The service of a notice shall be by giving a copy to the person to whom it is directed, or if he or she cannot be found at his or her usual place of abode, by leaving a copy there with a person over the age of sixteen (16) years residing in the same family with him or her, or if no such person is there, then by affixing a copy to the front door of the place of abode. If the person to whom the notice is directed cannot be found and has no known place of abode in this state, the notice may be served by delivering a copy to his or her attorney.
  2. The return of the officer or the affidavit of the person who served the notice shall state the time and manner of the service. If a copy of the notice is not given to the person to whom it is directed, the return or affidavit shall state the facts authorizing the manner of service pursued.

History. Civil Code, §§ 706, 707; C. & M. Dig., §§ 1327, 1328; Pope's Dig., §§ 1552, 1553; A.S.A. 1947, §§ 27-1203, 27-1204.

Publisher's Notes. The code referred to in this section means the Code of Practice in Civil Cases of 1869. See parallel reference tables in the tables volume.

Case Notes

Notice to Railroad Companies.

This section is confined to notices mentioned in the Civil Code and has no application to service of notice to railroad companies to construct and maintain stock guards, as such notice must be served as required by § 23-12-304. Kansas City, Pittsburg & Gulf Ry. v. Lowther, 68 Ark. 238, 57 S.W. 518 (1900); Kansas City, Pittsburg & Gulf Ry. v. Pirtle, 68 Ark. 548, 60 S.W. 657 (1901).

16-55-115. Notice — Additional method of service.

  1. Wherever, in connection with the taking of depositions, the filing of motions, or in any other matters either during the pendency of a suit or prior to a litigation, the law requires the service of notice by one (1) person upon another, except in the case of service of a summons, that notice may be served by registered or certified mail, addressed to the person to be served at his or her last known address, or to his or her attorney, if he or she has an attorney employed in connection with the matter in which the notice is to be served, with return receipt requested. The return receipt of the person or his or her attorney or the affidavit of the person making the service shall be evidence of service of the notice.
    1. This section shall be cumulative of present methods provided by law for service of notice.
    2. Service shall be sufficient by:
      1. The method provided for in this section;
      2. Any method authorized by law prior to June 13, 1957; or
      3. Waiver in writing of service.

History. Acts 1957, No. 288, § 3; A.S.A. 1947, § 27-1212.

16-55-116. Notice — Service upon certain persons.

    1. Where it is not otherwise specially provided, notice to a party in an action of any motion or proceeding to be made or taken in the action in court or before a judge may be served upon the party or his or her attorney.
    2. The service upon the attorney in any such case shall be by delivering to him or her a copy of the notice.
  1. A notice to a person constructively summoned and not appearing shall be served on the attorney appointed to defend for him or her.
  2. A notice to an infant or person of unsound mind shall be served on the guardian or next friend bringing or defending the action for him or her.
  3. A notice to a corporation may be served in the same manner as a summons in an action against it.
  4. Where the party has no known place of abode in this state and no attorney in the county where the action is pending, or where the parties, plaintiffs, or defendants are numerous, the court may direct the mode of serving notices and to which persons they shall be given.

History. Civil Code, §§ 708-710, 712, 713; C. & M. Dig., §§ 1329-1331, 1333, 1334; Pope's Dig., §§ 1554-1556, 1558, 1559; A.S.A. 1947, §§ 27-1205 — 27-1207, 27-1209, 27-1210.

Case Notes

Applicability.

Subsection (d) is not confined to notices mentioned in the Civil Code; so a notice to a railroad company to construct a stock guard may be served upon any station agent of the railroad company in the county. St. Louis & S.F.R.R. v. Hale, 82 Ark. 175, 100 S.W. 1148 (1907).

Subsection (a) is applicable only to the notice to be given of a motion or proceeding to be made or taken before a judge or court and does not apply to a notice given by a surety to the obligee. Stocker v. Southwestern Co., 245 Ark. 350, 432 S.W.2d 481 (1968).

Garnishment.

A garnishee not served personally with a writ of garnishment has no notice of the suit by reason of service of the writ on an attorney not employed by the garnishee generally nor in the particular litigation. Woods v. Quarles, 178 Ark. 1158, 13 S.W.2d 617 (1929).

Motion to Vacate Judgment.

A notice of a motion to vacate a void judgment may be served on the attorney of the opposite party. State v. West, 160 Ark. 413, 254 S.W. 828 (1923)Questioned byHowell v. Van Houten, 227 Ark. 84, 296 S.W.2d 428 (1956).

16-55-117. Notice — Duty of officer serving.

  1. It shall be the duty of the sheriff and of every constable to whom any notice in an action may be delivered for service within his or her county to serve and return the notice to the party who delivered it to him or her.
  2. A failure to perform this duty may be punished as a disobedience of the process of the court.

History. Civil Code, § 715; C. & M. Dig., § 1336; Pope's Dig., § 1561; A.S.A. 1947, § 27-1211.

16-55-118. Laws requiring notice or summons for specified time before term amended to permit action taken on any day court is in session.

Whether specifically mentioned in this act or not, any law or part of a law requiring notice or summons to be served or published a specific length of time before the beginning of a term before the steps authorized in the law may be had at such terms in any civil or special proceeding is hereby amended to permit such steps to be taken on any day that the court meets in regular or adjourned session after the expiration of the time required in the law for service.

History. Acts 1915, No. 290, § 23; C. & M. Dig., § 1210; Pope's Dig., § 1433; A.S.A. 1947, § 27-135.

Meaning of “this act”. Acts 1915, No. 290, codified as §§ 16-44-107, 16-55-118, 16-58-119, 16-58-126, 16-58-130, 16-63-202, 16-63-217, 16-63-218, 16-64-106, 16-64-107, 16-64-127, 16-110-103.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Civil Procedure, 1 U. Ark. Little Rock L.J. 131.

16-55-119. Computation of time.

Where a certain number of days are required to intervene between two (2) acts, the day of one (1) only of the acts may be counted.

History. Civil Code, § 784; C. & M. Dig., § 9756; Pope's Dig., § 13281; A.S.A. 1947, § 27-130.

Case Notes

In General.

When a certain number of days are required to intervene between two acts, the day of one, only, of the acts is to be counted, but when a statute requires notice of at least a certain number of days before an act, this means so many full days, and the day of the notice and the act are both excluded from the computation. Jones v. State, 42 Ark. 93, 1883 Ark. LEXIS 58 (1883); Moore v. State, 52 Ark. 265, 12 S.W. 562 (1889).

July 1 notice to tenant whose tenancy expired December 31 was insufficient to constitute six months' notice. Gregory v. Walker, 239 Ark. 415, 389 S.W.2d 892 (1965).

Applicability.

This section does not apply to computation of time in rule of political party. Williamson v. Montgomery, 185 Ark. 1129, 51 S.W.2d 987 (1932).

Election Laws.

Where statute required certificate of nomination to be filed with election commissioners “not less than fifteen days before the election,” one day should be excluded in the computation. State v. Hunter, 134 Ark. 443, 204 S.W. 308 (1918).

First Day.

The general rule in calculating a limitations period is to exclude the first day from the computation. Hodge v. Wal-Mart Stores, Inc., 297 Ark. 1, 759 S.W.2d 203 (1988).

The day on which a nonsuit is taken should be excluded from computation. Hodge v. Wal-Mart Stores, Inc., 297 Ark. 1, 759 S.W.2d 203 (1988).

Limitation of Actions.

In computing time to ascertain whether action is barred by limitations, day on which right of action accrued must be excluded, and day of issuing summons included. Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912). But see Shinn v. Tucker, 33 Ark. 421 (1878).

The Supreme Court has followed the method of calculation in this section and in ARCP 6(a) in fixing a limitation period for the time for filing pleadings as well as for certain notices. Grubbs v. Credit Gen. Ins. Co., 327 Ark. 479, 939 S.W.2d 290 (1997).

Unlawful Detainer.

In determining the time for bringing action for unlawful detainer under § 18-60-303 requiring three days' notice to quit, the day of serving notice may be counted. Whitner v. Thompson, 188 Ark. 240, 65 S.W.2d 28 (1933).

Cited: Widmer v. J.I. Case Credit Corp., 239 Ark. 12, 386 S.W.2d 702 (1965); Globe Life Ins. Co. v. Humphries, 258 Ark. 118, 522 S.W.2d 669 (1975); Synergy Gas Corp. v. H.M. Orsburn & Son, 15 Ark. App. 128, 689 S.W.2d 594 (1985).

16-55-120. Affirmation in lieu of oath.

Whenever an oath is required by this code, the affirmation of a person conscientiously scrupulous of taking an oath shall have the same effect.

History. Civil Code, § 783; A.S.A. 1947, § 27-126.

Publisher's Notes. The code referred to in this section means the Code of Practice in Civil Cases of 1869. See parallel reference tables in the tables volume.

Cross References. Affirmation in lieu of oath, § 16-2-101.

16-55-121. Successive actions on same contract or transaction.

Successive actions may be maintained upon the same contract or transaction whenever, after the former action, a new cause of action has arisen therefrom.

History. Civil Code, § 789; C. & M. Dig., § 1083; Pope's Dig., § 1291; A.S.A. 1947, § 27-136.

Case Notes

Issues Raised.

When there is any uncertainty as to whether the precise question was raised and determined in the former suit and the record leaves the matter in doubt, extrinsic evidence showing the precise point involved and determined is admissible to remove the uncertainty. JeToCo Corp. v. Hailey Sales Co., 268 Ark. 340, 596 S.W.2d 703 (1980).

Plaintiff could maintain a suit to seek recovery of rentals accruing after previous trial, even though the parties were the same and the issues were basically the same as those involved in the earlier suit. JeToCo Corp. v. Hailey Sales Co., 268 Ark. 340, 596 S.W.2d 703 (1980).

Res Judicata.

Where it was determined upon a former trial that a contract between certain parties was rescinded, the determination of this question is binding on the parties and their privies and prevents a second adjudication of the same question in another suit; and this rule is unchanged by this section. National Sur. Co. v. Coates, 83 Ark. 545, 104 S.W. 219 (1907).

Res judicata held to bar later action. Hemingway v. Grayling Lumber Co., 125 Ark. 400, 188 S.W. 1186 (1916).

The true test of whether a particular point, question, or right has been concluded by a former suit and judgment is whether the point, question, or right was distinctly put in issue, or should have been put in issue, and was directly determined by the former suit and judgment. JeToCo Corp. v. Hailey Sales Co., 268 Ark. 340, 596 S.W.2d 703 (1980).

Where there is a dispute between the parties as to what was decided in the former case, the holding of the Supreme Court on appeal in that former case as to what had been determined in the trial court is conclusive. JeToCo Corp. v. Hailey Sales Co., 268 Ark. 340, 596 S.W.2d 703 (1980).

16-55-122. Contract provisions restricting disclosure of environmental hazards are void.

  1. Any provision of a contract or agreement entered into to settle a lawsuit which purports to restrict any person's right to disclose the existence or harmfulness of an environmental hazard is declared to be against the public policy of the State of Arkansas and therefore void.
  2. For purposes of this section, the term “environmental hazard” means a substance or condition that may affect land, air, or water in a way that may cause harm to the property or person of someone other than the contracting parties to a lawsuit settlement contract referred to in subsection (a) of this section.
  3. This section applies to settlement contracts or agreements entered into after March 12, 1991.

History. Acts 1991, No. 470, §§ 1-3.

Subchapter 2 — Civil Justice Reform Act of 2003

Preambles. Acts 2005, No. 1380, contained a preamble which read:

“WHEREAS, over the past three years, Arkansas has received two-hundred-forty million dollars ($240,000,000) from the tobacco Master Settlement Agreement (MSA); and

“WHEREAS, the State of Arkansas will receive a total of one billion six hundred twenty million dollars ($1,620,000,000) from the MSA over twenty-five (25) years; and

“WHEREAS, the MSA funds are used to fund important state programs, such as tobacco-use prevention, Medicaid expansion, prescription drug benefits, and hospital and medical services; and

“WHEREAS, the continued receipt of MSA funds is vital to the state's ability to finance these programs; and

“WHEREAS, the state has an important interest in ensuring that tobacco companies that have signed the MSA can appeal massive judgments against them by posting a bond under state law, rather than being forced into bankruptcy, which would disrupt their ability to make payments under the MSA; and

“WHEREAS, a limit on the bond required to stay the execution of a judgment pending appeal would guarantee that no tobacco company is forced into bankruptcy in order to appeal a judgment against it, thus preserving the state's continued receipt of MSA funds,

“NOW THEREFORE, …”

Effective Dates. Acts 2003, No. 649, § 26: Mar. 25, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that in this state, existing conditions, such as the application of joint and several liability regardless of the percentage of fault, are adversely impacting the availability and affordability of medical liability insurance; that those existing conditions recently have caused several medical liability carriers to stop offering coverage in the state and have caused some medical care providers to curtail or end their practices; that the decreasing availability and affordability of medical liability insurance is adversely affecting the accessibility and affordability of medical care and health insurance coverage in this state; that long term care facilities are having great difficulty hiring qualified medical directors because physicians could be held liable for an entire judgment even if they are found to be minimally at fault; and that there is a need to improve access to the courts for deserving claimants; and that this act is immediately necessary in order to remedy these conditions and improve access to health care 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 2003, No. 1471, § 2: Apr. 16, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that Act 649 of 2003 is now in effect; that its cap on punitive damage awards is unclear as to whether it applies to each plaintiff or to the judgment; that this act clarifies that the cap applies to each plaintiff and not the judgment; and that until this act goes into effect, confusion may 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: (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. 1315, § 3: Apr. 18, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that school district litigation is a complex and costly endeavor; that a new venue statute would resolve many issues regarding where a lawsuit should be brought; and that this act is immediately necessary because future litigants are currently relying on venue statutes that would require litigation in an inconvenient forum. 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.”

RESEARCH REFERENCES

Ark. L. Notes.

Leflar, The Civil Justice Reform Act and the Empty Chair, 2003 Ark. L. Notes 67.

16-55-201. Modification of joint and several liability.

  1. In any action for personal injury, medical injury, property damage, or wrongful death, the liability of each defendant for compensatory or punitive damages shall be several only and shall not be joint.
    1. Each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault.
    2. A separate several judgment shall be rendered against that defendant for that amount.
    1. To determine the amount of judgment to be entered against each defendant, the court shall multiply the total amount of damages recoverable by the plaintiff with regard to each defendant by the percentage of each defendant's fault.
    2. That amount shall be the maximum recoverable against that defendant.

History. Acts 2003, No. 649, § 1.

Research References

Ark. L. Rev.

Recent Developments, 56 Ark. L. Rev. 703 (2003).

Legislative Note, Arkansas's Civil Justice Reform Act of 2003: Who's Cheating Who?, 57 Ark. L. Rev. 651.

Note, To Truly Reform We Must Be Informed: Davis v. Parham, the Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. Rev. 781.

Phantom Parties and Other Practical Problems with the Attempted Abolition of Joint and Several Liability, 60 Ark. L. Rev. 437.

Samuel T. Waddell, Comment: Examining the Evolution of Nonparty Fault Apportionment in Arkansas: Must a Defendant Pay More Than Its Fair Share?, 66 Ark. L. Rev. 485 (2013).

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Practice, Procedure, and Courts, Civil Justice Reform Act of 2003, 26 U. Ark. Little Rock L. Rev. 442.

Sizing Up a Multi-Party Tortfeasor Suit in Arkansas: A Tale of Two Laws — How Fault Is, and Should Be, Distributed, 26 U. Ark. Little Rock L. Rev. 251.

Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).

Case Notes

Constitutionality.

Allegedly injured driver brought suit against another motorist, who then brought suit against a third party; the jury determined that the third party was 100 percent at fault. The allegedly injured driver attacked the constitutionality of this section and § 16-55-212; however, the supreme court refused to consider the arguments because the supreme court considered the matter to be moot. Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).

Construction.

Civil Justice Reform Act (CJRA), § 16-55-201 et seq., pertains to fault apportionment in a general way, and the Arkansas Comparative Fault Act, § 16-64-122, specifically defines fault and identifies whose fault can be apportioned. Because these two provisions address the same subject matter, it is reasonable to conclude that the general terms of the CJRA are intended to be subject to the specific terms of the Arkansas Comparative Fault Act. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Civil Justice Reform Act, § 16-55-201 et seq., can not be interpreted to permit a jury to apportion fault in a tort suit to an immune nonparty employer because doing so would render the statute unconstitutional: (1) such an interpretation would violate Ark. Const., Art. 4, § 2, which bars the state legislature from encroaching on the Arkansas Supreme Court's authority to supervise court procedure; and (2) such an interpretation would violate the employer's fundamental constitutional rights because § 11-9-105(a), the exclusivity provision of the Arkansas Workers' Compensation Law, § 11-9-101 et seq., deprives courts of subject matter jurisdiction over employers and protects employers from liability with regard to claims arising from a covered worker's employment-related injuries. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Conversion does not necessarily involve damage to property, which would bring it within the reach of the statute and therefore, the Civil Justice Reform Act of 2003 (CJRA), codified at §§ 16-55-20116-55-220, does not automatically apply to actions under § 18-60-102; the CJRA clearly evinces an intent to alter the common law regarding joint and several liability for the causes of action listed, such as personal injury or property damage, but it does not, however, display such an intent regarding causes of action involving the conversion of property, and thus, the trial court did not err in finding the company, owner, and related individual jointly and severally liable with the business and business owner and with each other for the value of the landowner's timber. Shamlin v. Quadrangle Enters., 101 Ark. App. 164, 272 S.W.3d 128 (2008).

This section plainly provides that liability is to be apportioned with regard to “each defendant.” Where there is only one defendant, this section is inapplicable. ProAssurance Indem. Co. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689 (2012).

Trial court did not abuse its discretion by striking the hospital's third-party complaint against the rehabilitation center because the hospital did not have a cause of action against the rehabilitation center under this section as it did not create a cause of action. St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761 (2013), superseded by statute as stated in, J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (2014).

When homeowners sued a general contractor, who sought contribution and indemnity from subcontractors, the Civil Justice Reform Act, § 16-55-201 et seq., abolishing joint liability, did not destroy the contribution claims because (1) Acts 2013, No. 1116, provided that the claim still existed, and (2) Act 1116 applied retroactively, as Act 1116 was remedial and procedural. J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (2014).

The language of this section is clear; it speaks in terms of the allocation of fault among the “defendants” to the action but is silent as to the allocation of nonparty fault. Instead, the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., addresses the allocation of nonparty fault and it does not allow for the apportionment of fault to an immune nonparty employer. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W.3d 9 (2020).

Discovery.

It was error to grant at this point in the case defendant subcontractor's motion to compel discovery of the confidential settlement agreement between plaintiff and defendant general contractor that resulted from mediation, when the subcontractor sought contribution and apportionment of fault, because (1) any right of contribution does not arise until one joint tortfeasor pays more than the tortfeasor's share of liability, and no damages had been awarded yet, and (2) it was error to find the general contractor and subcontractor were joint tortfeasors before any evidence was presented. Contrary to plaintiff's argument, however, the Civil Justice Reform Act, § 16-55-201 et seq., did not eliminate contribution among “joint tortfeasors”. Wynne-Ark., Inc. v. Richard Baughn Constr., 2020 Ark. App. 140, 597 S.W.3d 114 (2020).

Jury Instructions.

In a medical negligence case that was brought against a liability insurer after a surgeon operated on the wrong side of the patient's brain, the circuit court did not abuse its discretion in refusing to submit non-model jury instructions that would have required the jury to apportion liability to parties who were not defendants; the circuit court properly instructed the jury to allocate the fault of the hospital where the surgery was performed only to the insurer. ProAssurance Indem. Co. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689 (2012).

Necessary Party.

Trial court did not err by finding that the rehabilitation center was not a necessary or indispensable party under Ark. R. Civ. P. 19 because the presence of the rehabilitation center was not indispensable to the determination of the hospital's separate liability under the Civil Justice Reform Act of 2003. St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761 (2013), superseded by statute as stated in, J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (2014).

16-55-202. Assessment of percentages of fault.

  1. In assessing percentages of fault, the fact finder shall consider the fault of all persons or entities who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether the person or entity was or could have been named as a party to the suit.
    1. Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice that a nonparty was wholly or partially at fault not later than one hundred twenty (120) days prior to the date of trial.
    2. The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
    1. Except as expressly stated in this section, nothing in this section shall eliminate or diminish any defenses or immunities which currently exist.
    2. Assessments of percentages of fault of nonparties shall be used only for accurately determining the percentage of fault of named parties.
    3. Where fault is assessed against nonparties, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

History. Acts 2003, No. 649, § 2.

Publisher's Notes. This section was held unconstitutional in Thomas v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).

Research References

Ark. L. Rev.

Samuel T. Waddell, Comment: Examining the Evolution of Nonparty Fault Apportionment in Arkansas: Must a Defendant Pay More Than Its Fair Share?, 66 Ark. L. Rev. 485 (2013).

Mark James Chaney, Recent Developments: Arkansas Supreme Court Issued Interim Report of Special Task Force on Practice and Procedure in Civil Cases Regarding Possible Changes to the Arkansas Rules of Civil Procedure Because of the Invalidation of Civil Justice Reform Act, 67 Ark. L. Rev. 193 (2014).

U. Ark. Little Rock L. Rev.

Justice Robert L. Brown, A Judicial Retrospective: Significant Decisions by the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219 (2012).

Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).

Case Notes

Constitutionality.

Eastern District of Arkansas, Western Division, district court did not have to address a constitutional challenge to this section, the nonparty notice provision of the Civil Justice Reform Act (CJRA), § 16-55-201 et seq., because the CJRA could be plausibly interpreted to comply with the United States and Arkansas Constitutions and to conform with the Arkansas Workers' Compensation Law, § 11-9-101 et seq., and the Arkansas Comparative Fault Act, § 16-64-122. Pursuant to the canon of constitutional avoidance, the district court would not rule on the constitutionality of this section because doing so was not absolutely necessary. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

This section was unconstitutional and conflicted with Ark. Const., Art. 4, § 2 and Ark. Const., Amend. 80, § 3 because rules regarding pleading, practice, and procedure were solely the responsibility of the supreme court; the nonparty-fault provision bypassed the rules of pleading, practice and procedure by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that nonparty's fault in an effort to reduce a plaintiff's recovery. Thomas v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).

In a products liability action by an injured worker against the manufacturer of a defective chemical tank, the district court appropriately declined to allow the jury to assign a percentage of fault to the worker's employer, a nonparty, because the nonparty-fault provision in this section had been declared unconstitutional. McCoy v. Augusta Fiberglass Coatings, 593 F.3d 737 (8th Cir. 2010).

Application.

While a products liability defendant could issue a nonparty notice under subdivision (b)(2) of this section with regard to a nonparty equipment manufacturer, it could not issue an apportionment of damages notice under subdivision (b)(2) of this section with regard to an injured worker's employer and coemployee: (1) the purpose of the notice under this section was to allow an apportionment of liability with regard to the injured worker's damages; (2) a notice under this section could only be used with regard to an individual or entity that could be made a party to the suit by way of cross or third party claims; (3) defendant could file a notice under this section against the manufacturer, provided it filed a third party complaint and brought the manufacturer in as a party to the suit; and (4) defendant could not file a notice under this section against the employer or the coemployee because they were statutorily immune pursuant to § 11-9-105(a), the exclusive remedies provision of the Workers' Compensation Law, § 11-9-101 et seq.Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Interpretation.

Nonparty notice requirements set out in subdivision (b)(2) of this section apply in addition to state civil procedure rules. This section should be interpreted as being compatible with § 16-64-122(a), which limits the apportionment of fault to an individual or entity from whom the claiming party seeks to recover damages, which includes individuals and entities that are subject to being brought into a suit pursuant to a cross or third party claim under Ark. R. Civ. P. 13 and 14, but excludes nonparties who are otherwise immune from suit, including employers who are immune pursuant to § 11-9-105(a), the exclusive remedies provision of the Workers' Compensation Law, § 11-9-101 et seq.Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

16-55-203. Increase in percentage of several share.

    1. Notwithstanding the provisions of §§ 16-55-201 and 16-55-202, in the event a several judgment has been entered against multiple-party defendants, a plaintiff may move the court no later than ten (10) days after the entry of judgment to determine whether all or part of the amount of the several share for which a defendant is liable will not be reasonably collectible.
    2. If the court determines, based upon a preponderance of the evidence, that any defendant's several share or multiple defendants' several shares will not be reasonably collectible, the court shall increase the percentage points of the several shares of each of the remaining defendants, subject to the limitations in subdivisions (a)(3) and (4) of this section.
      1. If a defendant's percentage of fault is determined by the finder of fact to be ten percent (10%) or less, then the percentage points of that defendant's several share shall not be increased.
      2. If a defendant's percentage of fault is determined by the finder of fact to be greater than ten percent (10%) but less than fifty percent (50%), then the percentage points of that defendant's several share shall be increased by no more than ten (10) percentage points.
      3. If a defendant's percentage of fault is determined by the finder of fact to be fifty percent (50%) or greater, then the percentage points of that defendant's several share shall be increased by no more than twenty (20) percentage points.
    3. Under no circumstances shall the combined percentage points of the remaining defendants' several shares exceed the lesser of:
      1. A total of one hundred (100) percentage points; or
      2. The total number of percentage points remaining after deducting the percentage of fault of the plaintiff, if any.
    4. Any defendant whose several share has been increased pursuant to this section, and who has discharged his or her obligation to pay the increased several share, has a right of contribution from the defendants whose several shares were determined by the court to be not reasonably collectible.
  1. The provisions of subsection (a) of this section shall not apply to any punitive damages award or judgment.

History. Acts 2003, No. 649, § 3.

16-55-204. Applicability of § 16-55-203.

The provisions of § 16-55-203 shall not apply to a medical care provider who is named as a defendant in an action for personal injury, medical injury, or wrongful death based solely on his or her capacity as a medical director of a long-term care facility.

History. Acts 2003, No. 649, § 4.

16-55-205. Acting in concert.

  1. Notwithstanding § 16-55-201, a party is responsible for the fault of another person or entity or for payment of the proportionate share of another person or entity if both the party and the other person or entity were acting in concert or if the other person or entity was acting as an agent or servant of the party.
    1. As used in this section, “acting in concert” means entering into a conscious agreement to pursue a common plan or design to commit an intentional tort and actively taking part in that intentional tort.
    2. “Acting in concert” does not mean the act of any person or entity whose conduct was negligent in any degree other than intentional.
    3. A person's or entity's conduct which provides substantial assistance to one committing an intentional tort does not constitute “acting in concert” if the person or entity has not consciously agreed with the other to commit the intentional tort.

History. Acts 2003, No. 649, § 5.

16-55-206. Standards for award of punitive damages.

In order to recover punitive damages from a defendant, a plaintiff has the burden of proving that the defendant is liable for compensatory damages and that either or both of the following aggravating factors were present and related to the injury for which compensatory damages were awarded:

  1. The defendant knew or ought to have known, in light of the surrounding circumstances, that his or her conduct would naturally and probably result in injury or damage and that he or she continued the conduct with malice or in reckless disregard of the consequences, from which malice may be inferred; or
  2. The defendant intentionally pursued a course of conduct for the purpose of causing injury or damage.

History. Acts 2003, No. 649, § 9.

Research References

ALR.

Exemplary or punitive damages for pharmacist's wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072). 109 A.L.R.5th 397.

Allowance of Punitive Damages in Motor Vehicles Products Liability Cases, 17 A.L.R.7th Art. 4 (2018).

Case Notes

Conduct Not Warranting Punitive Damages.

Where plaintiff retailer sued defendant supplier on claims of fraud and deceptive trade practices in connection with the supplier's refusal to honor its rebate program for the retailer's customers, and the claims requiring any knowing or intentional wrongful act failed, and no reasonable jury could find that the supplier acted with malice or an intent to harm the retailer, the retailer was not entitled to pursue punitive damages under this section, especially since the standard under this section had to be met by clear and convincing evidence as required by § 16-55-207. Curtis Lumber Co. v. La. Pac. Corp., 618 F.3d 762 (8th Cir. 2010).

In this action for negligent hiring, training, supervision or monitoring, and retention, defendants were granted summary judgment on plaintiffs' claims for punitive damages because plaintiffs had not provided evidence that would allow a reasonable jury to find that defendants knew or ought to have known that their conduct would naturally and probably result in injury or damage to the victim. Perry v. Stevens Transp., Inc., No. 3:11CV00048 JLH, 2012 U.S. Dist. LEXIS 94942 (E.D. Ark. July 9, 2012).

Alleged violations of the Federal Motor Carrier Safety Regulations did not support a punitive-damages award, because there was no evidence that the driver had been drinking alcohol or using controlled substances prior to the accident or that he was or appeared to be under the influence of alcohol or any controlled substances at the time of the accident. Brumley v. Keech, 2012 Ark. 263 (2012).

In an action regarding equipment supplied by defendant to plaintiff to heat-treat pipe, because plaintiff asserted punitive damages only on its gross negligence claim, and could not show gross negligence because defendant sincerely and consistently attempted to fix the defective equipment, the punitive damages claim was dismissed under this section. IPSCO Tubulars, Inc. v. Ajax TOCCO Magnathermic Corp., 779 F.3d 744 (8th Cir. 2015).

Relevant Evidence.

In a negligence case, a trial court erred by granting a motion in limine and excluding evidence of prior driving while intoxicated offenses because they were relevant under Ark. R. Evid. 401 to the determination of whether punitive damages under this section were warranted. Yeakley v. Doss, 370 Ark. 122, 257 S.W.3d 895 (2007).

Defendants were not entitled to summary judgment on punitive damages because a reasonable juror could find that defendant property owner, acting on behalf of defendant entities, knew or had reason to know that proceeding with excavation of the hillside without a recommended retaining wall in place would inflict injury to plaintiff's property, but he proceeded with excavation with conscious indifference to the consequences, from which malice may be inferred. Rivercliff Co. v. Residences at Riverdale GP, LLC, No. 4:10CV00330 SWW, 2011 U.S. Dist. LEXIS 139158 (E.D. Ark. Dec. 2, 2011).

16-55-207. Burden of proof for award of punitive damages.

A plaintiff must satisfy the burden of proof required under § 16-55-206 by clear and convincing evidence in order to recover punitive damages from the defendant.

History. Acts 2003, No. 649, § 10.

Research References

ALR.

Exemplary or punitive damages for pharmacist's wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072). 109 A.L.R.5th 397.

Case Notes

Burden of Proof.

Where plaintiff retailer sued defendant supplier on claims of fraud and deceptive trade practices in connection with the supplier's refusal to honor its rebate program for the retailer's customers, and the claims requiring any knowing or intentional wrongful act failed, and no reasonable jury could find that the supplier acted with malice or an intent to harm the retailer, the retailer was not entitled to pursue punitive damages under § 16-55-206, especially since § 16-55-206's standard had to be met by clear and convincing evidence as required by this section. Curtis Lumber Co. v. La. Pac. Corp., 618 F.3d 762 (8th Cir. 2010).

Summary Judgment Denied.

Defendants were not entitled to summary judgment on punitive damages because a reasonable juror could find that defendant property owner, acting on behalf of defendant entities, knew or had reason to know that proceeding with excavation of the hillside without a recommended retaining wall in place would inflict injury to plaintiff's property, but he proceeded with excavation with conscious indifference to the consequences, from which malice may be inferred. Rivercliff Co. v. Residences at Riverdale GP, LLC, No. 4:10CV00330 SWW, 2011 U.S. Dist. LEXIS 139158 (E.D. Ark. Dec. 2, 2011).

16-55-208. Limitations on the amount of punitive damages.

  1. Except as provided in subsection (b) of this section, a punitive damages award for each plaintiff shall not be more than the greater of the following:
    1. Two hundred fifty thousand dollars ($250,000); or
    2. Three (3) times the amount of compensatory damages awarded in the action, not to exceed one million dollars ($1,000,000).
  2. Subsection (a) of this section shall not apply when the finder of fact:
    1. Determines by clear and convincing evidence that, at the time of the injury, the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage; and
    2. Determines that the defendant's conduct did, in fact, harm the plaintiff.
  3. As to the punitive damages limitations established in subsection (a) of this section, the fixed sums of two hundred fifty thousand dollars ($250,000) set forth in subdivision (a)(1) of this section and one million dollars ($1,000,000) set forth in subdivision (a)(2) of this section shall be adjusted as of January 1, 2006, and at three-year intervals thereafter, in accordance with the Consumer Price Index rate for the previous year as determined by the Administrative Office of the Courts.

History. Acts 2003, No. 649, § 11; 2003, No. 1471, § 1.

A.C.R.C. Notes. Acts 2003, No. 1471, § 1, amended this section as enacted by Acts 2003, No. 649, § 11.

Publisher's Notes. This section was held unconstitutional in Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822 (2011).

Research References

ALR.

Exemplary or punitive damages for pharmacist's wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072). 109 A.L.R.5th 397.

Allowance of Punitive Damages in Motor Vehicles Products Liability Cases, 17 A.L.R.7th Art. 4 (2018).

Ark. L. Rev.

Note, To Truly Reform We Must Be Informed: Davis v. Parham, the Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. Rev. 781.

Rachel A. Orr, Recent Developments: Punitive Damages Cap of Arkansas Tort Reform Act Held Unconstitutional — Bayer CropScience LP v. Schafer , 65 Ark. L. Rev. 163 (2012).

Austin A. King, Case Note: A Problematic Procedure: The Struggle for Control of Procedural Rulemaking Power, 67 Ark. L. Rev. 759 (2014).

U. Ark. Little Rock L. Rev.

Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).

Case Notes

Constitutionality.

This section was unconstitutional under Ark. Const. Art. 5, § 32, because it limited the amount of recovery outside of an employment relationship. Therefore, a punitive damage award of $42 million against a manufacturer of genetically altered rice that allowed its rice to contaminate conventional seed was upheld. Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822 (2011).

Cited: Holiday Inn Franchising v. Hotel Assocs., 2011 Ark. App. 147, 382 S.W.3d 6 (2011).

16-55-209. No right to punitive damages.

Nothing in § 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), 16-114-209, and 16-114-21016-114-212 shall be construed as creating a right to an award of punitive damages.

History. Acts 2003, No. 649, § 12.

Research References

ALR.

Exemplary or punitive damages for pharmacist's wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072). 109 A.L.R.5th 397.

16-55-210. No limitation on certain judicial duties.

Nothing in § 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), 16-114-209, and 16-114-21016-114-212 shall limit the duty of a court or the appellate courts to:

  1. Scrutinize all punitive damages awards;
  2. Ensure that all punitive damages awards comply with applicable procedural, evidentiary, and constitutional requirements; and
  3. Order remittitur where appropriate.

History. Acts 2003, No. 649, § 13.

16-55-211. Bifurcated proceeding.

    1. In any case in which punitive damages are sought, any party may request a bifurcated proceeding at least ten (10) days prior to trial.
    2. If a bifurcated proceeding has been requested by either party, then:
      1. The finder of fact first shall determine whether compensatory damages are to be awarded; and
      2. After a compensatory damages award determination, the finder of fact then shall determine whether and in what amount punitive damages will be awarded.
  1. Evidence of the financial condition of the defendant and other evidence relevant only to punitive damages is not admissible with regard to any compensatory damages determination.

History. Acts 2003, No. 649, § 14.

Publisher's Notes. Ark. R. Civ. P. 42 was amended, effective April 1, 2015. Per 2015 Ark. 88, “[w]ith the adoption of the amendment to Rule 42, Ark. Code Ann. § 16-55-211 is superseded pursuant to Ark. Code Ann. § 16-11-301.”

Research References

Ark. L. Rev.

Note, To Truly Reform We Must Be Informed: Davis v. Parham, the Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. Rev. 781.

U. Ark. Little Rock L. Rev.

Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).

Case Notes

Evidence.

Because a medical-malpractice trial was bifurcated, the patient was not entitled to present evidence to support an award of punitive damages until the jury returned a verdict on liability as an award of actual damages was a predicate for the recovery of punitive damages. Poff v. Elkins, 2014 Ark. App. 663, 449 S.W.3d 315 (2014).

16-55-212. Compensatory damages.

  1. Section 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), 16-114-209, and 16-114-210 — 16-114-212 do not limit compensatory damages.
  2. Any evidence of damages for the costs of any necessary medical care, treatment, or services received shall include only those costs actually paid by or on behalf of the plaintiff or which remain unpaid and for which the plaintiff or any third party shall be legally responsible.

History. Acts 2003, No. 649, § 15.

Publisher's Notes. Subsection (b) of this section was held unconstitutional in Thomas v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).

Research References

Ark. L. Rev.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Issued Interim Report of Special Task Force on Practice and Procedure in Civil Cases Regarding Possible Changes to the Arkansas Rules of Civil Procedure Because of the Invalidation of Civil Justice Reform Act, 67 Ark. L. Rev. 193 (2014).

U. Ark. Little Rock L. Rev.

Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).

Case Notes

Constitutionality.

Allegedly injured driver brought suit against another motorist, who then brought suit against a third party; the jury determined that the third party was 100 percent at fault. The allegedly injured driver attacked the constitutionality of § 16-55-201 and this section; however, the supreme court refused to consider the arguments because the supreme court considered the matter to be moot. Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).

Court granted plaintiff's motion challenging the Arkansas Civil Justice Reform Act of 2003, subsection (b) of this section, and allowed plaintiff to introduce evidence of the amounts billed to her for medical services necessitated by the injuries that were the subject of her lawsuit, regardless of any discount that she had received on those amounts because (1) if the Arkansas Supreme Court were considering the constitutionality of subsection (b), it would hold that subsection (b) infringed on its constitutional prerogative to prescribe rules of evidence under Ark. Const., Amend. 80, § 3, and was, therefore, unconstitutional because subsection (b) would, if enforced, work a reversal of the collateral source rule that had been recognized and approved by the Arkansas Supreme Court, yet the Arkansas Supreme Court did not “prescribe” subsection (b), and (2) the Arkansas Supreme Court would, if presented with the instant motion, find that subsection (b) violated Ark. Const., Art. V, § 32 as the Arkansas Supreme Court had held that a personal injury plaintiff was entitled, assuming a successful showing of liability, to recover the payments made (or written off) on her behalf by a collateral source, but subsection (b) would prevent her from doing that. Burns v. Ford Motor Co., 549 F. Supp. 2d 1081 (W.D. Ark. 2008).

Medical costs provision, subsection (b) of this section, violated separation of powers under Ark. Const., Art. 4, § 2 and Ark. Const., Amend. 80, § 3, because rules regarding the admissibility of evidence were within the province of the supreme court. Thomas v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).

Plain Error Review.

In light of the Arkansas court's decision in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009), a district court erred by limiting the presentation of evidence relating to damages based on subsection (b) of this section, and because a court had to consider the law at the time of appeal when reviewing for plain error, the error was clear. But the error did not affect plaintiff parents' substantial rights; the objectionable portions of the closing argument related to the failure of plaintiffs to support their claim for damages, as well as any evidence presented concerning the financial aspects of their daughter's care and treatment, were rendered irrelevant by the jury's verdict in favor of defendant hospital and obstetrician on liability. Csiszer v. Wren, 614 F.3d 866 (8th Cir. 2010).

16-55-213. [Repealed.]

Publisher's Notes. This section, concerning venue for civil actions, was repealed by Acts 2015, No. 830, § 1. The section was derived from Acts 2003, No. 649, § 16; 2013, No. 1315, § 1.

For current law, see §§ 16-60-101 and 16-60-105.

16-55-214. Maximum appeal bond in civil litigation.

  1. Appeal bonds shall be determined under § 16-68-301 et seq., and Arkansas Rules of Appellate Procedure — Civil, Rule 8, except that the maximum appeal bond that may be required in any civil action under any legal theory shall be limited to twenty-five million dollars ($25,000,000), regardless of the amount of the judgment.
  2. If a party proves by a preponderance of the evidence that the party who has posted a bond in accordance with subsection (a) of this section is purposely dissipating or diverting assets outside of the ordinary course of its business for the purpose of evading ultimate payment of the judgment, the court may enter orders as are necessary to prevent dissipation or diversion, including requiring that a bond be posted equal to the full amount of the judgment.
  3. Notwithstanding the provisions of § 16-55-220, the maximum appeal bond for any cause of action brought under any legal theory shall be limited to twenty-five million dollars ($25,000,000), regardless of the amount of the judgment or the date the cause of action accrued, subject to the provisions of § 16-55-214(b).

History. Acts 2003, No. 649, § 17; 2005, No. 1380, § 1.

Amendments. The 2005 amendment added (c).

16-55-215. Burden of proof.

Section 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), 16-114-209, and 16-114-21016-114-212 do not amend the existing law that provides that the burden of alleging and proving fault is upon the person who seeks to establish fault.

History. Acts 2003, No. 649, § 6.

Cross References. Burden of proof, § 16-40-101.

16-55-216. Comparative fault.

Section 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-20916-114-212 do not amend existing law that provides that a plaintiff may not recover any amount of damages if the plaintiff's own fault is determined to be fifty percent (50%) or greater.

History. Acts 2003, No. 649, § 7.

16-55-217. Cause of action not created.

  1. Section 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-209 — 16-114-212 do not create a cause of action.
  2. Section 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-14-209 — 16-114-212 do not alter the defenses or immunity of any person or entity.

History. Acts 2003, No. 649, § 8.

16-55-218. Attorney General.

No provision of § 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-20916-114-212 shall apply to or alter existing law with respect to any claim, charge, action, or suit brought or prosecuted by the Attorney General.

History. Acts 2003, No. 649, § 23.

16-55-219. Coroner or medical examiner.

Nothing in § 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-20916-114-212 shall be construed to diminish or enlarge the powers or duties of a coroner or medical examiner.

History. Acts 2003, No. 649, § 24.

16-55-220. Applicability and severability.

  1. Section 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-209 — 16-114-212 shall apply to all causes of action accruing on or after March 25, 2003.
  2. Section 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-209 — 16-114-212 shall not apply to any action filed or cause of action accruing prior to March 25, 2003.
  3. If any provisions of Section 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-209 — 16-114-212 or the application of § 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-209 — 16-114-212 to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of § 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-209 — 16-114-212 which can be given effect without the invalid provision or application, and to this end the provisions of § 16-55-201 et seq. and §§ 16-114-206(a), 16-114-208(a), 16-114-208(c)(1), and 16-114-209 — 16-114-212 are declared to be severable.

History. Acts 2003, No. 649, § 25.

Chapter 56 Limitation Of Actions

Research References

Am. Jur. 51 Am. Jur. 2d, Lim. Act., § 1 et seq.

C.J.S. 54 C.J.S., Lim. Act., § 1 et seq.

Subchapter 1 — General Provisions

Cross References. Medical injury actions, § 16-114-203.

Product liability actions, § 16-116-103.

Wrongful death actions, § 16-62-102.

Effective Dates. Acts 1889, No. 70, § 2: effective on passage.

Acts 1891, No. 159, § 4: effective on passage.

Acts 1899, No. 123, § 2: effective on passage.

Acts 1939, No. 398, § 1: became law without Governor's signature, Mar. 30, 1939. Emergency clause provided: “Whereas, the county is in the midst of a period of adjustment and settlement of debts and demands by suits and otherwise an emergency is found and declared to exist and this act shall take effect and be in force from and after its passage.”

Acts 1943, No. 159, § 3: Mar. 4, 1943. Emergency clause provided: “That because many persons of this state are now in the armed forces of the United States government and are unable to protect their respective rights under the law, an emergency is declared to exist, and it being necessary, for the preservation of the public peace, health and safety, that this act go into immediate operation, this act shall be in force and effect from and after its approval.”

Acts 1967, No. 471, § 3: Apr. 4, 1967. Emergency clause provided: “It is hereby found and determined by the General Assembly that civil actions for alienation of affection may now be brought within five (5) years after the cause of action accrues; that a five (5) year statute of limitations is unduly long and is conducive to the loss of valuable testimony and the dimming of the memory of witnesses as to the event that gave rise to the original cause of action; and that in order to remedy this situation and to encourage the timely bringing of such actions, 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 1985, No. 221, § 3: Feb. 28, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the law amended by this Act has been the subject of misinterpretation resulting in inequitable treatment of many plaintiffs, and that this Act is immediately necessary to clarify that law. 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. 894, § 3: Apr. 1, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the statute of limitations prescribed by Act 638 of 1983 is too short; that this Act should be given effect on April 1, 1985 because it is vital that this Act go into effect on the most reasonably immediate date certain; that unless this emergency clause is adopted this Act will not go into effect until ninety days after recess or adjournment of the General Assembly; and that April 1, 1985 is the date by which this Act can reasonably be expected to have been enacted. 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 on and after April 1, 1985.”

Acts 1989 (3rd Ex. Sess.), No. 46, § 11: approved Nov. 14, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is an urgent need to validate otherwise legal marriages declared void by court decisions, to declare and preserve the legitimacy of the children born of such marriages, and to validate all property rights between the parties themselves and third persons; that it is in the best interest of the state that this act declaring such marriages take effect immediately. It is further determined that it is in the best interest of the state that the actions of alienation of affection and criminal conversation be abolished immediately. 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 its passage.”

Acts 2003, No. 1328, § 7: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that proper registration and monitoring of the home inspectors in this state is vital to the protection of Arkansas home owners; that the current home inspector laws are not adequate and do not properly fund this important government function; and that this act is essential that a functioning Home Inspector Registration Board be in place at the beginning of the fiscal year to receive its funds to properly monitor Arkansas home inspectors. 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.”

Research References

ALR.

Statute of limitations as to cause of action for development of latent industrial or occupational disease. 1 A.L.R.4th 117.

Malpractice of attorney: what statute of limitations governs damage actions. 2 A.L.R.4th 284.

What statute of limitations governs action arising out of transaction consummated by use of credit card. 2 A.L.R.4th 677.

Statute of limitations in dental malpractices. 3 A.L.R.4th 318.

Restrictive language of debtor accompanying part payment as presenting interruption of statute of limitations. 10 A.L.R.4th 932.

Limitation of actions involving defects in houses or other buildings caused by soil instability. 12 A.L.R.4th 866.

Consumer protection or state deceptive trade practices act: when statute commences to run. 18 A.L.R.4th 430.

Air pollution: when statute of limitations begins to run as to cause of action for nuisance. 19 A.L.R.4th 456.

Dissolved corporation: time for bringing action against former director, etc., for personal injuries incurred after final dissolution. 20 A.L.R.4th 414.

Inverse condemnation: state statute of limitations. 26 A.L.R.4th 68.

Tolling in favor of one commencing action despite existing disability. 30 A.L.R.4th 1092.

When statute begins to run upon action against attorney for malpractice. 32 A.L.R.4th 260.

Limitation of actions for invasion of right of privacy. 33 A.L.R.4th 429.

Time of discovery of defamation as determining accrual of action. 35 A.L.R.4th 1002.

Statute of limitations applicable to third person's action against psychiatrist, psychologist, or other mental health practitioner, based on failure to warn persons against whom patient expressed threats. 41 A.L.R.4th 1078.

Contesting will or its probate: fraud as extending statutory limitations period for. 48 A.L.R.4th 1094.

Time of discovery as affecting running of statute of limitations in wrongful death action. 49 A.L.R.4th 972.

16-56-101. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning application of limitations for nonresidents, was repealed by Acts 2013, No. 1148, § 19[20]. The section was derived from Acts 1844, § 3, p. 24; C. & M. Dig., § 6962; Pope's Dig., § 8940; A.S.A. 1947, § 37-230.

16-56-102. Application of limitations — Setoffs.

The provisions of this act shall be deemed and taken to apply to the case of any demand alleged by way of setoff on the part of any defendant, either by plea, notice, or otherwise. However, any demand, right, or cause of action, regardless of how it may have arisen, may be asserted by way of setoff in any action to the extent of the plaintiff's demand.

History. Rev. Stat., ch. 91, § 33; C. & M. Dig., § 6978; Pope's Dig., § 8956; Acts 1939, No. 398, § 1; A.S.A. 1947, § 37-233.

Meaning of “this act”. Rev. Stat., ch. 91, codified as §§ 4-59-101(c), 16-56-10216-56-105, 16-56-108, 16-56-109, 16-56-11516-56-117, 16-56-119, 16-56-120, 16-56-12216-56-124, 16-56-126, 16-56-127, 18-11-104, 18-61-102, 18-61-105.

Case Notes

In General.

When a plaintiff brings suit upon a claim arising from a certain transaction, the defendant may successfully assert a setoff that arose from a different transaction even though the claim would have been barred by the statute of limitations when the plaintiff's cause of action accrued. Little Rock Crate & Basket Co. v. Young, 284 Ark. 295, 681 S.W.2d 388 (1984).

Construction.

Although this section and § 16-65-603(a) permit judgments to be set off against each other, § 16-63-206(c) prevents the setoff of judgments assigned to the defendant after suit has been commenced against him. Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994).

This section and § 16-65-603(a) are provisions generally authorizing that a demand, right or course of action may be asserted by setoff and also permitting money judgments to be set off (having due regard to the legal and equitable rights of all persons interested in both judgments), while § 16-63-206(c) is a specific provision governing the timeliness of setoffs, disallowing those judgments assigned to a defendant after the plaintiff commenced suit against the defendant; because these three provisions can be read in harmony, neither this section nor § 16-65-603(a) impliedly repeal § 16-63-206(c). Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994).

Alimony and Child Support.

Statute of limitations did not bar former wife's claim for unpaid alimony and child support asserted as a defensive setoff against husband's claim to one half of the sales proceeds from a judicial sale of the house, although the amount of setoff would be limited to the amount of the husband's claim and any excess would be barred. Jones v. Jones, 22 Ark. App. 179, 737 S.W.2d 654 (1987).

Counterclaims.

There is no logical reason why a setoff should not serve as an affirmative defense to a counterclaim as well as to an original complaint, a crossclaim, or a third-party claim. Turner v. Eubanks, 26 Ark. App. 22, 759 S.W.2d 37 (1988).

Assertion of a compulsory counterclaim does not act as a waiver of the statute of limitations. Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993).

16-56-103. Actions not affected by Rev. Stat., Ch. 91.

  1. The provisions of this act shall not extend to any action which is or shall be otherwise limited by any statute, but the action shall be brought within the time limited by the statute.
  2. None of the provisions of this act shall apply to suits brought to enforce payment on bills, notes, or evidences of debt issued by any bank or moneyed corporation.

History. Rev. Stat., ch. 91, §§ 18, 28; C. & M. Dig., §§ 6967, 6976; Pope's Dig., §§ 8945, 8954; A.S.A. 1947, §§ 37-214, 37-232.

Meaning of “this act”. See note to § 16-56-102.

Research References

ALR.

Application of Doctrine of Adverse Domination. 13 A.L.R.7th Art. 3 (2015).

Case Notes

Evidence of Debt.

Deposit slips were not evidences of debt. England v. Hughes, 141 Ark. 235, 217 S.W. 13 (1919).

Under the express terms of subsection (b) of this section, § 16-56-111(b) does not apply to suits to enforce payment of any bills, notes, or evidences of any debt issued by any bank. Ernest F. Loewer, Jr. Farms, Inc. v. National Bank, 316 Ark. 54, 870 S.W.2d 726 (1994).

16-56-104. Actions with limitation of one year.

The following actions shall be commenced within one (1) year after the cause of action shall accrue and not thereafter:

  1. All special actions on the case;
  2. Actions for:
    1. Assault and battery; and
    2. False imprisonment;
  3. All actions for words spoken slandering the character of another;
  4. All actions for words spoken whereby special damages are sustained; and
  5. All actions for damages suffered by a consumer as a result of any act or omission of a home inspector relating to a home inspection report.

History. Rev. Stat., ch. 91, § 7; C. & M. Dig., § 6951; Pope's Dig., § 8929; Acts 1967, No. 471, § 1; A.S.A. 1947, § 37-201; Acts 1989 (3rd Ex. Sess.), No. 46, § 7; 2003, No. 1328, § 3.

A.C.R.C. Notes. Acts 2003, No. 1328, § 5, provided:

“All regulations adopted by the Homes Inspector Advisory Board under § 17-52-107 shall remain in effect until the new Arkansas Inspector Registration Board adopts regulations, unless the regulations conflict with this act.”

Publisher's Notes. With regard to the words “special actions on the case”, see ARCP 2, which provides for one form of action.

Acts 1989 (3rd Ex. Sess.), No. 46, § 8, provided that § 7 of the act does not apply to litigation pending before the effective date of the act.

Amendments. The 2003 amendment added (5); and made related and stylistic changes.

Cross References. Arkansas Home Inspectors Registration Act, § 17-52-301 et seq.

Research References

ALR.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time of occurrence of negligent act or omission. 11 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time of occurrence of sustaining damage or injury and other theories. 12 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Statement of rule and application of rule to providing client with allegedly negligent advice or failing to advise. 13 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Application of rule to conduct of litigation and delay or inaction in conducting client's affairs. 14 A.L.R.6th 1.

Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient's cause of action. 14 A.L.R.6th 301.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Application of rule to property, estate, corporate, and document cases. 15 A.L.R.6th 427.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Application of rule to negligent misrepresentation, failure to supervise junior counsel, conflict of interest, billing disputes, and unspecified acts of negligence. 16 A.L.R.6th 653.

When statute of limitations begins to run in case of dental malpractice. 17 A.L.R.6th 159.

Fraud, Misrepresentation, or Deception as Estopping Reliance on Nonmedical Malpractice Statutes of Repose. 98 A.L.R.6th 417 (2014).

Accrual of Claims for Continuing Trespass or Continuing Nuisance for Purposes of Statutory Limitations. 14 A.L.R.7th Art. 8 (2015).

U. Ark. Little Rock L.J.

Survey, Family Law, 12 U. Ark. Little Rock L.J. 631.

Case Notes

Purpose.

The purpose of a statute of limitations is to encourage the prompt filing of claims by allowing no more than a reasonable time within which to make a claim so a defendant is protected from having to defend an action in which the truth-finding process would be impaired by the passage of time. McEntire v. Malloy, 288 Ark. 582, 707 S.W.2d 773 (1986).

Alienation of Affections.

Prior to the 1967 amendment, this section did not apply in a suit for alienation of affections, the court holding that there was a clear distinction between the two separate torts of alienation of affection and criminal conversation. Gibson v. Gibson, 240 Ark. 827, 402 S.W.2d 647 (1966).

Plaintiffs' suit for alienation of a child's affection was barred by this section since the suit was filed well beyond the one year limit. Orlando v. Alamo, 646 F.2d 1288 (8th Cir. 1981)Criticized byPoindexter v. Armstrong, 934 F. Supp. 1052 (W.D. Ark. 1994).

Assault and Battery.

Cause of action not barred by one year statute of limitation, but subject to three year statute of limitation. St. Louis, I. M. & S. R. Co. v. Mynott, 83 Ark. 6, 102 S.W. 380 (1907); Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884 (1956).

An action for damages for shooting another person is an assault and battery and barred in one year even though there could have been a conviction for a higher crime. McAlister v. Gunter, 164 Ark. 611, 262 S.W. 636 (1924).

Where no special relationship existed between plaintiff and defendant and damages claimed by plaintiff were the result of alleged assault and battery, action is governed by the one year statute of limitations. Tollett v. Mashburn, 183 F. Supp. 120 (W.D. Ark. 1960), aff'd, 291 F.2d 89 (8th Cir. Ark. 1961).

Where the plaintiff was severely beaten by her husband in 1982, but did not discover the extent of her injuries until 1984, and she filed a personal injury action in 1985, the statute of limitations began to run when the battery was allegedly committed and the judge was correct in dismissing the action. McEntire v. Malloy, 288 Ark. 582, 707 S.W.2d 773 (1986).

Action for civil damages arising from a shooting involved a battery, not a trespass, and was barred when not brought within the limitations period. Andrews v. McDougal, 292 Ark. 590, 731 S.W.2d 779 (1987).

Allegations that a doctor had improperly touched, examined, and otherwise fondled plaintiffs' breasts during a physical examination did not allege a complaint of battery, governed by the one-year statute of limitations in this section, but stated a cause of action for the tort of outrage, which is governed by the three-year statute of limitations in § 16-56-105. McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998).

Trial court properly granted summary judgment in favor of the owners of a trailer park because the gravamen of the tenant's claim was for assault and battery and/or negligence, not breach of contract, and the claim was therefore untimely where the tenant filed his complaint over four years after the incident, and no breach of contract was alleged that would bring the action under the five-year statute of limitations. The rental form, which was not specific to the tenant, contained no promise, specific or general, on the part of the owners to protect the tenant from harm. Moody v. Tarvin, 2016 Ark. App. 169, 486 S.W.3d 242 (2016).

Civil Rights Violation.

Allegation of deprivation of rights in violation of federal statute must bring action within statute of limitations most analogous to claim, which in this case would be as provided in § 16-56-105 rather than one year as provided in this section. Reed v. Hutto, 486 F.2d 534 (8th Cir. 1973).

Actions under 42 U.S.C. § 1983 accruing within a particular state are to be governed by that state's general personal-injury statute of limitations, not by statutes covering particular torts such as this one-year statute of limitations. The general personal-injury statute of limitations of three years governs § 1983 actions. Ketchum v. City of W. Memphis, 974 F.2d 81 (8th Cir. 1992).

Contractual Interference.

The limitation period for a contractual interference claim is three years, not one year. Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980).

Deceit.

Although similar to an action for defamation, an action for deceit is distinct and is covered by the three year statute of limitations, not the one year statute. Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980).

Defamation.

In an action to recover damages for unrecorded defamation of character and reputation, the complaint stated a cause of action for slander which was barred by the one year statute of limitations. Parkman v. Hastings, 259 Ark. 59, 531 S.W.2d 481 (1976).

False Imprisonment, Etc.

Under this section an action alleging false imprisonment must be commenced within one year after the cause of action accrued. Gilpin v. Tack, 256 F. Supp. 562 (W.D. Ark. 1966).

Complaint asserting false imprisonment, assault and battery, and intentional infliction of mental and emotional distress was barred by the one year statute of limitations applicable to actions for false imprisonment and for assault and battery, and since no facts were alleged that would make the assertion of mental and emotional distress anything more than an element of damage flowing from the imprisonment and mistreatment, the same one year statute would apply. Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982).

Husband and Wife.

Where wife's cause of action is barred by the statute of limitations, her husband's claim for damages based on wife's cause of action is also barred. Tollett v. Mashburn, 183 F. Supp. 120 (W.D. Ark. 1960), aff'd, 291 F.2d 89 (8th Cir. Ark. 1961).

Invasion of Privacy.

Only torts not enumerated in this section have the three year limitation period of § 16-56-105. The reason there must be a short limitation period of one year for actions based on spoken words which allegedly constitute invasion of privacy is simple: there is no written proof of the claim and such an action ought to be quickly resolved. This effects the underlying purpose of statutes of limitations; that is, to settle claims within a reasonable period of time after they arise and while the evidence is fresh in the witnesses' minds. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984).

Malpractice.

The statute of limitations begins to run at the time the act of malpractice occurs, not from the time it is discovered. Courtney v. First Nat'l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989).

Personal Injuries.

An action by a husband for damages suffered in consequence of wrongful injury to his wife is not barred in one year. Emrich v. Little Rock Traction & Elec. Co., 71 Ark. 71, 70 S.W. 1035 (1902).

An action by a parent for damages for seduction of child is tort action for personal injuries, and the one-year statute does not apply. Breining v. Lippincott, 125 Ark. 77, 187 S.W. 915 (1916).

Slander.

Subdivision (4) provides that actions for slander shall be commenced within one year after the cause of action accrues, which is the time of publication. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988).

Plaintiffs' slander claim was time-barred where it was not brought within one year of publication and where the plaintiffs presented no evidence that the defendants acted to fraudulently conceal the allegedly slanderous statement. Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997).

Employee's complaint, filed on January 24, 2008, alleged that the slanderous statements were made on or about January 15, 2006; because the complaint was filed more than one year after the occurrence of the allegedly slanderous statements, the employee's defamation claim against the partnership was barred by the statute of limitations. Roeben v. BG Excelsior Ltd. P'ship, 2009 Ark. App. 646, 344 S.W.3d 93 (2009).

Special Actions on the Case.

The words “all special actions on the case” are limited to actions for criminal conversation. Emrich v. Little Rock Traction & Elec. Co., 71 Ark. 71, 70 S.W. 1035 (1902). See also Cockrill v. Cooper, 86 F. 7 (8th Cir. 1898).

Wrongful Killing.

This section has no applicability to an action brought under § 16-62-101 for wrongful killing. Saint Louis, I.M. & S. Ry. v. Robertson, 103 Ark. 361, 146 S.W. 482 (1912).

Cited: Heuer v. Basin Park Hotel & Resort, 114 F. Supp. 604 (W.D. Ark. 1953); Crawford v. General Contract Corp., 174 F. Supp. 283 (W.D. Ark. 1959); Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970); Martin v. Georgia-Pacific Corp., 568 F.2d 58 (8th Cir. 1977); Phillips v. Sugrue, 800 F. Supp. 789 (E.D. Ark. 1992); Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993); O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997); Miller v. Compton, 122 F.3d 1094 (1997).

16-56-105. Actions with limitation of three years.

The following actions shall be commenced within three (3) years after the cause of action accrues:

  1. All actions founded upon any contract, obligation, or liability not under seal and not in writing, excepting such as are brought upon the judgment or decree of some court of record of the United States or of this or some other state;
  2. All actions for arrearages of rent not reserved by some instrument in writing, under seal;
  3. All actions founded on any contract or liability, expressed or implied;
  4. All actions for trespass on lands;
  5. All actions for libels; and
  6. All actions for taking or injuring any goods or chattels.

History. Rev. Stat., ch. 91, § 6; C. & M. Dig., § 6950; Pope's Dig., § 8928; A.S.A. 1947, § 37-206.

Research References

ALR.

Insurance agents or brokers as professionals or nonprofessionals for purposes of malpractice statutes of limitations. 121 A.L.R.5th 365.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time of occurrence of negligent act or omission. 11 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time of occurrence of sustaining damage or injury and other theories. 12 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Statement of rule and application of rule to providing client with allegedly negligent advice or failing to advise. 13 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Application of rule to conduct of litigation and delay or inaction in conducting client's affairs. 14 A.L.R.6th 1.

Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient's cause of action. 14 A.L.R.6th 301.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Application of rule to property, estate, corporate, and document cases. 15 A.L.R.6th 427.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence-View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Application of rule to negligent misrepresentation, failure to supervise junior counsel, conflict of interest, billing disputes, and unspecified acts of negligence. 16 A.L.R.6th 653.

When statute of limitations begins to run in case of dental malpractice. 17 A.L.R.6th 159.

Application of Relation Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Motor Vehicle Accident or Injury Cases: Individual Drivers, Parents, Owners or Lessors, and Passengers. 97 A.L.R.6th 375 (2014).

Application of Relation-Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Motor Vehicle Accident or Injury Cases: Corporations, Municipalities, Insurers, and Employers. 98 A.L.R.6th 93 (2014).

Fraud, Misrepresentation, or Deception as Estopping Reliance on Nonmedical Malpractice Statutes of Repose. 98 A.L.R.6th 417 (2014).

Application of Relation-Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Motor Vehicle Accident or Injury Cases: Estates, and Other or Unspecified Parties. 99 A.L.R.6th 1 (2014).

Application of Relation-Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Construction Cases. 104 A.L.R.6th 1 (2015).

Application of Doctrine of Adverse Domination. 13 A.L.R.7th Art. 3 (2015).

Accrual of Claims for Continuing Trespass or Continuing Nuisance for Purposes of Statutory Limitations. 14 A.L.R.7th Art. 8 (2015).

Ark. L. Notes.

Looney, When Third Means Fourth, Contract Includes Tort, and a Five-Year Statute of Limitation Actually Leaves Only Three Years or Less to File Suit: The Strange Saga of the Arkansas “Statute of Repose” in Construction Cases, 1993 Ark. L. Notes 87.

Brill, Arkansas Law of Damages, Fifth Edition, Chapter 30: Real Property, 2004 Arkansas L. Notes 9.

Ark. L. Rev.

Sales — Application of Statute of Limitations to Breach of Warranty, 5 Ark. L. Rev. 104.

Limitation of Action — Accrual of Cause of Action, 21 Ark. L. Rev. 264.

Note, The Law of Defamation: An Arkansas Primer, 42 Ark. L. Rev. 915.

Recent Developments, 49 Ark. L. Rev. 419.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds Retaliation Claims Under Arkansas Civil Rights Act Subject to Three-Year Statute of Limitations Period in Ark. Code Ann. § 16-56-105, 67 Ark. L. Rev. 193 (2014).

U. Ark. Little Rock L.J.

Arey, Bank Directors' Duties Under the Common Law of Arkansas, 11 U. Ark. Little Rock L.J. 629.

Note, Professional Malpractice — Limitation of Actions — Arkansas Extends the Occurrence Rule to Accountants and Recognizes a Tolling Provision in Attorney Malpractice Actions, 13 U. Ark. Little Rock L.J. 115.

Survey, Contracts, 14 U. Ark. Little Rock L.J. 329.

Fifteenth Annual Survey of Arkansas Law, 15 U. Ark. Little Rock L.J. 427.

Dudley, The Continuous Representation Doctrine: Must You Sue Your Lawyer While She Still Represents You?, 19 U. Ark. Little Rock L.J. 241.

Case Notes

Construction.

Summary judgment was properly granted in favor of a construction company in a negligent construction case because a lawsuit was not filed until after the three-year period in subsection (3) of this section had run; there was no evidence that the company had performed any repairs or that repairs were done on its behalf, and, even if repair work had been done on the company's behalf, the statute of limitations would have only been tolled during the period of repairs, which was not of sufficient length to render the claim timely. Without proof of the attempted repairs, the statute of repose in § 16-56-112(a) did not come into play, and there was no tolling of the three-year statute of limitations. Marshall v. Turman Constr. Corp., 2012 Ark. App. 686 (2012).

Applicability.

In an action involving fraud and a written instrument, the court looks to the gist of the action as alleged to determine which statute of limitations applies. Ernest F. Loewer, Jr. Farms, Inc. v. National Bank, 316 Ark. 54, 870 S.W.2d 726 (1994).

In a claim where it was unclear whether plaintiffs were complaining of the circumstances surrounding the execution of a 1993 agreement, or seeking to enforce a 1981 contract breached in 1996, summary judgment based on the running of the 3 year statutes of limitations was improper. Ingram v. Chandler, 63 Ark. App. 1, 971 S.W.2d 801 (1998).

Enforcement of environmental regulations intended to improve the environment for the benefit of the public are rights that belong to the public, and the Arkansas Department of Environmental Quality (DEQ) represented the public at large; therefore, the State's exemption from the statute of limitations under subsection (3) of this section did not bar the DEQ's Remedial Action Trust Fund Act, § 8-7-501 et seq., and Arkansas Hazardous Waste Management Act, § 8-7-201 et seq., claims against the customers of the corporation, which was improperly disposing of hazardous wastes. Ark. Dep't of Envtl. Quality v. Brighton Corp., 352 Ark. 396, 102 S.W.3d 458 (2003).

IIn a dispute brought by condominium owners against corporations who were successors-in-interest to the original developers, the corporations attempted to argue that the owners' constructive fraud claim was barred by the statute of limitations, however, the court found that the more specific provisions in § 18-14-403 controlled over the more general statute of limitations in this section. Nat'l Enters. v. Kessler, 363 Ark. 167, 213 S.W.3d 597 (2005).

Specific statute under the Time-Share Act (§ 18-14-403) controlled plaintiff time-share owners' claims against defendant developers, as opposed to the general limitations statute (§ 16-56-105); had the court adopted the developers' argument, it would have terminated the owners' right to seek relief before any injury was known to them, which was contrary to the General Assembly's intention to protect consumers under the Act. Office of Child Support Enforcement v. Pyron, 363 Ark. 521, 215 S.W.3d 637 (2005).

Employee's ERISA claims for benefits under 29 U.S.C.S. § 1132(a), (e)(1), and (f); penalties under § 1132(c)(1); and breach of fiduciary duty under 29 U.S.C.S. § 1105(a) and (b), were dismissed because (1) the three-year statute of limitations set forth in subdivision (3) of this section applied to the employee's claim for penalties, the employee requested the plan summary in December 2001 and again in January 2002 but waited until April 2005 to make further inquiries and another year to file a complaint, and the employee did not act with “due diligence,” to enforce her rights so she was not entitled to equitable tolling; (2) with regard to the employee's long-term disability (LTD) claim, the employee knew by December 2001 that her short-term (STD) claim had been denied, such denial served as notification to the employee that no more disability benefits would be approved, the employee should have known that LTD benefits were included and should have taken reasonable steps to enforce her claims, and the employer's failure to send the employee a plan summary did not excuse a four-year delay, so the three-year statute of limitation was not equitably tolled, and the employee's LTD claim was barred; (3) the employee's claim based on the employer's breach of fiduciary duty was also made too late because under the ERISA's statute of limitations, such claims had to be brought within three years under 29 U.S.C.S. § 1113(2); and (4) defendant's motion for judgment on the pleadings with regard to the employee's claim for STD benefits was construed as one for summary judgment and was granted because although the five-year limitations period set forth in § 16-56-111 applied to the claim, the statute of limitations was tolled because the amended claim for STD benefits related back to the original complaint under Fed. R. Civ. P. 15(c)(2), the employer offered an affidavit and documentation of its STD payments to the employee, and the employee did not respond to the employer's offer of proof. Gonser v. Cont'l Cas. Co., 515 F. Supp. 2d 929 (E.D. Ark. 2007).

Defendants' motion to dismiss plaintiffs' claims for trade secret misappropriation under § 4-75-601, intentional interference with contractual relationships or business expectancies, fraud, unjust enrichment, and civil conspiracy was denied because there were fact issues as to whether plaintiffs' claims accrued within the applicable three-year statute of limitations set forth in § 4-75-603 and this section and whether the application of the doctrine of fraudulent concealment was appropriate, and further, plaintiffs' allegations were sufficient to withstand a motion to dismiss. Roach Mfg. Corp. v. Northstar Indus., 630 F. Supp. 2d 1004 (E.D. Ark. 2009).

Accountants.

The performance of audits in consecutive fiscal years is not presumptively a course of providing professional services that would call for the application of the continuous treatment doctrine. FDIC v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).

The negligence statute of limitations applied to the clients' breach of contract action against their accountants, where the accountants' promise to represent the clients with diligence was not sufficiently specific to create a contract, and any violation of that promise was, by definition, negligence. Tony Smith Trucking v. Woods & Woods, Ltd., 75 Ark. App. 134, 55 S.W.3d 327 (2001).

Accrual.

Chicken growers' claims of fraud, promissory estoppel, unjust enrichment, and negligence against a chicken processor were properly dismissed as time-barred; the last date the growers' cause of action accrued was the date on which they were informed that they would not be receiving a new contract, rather than the date of expiration of the last contract, and the growers' claims were filed more than three years after accrual. Crutchfield v. Tyson Foods, Inc., 2017 Ark. App. 121, 514 S.W.3d 499 (2017).

Actions for Accounting.

An action for an accounting of property held by one of three purchasers as trustee, brought after the death of the trustee which was 15 years after the time of purchase, was not barred. Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402, 200 S.W. 1029 (1918).

The three year statute is applicable to an action for an accounting between partners. Williams v. Walker, 148 Ark. 49, 229 S.W. 28 (1921).

If the three year statute of limitations is applicable to a suit against a county treasurer to require an accounting of fees and emoluments, the statute begins to run not from the date when the treasurer should have filed his annual settlement but from the date he actually filed it. McCoy v. State, 190 Ark. 297, 79 S.W.2d 94 (1935).

Mother's acceptance of care for ten years did not bar her from seeking accounting, and trial court correctly applied five year, rather than three year, statute of limitations to accounting since care-giver's obligation arose from written deeds, not oral or implied promise. Cluck v. Mack, 278 Ark. 506, 647 S.W.2d 442 (1983).

Attorneys.

The statute does not begin to run against an attorney's claim for fees until the relation of attorney and client is terminated. McNeil v. Garland & Nash, 27 Ark. 343 (1871).

The statute begins to run in favor of an attorney failing to pay over money from the time demand might have been reasonably made. Whitehead v. Wells, 29 Ark. 99 (1874); Leigh v. Williams, 64 Ark. 165, 41 S.W. 323 (1897); Crissman v. Carl Lee, 132 Ark. 32, 200 S.W. 133 (1918).

The statute begins to run in favor of an attorney guilty of negligence or misconduct from the date of the offense. White v. Reagan, 32 Ark. 281 (1877)Criticized byWright v. Langdon, 274 Ark. 258, 623 S.W.2d 823 (1981).

An action to recover an attorney's fee is barred after three years. Parker v. Carter, 91 Ark. 162, 120 S.W. 836 (1909); Kinkead v. Estate of Kinkead, 51 Ark. App. 159, 912 S.W.2d 442 (1995).

The statute does not begin to run against an attorney claiming compensation for services in prosecuting a suit until the final determination of the suit. Boynton v. Brown, 103 Ark. 513, 145 S.W. 242 (1912).

Lien of attorney of estate could not be asserted eight years after land was sold, subject to lien of attorney. Tellier v. Darragh, 220 Ark. 363, 247 S.W.2d 960 (1952).

This section setting a three year limitations period governs the period for bringing attorney malpractice claims; and the cause of action arises when the alleged negligent act occurs, not when client discovers it. Cotton v. Mosele, 738 F.2d 338 (8th Cir. 1984).

The statute of limitations in an action against an attorney for negligence begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered by the client. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984); Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992).

The misconduct or negligence of an attorney triggers the statute of limitations. Rhoades v. Sims, 286 Ark. 349, 692 S.W.2d 750 (1985).

A legal malpractice claim based on the drafting of a partnership agreement in 1991 was time-barred where the complaint was filed in July, 1996. Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998).

A legal malpractice claim based on the revision of a partnership agreement on July 8, 1993 was not time-barred where the complaint was filed on July 5, 1996. Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998).

A malpractice suit alleging that the defendant attorneys breached their contract by failing to act with diligence as required by the contract is an action for negligence rather than for breach of contract, and the three year statute of limitations should apply. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998).

Court properly found that an attorney's action against a client to recover fees was not barred by the three-year statute of limitations because the client admitted that payments were made in 1998 and 2001, and each payment extended the limitations period for three years. Northwest Ark. Recovery, Inc. v. Davis, 89 Ark. App. 62, 200 S.W.3d 481 (2004).

Circuit court did not err by dismissing appellants' legal malpractice claims against their attorney, because they were barred by the three-year statute of limitations under this section; although appellants attempted to categorize the claims differently, the “gist” of their complaint was legal malpractice. The circuit court did not err in failing to apply the discovery rule, because the traditional occurrence rule applied in Arkansas; and appellants did not bring their action within three years of the last alleged negligent act. Richardson v. Madden, 2012 Ark. App. 120 (2012).

Breach of Fiduciary Duty.

In an estate dispute where a sister sued her brother, who had held a power of attorney for the father, the circuit court did not err in finding that the sister's claim for breach of fiduciary duty was barred by the three-year statute of limitations, because, inter alia, a previous appellate decision had rejected the argument that the entire length of the fiduciary relationship should be considered and the sister did not offer any authority to support her suggestion that being a signatory on a bank account gives rise to a fiduciary relationship or that any such fiduciary relationship would have extended to her. Ellis v. Thompson, 2019 Ark. App. 579, 590 S.W.3d 774 (2019).

Burden of Proof.

Where statute is pleaded in action on account, burden is on plaintiff to show it is not barred. Watkins v. Martin, 69 Ark. 311, 65 S.W. 103 (1901).

Defendant invoking this statute has the burden of proof to bring himself within its terms. Smith v. Milam, 195 Ark. 157, 110 S.W.2d 1062 (1937).

Where executor pleaded the statute of limitations as a bar to claim against decedent's estate for amount of loans made to decedent, the burden was on claimant to show that the running of the statute had been tolled or revived by payment or otherwise. Taylor v. Merchants Nat'l Bank, 236 Ark. 672, 367 S.W.2d 747 (1963).

Child Support.

This action does not apply to recovery of delinquent child support payments. Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957).

The period of time for which the mother may recover for the reasonable and definite amount she has expended for the support of the children is governed by the language of the original divorce decree and where, as in the present case, there was no provision in the original divorce decree for support, the obligation of the father was one express or implied not in writing and would therefore come within the three year statute for such definite amounts as she had expended for the support of the minor children. Wilder v. Garner, 235 Ark. 400, 360 S.W.2d 192 (1962).

Although the three year statute of limitations was applicable to a paternity proceeding which was commenced more than four years after birth of the child, the statute of limitations did not bar the entire cause of action, but only recovery of support for the period more than three years prior to the filing of the complaint. Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980).

Where mother brought action for support of illegitimate child against putative father more than five years after the child's birth, it was error to grant the father summary judgment, since the child is the real party in interest and should thus not be barred by the mother's failure to bring the action. Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981).

Cities.

Three-year statute of limitations applied to city's obligation to pay holiday compensation to its employees. City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992).

Civil Rights.

In an action for alleged deprivation of civil rights as a result of the arrest of defendant with alleged unnecessary force and violence, either the three year statute of limitations for actions founded on contract or liability, which has been construed to cover liability created by statute, or the five year general statute of limitations was applicable, and since the action was instituted within the statutory period of both statutes, it was timely. Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970)Questioned byKessel v. Schaff, 697 F. Supp. 1102 (D.N.D. 1987).

This section was the governing statute of limitations in a suit under 42 U.S.C. § 1981 for discriminatory employment practices, since 42 U.S.C. § 1981 creates statutory liabilities. Martin v. Georgia-Pacific Corp., 568 F.2d 58 (8th Cir. 1977).

Where plaintiffs alleged both class-based and incidental individual sex and race discrimination in connection with hiring, wages, promotion and job assignment, and the employment discrimination in issue was only such as would amount to a deprivation of constitutional rights, the district court correctly applied the three year limitations period. Marshall v. Kirkland, 602 F.2d 1282 (8th Cir. 1979).

Where the plaintiff brought a civil rights complaint involving the termination of the plaintiff's written employment contract, this section was the applicable statute of limitations, not § 16-56-111(a), which governs actions on written contracts. Wagh v. Dennis, 677 F.2d 666 (8th Cir. 1982).

Because 42 U.S.C. § 1983 does not contain its own statute of limitations, the general rule is to apply the state statute of limitations governing actions most analogous to the civil rights claim being asserted; therefore, in Arkansas, § 1983 claims are subject to the three year limitation found in this section. Weston v. Bachman, 682 F.2d 202 (8th Cir. 1982), cert. denied, 464 U.S. 824, 104 S. Ct. 93 (1983); Whittle v. Wiseman, 683 F.2d 1128 (8th Cir. 1982).

Trial court properly applied the three year statute of limitations of this section in dismissing civil rights action against federal employees. Roach v. Owen, 689 F.2d 146 (8th Cir. 1982).

This section was the applicable statute of limitations for a civil rights action brought pursuant to either 42 U.S.C. § 1981 or 42 U.S.C. § 1983. Gilbert v. City of Little Rock, 544 F. Supp. 1231 (E.D. Ark. 1982), aff'd in part, reversed in part, 722 F.2d 1390 (8th Cir. Ark. 1983).

This section is the appropriate statute of limitations for employment discrimination actions brought under 42 U.S.C. § 1981. McDowell v. Safeway Stores, Inc., 575 F. Supp. 1007 (E.D. Ark. 1983), aff'd, 753 F.2d 716 (8th Cir. Ark. 1985).

The limitations period in a civil rights action under 42 U.S.C. § 1983 is the state statute of limitations for personal injury actions; thus, in Arkansas the applicable period is three years. Where a federal cause of action is involved, filing a complaint with the court commences the action pursuant to Rule 3 of the Federal Rules of Civil Procedure, and tolls the statute of limitations; for purposes of the statute of limitations, a complaint is “filed” when it is lodged with the court even though it is technically deficient under local rules. Lyons v. Goodson, 787 F.2d 411 (8th Cir. 1986).

Former employee's claim of race discrimination under 42 U.S.C.S. § 1981 was governed by three-year statute of limitations applicable to personal injury actions, not the one-year statute of limitations contained in the Arkansas Civil Rights Act, § 16-123-107(c)(3), and the employer's motion to dismiss was denied; as racial discrimination was a fundamental injury to the rights of a person, 42 U.S.C.S. § 1981 claims were, in essence, personal injury claims. Thompson v. Wal-Mart Stores, Inc., 314 F. Supp. 2d 842 (W.D. Ark. 2004).

Claims parents filed under 42 U.S.C.S. § 1983, alleging, inter alia, that a school district and a vice principal committed sex discrimination and violated their son's rights under the U.S. Constitution when they failed to protect their son from attacks by other students, were not necessarily barred by the three-year statute of limitations contained in this section because some of the incidents they described in their complaint occurred more than three years before they filed their lawsuit. The parents alleged persistent harassment and discrimination which, over the course of time, rose to the level of a constitutional violation. Wolfe v. Fayetteville Ark. Sch. Dist., 600 F. Supp. 2d 1011 (W.D. Ark. 2009).

Inmate was denied in forma pauperis status because his 42 U.S.C.S. § 1983 complaint was time-barred under the applicable state law statute of limitations. Hendrix v. Vaughn, No. 09-CV-4062, 2010 U.S. Dist. LEXIS 1345 (W.D. Ark. Jan. 8, 2010).

Claims Barred.

Inmate's civil claims were properly dismissed because, treating the facts alleged as true, (1) all acts giving rise to the claims of discrimination, civil conspiracy, and outrage arose more than three years before the inmate sued, (2) a three-year statute of limitations applied to all claims, (3) the inmate was aware of those acts when they occurred, and (4) the inmate provided no non-conclusory allegations of fraudulent concealment. Hutcherson v. Rutledge, 2017 Ark. 359, 533 S.W.3d 77 (2017).

Commencement.

This section begins to run when the negligent act occurs. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989); Courtney v. First Nat'l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989).

The statute of limitations begins to run when there is a complete and present cause of action. Courtney v. First Nat'l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989).

A cause of action accrues the moment the right to commence an action comes into existence, and the statute of limitations commences to run from that time. Courtney v. First Nat'l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989).

The bank's negligence in failing to properly establish a survivorship account occurred when it issued the final certificate and the surviving joint tenant's claim began to accrue at that time. Smackover State Bank v. Oswalt, 307 Ark. 432, 821 S.W.2d 757 (1991).

The limitations period found in subdivision (3) begins to run when there is a complete and present cause of action, and, in the absence of concealment of the wrong, when the injury occurs, not when it is discovered. Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 258 (1996).

The statute of limitations applicable to the clients' malpractice action against their accountants began running, in the absence of concealment of the wrong, when the negligence occurred, not when it was discovered. Tony Smith Trucking v. Woods & Woods, Ltd., 75 Ark. App. 134, 55 S.W.3d 327 (2001).

Court did not err in denying the State's motion for a JNOV where the statute of limitations did not begin to accrue against a gas station until it learned that gasoline contamination was caused, not by it, but by another gas station. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002).

Dismissal of borrowers' claims for fraud, civil conspiracy, unjust enrichment, and violations of federal law for failure to state a claim was affirmed where it was apparent from the complaint that the applicable statutes of limitations had all run and no basis for tolling was presented. Varner v. Peterson Farms, 371 F.3d 1011 (8th Cir. 2004).

Trial court did not err in dismissing plaintiff's complaint for interference with a contractual relationship or business expectancy and breach of an implied contract as the statute of limitations was three years under this section; the cause of action arose in January 1999, when defendant left plaintiff's employment, started a directly competing business and induced plaintiff's employees and customers to leave plaintiff's business, but the complaint was not filed until August 2002. Quality Optical of Jonesboro, Inc. v. Trusty Optical, L.L.C., 365 Ark. 106, 225 S.W.3d 369 (2006).

Putative father's action for breach of contract and negligence, brought after a 2003 DNA test indicated that a 1991 test had erroneous shown that he was a child's biological father, was untimely because the occurrence rule, rather than the discovery rule, applied to this section's 3-year statute of limitations. Tate v. Lab. Corp. of Am. Holdings, 102 Ark. App. 354, 285 S.W.3d 261 (2008).

Contracts Generally.

This section applies to actions on all contracts, expressed or implied, which are not in writing and has regularly been applied to incidental obligations implied from written contracts. Scroggin Farms Corp. v. Howell, 216 Ark. 569, 226 S.W.2d 562 (1950).

Where there was no provision that caused the entire obligation to become automatically accelerated by the first default on a sales contract and subsequent defaults were within the period of this section, the statute of limitations could not be invoked as a bar to rescission. Hogue v. Pellerin Laundry Mach. Sales Co., 353 F.2d 772 (8th Cir. 1965).

The plaintiff's breach of contract claim based on an oral promise to hire her as a teacher was time barred, since this section provides for a three-year statute of limitation for oral contracts. Crutchfield v. Pulaski County Special Sch. Dist., 647 F. Supp. 884 (E.D. Ark. 1986).

Where the parties have entered into an agreement which requires a series of mutual acts, some unilateral and some bilateral in character, and have left the time of those acts open-ended, the cause of action does not accrue until one party has by word or conduct indicated to the other a repudiation of the agreement. Chadwell v. Pannell, 27 Ark. App. 59, 766 S.W.2d 38 (1989).

Trial court did not err in finding that written contract had been so altered by oral modification as to constitute a new oral contract subject to the three-year statute of limitations provided in this section, and action was therefore barred. Davis v. Patel, 32 Ark. App. 1, 794 S.W.2d 158 (1990).

A breach of contract action was barred by the statute of limitations where, by the plaintiff's own admission, she was on notice of the alleged breach in January, 1989 and the action was commenced in December, 1993. Elder v. Security Bank, 68 Ark. App. 132, 5 S.W.3d 78 (1999).

Statute of limitations found in this section did not bar an action on an indemnification provision in a contract between a general contractor and a subcontractor because the action accrued on the date that the general contractor wired a settlement to the customer, and the general contractor filed its second amended complaint against the subcontractor within five years of that date. Ray & Sons Masonry Contrs., Inc. v. United States Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003).

Where the husband of a beneficiary under her parents' first mutual wills brought a tortious interference with contract suit against the beneficiaries under a second will, that right of action accrued in November 1999 when the will-contest was filed seeking probate of decedent's second will, however, the husband did not file his suit until April 2003, and the trial court did not err in dismissing the action because the three year statute of limitations had run. Shelnutt v. Laird, 359 Ark. 516, 199 S.W.3d 65 (2004).

Where the only documents that evidenced a loan between a lender and a borrower were the cashier's check and a transaction record of partial payments that had been made, the breach of contract action by the lender was governed by the three year statute of limitations. Cobb v. Leyendecker, 89 Ark. App. 167, 200 S.W.3d 924 (2005).

Written security agreement was a sufficient acknowledgment of a valid existing debt for attorney's fees so as to start the statute of limitations running anew. However, the written acknowledgement did not transform the oral agreement for fees into a written one, and the three-year statute applicable to oral agreements under this section still applied, rather than the five-year statute for written agreements under § 16-56-111, thereby barring an attorney's claim for fees. Still v. Perroni Law Firm, 2011 Ark. 447, 385 S.W.3d 182 (2011).

Trial court properly granted a title company summary judgment on the property owners' claim where the completion and delivery of a title search created an implied or express contract, a three-year limitations period applied to the title search under this section, and the claim had been filed a month after the limitations period had run. Brooks v. Terry Abstract Co., 2014 Ark. App. 212 (2014).

Owners' argument that the limitations period did not arise until they closed on the house was rejected because the claims arose at the time the title company completed the title search and delivered its findings to the owners. Brooks v. Terry Abstract Co., 2014 Ark. App. 212 (2014).

Five-year statute of limitations for contract claims applied to an investor's amended complaint against the investor's investment account manager, rather than the three-year statute of limitations for negligence claims, because the investor pleaded a breach of contract and a specific promise; the investor alleged there was a contract between the investor and the manager, that the manager specifically promised to process an account transaction in a timely manner, that the manager breached this specific promise, and that the investor suffered damages. Farris v. Conger, 2017 Ark. 83, 512 S.W.3d 631 (2017).

—Contractual Interference.

The limitation period for a contractual interference claim is three years. Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980).

—Oral Contracts.

Where a plain reading of resolution authorizing city manager to award franchise to wrecker service indicated that the city had not contractually bound itself in writing but had only authorized the city manager to award a contract to wrecker service, and where there was no evidence that the city manager signed a written contract with wrecker service, if the parties were contractually bound at all, it was pursuant to an oral contract; thus, plaintiff's attempt to bring an action five years later was barred by the applicable three-year statute of limitations. Jenkins v. City of Little Rock, 52 Ark. App. 113, 915 S.W.2d 298 (1996).

—Real Property Improvements.

Section 16-56-112(a) clearly establishes a maximum five-year period within which an injured party can bring suit against a person who deficiently constructs or repairs an improvement to real property which commences after the substantial completion of the improvement, but, in bringing such a suit, the injured party must still bring the action within the statute of limitations for that type of cause of action. If the breach or injury occurs immediately after the completion of the improvement, the injured party must still comply with subsection (3) and bring his action within three years from when the breach occurs but not later than the five-year period provided in § 16-56-112(a). East Poinsett County Sch. Dist. No. 14 v. Union Std. Ins. Co., 304 Ark. 32, 800 S.W.2d 415 (1990).

The five-year limitations period contained in § 16-56-112(a) cannot be used to extend the three-year limitations period provided in subsection (3). East Poinsett County Sch. Dist. No. 14 v. Union Std. Ins. Co., 304 Ark. 32, 800 S.W.2d 415 (1990).

General contractor's claims against a masonry subcontractor were time-barred because the contractor filed suit after the three-year period had expired; the failure to use a bonding agent in the mortar in accordance with the manufacturer's specifications constituted a material breach of the contract and started the running of the statute of limitations. C&R Constr. Co. v. Woods Masonry & Repair, LLC, 2020 Ark. App. 105, 596 S.W.3d 35 (2020).

—Third Party Beneficiaries.

Actions by third persons based on written contracts which are made for their benefit are governed by the limitation provided by § 16-56-111(a) rather than by this section. H.B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955).

Corporations.

Action under statute making officer of corporation liable for debts of corporation upon failure to file certificate required by statute is for a statutory liability and not a penalty, and this section and not § 16-56-108 governs. Nebraska Nat'l Bank v. Walsh, 68 Ark. 433, 59 S.W. 952 (1900). See also McDonald v. Mueller, 123 Ark. 226, 183 S.W. 751 (1916); Hospelhorn v. Burke, 196 Ark. 1028, 120 S.W.2d 705 (1938).

The statute of limitations runs against the president and secretary of a corporation who have failed to file the annual statement required by law as against the claim of a particular creditor from the time when a complete cause of action exists in favor of that creditor. McDonald v. Mueller, 123 Ark. 226, 183 S.W. 751 (1916).

An action in equity by the stockholders of a corporation, against the directors for misconduct, is based on implied liability; the suit is a derivative one which must be brought within the time in which the corporation itself should have brought the suit; the minority of a stockholder will not suspend the rule. Magale v. Fomby, 132 Ark. 289, 201 S.W. 278 (1918).

An action to enforce collection of a stockholder's statutory liability incurred by reason of an assessment duly made is not a suit to enforce a penalty but is an action founded on a contract not in writing enforcible within three years. Vandover v. Lumber Underwriters, 197 Ark. 718, 126 S.W.2d 105 (1939).

Claims based on alleged statutory liability of corporate directors were barred by this section. Air Leases, Inc. v. Baker, 167 F. Supp. 145 (W.D. Ark. 1958).

Statute of limitations was not tolled as to Resolution Trust Corporation's claims against the officers or directors of a corporation as long as those officers and directors controlled the affairs of a corporation; Arkansas courts do not recognize the doctrine of adverse domination. Resolution Trust Corp. v. Armbruster, 52 F.3d 748 (8th Cir. 1995).

Counties.

A claim against a county for fees due an officer is a liability not in writing within the meaning of this section. Baugh v. Prairie County, 66 Ark. 360, 50 S.W. 876 (1899).

The statute of limitations runs in favor of counties against their ordinary indebtedness. Boone County v. Skinner-Kennedy Stationery Co., 191 Ark. 329, 86 S.W.2d 18 (1935).

Action by individual taxpayer to recover amount of county funds allegedly unlawfully withdrawn by county judge was governed by three year limitation period, since action was based on an implied contract. Ward v. Farrell, 221 Ark. 363, 253 S.W.2d 353 (1952).

Debts.

Unwritten contracts, including those for the payment of borrowed money, may have a time for maturity depending on a future event, and this statute runs from the maturity thereof. Smith v. Milam, 195 Ark. 157, 110 S.W.2d 1062 (1937).

Complaint did not show on its face that debt was barred by limitation, and where defendant's evidence showed the debt became due less than three years from filing of suit, debt was not barred since cause of action on a debt does not accrue until after its maturity. Smith v. Milam, 195 Ark. 157, 110 S.W.2d 1062 (1937).

In suit on a note, maker's claim for credit for services in effecting sale of real estate for which payee agreed to credit money on the note was not barred by this statute, because pleaded as a setoff against the note, and, also, it was a closed transaction to which this section does not apply. St. Louis Union Trust Co. v. Hammans, 204 Ark. 298, 161 S.W.2d 950 (1942).

In order to continue or revive a cause of action or remove it from bar of statute of limitation there must be either an express promise of debtor to pay the debt or an acknowledgment of debt from which a promise to pay is implied, or a conditional promise to pay the debt and evidence that the condition has been performed. Blake v. Commercial Factors Corp., 216 Ark. 664, 226 S.W.2d 986 (1950).

In determining whether there has been a sufficient acknowledgment in writing to toll the statute of limitation, the question to be determined is the intention of the debtor. The writing must show that the claim is a subsisting debt and the presumption must be clear and certain. Blake v. Commercial Factors Corp., 216 Ark. 664, 226 S.W.2d 986 (1950).

Where money was loaned on an oral agreement to repay and borrower endorsed and pledged an overdue note for a larger amount as security for the loan, endorsement of the note did not have the effect of reducing the loan to writing and the three year limitation of this section governed rather than the five year limitation of § 16-56-111(a). Shelton v. Harris, 225 Ark. 855, 286 S.W.2d 20 (1956).

Suit based on written support contract is a suit on a written instrument and is governed by the five year statute of limitations, and three year statute of limitations was not applicable. Altman v. Altman, 240 Ark. 370, 399 S.W.2d 501 (1966).

Payments on debt did not revive debts already barred by the three year statute of limitations where debtor was liable on another debt. Camp v. Nokes, 250 Ark. 819, 467 S.W.2d 730 (1971).

Three year statute of limitations on oral promise to pay commenced to run when promise was made, not when creditor paid a bank loan made to get money to loan debtor, although debtor promised to repay any interest creditor had to pay bank. Camp v. Nokes, 250 Ark. 819, 467 S.W.2d 730 (1971).

Oral agreement to assume and pay mortgage indebtedness was subject to three year statute of limitations. Hyde Wholesale Dry Goods Co. v. Edwards, 255 Ark. 211, 500 S.W.2d 85 (1973).

A debt otherwise barred by the statute of limitations can be revived by a letter in which the debtor unequivocally recognizes the indebtedness as a subsisting obligation and makes no statement repelling the presumption that he intends to pay; however, where the debtors' letter did not recognize the indebtedness as a subsisting obligation and fell far short of proving a revival by acknowledgment, collection of the debt was barred by this section. Wright v. Wright, 279 Ark. 35, 648 S.W.2d 473 (1983).

—Accounts.

To constitute a payment on an account so as to bar the running of the statute, the money or other thing must pass from the debtor to the creditor for the purpose of extinguishing the debt and the creditor must receive it for the same purpose. Pettus v. Rawls, 131 Ark. 125, 198 S.W. 874 (1917).

In an action on a written contract witnessed by correspondence, the five year statute of limitations applies though an account is filed specifying the items on which the three year statute would have applied if the action had been brought on the account. Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922).

An action on an oral guaranty of an open account is barred after three years from the date the last item was furnished. Goldsmith v. First Nat'l Bank, 169 Ark. 1162, 278 S.W. 22 (1925).

Refusal to instruct that items of debit and credit in an account, incurred more than three years prior to the suit, were barred was error where the accounts were not mutual, open and current. St. Francis Valley Lumber Co. v. Orcutt, 174 Ark. 282, 295 S.W. 713 (1927).

Letter written acknowledging debt on account was, in the absence of a plea of inability to pay or a showing that there was no time within three years from the time the letter was written when the account could have been paid, sufficient to toll the statute of limitations. Arkansas R. Co. v. New York C. R. Co., 195 Ark. 304, 111 S.W.2d 457 (1937).

In an action to recover a balance on an open account, where defendant pleaded this statute, contending that payment upon which plaintiff relied to toll this statute had been made with instructions to apply it to a separate account, while plaintiff contended that it was all a continuing account, instructions properly submitted the issues of fact involved. Thomason v. Wilcox, 201 Ark. 867, 147 S.W.2d 725 (1941).

Letter of buyer regarding buyer's account established a new period from which statute of limitations began to run. Blake v. Commercial Factors Corp., 216 Ark. 664, 226 S.W.2d 986 (1950).

Action on open account was not barred where summons was served less than three years after date of last payment on account. Bridgman v. Drilling, 218 Ark. 772, 238 S.W.2d 645 (1951).

Part payment upon an open account made after the bar of the statute has fallen is presumed to start the statute running anew in absence of circumstances indicating that the debtor did not thereby intend to recognize his obligation. Taylor v. Slayton, 231 Ark. 464, 330 S.W.2d 280 (1959).

Decedents' Estates.

The statute of limitations has no application to claims for expenses of administration where the administration is still pending. Holland v. Doke, 135 Ark. 372, 205 S.W. 648 (1918).

Claimant for services rendered to a decedent was not entitled to recover except for services rendered within three years immediately preceding the death of decedent. Beauchamp v. Jernigan, 189 Ark. 361, 72 S.W.2d 535 (1934); Peoples Nat'l Bank v. Cohn, 194 Ark. 1098, 110 S.W.2d 42 (1937); Harris v. Whitworth, 213 Ark. 480, 211 S.W.2d 101 (1948); Trotter v. Kemp, 232 Ark. 681, 340 S.W.2d 274 (1960).

Claim against a deceased's estate was barred by statute of limitation. Johnson v. Murphy, 204 Ark. 980, 166 S.W.2d 9 (1942)Questioned byStarbird v. Cheatham, 243 Ark. 181, 419 S.W.2d 114 (Ark. 1967).

Where a claim against a deceased's estate is barred by the statute of limitation unless certain payments had been made, the mere fact that the payments were entered on the account and appear as credits, is insufficient to prove that those payments were in fact made. Johnson v. Murphy, 204 Ark. 980, 166 S.W.2d 9 (1942)Questioned byStarbird v. Cheatham, 243 Ark. 181, 419 S.W.2d 114 (Ark. 1967).

Court held that none of the indebtedness of decedent to landlord was barred by the statute of limitations where the limitation had not run before decedent's death. Goins v. Sneed, 229 Ark. 550, 317 S.W.2d 269 (1958).

This section does not apply to actions against a decedent's estate, but those actions must be brought within the time limit for filing claims against the estate even though the plaintiff is looking not to the assets of the estate but to the decedent's liability insurer for payment of his judgment. Swan v. Estate of Monette ex rel. Monette, 265 F. Supp. 362 (W.D. Ark. 1967), aff'd, 400 F.2d 274 (8th Cir. Ark. 1968).

Action for breach of fiduciary duty was timely where it was instituted within three years of the first action adverse to the estate. Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997).

In a will contest, the trial court erred in imposing the constructive trust because the three-year statute of limitations for breach of a fiduciary duty expired before appellee filed his petition for a constructive trust; the limitations clock started running when the alleged undue influence occurred and not at the repudiation or disavowal of any false promise or trust (however, the setting aside of the will was affirmed). Smith v. Smith (In re Estate of Smith), 2020 Ark. App. 113 (2020).

Employment.

—Retaliation.

Employment retaliation claim under the Arkansas Civil Rights Act, § 16-123-108, was subject to the three-year limitation period applicable when a statutory claim had no limitation period under this section, rather than the one-year limitation provided in another part of the Act, § 16-123-107(c). Smith v. ConAgra Foods, Inc., 2013 Ark. 502, 431 S.W.3d 200 (2013).

Employment Contracts.

Suit by employee for wrongful discharge based on violation of written collective bargaining contract was barred by three year limitation period for suits on oral contract where contract of employment with railroad was oral. Roberts v. Thompson, 107 F. Supp. 775 (E.D. Ark. 1952)Questioned bySandobal v. Armour & Co., 429 F.2d 249 (8th Cir. 1970)Questioned by429 F.2d 249 (8th Cir. 1970).

Suit for wrongful discharge based on violation of written collective bargaining contract and written job application where contract of employment was oral would be barred by three year limitation period for oral contracts in this section, but filing of suit within three years after discharge with employee taking a nonsuit after the three years and bringing another action under § 16-56-126 was not barred. Smithey v. St. Louis S.W. Ry., 127 F. Supp. 210 (E.D. Ark. 1955), aff'd, 237 F.2d 637 (8th Cir. Ark. 1956).

Complaint against employed defendant which was filed more three years after termination of the defendant's employment was not timely filed. Tasby v. Peek, 396 F. Supp. 952 (W.D. Ark. 1975).

Claim that publication of false and defamatory statements by defendants was a wrongful interference with plaintiff's employment contract and future economic and business expectancies sounds in tort and thus must be brought within three years or it is barred. Bankston v. Davis, 262 Ark. 635, 559 S.W.2d 714 (1978).

Three-year statue of limitations set forth in this section applies to private causes of action brought pursuant to the Arkansas Minimum Wage Act, § 11-4-218(e), because § 11-4-218(e) constitutes a liability created expressly by statute, and it does not include a specific limitations provision; where a cause of action is brought pursuant to a statute that does not expressly provide a limitations period, this section is the appropriate limitations provision. Douglas v. First Student, Inc., 2011 Ark. 463, 385 S.W.3d 225 (2011).

Federal Preemption.

When a nonsuit is taken in a federal court and a new suit is begun in a state court within a year as provided in § 16-56-126, the new action is maintainable although begun more than three years after the cause accrued, as the pendency of the suit in the federal court for the same cause of action had the effect to toll the general statute. Kansas City S. Ry. v. Akin, 138 Ark. 10, 210 S.W. 350 (1919).

Where federal statute suspended the running of any existing statute of limitations applicable to violations of antitrust laws of the United States or subject to civil proceedings under any existing statute, act of suspension applied equally to private and government actions; Arkansas three year statute of limitations did not bar suit for treble damages brought by company under provisions of Robinson-Patman Price Discrimination Act. Russellville Canning Co. v. American Can Co., 87 F. Supp. 484 (W.D. Ark. 1949), rev'd, 191 F.2d 38 (8th Cir. Ark. 1951).

Federal statute of limitations rather than this section applies to an action by a trustee in bankruptcy to set aside preferential payment by the bankrupt. Nicklaus v. McClure, 244 Ark. 23, 423 S.W.2d 562 (1968).

The limitation period for actions brought under the provisions of the Federal Securities Exchange Act of 1934 or the Securities Act of 1933 is that prescribed in § 23-42-106(f) and not that prescribed by this section. Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir. Ark. 1970).

The three year limitation of this section was applicable to an action for common law fraud but not to an action for violation of § 10 of the Federal Securities Exchange Act of 1934. Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir. Ark. 1970).

Fraud and Deceit.

Where a suit is barred unless brought within three years after the cause of action accrues, yet there has been a fraudulent concealment of the cause of action, the statute is suspended until discovery of the fraud. Free v. Jordan, 178 Ark. 168, 10 S.W.2d 19 (1928).

An action for fraud and deceit is a tort and barred by the three year limitation. Air Leases, Inc. v. Baker, 167 F. Supp. 145 (W.D. Ark. 1958).

Plaintiff could not be heard to claim fraud or concealment as a bar to the statute based on an allegation in the complaint when the defendant had offered substantive proof that there was no fraud or concealment. Mining Corp. of Arkansas v. International Paper Co., 324 F. Supp. 705 (W.D. Ark. 1971).

Where the gravamen of plaintiff's complaint for damages was that the defendant fraudulently concealed the illegal nature of a loan transaction so that plaintiff would be convicted of making illegal loans, the action was subject to the three year statute of limitations for actions founded on any contract or liability, express or implied. Lane v. Graves, 525 F.2d 311 (8th Cir. 1975).

Although similar to an action for defamation, an action for deceit is distinct and is covered by a different, three year statute of limitations. Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980).

In fraud actions, for purposes of determining when the statute of limitations begins to run, parties alleging fraud are charged with knowledge of any pertinent real estate conveyances from the time the conveyances are placed in public records, since filing for public record and concealment are mutually exclusive. Hughes v. McCann, 13 Ark. App. 28, 678 S.W.2d 784 (1984).

Affirmative action on the part of the person charged with fraud to conceal a plaintiff's cause of action will toll the running of the statute of limitations. Hughes v. McCann, 13 Ark. App. 28, 678 S.W.2d 784 (1984); Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987).

Fraud suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. Hughes v. McCann, 13 Ark. App. 28, 678 S.W.2d 784 (1984); Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988); Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992); First Pyramid Life Ins. Co. of Am. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), rehearing denied, First Pyramid Life Ins. Co. v. Stoltz, 312 Ark. 95, 843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908, 114 S. Ct. 290 (1993).

The plaintiff's claim for misrepresenting arising from the alleged promise to give her a teacher's contract was time barred, where the latest possible date of any such promise would have been more than three years before the filing of the complaint. Crutchfield v. Pulaski County Special Sch. Dist., 647 F. Supp. 884 (E.D. Ark. 1986).

Where existence of cause of action has been fraudulently concealed, the statute of limitations begins to run no later than the day that the concealed matter was discovered; but concealment of facts, no matter how fraudulent or otherwise wrongful, has no effect on the running of a statute of limitations if the plaintiffs could have discovered the fraud or sufficient other facts on which to bring their lawsuit, through a reasonable effort on their part. Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987).

Fraud claim held barred. Moore v. Moore, 21 Ark. App. 165, 731 S.W.2d 215 (1987).

A cause of action for fraud is governed by this section. Ripplemeyer v. National Grape Coop. Ass'n, 807 F. Supp. 1439 (W.D. Ark. 1992).

The burden is on the plaintiff to exercise due diligence to discover the fraud if apprised of facts which should place the plaintiff on notice. Ripplemeyer v. National Grape Coop. Ass'n, 807 F. Supp. 1439 (W.D. Ark. 1992).

The statute of limitations on fraud is three years. Wages v. Robson, 148 B.R. 567 (Bankr. E.D. Ark. 1992).

There was no evidence of record that insurance company attempted to fraudulently conceal, cover-up, or misrepresent to an estate the problem of determining the proper beneficiary of an insurance policy. First Pyramid Life Ins. Co. of Am. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), rehearing denied, First Pyramid Life Ins. Co. v. Stoltz, 312 Ark. 95, 843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908, 114 S. Ct. 290 (1993).

Under Arkansas law, a cause of action for fraud is governed by a three-year statute of limitations. Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993).

While an action for fraud must be brought within three years from the date the cause of action accrues, the fraud does suspend the running of the statute of limitations and the suspension remains in effect until the party having the cause of action discovered the fraud or should have discovered it by the exercise of reasonable diligence. Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993).

The plaintiff's misrepresentation and/or constructive fraud claims were time barred where, by their own admission, plaintiffs knew the contract terms were being changed by defendant to their detriment more than three years prior to the filing of the suit. Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993).

In an action for fraud or misrepresentation the statutory limitation period begins to run when the wrong occurs, not when it is discovered; in the absence of purposeful concealment of the wrong, the statute of limitations is not tolled. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994).

Where the dates on which defendant's alleged misrepresentations were made were one month apart, the latter date was controlling for purposes of the running of the statute of limitations. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994).

Where defendant did nothing to prevent plaintiff from discovering the falsity of his reputed representation that touching her breasts was necessary to a lymph node examination, plaintiff failed to show an affirmative act of concealment, and her cause of action advanced under either a medical injury or invasion of privacy theory accrued on her last treatment date. Norris v. Bakker, 320 Ark. 629, 899 S.W.2d 70 (1995).

Farmer's action for fraud against a corporation was not barred by the statute of limitations because it was filed within three years of the last time the corporation made a fraudulent misrepresentation to the farmer. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002).

Summary judgment was properly awarded to bank in customer's action for conversion, negligence, breach of fiduciary duty, civil conspiracy, constructive fraud, and fraudulent concealment where the action was barred by the three-year statute of limitations; the bank did not commit any act of fraud that would toll the running of the statute of limitations. Technology Partners, Inc. v. Regions Bank, 97 Ark. App. 229, 245 S.W.3d 687 (2006).

An unattested notation on the margin of a document was insufficient to extend the maturity date of the bonds at issue, and the bonds matured at the latest in 1954 and were purchased by the holder in 1974, 20 years after their maturity date, so any remaining claims would have to have been brought before the bonds became unenforceable. The holder did not contact the bank until 1984, 30 years after the maturity date and well after any applicable statute of limitations periods; therefore, the holder was barred by the three year statute of limitations under this section from bringing any of his breach of fiduciary duty, fraud, conversion, or negligence claims. Wilkins v. U.S. Bank, N.A., 514 F. Supp. 2d 1120 (W.D. Ark. 2007).

In a case arising out of a real property transaction, a fraud action was barred by the three-year statute of limitations because the cause of action arose when a deed was executed in 1996, and there was no evidence of fraudulent concealment to toll the limitations period. Riddle v. Udouj, 99 Ark. App. 10, 256 S.W.3d 556 (2007), aff'd, 371 Ark. 452, 267 S.W.3d 586 (2007).

Dismissal of appellant's tort action was appropriate because the action was barred by the statute of limitations. Appellant had plenty of time and the opportunity after she should have, by reasonable diligence, discovered the asserted fraud to bring suit and to counter the defense of release with the present allegation that it had been fraudulently obtained. Pambianchi v. Howell, 100 Ark. App. 154, 265 S.W.3d 788 (2007).

Agent's claim against an insurance company for making false representations was barred by the three-year statute of limitations because the limitations period began to run when the agent received a letter from the company notifying the agent that it wished to terminate the agent's contract. Gunn v. Farmers Ins. Exch., 2010 Ark. 434, 372 S.W.3d 346 (2010).

In an action by a solicitor against a contractor and others, the trial court did not err in refusing to dismiss the solicitor's fraud claim as time-barred because the relevant dates of the alleged fraud, fraudulent concealment, or the solicitor's discovery of the fraud, from which the trial court could rule on the statute-of-limitations defense as a matter of law, were not discernible from the complaint. Nobles v. Tumey, 2010 Ark. App. 731, 379 S.W.3d 639 (2010).

Trial court did not err in granting a law firm's partial motion for summary judgment based on the three-year statute of limitations under subdivision (1) of this section, and dismissing an attorney's counterclaim for constructive fraud because the firm presented evidence that it was unaware of an erroneous fee percentage until after the litigation began, and the attorney failed to meet proof with proof. Grayson & Grayson, P.A. v. Couch, 2012 Ark. App. 20, 388 S.W.3d 96 (2012).

Goods and Chattel.

The statute of limitations does not run against the plaintiff in a replevin suit if he was a minor at the time of the commencement of the suit. Phipps v. Martin, 33 Ark. 207 (1878).

The statute does not begin to run against an action for the recovery of property fraudulently concealed until the fraud is discovered. Conditt v. Holden, 92 Ark. 618, 123 S.W. 765 (1909).

A bill of lading for shipping is a contract in writing, and where a carrier sues the shipper for a balance due under it, the five year statute of limitations applies. Missouri Pac. R.R. v. Pfeiffer Stone Co., 166 Ark. 226, 266 S.W. 82 (1924).

Where goods were taken upon arrival by company other than consignee and warehouse receipts were delivered to unauthorized person, there was a conversion, and action by shipper after more than three years from the taking of the goods and the delivery of the warehouse receipts was barred by this statute. Meacham v. Mid-South Cotton Growers Ass'n, 196 Ark. 78, 115 S.W.2d 1078 (1938).

Statute of limitations begins to run in favor of person charged with converting chattels at the time when the conversion takes place. Thomas v. Westbrook, 206 Ark. 841, 177 S.W.2d 931 (1944).

Action by assignee of note secured by chattel mortgage against maker of the note and third party who had converted the chattels was not a suit on a note nor a suit to foreclose a mortgage, but a suit for conversion subject to the limitation provided by this statute rather than the five year statute of limitations. Thomas v. Westbrook, 206 Ark. 841, 177 S.W.2d 931 (1944).

Where a producer wrongfully sold equities of redemption in warehouse receipts to two purchasers, and the second purchaser buys in good faith without notice of prior sale and redeems the receipt before the first purchaser demands the receipts, an action brought four years after notice of purchaser's redemption was barred by the statute of limitations. Scroggin Farms Corp. v. McFadden, 165 F.2d 10 (8th Cir. 1948).

Suit by assignee of stored goods to recover for cotton taken by subsequent assignee of original assignor was a suit for conversion and not for violation of contract, and therefore this section and not § 16-56-111(a) applies. Scroggin Farms Corp. v. Howell, 216 Ark. 569, 226 S.W.2d 562 (1950).

In a replevin action to recover personal property that remained on real property that was sold at a foreclosure sale, the circuit court did not err by finding that the replevin claim was not barred by the three-year statute of limitations in subdivision (6) of this section because the evidence supported a finding that defendants' possession of the front end loader was not adverse; one defendant and another witness testified they had told plaintiff's owner that he could retrieve the personal property after the sale of the real property, and emails between the parties showed that defendant recognized plaintiff's ownership interest in the property. Hermitage Newark, LLC v. Ark. Sand Co., 2020 Ark. App. 214 (2020).

—Bailments.

Statute does not run against a bailee until he does some act inconsistent with the relation. Chapman v. Hudson, 46 Ark. 489 (1885).

In bailments, an action for the property does not accrue nor the statute of limitations begin to run until demand is made therefor and delivery is refused. Lee County Nat'l Bank v. Hughes, 165 Ark. 493, 265 S.W. 50 (1924).

Where relationship of bailor and bailee existed between shipper and warehouse company, delivery of warehouse receipts to unauthorized person would be a severance of that relationship, and statute of limitations against shipper's cause of action would begin to run as of the date the receipts were delivered. Meacham v. Mid-South Cotton Growers Ass'n, 196 Ark. 78, 115 S.W.2d 1078 (1938).

Where there has been a loan of a chattel for an indefinite period, the statute of limitations does not run against the bailor until a repudiation of his title is brought home to him. Shewmake v. Shifflett, 205 Ark. 875, 171 S.W.2d 309 (1943).

—Conversion.

The statute of limitations for conversion of personal property and the running of time for adverse possession are the same. Johnson v. Gilliland, 320 Ark. 1, 896 S.W.2d 856 (1995).

Implied Liability.

Implied obligations arising from mere acceptance of a deed are controlled by this section. Dismukes v. Halpern, 47 Ark. 317, 1 S.W. 554 (1886); Matthews v. Simmons, 49 Ark. 468, 5 S.W. 797 (1887). See also Percy v. Cockrill, 53 F. 872 (8th Cir. 1893).

A right of action by a joint maker of a note who paid it for contribution is based on an implied obligation and is barred in three years from the time payment was made. Hazel v. Sharum, 182 Ark. 557, 32 S.W.2d 315 (1930).

In action for breach of implied warranty in sale of goods, statute of limitation begin to run from the date of sale and delivery of goods. Peterson v. Brown, 216 Ark. 709, 227 S.W.2d 142 (1950).

Where owner of cafe shot and injured customer, cause of action of customer was governed by three year limitation of this section as founded on an implied liability growing out of the proprietor-invitee relationship rather than the one year limitation of § 16-56-104 governing assault and battery. Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884 (1956).

Action fell within the implied obligation or liability provisions of this section. Carroll County v. Eureka Springs School Dist. # 21, 292 Ark. 151, 729 S.W.2d 1 (1987).

Insurance.

Where no time limit for making proof of disability is contained in insurance policy, proof of disability may be made at any time within this statute. National Reserve Life Ins. Co. v. Cook, 194 Ark. 433, 108 S.W.2d 471 (1937).

As to all invalid warrants shown by any settlement to have been paid more than three years prior to the date suit was filed to recover the same, the cause of action was barred. Fidelity & Casualty Co. v. State ex rel. Columbia County, 197 Ark. 1027, 126 S.W.2d 293 (1939).

Limitations against action by excess liability insurance carrier against primary insurer did not begin to run until settlement payment was made. Trinity Universal Ins. Co. v. State Farm Mut. Auto Ins. Co., 246 Ark. 1021, 441 S.W.2d 95 (1969).

Where the insurance carrier paid the insured for losses, in a damage suit filed by the insured the insurance carrier could not be substituted as plaintiff more than three years after the insurance claim was paid and after the three year statute of limitations had run. Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910 (1971).

The theory of subrogation being that the subrogee steps into the shoes of subrogor, he takes subject to all defenses which the third party could have asserted against the subrogor, including the statute of limitations. Williams v. Globe Indem. Co., 507 F.2d 837 (8th Cir. 1974), cert. denied, 421 U.S. 948, 95 S. Ct. 1679 (1975).

The equitable duty to reimburse, when an insured settles with a tortfeasor and thereby destroys the insurer's subrogation interest, is a liability implied by law with a three year limitations period. Provident Life & Accident Ins. Co. v. Williams, 858 F. Supp. 907 (W.D. Ark. 1994).

Insured's bad faith and negligence claims against insurer accrued when judgment was entered against her in the underlying state court action. Carpenter v. Automobile Club Interinsurance Exch., 58 F.3d 1296 (8th Cir. 1995).

The statute of limitations for an insurance agent's negligence commences at the time the negligent act occurs. Calcagno v. Shelter Mut. Ins. Co., 55 Ark. App. 321, 934 S.W.2d 548 (1996), aff'd, 330 Ark. 802, 957 S.W.2d 700 (1997).

In actions based on negligence, a subrogee insurance company is subject to the same three-year statute of limitations period as its insured. Shelter Ins. Co. v. Arnold, 57 Ark. App. 8, 940 S.W.2d 505 (1997).

Insurance underwriter's negligence claim against its agent, arising from the agent's issuance of a general liability policy to an Alabama motel in violation of the parties' binding authority agreement, was time-barred under this section because the underwriter filed its suit more than three years after the date the agent acted negligently by issuing the policy. Certain Underwriters at Lloyds v. Regions Ins., Inc., 613 F. Supp. 2d 1050 (E.D. Ark. 2009).

Insurance underwriter's equitable indemnification claim against its agent was not time-barred under this section: (1) the equitable indemnification claim arose from the fact that the underwriter paid settlements in two lawsuit filed against an insured motel after the agent, which had issued a general liability policy to the motel in violation of the parties' binding authority agreement, refused to provide defense and indemnification in the suits; (2) the underwriter's claim did not accrue until it actually paid to settle the suits; and (3) the equitable indemnification claim was timely asserted because the underwriter filed its suit less than three years after it tendered the settlement payments. Certain Underwriters at Lloyds v. Regions Ins., Inc., 613 F. Supp. 2d 1050 (E.D. Ark. 2009).

Insured's unjust enrichment and civil conspiracy claims, which alleged a conspiracy to sell insurance policies of little or no value through a non-qualifying group, were untimely; the insured filed suit in October 6, 2014, he alleged the marketing, underwriting, and purchase of his policy occurred in 2001, and no tolling could have been found after 2006 because obtaining the policy for review or simply contacting the state's director of insurance any time after the 2006 coverage denials would have revealed the infirmities the insured alleged as the basis for his claims. Graham v. Catamaran Health Sols. LLC, No. 16-1161, 2017 U.S. App. LEXIS 16133 (8th Cir. Aug. 23, 2017).

Knowledge.

Ignorance of the existence of a cause of action does not suspend the running of the statute of limitations in absence of fraudulent concealment by the defendant. Morrilton Homes, Inc. v. Sewer Improv. Dist., 226 Ark. 22, 287 S.W.2d 581 (1956); Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996).

Where the appellees admitted they attempted to complete the novation of contracts as secretly as possible, the statute did not begin to run until the appellants had or, by the exercise of due diligence, should have known, the facts that gave rise to their cause of action. Klein v. Jones, 980 F.2d 521 (8th Cir. 1992).

Libel.

Under this section an action alleging libel under Arkansas law must be brought within three years after the cause of action accrued. Gilpin v. Tack, 256 F. Supp. 562 (W.D. Ark. 1966).

Malpractice.

In accountant malpractice cases, the statute of limitations begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered. Ford's Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989).

The limitations period for professional negligence is three years, and it begins to run at the time the tortious conduct is committed. FDIC v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).

Three years is the applicable statute of limitations for breach of fiduciary duty and malpractice actions. Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993).

Although the trial court determined that the five year statute of limitations applicable to written contracts applied, where the trial court based its finding of liability against the defendant completely upon the finding that defendant breached his fiduciary duty to plaintiffs as their attorney and thereby committed malpractice, the applicable statute of limitations as to defendant was three years. Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993).

The statute of limitations in legal malpractice cases begins to run, in the absence of concealment of the wrong, when the act of negligence occurs, not when it is discovered. Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993).

The three-year limitation period was tolled during the time the trial court's ruling was in effect until the court of appeals' decision reversing the trial court's ruling was delivered. Pope County v. Friday, Eldredge & Clark, 313 Ark. 83, 852 S.W.2d 114 (1993).

The limitation period begins to run in malpractice cases upon the occurrence of the last element essential to the cause of action. Wright v. Compton, Prewett, Thomas & Hickey, 315 Ark. 213, 866 S.W.2d 387 (1993).

The statute of limitations for an insurance agent commences at the time the negligent act occurs, in keeping with the traditional rule in professional malpractice cases. Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996).

Statute of limitations applied to an action against a law firm handling the probate of an estate despite the fact that the firm signed a tolling agreement. Stoltz v. Friday, 325 Ark. 399, 926 S.W.2d 438 (1996).

This section applies to actions against an attorney for negligence; the period begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when the negligence is discovered. Smothers v. Clouette, 326 Ark. 1017, 934 S.W.2d 923 (1996).

Arkansas has long adhered to the traditional occurrence rule in legal malpractice; thus, where plaintiff did not allege that her attorneys concealed their alleged wrongdoing, and she was not prevented from bringing suit, the trial court's finding that her case was barred by the three-year statute of limitations and the grant of summary judgment was correct. Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998).

Directing of a verdict in favor of employee on the employers' issue of accounting malpractice was inappropriate as Arkansas adhered to the “occurrence rule” and there was evidence that the employers did not accept the employee's tax advice until March 2000; if that was the case, then the action would not have been barred by the three-year statute of limitations. Morrow Cash Heating Air, Inc. v. Jackson, 96 Ark. App. 105, 239 S.W.3d 8 (2006).

Trial court properly dismissed a client's complaint against an attorney for breach of contract, deception, slander, and defamation of character because the three-year statute of limitations barred the complaint. The “gist” of the client's complaint was that the attorney failed to act diligently and timely file a proper appeal on the client's behalf; such inaction was clearly negligent. Kassees v. Guy Randolph Satterfield & Satterfield Law Firm, PLC, 2009 Ark. 91, 303 S.W.3d 42 (2009).

When the client sued the attorney in connection with the execution of a prenuptial agreement, her complaint was barred by the three-year statute of limitations for legal-malpractice claims under this section. There was no written contract to bring the action under the five-year statute of limitations set forth in § 16-56-111. Pounders v. Reif, 2009 Ark. 581 (2009).

Clients' legal malpractice suit under § 16-22-306 for failure of a law firm to properly file a medical malpractice suit was barred by the three-year statute of limitations under subdivision (3) of this section because, under the occurrence rule, the clients' legal malpractice action ran no later than three years after the last day that their medical malpractice action could have been properly instituted. Rice v. Ragsdale, 104 Ark. App. 364, 292 S.W.3d 856 (2009).

After the Arkansas Supreme Court held in 2015 in Earls that the summons used in debt collection cases by a law firm was defective, and then plaintiff filed suit in 2015 against the law firm arising out of its previous debt collection service agreement with the law firm, the circuit court properly granted summary judgment on the basis that plaintiff's claims were barred by the statute of limitations. In legal malpractice cases, Arkansas follows the occurrence rule that claims accrue when the negligence occurs and not when it is discovered. The malpractice claim arose from the use of the defective summons, last used in 2011, and not from the Earls case, and at no point was plaintiff prevented from filing suit. Manuel Bail Bond Co. v. Hosto & Buchan, PLLC, 2018 Ark. App. 631, 567 S.W.3d 542 (2018).

“Gist” of plaintiff's claim was legal malpractice rather than contract, and thus, the three-year statute of limitations that applied to legal-malpractice actions controlled; the debt-collection agreement was an ancillary contract for representation, and plaintiff failed to plead a viable cause of action regarding a breach of a separate and distinct written contract. Manuel Bail Bond Co. v. Hosto & Buchan, PLLC, 2018 Ark. App. 631, 567 S.W.3d 542 (2018).

Miscellaneous.

When the right to a public office is contested, the right to receive the emoluments of the office depends upon an adjudication of the title which is made in the contest suit and until the title to the office is adjudicated, the right of action to recover emoluments is not mature, and a suit to collect the emoluments is not barred by limitations when brought within three years of the final adjudication of the title to the office. Bowen v. Lovewell, 119 Ark. 64, 177 S.W. 929 (1915).

The three year statute of limitations controls in an action by a surety to compel contribution by a cosurety. Cooper v. Rush, 138 Ark. 602, 212 S.W. 94 (1919); Pennington v. Karcher, 171 Ark. 828, 286 S.W. 969 (1926).

A suit on a highway contractor's bond to pay subcontractor may be maintained at any time within three years after the completion of the work where the sub-contract was not in writing. Tolbert Bros. & Co. v. Molinder, 178 Ark. 888, 12 S.W.2d 780 (1929).

Person holding and having physical possession of bank stock endorsed in blank by the person to whom issued acquired title by adverse possession three years after the person had notice of the adverse claim to title and title in the adverse possession 18 years later related back to the beginning of the three-year period, and dividends all belonged to the adverse possessor. Henderson v. First Nat'l Bank, 254 Ark. 427, 494 S.W.2d 452 (1973).

Plaintiff's claims were time-barred because his complaint was filed on the first day of the fourth year after the alleged wrongful release of plaintiff's records. Morton v. City of Little Rock, 934 F.2d 180 (8th Cir. 1991).

Occurrence Rule.

Where two cities solicited bids for the construction of the wastewater facility, engineers prepared a soil report on September 30, 2001; a contractor was the successful bidder for the construction project and contracted with the cities on June 7, 2002. When the contractor filed suit against the engineers on May 24, 2005 for professional negligence in the preparation of the soil report, the circuit court correctly applied the occurrence rule to determine that the professional negligence claim against the engineers was barred by the three-year statute of limitations set forth in this section. Bryan v. City of Cotter, 2009 Ark. 457, 344 S.W.3d 654 (2009).

Pleadings.

It was held that, three years having elapsed between the time the plaintiff's cause of action accrued and the time the complaint was amended to make the defendant a party, the action against him was barred. Tedford Auto Co. v. Chicago, R.I. & P. Ry., 116 Ark. 198, 172 S.W. 1006 (1915).

In an action by a company, a counterclaim was not barred because the cause of action thereon arose over three years before the complaint was filed if it was not barred when the plaintiff's cause of action accrued. Missouri & N.A. Ry. v. Bridwell, 178 Ark. 37, 9 S.W.2d 781 (1928)Questioned byLittle Rock Crate & Basket Co. v. Young, 284 Ark. 295, 681 S.W.2d 388 (1984).

In an action for assault, a cause of action for slander which was barred by statute before the assault could not be interposed as a counterclaim. Collier v. Thompson, 180 Ark. 695, 22 S.W.2d 562 (1929).

An amendment to a complaint filed after the statute had run was allowed where the effect of the amendment was only to correct the name of the party originally sued. Evans v. List, 193 Ark. 13, 97 S.W.2d 73 (1936).

Where original complaint on open account was not barred, neither was the complaint's amendment filed more than three years after date of last payment on account, where amendment merely amplified and expanded single cause of action stated in original complaint. Bridgman v. Drilling, 218 Ark. 772, 238 S.W.2d 645 (1951).

The defense of limitations may be raised by motion to dismiss. Adams v. Greer, 114 F. Supp. 770 (W.D. Ark. 1953).

Where statute of limitations was not pleaded it could not be relied upon even though the face of the record indicated it might have been a good defense if pleaded. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969).

Where statute of limitations was pleaded and relied on by plaintiff, defendant had the right to plead and rely on any facts and circumstances which may have tolled the statute. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969).

Where the first counterclaim amended did not allege the cause of action for fraud and deceit but the later amendment at the end of the three year period stated that cause of action, the relief sought for the action was barred. Beam v. Monsanto Co., 259 Ark. 253, 532 S.W.2d 175 (1976).

Circuit court did not abuse its discretion when it dismissed a personal representative's wrongful death complaint as being untimely filed because the original pro se complaint filed by plaintiff, a nonlawyer, as the personal representative of the estate constituted the unauthorized practice of law and was a nullity and could not be amended; by the time an attorney filed a complaint, more than three years had passed since the decedent's death, and the personal representative's claims were barred by the three-year statute of limitations. Henson v. Cradduck, 2020 Ark. 24, 593 S.W.3d 10 (2020).

Where homeowners mistakenly brought suit as individuals rather than in the name of the corporation that owned the real property, the circuit court did not err in denying their motion to substitute the corporation as the real party in interest because if the circuit court had granted the motion for substitution, it would have constituted a new complaint and would have been after the statute of limitations had run; relation back did not apply. C&R Constr. Co. v. Woods Masonry & Repair, LLC, 2020 Ark. App. 105, 596 S.W.3d 35 (2020).

Property Damage.

Damages arising under a contract to permit the defendant to use the plaintiff's wall in the construction of a building are original and begin to run when the building is negligently constructed and attached to the wall, and an action for damages for the negligent construction is barred after three years. Evans v. Pettus, 112 Ark. 572, 166 S.W. 955 (1914).

The fact that the sewers are of permanent construction does not render the nuisance permanent; when a sewer system was constructed and maintained so as to constitute a nuisance, the nuisance is of a continuing or recurring nature, and an action by plaintiffs on account of the nuisance is not barred by the three year statute. Jones v. Sewer Improv. Dist. No. 3, 119 Ark. 166, 177 S.W. 888 (1915).

In an action against a railroad for damages to a dwelling from maintenance of a coal chute, the limitation began to run upon the completion of the chute. Missouri Pac. Ry. v. Davis, 186 Ark. 401, 53 S.W.2d 851 (1932); Baldwin v. Simpson, 191 Ark. 448, 86 S.W.2d 420 (1935).

Where a structure alleged to have caused diversion of water was erected more than three years before the suit was filed, the permanency of the structure is not wholly controlling. If it is of such a character that damage must necessarily result but the nature and extent of the damage may not be reasonably ascertained at the time of construction, then the damage is not original and the statute of limitations is not set in motion until the injury occurs. St. Louis S. F. R. Co. v. Spradley, 199 Ark. 174, 133 S.W.2d 5 (1939).

Suit for injury to property brought within three years after plaintiff reached age of majority was not barred under this statute where plaintiff had a homestead interest in addition to a fee estate in the property. Andrews v. Johnson, 202 Ark. 1115, 155 S.W.2d 681 (1941).

Statute of limitations from damage caused by dam or floodgate runs from when damage actually occurs. Greasy Slough Outing Club, Inc. v. Amick, 224 Ark. 330, 274 S.W.2d 63 (1954); Naylor v. Eagle, 227 Ark. 1012, 303 S.W.2d 239 (1957).

In action for damages for maintenance of a nuisance, the statute of limitations begins to run from the happening of the injury complained of. Consolidated Chem. Indus., Inc. v. White, 227 Ark. 177, 297 S.W.2d 101 (1957).

The statute of limitations began to run against an action when the damage to the land became permanent, and it was a question of fact for the jury when the damage became permanent. Sunray DX Oil Co. v. Thurman, 238 Ark. 789, 384 S.W.2d 482 (1964); Springdale v. Weathers, 241 Ark. 772, 410 S.W.2d 754 (1967).

Where gasoline retailer, having been sued for contamination of neighboring property, discovered the source of the contamination was from another gasoline retailer, the discovery rule was appropriately applied to the limitations statute, subdivision (4), applicable to the first retailer's claim against the second retailer. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002).

—Ditches, Embankments, Etc.

This section applies to suits against railroads for building levees causing an overflow of the plaintiff's land. St. Louis, Iron Mountain & S. Ry. v. Morris, 35 Ark. 622 (1880); Fordyce v. Stone, 50 Ark. 250, 7 S.W. 129 (1887); Saint Louis, I.M. & S. Ry. v. Biggs, 52 Ark. 240, 12 S.W. 331 (1889); Saint Louis, I.M. & S. Ry. v. Yarborough, 56 Ark. 612, 20 S.W. 515 (1892).

A suit for damages for obstructing ditches is barred after three years. St. Louis, Iron Mountain & S. Ry. v. Anderson, 62 Ark. 360, 35 S.W. 791 (1896).

Where the obstruction of a stream by reason of the construction of an embankment and ditch was of a permanent nature and necessarily injurious to the land of the adjacent proprietors, the damages thereby caused can be recovered only by suit brought within three years from the time the embankment and ditch were completed. Saint Louis, I.M. & S. Ry. v. Magness, 93 Ark. 46, 123 S.W. 786 (1909).

Where a company constructs a culvert so that damage to adjoining property by overflow must necessarily result and the certainty, nature, and extent of the damage may be reasonably ascertained and estimated at the time of the construction of the culvert, then the damage is original and there can be but a single recovery, and the statute of limitations against the cause of action is set in motion on the completion of the obstructing culvert. Chicago, R.I. & Pac. Ry. v. Humphreys, 107 Ark. 330, 155 S.W. 127 (1913).

Where a levee permanently obstructed the drainage of land and caused the same to overflow, and the owner of the land had knowledge of the condition, the damage was original and the cause of action therefor arose immediately upon the completion of the levee. Russell v. Board of Dirs. of Red River Levee Dist. No. 1, 110 Ark. 20, 160 S.W. 865 (1913).

Suit to enjoin obstruction and diversion of the natural flow of a creek by filling in a trestle spanning it and digging a ditch too small to accommodate the flow during heavy rains, thus causing the water to back up over the plaintiff's lands, is barred after three years from the completion of the embankment, the nuisance as well as the injuries being original and permanent. Boas v. Missouri Pac. Ry., 157 Ark. 446, 248 S.W. 283 (1923).

In a cause of action for overflow of subjacent land, where water broke through defendant's embankment and flooded the plaintiff's land, the statute began to run from the time the injury occurred. Baldwin v. Neal, 190 Ark. 673, 80 S.W.2d 648 (1935).

Where the defendant, in the exercise of the right of eminent domain, dug ditches across plaintiff's land through which polluted water flowed, it was a taking of land to the extent of a dimunition thereof on value for which plaintiff was entitled to compensation; but an action to recover damages therefor must be brought within three years of the date of the exercise of the right of eminent domain. Sewer Improv. Dist. No. 1 v. Jones, 199 Ark. 534, 134 S.W.2d 551 (1939).

Action instituted for damage allegedly caused by water overflowing plaintiff's land by reason of failure to keep ditches, culverts and drain pipes under roadbed open in two prior years was not barred by this statute, though ditches were constructed more than three years before, since damages were of a recurring nature. Missouri Pac. R.R. v. Holman, 204 Ark. 11, 160 S.W.2d 499 (1942).

Where ditch which encroached on plaintiff's land was dug five years before the suit was instituted and it was apparent at the time it was dug that the water flowing through it would widen it by erosion, the injury to the plaintiff's land was certain and permanent and the action was barred by the statute of limitations. Cox v. Berry, 233 Ark. 910, 349 S.W.2d 661 (1961).

—Dumps.

Action for damages resulting from maintenance of dump was held barred by the three year statute. Davis v. Dunn, 157 Ark. 125, 247 S.W. 793 (1923).

Evidence sufficient to find that damages to plaintiff's land from dump occurred within three years before the filing of the complaint. Consolidated Chem. Indus., Inc. v. White, 227 Ark. 177, 297 S.W.2d 101 (1957).

Limitation of claims for damages resulting from dump to the three years prior to the suit was proper. Moore v. City of Blytheville, 1 Ark. App. 35, 612 S.W.2d 327 (1981).

—Power Plants.

Where the defendant's power plant threw soot, cinders, and ashes on the plaintiff's property inflicting damages which could have been estimated and compensated at the time the injury first occurred, there was an original and permanent injury so that the statute of limitations began to run at once. Brown v. Arkansas Cent. Power Co., 174 Ark. 177, 294 S.W. 709 (1927).

Where a power plant in its operation is such that damages must necessarily result and the certainty, nature, and extent of the damage can then be reasonably ascertained and estimated, the statute of limitations begins to run at the time of the construction. Brown v. Arkansas Cent. Power Co., 174 Ark. 177, 294 S.W. 709 (1927).

—Removals from Land.

An action for taking gravel from land is barred after three years. Arkansas Power & Light Co. v. Decker, 181 Ark. 1079, 28 S.W.2d 701 (1930).

A cause of action for removal of support to the surface arose when the subsidence occurred and the plaintiffs could bring their action for injuries within the statutory period after injuries to the surface occurred, irrespective of the date of the removal of support. Western Coal & Mining Co. v. Randolph, 191 Ark. 1115, 89 S.W.2d 741 (1936).

Real Estate Interests.

The right to enforce the collection of the amount bid at a sale of real estate sold in the pursuance of a decree of foreclosure, where the sale to the bidder is not confirmed by the court, is barred by the the three year statute of limitations. Cotham v. Lucy, 115 Ark. 84, 171 S.W. 113 (1914).

Statute does not apply where plaintiff claims title to the land. Sutton v. Lee, 181 Ark. 914, 28 S.W.2d 697 (1930).

Statute limiting time for bringing an action against purchaser of land sold on judicial sale does not apply against a person in possession of property in dispute. Forbus v. Gibbs, 216 Ark. 138, 224 S.W.2d 790 (1949).

Where plaintiff, formerly under guardianship, brought an action to reform tax deeds issued to wife during guardianship and alleged that wife and stepdaughter used funds of the guardianship to purchase deeds, plaintiff was estopped to assert three year statute of limitation barring right of stepdaughter to refund, where evidence showed that action for refund had been delayed due to promise of plaintiff to will her the property. Forbus v. Gibbs, 216 Ark. 138, 224 S.W.2d 790 (1949).

When action to divest person of any title and claim to land in question was brought within three years after that person asserted claim of title, the action was within the statute of limitation on actions in contract not reduced to writing. Fuller v. Fuller, 240 Ark. 475, 400 S.W.2d 283 (1966).

Where there is no written contract for the sale of land, a cause of action for breach of the contract, if oral, was barred after three years. Booth v. Mason, 241 Ark. 144, 406 S.W.2d 715 (1966).

An action brought to enforce a trust alleged to have been created sixteen years earlier by a father's conveyance of real estate to one of his sons which was repudiated by the widow of the grantee six years prior to the bringing of the action was barred by this section. White v. McBride, 245 Ark. 594, 434 S.W.2d 79 (1968).

—Abstractors.

The right of action against an abstractor for damages resulting from errors, defects, or omissions in an abstract of title prepared by him is not and cannot be based on the written certificate attached to the abstract because the written certificate is only evidence of the provisions of the preexisting oral or implied contract of employment. Adams v. Greer, 114 F. Supp. 770 (W.D. Ark. 1953).

The right of action against an abstractor for damages resulting from errors, defects, or omissions in an abstract of title prepared by him accrues at the time of the delivery of the abstract. Adams v. Greer, 114 F. Supp. 770 (W.D. Ark. 1953).

The statute of limitations in an action brought against an abstractor for damages resulting from an omission in the abstract of title, in the absence of concealment of the wrong, begins to run when the negligence occurs, not when it is discovered. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984).

Recovery of Money.

An action to recover money paid by mistake is barred in three years. Richardson v. Bales, 66 Ark. 452, 51 S.W. 321 (1899).

An action to recover a bank deposit is barred after three years. England v. Hughes, 141 Ark. 235, 217 S.W. 13 (1919).

An action to recover money, paid out under a void contract, which had been wrongfully converted sounded purely in tort and was not within this section but was governed by § 16-56-115. Core v. McWilliams Co., 175 Ark. 112, 298 S.W. 879 (1927).

This section is applicable to a claim of a county board of education for excess commissions and interest belonging to the common school fund and improperly credited to the county general fund. County Bd. of Educ. v. Morgan, 182 Ark. 1110, 34 S.W.2d 1063 (1931), overruled, Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989).

The three year and not five year statute of limitations was applicable to suit to recover from circuit clerk excess fees and commissions above the lawful salary allowed where there was no intentional fraud, corruption, or willful diversion on the part of the clerk. State ex rel. Garland County v. Jones, 198 Ark. 756, 131 S.W.2d 612 (1939).

Action to recover from fees alleged to have been wrongfully received by sheriff of the county was, since the fees were collected more than three years before the action was instituted, barred by the three year statute. Baker v. Allen, 204 Ark. 818, 164 S.W.2d 1004 (1942).

Where a sheriff uses his office to wrongfully obtain money from person and where suit is brought to recover the money, it is an action to recover money wrongfully obtained, and after three years the statute of limitations would bar a recovery. Wrinkles v. Brown, 217 Ark. 393, 230 S.W.2d 39 (1950).

Where commissioners of sewer improvement district did not learn of sewer connections until three years after they were made, suit filed more than three years after the connection was made to recover connection charges was barred by the limitation of this section. Morrilton Homes, Inc. v. Sewer Improv. Dist., 226 Ark. 22, 287 S.W.2d 581 (1956).

An action by taxpayers to compel a county judge to reimburse the county for use of county labor and equipment on private property for private benefit was governed by this section. McGhee v. Glenn, 244 Ark. 1000, 428 S.W.2d 258 (1968).

An action by county taxpayers to recover expense money paid or obtained through mistake by a prosecuting attorney, in the absence of fraud or corruption, is an action founded upon an implied contract, not in writing, and must be commenced within three years under this section. Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980).

Evidence sufficient to support conclusion that depositor had knowledge of unauthorized withdrawals and yet failed to act within the time allowed under the statute of limitations. Cooley v. First Nat'l Bank, 276 Ark. 387, 635 S.W.2d 250 (1982).

Service of Process.

Tort claim was time-barred, even though complaint was filed in a timely manner, where plaintiff did not obtain service on defendant within 120 days pursuant to ARCP 4(i). Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997).

Negligence action for a slip and fall was improperly dismissed as being barred by the three-year limitations period because, under Ark. R. Civ. P. 15(c), an amendment correcting the name of a wrong owner as defendant related back to the original complaint in that the same allegations were made and the new owner was served within 120 days, as set forth in Ark. R. Civ. P. 4(i). Bell v. Jefferson Hosp. Ass'n, 96 Ark. App. 283, 241 S.W.3d 276 (2006).

Taxes.

Paying taxes on the lands of another under an express promise to repay entitles one to lien, but recovery is limited to three years where statute of limitations is pleaded. Person v. Cogbill, 180 Ark. 664, 22 S.W.2d 161 (1929).

A suit brought by commissioners of a road improvement district to collect taxes three years after they became delinquent was barred by limitation. Tallman v. Board of Comm'rs, 185 Ark. 851, 49 S.W.2d 1039 (1932).

Where one has mistakenly paid taxes on the property of another, the statute of limitations runs from the time of the payment. Brookfield v. Rock Island Imp. Co., 205 Ark. 573, 169 S.W.2d 662, 147 A.L.R. 451 (1943).

Tolling.

Former bank executive's annuity claims against the bank, which were barred by the three-year statute of limitations, were not saved by the doctrine of equitable tolling; while it may not have been beneficial for plaintiff as an executive officer to have filed a complaint to enforce the annuity agreement, there was no allegation that he was prevented from doing so and no allegation of fraudulent concealment. Loftin v. First State Bank, 2020 Ark. App. 66, 596 S.W.3d 16 (2020).

Tolling of Statute.

The running of the statute of limitations was tolled while default judgment was set aside; during that time, although the alleged negligent act had occurred, plaintiff had no claim against defendant, as he could have shown no injury. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989).

Lack of knowledge of a cause of action does not stop the statute of limitations from running unless there has been fraud or concealment by the person invoking the defense of limitations or if the statute is otherwise tolled. Courtney v. First Nat'l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989).

Employer's offer of employment did not induce employees to forego filing their personal injury claims, and did not bar employer's motion for summary judgment based on the statute of limitations. Burdine v. Dow Chem. Co., 923 F.2d 633 (8th Cir. 1991).

Surviving joint tenant's claim against funds in account commenced running upon the issuance of the certificate, but ceased to exist once he was paid the amount of the deposit, six months later, and the running of the statute was tolled until the probate court issued its order disallowing the accounting, therefore, the complaint, filed only two weeks after that date, was timely. Smackover State Bank v. Oswalt, 307 Ark. 432, 821 S.W.2d 757 (1991).

Where plaintiff's alleging fraud in a contract action did not fulfill their duty to exercise reasonable diligence in examining the contract they executed to uncover what they alleged was a fraudulent misrepresentation by the defendant, they could not complain on appeal that the statute of limitations should have tolled. Wilson v. GE Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992).

Where affirmative acts of concealment by the person charged with fraud prevent the discovery of that person's misrepresentations, the statute of limitations will be tolled until the fraud is discovered or should have been discovered with the exercise of reasonable diligence. Wilson v. GE Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992).

Statute of limitations was not tolled, and the statute ran before suit was filed. Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997).

The defendant jeweler was not entitled to summary judgment on the basis of the statute of limitations in an action in which the plaintiff alleged that he had switched a diamond for a cubic zirconium since such a switch, if proven, would constitute fraudulent concealment and would toll the statute. Gibson v. Herring, 63 Ark. App. 155, 975 S.W.2d 860 (1998).

Any concealment or misrepresentation did not sufficiently toll the limitations period in an action for an alleged breach of contract in connection with a mortgage payment disability insurance policy where the action was not commenced until more than three years after the plaintiff received a copy of the policy. Elder v. Security Bank, 68 Ark. App. 132, 5 S.W.3d 78 (1999).

Client's claims of legal malpractice and breach of contract against her former attorney where properly dismissed as time-barred where the client did not file suit until more than three years after all of the allegations of negligence had occurred; the client's argument that the statute was tolled until she obtained her file was refuted by the client's earlier letter to the attorney asserting negligence. Parkerson v. Lincoln, 347 Ark. 29, 61 S.W.3d 146 (2001).

Three-year statute of limitations for a legal malpractice action was not tolled by fraudulent concealment due to an incorrect statement made by attorneys regarding a tax liability letter; there was no furtively planned or secretly executed acts, nor was there an affirmative act of concealment; rather, the client failed to act with reasonable diligence when he was informed of the tax liability by the State on two different times. Delanno, Inc. v. Peace, 366 Ark. 542, 237 S.W.3d 81 (2006).

Circuit court improperly granted two attorneys summary judgment on a shareholder's legal malpractice action based on subdivision (3) of this section (Repl. 2006) where the shareholder had produced evidence that the attorneys had set up and concealed shell corporations; it was unlikely that he could have discovered the concealment of the attorneys' wrongful acts, and as a result, there was a genuine issue of fact as to whether the attorneys committed acts of fraudulent concealment that tolled the statute of limitations. Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007).

More than three years had elapsed since the commission of the alleged fraud, and thus the buyers had the burden to show that the statute of limitations in this section was tolled; however, the buyers failed to produce any evidence that the seller engaged in any act designed to conceal her alleged misrepresentation, and instead the buyers were aware of all the material facts surrounding the alleged fraud before taking possession of the land, and thus the trial court did not err in finding that the buyers' constructive fraud claim had expired. Riddle v. Udouj, 371 Ark. 452, 267 S.W.3d 586 (2007).

In a personal injury suit, when a pedestrian and his wife failed to properly serve a summons and complaint on a driver, and service was not completed within 120 days of the filing of the complaint, the complaint had to be dismissed without prejudice, but when service was not completed within the three-year statute of limitations period, the dismissal had to be with prejudice because the pedestrian and his wife failed to show fraud on the part of the driver, so the statute of limitations was not tolled. Brennan v. Wadlow, 372 Ark. 50, 270 S.W.3d 831 (2008).

Business owners' claims against auditors for fraud, constructive fraud, and professional negligence regarding a 1995 audit were time-barred by this section despite a tolling agreement signed by the auditors because the tolling agreement's purpose was to waive the statute of limitations as to claims arising out a 1994 audit and the claims with respect to the 1995 audit were not related to nor did they arise from the 1994 audit. Ernst & Young LLP v. Reid, 2010 Ark. 255 (2010).

Plaintiff's action was properly dismissed because his claims were clearly time-barred under this section and §§ 16-56-111, 4-88-115, and by failing to allege when and how he discovered defendant's alleged fraud, plaintiff failed to meet his burden under Fed. R. Civ. P. 9(b), (f) of sufficiently pleading that the doctrine of fraudulent concealment saved his otherwise time-barred claims. Summerhill v. Terminix, Inc., 637 F.3d 877 (8th Cir. 2011).

Claims by mineral lessors, including under the Arkansas Deceptive Trade Practices Act, § 4-88-101 et seq., were properly dismissed as time-barred under this section and § 4-88-115 where they were brought more than five years after the leases were executed; fraud was not sufficiently shown for purposes of tolling. Hipp v. Vernon L. Smith & Assocs., 2011 Ark. App. 611, 386 S.W.3d 526 (2011).

Action alleging conspiracy to conceal evidence and malicious prosecution was time-barred, as the suit was brought more than three years after the former suspect's acquittal of a murder charge; the alleged concealment of an investigating officer's notes did not warrant equitable tolling, as the notes could not reasonably have been read to contradict a report that the officer provided to the state prosecutor. Jones v. Frost, 770 F.3d 1183 (8th Cir. 2014), cert. denied, — U.S. —, 135 S. Ct. 2315, 191 L. Ed. 2d 979 (2015).

Torts.

Lex fori governs as to limitation of action for common law tort. Moores v. Winter, 67 Ark. 189, 53 S.W. 1057 (1899).

An action for damages for wrongful ejection from a train is within the three year limitation of this section. St. Louis, I. M. & S. R. Co. v. Mynott, 83 Ark. 6, 102 S.W. 380 (1907).

The limitation fixed by this section governs the right of action for pain and suffering before death in a suit brought by the administrator for the benefit of the estate. Smith v. Missouri P. R. Co., 175 Ark. 626, 1 S.W.2d 48 (1927).

The three-year statute of limitations applies to all tort actions not otherwise limited by law, where the means of information as to the cause of the injury is equally accessible to both parties and the cause or extent of the injury was not fraudulently concealed. Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934)Questioned byNorris v. Bakker, 320 Ark. 629, 899 S.W.2d 70 (1995)Questioned bySchenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir. Ark. 1970).

Tort action barred by statute of limitations. Brown v. Missouri Pac. Transp. Co., 189 Ark. 885, 75 S.W.2d 804 (1934); Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 839 (1943)Questioned byMulligan v. Lederle Laboratories, Div. of American Cyanamid Co., 786 F.2d 859 (8th Cir. 1986); Orlando v. Alamo, 646 F.2d 1288 (8th Cir. 1981)Criticized byPoindexter v. Armstrong, 934 F. Supp. 1052 (W.D. Ark. 1994); Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982); Simpson v. Bailey, 279 Ark. 27, 648 S.W.2d 464 (1983); Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996).

Tort action not barred by statute of limitations. Schott v. Colonial Baking Co., 111 F. Supp. 13 (W.D. Ark. 1953); Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980).

This section governs actions brought under § 16-62-101(a) as well as personal injury suits brought by an injured party during his lifetime. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Where deceased was injured as a result of negligence, his cause of action for injuries accrued on the date of injury; where deceased's action was barred by period of limitations, similar action by administratrix was also barred, as she occupied the same position as deceased in regard to the action. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

The three year limitation on an action for injury resulting from taking a drug manufactured by the defendant began to run when it became apparent that the injury was permanent. Schenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir. Ark. 1970).

A right of action for injury resulting from taking drug accrued when the patient knew or, in the exercise of ordinary care for her health and safety, could have known that she was injured. Schenebeck v. Sterling Drug, Inc., 291 F. Supp. 368 (E.D. Ark. 1968), aff'd, 423 F.2d 919 (8th Cir. Ark. 1970).

The statute of limitations on a personal injury action did not run against an incompetent even though a guardian of his estate had been appointed prior to accrual of the cause of action. Mason v. Sorrell, 260 Ark. 27, 551 S.W.2d 184 (1976).

The three-year statute applies to all tort actions, including allegations of negligence with respect to sale of securities transaction. F & M Bank v. Hamilton Hotel Partners Ltd. Partnership, 702 F. Supp. 1417 (W.D. Ark. 1988).

Where the gist of the complaint clearly sounds in tort, and the court is unable to construe it to include another type action so as to permit the application of a longer statute of limitations, the cause of action will be barred by the three year statute of limitations for torts. O'Bryant v. Horn, 297 Ark. 617, 764 S.W.2d 445 (1989).

A cause of action for contribution accrues when one joint tortfeasor pays more than his or her pro rata share of common liability; therefore, the three-year statute of limitations under this section had not yet expired due to the fact that a settlement had just been entered where an executor and his wife agreed to pay more of their fair share in a trust dispute. Heinemann v. Hallum, 365 Ark. 600, 232 S.W.3d 420 (2006).

In a foreclosure case involving a construction loan, summary judgment was properly granted on the borrower's nonsuited counterclaims for negligence and interference with business expectancies, which were untimely under this section because they were filed more than three years after the lender refused further funding of the loan and were not saved by § 16-56-126 because they were filed more than two years after the voluntary nonsuit. Grand Valley Ridge, LLC v. Metro. Nat'l Bank, 2012 Ark. 121, 388 S.W.3d 24 (2012).

In a creditor's breach of contract suit arising from cross-defaulted loan agreements, counterclaims asserting causes of action for fraud, breach of fiduciary duty, negligence, breach of contract, and deceptive trade practices were time-barred. Bank of Am., N.A. v. JB Hanna, LLC, 766 F.3d 841 (8th Cir. 2014).

In a dispute over family burial plots, appellants' cause of action accrued in 2006 at the time the headstone was placed by appellee, signifying appellee's and her husband's intention to claim the property for their burial plot, because, at that moment, the injury to appellants' claim to the property had occurred and the three-year statute of limitations in subdivision (4) of this section began to run; however, because the cause of action was not filed within three years of that date and Arkansas did not recognize the tort theory of continuing trespass for limitations purposes, the trial court did not err in holding that the statute of limitations barred appellants' claim and in granting summary judgment in favor of appellee. Cason v. Lambert, 2015 Ark. App. 213, 462 S.W.3d 681 (2015).

—Outrage.

Allegations that a doctor had improperly touched, examined, and otherwise fondled plaintiffs' breasts during a physical examination did not allege a complaint of battery, governed by the one-year statute of limitations in § 16-56-104, but stated a cause of action for the tort of outrage, which is governed by the three-year statute of limitations in this section. McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998).

Trespass.

An action for damages for trespass on real property instituted after more than three years since the cause of action arose, but within one year after final judgment was rendered on demurrer in a previous action on the same cause, was barred by limitations, since former judgment was not a nonsuit. Thompson v. Pulaski-Lonoke Drainage Dist., 192 Ark. 1178, 90 S.W.2d 237 (1936).

Evidence in trespass suit sufficient to bar cause of action by statute of limitation. Jones v. Brooks, 233 Ark. 148, 343 S.W.2d 99 (1961).

Court properly denied summary judgment to the oil company, which was one of the defendants in an action by the landowners for damages from defendants' dumping, where the court could not say that a reasonable jury would not find that the three year limitations period under subdivision (4) of this section was tolled under the continuing violation theory. Sewell v. Phillips Petro. Co., 197 F. Supp. 2d 1160 (W.D. Ark. 2002).

District court's verdict was reversed on appeal where the applicable statute of limitations began to run at the latest date the plaintiff lessor learned its land had suffered a remediable injury, though it did not yet know the extent of the injury. Highland Indus. Park, Inc. v. BEI Def. Sys. Co., 357 F.3d 794 (8th Cir. 2004).

Estate administrator's amended complaint for the wrongful conversion of timber, brought on behalf of the estate, was time-barred under subdivisions (4) and (6) of this section, the three-year statute of limitations for trespass and conversion, and § 16-56-108, the two-year statute of limitations applicable to penal statutes where the penalty goes to the person suing, which included claims brought pursuant to § 18-60-102. It was also barred because the administrator failed to meet the bond requirement of § 28-42-103. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239 (2009).

Trusts.

Although the beneficiary's claims nominally sounded in tort, they were predominantly assertions of a breach of trust; therefore, the statute of limitations in the Arkansas Trust Code in § 28-73-1005 controlled, rather than the more general three-year tort limitations period in this section. The beneficiary's allegations clearly involved claims that the trustee breached her duties as trustee in her administration of the trusts. Peck v. Peck, 2019 Ark. App. 190, 575 S.W.3d 137 (2019).

Cited: Meyer v. Cunningham, 196 Ark. 1097, 121 S.W.2d 90 (1938); Missouri Pac. R.R. v. Neal, 212 Ark. 866, 208 S.W.2d 176 (1948); Collie v. Coleman, 223 Ark. 206, 265 S.W.2d 515 (1954); Oklahoma ex rel. Oklahoma Tax Comm'n v. Neely, 225 Ark. 230, 282 S.W.2d 150 (1955); Booth v. Hayde, 228 Ark. 244, 307 S.W.2d 227 (1957); Baxter v. Young, 229 Ark. 1035, 320 S.W.2d 640 (1959); Nelson v. Eckert, 231 Ark. 348, 329 S.W.2d 426 (1959); Wilson v. Wilson, 231 Ark. 416, 329 S.W.2d 557 (1959); Tollett v. Mashburn, 183 F. Supp. 120 (W.D. Ark. 1960); Carter v. Zachary, 243 Ark. 104, 418 S.W.2d 787 (1967); Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970); Brown v. United States, 342 F. Supp. 987 (E.D. Ark. 1972); Hogue v. Jennings, 252 Ark. 1009, 481 S.W.2d 752 (1972); Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974); Midwest Mut. Ins. Co. v. Arkansas Nat'l Co., 260 Ark. 352, 538 S.W.2d 574 (1976); Pruitt v. Pruitt, 271 Ark. 404, 609 S.W.2d 84 (1980); Wright v. Langdon, 274 Ark. 258, 623 S.W.2d 823 (1981); Federal Land Bank v. Wilson, 533 F. Supp. 301 (E.D. Ark. 1982); Taylor v. Teletype Corp., 550 F. Supp. 781 (E.D. Ark. 1982); Okla Homer Smith Furn. Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983); Fuller v. Marx, 724 F.2d 717 (8th Cir. 1984); Freeman v. King, 10 Ark. App. 220, 662 S.W.2d 479 (1984); Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984); Lacey v. Bekaert Steel Wire Corp., 619 F. Supp. 1234 (W.D. Ark. 1985); Mulligan v. Lederle Laboratories, Div. of American Cyanamid Co., 786 F.2d 859 (8th Cir. 1986); Jackson v. Missouri Pac. R.R., 803 F.2d 401 (8th Cir. 1986); Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986); Ballheimer v. Service Fin. Corp., 292 Ark. 92, 728 S.W.2d 178 (1987); Rogers Iron & Metal Corp. v. K & M, Inc., 22 Ark. App. 228, 738 S.W.2d 110 (1987); Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988); Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989); Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989); Atlanta Exploration, Inc. v. Ethyl Corp., 301 Ark. 331, 784 S.W.2d 150 (1990); Phillips v. Sugrue, 800 F. Supp. 789 (E.D. Ark. 1992); Resolution Trust Corp. v. Kerr, 804 F. Supp. 1091 (W.D. Ark. 1992); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992); Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366 (1992); Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993); Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994); Alexander v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995); Howard v. Northwest Ark. Surgical Clinic, 324 Ark. 375, 921 S.W.2d 596 (1996); Kingsbury v. Robertson, 325 Ark. 12, 923 S.W.2d 273 (1996); Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996); Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997); Colonia Ins. Co. v. City Nat'l Bank, 13 F. Supp. 2d 891 (W.D. Ark. 1998); Helms v. University of Missouri-Kansas City, 65 Ark. App. 155, 986 S.W.2d 419 (1999); Kohl v. American Home Prods. Corp., 78 F. Supp. 2d 885 (W.D. Ark. 1999); Martin v. Equitable Life Assurance Soc'y of the United States, 344 Ark. 177, 40 S.W.3d 733 (2001); Adams v. Wolf, 73 Ark. App. 347, 43 S.W.3d 757 (2001); Vanderpool v. Pace, 351 Ark. 630, 97 S.W.3d 404 (2003); Shelnutt v. Laird, 359 Ark. 516, 199 S.W.3d 65 (2004); Moody v. Tarvin, 2016 Ark. App. 169, 486 S.W.3d 242 (2016).

16-56-106. Recovery of charges for medical services.

  1. No action shall be brought to recover charges for medical services performed or provided prior to April 1, 1985, by a physician or other medical service provider after the expiration of a period of eighteen (18) months from the date the services were performed or provided.
  2. No action shall be brought to recover charges for medical services performed or provided after March 31, 1985, by a physician or other medical service provider after the expiration of a period of two (2) years from the date the services were performed or provided or from the date of the most recent partial payment for the services, whichever is later.

History. Acts 1983, No. 638, § 1; 1985, No. 894, § 1; A.S.A. 1947, § 37-245.

Case Notes

Constitutionality.

Limitation period in this section is both reasonable and constitutional. Ballheimer v. Service Fin. Corp., 292 Ark. 92, 728 S.W.2d 178 (1987); HCA Medical Servs. of Midwest, Inc. v. Rodgers, 292 Ark. 359, 730 S.W.2d 229 (1987).

Applying this section to debt for hospital services incurred prior to the enactment of this section was not unconstitutional. Thomas v. Service Fin. Corp., 293 Ark. 190, 736 S.W.2d 3 (1987).

Applicability.

This section, and not § 16-56-111, covers all actions brought to recover charges for medical services. Ballheimer v. Service Fin. Corp., 292 Ark. 92, 728 S.W.2d 178 (1987).

Limitations period contained in this section, and not that of § 16-56-111, is applicable to a debt for hospital services. Thomas v. Service Fin. Corp., 293 Ark. 190, 736 S.W.2d 3 (1987).

Where Chapter 13 debtors filed a complaint alleging that a creditor violated the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., by filing a proof of claim in an attempt to collect a medical services debt that was potentially time-barred under this section, the court dismissed their complaint, as they could have simply objected to the proof of claim under one of the exceptions provided in the Bankruptcy Code or could have proceeded under the Bankruptcy Rules, arguing that the claim was not warranted by existing law. The FDCPA was not the controlling statute after debtors filed a voluntary petition, and debtors could not bypass procedural safeguards in the Bankruptcy Code in favor of asserting a potentially more lucrative claim under the FDCPA. Gatewood v. CP Medical LLC (In re Gatewood), No. 5:13-bk-73363, 2015 Bankr. LEXIS 2906 (Bankr. W.D. Ark. Feb. 6, 2015), aff'd, Gatewood v. CP Med., LLC (In re Gatewood), 533 B.R. 905 (B.A.P. 8th Cir. 2015) (“[f]iling in a bankruptcy case an accurate proof of claim containing all the required information, including the timing of the debt, standing alone, is not a prohibited debt collection practice”).

Fraud.

No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar; there must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it. Miles v. A.O. Smith Harvestore Prods., Inc., 992 F.2d 813 (8th Cir. 1993).

Representations in a seller's promotional magazine which did not contain information regarding problems with a product did not rise to the level of affirmative conduct concealing buyer's cause of action sufficient to toll the statute of limitations. Miles v. A.O. Smith Harvestore Prods., Inc., 992 F.2d 813 (8th Cir. 1993).

Ignorance of Right.

A plaintiff's ignorance of his or her right to sue does not toll the running of the statute of limitations. Miles v. A.O. Smith Harvestore Prods., Inc., 992 F.2d 813 (8th Cir. 1993).

Medical Service Provider.

A psychologist is not a medical service provider within the meaning of this section. Southwestern Human Servs. Inst., Inc. v. Mitchell, 287 Ark. 59, 696 S.W.2d 722 (1985).

Hospital held medical service provider. Ballheimer v. Service Fin. Corp., 292 Ark. 92, 728 S.W.2d 178 (1987).

Partial Payment.

A partial payment begins the running of the statute of limitations; a five-dollar payment was sufficient. Jones v. Hempel, 316 Ark. 647, 873 S.W.2d 540 (1994).

Revival of Debt.

A lawsuit filed by injured party, in which he sought damages that included his medical expenses, did not demonstrate his acknowledgment of the debt to his medical service providers and was not sufficient to revive the debt. Kitchens v. Evans, 45 Ark. App. 19, 870 S.W.2d 767 (1994).

Cited: Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989); University Hosp. v. Undernehr, 307 Ark. 445, 821 S.W.2d 26 (1991).

16-56-107. Enforcement of security interest in livestock.

  1. No action to enforce a security interest in livestock shall be brought against a livestock auction market or selling agent who, in the ordinary course of business, sells the livestock for another person in a public auction, more than eighteen (18) months after the date of the sale.
  2. No action to enforce a security interest in livestock against a buyer in the ordinary course of business shall be brought more than eighteen (18) months after the livestock is sold to the buyer.

History. Acts 1985, No. 902, §§ 1, 2; A.S.A. 1947, §§ 37-246, 37-247.

16-56-108. Recovery of statutory penalties.

All actions on penal statutes where the penalty, or any part thereof, goes to the state, or to any county or person suing for the same, shall be commenced within two (2) years after the offense has been committed or the cause of action has accrued.

History. Rev. Stat., ch. 91, § 10; C. & M. Dig., § 6954; Pope's Dig., § 8932; A.S.A. 1947, § 37-204.

Case Notes

Applicability.

An action to enforce a statutory liability which is not a penalty is governed by the three year limitation provided in § 16-56-105. Nebraska Nat'l Bank v. Walsh, 68 Ark. 433, 59 S.W. 952 (1900).

This statute cannot be pleaded in bar of the remedial portion of a statute which is both remedial and penal. McDonald v. Mueller, 123 Ark. 226, 183 S.W. 751 (1916).

This statute is not applicable to liability for assessment imposed by another state upon bank stockholders upon insolvency; the liability is contractual rather than in the nature of a penalty. Hospelhorn v. Burke, 196 Ark. 1028, 120 S.W.2d 705 (1938).

The environmental protection acts found at §§ 8-4-101 et seq., 8-6-201 et seq., and 8-7-201 et seq., are regulatory and protective rather than penal, and therefore the statute of limitations for penal actions does not apply. Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

Estate administrator's amended complaint for the wrongful conversion of timber, brought on behalf of the estate, was time-barred under § 16-56-105(4) and (6), the three-year statute of limitations for trespass and conversion, and this section, the two-year statute of limitations applicable to penal statutes where the penalty goes to the person suing, which included claims brought pursuant to § 18-60-102. It was also barred because the administrator failed to meet the bond requirement of § 28-42-103. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239 (2009).

Disability.

In action for treble damages under § 18-60-102(a) and (b), the two year limitation of this section does not apply where plaintiff was under the age of majority at the time the cause of action arose and brought his action within the limitation of § 16-56-116(a). Callaway v. Perdue, 238 Ark. 652, 385 S.W.2d 4 (1964).

Pleading.

Actions for the recovery of a statutory penalty are governed by rules of practice in civil action; consequently the statute of limitations must be pleaded, otherwise it is waived as a defense. Western Union Tel. Co. v. State, 82 Ark. 309, 101 S.W. 748 (1907).

Statute Tolled.

In a taxpayer action against a sheriff, allegations and proof of fraud and concealment were sufficient to toll any statute of limitations which was applicable. Thomas v. Williford, 259 Ark. 354, 534 S.W.2d 2 (1976).

Time Expired.

In claim for treble damages the trial court did not err in precluding plaintiff from recovering treble damages because the two-year limitation period had expired. Kutait v. O'Roark, 305 Ark. 538, 809 S.W.2d 371 (1991).

Cited: St. Louis, Iron Mountain & S. Ry. v. State, 59 Ark. 165, 26 S.W. 824 (1894); Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993).

16-56-109. Actions against sheriffs, coroners, and other officials.

  1. All actions against sheriffs and coroners upon any liability incurred by them by doing any act in their official capacity or by the omission of any official duty, except for escapes, shall be brought within two (2) years after the cause of action has accrued and not thereafter.
  2. All actions against sheriffs or other officers for the escape of any person imprisoned on civil process shall be commenced within one (1) year from the time of escape, and not thereafter.

History. Rev. Stat., ch. 91, §§ 8, 9; C. & M. Dig., §§ 6952, 6953; Pope's Dig., §§ 8930, 8931; A.S.A. 1947, §§ 37-202, 37-203.

Case Notes

Deputies and Jailers.

Although deputy sheriffs and jailers are not referred to in this section, they are entitled to the benefit of the statute when sued on account of acts or omissions which took place in the course of their official duties. Brown v. United States, 342 F. Supp. 987 (E.D. Ark. 1972), aff'd in part, reversed in part, 486 F.2d 284 (8th Cir. Ark. 1973).

False Arrest.

Under this section an action against a sheriff for false arrest must be brought within two years. Gilpin v. Tack, 256 F. Supp. 562 (W.D. Ark. 1966).

Federal Actions.

This section applied to an action brought in federal court against an Arkansas jailer for injuries sustained by a federal prisoner at the hands of other inmates while confined in an Arkansas jail. Brown v. United States, 342 F. Supp. 987 (E.D. Ark. 1972), aff'd in part, reversed in part, 486 F.2d 284 (8th Cir. Ark. 1973).

The running of the statute was not tolled by the confinement of a plaintiff outside state in a federal penitentiary when he was not so confined at the time his cause of action accrued in view of § 16-56-116 (a) and (b). Brown v. United States, 342 F. Supp. 987 (E.D. Ark. 1972), aff'd in part, reversed in part, 486 F.2d 284 (8th Cir. Ark. 1973).

Federal prisoner confined in state jail had to bring negligence claim against sheriff and jailer within time prescribed by this section. Brown v. United States, 486 F.2d 284 (8th Cir. Ark. 1973).

Pleading.

The plea of the statute of limitations cannot be raised by demurrer, unless the complaint shows not only that the time has elapsed so as to bar the action, but also the nonexistence of any grounds for the avoidance of the statute. State use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601 (1938).

Statute Tolled.

In a taxpayer action against a sheriff, allegations and proof of fraud and concealment were sufficient to toll any statute of limitations which was applicable. Thomas v. Williford, 259 Ark. 354, 534 S.W.2d 2 (1976).

Unlawful Taking.

Action against sureties on bond of former sheriff commenced more than two years after date on which he was required to turn over to his successor property and money in his hands, to recover value of property which the sheriff had attached, was barred by limitations, though filed soon after determination of replevin suit against sheriff. State use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601 (1938).

Cited: Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993).

16-56-110. Sheriffs', coroners', and constables' bonds.

  1. Actions on the official bonds of sheriffs and coroners shall be commenced within four (4) years after the cause of action shall accrue, and not afterward.
  2. A certified copy of the bond shall be evidence in all suits brought on the bond.
  3. No suit shall be brought on any bond of a constable after the expiration of four (4) years from its date.

History. Rev. Stat., ch. 29, § 14; Acts 1844, § 1, p. 24; C. & M. Dig., § 6957; Pope's Dig., § 8935; A.S.A. 1947, §§ 37-207, 37-208.

Case Notes

Actions Barred.

Suit filed by heirs on sheriff's bond was barred under this section where sheriff left office and filed his last settlement more than four years before suit. Elmore v. Bishop, 184 Ark. 243, 42 S.W.2d 399 (1931).

Action against sureties on bond of former sheriff commenced more than four years after date on which he was required to turn over to his successor property and money in his hands, to recover value of property which the sheriff had attached, was barred by limitations, though filed soon after determination of suit in replevin against sheriff. State use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601 (1938).

Actions not Barred.

Where the county sheriff was receiving expense funds without required proof of expenses, the receipt constituted an illegal exaction and thus the county sheriff was correctly required to account and repay the sums received and the statute of limitations did not bar the action. Thomas v. Williford, 259 Ark. 354, 534 S.W.2d 2 (1976).

Pleading.

The plea of the statute of limitations cannot be raised by demurrer, unless the complaint shows not only that the time has elapsed so as to bar the action, but also the nonexistence of any grounds for the avoidance of the statute. State use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601 (1938).

Statute Tolled.

In a taxpayer action against a sheriff, allegations and proof of fraud and concealment were sufficient to toll any statute of limitations which was applicable. Thomas v. Williford, 259 Ark. 354, 534 S.W.2d 2 (1976).

16-56-111. Notes and instruments in writing and other writings.

  1. Actions to enforce written obligations, duties, or rights, except those to which § 4-4-111 is applicable, shall be commenced within five (5) years after the cause of action shall accrue.
  2. However, partial payment or written acknowledgment of default shall toll this statute of limitations.

History. Acts 1844, § 1, p. 24; 1889, No. 70, § 1, p. 87; C. & M. Dig., §§ 6955, 6956; Pope's Dig., §§ 8933, 8934; A.S.A. 1947, §§ 37-209, 37-210; Acts 1989, No. 644, § 1; 1991, No. 1048, § 1; 1997, No. 1164, § 2.

Publisher's Notes. As to abolition of distinction between sealed and unsealed instruments executed since the adoption of the Constitution of 1868 and provision that the statute of limitations in regard to sealed and unsealed instruments in force at that time should remain in force until altered, see Ark. Const., Schedule § 1.

Research References

Ark. L. Notes.

Copeland, A Statutory Primer: Revised Article 3 of the U.C.C. — Negotiable Instruments, 1992 Ark. L. Notes 65.

U. Ark. Little Rock L.J.

Survey, Contracts, 12 U. Ark. Little Rock L.J. 611.

Note, Professional Malpractice — Limitation of Actions — Arkansas Extends the Occurrence Rule to Accountants and Recognizes a Tolling Provision in Attorney Malpractice Actions, 13 U. Ark. Little Rock L.J. 115.

Survey — Debtor/Creditor Relations, 14 U. Ark. Little Rock L.J. 767.

Case Notes

Construction.

In a breach of contract action for alleged architectural defects, in which a written contract was involved, subsection (b) of this section was the applicable statute of limitations; the existence of § 16-56-112 did not extend the statute of limitations under subsection (b) or otherwise affect its applicability. Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996).

Applicability.

Holding that plaintiff suing on a note was a charitable institution and that statute of limitations did not apply to it was error. McCrite v. Hendrix College, 198 Ark. 1149, 133 S.W.2d 31 (1939).

The statute of limitations is inapplicable to a suit brought to enforce a trust. Sprigg v. Wilmans, 204 Ark. 863, 165 S.W.2d 69 (1942).

Actions by third persons based on written contracts which are made for their benefit are governed by the limitation of this section rather than § 16-56-105. H.B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955).

Although the trial court determined that the five-year statute of limitations applicable to written contracts applied, where the trial court based its finding of liability against the defendant completely upon the finding that the defendant breached his fiduciary duty to plaintiffs as their attorney and thereby committed malpractice, the applicable statute of limitations as to the defendant was three years. Smith v. Elder, 312 Ark. 384, 849 S.W.2d 513 (1993).

In an action involving fraud and a written instrument, the court looks to the gist of the action as alleged to determine which statute of limitations applies. Ernest F. Loewer, Jr. Farms, Inc. v. National Bank, 316 Ark. 54, 870 S.W.2d 726 (1994).

Under the express terms of § 16-56-103(b), subsection (b) of this section does not apply to suits to enforce payment of any bills, notes, or evidences of any debt issued by any bank. Ernest F. Loewer, Jr. Farms, Inc. v. National Bank, 316 Ark. 54, 870 S.W.2d 726 (1994).

In transferred employees' action under the Labor Management Relations Act, the state statute of limitations for breach of contract was not applicable; applying such would run counter to the policy of rapid final resolutions of labor disputes, and the employer did not actually repudiate the grievance process in the collective bargaining agreement. Arif v. AT & T Corp., 959 F. Supp. 1054 (E.D. Ark. 1997).

In a claim where it was unclear whether plaintiffs were complaining of the circumstances surrounding the execution of a 1993 agreement, or seeking to enforce a 1981 contract breached in 1996, summary judgment based on the running of the 3 year statute of limitations was improper. Ingram v. Chandler, 63 Ark. App. 1, 971 S.W.2d 801 (1998).

Loan papers between debtors and bank constituted evidence of a written agreement between debtors and guarantor, and subsection (a) of this section provides that actions to enforce a written obligation must commence within five years after the cause of action accrues; thus, the trial court erred when it found that the guarantor was seeking contribution and that the cause of action was barred by a three-year statute of limitations. Hendrickson v. Carpenter, 88 Ark. App. 369, 199 S.W.3d 100 (2004).

Court erred in awarding judgment to plaintiff in his breach of contract action against defendant because plaintiff's earlier failure to comply with the service requirements of Ark. R. Civ. P. 4(i) resulted in a failure to commence the action so as to effectuate the one-year savings provision provided in § 16-56-126; hence, the action was barred by the five-year statute of limitations in subsection (a) of this section. Long v. Bonds, 89 Ark. App. 111, 200 S.W.3d 922 (Jan. 5, 2005).

Employee's ERISA claims for benefits under 29 U.S.C.S. § 1132(a), (e)(1), and (f); penalties under § 1132(c)(1); and breach of fiduciary duty under 29 U.S.C.S. § 1105(a) and (b), were dismissed because (1) the three-year statute of limitations set forth in § 16-56-105(3) applied to the employee's claim for penalties, the employee requested the plan summary in December 2001 and again in January 2002 but waited until April 2005 to make further inquiries and another year to file a complaint, and the employee did not act with “due diligence,” to enforce her rights so she was not entitled to equitable tolling; (2) with regard to the employee's long-term disability (LTD) claim, the employee knew by December 2001 that her short-term (STD) claim had been denied, such denial served as notification to the employee that no more disability benefits would be approved, the employee should have known that LTD benefits were included and should have taken reasonable steps to enforce her claims, and the employer's failure to send the employee a plan summary did not excuse a four-year delay, so the three-year statute of limitation was not equitably tolled, and the employee's LTD claim was barred; (3) the employee's claim based on the employer's breach of fiduciary duty was also made too late because under the ERISA's statute of limitations, such claims had to be brought within three years under 29 U.S.C.S. § 1113(2); and (4) defendant's motion for judgment on the pleadings with regard to the employee's claim for STD benefits was construed as one for summary judgment and was granted because although the five-year limitations period set forth in this section applied to the claim, the statute of limitations was tolled because the amended claim for STD benefits related back to the original complaint under Fed. R. Civ. P. 15(c)(2), the employer offered an affidavit and documentation of its STD payments to the employee, and the employee did not respond to the employer's offer of proof. Gonser v. Cont'l Cas. Co., 515 F. Supp. 2d 929 (E.D. Ark. 2007).

Finding against the relatives in an action stemming from the relatives' default on a promissory note and security agreement previously executed was proper because the appellate court agreed with the circuit court's interpretation of the provision in the agreement to mean that the final payment, due on January 30, 2004, was to be a balloon payment of any unpaid balance on the note. Accordingly, the term “principal balance” was to include everything that remained unpaid on the date the last balloon payment came due; therefore, the damage claim included everything that remained unpaid throughout the course of the note and the circuit court's finding that the claim was not barred by the statute of limitations was proper. Housley v. Hensley, 100 Ark. App. 118, 265 S.W.3d 136 (2007).

In a nondischargeability action under 11 U.S.C.S. § 523(a)(2)(A), where the debt to which the debtors' misrepresentations related arose from a breach of a limited liability company's operating agreement, the five year statute of limitations for breach of contract stated in this section applied, not the three year period for fraud. Lewis v. Spivey (In re Spivey), 440 B.R. 539 (Bankr. W.D. Ark. 2010).

Circuit court did not err by dismissing appellants' legal malpractice claims against their attorney, because they were barred by the three-year statute of limitations under this section. Although appellants attempted to categorize the claims differently, the “gist” of their claim was legal malpractice; therefore, the five-year statute of limitations set forth in this section did not apply. Richardson v. Madden, 2012 Ark. App. 120 (2012).

Trial court properly granted summary judgment in favor of the owners of a trailer park because the gravamen of the tenant's claim was for assault and battery and/or negligence, not breach of contract, and the claim was therefore untimely where the tenant filed his complaint over four years after the incident, and no breach of contract was alleged that would bring the action under the five-year statute of limitations. The rental form, which was not specific to the tenant, contained no promise, specific or general, on the part of the owners to protect the tenant from harm. Moody v. Tarvin, 2016 Ark. App. 169, 486 S.W.3d 242 (2016).

Acceleration Clauses.

Where the debtor defaulted and creditor accelerated the debt, the creditor's cause of action on the debt evidenced by a note did not depend upon any further contingency or condition precedent, as the creditor's right to a deficiency judgment was simply part of a remedial process the creditor initiated by accelerating the debt and could not be treated as a separate cause of action; therefore, the statute of limitations began to run when the creditor accelerated the debt, causing the creditor's complaint seeking a deficiency judgment against the debtor to be barred when brought more than five years after the date the note was accelerated. Oaklawn Bank v. Alford, 40 Ark. App. 200, 845 S.W.2d 22 (1992).

Attorneys.

A malpractice suit alleging that the defendant attorneys breached their contract by failing to act with diligence as required by the contract is an action for negligence rather than for breach of contract, and the three year statute of limitations should apply. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998).

When the client sued the attorney in connection with the execution of a prenuptial agreement, her complaint was barred by the three-year statute of limitations for legal-malpractice claims under § 16-56-105. There was no written contract to bring the action under the five-year statute of limitations set forth in this section. Pounders v. Reif, 2009 Ark. 581 (2009).

Burden of Proof.

The burden of proof was on the plaintiff suing on notes to establish that they were not barred by limitations which had been pleaded as a defense. Rose v. Rose, 184 Ark. 430, 42 S.W.2d 567 (1931).

Plaintiff suing on a note relying upon payments to remove the bar of the statute of limitations has burden to show that the payments were made. McNeill v. Rowland, 198 Ark. 1094, 132 S.W.2d 370 (1939).

If in action on promissory note the debtor pleads the statute of limitations as a bar to the action and plaintiff alleges that there has been a part payment on the note, then burden of proof is on the plaintiff to prove date of part payment, and mere endorsement on back of note is not sufficient proof of making of part payment. Smith v. Grimsley, 215 Ark. 279, 220 S.W.2d 428 (1949).

Certificate of Deposit.

Under § 4-3-104(j), a certificate of deposit is a negotiable instrument, and an action to enforce such an instrument under Article 3 of the UCC would be subject to the six-year limitation period under § 4-3-118(e), not the five-year limitation period under this section. Ernest F. Loewer, Jr. Farms, Inc. v. National Bank, 316 Ark. 54, 870 S.W.2d 726 (1994).

Child Support Agreements.

The period of time for which the mother may recover for the reasonable and definite amount she has expended for the support of the children is governed by the language of the original divorce decree and where, as in the present case, there was no provision in the original divorce decree for support, the obligation of the father would come within the three year statute for such definite amounts as she had expended for the support of the minor children. Wilder v. Garner, 235 Ark. 400, 360 S.W.2d 192 (1962).

Choice of Law.

Insured's claim against insurers was not time-barred, because under Arkansas Supreme Court precedent, Arkansas law applied and therefore a policy provision requiring suit to be filed before the statute of limitations expired was void under § 23-79-202. Simmons Foods, Inc. v. Indus. Risk Insurers, 863 F.3d 792 (8th Cir. 2017).

Civil Rights.

Although employee's 42 U.S.C. § 1981 claim involved a collective bargaining agreement between a union and the employer, the alleged discriminatory practices did not arise from any breach of the collective bargaining agreement and therefore this statute of limitations for actions on written contracts was inapplicable. Martin v. Georgia-Pacific Corp., 568 F.2d 58 (8th Cir. 1977).

Where the plaintiff brought a civil rights complaint involving the termination of the plaintiff's written employment contract, § 16-56-105, governing liabilities created by statute, was the applicable statute of limitations, not this section which governs actions on written contracts. Wagh v. Dennis, 677 F.2d 666 (8th Cir. 1982).

Conditional Promise.

Statute does not run on a conditional promise until the contingency has happened. Perry v. Cunningham, 40 Ark. 185 (1882).

Corporations.

The appointment of a receiver will not stop the running of the statute against an insolvent corporation. Davis v. Scott, 129 Ark. 226, 195 S.W. 383 (1917).

A complete and present cause of action accrued when assets conveyed in a bill of sale were transferred by person executing bill of sale to a corporation and the stock distributed in violation of the bill of sale, and statute commenced to run from that time. Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969).

Date of Accrual.

In a breach of contract action against architectural firm for alleged design defects, the relevant date for accrual of the cause of action for breach was the date the plans were rejected by the Health Department, since on that date the cause of action was complete, and plaintiff was entitled to sue for breach; when he chose not to do so but chose instead to allow defendant to attempt to rectify the problem, that did not alter the fact that a breach had occurred, and thus suit filed more than five years after the breach was untimely. Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996).

Court properly determined that employee's 2002 breach of contract action against employer was barred by the five-year statute of limitations; the action accrued at the point when employee could have first maintained his action, when the employer failed to apportion settlement funds to the Federal Railroad Retirement Board in 1990. Phillips v. Union Pac. R.R., 89 Ark. App. 223, 201 S.W.3d 439 (2005).

Insurance underwriter's breach of contract claim against its agent, arising from the agent's issuance of a general liability policy to an Alabama motel in violation of the parties' binding authority agreement, was time-barred under subsection (b) of this section because the underwriter filed its suit more than five years after the agent breached its contractual duty by issuing the policy. The underwriter's cause of action accrued when the contract was breached, not when it suffered injury arising from that breach, which occurred several years later, when lawsuits covered by the policy were filed against the insured motel and the agent refused to provide defense and indemnification in those suits. Certain Underwriters at Lloyds v. Regions Ins., Inc., 613 F. Supp. 2d 1050 (E.D. Ark. 2009).

Subdivision lot owner's action for breach of restrictive covenants and a declaration that such covenants were unenforceable was barred by the applicable statute of limitations under this section, as the cause of action accrued when a golf club and a successor-in-interest to the developer of the subdivision sold the first lot that they deferred a monthly fee for, not with each deferred lot sold. Beckworth v. Diamante, 2010 Ark. App. 815, 379 S.W.3d 752 (2010).

Plaintiff's action was properly dismissed because his claims were clearly time-barred under this section and §§ 16-56-105, 4-88-115, and by failing to allege when and how he discovered defendant's alleged fraud, plaintiff failed to meet his burden under Fed. R. Civ. P. 9(b), (f) of sufficiently pleading that the doctrine of fraudulent concealment saved his otherwise time-barred claims. Summerhill v. Terminix, Inc., 637 F.3d 877 (8th Cir. 2011).

Debts.

The statute does not begin to run against a note that may be declared due on default in interest until the end of its regular term, unless the payee exercises his option. Sherwood v. Wilkins, 65 Ark. 312, 45 S.W. 988 (1898).

The statute runs from the date of a new promise. Kelley v. Telle, 66 Ark. 464, 51 S.W. 633 (1899); Williams v. Young, 71 Ark. 164, 71 S.W. 669 (1903).

Cause of action accrues at maturity of note. Rock Island Plow Co. v. Masterston, 96 Ark. 446, 132 S.W. 216 (1910).

A right to enforce a mortgage lien acquired by the right of subrogation will not be barred where the debt has been kept alive by a new note executed by the debtor. Roark v. Matthews, 125 Ark. 378, 188 S.W. 841 (1916).

The statute of limitations begins to run against the creditor of an insolvent corporation whenever he has notice that the corporation is insolvent, and notice may be presumed when the insolvency becomes a matter of general notoriety. Davis v. Scott, 129 Ark. 226, 195 S.W. 383 (1917).

Demand paper is due immediately, and the statute of limitations begins to run from the date of the instrument. McCollum v. Neimeyer, 142 Ark. 471, 219 S.W. 746 (1920).

A cause of action on a note is not barred where an action was brought on it within five years from maturity where the action was dismissed and new action brought within a year on the same cause of action. Felker v. Boatmen's Bank, 146 Ark. 186, 225 S.W. 306 (1920).

Evidence held to sustain a finding that the defendant's consent to the crediting of the amount owed by the payee of a note to the defendant on the note which the defendant had executed did not constitute an acknowledgement of the debt sufficient to form a basis of a new promise, tolling the statute of limitations on the note. Sanders v. McClintock, 175 Ark. 633, 300 S.W. 408 (1927).

The cause of action on a promissory note does not accrue until the day following the date of its maturity. Shanks v. Clark, 175 Ark. 883, 300 S.W. 453 (1927).

Where a cause of action on a note is barred by limitations, a mortgage securing the note is likewise barred. Taylor v. Cheairs, 181 Ark. 4, 24 S.W.2d 852 (1930).

The right of action by a joint maker of a note who paid it for contribution is based on an implied obligation, and not governed by the limitation prescribed by this section. Hazel v. Sharum, 182 Ark. 557, 32 S.W.2d 315 (1930).

Where a debt is secured by a pledge, the running of the statute of limitations destroys the right of recovery on the debt, but it has no effect on the right of the pledgee to retain the property or enforce his claim against it, until the debt is paid. Hill v. Bush, 192 Ark. 181, 90 S.W.2d 490 (1936).

Plaintiffs took title free from lien of mortgages which had been kept alive by tax payments made by mortgagee. Polster v. Langley, 201 Ark. 396, 144 S.W.2d 1063 (1940).

Recital in notes that drawers and endorsers waived presentation for payment, protest and nonpayment, and granted to holder right to grant extensions without notifying them, was held not to apply to payee who subsequently endorsed the notes and who could only be bound for five years from due date of notes. Mayberry v. Penn, 201 Ark. 756, 146 S.W.2d 925 (1941).

When recovery is sought on an obligation payable in installments, this statute runs against each installment from the time it becomes due. Linke v. Kirk, 204 Ark. 393, 162 S.W.2d 39 (1942); Wilson v. Wilson, 231 Ark. 416, 329 S.W.2d 557 (1959).

Written contract for repurchase, executed by parties thereto for specific purpose of preventing foreclosure of deed of trust, including original debt as the consideration thereof, tolled the statute of limitations and made a new point for it to begin to run. Walker v. Mullins, 204 Ark. 939, 165 S.W.2d 607 (1942).

A note payable on demand is due immediately upon its execution, and the statute of limitations runs from that date, unless there is a subsequent unconditional promise to pay by the party from whom the debt is due, which is sufficient to toll the statute. McMahon v. O'Keefe, 213 Ark. 105, 209 S.W.2d 449 (1948).

Where the maker of a note payable on demand writes letters acknowledging the validity of the debt due and by inference promises to pay, the acts on the part of the debtor are sufficient to toll the statute of limitations. McMahon v. O'Keefe, 213 Ark. 105, 209 S.W.2d 449 (1948).

Where plaintiff filed suit on promissory note more than five years after due date and unauthorized payments were made on the note, the payments did not toll the statute, and action upon the note was therefore barred. Sutterfield v. Smith, 216 Ark. 41, 223 S.W.2d 1018 (1949).

Suit, by holders of unpaid installment bonds of drainage district, to collect bonds and interest was not barred where each annual report of district's receiver acknowledged the bonds and interest as obligations of the drainage district. Greer v. Blocker, 218 Ark. 259, 236 S.W.2d 68 (1951).

Three year limitation of § 16-56-105 applicable to oral contracts governed the transaction where borrower pledged a note for repayment of oral loan rather than the limitation of this section. Shelton v. Harris, 225 Ark. 855, 286 S.W.2d 20 (1956).

Where parties enter into a written stipulation as to the amount of indebtedness which is sworn to before a notary public, the instrument constitutes an account stated and starts the running of this section anew. Johnson v. Gammill, 231 Ark. 1, 328 S.W.2d 127 (1959).

In action to recover delinquent payments which is filed more than five years after the last payment was made, plaintiff can recover only those installments due and accruing within five years before the filing of petition. Wilson v. Wilson, 231 Ark. 416, 329 S.W.2d 557 (1959).

A suit on a note filed less than five years after the note was executed was within the limitation of this section. Wallace v. Hamilton, 238 Ark. 406, 382 S.W.2d 363 (1964).

An alleged oral extension agreement for which the record shows no semblance of valid consideration is not sufficient to toll the running of the statute. Holmes v. Thompson, 240 Ark. 818, 402 S.W.2d 400 (1966).

Creditor's action was not barred by the statute of limitations on default on balloon payment. Delta Oil Co. v. Catalani, 276 Ark. 66, 633 S.W.2d 1 (1982).

If a check, pledged as security was nonnegotiable, that fact alone would not discharge the liability of the drawer of the check who remained secondarily liable on the check until the statute of limitations ran or until its liability was otherwise discharged. Wildman Stores, Inc. v. Carlisle Distrib. Co., 15 Ark. App. 11, 688 S.W.2d 748 (1985).

When recovery is sought on an obligation payable in installments, the statute of limitations runs against each installment from the time it becomes due; therefore, where the debtor made partial payments in each year since the execution of the note, with the most recent payment being made in 1985, the statute of limitations would not run for actions on the note until 1990, five years from the date of the last payment. In re Borum, 60 B.R. 516 (Bankr. E.D. Ark. 1986).

When recovery is sought on an obligation payable in installments, the statute of limitations runs against each installment from the time it becomes due; that is, from the time when an action might be brought to recover it. Bank of N.Y. v. University Partners, Ltd., 719 F. Supp. 1479 (W.D. Ark. 1989).

Where a foreclosure suit was filed on March 13, 1991 regarding a promissory note that was signed on March 15, 1982, with the first payment due on March 15, 1983, and where no payments were made, plaintiffs were barred by law from recovering those payments that became due prior to March 13, 1986, due to the five-year statute of limitations. Karnes v. Marrow, 315 Ark. 37, 864 S.W.2d 848 (1993).

Breach of contract claim involving a loan that was secured by a property deed was not barred by the statute of limitations because the breach claim did not accrue until just a few months before the filing of the complaint, when the lenders refused further payments and claimed the payments were merely rent because they owned the property at issue. Smith v. Eisen, 97 Ark. App. 130, 245 S.W.3d 160 (2006).

Five-year statute of limitations for written contracts applied under this section, and the last payments on June 24, July 7, and July 10, 2004, were made within the 5-year period after the creditors filed the claims on November 28, 2007, and April 3, 2008, because the debtor's use of the cards represented an intent to perform a unilateral contract by repaying the amount charged; the issuance of the card to the debtor to be accepted by her in accordance with the terms and conditions set forth by the card member agreements or rejected by non-use was an offer; and the contract became binding when the debtor retained the card, made use of it, and thereby agreed to the terms of the written agreement. In re Pettingill, 403 B.R. 624 (Bankr. E.D. Ark. 2009).

Bank's claim upon promissory note was not barred by the statute of limitations under this section as the note maker made a payment before the bar attached and created a new starting point for the limitations period. Valley v. Helena Nat'l Bank, 2010 Ark. App. 560 (2010).

Because appellee lender received insurance payments when the collateral for a promissory note was damaged in a fire, the trial court did not err in finding that the five-year statute of limitations for an action on the note was tolled under subsection (b) of this section by partial payments. Payton v. Coleman, 2012 Ark. App. 160 (2012).

In a creditor's breach of contract suit arising from cross-defaulted loan agreements, counterclaims asserting causes of action for fraud, breach of fiduciary duty, negligence, breach of contract, and deceptive trade practices were time-barred. Bank of Am., N.A. v. JB Hanna, LLC, 766 F.3d 841 (8th Cir. 2014).

—Acceleration Clauses.

Acceleration clause contained in note and mortgage for benefit of payee and enforceable at his option was held not to start the statute of limitations running upon failure to make payment of interest. Hodges v. Taft, 194 Ark. 259, 106 S.W.2d 605 (1937).

Statute of limitations began to run when default was made in payment of first note. Hodges v. Dilatush, 199 Ark. 967, 136 S.W.2d 1018 (1940).

Where an automatic acceleration clause occurs if an installment of interest is not paid within thirty days after due date, but there is no declaration that a default in the payment of an installment of the principal accelerates the maturity of the debt, the statute is a bar only to those installments over five years due, where there is no testimony as to a default in interest. Holmes v. Thompson, 240 Ark. 818, 402 S.W.2d 400 (1966).

—Assumption of Debts.

Whether an incoming partner becomes liable on an existing note of the old partnership depends on whether he assumed the indebtedness; in the absence of assumption he will not be bound by payments made by a member of the old firm nor precluded from pleading the statute of limitations against the note. Stephens v. Neely, 161 Ark. 114, 255 S.W. 562, 45 A.L.R. 1236 (1923).

The right of a husband to be subrogated to the lien of a mortgagee on his wife's land which he had discharged after her death is to use the mortgage just as the original holder thereof might have done, and the devolution of the cause of action does not interrupt the running of the statute. Ogden v. Watts, 186 Ark. 500, 54 S.W.2d 292 (1932).

Since the assumption of payment of the note by the different grantees in the deeds appearing in the plaintiff's chain of title was made within five years before the institution of the suit, the lien of the mortgage was kept alive, although the debt as against the original payor was barred by the statute of limitations. Webb v. Alexander, 195 Ark. 727, 113 S.W.2d 1095 (1938).

—Credit Card Debt.

Claim Nos. 7, 8, and 9 complied with the applicable Bankruptcy Rules and were presumed to be prima facie evidence of the validity and amount of each claim; the creditors were not required to attach the writings on which the debts were based to the proofs of claim. Underlying credit card debts were subject to the Arkansas five-year statute of limitations period. In re Richardson, 557 B.R. 686 (Bankr. E.D. Ark. 2016).

—Endorsement of Payments.

Payments, endorsed on a note, which were admitted by the debtor to be correct or were impliedly assented to by him are sufficient to stop the running of the statute of limitations. McAbee v. Wiley, 92 Ark. 245, 122 S.W. 623 (1909).

The date of a payment on a note and not the endorsement or entry of it marks the time of the interruption of the statute unless a future date is agreed upon by the parties. Slagle v. Box, 124 Ark. 43, 186 S.W. 299 (1916).

The running of the statute of limitations is not estopped by endorsements of payments on a note not shown to have been made by the defendant. Kory v. East Ark. Lumber Co., 181 Ark. 478, 26 S.W.2d 896 (1930).

The presence or absence of endorsement of credits or other payments on the back of a note is not conclusive proof that payments tolling the statute were or were not made. Schaefer v. Baker, 181 Ark. 620, 27 S.W.2d 83 (1930).

It is the fact of payment on the note and not the endorsement thereon that tolls the statute. Reynolds v. Union Bank & Trust Co., 182 Ark. 861, 33 S.W.2d 403 (1930).

Payments need not be endorsed as credits on back of note to arrest the running of the statute of limitations; it is the fact of payment and not its endorsement that tolls the statute. McNeill v. Rowland, 198 Ark. 1094, 132 S.W.2d 370 (1939).

Where order of dismissal in 1938 was final determination of mortgage foreclosure suit filed in 1931 with notice of lis pendens and it reinstated the mortgage in full force and effect as though no suit had been filed, order was binding on judgment creditors of mortgagor who secured judgment after beginning of suit and precluded them from contending that subsequent foreclosure suit was barred by limitations for failure to make marginal endorsements of payment within five years. Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943), superseded by statute as stated in, Croft v. Croft, 8 Ark. App. 20, 648 S.W.2d 511 (1983).

—Multiple Debts.

Where one owed a note at a bank barred by the statute of limitations and thereafter made a deposit in the bank, it was held that the bank had the right to credit this deposit on the note but the right to so credit the deposit did not toll the statute of limitations. Desha Bank & Trust Co. v. Quilling, 118 Ark. 114, 176 S.W. 132 (1915).

A creditor may not arbitrarily apply payments made upon unmatured obligations where there are debts past due upon which the same may be applied; so payments by a debtor cannot be arbitrarily applied by the creditor to the payment of unearned interest to create a presumption that the statute of limitations was to run from that time. Gunther v. Cotner, 192 Ark. 498, 92 S.W.2d 865 (1936).

Holder of note could not apply payment for one debt to another debt so as to toll the statute of limitations. Piggott Nursery Co. v. Davis, 195 Ark. 738, 113 S.W.2d 1102 (1938); Higginbotham v. Ritter, 202 Ark. 412, 150 S.W.2d 620 (1941); Nelson v. Rutledge, 229 Ark. 464, 316 S.W.2d 346 (1958).

Where deed of trust was executed by defendant to secure a single indebtedness evidenced by three notes, payments which were an acknowledgment of the entire indebtedness should have first been credited to interest on entire indebtedness and not to any single note, and payment within five years kept the entire debt alive so that none of the notes were barred by this statute. Rich v. Hankins, 203 Ark. 1082, 160 S.W.2d 44 (1942).

—Payments.

If payment of a promissory note is demanded on the third day of grace, and refused, the statute runs from that day; otherwise not till the next day. Holland v. Clark, 32 Ark. 697 (1878).

County warrants are always receivable for taxes, regardless of the date of their issue. Daniel v. Askew, 36 Ark. 487 (1880); Howell v. Hogins, 37 Ark. 110 (1881); Whitthorne v. Jett, 39 Ark. 139 (1882); Lusk v. Perkins, 48 Ark. 238, 2 S.W. 847 (1887); Hill v. Logan County, 57 Ark. 400, 21 S.W. 1063 (1893).

The five year limitation may be pleaded in bar for a petition for mandamus to compel the payment of warrants. Crudup v. Ramsey, 54 Ark. 168, 15 S.W. 458 (1891).

Where more than five years elapsed between the last payment on a note and the date action thereon was commenced against the principal and sureties, the claim is barred as against the sureties. Polk v. Stephens, 118 Ark. 438, 176 S.W. 689 (1915).

Part payment of a debt by a joint and several debtor before the bar of the statute of limitations attaches binds the other joint debtors. Fendley v. Shults, 142 Ark. 180, 218 S.W. 197 (1920).

Payment of interest on a note within the statutory period stops the running of the statute of limitations. Conley v. Archillion, 146 Ark. 64, 225 S.W. 5 (1920).

Where a note sued on was barred by the statute of limitations at the time when the last payment thereon was made, the payment revived the deed and it was not necessary to pay in money where the satisfaction of demands of the maker against others was treated by all parties as payment of the amount endorsed on the note. Johnson v. Spangler, 176 Ark. 328, 2 S.W.2d 1089, 59 A.L.R. 899 (1928).

A sale of mortgaged chattels by the mortgagee and application of the proceeds on a mortgage note was in effect the foreclosure of the mortgage and not such voluntary payment as would toll the statute of limitations. Taylor v. White, 182 Ark. 433, 31 S.W.2d 745 (1930).

Where a mortgage executed by a wife was barred by the statute of limitations when the husband paid the note, the payment did not revive the lien nor was the lien acquired by subrogation. Ogden v. Watts, 186 Ark. 500, 54 S.W.2d 292 (1932).

Where, in an action on a promissory note, the only issue involved was whether payments had been made which tolled the statute of limitations, an instruction by the court in which the jury was told that the burden rested on the plaintiff to prove his claim by a preponderance of the evidence, necessarily meant that the burden rested upon him to show that payments were made which prevented the note from being barred by the statute. Vittitow v. Lewis, 193 Ark. 318, 100 S.W.2d 89 (1936).

A payment by the trustee in bankruptcy to the creditor of a bankrupt will not prevent the running of the statute of limitations since the payment was not a voluntary payment. Bank of Searcy v. Kroh, 195 Ark. 785, 114 S.W.2d 26 (1938).

Maker's subsequent promise, in answer to request for payment of note, to pay $500 at a certain date and $100 a month thereafter, was evidence sufficient to toll statute of limitations. Cady v. Guess, 197 Ark. 611, 124 S.W.2d 213 (1939); Dunnington v. Taylor, 198 Ark. 770, 131 S.W.2d 627 (1939); Young v. Blocker, 201 Ark. 802, 146 S.W.2d 902 (1941); Hobson v. Priddy, 204 Ark. xviii, 165 S.W.2d 73 (1942).

Payments on a debt after the bar of the statute of limitations had attached, as between the parties, removes the bar and revives the debt. McNeill v. Rowland, 198 Ark. 1094, 132 S.W.2d 370 (1939).

Suits on notes upon which no payments have been made are barred in five years after maturity. Leverett v. Williamson, 199 Ark. 910, 136 S.W.2d 478 (1940).

To extend time for the filing of an action upon the indebtedness, the acknowledgement thereof must be an unconditional promise to pay or must be under such circumstances that an unconditional promise to pay may be inferred and it must be made by the party from whom the debt is due to one whom it is due or to his or her authorized agent. Root v. Thomas, 203 Ark. 1078, 160 S.W.2d 46 (1942).

Where part payment is accompanied by circumstances or declarations by the debtor showing it was not his intention to admit by the payment continued existence of the debt and his obligation to pay the balance, the law does not imply a promise. Buss v. Cooley, 205 Ark. 42, 167 S.W.2d 867 (1942).

Part payment of a debt by one joint and several debtors before action on note is barred by statute of limitations, is binding on the other debtors. Smith v. Grimsley, 215 Ark. 279, 220 S.W.2d 428 (1949).

Part payment by one joint and several debtor after action on the debt is barred by statute of limitations is not binding on the other debtors. Smith v. Grimsley, 215 Ark. 279, 220 S.W.2d 428 (1949).

If part payment is made on a promissory note, statute of limitations starts running from the date of the part payment. Smith v. Grimsley, 215 Ark. 279, 220 S.W.2d 428 (1949).

Bank, which advanced additional money on first mortgage loan after knowledge that agent of mortgagor had made an unrecorded payment within five year period on prior mortgage, was entitled to recover entire amount of loan, since prior mortgage was in effect a prior unrecorded mortgage. Tucker v. Atkinson, 219 Ark. 921, 245 S.W.2d 388 (1952).

Signer of mortgage notes was estopped to plead statute of limitations in suit by mortgagee to foreclose where payment was made on the obligation within five year period by virtue of apparent authority to make payment as agent. Tucker v. Atkinson, 219 Ark. 921, 245 S.W.2d 388 (1952).

Trustee of property was not a third party within meaning of § 18-49-101 (a)-(c), hence he was bound by payments made on mortgage. Tucker v. Atkinson, 219 Ark. 921, 245 S.W.2d 388 (1952).

Where evidence sustained finding that there had been payments of interest on notes then suit on notes and to foreclose vendor's lien would not be barred by five year statute of limitation. Affholter v. McCarley, 226 Ark. 735, 293 S.W.2d 698 (1956).

Part payment interrupts the running of this section. Johnson v. Gammill, 231 Ark. 1, 328 S.W.2d 127 (1959).

Where a mortgage was given to secure an initial loan and future advances and, at a time when there were several notes outstanding, the debtor wrote to the creditor offering to pay part but not all of the amount but not on his account identifying the notes he was offering to pay on, the letter was presumed to be an acknowledgement of the entire indebtedness and revived the statute as to the whole. McHenry v. Littleton, 237 Ark. 483, 374 S.W.2d 171 (1964).

The ledger crediting of the maker's credit balance on an open account with the holder of notes as payment on the notes, with the consent of the maker, stopped the running of the statute of limitations, notwithstanding failure of the holder of the notes and the mortgage securing them to endorse the payment on the margin of the recorded mortgage. Misenhimer v. Perkins Oil Co., 248 Ark. 434, 451 S.W.2d 864 (1970).

Decedent's Estate.

Running of statute is not suspended by death of maker of note until letters of administration are granted. Whipple v. Johnson, 66 Ark. 204, 49 S.W. 827 (1899); Salinger v. Black, 68 Ark. 449, 60 S.W. 229 (1900); A.R. Bowdre & Co. v. Pitts, 94 Ark. 613, 128 S.W. 57 (1910).

A suit on a contract to make a will accrues against the co-heirs on the promisor's death, and is governed by this statute as to limitations. Goff v. Beaty, 157 Ark. 212, 247 S.W. 787 (1923).

Conveyance of property in return for promise to care for person did not bar person from seeking accounting, and trial court correctly applied five-year, rather than three-year, statute of limitations to accounting since daughter's obligation arose from written deeds not oral or implied promise. Cluck v. Mack, 278 Ark. 506, 647 S.W.2d 442 (1983).

Ejectment.

In an ejectment matter, the statute of limitations for removal of a person from land, rather than the statute of limitations for cancellation of instruments, applies. Schwarz v. Colonial Mtg. Co., 326 Ark. 455, 931 S.W.2d 763 (1996).

Goods.

A shipper of freight may recover damages for delay in the transportation and delivery of freight in an action founded on the contract, and the five year statute applies to a claim founded on such a contract. Chicago, R.I. & P. Ry. v. Cunningham Comm. Co., 127 Ark. 246, 192 S.W. 211 (1917).

Insurance.

An action on a policy of disability insurance for monthly disability benefits was held not barred by the five year statute of limitations though recovery was limited to the five years preceding the filing of the action. Aetna Life Ins. Co. v. Langston, 189 Ark. 1067, 76 S.W.2d 50 (1934); Pacific Mut. Life Ins. Co. v. Jordan, 190 Ark. 941, 82 S.W.2d 250 (1935).

Where insured and beneficiary assigned life policy to secure indebtedness, beneficiary was not entitled, after insured's death, to maintain an action for the proceeds of the policy without paying the debt, even though the debt was barred by limitations. Hill v. Bush, 192 Ark. 181, 90 S.W.2d 490 (1936).

Suit instituted more than five years after injury to recover under disability clause of insurance policy was barred by limitations. Teague v. National Life Co., 204 Ark. 196, 161 S.W.2d 754 (1942).

Where tie-in line was not constructed under original contract for electrical construction on which the statute would have run but was constructed under separate agreement which was not yet barred, contractee's suit for indemnity against contractor on indemnity agreement on judgment recovered by employee for injuries sustained was not barred by this section. Kincade v. C & L Rural Elec. Coop. Corp., 227 Ark. 321, 299 S.W.2d 67 (1957).

There was no evidence of record that insurance company attempted to fraudulently conceal, cover-up, or misrepresent to an estate the problem of determining the proper beneficiary of an insurance policy, so that fraud did not suspend the running of the statute of limitations. First Pyramid Life Ins. Co. of Am. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), rehearing denied, First Pyramid Life Ins. Co. v. Stoltz, 312 Ark. 95, 843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908, 114 S. Ct. 290 (1993).

Insured's declaratory relief action to determine the availability of underinsured motorist benefits was an action to recover a claim arising under a policy of insurance and was governed by the five-year statute of limitation in this section; in addition, the running of the statute of limitation was triggered by the breach of the contract and not the underlying accident. Shelter Mut. Ins. Co. v. Nash, 357 Ark. 581, 184 S.W.3d 425 (2004).

Insured's breach of contract suit, which was brought outside an accidental death and dismemberment policy's three-year time limit, was timely. Section 23-79-202 precluded the insurer from contractually shortening the limitations period to less than the five-year period for breach of contract actions under subsection (a) of this section. Graham v. Hartford Life & Accident Ins. Co., 677 F.3d 801 (8th Cir. 2012).

Installment payments.

When an obligation is made payable by installments, the statute of limitations runs against each installment as it becomes due and unpaid. Riley v. Riley, 61 Ark. App. 74, 964 S.W.2d 400 (1998).

Lease.

Air conditioner installation, undertaken without written consent in violation of the terms of the lease, was completed by March 5, 2003, and the limitations period ended on March 5, 2008, which expired before this case began, and thus the trial court erred in finding that the action was not barred. Filat v. Rand, 2015 Ark. App. 316, 463 S.W.3d 301 (2015).

Medical Services.

Section 16-56-106, and not this section, covers all actions brought to recover charges for medical services. Ballheimer v. Service Fin. Corp., 292 Ark. 92, 728 S.W.2d 178 (1987).

Limitations period contained in § 16-56-106, and not that of this section, is applicable to a debt for hospital services. Thomas v. Service Fin. Corp., 293 Ark. 190, 736 S.W.2d 3 (1987).

Pleadings.

Amendment to more than five years after cause accrued, where the original complaint was filed within the five year period, was not the bringing of a new cause of action, and the cause of action was not barred. McGraw v. Miller, 184 Ark. 916, 44 S.W.2d 366 (1931).

If a party had such an interest in the note sued on as entitled it to maintain a suit for the use and benefit of another, the filing of its complaint would serve to toll the statute of limitations, and any pleading filed thereafter by way of amendment would relate back to the institution of the original action; but if it did not have such a cause of action, the amendment to the complaint offered by the second party was only an effort to substitute the party in interest for one who had no cause of action which cannot be permitted. Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938), superseded by statute as stated in, St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (Ark. 2002).

The defense of limitations may be raised by motion to dismiss. Adams v. Greer, 114 F. Supp. 770 (W.D. Ark. 1953).

Property Settlement Agreement.

Former wife's claims in her motion for contempt that a former husband failed to comply with certain provisions in their property settlement agreement was barred by the five-year statute of limitations in this section that applied to written contracts as the settlement was an independent contract that did not merge with the divorce decree. The husband's mental health problems were not sufficient to make him insane for purposes of tolling the statute under § 16-56-116, and in any event, the wife, not the husband, was the one bringing the action. Wall v. Wall, 2011 Ark. App. 143 (2011).

Real Estate Interests.

An action for breach of a contract by the plaintiff's predecessor in title to open an alley between the lot conveyed and an adjacent lot before selling the latter which he sold three years prior to bringing suit was held not barred by the statute of limitations. Holthoff v. Joyce, 174 Ark. 248, 294 S.W. 1006 (1927).

Where mortgagee within five years from maturity date of note and institution of foreclosure suit had redeemed the land from tax sale and paid the taxes thereon, under the power so to do given in the mortgage, foreclosure suit was not barred by this statute. Dalton v. Polster, 200 Ark. 168, 138 S.W.2d 64 (1940).

Lien of attorney on land of estate made a part of the conveyance by the executrix could not be asserted after eight years. Tellier v. Darragh, 220 Ark. 363, 247 S.W.2d 960 (1952).

Where claimant did not file his affidavit with the real estate commission until more than five years after he signed the purchase agreements, his claim was not barred as the period of limitations for contracts runs from the point at which the cause of action accrues, rather than from the date of the agreement. Eckels v. Ark. Real Estate Comm'n, 30 Ark. App. 69, 783 S.W.2d 864 (1990).

Breach of warranty case against the sellers of real property was barred by the five-year statute of limitations because the cause of action accrued at the time of the sale, but not at the time of a court order quieting title in a portion of the property to several neighbors. The breach and constructive eviction occurred on the date of the deed. Riddle v. Udouj, 99 Ark. App. 10, 256 S.W.3d 556 (2007), aff'd, 371 Ark. 452, 267 S.W.3d 586 (2007).

In a declaratory judgment action, even if the five-year statute of limitations did not begin to run until there was notice that a first lease was being relied on, a complaint was time-barred due to a recordation of an assignment; the recording served as constructive notice from the time the instrument was filed for record, and the case was filed more than 5 years after an assignment was recorded. The circuit court did not err by treating the claim as raising contract enforcement issues and applying the relevant statutory period of limitations. McDougal v. Sabine River Land Co., 2015 Ark. App. 281, 461 S.W.3d 359 (2015).

—Abstractors.

The right of action against an abstractor for damages resulting from errors, defects, or omissions in an abstract of title prepared by him is not and cannot be based on the written certificate attached to the abstract because the written certificate is only evidence of the provisions of the preexisting oral or implied contract of employment. Adams v. Greer, 114 F. Supp. 770 (W.D. Ark. 1953).

The right of action against an abstractor for damages resulting from errors, defects, or omissions in an abstract of title prepared by him accrues at the time of the delivery of the abstract. Adams v. Greer, 114 F. Supp. 770 (W.D. Ark. 1953).

In action for dissolution of alleged partnership formed for the purpose of selling lots and on accounting for plaintiff's alleged interest in the property covering the lots, recovery could not be had where it was shown that suit was commenced after the five-year period. Booth v. Hayde, 228 Ark. 244, 307 S.W.2d 227 (1957).

—Deeds.

A deed, signed by grantor alone when accepted by the grantee, becomes the mutual contract of the parties and any promise of the grantee therein provided for is governed by the provision of the statute of limitations respecting written instruments. Parker v. Carter, 91 Ark. 162, 120 S.W. 836 (1909).

Where the grantee in a deed as consideration undertook to maintain the grantors during life, the contract was not barred by limitations where the grantee never repudiated the obligation. Federal Land Bank v. Miller, 184 Ark. 415, 42 S.W.2d 564 (1931).

Grantor's action for breach of covenant in deed was barred by limitation of this section where action was commenced more than five years after right of action occurred. Roemhild v. Jones, 283 F.2d 70 (8th Cir. 1960).

In suit to cancel deed, plaintiff could not invoke the aid of equity without first doing equity herself by recognizing the validity of the grantee's lien; therefore, she could not contend that his claims were barred by the five-year statute of limitations. Daniels v. Johnson, 234 Ark. 315, 351 S.W.2d 853 (1961).

An action for breach of warranty in a deed was not barred by the three year statute, as actions on writings under seal are not barred until five years after the cause of action accrues. Booth v. Mason, 241 Ark. 144, 406 S.W.2d 715 (1966).

In a case concerning a real estate transaction in which the deed was held in escrow until purchaser's six-month note came due, five-year statute of limitations did not begin to run until the note became due. Woods v. Wright, 254 Ark. 297, 493 S.W.2d 129 (1973).

—Property Settlement Agreement.

Where the property settlement agreement was an independent contract that was incorporated into the court decree, it did not merge into the decree and was, therefore, subject to the five-year statute of limitations under this section, and not the ten-year limitations period in § 16-56-114. Meadors v. Meadors, 58 Ark. App. 96, 946 S.W.2d 724 (1997).

Retirement Benefits.

This section applied to a claim in federal court for retirement benefits under federal statute. Bennett v. Federated Mut. Ins. Co., 141 F.3d 837 (8th Cir. 1998).

Service Contracts.

Where the services in question were rendered upon a written contract to which the five-year statute of limitations applied, the plea of the statute was unavailing where the services were rendered within such period. Central Clay Drainage Dist. v. Hunter, 174 Ark. 293, 295 S.W. 19 (1927).

Waiver.

An agreement to waive the statute of limitations for all time, made at the inception of a contract, is void because it violates public policy. First Nat'l Bank v. Arkansas Dev. Fin. Auth., 44 Ark. App. 143, 870 S.W.2d 400 (1994).

Written Acknowledgement of Oral Contract.

Written security agreement was a sufficient acknowledgment of a valid existing debt for attorney's fees so as to start the statute of limitations running anew. However, the written acknowledgement did not transform the oral agreement for fees into a written one, and the three-year statute applicable to oral agreements under § 16-56-105 still applied, rather than the five-year statute for written agreements under this section, thereby barring an attorney's claim for fees. Still v. Perroni Law Firm, 2011 Ark. 447, 385 S.W.3d 182 (2011).

Written Instruments.

Where the various written communications between the parties contain all the terms of sale, the five-year limitation applies. Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922).

Where the plaintiff entered into a written contract for the sale of merchandise, and certain of the defendants at the time of the execution of the contract joined therein for the purpose of becoming guarantors of the purchasers, a suit upon the agreement is upon a written contract to which the five-year statute of limitations applies, though an account of the purchases under the agreement is filed with the complaint. W.T. Rawleigh Co. v. Pritchard, 151 Ark. 390, 236 S.W. 833 (1922).

A bill of lading is an instrument in writing, and the five-year statute applies to suit to recover on it. Missouri Pac. R.R. v. Pfeiffer Stone Co., 166 Ark. 226, 266 S.W. 82 (1924).

This section applies to a buyer's action for damages for breach of warranty arising from a written contract of sale. Louisville Silo & Tank Co. v. Thweatt, 174 Ark. 437, 295 S.W. 710 (1927).

An order for merchandise, given over the telephone but later confirmed in writing and accepted by the seller shipping the hose and rendering an invoice, was held a written contract within the five-year statute. City of Ft. Smith v. United States Rubber Co., 184 Ark. 588, 42 S.W.2d 1004 (1931).

The fact that oral proof was required to identify plaintiffs as third party beneficiaries under a written contract and to establish the amount due each under the provisions of the contract did not prevent the five-year limitation of this section rather than the three year limitation of § 16-56-105 from applying. H.B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955).

Suit on written support contract made in contemplation of divorce is a suit on a written instrument and is governed by the five-year statute of limitations. Altman v. Altman, 240 Ark. 370, 399 S.W.2d 501 (1966).

District court's verdict was reversed on appeal where the applicable statute of limitations began to run at the latest date the plaintiff lessor learned its land had suffered a remediable injury, though it did not yet know the extent of the injury; thus, the breach of contract claim was timely. Highland Indus. Park, Inc. v. BEI Def. Sys. Co., 357 F.3d 794 (8th Cir. 2004).

Trial court properly ruled that the handwritten agreement was a final, binding contract rather than a preliminary negotiation, and thus properly applied the five-year limitations period under this section rather than the three-year limitations period in § 16-56-105. Patel v. Patel, 2015 Ark. App. 726, 479 S.W.3d 580 (2015).

Five-year statute of limitations for contract claims applied to an investor's amended complaint against the investor's investment account manager, rather than the three-year statute of limitations for negligence claims, because the investor pleaded a breach of contract and a specific promise; the investor alleged there was a contract between the investor and the manager, that the manager specifically promised to process an account transaction in a timely manner, that the manager breached this specific promise, and that the investor suffered damages. Farris v. Conger, 2017 Ark. 83, 512 S.W.3d 631 (2017).

Cited: Equitable Life Assurance Soc'y v. Gordy, 228 Ark. 643, 309 S.W.2d 330 (1958); Fuller v. Fuller, 240 Ark. 475, 400 S.W.2d 283 (1966); Carter v. Zachary, 243 Ark. 104, 418 S.W.2d 787 (1967); Federal Land Bank v. Wilson, 533 F. Supp. 301 (E.D. Ark. 1982); Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986); Coast-to-Coast Stores, Inc. v. Citizens Bank, 676 F. Supp. 923 (E.D. Ark. 1987); Refco, Inc. v. Farm Prod. Ass'n, 844 F.2d 525 (8th Cir. 1988); O'Bryant v. Horn, 297 Ark. 617, 764 S.W.2d 445 (1989); Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992 (8th Cir. 1989); Ferguson v. Order of United Com. Travelers of Am., 307 Ark. 452, 821 S.W.2d 30 (1991); Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994); Kinkead v. Estate of Kinkead, 51 Ark. App. 159, 912 S.W.2d 442 (1995); Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 258 (1996); Federal Fin. Co. v. Noe, 335 Ark. 78, 983 S.W.2d 107 (1998); Martin v. Equitable Life Assurance Soc'y of the United States, 344 Ark. 177, 40 S.W.3d 733 (2001); Wilkins v. Hartford Life & Accident Ins. Co., 299 F.3d 945 (8th Cir. 2002).

16-56-112. Design, planning, supervision, or observation of construction, repair, etc. — Actions for property damage, personal injury, or wrongful death.

  1. No action in contract, whether oral or written, sealed or unsealed, to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repair of any improvement to real property or for injury to real or personal property caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction or repair of the improvement more than five (5) years after substantial completion of the improvement.
    1. No action in tort or contract, whether oral or written, sealed or unsealed, to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement more than four (4) years after substantial completion of the improvement.
    2. Notwithstanding the provisions of subdivision (b)(1) of this section, in the case of personal injury or an injury causing wrongful death, which injury occurred during the third year after the substantial completion, an action in tort or contract to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which injury occurred, irrespective of the date of death, but in no event shall such an action be brought more than five (5) years after the substantial completion of construction of such improvement.
  2. The foregoing limitations shall also apply to any action for damages caused by any deficiency in surveying, establishing, or making the boundaries of real property, the preparation of maps, or the performance of any other engineering or architectural work upon real property or improvements to real property.
  3. The limitations prescribed by this section shall not apply in the event of fraudulent concealment of the deficiency, nor shall the limitation be asserted by way of defense by any person in actual possession or control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency in the improvement constitutes the proximate cause of the injury or death.
  4. If a person furnishes designs or plans which are not used within three (3) years from the date they are furnished, no action shall lie against that person for deficiency in the designs or plans.
  5. Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any cause of action, nor shall the parties to any contract for construction extend the above prescribed limitations by agreement or otherwise.
  6. As used in this section, the term “person” shall mean an individual, corporation, trust, partnership, unincorporated organization, limited liability company, or any other business association or entity.
    1. It is the intent of the General Assembly and the purpose of this subsection to reinstate and to codify the accepted-work doctrine for publicly owned improvements to public property, which was repudiated by the Arkansas Supreme Court in Suneson v. Holloway Construction Co., 337 Ark. 571 (1999).
      1. A contractor who performs the construction or repair of any publicly owned improvement to public real property in substantial compliance with the designs or plans, after a practical acceptance of the completion of the improvement by the person representing the government entity in actual possession or control thereof as proprietor, owner, tenant, or otherwise, shall incur no further liability to third parties by reason of the condition of the work unless contracted otherwise by the parties.
      2. The contractor may be liable for an improvement that is a nuisance per se, or that contains a defect that could not reasonably be detected on inspection by the proprietor, or that was turned over by the contractor in a manner so negligently defective as to be eminently dangerous to third persons.

History. Acts 1967, No. 42, §§ 1-8; A.S.A. 1947, §§ 37-237 — 37-244; Acts 2001, No. 1119, §§ 1, 2.

A.C.R.C. Notes. Acts 2001, No. 1119, § 3, provided: “This act shall not apply to any case based upon facts which occurred prior to the effective date of this act.” The effective date of Acts 2001, No. 1119, is March 27, 2001.

Amendments. The 2001 amendment, in (g), inserted “trust,” “limited liability company” and “or entity”; and added (h).

Research References

ALR.

What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations. 122 A.L.R.5th 1.

Ark. L. Notes.

Looney, When Third Means Fourth, Contract Includes Tort, and a Five-Year Statute of Limitation Actually Leaves Only Three Years or Less to File Suit: The Strange Saga of the Arkansas “Statute of Repose” in Construction Cases, 1993 Ark. L. Notes 87.

U. Ark. Little Rock L.J.

Paul, The Law of Construction Bonds in Arkansas: A Review, 9 U. Ark. Little Rock L.J. 333.

Survey, Contracts, 14 U. Ark. Little Rock L.J. 329.

Seventeenth Annual Survey of Arkansas Law — Torts, 17 U. Ark. Little Rock L.J. 453.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.

Luke K. Burton, Note: Property Improvement Claims—A History and Recommendation for Arkansas's Lone True Statute of Repose, 35 U. Ark. Little Rock L. Rev. 415 (2013).

Case Notes

Constitutionality.

This section does not grant special privileges or immunities in violation of Art. 2, § 18, of the Arkansas Constitution, as a vital distinction exists between owners or suppliers and those engaged in the professions and occupations of design and building. Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S. Ct. 868, 27 L. Ed. 2d 800 (1971).

This section is not a special law in violation of Art. 5, § 25, or Amendment 14 of the Arkansas Constitution because it is limited to those furnishing design or construction for improvements to real estate. Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S. Ct. 868, 27 L. Ed. 2d 800 (1971).

In General.

Subdivision (b)(1) of this section is a substantive statute. Brown v. Overhead Door Corp., 843 F. Supp. 482 (W.D. Ark. 1994).

Construction.

The phrase “in contract” should be construed in the light of the legislative purpose and the language of the preamble to Act 1967, No. 42 to extend the coverage of this section to all actions which arise out of a construction contract where property damage has allegedly resulted from any deficiency in design, planning, supervision, or observation of construction, or the construction and repair of any improvement to real property. Okla Homer Smith Furn. Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983).

The legislature simply made a mistake when it used “third” instead of “fourth” in the phrase “occurred during the third year after the substantial completion” in subdivision (b)(2). Dooley v. Hot Springs Family YMCA, 301 Ark. 23, 781 S.W.2d 457 (1989).

There is no exception in subsection (a) for residential property, and the statute does not give the purchaser of residential property a reasonable length of time to bring suit. Rogers v. Mallory, 328 Ark. 116, 941 S.W.2d 421 (1997).

Because this section provided a statute of repose on actions to recover damages caused by a deficiency in the construction of an improvement to real property, and the instant case involved an alleged breach of an indemnity provision in a construction contract, the statute did not apply; if the legislature wants to expand the protection afforded by the statute of repose to include indemnity actions arising from construction work, it may wish to amend the statute. Ray & Sons Masonry Contrs., Inc. v. United States Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003).

Because a statute of repose is not an affirmative defense, the failure to plead it as an affirmative defense is not a bar to raising the issue on appeal; thus, the court considered the issue on appeal as claimed by a subcontractor. Ray & Sons Masonry Contrs., Inc. v. United States Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003).

Purpose.

The legislative purpose of this section was to enact a comprehensive statute of limitations protecting persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit. Okla Homer Smith Furn. Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983).

Applicability.

The manufacturers of mass produced fungible goods do not fall within the protection of subdivision (b)(1) of this section, particularly when the defendant manufacturer is not involved in the installation of the product and had nothing to do with the design of the improvement within which it is installed. Brown v. Overhead Door Corp., 843 F. Supp. 482 (W.D. Ark. 1994).

In a breach of contract action for alleged architectural defects, in which a written contract was involved, § 16-56-111(b) was the applicable statute of limitations; the existence of this section did not extend the statute of limitations under § 16-56-111(b) or otherwise affect its applicability. Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996).

Summary judgment was properly granted in favor of a construction company in a negligent construction case because a lawsuit was not filed until after the three-year period in § 16-56-105(3) had run; there was no evidence that the company had performed any repairs or that repairs were done on its behalf, and, even if repair work had been done on the company's behalf, the statute of limitations would have only been tolled during the period of repairs, which was not of sufficient length to render the claim timely. Without proof of the attempted repairs, the statute of repose in subsection (a) of this section did not come into play, and there was no tolling of the three-year statute of limitations. Marshall v. Turman Constr. Corp., 2012 Ark. App. 686 (2012).

Circuit court did not err by allowing a property owner's negligence case to go to the jury because it was not barred by the statute of repose. The claim was not one for personal injury or wrongful death; rather, the claim was solely based on property damage. Platinum Peaks, Inc. v. Bradford, 2015 Ark. App. 548, 473 S.W.3d 70 (2015).

Action Barred.

Plaintiff's action in contract was filed more than five years after substantial completion of subcontractor's work and was barred by this section. Okla Homer Smith Furn. Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983).

Suit for damage to shop brought more than five years after shopping center was built was barred by this section. Elliotte v. Johnson, 285 Ark. 383, 687 S.W.2d 523 (1985).

In directing the verdict, the trial court properly found no evidence of fraudulent concealment that would have tolled the statute of limitations found in subsection (a) of this section; the homeowner testified that, upon inspecting the house with a realtor prior to purchasing it in 1991, he noticed cracks along mortar joints and in the sheet rock caused by the expanding and contracting soil, and the fact that the homeowner discussed the problem with the builder in 1994 showed that he had sufficient knowledge to commence the running of the statute of limitations. Curry v. Thornsberry, 81 Ark. App. 112, 98 S.W.3d 477 (2003), aff'd, 354 Ark. 631, 128 S.W.3d 438 (2003).

Trial court properly directed a verdict for home builder because, although the home buyers offered some proof of the defective condition of the home, they offered no evidence to indicate that the builder engaged in some positive act of fraud to toll the statute of limitations; moreover, the buyers knew that the house had defects before they purchased it. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).

Where the residence was constructed in 1987, but appellant's suit was not filed until 1995, in the absence of fraudulent concealment of the alleged deficiencies in construction of their home, appellant's suit was barred as of 1992 by the statute of limitations found in subsection (a) of this section and the builder was properly granted a directed verdict. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).

Because subsection (f) of this section unambiguously prohibited the parties to a construction contract from extending, by agreement or otherwise, the five-year-limitations period set forth in subsection (a), the architect and designer were properly awarded partial summary judgment in an owner's breach of contract action. First Elec. Coop. Corp. v. Black, Corley, Owens & Hughes, P.A., 2011 Ark. App. 447 (2011).

Even though they relied on a written builder's warranty, the crux of homeowners' complaint was that they were damaged by the defective construction of their house. This fit squarely within this section, the statute of repose, and therefore their action brought more than five years after the home was completed was barred. Varadan v. Pagnozzi, 2012 Ark. App. 700 (2012).

Statute of repose barred a school district's breach of warranty, breach of contract, and negligence claims against a supplier of roofing materials used in construction of a school building; the building was substantially completed more than five years before the suit was filed, and the statute was not tolled while the supplier tried to repair the roof because there was no evidence that the supplier fraudulently concealed the roof's deficiencies. Star City Sch. Dist. v. ACI Bldg. Sys., LLC, 844 F.3d 1011 (8th Cir. 2017).

Breach of Implied Warranty.

The five-year limit imposed by subsection (a) applies to claims for breach of the implied warranty of habitability of a dwelling even where the alleged breach was not discovered until after the limitations period had run. Rogers v. Mallory, 328 Ark. 116, 941 S.W.2d 421 (1997).

There is an implied warranty of fitness and habitability in the sale of a new house which extends to the subsequent purchasers of the home. Curry v. Thornsberry, 354 Ark. 631, 128 S.W.3d 438 (2003).

Improvement to Real Property.

For action for damages resulting from breach of contract when equipment failed, the equipment constituted an improvement to real property although not bolted or otherwise attached to the building where it was interconnected with other parts of machinery and equipment of the plaintiff and therefore the limitation of this section governed. Cherokee Carpet Mills, Inc. v. Manly Jail Works, Inc., 257 Ark. 1041, 521 S.W.2d 528 (1975).

Subsection (a) clearly establishes a maximum five-year period within which an injured party can bring suit against a person who deficiently constructs or repairs an improvement to real property which commences after the substantial completion of the improvement, but, in bringing such a suit, the injured party must still bring the action within the statute of limitations for that type of cause of action. If the breach or injury occurs immediately after the completion of the improvement, the injured party must still comply with § 16-56-105(3) and bring his action within three years from when the breach occurs but not later than the five-year period provided in subsection (a). East Poinsett County Sch. Dist. No. 14 v. Union Std. Ins. Co., 304 Ark. 32, 800 S.W.2d 415 (1990).

Retaining wall was an “improvement.” 65th Ctr., Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992).

Cited: Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970); City of Hot Springs v. National Sur. Co., 258 Ark. 1009, 531 S.W.2d 8 (1975); Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).

16-56-113. Bonds of executors and administrators.

Actions on the bonds of executors and administrators shall be commenced within eight (8) years after the cause of action shall accrue, and not afterward.

History. Acts 1844, § 1, p. 24; C. & M. Dig., § 6958; Pope's Dig., § 8936; A.S.A. 1947, § 37-211.

Case Notes

Accrual of Action.

The statute does not begin to run against a cause of action on an administrator's bond until there is a final judgment in the probate court and an order to pay creditors which is violated by the administrator. Hall v. Cole, 71 Ark. 601, 76 S.W. 1076 (1903).

Fraud.

Proceeding by collateral heirs, to set aside judgment secured by alleged sole heir against estate was barred where it was filed more than eight years after rendition of judgment, since alleged fraud in securing of judgment did not toll limitation period. Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954).

Cited: Hanf v. Whittington, 42 Ark. 491 (1883); Meyer v. Fidelity & Deposit Co., 197 Ark. 418, 122 S.W.2d 586 (1938).

16-56-114. Judgments and decrees.

Actions on all judgments and decrees shall be commenced within ten (10) years after cause of action shall accrue, and not afterward.

History. Acts 1844, § 1, p. 24; C. & M. Dig., § 6959; Pope's Dig., § 8937; A.S.A. 1947, § 37-212.

Cross References. Executions on judgments in justice of the peace courts limited to five years, § 16-19-1002.

Ten years to bring scire facias to revive judgment, § 16-65-501.

Case Notes

In General.

The defense of the statute of limitations is a valid or meritorious one such as will support the vacation of a judgment. Berringer v. Stevens, 145 Ark. 293, 225 S.W. 14 (1920).

Judgment lien expires within three years after its rendition, unless revived, but judgment creditor may issue an execution on the judgment at any time within ten years after its rendition. Bird v. Kitchens, 215 Ark. 609, 221 S.W.2d 795 (1949), cert. denied, 338 U.S. 892, 70 S. Ct. 241 (1949).

This section does not provide for revival of the statute of limitations for actions on a judgment by a subsequent acknowledgment of debt. Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999).

Under § 16-65-501, the dealership owner's writ of scire facias to revive a ten-year-old judgment against the partner should have been granted because the owner's 1993 judgment had not been satisfied; the partner had twice tendered the cash and stock certificates but, despite his efforts, he had been unable to extinguish his judgment debt. Carder Buick-Olds Co. v. Wooten, 2009 Ark. App. 310, 308 S.W.3d 156 (2009).

Accrual of Action.

The cause of action accrues upon the rendition of the judgment, but the issuance of process or payment on a judgment will toll the statute and form a new period from which it will run. Koontz v. La Dow, 133 Ark. 523, 202 S.W. 686 (1918).

The date of payment on a judgment is the time from which a new period of life for ten years begins to run. Pepin v. Hoover, 205 Ark. 251, 168 S.W.2d 390 (1943).

A cause of action on a judgment accrues on the date the judgment is rendered. A. Karcher Candy Co. v. Hopkins, 211 Ark. 810, 202 S.W.2d 588 (1947).

Child Support.

This section does not apply to the recovery of delinquent child-support payments since the order for child-support is not a final decree. Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957).

In actions for child-support arrearages, the limitation period found in § 9-14-236 applies, not the ten-year statute in this section. Cole v. Harris, 330 Ark. 420, 953 S.W.2d 586 (1997).

While § 9-14-234 provides that child support installments payable through the court registry become final judgments as they accrue, this section's general ten-year statute of limitations does not apply to actions to collect such arrearages; instead, the limitations period found at § 9-14-236(c) governs. Sanderson v. Harris, 330 Ark. 741, 957 S.W.2d 685 (1997).

Enforcement of a judgment for accrued child support arrearages was barred where the judgment was rendered in July, 1985, the only proven payment on the judgment was a garnishment in September, 1985, and no action was commenced within 10 years from that date. Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999).

Criminal Proceedings.

This statute has no relation to criminal proceedings. Stocks v. State, 171 Ark. 835, 286 S.W. 975 (1926).

Estate Administration.

Probate allowances are within this statute; while the statute does not operate to bar a judgment during the course of administration, it commences running when the administrator is discharged. Brown v. Hanauer, 48 Ark. 277, 3 S.W. 27 (1886), overruled in part, Price v. Price, 253 Ark. 1124, 491 S.W.2d 793 (1973).

Statute does not begin to run against claim against estate until administration has been closed. Tellier v. Darragh, 220 Ark. 363, 247 S.W.2d 960 (1952).

Even though a claim against an estate may be considered a judgment and the ten-year statute govern, where administratrix sold real property of estate to herself subject to lien for attorney's fee, there was a waiver of the claim against the estate in favor of the contractual lien in the deed and rights were barred by delay of eight years. Tellier v. Darragh, 220 Ark. 363, 247 S.W.2d 960 (1952).

Foreign Judgments.

Even though Arkansas provides a ten-year period for the enforcement of all judgments which also applies to judgments revived in this state, where a judgment was revived in Illinois under that state's 20-year statute of limitations, and registration and enforcement were then sought in Arkansas, this state would give full faith and credit to the validly revived Illinois judgment. Durham v. Ark. Dep't of Human Services/Child Support Enforcement Unit, 322 Ark. 789, 912 S.W.2d 412 (1995).

Trial court properly denied property owners' motion to quash judgment holder's motion to execute a Missouri judgment by forcing the sale of Arkansas real estate; the Arkansas statute of limitations applied because the Missouri statute of limitations, Mo. Ann. Stat. § 516.350, was procedural in nature as it only worked to extinguish the judgment holders' remedy and the action was timely under the Arkansas statute. Middleton v. Lockhart, 355 Ark. 434, 139 S.W.3d 500 (2003).

Petition to revive a foreign judgment was not barred by the running of the statute of limitations under this section because the application was filed well within the 10 year period of a judgment that was registered in 2003; even if a judgment filed in 2001 was the appropriate judgment to begin the running of the limitations period, the application was still timely because it was filed exactly 10 years from the date the judgment. The day that the judgment was entered was not counted in computing the limitations period. Bird v. Shaffer, 2012 Ark. App. 464 (2012).

Justices of Peace.

This section applies to judgments of justices of the peace; the provision of § 16-19-1002 against issuing execution after five years does not prevent suits on the judgment nor bar recovery. Hicks v. Brown, 38 Ark. 469 (1881); Trammell v. Anderson, 52 Ark. 176, 12 S.W. 328 (1889).

Municipal Courts.

This section applies to judgments of municipal courts. A. Karcher Candy Co. v. Hopkins, 211 Ark. 810, 202 S.W.2d 588 (1947).

Property Settlement Agreement.

Where the property settlement agreement was an independent contract that was incorporated into the court decree, it did not merge into the decree and was, therefore, subject to the five-year statute of limitations in § 16-56-111, and not the ten-year limitations period under this section. Meadors v. Meadors, 58 Ark. App. 96, 946 S.W.2d 724 (1997).

Public Administrator.

Where final settlement as public administrator was approved by the probate court, a suit thereon filed seven years later was not barred by the ten year statute although the sheriff went out of office more than ten years before suit was filed. Elmore v. Bishop, 184 Ark. 243, 42 S.W.2d 399 (1931).

Since creditor could enforce his judgment with a remedy of a resulting trust, the district court erred in finding that his claim was time-barred by the Arkansas Fraudulent Transfers Act, § 4-59-201 et seq.; the allegations were sufficient to argue that a resulting trust was formed, and the creditor, who was entitled to step into the debtor's shoes, timely filed his claim within the 10 years for enforcing a judgment against the defendant, the trustee/title holder of real property held for the benefit of the debtor. Imperato v. McMinn, 406 F.3d 987 (8th Cir. 2005).

Suspension of Statute.

While a judgment is enjoined, a statute does not run, and intermediate executions and payments form new points for the running of the statute. Lindsay v. Merrill, 36 Ark. 545 (1880).

Process may be issued at any time before the enforcement of a judgment is barred, and a break in the running of the statute of limitations will constitute the commencement of a new period not only for an action to enforce the judgment but for the issuance of process. Koontz v. La Dow, 133 Ark. 523, 202 S.W. 686 (1918).

Worker's Compensation.

While a two-year statute of limitations applied to the filing of a claim for workers' compensation benefits, pursuant to § 11-9-702(a)(1), that limitations period did not apply to bar the employee's claim against the employer where the employee was not filing a claim for workers' compensation benefits, but instead was seeking to enforce an Illinois judgment he had already received based on an injury he sustained in Illnois while working for the employer; in that case, this section's 10-year limitations period for enforcement of judgments applied. Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710 (2001).

Cited: A. Baldwin & Co. v. Williams, 74 Ark. 316, 86 S.W. 423 (1905); Martin v. H.T. Simon, Gregory & Co., 86 Ark. 280, 110 S.W. 1046 (1908); Koontz v. La Dow, 133 Ark. 523, 202 S.W. 686 (1918); Epperson v. Singleton, 247 Ark. 1006, 449 S.W.2d 203 (1970).

16-56-115. Limitation of actions not otherwise provided for.

All actions not included in §§ 16-56-104, 16-56-105, 16-56-108, and 16-56-109 shall be commenced within five (5) years after the cause of action has accrued.

History. Rev. Stat., ch. 91, § 11; C. & M. Dig., § 6960; Pope's Dig., § 8938; A.S.A. 1947, § 37-213.

Case Notes

Accrual.

Subdivision lot owner's action for breach of restrictive covenants and a declaration that such covenants were unenforceable was barred by the applicable statute of limitations under this section, as the cause of action accrued when a golf club and a successor-in-interest to the developer of the subdivision sold the first lot that they deferred a monthly fee for, not with each deferred lot sold. Beckworth v. Diamante, 2010 Ark. App. 815, 379 S.W.3d 752 (2010).

Action Time-Barred.

It was generally known by 2003 that the club was actively deferring dues, and assuming that 2003 was the date for the tolling of the statute, the latest that suit could have been brought was in 2008; as the suit was brought in 2012, any action based on the club's deferment of dues was time-barred. Dye v. Diamante, 2017 Ark. 42, 510 S.W.3d 759 (2017).

Actions on Accounts.

An action to surcharge the account of a treasurer is barred in five years. Sims v. Craig, 171 Ark. 492, 286 S.W. 867 (1926).

Applicability.

This section's five-year statute of limitations is applicable to those child support payments due prior to the effective date of §§ 9-14-236 and 16-56-129 (repealed), and the new ten-year statute of limitations found in those sections is applicable to payments accruing after the effective date of those sections. Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), superseded by statute as stated in, Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), superseded by statute as stated in, Branch v. Carter, 54 Ark. App. 70, 923 S.W.2d 874.

Attorney's Lien.

Lien of attorney on land sold by estate could not be asserted after eight years. Tellier v. Darragh, 220 Ark. 363, 247 S.W.2d 960 (1952).

Breach of Warranties.

It is clear that physical encroachments may result in a constructive eviction, and likewise, if a person builds a fence or wall completely surrounding his or her home and in so doing encloses a portion of their neighbor's yard, the record owner has been dispossessed; such an encroachment need not completely foreclose the possibility of physical entry in order to result in constructive eviction. Riddle v. Udouj, 371 Ark. 452, 267 S.W.3d 586 (2007).

Trial court properly found that buyers' claim of breach of the warranties of title and quiet enjoyment were barred by the statute of limitations under this section; there were visible fences establishing the boundary and the neighbors were using the disputed property as their own on the date of the conveyance, and thus the buyers were constructively evicted and the warranties of title and quiet enjoyment were breached as of the date of the conveyance in 1996, and the limitations period had expired when the buyers filed their complaint in 2005. Riddle v. Udouj, 371 Ark. 452, 267 S.W.3d 586 (2007).

For statute of limitation purposes under this section regarding buyers' claim of breach of the warranties of title and quiet enjoyment, the question was whether the buyers were constructively evicted from the disputed property at some point before an order was entered in a prior, separate quiet title action; the court noted that a neighbors' letter could only have put the buyers on notice of a competing claim to the land and it could not have effected an eviction if the buyers were currently in possession of the property, and while the trial court's reasoning was flawed in this regard, the court could affirm if the trial court reached the correct decision, which it did, that the breach of warranty claim was time-barred. Riddle v. Udouj, 371 Ark. 452, 267 S.W.3d 586 (2007).

Five-year statute of limitations for breach of warranty of title under this section began to run at the time defendants cut off electricity to a life estate grantee's home located on the property, not at an earlier date when she was unable to use the entire 463 acres of the property. Jackson v. Smith, 2010 Ark. App. 681, 380 S.W.3d 443 (2010).

Change in limitations.

There is no constitutional impediment, except in title to property cases, to increasing the length of a limitation period and making the increase retroactive to cover claims already in existence; however, the General Assembly may not expand a limitation period so as to revive a claim already barred. Chunn v. D'Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993).

Child Support.

Action to recover delinquent child support payments is governed by this section. Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957); Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992).

A father's legal obligation to support his minor children can be enforced against the father unless barred by the five-year statute of limitations. Brown v. Brown, 233 Ark. 422, 345 S.W.2d 27 (1961).

Where mother brought action for support of illegitimate child against putative father, more than five years after the child's birth, it was error to grant the father summary judgment, since the child is the real party in interest and should thus not be barred by the mother's failure to bring the action. Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981).

Section 9-14-236 applies retroactively to expand the statute of limitations for causes of action for delinquent child-support payments not barred on the date of the section's enactment. Branch v. Carter, 326 Ark. 748, 933 S.W.2d 806 (1996).

Civil Rights.

In an action brought by an Arkansas resident against Arkansas police officers for alleged deprivation of civil rights, either the Arkansas three-year statute of limitations for actions founded on contract or liability, which has been construed to cover liability created by statute, or the five-year general statute of limitations was applicable, and since the action was instituted within the statutory period of both statutes, it was timely. Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970)Questioned byKessel v. Schaff, 697 F. Supp. 1102 (D.N.D. 1987).

Contracts.

Five-year statute applies to action to recover funds paid under a void contract with an improvement district. Core v. McWilliams Co., 175 Ark. 112, 298 S.W. 879 (1927).

Landowners and taxpayers in an action to recover funds alleged to have been paid defendant on a void contract and converted to its own use were permitted to recover under this section. Core v. McWilliams Co., 175 Ark. 112, 298 S.W. 879 (1927).

Where alleged fraud in the sale of stock could have been discovered by the exercise of reasonable diligence at time stockholder executed written guarantee as additional security to deed of trust on lands of corporation, and this occurred more than five years prior to institution of action for fraud, action was barred by this statute. Kahn v. Hardy, 201 Ark. 252, 144 S.W.2d 725 (1940).

Action filed for breach of warranty a few days prior to date of deed was timely, the warranty being breached as of the date of conveyance. Wood v. Setliff, 229 Ark. 1007, 320 S.W.2d 655 (1959).

Where grantee sued grantor for breach of warranty, the property having been originally granted more than five years prior to commencement of suit, action would be barred by the statute of limitations. Wood v. Setliff, 229 Ark. 1007, 320 S.W.2d 655 (1959).

The statute of limitations regarding an action to recover real or personal property did not begin to run, where evidence sufficient to find that trustee held corpus of trust under new trust with remainderman's consent. McDermott v. McAdams, 268 Ark. 1031, 598 S.W.2d 427 (Ct. App. 1980).

Decedent's Estate.

An order of the probate court erroneously precluding an heir from participation in an estate is a conversion, and the statute of limitations of five years ran against the heir as soon as the distribution was made and was not arrested by reason of his nonresidence. Hill v. Wade, 155 Ark. 490, 244 S.W. 743 (1922).

Heirs whose names were omitted from a will have five years in which to bring a suit to recover their share of an estate. James v. Helmich, 186 Ark. 1053, 57 S.W.2d 829 (1933).

This section does not apply to suit to probate will. Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951).

Proceeding by collateral heirs, who were nonresidents, to set aside judgment secured by alleged sole heir against estate was barred where it was filed 18 years after rendition of judgment, since alleged fraud in securing of judgment did not toll limitation period, as there were no positive acts of fraudulent concealment, and plaintiffs could have obtained information by checking records of estate. Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954).

Where landlord held landlord's lien and mortgages as security, the court held that none of the indebtedness of decedent to landlord was barred by the statute of limitations where the limitation had not run before decedent's death. Goins v. Sneed, 229 Ark. 550, 317 S.W.2d 269 (1958).

Pretermitted children had five years from the date of distribution under their father's will to bring an action against the devisee under the will for partition of the devised property. Negovanov v. Wensko, 248 Ark. 1109, 455 S.W.2d 929 (1970).

Heir to decedent father's estate who at time of probate was presumed dead was precluded by statute of limitations from attacking the determination of heirship. McBroom v. Clark, 252 Ark. 372, 480 S.W.2d 947 (1972).

There is no reason for a requirement that a petition for the determination of heirship be filed within five years or any other specified time after the death of the person whose heirs are to be ascertained. Bryant v. Lemmons, 269 Ark. 5, 598 S.W.2d 79 (1980).

Commitment of fraud in administration of estate tolled the statute of limitations. Walters v. Lewis, 276 Ark. 286, 634 S.W.2d 129 (1982).

Heirship Action.

In a case where heirship was being determined, the action was not barred by the limitations periods in § 18-61-101 and this section because the time period did not begin to run until a pecuniary consequence arose; there had been no demand for the trust property that would have triggered the limitations period. Moreover, the case was filed within the limitations period if it began to run when mineral leases were executed. Scroggin v. Scroggin, 103 Ark. App. 144, 286 S.W.3d 758 (2008).

Local Governments.

The statute of limitations can be pleaded by a county. Gaines v. Hot Springs County, 39 Ark. 262 (1882).

Statute does not apply to actions against board of education for interest belonging to county school fund. County Bd. of Educ. v. Morgan, 182 Ark. 1110, 34 S.W.2d 1063 (1931), overruled, Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989).

The three year, and not the five year, statute of limitations is applicable to suit against county treasurer. Fidelity & Casualty Co. v. State ex rel. Columbia County, 197 Ark. 1027, 126 S.W.2d 293 (1939).

In suit against county treasurer, statute of limitations commences to run from the date of the settlement. Fidelity & Casualty Co. v. State ex rel. Columbia County, 197 Ark. 1027, 126 S.W.2d 293 (1939).

In suit against county treasurer, for money paid out on void warrants and falsely credited in her account, the statute of limitations commences to run from the date of the settlement. Fidelity & Casualty Co. v. State ex rel. Columbia County, 197 Ark. 1027, 126 S.W.2d 293 (1939).

The municipality is a creature of the state; in this case warranty in municipal land transfer was breached as of the date of conveyance of the property. Wood v. Setliff, 229 Ark. 1007, 320 S.W.2d 655 (1959).

Tort.

A civil action for seduction sounds in tort and may be brought within five years. Darnell v. Lea, 162 Ark. 516, 258 S.W. 363 (1924).

The five year statute of limitations provided for in this section applies to an action for alienation of affections. Gibson v. Gibson, 240 Ark. 827, 402 S.W.2d 647 (1966). (Case was decided prior to the 1967 amendment of § 16-56-104.).

In suit for severe emotional distress upon the plaintiffs, the three-year statute of limitations under § 16-56-105 applied, and the five-year statute of limitations under this section did not apply; thus, suit filed four years after distress was inflicted was time-barred. Orlando v. Alamo, 646 F.2d 1288 (8th Cir. 1981)Criticized byPoindexter v. Armstrong, 934 F. Supp. 1052 (W.D. Ark. 1994).

Unfair Practices Act.

The Arkansas Unfair Practices Act contains no limitation period, which results in the application of the general catch-all five-year statute found in this section. Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993).

Circuit court correctly applied the five-year statute of limitations to claims under the Arkansas Franchise Practices Act, § 4-72-201 et seq., as neither § 16-56-105 nor this section applied; five-year statute applied because the Arkansas Franchise Practices Act contained no statute of limitations. Miller Brewing Co. v. Ed Roleson, Jr., Inc., 365 Ark. 38, 223 S.W.3d 806 (2006).

Cited: Breining v. Lippincott, 125 Ark. 77, 187 S.W. 915 (1916); England v. Hughes, 141 Ark. 235, 217 S.W. 13 (1919); Scroggin Farms Corp. v. McFadden, 165 F.2d 10 (8th Cir. 1948); Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958); Nelson v. Eckert, 231 Ark. 348, 329 S.W.2d 426 (1959); Wilson v. Wilson, 231 Ark. 416, 329 S.W.2d 557 (1959); Tollett v. Mashburn, 183 F. Supp. 120 (W.D. Ark. 1960); Wilder v. Garner, 235 Ark. 400, 360 S.W.2d 192 (1962); Lane v. Graves, 525 F.2d 311 (8th Cir. 1975); Bankston v. Davis, 262 Ark. 635, 559 S.W.2d 714 (1978); Russ v. Ratliff, 578 F.2d 221 (8th Cir. 1978); Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980); Pruitt v. Pruitt, 271 Ark. 404, 609 S.W.2d 84 (1980); Ragland v. Travenol Labs., Inc., 286 Ark. 33, 689 S.W.2d 349 (1985); Coast-to-Coast Stores, Inc. v. Citizens Bank, 676 F. Supp. 923 (E.D. Ark. 1987); Carroll County v. Eureka Springs School Dist. # 21, 292 Ark. 151, 729 S.W.2d 1 (1987); F & M Bank v. Hamilton Hotel Partners Ltd. Partnership, 702 F. Supp. 1417 (W.D. Ark. 1988); Ark. Office of Child Support Enforcement v. House, 320 Ark. 423, 897 S.W.2d 565 (1995); Douglas v. First Student, Inc., 2011 Ark. 463, 385 S.W.3d 225 (2011).

16-56-116. Persons under disabilities at time of accrual of action.

  1. If any person entitled to bring any action under any law of this state is under twenty-one (21) years of age or insane at the time of the accrual of the cause of action, that person may bring the action within three (3) years next after attaining full age, or within three (3) years next after the disability is removed.
  2. No person shall avail himself or herself of any disability unless the disability existed at the time the right of action accrued.
  3. When two (2) or more disabilities are existing at the time the right of action or entry accrued, the limitation prescribed shall not attach until all the disabilities are removed.

History. Rev. Stat., ch. 91, §§ 25, 27; Acts 1844, § 2, p. 24; 1899, No. 123, § 1, p. 199; C. & M. Dig., §§ 6961, 6973, 6975; Pope's Dig., §§ 8939, 8951, 8953; A.S.A. 1947, §§ 37-224 — 37-226; Acts 1999, No. 18, § 1.

Publisher's Notes. Subsection (a) of this section may be superseded as to infants by § 9-25-101, which provides that persons of the age of eighteen (18) years shall be considered to have reached the age of majority for all purposes except that of purchasing alcoholic beverages.

Cross References. Civil actions based on sexual abuse, § 16-56-130.

Research References

ALR.

Effect of appointment of legal representative for person under mental disability on running of state statute of limitations against such person. 111 A.L.R.5th 159.

Effect of appointment of legal representative for minor on running of state statute of limitations against minor. 1 A.L.R.6th 407.

Ark. L. Rev.

Recent Developments: Charitable-Immunity Doctrine — Direct-Action Statute, 59 Ark. L. Rev. 199.

Case Notes

In General.

Where the statute begins to run during the life of the devisor, no disability in the devisee will stop it. Bozeman v. Browning, 31 Ark. 364 (1876).

The rule with respect to infants under this section is equally applicable to incompetents. Mason v. Sorrell, 260 Ark. 27, 551 S.W.2d 184 (1976).

Attorneys were not negligent in failing to timely refile client's medical malpractice claim within the one-year time period allowed for refiling a claim under this section, where the law concerning timely refiling of a complaint after taking a nonsuit had not been settled. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).

Where the Boy Scouts of America (BSA) failed to inform parents and their injured child about the BSA's insurance coverage and parents failed to include insurer in the suit before the statute of limitations ran, notice was imputed to the insurer; thus, under the circumstances, the second amended complaint related back to the filing of the original complaint and was not barred by the statute of limitations. Low v. Ins. Co. of N. Am., 364 Ark. 427, 220 S.W.3d 670 (2005).

Applicability.

This section is not applicable to the betterment statute, which allows recovery of mesne profits for three years and contains no exception in favor of infants. Brown v. Nelms, 86 Ark. 368, 112 S.W. 373 (1908).

This section does not apply to the right under § 14-86-1503 to redeem land from tax sale. Gamble v. Phillips, 107 Ark. 561, 156 S.W. 177 (1913).

This section does not apply in an action for wrongful death. Anthony v. St. Louis, I.M. & S. Ry., 108 Ark. 219, 157 S.W. 394 (1913).

The limitation of time fixed by a wrongful death statute is a limitation on the right of action and is an essential element of the right to sue; therefore, the general savings clause provision has no application to wrongful death actions. Sandusky v. First Elec. Coop., 266 Ark. 588, 587 S.W.2d 37 (1979).

This section applies only to action at common law and therefore does not operate to toll the statute of limitations for wrongful death actions, which always have been considered purely statutory. Crawford v. Martin Marietta Corp., 622 F.2d 339 (8th Cir. 1980).

This section applied to a suit for personal injuries brought by parents on behalf of their minor son, under a theory of breach of implied warranty of merchantability; that cause of action has its roots in the common law, even though it has been changed by the Uniform Commercial Code. Follette v. Wal-Mart Stores, Inc., 41 F.3d 1234 (8th Cir. 1994).

A suit by a minor's guardian brought in her capacity as administratrix of the estate of the decedent is not protected by the provisions of subsection (a). Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

The two-year statute of limitations and the tolling provision of § 16-114-203 supersede the three-year period that § 16-56-116 allows after a disability is removed for persons insane at the time the right of action accrued. Smith v. Diversicare Leasing Corp. of Am., 65 Ark. App. 138, 985 S.W.2d 749 (1999).

The repealer clause added to this section does not have the effect of repealing the specific savings statute enacted for minor children in § 16-114-203 of the Medical Malpractice Act. Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).

Wrongful death action filed against healthcare providers by a decedent's parents was void ab initio where the decedent had no personal representative and the complaint failed to include as a plaintiff the decedent's half-brother; hence, this section did not apply to allow the parents to add the half-brother after the limitations period had run. Andrews v. Air Evac EMS, Inc., 86 Ark. App. 161, 170 S.W.3d 303 (2004).

Accrual of Action.

Taking an appeal from a judgment confirming the settlement of a guardian is barred in one year and does not constitute the bringing of an action within this section. Nelson v. Cowling, 89 Ark. 334, 116 S.W. 890 (1909).

This statute did not bar action by ward against guardian for an accounting more than three years after attaining majority, where guardian had not been discharged. Young v. Young, 201 Ark. 984, 147 S.W.2d 736 (1941).

The running of the statute was not tolled by the fact that plaintiff was confined outside the state because he was not so confined when his cause of action accrued. Brown v. United States, 342 F. Supp. 987 (E.D. Ark. 1972), aff'd in part, reversed in part, 486 F.2d 284 (8th Cir. Ark. 1973).

Adoption.

The one-year statute of limitations in § 9-9-216(b)(1) provides a special procedure which cannot be annulled by ARCP 41(a) or this section, which allows an action dismissed without prejudice to be refiled within one year of the dismissal. In re Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997).

Insanity.

Action by next friend to cancel deed executed seven years prior thereto was barred under evidence establishing that grantor for more than three years had not been incompetent to such an extent as to justify holding he did not have capacity to reason in respect to business matters and to appreciate their significance. Waggoner v. Atkins, 204 Ark. 264, 162 S.W.2d 55 (1942).

The right of an an insane person to redeem her property from tax sale is not lost by lapse of statutory time for redemption. Schuman v. Westbrook, 207 Ark. 495, 181 S.W.2d 470 (1944).

Where guardian of a mental incompetent sued to set aside a deed executed by the incompetent, guardian was not guilty of laches in view of the three year saving clause of this section. Zini v. First Nat'l Bank, 228 Ark. 325, 307 S.W.2d 874 (1957).

The statute of limitations on a personal injury action did not run against an incompetent even though a guardian of his estate had been appointed prior to accrual of the cause of action. Mason v. Sorrell, 260 Ark. 27, 551 S.W.2d 184 (1976).

When a person, by reason of the injury sustained, is incapable of managing his or her personal affairs, that individual may be regarded or classified as incompetent or “insane.” Phillips v. Sugrue, 800 F. Supp. 789 (E.D. Ark. 1992).

Where it was alleged that defendant intentionally took improper sexual liberties with plaintiff and indecently fondled her against her will and without her consent, it appeared likely that plaintiff may have sustained a disability that brought her within the provisions of this statute, adequate to raise a genuine issue of fact as to plaintiff's incompetency at the time of the accrual of the cause of action and as to when, if at all, the disability was removed. Phillips v. Sugrue, 800 F. Supp. 789 (E.D. Ark. 1992).

From an alleged victim's suit against his former scoutmaster and several others alleging damages resulting from sexual abuse he suffered 30 years before when he was 11 and 12 years old, judgment in favor of the scoutmaster was proper as repressed memory syndrome did not toll the statute of limitations under this section, and the alleged victim failed to show that the other parties fraudulently concealed facts, or even that they knew, about the scoutmaster's sexual abuse of the alleged victim. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415 (2009).

Minority.

A female attains full age at 18 years. Brake v. Sides, 95 Ark. 74, 128 S.W. 572 (1910); Shapard v. Mixon, 122 Ark. 530, 184 S.W. 399 (1916) (decided prior to 1975 amendment of § 9-25-101).

Action for seduction of an infant may be brought within three years after her majority though an action for same cause had been brought and dismissed for want of prosecution during her infancy. Darnell v. Lea, 162 Ark. 516, 258 S.W. 363 (1924).

Infant wards who brought suit within three years after majority were not barred from relief under this section. Wasson v. Treece, 189 Ark. 728, 75 S.W.2d 71 (1934).

Decree determining validity of title based on tax sale was valid and binding where minor defendants affected by it took no steps to void it within three years after having reached their majority. Cannon v. Price, 202 Ark. 464, 150 S.W.2d 755 (1941).

In action by heirs for cancelation of deed and an accounting in which two heirs were alleged to be minors, plea of limitations set up by defendant in motion for judgment on pleadings could not be considered. Story v. Cheatham, 217 Ark. 193, 229 S.W.2d 121 (1950).

Where plaintiff was under age of majority at the time his cause of action for treble damages under § 18-60-102 arose, this section rather than § 16-56-108 is controlling. Callaway v. Perdue, 238 Ark. 652, 385 S.W.2d 4 (1964).

A minor and his mother could maintain tort actions against the estate of decedent after the expiration of the statute of nonclaim when there was in force a policy of liability insurance on decedent's vehicle which policy has been depleted through the use of a bill of interpleader in the federal district court. Johnson v. Poore, 266 Ark. 601, 587 S.W.2d 44 (1979).

Where a wrongful death action was not filed by the minor children of a man killed in a construction accident until 15 years after the accident, the statute of limitations for the wrongful death action was not tolled during the minority of the plaintiffs and thus the action was barred by the three-year statute of limitations. Crawford v. Martin Marietta Corp., 622 F.2d 339 (8th Cir. 1980).

Section 4-86-102 which governs causes of action based on strict liability creates a new right that was not available at common law, but does not contain a specific period of limitation; such actions are governed by the general statute of limitations applicable to all products liability cases in § 16-116-103. Therefore, this section operates to extend the time for minors to file a products liability action brought on a strict liability theory. Harris v. Standardized San. Sys., 658 F. Supp. 438 (W.D. Ark. 1987).

Probate section giving an illegitimate child 180 days to file a claim creates a new right, and the right is created for only 180 days. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Where child did not fall within either of the two exceptions for a minor's cause of action under § 16-114-203(c), the complaint brought on his behalf was barred by the two-year statute of limitations in § 16-114-203. Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).

—Burden of Proof.

Burden is on plaintiff to prove bringing of suit within three years after attaining his majority. Yell v. Lane, 41 Ark. 53 (1883).

—Homesteads.

That the homestead of a minor will deteriorate in value and will be insufficient to satisfy the claims against the estate if the right to sell is postponed until the minor reaches his majority and that judgments against the estate will be barred by the statute of limitations before that time constitute no valid reason for the sale of land while a minor's right of homestead in it exists. Henry v. Dollin, 195 Ark. 607, 113 S.W.2d 97 (1938).

This statute was held not to affect rule that when one dies seized of a homestead leaving as heirs minor children they have two separate and distinct estates in the land, existing at the same time and incapable of merger. Kitchens v. Wheeler, 200 Ark. 671, 141 S.W.2d 34 (1940).

Statute of Limitations.

Because a general statute must yield when there is a specific statute involving the particular subject matter, in a minor child's medical malpractice action, the two-year statute of limitations in § 16-114-203 applied rather than the three-year statute of limitation in this section. Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).

Tolling.

Dismissal of the patient's medical malpractice claim was appropriate, in part because her argument that § 16-56-116 allowed the tolling of the statute of limitations for those with disabilities was not presented to the circuit court. Thus, it could not be considered for the first time on appeal. Collins v. St. Vincent, 98 Ark. App. 190, 253 S.W.3d 26, cert. denied, 552 U.S. 902, 128 S. Ct. 233, 169 L. Ed. 2d 174 (2007).

Former wife's claims in her motion for contempt that a former husband failed to comply with certain provisions in their property settlement agreement was barred by the five-year statute of limitations in § 16-56-111 that applied to written contracts as the settlement was an independent contract that did not merge with the divorce decree. The husband's mental health problems were not sufficient to make him insane for purposes of tolling the statute under this section, and in any event, the wife, not the husband, was the one bringing the action. Wall v. Wall, 2011 Ark. App. 143 (2011).

Cited: Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979); Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987); Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988).

16-56-117. Death of person entitled to sue or of a party.

  1. If any person entitled to bring any action specified in this act dies before the expiration of the time limited for the commencement of the suit, and if the cause of action survives to his or her representatives, then his or her executors or administrators may commence the suit, after the expiration of such time and within one (1) year after his or her death, but not after that period.
    1. If any action has been commenced within the times respectively prescribed in the provisions of this act, and the defendant in the suit dies before judgment and the right of action survives against the representatives of the defendant, the plaintiff may commence a new action against the heirs, executors, or administrators of the defendant, as the case may require, within one (1) year after the defendant's death.
    2. If no executor or administrator is appointed within that time, within one (1) year after the letters testamentary or of administration have been granted.
    1. When an action commenced within the time prescribed by law abates by reason of the death of the plaintiff, the plaintiff's executor or administrator may commence a new action within one (1) year after the death of the plaintiff if the right of action survives to his or her representatives.
    2. If any action commenced by an executor or administrator abates by the death of the plaintiff, a new action may be commenced by the administrator of the same estate at any time within one (1) year after the abatement.

History. Rev. Stat., ch. 91, §§ 19, 22, 23; C. & M. Dig., §§ 6968, 6970, 6971; Pope's Dig., §§ 8946, 8948, 8949; A.S.A. 1947, §§ 37-219 — 37-221.

Meaning of “this act”. See note to § 16-56-102.

Cross References. Revivor of actions, §§ 16-62-107, 16-62-108.

Case Notes

Defendant's Death.

When the statute commenced to run in creditor's lifetime, it did not stop upon his death until administration was granted on his estate. Brown v. Merrick & Fenno, 16 Ark. 612 (1855); Whipple v. Johnson, 66 Ark. 204, 49 S.W. 827 (1899); Salinger v. Black, 68 Ark. 449, 60 S.W. 229 (1900).

Plaintiff's Death.

Where after death of plaintiff, suit in state court was not revived under the provisions of § 16-62-108 and was dismissed, administrator of plaintiff could not bring a new action in federal court after one year had elapsed. Robison v. Jones, 261 F.2d 584 (8th Cir. 1958).

Circuit court properly dismissed an executor's lawsuit against the owners of a nursing home because the savings statute, § 16-56-126, did not apply to the facts of the case; the decedent passed away while her case was still pending, which abated the case, and it was nonsuited only after the case abated, and the executor had not timely moved for an order of substitution or commenced a new action within one year after decedent's death. Garrett v. Progressive Eldercare Servs. — Saline, Inc., 2019 Ark. App. 201, 575 S.W.3d 426 (2019).

Cited: McGraw v. Miller, 184 Ark. 916, 44 S.W.2d 366 (1931); Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954).

16-56-118. Suspension of limitations — Persons in the armed forces.

  1. The statutes of limitations in this state are suspended so far as those statutes affect the claim or cause of action of a person in the armed forces of the United States during the existence of a state of war between the United States and any other nation, and for six (6) months thereafter.
  2. Any person in the armed forces of the United States during the existence of a state of war between the United States and any other nation may, at any time within one (1) year after the end of the state of war and six (6) months thereafter, maintain a suit for the collection of any debt or the recovery of any real or personal property to which the person may be entitled if the statute of limitations had not run against the action prior to the person's entry into the armed forces of the United States.

History. Acts 1943, No. 159, §§ 1, 2; A.S.A. 1947, §§ 37-227, 37-228.

16-56-119. Commencement of suit stayed by injunction — Effect.

Whenever the commencement of any suit is stayed by an injunction of any court of equity, the time during which the injunction shall be in force shall not be deemed any portion of the time in this act limited for the commencement of the suit.

History. Rev. Stat., ch. 91, § 24; C. & M. Dig., § 6972; Pope's Dig., § 8950; A.S.A. 1947, § 37-223.

Meaning of “this act”. See note to § 16-56-102.

16-56-120. Prevention of commencement of action by party.

If any person, by leaving the county, absconding, or concealing himself, or by any other improper act of his own, prevents the commencement of any action specified in this act, the action may be commenced within the times respectively limited after the commencement of the action shall have ceased to be so prevented.

History. Rev. Stat., ch. 91, § 26; C. & M. Dig., § 6974; Pope's Dig., § 8952; A.S.A. 1947, § 37-229.

Meaning of “this act”. See note to § 16-56-102.

Case Notes

In General.

Under this section the inability of the plaintiff to sue in consequence of any act of the defendant mentioned in this section must exist at the time the cause of action accrues. Denton v. Brownlee, Homer & Co., 24 Ark. 556 (1867); Richardson v. Cogswell, 47 Ark. 170, 1 S.W. 51 (1886); Keith v. Hiner, 63 Ark. 244, 38 S.W. 13 (1896).

Absconding.

A foreign corporation which neglects to designate an agent upon whom process may be served is not an absconding debtor. Rachels v. Stecher Cooperage Works, 95 Ark. 6, 128 S.W. 348 (1910).

A guarantor of a note who left the state openly and with knowledge of the officers of a bank holding the note was not an absconding debtor. Smith v. Farmers & Merchants Bank, 183 Ark. 235, 35 S.W.2d 347 (1931).

Evidence held to show debtor who left state was not an absconder within the meaning of this statute. Keck v. Pickens, 207 Ark. 757, 182 S.W.2d 873 (1944).

Burden of Proof.

Although this section allows for tolling of the statute of limitations when the defendant has concealed himself or by other improper action has prevented the commencement of a cause of action, where the plaintiff made nothing more than cursory allegations to this effect, and has shown nothing by way of proof that the defendant's misconduct prevented her from proceeding with her suit, the District Court properly dismissed her 42 U.S.C. § 1983 action. Roberts v. Dillon, 15 F.3d 113 (8th Cir. 1994).

Cause of Action Concealed.

Fraud suspends the statute, but the suspension is arrested as soon as the fraud is discovered by the party having the right of action, or which could have been discovered by the party unless he negligently failed to do so; statute does not run against a trust until there is a disclaimer of the trust brought home to the beneficiary. McGaughey v. Brown, 46 Ark. 25 (1885); Woodard v. Jaggers, 48 Ark. 248, 2 S.W. 851 (1886); Wren v. Followell, 52 Ark. 76, 12 S.W. 155 (1889); French v. Watson, 52 Ark. 168, 12 S.W. 328 (1889); Jacoway v. Hall, 67 Ark. 340, 55 S.W. 12 (1900).

Where there has been a fraudulent concealment of a cause of action, the statute does not run until the discovery of the fraud. Conditt v. Holden, 92 Ark. 618, 123 S.W. 765 (1909).

Under this statute time will not run until the discovery of the fraud, or until, with reasonable diligence, it might have been discovered. City Nat'l Bank v. Sternberg, 195 Ark. 503, 114 S.W.2d 39 (1938), cert. denied, 305 U.S. 614, 59 S. Ct. 73 (1938).

Evidence was sufficient to justify holding that fraud in sale of bonds was concealed and that cause of action was not barred by statute of limitations. City Nat'l Bank v. Sternberg, 195 Ark. 503, 114 S.W.2d 39 (1938), cert. denied, 305 U.S. 614, 59 S. Ct. 73 (1938).

Evidence held to make a jury question of whether defendant had by any improper act of her own concealed from plaintiff his cause of action so as to preclude the running of the statute of limitations. Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48 (1942).

Improper Act.

Escaping from penitentiary was held an improper act. Reeder v. Cargill, 102 Ark. 518, 145 S.W. 223 (1912).

Cited: Scroggin Farms Corp. v. Howell, 216 Ark. 569, 226 S.W.2d 562 (1950).

16-56-121. Prevention of commencement of action — Foreign debtors absconding to this state.

If any debtor shall fraudulently abscond from any other state, territory, or district to this state without the knowledge of his, her, or their creditor, the creditor may commence suit against the absconding debtor within the times in this act, or any other acts of limitations, in force on December 14, 1844, prescribed for limiting the action, after the creditor may become apprised of the residence of the absconding debtor.

History. Acts 1844, § 4, p. 24; C. & M. Dig., § 6963; Pope's Dig., § 8941; A.S.A. 1947, § 37-231.

Meaning of “this act”. See note to § 16-56-101.

Case Notes

Applicability.

This section is restricted, by its terms, to absconding debtors, and is not applicable to replevin. Payne v. Bruton, 10 Ark. 53 (1849). See also Smith v. Joyce, 10 Ark. 460 (1850).

Absconding Debtor.

A foreign corporation that fails to appoint an agent on whom process may be served is not an absconding debtor. Rachels v. Stecher Cooperage Works, 95 Ark. 6, 128 S.W. 348 (1910).

One who leaves the state openly and with the knowledge of his creditor is not an absconding debtor. Rock Island Plow Co. v. Masterston, 96 Ark. 446, 132 S.W. 216 (1910).

After Accrual.

Absconding of debtor after cause of action accrues does not stop the statutes. Richardson v. Cogswell, 47 Ark. 170, 1 S.W. 51 (1886).

16-56-122. Tolling statute — Verbal promise or acknowledgment insufficient.

No verbal promise or acknowledgment in any action founded on a simple contract shall be deemed sufficient evidence to take any case out of the operation of this act or to deprive the party of the benefits thereof.

History. Rev. Stat., ch. 91, § 14; C. & M. Dig., § 6965; Pope's Dig., § 8943; A.S.A. 1947, § 37-216.

Meaning of “this act”. See note to § 16-56-102.

Research References

ALR.

Insurer's waiver of defense of statute of limitations. 104 A.L.R.5th 331.

Case Notes

Applicability.

This statute is not applicable to a new original promise. Christian Women's Bd. v. Clark, 140 Ark. 262, 215 S.W. 631 (1919).

Consideration Required.

An oral waiver of the statute of limitations or a promise not to plead it does not fall within statute requiring written acknowledgment of outlawed debt, but the promise or conduct must be based upon some consideration. Dunnington v. Taylor, 198 Ark. 770, 131 S.W.2d 627 (1939).

Promise and Acknowledgments.

Like all other acknowledgments and promises having legal force and sanction, they must be made to the person to whom the debt is due, or to one authorized to act for him, and with the intent at the time to pay it. Ringo v. Brooks, 26 Ark. 540 (1871).

Under this section, it was held that to suspend the statute by promise or acknowledgment, the promise or acknowledgment must be in writing and signed by the party to be charged. Burnett v. Turner, 105 Ark. 290, 151 S.W. 249 (1912).

—Acknowledgments.

A written acknowledgment to revive a debt must be an unqualified and unconditional acknowledgment of the debt as a debt due at the time, or it must be an express promise to pay it, which presupposes such an acknowledgment. Alston v. State Bank, 9 Ark. 455 (1849); Brown v. State Bank, 10 Ark. 134, 1849 Ark. LEXIS 60 (1849); Beebe v. Block, 12 Ark. 595 (1852); Grant v. Ashley, 12 Ark. 762 (1852).

Written acknowledgment of a debt is a removal of the statute bar, and not a new contract. Harlan v. Bernie & Meyer, 22 Ark. 217 (1860); Ringo v. Brooks, 26 Ark. 540 (1871); Kelley v. Telle, 66 Ark. 464, 51 S.W. 633 (1899).

A written acknowledgment will not be sufficient to fix a new period for the statute of limitations to run from, if it embraces a qualification which rebuts the inference of an unconditional promise to pay. Eureka Springs Sch. Dist. v. Cromer, 52 Ark. 454, 12 S.W. 878 (1889).

It is not necessary that the intention to pay be expressed in the acknowledgment. Morris v. Carr, 77 Ark. 228, 91 S.W. 187 (1905).

—Promise.

A verbal promise does not revive a barred claim, nor does a written promise revive it, but gives a right of action coextensive with the new promise. Worthington v. De Bardlekin, 33 Ark. 651 (1878).

Where new promise is relied upon and it is conditional, the happening of the contingency provided for must be proved to sustain recovery. Opp v. Wack, 52 Ark. 288, 12 S.W. 565 (1889).

Action on oral guaranty of an open account is barred at end of three years after last item was furnished. Goldsmith v. First Nat'l Bank, 169 Ark. 1162, 278 S.W. 22 (1925).

An oral admission of the correctness of an open account and promised payment interrupts the running from the due date of each item of the three year statute of limitations as to items not yet barred but not as to items already barred by limitations. Boatner v. Gates Bros. Lumber Co., 224 Ark. 494, 275 S.W.2d 627, 51 A.L.R.2d 326 (1955).

Cited: Holmes v. Thompson, 240 Ark. 818, 402 S.W.2d 400 (1966); Hyde Wholesale Dry Goods Co. v. Edwards, 255 Ark. 211, 500 S.W.2d 85 (1973).

16-56-123. Tolling statute — Endorsement of payment on bond or sealed instrument insufficient.

No endorsement of any payment written upon any bond or any other sealed instrument by or on behalf of the party to whom the payment shall be made shall be deemed a sufficient proof of the payment so as to take the case out of the operation of this act.

History. Rev. Stat., ch. 91, § 32; C. & M. Dig., § 6977; Pope's Dig., § 8955; A.S.A. 1947, § 37-217.

Meaning of “this act”. See note to § 16-56-102.

Case Notes

In General.

Endorsements are only memoranda or at most evidence, but endorsements of payments admitted by the debtor himself or assented to by him, even impliedly, will toll the statute. McAbee v. Wiley, 92 Ark. 245, 122 S.W. 623 (1909).

Partial Payments.

Partial payments endorsed on the record of a mortgage will continue the lien of the mortgage as against the rights of all third parties if made and endorsed before the debt is barred by the statute of limitations. Wadley v. Ward, 99 Ark. 212, 137 S.W. 808 (1911).

16-56-124. Tolling statute — Promise by joint contractor or executor.

When there are two (2) or more joint contractors or executors, no joint contractor or executor shall lose the benefit of this act by reason of any written acknowledgment or promise made and signed by any of the other joint contractors or executors. Nothing contained in this section shall be so construed as to alter, take away, or lessen the effect of any payment of any principal or interest made by any person whatever on any joint contract.

History. Rev. Stat., ch. 91, § 15; C. & M. Dig., § 6966; Pope's Dig., § 8944; A.S.A. 1947, § 37-218.

Meaning of “this act”. See note to § 16-56-102.

Case Notes

Acknowledgment and Promise.

A new promise in writing by one joint debtor, after the bar has attached, does not take the debt out of the statute of limitations as to the other debtors. Biscoe v. Jenkins, 10 Ark. 108 (1849); Grant v. Ashley, 12 Ark. 762 (1852); Woody v. State Bank, 12 Ark. 780 (1852).

Under this section, a joint contractor is not bound by a written acknowledgment or promise made and signed by the other joint contractor so as to stop the statute of limitations. Meisner v. Pattee, 170 Ark. 217, 279 S.W. 787 (1926).

Part Payment.

Part payment by one joint debtor before the bar attaches will bind the other joint debtor. Payment by one is payment for all. Trustees Real Estate Bank v. Hartfield, 5 Ark. 551 (1844); Burr v. Williams, 20 Ark. 171 (1859).

Part payment of the debt before the bar attaches forms a new point from which the statute will begin to run. Trustees Real Estate Bank v. Hartfield, 5 Ark. 551 (1844); Biscoe v. Jenkins, 10 Ark. 108 (1849); Durritt v. Trammell, 11 Ark. 183 (1850); Hicks v. Lusk & Co., 19 Ark. 692 (1858); Burr v. Williams, 20 Ark. 171 (1859); Chase v. Carney, 60 Ark. 491, 31 S.W. 43 (1895); Everton v. Day, 66 Ark. 73, 48 S.W. 900 (1898); Less v. Arndt, 68 Ark. 399, 59 S.W. 763 (1900).

Part payment by one joint debtor after the bar attaches does not revive the debt against the other joint debtors. Biscoe v. Jenkins, 10 Ark. 108 (1849); Biscoe v. James, 10 Ark. 163 (1849); Mason v. Howell, 14 Ark. 199 (1853); Ruddell v. Folsom, 14 Ark. 213 (1853); Hicks v. Lusk & Co., 19 Ark. 692 (1858); Burr v. Williams, 20 Ark. 171 (1859).

Part payment will not remove the statute bar as to third persons not in privity with the debtor or creditor. Mayo & Jones v. Cartwright, 30 Ark. 407 (1875), overruled, Whittington v. Flint, 43 Ark. 504 (1884).

Part payment by administrator of unprobated mortgage debt does not suspend running of statute. Cox v. Phelps, 65 Ark. 1, 45 S.W. 990 (1897).

—Proof.

In order to prove part payment as against a co-obligor, it must be shown that the payment was made at a time when its legal effect would be to remove the statutory bar. The mere endorsement of a credit as of a date to effect this is not sufficient, but it must be shown that the endorsement of payment was in fact made within the time; where the endorsement is made by the obligors, or one of them, the proof of that fact will be sufficient evidence to permit the endorsement to be read as evidence of the date and fact of payment. Ruddell v. Folsom, 14 Ark. 213 (1853).

Where the fact of part payment is relied upon to stop the running of the statute, the burden is on the plaintiff to prove part payment. Simpson v. Brown-Desnoyers Shoe Co., 70 Ark. 598, 70 S.W. 305 (1902).

Voluntary Payment.

This section refers to a payment that is voluntary and the application of the proceeds arising from a foreclosure of a mortgage or the surrender of mortgaged property for foreclosure by a joint contractor does not stop the running of the statute of limitations as to the other contractor. Meisner v. Pattee, 170 Ark. 217, 279 S.W. 787 (1926).

16-56-125. Actions against tortfeasors whose identity is unknown.

  1. For the purposes of tolling the statute of limitations, any person, firm, or corporation may file a complaint stating his or her cause of action in the appropriate court of this state, whenever the identity of the tortfeasor is unknown.
    1. The name of the unknown tortfeasor shall be designated by the pseudo-name John Doe or, if there is more than one (1) tortfeasor, John Doe 1, John Doe 2, John Doe 3, etc.
    2. Upon determining the identity of the tortfeasor, the complaint shall be amended by substituting the real name for the pseudo-name.
  2. It shall be necessary for the plaintiff or plaintiff's attorney to file with the complaint an affidavit that the identity of the tortfeasor is unknown before this section shall apply.

History. Acts 1959, No. 140, §§ 1-3; A.S.A. 1947, §§ 37-234 — 37-236.

Case Notes

Applicability.

Although the mother amended her complaint to substitute a contractor for one of the John Doe defendants within the 90 days allotted by this section and claimed that the amended complaint was timely, the argument failed because the court would have to apply Arkansas' three-year statute of limitations, and it was Tennessee's one-year statute of limitations that governed the case. Hall v. Summit Contrs., Inc., 356 Ark. 609, 158 S.W.3d 185 (2004).

Circuit court erred in granting an estate's motion for summary judgment because, although the plaintiff was not aware of the defendant's death, she named the defendant's estate as a John Doe defendant, the statute of limitations was tolled where record demonstrated that the identity of the tortfeasor, the defendant's estate, was unknown to the plaintiff, and the requirements for relation back of an amendment were met. Berryhill v. Synatzske, 2014 Ark. 169, 432 S.W.3d 637 (2014).

Failure to Name Party.

Patient was aware that the nurse could, and should, have been specifically named as a defendant from the outset of the case where the patient knew of the nurse's existence and his name was on the operative report prepared on the day of the surgery; the failure to name the nurse in the original complaint was not a mere mistake of identity, and this section only allows a complaint to be filed against a John Doe defendant when the plaintiff cannot identify the tortfeasor. Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002).

Cited: Harvill v. Community Methodist Hosp. Ass'n, 302 Ark. 39, 786 S.W.2d 577 (1990).

16-56-126. Commencement of new action or filing mandate after nonsuit or arrest or reversal of judgment.

    1. If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 — 16-116-107, in §§ 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the judgment is arrested, or after judgment for him or her the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.
      1. However, if after judgment for plaintiff the judgment is reversed on appeal or writ of error and the cause is remanded for another trial, the mandate shall be taken out and filed in the court from which the appeal is taken within one (1) year from rendition of the judgment of reversal.
      2. Otherwise, the cause shall be forever barred.
  1. If the cause of action survives to the plaintiff's heirs or to his or her executors or administrators, they may in like manner commence a new action or take out a mandate within the time allowed the plaintiff.

History. Rev. Stat., ch. 91, § 21; Acts 1891, No. 159, § 3, p. 280; C. & M. Dig., § 6969; Pope's Dig., § 8947; Acts 1983, No. 145, § 1; 1985, No. 221, § 1; A.S.A. 1947, § 37-222.

Meaning of “this act”. See note to § 16-56-102.

Cross References. Time within which mandate of Supreme Court must be taken out and filed in inferior court, § 16-67-325.

Research References

Ark. L. Rev.

Dorothy Vaughan Goodwin, Recent Developments: The Arkansas Savings Statute Applies If There Has Been a “Timely, Completed Attempt” to Serve the Defendant, Jones v. Douglas, 69 Ark. L. Rev. 639 (2016).

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 8 U. Ark. Little Rock L.J. 555.

Survey — Civil Procedure, 12 U. Ark. Little Rock L.J. 135.

Case Notes

In General.

This section does not narrow the period of limitation in the case of a nonsuit but extends the period of limitations applicable to the cause of action. Love v. Cahn, 93 Ark. 215, 124 S.W. 259 (1909); Williford v. Williford, 102 Ark. 65, 143 S.W. 132 (1912).

This section did not create a new liability, but only qualified the statute of limitations applicable to actions where a nonsuit had been filed. Partin v. Wade, 172 F.2d 50 (8th Cir. 1949).

Where action is not barred by limitations second action may be brought more than one year after nonsuit. Eades v. Joslin, 219 Ark. 688, 244 S.W.2d 623 (1951).

This section authorizes the dismissal of an action without prejudice to the right to bring another action for the same cause. Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S.W.2d 79 (1959).

The dismissal of a cause of action without prejudice permits the bringing of a subsequent action for the same cause. Oliver v. Miller, 239 Ark. 1043, 396 S.W.2d 288 (1965).

Attorneys were not negligent in failing to timely refile client's medical malpractice claim within the one-year time period allowed for refiling a claim under this section, where the law concerning timely refiling of a complaint after taking a nonsuit had not been settled. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).

A plaintiff may only invoke this section, Arkansas's savings statute, if the plaintiff files the complaint before the period of limitations has expired and then completes timely service on the defendant against whom the subsequent action is brought. Haynes v. Wire, No. 4:12CV00123 JLH, 2012 U.S. Dist. LEXIS 88743 (E.D. Ark. June 27, 2012).

Construction.

Section 16-57-104(a), concerning transfer of jurisdiction to proper forum, is compatible with this section, Arkansas's savings statute. Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988).

The extension provided in § 16-114-204 (repealed) was not intended to apply to this section. Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994).

Under Arkansas law, negligence, failure to warn, breach of warranty, and strict liability are each distinct causes of action, requiring different elements of proof; thus, the plaintiff's federal causes of action for breach of warranty, failure to warn, and strict liability were time-barred because they were not pleaded in the state products liability complaint and, therefore, were not tolled by operation of this section. Dillaha v. Yamaha Motor Corp., 23 F.3d 1376 (8th Cir. 1994).

Purpose.

It is not the purpose of the one year nonsuit statute, which tolled statute of limitations for one year, to shorten plaintiff's rights; plaintiff was not prohibited from bringing suit for damages and an injunction two years after the cause of action even though plaintiff had taken a nonsuit one year after the cause of action in a case involving same facts. Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965).

Applicability.

Subdivision (a)(1) of this section did not apply in customer's action against bank for conversion, breach of fiduciary duty, conspiracy, constructive fraud, and fraudulent concealment where the 2002 dismissal of customer's action against its sales manager remained in effect for over one year; the bank was not made a party to any valid lawsuit until 2004. Technology Partners, Inc. v. Regions Bank, 97 Ark. App. 229, 245 S.W.3d 687 (2006).

Excessive force and deliberate indifference to excessive force claims asserted against two county deputy sheriffs in their individual capacities were time-barred because they were asserted more than three years after the incident giving rise to the claims occurred. This section did not apply to toll the statute of limitations with regard to the claims because in his prior 42 U.S.C.S. § 1983 suit, which was non-suited, plaintiff did not specifically indicate that he was attempting to hold the sheriffs liable in their individual capacities and, therefore, they were deemed to have been sued in their official capacities only in that suit. Baker v. Chisom, 501 F.3d 920 (8th Cir. 2007), cert. denied, 554 U.S. 902, 128 S. Ct. 2932, 171 L. Ed. 2d 864 (2008).

Savings statute was applicable entitling the patient to refile his medical malpractice suit because his initial attempted service on the surgeon was proper; the return receipt was signed by the surgeon's secretary and the patient not only served the surgeon by certified mail, return receipt requested, restricted delivery, he further sent interrogatories certified mail, return receipt requested, restricted delivery and the secretary signed for those documents as the surgeon's agent. McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007).

Arkansas savings statute does not apply in workers' compensation cases. Single Source Transp. v. Kent, 99 Ark. App. 153, 258 S.W.3d 416 (2007).

While it could be considered that the employee suffered a nonsuit as required in subdivision (a)(1) of this section, the statute did not apply because it also required that the employee's slander action against the partnership be commenced within the time respectively prescribed for slander claims, which was one year, as provided in § 16-56-104(3). The employee did not allege defamation against the partnership in either his discrimination complaint, his third-party complaint, or his amended complaint. Roeben v. BG Excelsior Ltd. P'ship, 2009 Ark. App. 646, 344 S.W.3d 93 (2009).

In a case arising out of a car accident, the savings statute did not apply after the statute of limitations had run because the injured parties were not lulled into thinking that service was not required when a driver filed a response before he was served; there was a denial of an assertion that an adjuster in the case requested waiting on service while a settlement was negotiated. Filing a response to a complaint before service was perfected did not lead to service becoming unnecessary. Cagle v. Terwilliger, 2015 Ark. App. 191, 458 S.W.3d 770 (2015).

When the plaintiff passes away while prosecuting the plaintiff's claims, the real party in interest must be substituted before a nonsuit in order to take advantage of the savings statute. Garrett v. Progressive Eldercare Servs. — Saline, Inc., 2019 Ark. App. 201, 575 S.W.3d 426 (2019).

Circuit court properly dismissed an executor's lawsuit against the owners of a nursing home because the savings statute did not apply to the facts of the case; since the action abated by death before a nonsuit was taken, subsection (a) of this section was not applicable and thus subsection (b) did not apply. Subsection (b) of this section applies when the plaintiff first nonsuits the case and subsequently passes away. Garrett v. Progressive Eldercare Servs. — Saline, Inc., 2019 Ark. App. 201, 575 S.W.3d 426 (2019).

Adoption.

The one-year statute of limitations in § 9-9-216(b)(1) provides a special procedure which cannot be annulled by ARCP 41(a) or this section, which allows an action dismissed without prejudice to be refiled within one year of the dismissal. In re Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997).

Appeal.

From the decision that ARCP 41(a) permitted voluntary nonsuit without prejudice after notice of appeal was filed, it follows that this section allows the appeal to be refiled within one year. Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995).

Applicability.

Where no nonsuit has been suffered, nor arrest of judgment made, nor reversal had on appeal, this statute does not apply. Hill v. Pipkins, 72 Ark. 549, 81 S.W. 1216 (1904).

This statute does not narrow the period of limitation in which an action may be brought upon a claim which is not otherwise barred by the general statute of limitations applicable to the claim; it only applies to those causes of action which would otherwise be barred before the running of one year from the time of taking a nonsuit. Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943), superseded by statute as stated in, Croft v. Croft, 8 Ark. App. 20, 648 S.W.2d 511 (1983).

Where plaintiff filed diversity action in federal court within limitation period against defendant who was resident of another state at the time of the accident but action was dismissed without prejudice because defendant was resident of Arkansas at the time action was filed, plaintiff could refile in state court within one year even though limitation period had run. Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974).

In applying § 16-56-105 to civil rights actions under 42 U.S.C. § 1983, the circuit court will recognize decisions of the Arkansas Supreme Court regarding the applicability of this section to claims subject to the three-year limitation as it has in contexts other than civil rights litigation. Whittle v. Wiseman, 683 F.2d 1128 (8th Cir. 1982).

This section does not apply to actions under Title VII of the Civil Rights Act of 1964 since those actions are governed by a federal statute of limitations; however, the section would apply to an action under 42 U.S.C. § 1981 which guarantees equal rights. Garrison v. International Paper Co., 714 F.2d 757 (8th Cir. 1983).

Limitation period for filing objections to discharge or complaints to determine dischargeability of debts of bankrupt is set by federal statutory law and this section is not applicable to permit a refiling of a complaint dismissed without prejudice by the bankruptcy court. Davis v. Lewis, 36 B.R. 88 (E.D. Ark. 1984).

The Arkansas savings statutes, § 4-2-725 and this section, apply to actions originally filed in a foreign state if the original action was commenced within the statute of limitations specified for similar causes of action under Arkansas law. LaBarge, Inc. v. Universal Circuits, Inc., 751 F. Supp. 807 (W.D. Ark. 1990).

This section is written in the conjunctive, meaning two conditions must be met in order to fall within its language; the original action must be timely, and the plaintiff must suffer a nonsuit in that action. Follette v. Wal-Mart Stores, Inc., 47 F.3d 311 (8th Cir. 1995), cert. denied, Wal-Mart Stores v. Follette, 516 U.S. 814, 116 S. Ct. 66 (1995).

The savings statute applies only to actions governed by a general statute of limitations and not to proceedings, such as election contests, in which the right to file is limited to a very short period. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

The statute does not apply where the original statute of limitations had not yet expired. Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000).

Burden of Proof.

Plaintiff must prove bringing of action within one year after dismissal of former action. Watkins v. Martin, 69 Ark. 311, 65 S.W. 103 (1901).

Commencement of New Action.

Service of summons on second suit after dismissal of first suit saves second suit, though it was brought before first was dismissed. Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922).

The issuance of a summons in a transitory action within one year after nonsuit was taken and delivery thereof to the sheriff of the county of the venue is not the commencement of a new action where in the meantime the defendant had changed his residence to another state. Cherry v. Falvey, 188 Ark. 827, 68 S.W.2d 98 (1934).

Suit was barred by three year limitation period of § 16-56-105, but filing of suit within three years of cause of action, with plaintiff taking a nonsuit after the three years and bringing another action under this section was not barred. Smithey v. St. Louis S.W. Ry., 127 F. Supp. 210 (E.D. Ark. 1955), aff'd, 237 F.2d 637 (8th Cir. Ark. 1956).

This section permitted the filing of a claim in a state court more than one year after a “nonsuit suffered” in federal court was affirmed, and rehearing denied, by the United States Circuit Court of Appeals but less than one year after certiorari was denied in the case by the U.S. Supreme Court. Lubin v. Crittenden Mem. Hosp., 288 Ark. 370, 705 S.W.2d 872 (1986).

Because the plaintiff failed to meet the service requirements contemplated or specifically provided for in ARCP 3 and 4(i), he also failed to commence the action so as to effectuate the one-year savings provision provided in this section. Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991).

Second complaint held timely. Brown v. Saint Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992).

Under ARCP 3, an action is commenced by the filing of a complaint with the clerk of the proper court, and the establishment of venue and the tolling of a statute of limitations is based on the date the complaint is filed; however, the commencement date is subject to the plaintiff completing service within 120 days from the date of filing of the complaint, unless the time for service has been extended by the court under ARCP 4(i). Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993).

This section allows a party to file a new complaint within one year of a nonsuit as long as the cause of action is the same in substance as the original complaint at the time the latter was nonsuited. Dillaha v. Yamaha Motor Corp., 23 F.3d 1376 (8th Cir. 1994).

Court erred in awarding judgment to plaintiff in his breach of contract action against defendant because plaintiff's earlier failure to comply with the service requirements of Ark. R. Civ. P. 4(i) resulted in a failure to commence the action so as to effectuate the one-year savings provision provided in this section; hence, the action was barred by the five-year statute of limitations in § 16-56-111(a)Long v. Bonds, 89 Ark. App. 111, 200 S.W.3d 922 (Jan. 5, 2005).

Easement owner's pro se petition to enjoin the landowner from interfering with her purported easement was properly dismissed where a new case number was not assigned to the petition after the initial case was nonsuited, as required by Ark. R. Civ. P. 3. Burnham v. Price, 2018 Ark. App. 410, 558 S.W.3d 402 (2018).

Ark. R. Civ. P. 3(c), as amended in 2011, effectively overrules Tucker v. Sullivant, 2010 Ark. 170. Burnham v. Price, 2018 Ark. App. 410, 558 S.W.3d 402 (2018).

Complaint Amended.

Amended complaint on second suit was held sufficient as against demurrer where the amended complaint showed the bringing of the original suit in the same court, identified by date and docket number, the taking of a nonsuit at a specified date, and the commencement of a new action within the period set out in this section. Partin v. Wade, 172 F.2d 50 (8th Cir. 1949).

Where complaint in second action made same mistake in description and date as that contained in first action, the action was permitted even though plaintiff was permitted to amend complaint in second action by correcting description and date. Cummings v. Greif Bros. Cooperage Co., 202 F.2d 824 (8th Cir. 1953).

Following a voluntary nonsuit, the filing of an amended complaint satisfied the requirement of the savings statute, codified at subdivision (a)(1) of this section, that a new action be commenced within one year where the amended complaint was filed within the one-year period and timely service was completed as required by Ark. R. Civ. P. 4. Tucker v. Sullivant, 2010 Ark. 170, 370 S.W.3d 812 (2010).

Dismissal with Prejudice.

Where suit was dismissed with prejudice for want of prosecution, a subsequent suit for the same purpose is barred. Leach v. Cook, 211 Ark. 763, 202 S.W.2d 359 (1947).

Where suit was dismissed with prejudice for failure to prosecute, no nonsuit was suffered, and this section did not apply, plaintiff's only remedy was to appeal the original decision. Follette v. Wal-Mart Stores, Inc., 47 F.3d 311 (8th Cir. 1995), cert. denied, Wal-Mart Stores v. Follette, 516 U.S. 814, 116 S. Ct. 66 (1995).

Court rejected parents' claim that dismissal of their amended medical malpractice claim against hospital and doctor for failure to comply with the service requirements of Ark. R. Civ. P. 4 should have been without prejudice; the parents' failure to comply with the service of process requirements resulted in a failure to commence their medical malpractice action and effectuate the one-year savings provision in this section. Posey v. St. Bernard's Healthcare, Inc., 365 Ark. 154, 226 S.W.3d 757 (2006).

Dismissing with prejudice a municipality's petition challenging annexation against a landowner bank, which had requested detachment under § 14-40-2002, was not error where the municipality had not completed any service at all on the bank, and as a result, the one-year savings provision in this section did not apply. City of Tontitown v. First Sec. Bank, 2017 Ark. App. 326, 525 S.W.3d 18 (2017).

This section did not apply given that appellant's attempt at service was not valid, and the circuit court's conclusion that the attempt was not made in good faith was not clearly erroneous. Thus, the circuit court's dismissal with prejudice was affirmed. Eliasnik v. Y&S Pine Bluff, LLC, 2018 Ark. App. 138, 546 S.W.3d 497 (2018).

Patient's attempt at service by certified mail was insufficient to allow him the benefit of this section, because proof of service was lacking and the patient had no reason to believe that service was complete. No green cards were returned for three of the defendant doctors and there was no proof that the person who signed a green card for the fourth defendant doctor was the doctor's agent. McCoy v. Robertson, 2018 Ark. App. 279, 550 S.W.3d 33 (2018).

Dismissal Without Prejudice.

Where earlier order was a dismissal without prejudice, it was error for the trial judge to grant summary judgment and preclude defendant's claim on the grounds of res judicata. Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991).

Because an accident victim filed his complaint during the limitations period and served it timely, albeit imperfectly, under Ark. R. Civ. P. 4, he was entitled to the one-year grace period provided by the saving statute, subdivision (a)(1) of this section, and therefore the case was properly dismissed without prejudice, allowing him to refile. McCoy v. Bodiford, 2010 Ark. App. 152 (2010).

Unbeknownst to plaintiffs, the addressee was not the registered agent for the company; the appellate court believed that the Arkansas Supreme Court would hold that plaintiffs completed service on the company and that their action had thus commenced for purposes of this section. The appellate court concluded that the action had commenced for purposes of this section and that, had the action remained in state court, the claims against the company would have been dismissed without prejudice; thus, at a minimum, the district court should have dismissed plaintiffs' claims against the company without prejudice. Barner v. Thompson/Center Arms Co., 796 F.3d 897 (8th Cir. 2015).

Circuit court erred in dismissing buyers' action with prejudice because they were entitled to the benefit of this section since they made a timely, completed attempt to serve sellers; the summonses and complaints were mailed to the sellers at their last known address, and when the envelopes containing the complaints and summonses were returned to the buyers' attorney, they were marked with a postal service stamp that contained several options for delivery and were marked “refused.” Jones v. Douglas, 2016 Ark. 166, 489 S.W.3d 648 (2016).

Circuit court's decision to dismiss a complaint without prejudice, rather than with prejudice, was affirmed where an injured driver and her husband timely filed their complaint and served the driver who rear-ended the car behind them via warning order, but on appeal of the default judgment entered against that driver, the service was held imperfect under Ark. R. Civ. P. 4 due to the insufficiency of the diligent-inquiry affidavit. Under case law, the injured driver and her husband, who filed their case during the limitations period and served it promptly but imperfectly, deserved the grace period provided by this section (the “savings” statute) to refile their case and serve it properly. Thomas v. Robinson, 2020 Ark. App. 103, 596 S.W.3d 531 (2020).

Entitlement to Privilege.

It was error to dismiss the second action for failure to pay costs in former action. Turrentine v. St. Louis S.W. Ry., 96 Ark. 181, 131 S.W. 337 (1910).

A grantee being in privity of estate may bring a new action within the time specified. Dressler v. Carpenter, 107 Ark. 353, 155 S.W. 108 (1913).

The plaintiff brought an action and took a nonsuit, the cause being dismissed without prejudice. It was held that the plaintiff could bring a suit upon the same cause of action if he acted within the period of limitation. Forschler v. Cash, 128 Ark. 492, 194 S.W. 1029 (1917).

Successful plaintiff in justice court may take nonsuit on appeal to circuit court and bring another action. Biddle v. Missouri Pac. R.R., 160 Ark. 323, 254 S.W. 666 (1923).

After plaintiff takes nonsuit of crossaction for breach of warranty, he may sue defendent's estate for the breach within a year of such nonsuit. Fox v. Pinson, 182 Ark. 936, 34 S.W.2d 459, 74 A.L.R. 583 (1930).

Dismissal because of defect in complaint amounted to a nonsuit without prejudice and plaintiffs were entitled to bring a suit on the same cause of action within one year from the dismissal. Norm Co. v. Harris, 197 Ark. 124, 122 S.W.2d 532 (1938).

A new suit can be brought by a plaintiff who, from causes that are incident to the administration of the law, was compelled to abandon an action, regardless of whether it was by his own act or by the act of the court, if either would leave a cause of action undetermined. Cowan v. Patrick, 247 Ark. 886, 448 S.W.2d 336 (1969).

Where trial court erred in finding that proper service had been made on defendant and entered default judgment against defendant, it would be unfair to expect the plaintiff not to rely on this finding and believe that its action was timely commenced, and plaintiff should therefore not be barred by statute of limitations where default judgment was set aside five years later. Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990).

Because this savings statute protected those who in good faith filed and timely served an action who would otherwise suffer a complete loss of relief on the merits due to a procedural defect, plaintiff's complaint was timely filed, and despite service being defective, the action was commenced for purposes of the savings statute. Rettig v. Ballard, 2009 Ark. 629, 362 S.W.3d 260 (2009).

Good Faith.

A medical malpractice action was timely under the savings statute where the plaintiff first commenced an action against the defendant in federal district court in Arizona, but that action was dismissed for lack of personal jurisdiction, and less than a year later, she brought the same claim in federal district court in Arkansas; the plaintiff wanted her case to be heard and adjudicated in Arizona, and the fact that her selection of Arizona as a forum may have turned out to have been erroneous was not a sufficient basis for a conclusion that she did not act in good faith. Chandler v. Roy, 272 F.3d 1057 (8th Cir. 2001).

Nonsuit.

To suffer a nonsuit it is not necessary that a suitor actually ask for and be granted a nonsuit in the trial court. Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958).

When a nonsuit is taken, the procedure which was adopted in that action has no bearing on a subsequent action. Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S.W.2d 79 (1959).

For the purposes of this section, a dismissal of a complaint on defendant's motion is the same as a nonsuit. Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988); West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994).

The day on which a nonsuit is taken should be excluded from computation. Hodge v. Wal-Mart Stores, Inc., 297 Ark. 1, 759 S.W.2d 203 (1988).

This section could not save the wrongful-death claims of the children where the children were not parties to the first action that ended in a nonsuit. Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).

Where no nonsuit was effectively granted because no order granting the nonsuit was entered, the one-year savings statute was never activated. Blaylock v. Shearson Lehman Bros., 330 Ark. 620, 954 S.W.2d 939 (1997).

A nonsuit is not effective on the filing date; a court order is necessary to grant a nonsuit and the judgment or decree must be entered to be effective. Blaylock v. Shearson Lehman Bros., 330 Ark. 620, 954 S.W.2d 939 (1997).

The right to nonsuit prior to the submission of the case to the jury is absolute; a nonsuit has the effect of an absolute withdrawal of the claim and carries with it all the pleadings and all issues with respect to a plaintiff's claim. Tribco Mfg. Co. v. People's Bank of Imboden, 67 Ark. App. 268, 998 S.W.2d 756 (1999).

When buyer of property nonsuited his complaint against seller for breach of contract, the matter could not be subsequently litigated as it was barred by res judicata; claim should have been brought when foreclosure action was brought by seller. Pentz v. Romine, 75 Ark. App. 274, 57 S.W.3d 235 (2001).

Suit by the administrator of decedent's estate for wrongful death resulting from alleged medical malpractice was time-barred because it had not been filed within two years of the decedent's death as required by § 16-114-203; although the suit had been filed within one year of the date on which a previous suit against the same healthcare providers, filed by the decedent's heirs, had been non-suited, the estate had not been a party to the first action and could not, therefore, rely on the saving provision contained in this section to overcome the running of the statute of limitations. Tatus v. Hayes, 79 Ark. App. 371, 88 S.W.3d 864 (2002).

Dismissal of the patient's medical malpractice claim was appropriate because it was untimely under § 16-56-126(a)(1) since Ark. R. Civ. P. 41(a)(1) stated that the one-year period began when the circuit court entered an order granting the non-suit; additionally, Ark. R. Civ. P. 58 did not require courts to notify parties of the entry of an order of judgment. The patient also offered no proof that the hospital's attorney defrauded her or intended to defraud her in any way when he told her that the signing date was the date from which the statute would run. Collins v. St. Vincent, 98 Ark. App. 190, 253 S.W.3d 26, cert. denied, 552 U.S. 902, 128 S. Ct. 233, 169 L. Ed. 2d 174 (2007).

Appellee's counterclaim for quiet title was not barred by subdivision (a)(1) of this section as a prior court did not treat appellee's affirmative defense of adverse possession as a counterclaim under § 18-61-101(a), and the nonsuit of the prior action did not affect the statute of limitations, which had not begun to run on the quiet title claim as appellee was still in possession of the property. Sutton v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185 (2011).

Savings statute did not give an estate administrator a year to file a wrongful death suit following the Workers' Compensation Commission's dismissal of a workers' compensation claim, as the Commission's decision was not a “nonsuit”; the Commission denied the claim on the merits. Frisby v. Milbank Mfg. Co., 688 F.3d 540 (8th Cir. 2012).

Motion to dismiss an appeal for lack of jurisdiction was denied where three unlitigated claims had been nonsuited, they were not re-filed within one year under this section, and the statute of limitations for the claims had expired; thus, the claims were no longer a bar to finality. Stodola v. Lynch, 2017 Ark. 181, 519 S.W.3d 677 (2017).

School district's appeal of a jury award in favor of a teacher on a breach of contract claim was dismissed for lack of a final, appealable order where the jury award did not resolve all of the claims, the teacher had taken a voluntary nonsuit of the two remaining claims, the claims had not been dismissed with prejudice, and the one-year time period for refiling the claims under this section had not expired. Prescott Sch. Dist. v. Steed, 2017 Ark. App. 533 (2017).

In an action brought by a commercial landlord against two tenants for unpaid rent and property damage, a final appealable order was lacking after a default judgment was granted against tenant #1, partial summary judgment was entered against tenant #2 on the unpaid rent claim, and the landlord took a voluntary nonsuit without prejudice of “all pending but unresolved” claims. The partial summary judgment on the unpaid rent claim was subject to reconsideration and even revision before the final resolution of the case and it could not be considered a “pending but unresolved” claim that was dismissed by the voluntary nonsuit; in addition, the landlord could refile its claim for property damage against tenant #2 after the voluntary nonsuit. A Time for You v. Park H Props., LLC, 2019 Ark. App. 282 (2019).

Pleading.

Allegations in previous case regarding court jurisdiction is of no consequence in a subsequent case, because before a court can assume jurisdiction there must be something in the present pleadings giving that court jurisdiction. Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S.W.2d 79 (1959).

Substitution.

In a claim brought against the suppliers of a pain pump, a dismissal was proper because a wife, as a patient's administratrix, did not seek substitution under Fed. R. Civ. P. 25 prior to a nonsuit of the case when it was pending in federal court. Therefore, the patient and his wife did not receive the benefit of this section. Wilson v. Lincare, Inc., 103 Ark. App. 329, 288 S.W.3d 708 (2008).

Suit Barred.

Evidence sufficient to bar second suit. Yates v. Phillips, 180 Ark. 709, 22 S.W.2d 559 (1929); Thompson v. Pulaski-Lonoke Drainage Dist., 192 Ark. 1178, 90 S.W.2d 237 (1936); Young v. Garrett, 212 Ark. 693, 208 S.W.2d 189 (1948), cert. denied, 335 U.S. 814, 69 S. Ct. 31 (1948), rehearing denied, J. H. Allison & Co. v. NLRB, 335 U.S. 905, 69 S. Ct. 404, 93 L. Ed. 439 (1949); Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613 (1949); Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958); Taylor v. Goodwin, 237 Ark. 121, 371 S.W.2d 617 (1963); Nelson v. Wakefield, 282 Ark. 285, 668 S.W.2d 29 (1984).

Where plaintiff filed a medical malpractice action on March 4, 1994, two days short of the two-year statute of limitations under § 16-114-203(a), and had until July 2, 1994, to complete service of process pursuant to ARCP 4(1), requested another 120 days on June 23, 1994, and was granted a 30-day extension on July 28, 1994, and where plaintiff, after failing to obtain service, requested a nonsuit on August 18, 1994, which was granted on September 14, 1994, the claim refiled on August 11, 1995, had not invoked this section's one-year savings provision and was barred by the statute of limitations. Thomson v. Zufari, 325 Ark. 208, 924 S.W.2d 796 (1996).

When a decedent's heirs nonsuited their wrongful death claim, the claim could not be refiled after expiration of the applicable statute of limitations, by the administratrix of the decedent's estate, even though she was one of the heirs who filed the wrongful death claim, as this section only allowed a claim to be refiled after nonsuit by the same parties who filed the original action. Smith v. St. Paul Fire & Marine Ins. Co., 76 Ark. App. 264, 64 S.W.3d 764 (2001).

Where a wrongful-death complaint was not in compliance with § 16-62-102 and the statute of limitations had run, barring heirs from commencing a wrongful-death action against a doctor, the wife of the deceased was also barred from pursuing a separate claim for loss of consortium, which was derivative to wrongful-death action. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003).

Where heirs were not plaintiffs to their mother's first wrongful-death complaint, they could not benefit from the application of the savings statute where, at the time the heirs filed their wrongful-death suit, the two-year statute of limitations had already run, barring their claim; the heirs could not ratify the first suit filed by their mother so as to have come within the savings statute because that suit had been non-suited and, therefore, there was no valid cause of action for them to have ratified. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003).

Circuit court's dismissal of the buyer's case for failure of service of valid process was upheld where, in order to invoke the protection of the savings statute, the buyer had to timely commence the original action; the buyer's fraud claim against the car dealership was therefore time barred and the savings statute did not apply. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003).

Tolling Statute of Limitations.

Although an action is brought in a court without jurisdiction, yet its pendency will arrest the statute if a proper action is commenced within a year after the judgment in first suit is vacated. Little Rock, M.R. & T. Ry. v. Manees, 49 Ark. 248, 4 S.W. 778 (1887).

In order to suspend the statute of limitations the action must be properly commenced. Wilkins v. Worthen, 62 Ark. 401, 36 S.W. 21 (1896).

Where plaintiff filed a tort action against the defendant within two year period of limitations and took a nonsuit, plaintiff could maintain a second suit based on same cause of action where filed within one year of the nonsuit, though second action was filed more than two years after the occurrence of the tort. Partin v. Wade, 172 F.2d 50 (8th Cir. 1949).

When the court lacking subject matter jurisdiction has, by statute, authority to transfer the action to a court of competent jurisdiction, timely filing of the suit in the first court tolls the statute of limitations. Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988).

To toll the limitations period and to invoke the saving statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant under ARCP 4; a court's later ruling which finds completed service invalid does not disinherit the plaintiff from the benefit of the saving statute. Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993).

Where plaintiff filed a timely action against and completed service upon defendant in his prior lawsuit, the applicable limitations period was tolled, and he was thereby entitled to invoke this section when refiling his complaint. Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993).

Trial court properly refused to apply the doctrine of equitable tolling to delay the running of the one-year saving statute so that wrongful death plaintiffs' fifth amended complaint could be deemed timely where their attorney was not sufficiently diligent in the seven-week period he had to rename the defendant to merit the application of the doctrine of equitable tolling. Stracener v. Williams, 84 Ark. App. 208, 137 S.W.3d 428 (2003).

Trial court erred in granting state's motion to strike appellant's motion to dismiss a forfeiture action because, after voluntarily dismissing its first forfeiture complaint for failure to complete service of process, the state neglected to toll the limitations period to invoke the one-year savings statute because it did not file the forfeiture complaint within the 120-day period required by § 5-64-505(3). Mitchell v. State, 94 Ark. App. 304, 229 S.W.3d 583 (2006).

Circuit court properly dismissed a patient's negligent treatment case against a chiropractor without prejudice to being refiled where the patient had commenced his case under Ark. R. Civ. P. 3 by completing timely, but defective, service, and thus, he was entitled to the shelter of subdivision (a)(1) of this section. Clouse v. Tu, 101 Ark. App. 260, 274 S.W.3d 344 (2008).

Because the court denied class certification under Fed. R. Civ. P. 23 in an earlier filed case on the ground that the named plaintiffs were not typical of or adequate representatives for the class, it was not a reason equally applicable to any later suit, so American Pipe applied and the statute of limitations was tolled by the prior action. Under this section, the Arkansas's savings statute, the tolling gave plaintiffs one year after certification was denied in the prior action to commence a new action and receive the full protection of the prior action, and because plaintiffs filed the instant action within that year, they received the maximum benefit of the tolling, except that they could not recover from any further back than October 1, 2006, because prior to October 1, 2006, the employer was exempt from the Arkansas Minimum Wage Act as it was subject to the minimum wage and overtime provisions of the Fair Labor Standards Act. Garner v. Butterball, LLC, No. 4:10CV01025 JLH, 2012 U.S. Dist. LEXIS 21859 (E.D. Ark. Feb. 22, 2012).

In a foreclosure case involving a construction loan, summary judgment was properly granted on the borrower's nonsuited counterclaims for negligence and interference with business expectancies, which were untimely under § 16-56-105 because they were filed more than three years after the lender refused further funding of the loan and were not saved by this section because they were filed more than two years after the voluntary nonsuit. Grand Valley Ridge, LLC v. Metro. Nat'l Bank, 2012 Ark. 121, 388 S.W.3d 24 (2012).

Cited: Robison v. Jones, 261 F.2d 584 (8th Cir. 1958); Credit Indus. Co. v. Blankinship, 230 Ark. 371, 323 S.W.2d 198 (1959); Vines v. Arkansas Power & Light Co., 232 Ark. 173, 337 S.W.2d 722 (1960); Farm Serv. Coop. v. Goshen Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1979); Weston v. Bachman, 682 F.2d 202 (8th Cir. 1982); Blakemore v. Missouri Pac. R.R., 789 F.2d 616 (8th Cir. 1986); Ware v. Gardner, 309 Ark. 148, 827 S.W.2d 657 (1992); Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992); Oxford v. Perry, 340 Ark. 577, 13 S.W.3d 567 (2000); Miller v. Norris, 247 F.3d 736 (8th. Cir. 2001); Nef v. Ag Servs. of Am., Inc., 79 Ark. App. 100, 86 S.W.3d 4 (2002); Wright v. City of Little Rock, 366 Ark. 96, 233 S.W.3d 644 (2006); Recinos v. Zelk, 369 Ark. 7, 250 S.W.3d 221 (2007); Barrows v. City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117 (2010).

16-56-127. Mutual open accounts — Accrual of cause of action.

In actions brought to recover any balance due upon a mutual open account current, the cause of action shall be deemed to have accrued from the time of the last item proved in the account.

History. Rev. Stat., ch. 91, § 12; C. & M. Dig., § 6964; Pope's Dig., § 8942; A.S.A. 1947, § 37-215.

Case Notes

Action Barred.

Since an account with the improvement districts was in the nature of an account current and the suit was brought as soon as the shortage was discovered, the statute of limitations was without application. Murphy v. Marshall, 203 Ark. 986, 159 S.W.2d 741 (1942).

Action Not Limited.

In a suit on a mutual account, the plaintiff was not limited to recovery of items sold within three years prior to the action, and a charge limiting recovery to items purchased within three years before institution of the action was error. T. M. Dover Merchantile Co. v. Myers, 180 Ark. 576, 21 S.W.2d 972 (1929).

Mutual Open Account.

“Mutual open account” means something more than charges on one side and credits of payments on the other. There must be mutual credit founded on a subsisting debt on the other side, or an express or implied agreement for a setoff of mutual debts. McNeil v. Garland & Nash, 27 Ark. 343 (1871); McConnell v. Arkansas Coffin Co., 172 Ark. 87, 287 S.W. 1007 (1926).

Evidence sufficient to find mutual accounts. T. M. Dover Merchantile Co. v. Myers, 180 Ark. 576, 21 S.W.2d 972 (1929); Refco, Inc. v. Farm Prod. Ass'n, 844 F.2d 525 (8th Cir. 1988).

16-56-128. Guaranteed student loans.

There shall be no greater statute of limitations defense available to a borrower who has defaulted on a loan guaranteed by the Student Loan Guarantee Foundation of Arkansas than would be available had the borrower defaulted on an obligation to the State of Arkansas.

History. Acts 1987, No. 574, § 3.

Cross References. Administration of student loan provisions of federal laws, § 6-81-201.

16-56-129. [Repealed.]

Publisher's Notes. This section, concerning arrearages and limitations on child support, was repealed by Acts 1995, No. 1184, § 30. The section was derived from Acts 1989, No. 525, § 1.

Acts 1989, No. 525, § 1, is also codified as § 9-14-236.

16-56-130. Civil actions based on sexual abuse.

  1. Notwithstanding any other statute of limitations or any other provision of law that can be construed to reduce the statutory period set forth in this section, any civil action based on sexual abuse which occurred when the injured person was a minor but is not discovered until after the injured person reaches the age of majority shall be brought within three (3) years from the time of discovery of the sexual abuse by the injured party.
    1. A claim based on an assertion of more than one (1) act of sexual abuse is not limited to the injured party's first discovery of the relationship between any one (1) of those acts and the injury or condition, but may be based on the injured party's discovery of the effect of the series of acts.
    2. It is not necessary for the injured party to establish which act in a series of acts of childhood sexual abuse caused the injury or condition that is the subject of the lawsuit.
  2. For the purposes of this section:
    1. “Childhood sexual abuse” means sexual abuse which occurred when the injured person was a minor;
    2. “Minor” means a person of less than eighteen (18) years of age; and
    3. “Time of discovery” means when the injured party discovers the effect of the injury or condition attributable to the childhood sexual abuse.

History. Acts 1993, No. 370, § 1.

Publisher's Notes. Acts 1993, No. 370, § 2, provided:

“This act is applicable to all actions filed on or after the effective date of the act [August 13, 1993].”

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 16 U. Ark. Little Rock L.J. 85.

Cross References. Persons under disabilities at time of accrual of action, § 16-56-116.

Subchapter 2 — Uniform Conflict of Laws Limitations Act

16-56-201 — 16-56-210. [Repealed.]

Publisher's Notes. This subchapter, concerning uniform conflicts of laws forms of action, was repealed by Acts 1999, No. 310, § 1. The subchapter was derived from the following sources:

16-56-201. Acts 1985, No. 387, § 1; A.S.A. 1947, § 37-302.

16-56-202. Acts 1985, No. 387, § 2; A.S.A. 1947, § 37-303.

16-56-203. Acts 1985, No. 387, § 3; A.S.A. 1947, § 37-304.

16-56-204. Acts 1985, No. 387, § 4; A.S.A. 1947, § 37-305.

16-56-205. Acts 1985, No. 387, § 5; A.S.A. 1947, § 37-306.

16-56-206. Acts 1985, No. 387, § 6; A.S.A. 1947, § 37-307.

16-56-207. Acts 1985, No. 387, § 7; A.S.A. 1947, § 37-301.

16-56-208. Acts 1985, No. 387, § 8.

16-56-209. [Reserved.]

16-56-210. Acts 1985, No. 387, § 9.

Chapter 57 Forms Of Action

16-57-101 — 16-57-109. [Repealed.]

Publisher's Notes. This chapter, concerning forms of action, was repealed by Acts 2003, No. 1185, § 189. The chapter was derived from the following sources:

16-57-101. Civil Code, § 3; C. & M. Dig., § 1033; Pope's Dig., § 1235; A.S.A. 1947, § 27-204.

16-57-102. Civil Code, § 13; C. & M. Dig., § 1047; Pope's Dig., § 1249; A.S.A. 1947, § 27-215.

16-57-103. Civil Code, § 4; C. & M. Dig., § 1034; Pope's Dig., § 1236; A.S.A. 1947, § 27-205.

16-57-104. Civil Code, §§ 7-9; C. & M. Dig., §§ 1041, 1042, 1044; Pope's Dig., §§ 1243, 1244, 1246; A.S.A. 1947, §§ 27-208 — 27-210.

16-57-105. Civil Code, § 12; C. & M. Dig., § 1043; Pope's Dig., § 1245; A.S.A. 1947, § 27-211.

16-57-106. Civil Code, § 10; C. & M. Dig., § 1045; Pope's Dig., § 1247; A.S.A. 1947, § 27-212.

16-57-107. Civil Code, § 11; C. & M. Dig., § 1046; Pope's Dig., § 1248; A.S.A. 1947, § 27-213.

16-57-108. Civil Code, § 14; C. & M. Dig., § 1048; Pope's Dig., § 1250; A.S.A. 1947, § 17-214.

16-57-109. Civil Code, § 6; C. & M. Dig., § 1036; Pope's Dig., § 1238; A.S.A. 1947, § 27-207.

Chapter 58 Commencement Of Action — Process

Publisher's Notes. Some provisions of this chapter may be superseded by the Arkansas Rules of Civil Procedure and Rules for Inferior Courts [now District Courts] pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Cross References. Uniform Interstate and International Procedure Act, §§ 16-4-10116-4-108.

Effective Dates. Acts 1842, § 36, p. 27: Jan. 1, 1843.

Acts 1846, § 5, p. 86: effective on passage.

Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1875, No. 77, § 53: effective on passage.

Acts 1877, No. 56, § 2: effective on passage.

Acts 1901, No. 106, § 2: effective on passage.

Acts 1915, No. 290, § 24: June 1, 1915.

Acts 1931, No. 42, § 2: approved Feb. 18, 1931. Emergency clause provided: “In view of the fact that a large number of banks in the state are now in the process of liquidation and many actions will be commenced in the courts of this state in which the state bank commissioner will be a necessary party and delay will be occasioned by obtaining service of process on the state bank commissioner in person, an emergency is ascertained and declared to exist and this act shall be in full force and effect from and after its passage.”

Acts 1935, No. 70, § 3: became law without Governor's signature, Feb. 26, 1935. Emergency clause provided: “Whereas many motor buses, coaches and trucks are being operated upon the public highways of this state and by reason of their operation persons are being injured and their property damaged and in many instances there is now no agent of the owner or operator of such vehicles upon whom service of summons can be had in counties through which same are being operated, therefore an emergency exists on account of such injuries and damages to persons and property and no adequate provisions for service of summons existing, it is found that this act is necessary for the immediate preservation of the public peace, health and safety, and an emergency is hereby declared to exist, and this act shall be in full force and effect from and after passage.”

Acts 1947, No. 347, § 6: Mar. 28, 1947. Emergency clause provided: “Whereas many nonresident persons, firms, partnerships and corporations are not now qualified under the Constitution and laws of this State to do business herein and by reason of operating business in and through the State of Arkansas injury and damage are being done to persons and property within said State; and whereas in cases of such injury and damage by such nonresident defendants those suffering damages thereby have no convenient method by which they may sue to enforce their rights, if any, in the State of Arkansas, and this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall be in full force and effect from and after its passage and approval.”

Acts 1960 (Ex. Sess.), No. 11, § 2: Jan. 21, 1960. Emergency clause provided: “It has been found and it is hereby declared by the General Assembly that undue hardships are placed upon many victims of accidents involving nonresident motorists in that many of them are unable to make bond for costs when effecting service of process as plaintiffs in actions brought against such nonresidents, thereby preventing them from having their rights litigated in court. 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 on and after the date of its passage and approval.”

Acts 1997, No. 969, § 5: Mar. 31, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Arkansas Code 16-58-106(c) permits an order of attachment or order for delivery of property to be issued or executed on Sunday only under very limited circumstances; that this provision is unfair to judgment creditors in that failure to issue or execute such order on Sunday may result in the property being concealed or removed from the jurisdiction; that this act is designed to permit the issuance and execution of such orders on any day including Sunday without restrictions and should be given effect immediately to protect judgment creditors in 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.”

Research References

ALR.

In personam jurisdiction over nonresident based on ownership, use, possession, or sale of real property. 4 A.L.R.4th 955.

In personam jurisdiction under long-arm statute of nonresident banking institution. 9 A.L.R.4th 661.

Validity of substituted service of process upon liability insurer of unavailable tortfeasor. 17 A.L.R.4th 918.

In personam jurisdiction, under long-arm statute, over nonresident attorney in legal malpractice action. 23 A.L.R.4th 1044.

In personam jurisdiction, under long-arm statute, over nonresident physician, dentist, or hospital in medical malpractice action. 25 A.L.R.4th 706.

Religious activities as doing or transaction of business under long-arm statutes or rules of court. 26 A.L.R.4th 1176.

Bringing action to trial or other activity sufficient to avoid dismissal under statute or court rule. 32 A.L.R.4th 840.

C.J.S. 72 C.J.S., Process, § 1 et seq.

16-58-101. Payment of fees prerequisite to entry of action or issuance of writ.

  1. No action shall be entered upon the docket of any court nor any original mesne or final process issued in the action, except in criminal cases and cases where the state is plaintiff, until the fees for entering the case upon the docket and for issuing the writ and the taxes thereon, if any, are paid, or bond and security to the approval of the clerk given therefore.
  2. No clerk shall be liable to an action for refusing to docket a cause or issue any writ unless the fee and tax thereon is first tendered or secured as provided in this section.

History. Acts 1875, No. 77, § 8, p. 167; C. & M. Dig. § 4574; Pope's Dig., § 5658; A.S.A. 1947, § 27-302.

Cross References. Circuit court clerks — Miscellaneous fees, § 21-6-402.

Case Notes

Failure to Pay Filing Fee.

Circuit court erred in entering an order dismissing with prejudice the prisoner's civil rights case as the prisoner's case was never filed because he never paid a filing fee to the circuit clerk; therefore, the circuit court never acquired jurisdiction. Ward v. Hutchinson, 2018 Ark. 270, 555 S.W.3d 866 (2018).

Liability of Clerk.

The clerk was not liable to an action for refusing to docket a cause or issue any writ where the fees required by this section were not tendered, paid, or secured to the circuit court clerk by the plaintiff in spite of the demands made by the clerk to the plaintiff. McClellan v. Young, 232 Ark. 679, 339 S.W.2d 624 (1960).

16-58-102. Style of process issued by judge, justice, or other officer.

All writs and process issued by any judge, justice of the peace, or other officer authorized to issue the writ or process shall run in the name of the State of Arkansas and be signed by the officer issuing the writ or process.

History. Rev. Stat., ch. 159, § 3; C. & M. Dig. § 1125; Pope's Dig., § 1341; A.S.A. 1947, § 27-305.

16-58-103. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning summons generally, was repealed by Acts 2013, No. 1148, § 20[21]. The section was derived from Civil Code, §§ 60, 61, 762; C. & M. Dig., §§ 1127, 1137, 1138; Pope's Dig., §§ 1343, 1353, 1354; A.S.A. 1947, §§ 27-310, 27-312, 27-313.

16-58-104. Alias or pluries writs.

When any writ or other process issued out of any court of this state is not executed, the clerk of the court shall issue an alias, pluries, or other proper process without an order of the court for that purpose on the application of the party suing out the writ or other process.

History. Rev. Stat., ch. 159, § 8; C. & M. Dig., § 1126; Pope's Dig., § 1342; A.S.A. 1947, § 27-311.

Case Notes

Alias Writ.

First or outstanding writ does not have to be returned unexecuted before clerk is authorized to issue alias writ without court order. Carnes v. Strait, 223 Ark. 962, 270 S.W.2d 920 (1954)Questioned byDavis v. Colvin, 238 Ark. 968, 385 S.W.2d 944 (Ark. 1965).

16-58-105. Seal.

All writs shall be sealed with the judicial seal of the court.

History. Rev. Stat., ch. 159, § 2; C. & M. Dig., § 1124; Pope's Dig., § 1340; A.S.A. 1947, § 27-304.

Cross References. Official seals, § 1-4-108.

16-58-106. Issuance and execution of process, writ, summons, etc., on Sunday or a holiday.

  1. It shall be no objection to any process, writ, summons, affidavit, or order for a provisional remedy that it was issued, made, or is dated on a holiday nor shall it be an objection to any bond given by or for any party to an action or taken by an officer in the course of the action that it was made or is dated on any such day.
  2. A summons or order for a provisional remedy may be issued on any holiday, except Sunday. It may be issued on Sunday if an affidavit of the plaintiff or some other person is made to the effect that, unless it is issued on that day, there is reasonable cause to believe that it cannot be executed.
  3. An order of attachment or for the delivery of property or a writ of execution may be issued or executed on any holiday, including Sunday.
    1. A summons, subpoena, notice, order of arrest, or order of injunction may be executed on any holiday except Sunday. It may be executed on Sunday if the officer having the process believes, or an affidavit of the plaintiff or some other person is made to the effect that the affiant believes, that the process cannot be executed after such holiday.
    2. The defendant shall have no privilege of exemption from the service of the process mentioned in subdivision (d)(1) of this section, except from an arrest by reason of his or her attendance at any muster, election, or order of survey or as a witness at any court or other place.

History. Civil Code, §§ 763-767; C. & M. Dig., §§ 1128-1132; Pope's Dig., §§ 1344-1348; A.S.A. 1947, §§ 27-314 — 27-318; Acts 1997, No. 969, § 1.

Case Notes

Purpose.

The legislature meant by this section that in order to permit the service of process on Sunday such service could not be had anywhere within the state after such Sunday. Waldron Mfg. Corp. v. Kincannon, 197 Ark. 804, 124 S.W.2d 968 (1939).

Service on Sundays.

As a general rule, service of summons on Sunday is void and of no effect except in special cases and cases of urgent necessity. Waldron Mfg. Corp. v. Kincannon, 197 Ark. 804, 124 S.W.2d 968 (1939).

An affidavit by plaintiff's attorney stating that service could not be had upon defendant after that day, which was Sunday, in the southern district of Logan County, was held insufficient under this statute, as it did not state that the service could not be had in any of the other counties of the state. Waldron Mfg. Corp. v. Kincannon, 197 Ark. 804, 124 S.W.2d 968 (1939).

16-58-107. [Superseded.]

Publisher's Notes. Arkansas Rules of Civil Procedure, Rule 4 was amended on February 1, 2001, by revising subsection (a) to permit service only by a person authorized by this rule to serve process and by revising subsection (c) to allow service of process by a sheriff or deputy unless the sheriff is a party to the action. The amendments to Ark. R. Civ. P. 4 were deemed by the Arkansas Supreme Court to supersede Ark. Code Ann. §§ 16-58-107, 16-58-108, 16-58-109, 16-58-112, 16-58-113, 16-58-118, and 16-58-119.

Section 16-58-107 was derived from Civil Code, § 65 [65A]; Acts 1871, No. 48, § 1 [65a], p. 219; C. & M. Dig., § 1143; Pope's Dig., § 1359; and A.S.A. 1947, § 27-322.

16-58-108. [Superseded.]

Publisher's Notes. Arkansas Rules of Civil Procedure, Rule 4 was amended on February 1, 2001, by revising subsection (a) to permit service only by a person authorized by this rule to serve process and by revising subsection (c) to allow service of process by a sheriff or deputy unless the sheriff is a party to the action. The amendments to Ark. R. Civ. P. 4 were deemed by the Arkansas Supreme Court to supersede Ark. Code Ann. §§ 16-58-107, 16-58-108, 16-58-109, 16-58-112, 16-58-113, 16-58-118, and 16-58-119.

Section 16-58-108 was derived from Civil Code, § 769; C. & M. Dig., § 1134; Pope's Dig., § 1350; and A.S.A. 1947, § 27-327.

16-58-109. [Superseded.]

Publisher's Notes. Arkansas Rules of Civil Procedure, Rule 4 was amended on February 1, 2001, by revising subsection (a) to permit service only by a person authorized by this rule to serve process and by revising subsection (c) to allow service of process by a sheriff or deputy unless the sheriff is a party to the action. The amendments to Ark. R. Civ. P. 4 were deemed by the Arkansas Supreme Court to supersede Ark. Code Ann. §§ 16-58-107, 16-58-108, 16-58-109, 16-58-112, 16-58-113, 16-58-118, and 16-58-119.

Section 16-58-109 was derived from Civil Code, § 807 and A.S.A. 1947, § 27-307.

16-58-110. Sheriff to attend clerk's office to receive process.

It shall be the duty of the sheriff or one (1) of his or her deputies to attend at the clerk's office daily, Sundays excepted, to receive any process that may be issued, and the clerk shall deliver to him or her any process remaining in his or her office.

History. Civil Code, § 65; C. & M. Dig., § 1142; Pope's Dig., § 1358; A.S.A. 1947, § 27-320.

Cross References. Sheriff to execute when directed to him, § 14-14-1301.

Case Notes

Cited: Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978).

16-58-111. Endorsement of day and hour of receipt on process.

The sheriff shall endorse upon every summons, order of arrest, or order for the delivery of property, or of attachment or injunction in his or her hands the day and hour it was received by him or her.

History. Civil Code, § 776; C. & M. Dig., § 9165; Pope's Dig., § 11827; A.S.A. 1947, § 27-329.

16-58-112. [Superseded.]

Publisher's Notes. Arkansas Rules of Civil Procedure, Rule 4 was amended on February 1, 2001, by revising subsection (a) to permit service only by a person authorized by this rule to serve process and by revising subsection (c) to allow service of process by a sheriff or deputy unless the sheriff is a party to the action. The amendments to Ark. R. Civ. P. 4 were deemed by the Arkansas Supreme Court to supersede Ark. Code Ann. §§ 16-58-107, 16-58-108, 16-58-109, 16-58-112, 16-58-113, 16-58-118, and 16-58-119.

Section 16-58-112 was derived from Civil Code, § 768; C. & M. Dig., § 1133; Pope's Dig., § 1349; and A.S.A. 1947, § 27-321.

16-58-113. [Superseded.]

Publisher's Notes. Arkansas Rules of Civil Procedure, Rule 4 was amended on February 1, 2001, by revising subsection (a) to permit service only by a person authorized by this rule to serve process and by revising subsection (c) to allow service of process by a sheriff or deputy unless the sheriff is a party to the action. The amendments to Ark. R. Civ. P. 4 were deemed by the Arkansas Supreme Court to supersede Ark. Code Ann. §§ 16-58-107, 16-58-108, 16-58-109, 16-58-112, 16-58-113, 16-58-118, and 16-58-119.

Section 16-58-113 was derived from Acts 1846, §§ 1-4, p. 86; C. & M. Dig., §§ 1462-1465; Pope's Dig., §§ 1763-1766; and A.S.A. 1947, §§ 27-323 — 27-326.

16-58-114. [Repealed.]

Publisher's Notes. This section, concerning the payment of fee as prerequisite to service of process, was repealed by Acts 1989, No. 269, § 2. The section was derived from Acts 1875, No. 77, § 22, p. 167; C. & M. Dig., § 4591; Pope's Dig., § 5679; A.S.A. 1947, § 27-328.

16-58-115. Sheriff to note time of service.

When a sheriff serves a summons, he or she shall note on the copy of the summons delivered or offered to the defendant or left at the defendant's residence the time and date the summons was served.

History. Acts 1979, No. 364, § 1; A.S.A. 1947, § 27-322.1.

16-58-116. Acknowledgment of service.

Service may be acknowledged by the defendant by an endorsement upon the summons, signed and dated by him or her, and attested by a witness. The affidavit of the witness shall be proof of the service.

History. Civil Code, § 68; C. & M. Dig., § 1146; Pope's Dig., § 1362; A.S.A. 1947, § 27-331.

16-58-117. Return.

    1. Each sheriff, coroner, and constable, on the return made by him or her on any writ or other process, shall state at length the time when, the place where, and how the writ or process was served.
    2. Otherwise, the officer shall not be entitled to demand or receive any fee for the service or execution of the writ or other process.
    1. In all cases of the return of service upon a summons by an officer, the return must state the time of service and that a copy was delivered to, or offered and refused by, the defendant.
      1. If a return of service is defective in these respects, the officer may be fined by the court, not exceeding ten dollars ($10.00), and shall be liable to the action of any person aggrieved by the defect.
      2. However, the court may permit an amendment, according to the truth of the case.
  1. It shall not be a sufficient return of any process that the officer was kept off by force from executing it.

History. Acts 1842, § 25, p. 27; Civil Code, §§ 67, 779; C. & M. Dig., §§ 1145, 4625, 9168; Pope's Dig., §§ 1361, 5714, 11830; A.S.A. 1947, §§ 27-333 — 27-335.

Case Notes

In General.

When it appears from a return that no sufficient service has been had, the court acquires no jurisdiction of the person of the defendant. Coffee v. Gates & Bro., 28 Ark. 43 (1872).

Other County.

The sheriff to whom the writ has been directed from another county is not required to bring it back in person to the office from which it issued, it being sufficient if he endorses a certificate of his proceeding under it and mails it back to the issuing officer. Bledsoe v. Pierce-Williams Co., 147 Ark. 51, 226 S.W. 532 (1921).

Valid Return.

Record made by official endorsement of return is the proper evidence of due service. Coffee v. Gates & Bro., 28 Ark. 43 (1872).

Two returns endorsed on the same day must be considered together; service found defective as the second return did not show that it was left at the usual place of abode with a person over 15 years of age. Pillow v. Sentelle & Co., 39 Ark. 61 (1882).

The return need not follow the exact language of the statute. Duval v. Johnson, 39 Ark. 182 (1882).

Any oral return on an execution made before the justice of the peace who issued the writ does not constitute a valid return. Jones v. Goodbar, 60 Ark. 182, 29 S.W. 462 (1895).

Return stating that a copy was left “with a member of his family over 15 years old at his usual place of abode” was sufficient without stating the name of the person with whom the copy was left. Box v. Equitable Sec. Co., 71 Ark. 286, 73 S.W. 100 (1903).

A sheriff's return may be contradicted by evidence accompanying it. Good Roads Machinery Co. v. Cox, 139 Ark. 29, 212 S.W. 87 (Ark. 1919).

Waiver of Defects.

An answer of a corporation, without preservation of defect in return of service, waived any defect in the return. O'Guinn Volkswagen, Inc. v. Lawson, 256 Ark. 23, 505 S.W.2d 213 (1974)Questioned byBailey v. Matthews, 279 Ark. 117, 649 S.W.2d 175 (1983).

Cited: Cairo & Fulton R.R. v. Trout, 32 Ark. 17 (1877).

16-58-118. [Superseded.]

Publisher's Notes. Arkansas Rules of Civil Procedure, Rule 4 was amended on February 1, 2001, by revising subsection (a) to permit service only by a person authorized by this rule to serve process and by revising subsection (c) to allow service of process by a sheriff or deputy unless the sheriff is a party to the action. The amendments to Ark. R. Civ. P. 4 were deemed by the Arkansas Supreme Court to supersede Ark. Code Ann. §§ 16-58-107, 16-58-108, 16-58-109, 16-58-112, 16-58-113, 16-58-118, and 16-58-119.

Section 16-58-118 was derived from Acts 1939, No. 314, § 1; 1947, No. 347, § 1; and A.S.A. 1947, §§ 27-610 and 27-612.

16-58-119. [Superseded.]

Publisher's Notes. Arkansas Rules of Civil Procedure, Rule 4 was amended on February 1, 2001, by revising subsection (a) to permit service only by a person authorized by this rule to serve process and by revising subsection (c) to allow service of process by a sheriff or deputy unless the sheriff is a party to the action. The amendments to Ark. R. Civ. P. 4 were deemed by the Arkansas Supreme Court to supersede Ark. Code Ann. §§ 16-58-107, 16-58-108, 16-58-109, 16-58-112, 16-58-113, 16-58-118, and 16-58-119.

Section 16-58-119 was derived from Civil Code, §§ 77, 78; Acts 1915, No. 290, § 3, p. 1081; 1917, No. 143, § 1, p. 776; C. & M. Dig., §§ 1157, 1158; Pope's Dig., §§ 1374, 1379; Acts 1961, No. 54, § 1; and A.S.A. 1947, § 27-339.

16-58-120. Method of service — Resident and nonresident defendants out of state — Secretary of State agent.

  1. Any cause of action arising out of acts done in this state by an individual in this state or by an agent or servant in this state of a foreign corporation may be sued upon in this state, although the defendant has left this state, by process served upon or mailed to the individual or corporation outside the state.
    1. Any resident or nonresident person who commits acts in this state sufficient to give an individual in this state a cause of action against the person committing the acts shall have deemed to have appointed the Secretary of State as his or her agent for service of process on him or her in any suit arising out of the acts committed by said resident or nonresident.
      1. Service of the process shall be made by:
        1. Serving three (3) copies of the process on the Secretary of State;
        2. Notifying the Secretary of State that service is being effected pursuant to this subsection; and
        3. Paying the Secretary of State the sum of twenty-five dollars ($25.00).
      2. Such service shall be sufficient service upon the nonresident person or any resident person who has subsequently absented himself or herself physically from the state or upon the executor, administrator, or other legal representative of his or her estate, in case he or she has since died, if notice of the service and a copy of the process are forthwith sent by certified mail by the plaintiff or his or her attorney to the defendant at his or her last known address or to the administrator, executor, or other legal representative of the estate in case the person has died, and the defendant's return receipt or the return receipt of the administrator, executor, or other legal representative of the estate of the deceased person is attached to the writ of process and entered and filed in the office of the clerk of the court in which such cases are brought.
    2. The court in which the action is pending may order some continuance as may be necessary to afford the defendant reasonable opportunity to defend the act.
    3. The Secretary of State, upon receiving a copy of the service of summons, shall also forthwith mail a copy of the summons, together with a copy of the complaint, by first-class mail to the last and best known address of the named defendant in the suit, notifying him or her of the filing of the suit.
  2. A defendant so summoned shall have thirty (30) days in which to answer after service upon him or her.
  3. The provisions of this section shall not apply to a corporation that has an agent for service of process registered with the Secretary of State.

History. Acts 1963, No. 119, §§ 1, 2; 1983, No. 167, § 1; A.S.A. 1947, §§ 27-339.1, 27-339.2; Acts 1997, No. 1213, § 1.

Research References

ALR.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

Ark. L. Notes.

Gitelman and Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, 1991 Ark. L. Notes 27.

Ark. L. Rev.

Legislative Notes — No. 119 — Personal Jurisdiction Over Out-of-State Defendants, 18 Ark. L. Rev. 124.

Conflict of Laws: Arkansas, 32 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Civil Procedure, 1 U. Ark. Little Rock L.J. 131.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Survey of Arkansas Law: Family Law, 6 U. Ark. Little Rock L.J. 159.

Case Notes

In General.

When an issue of jurisdiction arises under a broad long-arm statute such as this section, the plaintiff must first establish the validity of his substantive cause of action; the complaint must allege facts bringing the case within the long-arm statute and must state a prima facie cause of action and conclusory allegations do not suffice. Howard v. County Court, 278 Ark. 117, 644 S.W.2d 256 (1983).

In a divorce action, where service on the husband was attempted by sending the complaint and summons by certified mail to the husband's last known address, but the summons was returned unclaimed, the trial court erred in allowing service by warning order, without the filing of an affidavit that a diligent inquiry had been made into the husband's whereabouts as required by Ark. R. Civ. P. 4(f), and the divorce decree that had been entered was void. Jackson v. Jackson, 81 Ark. App. 249, 100 S.W.3d 92 (2003).

Applicability.

This section is not limited to tort actions. Mallory v. Edmondson, 257 Ark. 909, 521 S.W.2d 215 (1975).

The acquisition of personal jurisdiction under the “long-arm statute” is not restricted to tort actions but applies to all causes of action arising out of acts done within this state, including divorce, alimony, support, and property division. Knox v. Knox, 25 Ark. App. 107, 753 S.W.2d 290 (1988).

Personal jurisdiction over an out-of-state trucking company was not dependent on § 16-4-101 where, at trial, the proof was not in dispute as to the situs of the collision; thus, Arkansas acquired personal jurisdiction over the defendant under this section because the plaintiff's cause of action arose directly from an act committed in this state by the agent of the defendant. Watkins Motor Lines v. Hedrick, 316 Ark. 683, 873 S.W.2d 814 (1994).

The plain language of this section requires that the person upon whom service is sought must be one who has subsequently absented himself physically from this state. Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994).

As appellant failed to personally serve appellee and thus did not attach a return receipt to the writ of process and file it in the clerk's office, it could not avail itself of the long-arm statute. Pulaski Choice, L.L.C. v. 2735 Villa Creek, L.P., 2010 Ark. App. 451, 376 S.W.3d 500 (2010).

Appellant could not avail itself of the long-arm statute as this section did not apply to in rem proceedings like appellant's quiet title action. Pulaski Choice, L.L.C. v. 2735 Villa Creek, L.P., 2010 Ark. App. 451, 376 S.W.3d 500 (2010).

Evidence.

Evidence insufficient for court to obtain jurisdiction. Hinson v. Culberson-Stowers Chevrolet, Inc., 244 Ark. 853, 427 S.W.2d 539 (1968); Janni v. Janni, 271 Ark. 953, 611 S.W.2d 785 (1981); Howard v. County Court, 278 Ark. 117, 644 S.W.2d 256 (1983).

Evidence sufficient for court to obtain jurisdiction. Mallory v. Edmondson, 257 Ark. 909, 521 S.W.2d 215 (1975); Bunker v. Bunker, 261 Ark. 851, 552 S.W.2d 641 (1977).

Reasonableness.

Whether the exercise of jurisdiction on the basis of acts done within this state is reasonable depends on the “basic fairness” test of due process and on consideration of other factors. Knox v. Knox, 25 Ark. App. 107, 753 S.W.2d 290 (1988).

Whether the exercise of jurisdiction on the basis of acts done in this state is reasonable depends upon the facts of each individual case, with the principle factors to be considered being the nature and quality of the acts, the extent of the relationship of the defendant to this state, and the degree of inconvenience which would result to the defendant by being forced to stand suit in this state. Jessie v. Jessie, 53 Ark. App. 188, 920 S.W.2d 874 (1996).

Service of Process.

In a case based on § 4-60-103, which permits recovery on checks written on accounts with insufficient funds, appellant's service through the Secretary of State did not effect proper service on an LLC, whose certificate of authority in Arkansas had been revoked, despite appellant's contention that service was properly effected based on this section; the complaint did not allege that any acts were done in Arkansas, appellant was not in Arkansas, and appellant did not send process to appellee's last known address. Eliasnik v. Y&S Pine Bluff, LLC, 2018 Ark. App. 138, 546 S.W.3d 497 (2018).

Cited: White v. Ray, 267 Ark. 83, 589 S.W.2d 28 (1979); Franklin v. Griffith, 282 Ark. 271, 668 S.W.2d 518 (1984); Young v. Mt. Hawley Ins. Co., 864 F.2d 81 (8th Cir. 1988); Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).

16-58-121. Method of service — Nonresident or absent owner, chauffeur, driver, or operator — Survival of action.

    1. The acceptance by a nonresident owner, chauffeur, driver, or operator, or by a resident owner, chauffeur, driver, or operator of any motor vehicle who subsequently absents himself or herself physically from the state, except such nonresident owners or operators, drivers, or chauffeurs as may have a designated agent within this state upon whom valid and binding service of process may be had under the laws of this state, of the rights and privileges conferred by the laws of the State of Arkansas to drive or operate or permit or cause to be operated or driven a motor vehicle upon the public highway, private property, and property owned or controlled by the United States Government within this state as evidenced by his or her or its operating or causing or permitting a motor vehicle to be operated or driven thereon or the operation by a nonresident owner, nonresident operator or chauffeur, or resident owner, operator, or chauffeur subsequently absenting himself or herself from the state, or the causing or permitting by the nonresident owner, nonresident operator or chauffeur or resident owner, resident operator, or chauffeur subsequently absenting himself or herself physically from the state, of a motor vehicle to be operated on the highway, private property, and property owned or controlled by the United States Government within the State of Arkansas shall be deemed equivalent to the appointment by the nonresident owner, nonresident operator, or chauffeur, or by the resident owner, resident operator, or chauffeur subsequently absenting himself or herself from the state, whether the nonresident owner, nonresident operator, or chauffeur or resident owner, resident operator, or chauffeur subsequently absenting himself or herself from the state, is an individual, firm, or corporation, of the Secretary of the State of Arkansas or his or her successor in office to be the true and lawful attorney and agent of the nonresident owner, or nonresident operator, or chauffeur or resident owner, resident operator, or chauffeur subsequently absenting himself or herself from the state upon whom may be served all lawful process in any action or proceedings against him or her against any such person, firm, or corporation, or in the case of death of any such person, against any administrator, executor, or other legal representative of his estate, growing out of any accident or collision in which the nonresident owner, nonresident operator, or chauffeur or resident owner, resident operator, or chauffeur subsequently absenting himself or herself from the state, or any agent, servant, or employee of any such nonresident owner, nonresident operator, or chauffeur or resident owner, resident operator, or chauffeur subsequently absenting himself or herself from the state, may be involved while operating a motor vehicle on a highway, private property, or property owned or controlled by the United States Government within this state, whether the nonresident operator or chauffeur or resident operator or chauffeur subsequently absenting himself or herself from the state is the owner of the motor vehicle or not.
    2. Such acceptance or operation shall be a signification of the agreement of any such person, firm, or corporation, that any such process against any such person, firm, or corporation, or against the administrator, executor, or other legal representative of the estate of such person who may not have survived in such accident or collision, which is so served shall be of the same legal force and validity as if served on such person, firm, or corporation personally.
    1. Service of the process shall be made by serving a copy of the process on the Secretary of State, notifying the Secretary of State that service is being effected pursuant to this subsection, and paying the Secretary of State the sum of twenty-five dollars ($25.00). Such service shall be sufficient service upon the nonresident owner, nonresident operator, or chauffeur or upon the resident owner, resident operator, or chauffeur who has subsequently absented himself or herself physically from the state, or upon the executor, administrator, or other legal representative of his or her estate in case he or she has not survived such accident or collision or has since died, if notice of the service and a copy of the process are forthwith sent by registered mail by the plaintiff or his or her attorney to the defendant at his or her last known address or to the administrator, executor, or other legal representative of the estate in the case he or she has not survived the accident or collision or has since died, and notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff or his or her attorney to the defendant at his or her last known address, or to the administrator, executor, or other legal representative of the estate of the deceased wrongdoer or tortfeasor, and the defendant's return receipt, or the return receipt of the administrator, executor, or other legal representative of the estate of the deceased person, or the affidavit of the plaintiff or his or her attorney of compliance herewith are to be appended to the writ of process and entered and filed in the office of the clerk of the court wherein the cause is brought. The Secretary of State, upon receiving a copy of the service of summons shall also forthwith mail a copy of the summons together with a copy of the complaint by first class mail to the last and best known address of the named defendant in the suit, notifying him or her of the filing of the suit.
    2. The court in which the action is pending may order any continuance as may be necessary to afford the defendant reasonable opportunity to defend the action.
    1. Any cause of action arising out of the accident or collision against any person, in the case of the death of that person, shall survive against his or her administrator, executor, or other legal representative of his or her estate.
    2. Service of summons when obtained upon any such nonresident owner, nonresident operator, or chauffeur; or resident owner, resident operator or chauffeur subsequently absenting himself or herself physically from the state; or his or her executor, administrator, or other legal representative of his or her estate, as provided in this section for the service of process, shall be deemed sufficient service of summons and process to give to any of the courts of this state jurisdiction over the cause of action and over such nonresident owner, nonresident operator, or chauffeur, or resident owner, resident operator, or chauffeur subsequently absenting himself or herself from the state, or the defendant, and shall warrant and authorize personal judgment against such nonresident owner, nonresident operator or chauffeur; resident owner, resident operator, or chauffeur subsequently absenting himself or herself from the state; executor, administrator, or other legal representative of his or her estate; or the defendant in the event that the plaintiff prevails in the action.

History. Acts 1955, No. 38, §§ 1-3; 1959, No. 307, § 23; 1960 (Ex. Sess.), No. 11, § 1; 1963, No. 520, § 1; A.S.A. 1947, §§ 27-342.1 — 27-342.3; Acts 1997, No. 1213, § 2.

Publisher's Notes. As to penalty for violation of Acts 1959, No. 307, see § 27-50-305.

Research References

ALR.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

Ark. L. Rev.

Meaning of Term “Public Highway” in Nonresident Motorist Service Act, 7 Ark. L. Rev. 323.

Substituted Service on Resident Owners or Operators of Motor Vehicles, 9 Ark. L. Rev. 390.

Arkansas Nonresident Motorist Service Statute — Actual Notice Necessary, 13 Ark. L. Rev. 381.

Conflict of Laws — Arkansas 1959-64, 18 Ark. L. Rev. 135.

The Uniform Long-Arm Act in Arkansas: The Far Side of Jurisdiction, 22 Ark. L. Rev. 627.

Conflict of Laws — Personal Jurisdiction and the Long-Arm Statute, 24 Ark. L. Rev. 106.

Civil Procedure — Arkansas' Non-Resident Motorist Statute — What Is Sufficient Compliance?, 26 Ark. L. Rev. 63.

Conflict of Laws: Arkansas, 1969-72, 27 Ark. L. Rev. 1.

Case Notes

Constitutionality.

Former similar section held not unconstitutional upon contention it denies nonresident owners of motor vehicles equal protection of the law and due process. Highway Steel & Mfg. Co. v. Kincannon, 198 Ark. 134, 127 S.W.2d 816, appeal dismissed, 308 U.S. 504, 60 S. Ct. 88, 84 L. Ed. 431 (1939); Alexander v. Bush, 199 Ark. 562, 134 S.W.2d 519 (1939)Questioned byForsgren v. Gillioz, 110 F. Supp. 647 (D. Ark. 1953) (preceding decisions under prior law).

Actual Notice.

Former similar section required actual notice of the pendency of the action before jurisdiction of the defendant was acquired. Alexander v. Bush, 199 Ark. 562, 134 S.W.2d 519 (1939)Questioned byForsgren v. Gillioz, 110 F. Supp. 647 (D. Ark. 1953) (decision under prior law).

Service under this section is complete, for purposes of determining prior jurisdiction as between state trial courts, at least when notice is actually received by the defendant or defendants, if not in fact complete prior to that time. Simmons v. Broomfield, 163 F. Supp. 268 (W.D. Ark. 1958).

Default judgment invalid where this section not properly complied with. Jenkins v. Hill, 240 Ark. 197, 398 S.W.2d 679 (1966); Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971).

Attorney/Client Relationship.

Where service was attempted on nonresident defendant under similar former section but copy of summons was sent to attorney who allegedly represented defendant, question of whether an attorney and client relationship existed between defendant and the attorney was a question of fact for the trial judge. Harris v. Starr, 226 Ark. 127, 288 S.W.2d 332 (1956) (decision under prior law).

Guardian Ad Litem.

This section is by its terms a personal service statute, therefore appellant's claim that judgment by default was improperly rendered on constructive service because no attorney ad litem was appointed to represent him, and that he had right to have action retried within two years after judgment had no merit. Agee v. Wildman, 240 Ark. 111, 398 S.W.2d 542 (1966).

Invalid Service.

Where the plaintiff did not demonstrate that sufficient inquiry was made in attempting to ascertain defendant's last known address and thereby deprived defendant of reasonably probable actual notice consistent with due process, the substitute service statute was not sufficiently complied with and default judgment was void. Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971).

Service found to be invalid but the summons itself was not void and an order of dismissal based on this ground was error since it would prevent the service of a properly issued summons by a duly authorized person. Merriott v. Whitsell, 251 Ark. 1031, 476 S.W.2d 230 (1972).

Constructive service obtained on motorist under this section was not valid, where there was no allegation that motorist was from outside the state or had absented himself from the state. Morphew v. Safeco Ins. Co., 256 Ark. 809, 510 S.W.2d 543 (1974).

Ownership.

Service on defendant was proper under this section where she signed a statement before the accident, referring to the pickup truck which she turned over to stepson motorist as “my Ford Truck,” when she conceded in her brief on appeal that an inference could be made that title was in her name at the time of the accident, and where the certificate of title reflected that 12 days after the accident she transferred title from her deceased husband's estate to herself. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).

Perfection of Service.

Where nonresident defendant filed a motion to quash summons for the reason that plaintiff did not mail copy of summons and complaint by registered mail, and plaintiff subsequently complied with the statute by mailing the copies by registered mail to the defendant, the motion to quash would be overruled, as service had been perfected. Fritchey v. Summar, 86 F. Supp. 391 (W.D. Ark. 1949) (decision under prior law).

Trial court had personal jurisdiction over defendant where service was perfected on the Secretary of State pursuant to this section, notwithstanding the fact that the record did not contain a return of service as proof that service was accomplished, since perfection of service was never contested by defendant. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).

Second Suit.

Where plaintiff failed to allege defendant was a nonresident and thereafter filed a second suit in which he alleged defendant was a nonresident and defendant filed a motion in the second suit to quash the return of summons, motion was properly overruled, as second suit superseded first as both suits were the same except for allegation that defendant was a nonresident. Webb v. Pope County Circuit Court, 214 Ark. 890, 218 S.W.2d 722 (1949) (decision under prior law).

Standing.

Defendant in action by minor who was injured by motorist who was allegedly encouraged to speed by defendant did not have standing to raise issue of whether the absentee motorist had been properly served under this section. Cobb v. Indian Springs, Inc., 258 Ark. 9, 522 S.W.2d 383 (1975).

Sufficient Compliance.

Service on nonresident operator pursuant to this section is valid, hence part of summons referring to prior statute, which only authorized service against nonresident owner, will be treated as surplus. Hamlin v. Darr, 220 Ark. 841, 250 S.W.2d 532 (1952).

Service against nonresident motorist may be obtained under this section in proceeding by tortfeasor against whom judgment was obtained to obtain contribution from other joint tortfeasors. Burnett v. Agent, 227 Ark. 1050, 303 S.W.2d 575 (1957).

Survival of Action.

Statutory agency of Secretary of State for service of process was held not to expire upon the death of a nonresident motorist. Oviatt v. Garretson, 205 Ark. 792, 171 S.W.2d 287 (1943) (decision under prior law).

Cited: Simmons v. Broomfield, 163 F. Supp. 268 (W.D. Ark. 1958); Aufderhar v. American Employers Ins. Co., 331 F.2d 681 (8th Cir. 1964); Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972); Merriott v. Whitsell, 251 Ark. 1031, 476 S.W.2d 230 (1972); Stubbs v. United States, 593 F. Supp. 521 (E.D. Ark. 1984); Franklin v. Griffith, 282 Ark. 271, 668 S.W.2d 518 (1984).

16-58-122. Method of service — Owner or operator of motor buses or trucks.

  1. When the defendant is the owner or operator of any motor bus or buses, motor coach or coaches, or motor truck or trucks engaged in the business of carrying and transporting either passengers, freight, goods, wares, or merchandise over any of the highways of this state, the service of summons may be had upon an owner or operator by serving the summons upon:
    1. Any clerk or agent of the owner or operator selling tickets or transacting any business for the owner or operator; or
    2. Any driver or chauffeur of any bus, coach, or truck being operated or driven by the driver or chauffeur as a servant, agent, or employee of the owner or operator.
  2. Service had upon the agent or agents of an owner or operator or had upon a chauffeur or driver of any bus, coach, or truck being operated or driven by the driver or chauffeur as a servant, agent, or employee of the owner or operator shall be deemed and considered as good and valid service upon the owner or operator whether the owner or operator is a person, firm, or corporation.
  3. Nothing contained in this section shall be so construed as to repeal any provision of the law of this state as to venue or service of summons in effect on February 26, 1935, except where the law may be in direct conflict with the provisions of this section. It is the intention of this section to provide further and additional methods of obtaining service of summons as against the owners and operators of motor buses, coaches, and trucks, as set out in this section.

History. Acts 1935, No. 70, §§ 1, 2; Pope's Dig., §§ 1377, 1378; A.S.A. 1947, §§ 27-343, 27-344.

Research References

ALR.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

Case Notes

Constitutionality.

This section affords due process and is not discriminatory. Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W.2d 919 (1936).

In General.

This section is a service statute only and it did not impair or take away any of the means of service already existing by law. Missouri Pac. Transp. Co. v. Pipkin, 199 Ark. 339, 133 S.W.2d 851 (1939).

Purpose.

This section was intended to afford service rights only in those cases where adequate provisions for service had not been made by previous statutes. Dixie Motor Coach Corp. v. Toler, 197 Ark. 1097, 126 S.W.2d 618 (1939).

Applicability.

This section is not applicable to service to recover damages sustained by drinking beverage containing foreign substance, where beverage company had no agent or place of business in the county; it applies only to acts for damages to persons or their property occasioned by the negligent operation of motor buses, coaches or trucks. Coca-Cola Bottling Co. v. Bacon, 193 Ark. 6, 97 S.W.2d 74 (1936); Coca-Cola Bottling Co. v. O'Neal, 193 Ark. 1143, 104 S.W.2d 808 (1937).

This statute was held to apply to action for injuries to passenger forcibly ejected from bus by its driver. Dixie Motor Coach Corp. v. Toler, 197 Ark. 1097, 126 S.W.2d 618 (1939).

This section was passed for the purpose of obtaining service on a tortfeasor where service could not have otherwise been obtained in this state on him, and, where other service is available this section has no application. Lindley v. Kincannon, 200 Ark. 772, 140 S.W.2d 1005 (1940).

This section applies to all operators of trucks and buses whether operating on fixed lines or not. Viking Freight Co. v. Keck, 202 Ark. 656, 153 S.W.2d 163 (1941).

Agent.

This section was held to authorize service of process upon driver of truck belonging to foreign corporation and used to deliver goods to corporation's customers in county where accident occurred. Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W.2d 919 (1936).

Service of process on the terminal manager of another bus company with whom the defendant bus company contracted for use of its terminal facilities and to sell tickets for it was invalid where the defendant bus company had a superintendent residing in the state and who was registered with the Arkansas Commerce Commission as its resident agent for service of process. Bullard v. Crown Coach Co., 248 Ark. 739, 453 S.W.2d 712 (1970).

Compliance with Statute.

Service of summons was unauthorized as compliance with section insufficient. Dixie Motor Coach Corp. v. Toler, 197 Ark. 1097, 126 S.W.2d 618 (1939); Bryant Truck Lines v. Nance, 199 Ark. 556, 134 S.W.2d 555 (1939).

In a suit based on alleged negligent operation of defendant's bus, service on agent who sold tickets and maintained a bus station for defendant was sufficient without resort to any of the provisions of this section. Missouri Pac. Transp. Co. v. Pipkin, 199 Ark. 339, 133 S.W.2d 851 (1939).

Question of Fact.

Prohibition did not lie to prevent trial of suit against taxicab company upon service on taxi driver under the provisions of this section since whether a taxicab is such a conveyance as is referred to in this act may depend upon a question of fact, to be determined, in the first instance, by the trial court. Safeway Cab & Storage Co. v. Kincannon, 192 Ark. 1019, 96 S.W.2d 7 (1936), overruled in part, Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937).

16-58-123. Method of service — Owner or officer of steamboat or watercraft.

When any action to recover judgment against the owners or officers of any steamboat, vessel, or other watercraft for any debt or liability created by them, or either of them, is commenced in any county in which the steamboat, vessel, or watercraft was found and, from any cause the summons or other process cannot be served in the action in the county where that action was commenced, a service in any other county in this state has the same effect as if made in the county where the action was brought.

History. Civil Code, § 76; C. & M. Dig., § 1156; Pope's Dig., § 1373; A.S.A. 1947, § 27-345.

Research References

ALR.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

Case Notes

Judgment.

A judgment against the owner of a steamboat upon service of process had in another county is void unless the record shows that the steamboat was found in the county in which the action was commenced. Ford v. Adams, 54 Ark. 137, 15 S.W. 186 (1891).

Cited: Ribelin v. Wilks, 135 Ark. 599, 205 S.W. 977 (1918).

16-58-124. Method of service — Corporations.

  1. When the defendant is a corporation created by the laws of this state, the service of the summons may be upon the president, mayor, or chairman of the board of trustees. In case of the absence of the above officers, then it may be served upon the cashier, treasurer, secretary, clerk, or agent of the corporation. In case of railroad corporations, it may be served upon any station agent or upon any person who has control of any of the business of that corporation, either as clerk, agent, or otherwise, who as agent or clerk has to report to the corporation who employs him or her. In cases of railroad corporations, a service of a copy of the summons upon the clerk or agent of any station in the county where the summons is issued shall be deemed and considered as a good and valid service.
  2. In the case of a foreign railroad corporation which files its articles of incorporation with the Secretary of State, process shall be served on the agent or agents of the corporation, or upon the agent or agents of the receiver or receivers of the corporation, in the same manner that process is authorized by law to be served on railroad corporations existing under laws of this state. Service upon the agent or agents of any receiver or receivers of any such foreign railroad corporation shall be deemed and considered as good and valid service upon the corporation and upon the receivers thereof.

History. Civil Code, § 69; Acts 1877, No. 56, § 1, p. 59; 1901, No. 106, § 1, p. 171; C. & M. Dig., § 1147; Pope's Dig., § 1363; A.S.A. 1947, § 27-346.

Research References

ALR.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

Ark. L. Notes.

Gitelman and Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, 1991 Ark. L. Notes 27.

Laurence, Recent Developments in the Arkansas Law of Garnishment: A Compendium of the Pertinent Cases and Statutes, 1992 Ark. L. Notes 39.

Laurence, Recent Developments in the Arkansas Law of Garnishemnt: Does a Corporate Garnishee Need a Lawyer to Answer the Writ?, 1997 Ark. L. Notes 95.

Case Notes

Constitutionality.

A statute prescribing a mode of service of process on a railroad which is different from that provided for in its charter is not void as impairing the obligations of a contract. Railroad Co. v. Hecht, 95 U.S. 168, 24 L. Ed. 423 (1877).

Administrative Orders.

Service of an order of an administrative agency can be by mail; there is no requirement that such service comply with the law regarding service of summons. Ark. Contractors Licensing Bd. v. F & F Concrete Prods., Inc., 297 Ark. 508, 763 S.W.2d 86 (1989).

Proper County.

A domestic corporation must be sued in the county where it has its principal place of business or where its chief officer resides and it can be sued in another county only when it has a branch office therein. Beal-Doyle Dry Goods Co. v. Odd Fellows Bldg. Co., 109 Ark. 77, 158 S.W. 955 (1913), overruled, Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937).

Service of process in a transitory action against a domestic corporation issuing from a court of the county where the corporation has a branch office and served on the manager of the principal office in another county where the corporation had its principal place of business should have been quashed. Duncan Lumber Co. v. Blalock, 171 Ark. 397, 284 S.W. 15 (1926), overruled, Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937); Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937).

Summons served on domestic corporation in county in which it had no office and wherein its chief officer did not reside is invalid. Chevrolet Motor Co. v. Landers Chevrolet Co., 183 Ark. 669, 37 S.W.2d 873 (1931).

Proper Persons.

—Corporations Generally.

Service of summons on subordinate officer of a fraternal insurance order is invalid where the chief officer of the order is within the county at the time. Knights of Honor v. Epps, 123 Ark. 371, 185 S.W. 470 (1916).

Employee of drug store who was paid by power company to accept payment and receipt the bills of patrons of the power company in that locality was a proper person to receive service of process for the power company. Arkansas Power & Light Co. v. Hoover, 182 Ark. 1065, 34 S.W.2d 464 (1931)Limited byInternational Paper Co. v. Aud, 210 Ark. 425, 196 S.W.2d 578 (1946).

Service on grand master of incorporated lodge was void as he was not one of officers named in the section. Brick v. Sovereign Grand Lodge, 196 Ark. 372, 117 S.W.2d 1060 (1938).

Service of writ of process in garnishment proceedings was properly held invalid where return showed delivery of a copy to a vice-president who was not in control of the corporation's business and evidence failed to show that the president was unavailable. Nutrena Mills, Inc. v. Parsons Feed & Farm Supply, Inc., 234 Ark. 1058, 356 S.W.2d 421 (1962).

Where a writ of garnishment was issued on a bank and the sheriff contended that he served it on a vice-president of the bank but no notation was made on the return that the bank president was not available, the service was invalid. First Nat'l Bank v. H & M Lumber Co., 252 Ark. 175, 477 S.W.2d 850 (1972).

Where a deputy sheriff served a writ of garnishment on a corporation's office manager, who was neither a corporate officer nor the designated agent for process, despite the fact that the corporation's president was in the city on the service day, there was a clear failure to comply with the statutory service requirements of this section; accordingly, a default judgment against the corporation was properly set aside pursuant to ARCP Rule 55(c) and Rule 60 for lack of personal jurisdiction. Pounders v. Chicken Country, Inc., 3 Ark. App. 220, 624 S.W.2d 445 (1981).

Where absence of corporation's president was never shown, service of writ of garnishment on bookkeeper and secretary of corporation would not be proper under this section; under same circumstances, however, service on secretary of the corporation and the bookkeeper, who testified that she was “more or less in charge of the office” at the time of service, would be proper under ARCP 4(d)(5). Since these provisions conflict and this section does not fit into the exception described in ARCP 81(a), ARCP 4(d)(5) supersedes this section. May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990).

—Railroad Corporations.

Under § 16-55-116(d) and this section, a station agent is the proper person on whom to serve notices on railroads. St. Louis & S.F.R.R. v. Hale, 82 Ark. 175, 100 S.W. 1148 (1907).

A judgment at law against a railroad company against which there was a good defense will not be enjoined in equity if the default judgment was the result of inattention on the part of the station agent of the railroad company upon whom process was served. Cazort & McGehee Co. v. St. Louis & S.F.R.R., 100 Ark. 395, 140 S.W. 277 (1911).

Service of summons on the conductor of a train passing through the county is not sufficient. St. Louis-San Francisco Ry. v. Solomon & Weinberg, 161 Ark. 552, 256 S.W. 862 (1923).

A telegraph operator was agent of a defendant railroad although he was in the employment of another railroad which paid his salary and regularly received and delivered dispatches regarding movements of the defendant's trains and sold tickets for passage thereon. St. Louis S.W. Ry. v. Steele, 190 Ark. 662, 80 S.W.2d 623 (1935).

Return.

Return of process served upon an agent of a domestic corporation which does not recite that the president or other chief officer is absent from the county is insufficient. Arkansas Coal, Gas, Fire-Clay & Mfg. Co. v. Haley, 62 Ark. 144, 34 S.W. 545 (1896); Arkansas Constr. Co. v. Mullins, 69 Ark. 429, 64 S.W. 225 (1901).

An officer's return to a writ of garnishment stating that he delivered a copy thereof to the within named company by delivering to its manager a true and perfect copy is insufficient in failing to show whether the company was a domestic or foreign corporation or a partnership. Moreno-Burkham Constr. Co. v. Thorpe, 152 Ark. 550, 237 S.W. 427 (1922).

In an action against a bridge company, where the allegations fail to show whether it is a corporation or a partnership, a return of summons as duly served by handing a copy of it to the bridge company to a named agent in charge of its business in a certain city, was insufficient. Austin Bridge Co. v. Vaughan, 178 Ark. 995, 13 S.W.2d 13 (1929).

Return of process may be amended where the proper person was served although his position was misstated. O'Guinn Volkswagen, Inc. v. Lawson, 256 Ark. 23, 505 S.W.2d 213 (1974)Questioned byBailey v. Matthews, 279 Ark. 117, 649 S.W.2d 175 (1983).

16-58-125. Method of service — Corporate agent at branch office.

    1. Any and all foreign and domestic corporations which keep or maintain in any of the counties of this state a branch office or other place of business shall be subject to suits in any of the courts in any of the counties where the corporation keeps or maintains the office or place of business.
    2. Service of summons or other process of law from any of the courts held in the counties upon the agent, servant, or employee in charge of the office or place of business shall be deemed good and sufficient service upon the corporation and shall be sufficient to give jurisdiction to any of the courts of this state held in the counties where the service of summons or other process of law is had upon the agent, servant, or employee of the corporation.
  1. This section shall not be taken and held by the courts of this state as repealing any of the laws of this state in force on April 1, 1909, and governing and regulating the service of process or summons upon corporations of this state, but shall be by the courts of this state construed and held as cumulative and in aid of the laws of this state in force on April 1, 1909.

History. Acts 1909, No. 98, §§ 1, 2, p. 293; C. & M. Dig., § 1152; Pope's Dig., § 1369; A.S.A. 1947, §§ 27-347, 27-348.

Research References

ALR.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

Ark. L. Notes.

Gitelman and Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, 1991 Ark. L. Notes 27.

Laurence, Recent Developments in the Arkansas Law of Garnishment: A Compendium of the Pertinent Cases and Statutes, 1992 Ark. L. Notes 39.

Laurence, Recent Developments in the Arkansas Law of Garnishemnt: Does a Corporate Garnishee Need a Lawyer to Answer the Writ?, 1997 Ark. L. Notes 95.

Case Notes

Construction.

This section is construed to mean that such corporations as mentioned shall be subject to suits in any of the courts of any of the counties, if it keeps or maintains a place where a well-defined line of business is carried on with an agent in charge of that business. Harrison v. Swift & Co., 200 Ark. 285, 139 S.W.2d 4 (1940).

This section does not repeal any statute relating to service of process but nothing is said to limit its effect upon venue since providing venue in additional counties is certainly cumulative in effect and the section cannot be read to be cumulative only to statutes governing method of service. American Sav. & Loan Ass'n v. Enfield, 261 Ark. 796, 551 S.W.2d 552 (1977).

Applicability.

Defendants contending that this statute, rather than § 16-60-108, is the applicable statute could not prevent a trial for want of jurisdiction where the jurisdiction depended on questions of fact. Millsap v. Williams, 236 Ark. 416, 366 S.W.2d 705 (1963).

Corporations.

Because the buyer failed to produce any facts to support its venue argument, and because this section and § 16-58-116 supported venue for the action in Cleburne County, the trial court correctly denied the buyer's motion to dismiss on the basis of venue. Ison Props., LLC v. Wood, 85 Ark. App. 443, 156 S.W.3d 742 (2004).

Insufficiency Not Apparent.

Where alleged lack of service on foreign corporation is not apparent upon the face of the records but arose upon presentation of evidence of certain factual conditions and legal effect of the facts, writ of prohibition to prevent trial was denied. Simms Oil Co. v. Jones, 192 Ark. 189, 91 S.W.2d 258 (1936).

Office and Business.

The words “branch office” and “other place of business” are not synonymous; branch office designates a place where business is transacted similar to that where the principal office is situated. Fort Smith Lumber Co. v. Shackleford, 115 Ark. 272, 171 S.W. 99 (1914).

A foreign corporation need not own or rent the building in which it conducts its business to authorized service on the agent in charge. Ramey v. Baker, 182 Ark. 1043, 34 S.W.2d 461 (1931).

Service on domestic corporation in county in which it had no branch office or other place of business was invalid. Chevrolet Motor Co. v. Landers Chevrolet Co., 183 Ark. 669, 37 S.W.2d 873 (1931).

—Branch Office.

In an action against a foreign corporation, service of summons in a county where the company maintains a branch office is sufficient. Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S.W.2d 255 (1931).

Contract action could only be brought where corporation maintained branch. Mayner v. Utah Constr. Co., 108 F. Supp. 532 (W.D. Ark. 1952).

—Place of Business.

Establishment of place of business found. Arkansas Power & Light Co. v. Hoover, 182 Ark. 1065, 34 S.W.2d 464 (1931)Limited byInternational Paper Co. v. Aud, 210 Ark. 425, 196 S.W.2d 578 (1946); Cook v. Malvern Brick & Tile Co., 194 Ark. 759, 109 S.W.2d 451 (1937); Public Loan Corp. v. Stanberry, 224 Ark. 258, 272 S.W.2d 694 (1954); Brandon v. Memphis Publishing Co., 194 F. Supp. 376 (E.D. Ark. 1961).

In action for injuries by passenger forcibly ejected from defendant's bus, filing of action in county other than the one where defendant maintained a place of business and service of summons on bus driver was unauthorized. Dixie Motor Coach Corp. v. Toler, 197 Ark. 1097, 126 S.W.2d 618 (1939).

Plaintiff did not secure jurisdiction of defendant corporation by service of process on the corporation in county where defendant had principal place of business, where suit was filed in county wherein defendant had no officers or place of business at all. Concrete, Inc. v. Arkhola Sand & Gravel Co., 228 Ark. 1016, 311 S.W.2d 770 (1958).

Other Laws.

This section was not affected by § 16-58-122(a) and (b). Dixie Motor Coach Corp. v. Toler, 197 Ark. 1097, 126 S.W.2d 618 (1939); Missouri Pac. Transp. Co. v. Pipkin, 199 Ark. 339, 133 S.W.2d 851 (1939).

Rule 4 A.R.C.P. did not supersede this section. Sun Gas Liquids Co. v. Helena Nat'l Bank, 276 Ark. 173, 633 S.W.2d 38 (1982)Criticized byVenable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985).

Proper County.

Where transitory action against domestic corporation was brought in county in which it maintained a branch, service should have been upon the agent in that county, and not on the general manager of the corporation in the county in which the corporation maintained its principal office. Duncan Lumber Co. v. Blalock, 171 Ark. 397, 284 S.W. 15 (1926), overruled, Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937).

Service on agent in charge of branch office may be at any place he may be found in the county. Black Springs Lumber Co. v. Palmer, 192 Ark. 1032, 96 S.W.2d 469 (1936).

Where action against foreign corporation was brought in one county under this section, service of process on designated agent for service in another county was invalid. Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937).

Proper Persons.

Person found to be agent upon whom process could be properly served. Terry Dairy Co. v. Parker, 144 Ark. 401, 223 S.W. 6 (1920); Riggs v. Clay County Burial Ass'n, 192 Ark. 994, 96 S.W.2d 4 (1936); Missouri Pac. Transp. Co. v. Pipkin, 199 Ark. 339, 133 S.W.2d 851 (1939); Public Loan Corp. v. Stanberry, 224 Ark. 258, 272 S.W.2d 694 (1954); Arkansas Indep. Oil Marketers Ass'n v. Monsanto Chem. Co., 225 Ark. 620, 284 S.W.2d 127 (1955); Interstate Fire Ins. Co. v. Tolbert, 233 Ark. 249, 343 S.W.2d 784 (1961).

Person found not to be agent of the corporation upon whom process could be properly served within this statute where shipments were made f.o.b. and products handled became the property of the distributor. Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937); International Paper Co. v. Aud, 210 Ark. 425, 196 S.W.2d 578 (1946).

The requirement that service be made upon the person in charge of the corporate office or business is mandatory. Morgan v. National Pizza Co., 285 Ark. 61, 684 S.W.2d 812 (1985).

An order setting aside the judgment against a garnishee was appealable to the Supreme Court only because the appeal involved the interpretation or construction of this section which establishes the requirements for services of process upon a corporate agent at a branch office. Morgan v. National Pizza Co., 285 Ark. 61, 684 S.W.2d 812 (1985).

Return.

Sheriff's return showing service on defendant's agent without allegation that defendant maintained an office or other place of business in the county and not showing that summons was served upon an agent in charge of an office or other place of business, was insufficient to show valid service in action. Sloan v. Peoples Loan & Inv. Co., 195 Ark. 1085, 115 S.W.2d 833 (1938).

Venue.

This section governs venue and clearly states that venue in an action against a domestic corporation can be laid in any county where the corporation maintains a branch office and that service of summons from any court held in the county upon the person in charge of the office is sufficient to give the court jurisdiction. American Sav. & Loan Ass'n v. Enfield, 261 Ark. 796, 551 S.W.2d 552 (1977).

Cited: Fort Smith Lumber Co. v. Shackleford, 115 Ark. 272, 171 S.W. 99 (1914); Arkansas Valley Indus., Inc. v. Roberts, 244 Ark. 432, 425 S.W.2d 298 (1968); Cavette v. Ford Motor Credit Co., 260 Ark. 874, 545 S.W.2d 612 (1977); Porter Foods, Inc. v. Brown, 281 Ark. 148, 661 S.W.2d 388 (1983); Zolper v. AT&T Info. Sys., 289 Ark. 27, 709 S.W.2d 74 (1986).

16-58-126. Method of service — Corporations — Secretary of State.

Whenever process in any suit against a domestic corporation cannot be served in the county of the corporation's domicile upon any officer authorized to be served with process by the laws of the state and this fact is made to appear by the return of the sheriff of the county upon summons directed to the officer, the process may be served on the Secretary of State. He or she shall immediately send the process served on him or her to the corporation at its place of domicile by mail. The service shall be as valid as if served on an officer of the corporation authorized to be served with process. The service shall date from the time of service upon the Secretary of State.

History. Acts 1915, No. 290, § 22; C. & M. Dig., § 1148; Pope's Dig., § 1364; A.S.A. 1947, § 27-349.

Research References

ALR.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

16-58-127. Method of service — Foreign corporations.

Where the defendant is a foreign corporation having an agent in this state, the service may be upon the agent.

History. Civil Code, § 72; C. & M. Dig., § 1151; Pope's Dig., § 1368; A.S.A. 1947, § 27-350.

Research References

ALR.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

Case Notes

Agent.

Process against a foreign corporation may be served upon an agent of the corporation residing within the county of the venue where the agent was in control of the business of the corporation in the county, although the corporation had designated an agent residing elsewhere in the state upon whom process might be served. Lesser Cotton Co. v. Yates, 69 Ark. 396, 63 S.W. 997 (1901).

Whether the actions of an agent of a foreign corporation are sufficient to constitute him an agent for service is a question for the trial court. Hot Springs Sch. Dist. v. Surface Combustion Corp., 222 Ark. 591, 261 S.W.2d 769 (1953).

Person found to be agent upon whom process could be properly served. Public Loan Corp. v. Stanberry, 224 Ark. 258, 272 S.W.2d 694 (1954); Brandon v. Memphis Publishing Co., 194 F. Supp. 376 (E.D. Ark. 1961); Interstate Fire Ins. Co. v. Tolbert, 233 Ark. 249, 343 S.W.2d 784 (1961); Bullard v. Crown Coach Co., 248 Ark. 739, 453 S.W.2d 712 (1970).

Where employee of foreign corporation is clothed with the power to hire and fire employees and pay their wages, to endorse checks made out to corporation that are received by him, and where the employee is supplied with living quarters and works no set hours but puts in as much time as he sees fit, the employee is an agent of foreign corporation upon whom service may be had under this section. Keith v. Cave Springs, 233 Ark. 363, 344 S.W.2d 591 (1961).

Debtor who had initiated an adversary proceeding to determine dischargeability of a student loan obligation was entitled to default and a default judgment because the debtor had complied with the service of process requirements of Fed. R. Bankr. P. 7004 and Ark. R. Civ. P. 4(d)(5) when the debtor served an amended summons and complaint on the creditor's designated agent. The debtor was not also required to service process on the creditor itself as well as the agent. Weston v. Ed Fin. Servs., LLC (In re Weston), 398 B.R. 325 (Bankr. E.D. Ark. 2008).

Constructive Service.

A foreign corporation having designated an agent upon whom process might be served in actions against it could be proceeded against only by personal service on its agent or some other agent in the state acting for it and not by constructive service. Sinclair Ref. Co. v. Bounds, 198 Ark. 149, 127 S.W.2d 629 (1939).

Federal Courts.

This section did not confer jurisdiction on federal court over foreign corporation in claim which grew out of interstate transaction asserted by another foreign corporation against it. McAvoy v. Texas E. Transmission Corp., 185 F. Supp. 784 (W.D. Ark. 1960).

Out-of-State Injury.

An action for personal injuries to a nonresident received in another state is maintainable in this state against a foreign railroad operating a line in this state if based on service on an authorized agent in this state. Yockey v. St. Louis-San Francisco Ry., 183 Ark. 601, 37 S.W.2d 694 (1931), overruled, Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992).

Cited: Zolper v. AT&T Info. Sys., 289 Ark. 27, 709 S.W.2d 74 (1986).

16-58-128. [Repealed.]

Publisher's Notes. This section, concerning the method of service on a bank, was repealed by Act 2005, No. 426, § 2. The section was derived from Civil Code, § 70; C. & M. Dig., § 1149; Acts 1931, No. 42, § 1; Pope's Dig., §§ 1365, 1366; A.S.A. 1947, §§ 27-351, 27-352.

16-58-129. Method of service — Insurance company.

Where the defendant is an incorporated insurance company and the action is in a county in which there is an agency of the company, the service may be upon the chief officer of the agency.

History. Civil Code, § 71; C. & M. Dig., § 1150; Pope's Dig., § 1367; A.S.A. 1947, § 27-353.

Research References

Ark. L. Notes.

Gitelman and Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, 1991 Ark. L. Notes 27.

Case Notes

Agent.

Service of summons on a foreign insurance company's general agent for service was held to give jurisdiction to the court in another county wherein the company had a local agent. Pacific Mut. Life Ins. Co. v. Henry, 188 Ark. 262, 65 S.W.2d 32 (1933); Mutual Benefit Health & Accident Ass'n v. Kincannon, 202 Ark. 1128, 155 S.W.2d 687 (1941).

16-58-130. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning constructive service warning orders, was repealed by Acts 2013, No. 1148, § 21[22]. The section was derived from Civil Code, §§ 79-83, 454; Acts 1871, No. 48, § 1 [80], p. 219; 1915, No. 290, §§ 4, 5; C. & M. Dig., §§ 1159-1163, 6269; Pope's Dig., §§ 1380-1384, 8225; A.S.A. 1947, §§ 27-354 — 27-359; Acts 1991, No. 199, § 1.

16-58-131. [Superseded]

Publisher's Notes. This section has been deemed superseded by the Arkansas Supreme Court in light of its January 28, 1999 amendment of ARCP 5. For the text of the amendment, please consult the February issue of the Arkansas Court Rules Newsletter (LEXIS Law Publishing, 1999) or the Court Rules Volume.

Section 16-58-131 was derived from Acts 1963, No. 67, §§ 1-5; 1975, No. 304, § 1; and A.S.A. 1947, §§ 27-360 — 27-364.

16-58-132. Refusal to accept process served by mail.

Where service of summons, process, or notice is provided for or permitted by registered or certified mail, under the laws of Arkansas, and the addressee refuses to accept delivery, and it is so stated in the return receipt of the United States Postal Service, the written return receipt, if returned and filed in the action, shall be deemed an actual and valid service of the summons, process, or notice.

History. Acts 1979, No. 446, § 1; A.S.A. 1947, § 27-365.

Case Notes

Savings Statute.

Circuit court erred in dismissing buyers' action with prejudice because they were entitled to the benefit of the savings statute, § 16-56-126, since they made a timely, completed attempt to serve sellers; the summonses and complaints were mailed to the sellers at their last known address, and when the envelopes containing the complaints and summonses were returned to the buyers' attorney, they were marked with a postal service stamp that contained several options for delivery and were marked “refused.” Jones v. Douglas, 2016 Ark. 166, 489 S.W.3d 648 (2016).

16-58-133. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas stated, in its per curiam of Dec. 21, 1987, that this section was superseded by ARCP 72.

16-58-134. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning time limit for service, was repealed by Acts 2013, No. 1148, § 22[23]. The section was derived from Acts 1989, No. 401, § 1.

Chapter 59 Lis Pendens

Effective Dates. Acts 1965 (2nd Ex. Sess), No. 5, § 2: Nov. 6, 1965. Emergency clause provided: “It has been found and is hereby declared by the General Assembly of the State of Arkansas that Arkansas' present Lis Pendens Statute does not expressly authorize the county recorder of deeds to accept, file, record and index a lis pendens notice of an action pending in a United States District Court within this State, as permitted by an Act of Congress, 28 U.S.C. Section 1964; 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 the date of its passage and approval.”

Research References

ALR.

Cancellation prior to termination of underlying action, absent claim of delay. 49 A.L.R.4th 242.

Am. Jur. 51 Am. Jur. 2d, Lis Pen., § 1 et seq.

Ark. L. Rev.

Creditors' Provisional Remedies and Debtors' Due Process Rights: Statutory Liens in Arkansas, 32 Ark. L. Rev. 185.

C.J.S. 54 C.J.S., Lis Pen., § 1 et seq.

U. Ark. Little Rock L.J.

Note, Bankruptcy — A Fraudulent Conveyance Action and a Lis Pendens May Create a Lien Which Survives a Bankruptcy Discharge, 15 U. Ark. Little Rock L.J. 319.

16-59-101. Filing of notice required to constitute constructive notice of pending action.

To render the filing of any suit at law or in equity in either a state court or United States district court affecting the title or any lien on real estate or personal property constructive notice to a bona fide purchaser or mortgagee of any such real estate or personal property, it shall be necessary for the plaintiff or any one (1) of the plaintiffs, if there is more than one (1) plaintiff, or his or her attorney or agent to file a notice of the pendency of the suit, for record with the recorder of deeds of the county in which the property to be affected by the constructive notice is situated.

History. Acts 1903, No. 65, § 1, p. 118; C. & M. Dig., § 6979; Pope's Dig., § 8959; Acts 1965 (2nd Ex. Sess.), No. 5, § 1; A.S.A. 1947, § 27-501.

Case Notes

Purpose.

The notice of lis pendens is for the purpose of preserving rights pending the litigation. Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943), superseded by statute as stated in, Croft v. Croft, 8 Ark. App. 20, 648 S.W.2d 511 (1983).

Applicability.

This section applies only to actions affecting titles and liens on real estate or personal property, not to actions seeking a money judgment. Tolley v. Wilson, 212 Ark. 163, 205 S.W.2d 177 (1947); Health Betterment Found. v. Thomas, 225 Ark. 529, 283 S.W.2d 863 (1955).

Appellants' mere filing of a notice of lis pendens was ineffective to create any vested rights that would preclude the assertion of a claim for reformation where the notice under the lis pendens statute did not have any application between the parties. The notice under the statute did not establish any lien, or have any application as between the parties, but gave effect to the rights ultimately established by a judgment in the case. Longing Family Revocable Trust v. Snowden, 2013 Ark. App. 81, 426 S.W.3d 488 (2013).

Acknowledgment.

As a lis pendens is not an instrument in writing for the conveyance of any real estate or by which any real estate may be affected in law or equity, acknowledgment of the lis pendens is not required under Ark. Code Ann. § 16-47-101. Benefit Bank v. Rogers, 2012 Ark. 419, 424 S.W.3d 812 (2012).

Actual Knowledge.

Where all the parties interested in a purchase of land have actual knowledge of the condition of the title, this section has no application. Zeigler v. Daniel, 128 Ark. 403, 194 S.W. 246 (1917).

Purchaser with actual notice is bound notwithstanding failure to give lis pendens notice. Drummond v. Batson, 162 Ark. 407, 258 S.W. 616 (1924).

One who purchases, having actual notice of the pendency of a suit to foreclose a mortgage, cannot avail himself of the failure to give the lis pendens notice required by the section. Shouse v. Scovill, 200 Ark. 441, 139 S.W.2d 240 (1940).

One who acquires from a party property in litigation in a court having jurisdiction, takes it subject to the rights of the parties and has the same rights as the grantee, and is conclusively bound by the results of the litigation. White River Prod. Credit Ass'n v. Fears, 213 Ark. 75, 209 S.W.2d 294 (1948).

Appeals.

Purchaser at a judicial sale based upon a decree which on appeal was declared void was entitled to recover value of improvements made while the appeal was pending. McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88 (1909).

The purpose of a lis pendens is to put bona fide purchasers or mortgagees upon notice that the title to certain real or personal property is being litigated and litigation is obviously not completed until appellate review is had in cases where appeals are perfected; the statutory effect of a lis pendens follows the litigation to its conclusion. Ashworth v. Hankins, 241 Ark. 629, 408 S.W.2d 871 (1966).

Complaint for Money Judgment.

Only the filing of a lis pendens against the property can render the complaint a matter of record before it is reduced to judgment, but lis pendens cannot be filed for a complaint merely for a money judgment and not directly affecting the title to the real estate. Bank of Cave City v. Abstract & Title Co., 38 Ark. App. 65, 828 S.W.2d 852 (1992).

District court ordered the U.S. Government to remove a notice of lis pendens it filed against defendant's residence, pursuant to this section, after defendant was indicted on charges alleging that he conspired with another person to commit mail fraud, in violation of 18 U.S.C.S. § 1341. Although the indictment charging defendant with conspiracy to commit mail fraud included a forfeiture allegation in the amount of $1,811,490 and gave notice of the Government's intent to seek substitute property, pursuant to 21 U.S.C.S. § 853(p), in the event $1.8 million in cash could not be located with due diligence, the Government's notice of lis pendens was improper under this section because the Government was using defendant's residence as a substitute for a money judgment it was seeking, and this section did not apply to actions seeking money judgments. United States v. Jewell, 556 F. Supp. 2d 962 (E.D. Ark. 2008).

Conversion.

A lienholder may protect himself against an actionable conversion of property to which his lien attaches which has not occurred at the time he files his foreclosure suit by filing a notice of lis pendens, and if the property is thereafter converted by a stranger to the case that person would take subject to the outcome of the foreclosure litigation. Superior Iron Works & Supply Co. v. Saulsberry, 226 Ark. 1032, 295 S.W.2d 626 (1956).

Effect of Filing.

A general creditor who files an action to cancel a fraudulent conveyance of a debtor acquires a specific lien on the property conveyed, including lien on real property when notice of lis pendens is filed. Clark v. Bank of Bentonville, 308 Ark. 241, 824 S.W.2d 358 (1992).

Recording of the notice of lis pendens under this section was itself a “transfer” within the meaning of 11 U.S.C.S. § 547, which transfer occurred when the notice was recorded; thus, the transfers by the filing of the lis pendens filings on two properties were effective when recorded, occurred within 90 days of the debtor's bankruptcy filing, and were avoided by the bankruptcy trustee. Rice v. First Ark. Valley Bank (In re May), 310 B.R. 405 (Bankr. E.D. Ark. 2004).

Lis pendens filed under § 16-59-101 et seq. against defendant's residence, which was allegedly subject to forfeiture as substitute property in a criminal case against defendant, was not a seizure or a legal restraint of the property; 21 U.S.C.S. § 853(e) therefore did not prohibit the government from filing the lis pendens prior to conviction. United States v. Jewell, 538 F. Supp. 2d 1087 (E.D. Ark. 2008).

Materials supplier that filed a materialman's lien on property after a bank had filed a foreclosure complaint and a lis pendens on the same property was subject to the lis pendens because the supplier did not obtain an interest in the property prior to the filing of the lis pendens. Nat'l Home Ctrs., Inc. v. Coleman, 373 Ark. 246, 283 S.W.3d 218 (2008).

As a husband voluntarily signed and his wife filed a lis pendens against real property before their divorce was final, litigation relating to the property was clearly pending at the time of the filing; therefore, a bank which later acquired a mortgage on the property was on notice that the property was being litigated in some fashion. Benefit Bank v. Rogers, 2012 Ark. 419, 424 S.W.3d 812 (2012).

Estoppel.

Where evidence established that a party accepted and treated as his own, land that had been awarded to another person in severalty in a partition suit, and when the party treated the tract of land as his own property, he thereby estopped himself from claiming an undivided interest in the entire tract from which the property had been subdivided in the partition suit. Crain v. Foster, 230 Ark. 190, 322 S.W.2d 443 (1959).

Failure to Record.

Failure of a bona fide purchaser to record his title before a list pendens notice was filed will not deprive him of his title or give the plaintiff any superior title. Oil Fields Corp. v. Dashko, 173 Ark. 533, 294 S.W. 25Certiorari or review denied by275 U.S. 548, 48 S. Ct. 85 (1927).

Judgment Creditors.

Where order of dismissal was final determination of mortgage foreclosure suit filed seven years earlier with notice of lis pendens, and it reinstated the mortgage in full force and effect as though no suit had been filed, the order was binding on judgment creditors of mortgagor who secured judgment after beginning of suit and precluded them from contending that subsequent foreclosure suit was barred by limitations for failure to make marginal endorsements of payment within five years. Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943), superseded by statute as stated in, Croft v. Croft, 8 Ark. App. 20, 648 S.W.2d 511 (1983).

Notice Void.

One who purchases land from one in possession thereof without notice, either actual or constructive, of the pendency of an action against the seller to recover the land is not concluded by a judgment rendered therein against the seller. Jennings v. Bouldin, 98 Ark. 105, 134 S.W. 948 (1911).

A suit affecting the title or any lien on the real estate is not lis pendens until a notice of the pendency of the action is filed in accordance with this section. Henry Wrape Co. v. Cox, 122 Ark. 445, 183 S.W. 955 (1916); Jones v. Ainell, 123 Ark. 532, 186 S.W. 65 (1916); Cramer v. Remmel, 132 Ark. 158, 200 S.W. 811 (1918).

Purchaser without actual knowledge of mortgage foreclosure suit instituted three days prior to purchase and without constructive notice because lis pendens notice had not been given, being a third party to the mortgage which was barred because no notation of any payment on the note was endorsed on the margin of its record, took title free from the mortgage lien even though he acquired title by quit-claim deed. Shouse v. Scovill, 200 Ark. 441, 139 S.W.2d 240 (1940).

A lis pendens notice became nugatory when the Supreme Court affirmed a judgment sustaining a demurrer to the plaintiff's complaint. Tolley v. Wilson, 212 Ark. 163, 205 S.W.2d 177 (1947).

The filing of the complaint is a condition precedent to filing the notice of lis pendens under this section and a prematurely filed notice of lis pendens is a nullity. Keith v. Bratton, 738 F.2d 314 (8th Cir. 1984).

Priorities.

As the divorce court did not unilaterally impose a lis pendens on real estate as security for a former husband's payment of spousal support to appellee, but both parties agreed to its being imposed, the lis pendens was valid and appellee's interest in the property was senior to that of a bank which later acquired a mortgage on that property. Benefit Bank v. Rogers, 2012 Ark. 419, 424 S.W.3d 812 (2012).

Purchase by Spouse.

Where land owned by a husband was sold for taxes and purchased by his wife from the assignee of the tax title, she was not affected by the pendency of a suit to recover the land from the husband since her title was in opposition to his. Boykin v. Jones, 67 Ark. 571, 57 S.W. 17 (1900) (decision under prior law).

Specific Performance.

A suit for the specific performance of a contract for the sale of real estate is within the rule as to lis pendens and one who acquires an interest in the property pending the suit from a party thereto is bound by the result of the suit. Lightle v. Schmidt, 144 Ark. 304, 222 S.W. 46 (1920).

Tenants.

A tenant going into possession of land under a defendant in pending mortgage foreclosure proceedings, without actual notice of the proceedings and in the absence of constructive notice thereof, is entitled to hold the land under his rental contract. Jordan v. Hargis, 156 Ark. 408, 246 S.W. 476 (1923).

Transfer.

The recording of a lis pendens affects the possession and interests in debtor's property; accordingly, the recording of the notice of lis pendens is itself a “transfer” within the meaning of 11 U.S.C. § 547, which transfer occurred when the notice was recorded. Dupwe v. Worthen Nat'l Bank (In re Rising Fast Rentals, Inc.), 162 B.R. 203 (Bankr. E.D. Ark. 1993).

Cited: Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943); Chevron Oil Co. v. Tlapek, 265 F. Supp. 598 (W.D. Ark. 1967); Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984).

16-59-102. Contents of notice.

The notice of the pendency of the suit shall set forth the title of the cause and the general object thereof, together with a correct and full description of the property to be affected thereby, the names of the parties to the suit, and the style of the court where the suit is pending.

History. Acts 1903, No. 65, § 1, p. 118; C. & M. Dig., § 6979; Pope's Dig., § 8959; Acts 1965 (2nd Ex. Sess.), No. 5, § 1; A.S.A. 1947, § 27-501.

Case Notes

Cited: Benefit Bank v. Rogers, 2012 Ark. 419, 424 S.W.3d 812 (2012).

16-59-103. Duty of recorder of deeds.

It shall be the duty of the recorder of deeds to record the notice of the pending suit in either a state court or United States district court in a book kept for that purpose, upon the payment of the same fees as are provided by law for recording mortgages.

History. Acts 1903, No. 65, § 1, p. 118; C. & M. Dig., § 6979; Pope's Dig., § 8959; Acts 1965 (2nd Ex. Sess.), No. 5, § 1; A.S.A. 1947, § 27-501.

16-59-104. Index of notices.

The recorder of deeds shall immediately upon the filing of the notice of the pendency of the action enter in an index to be kept in his or her office such reference to these notices as will enable all persons interested to search his or her office to obtain a description of the property to be affected thereby and the names of the parties to the suit.

History. Acts 1903, No. 65, § 3, p. 118; C. & M. Dig., § 6981; Pope's Dig., § 8961; A.S.A. 1947, § 27-503.

16-59-105. Fees of recorder — Taxing as costs.

For the indexing and recording of the notice of the pendency of the suit, the recorder of deeds shall be entitled to the same fees as are provided by law for recording and indexing deeds. The sum thus paid to the recorder shall be taxed as part of the costs of executing the process by the sheriff or other officer.

History. Acts 1903, No. 65, § 6, p. 118; C. & M. Dig., § 6984; Pope's Dig., § 8964; A.S.A. 1947, § 27-504.

Cross References. Fees of recorder, § 21-6-306.

16-59-106. Accounts due state lien from commencement of action.

The amount of any account audited, adjusted, and found due the state, with the penalties and interest thereon, shall be a lien on all the real estate of the person charged with the amount of any such account from the time the suit shall be brought for the recovery thereof.

History. Rev. Stat., ch. 18, § 35; C. & M. Dig., § 9302; Pope's Dig., § 11988; A.S.A. 1947, § 27-505.

16-59-107. Copy of notice as evidence.

A copy of the record, authenticated by the recorder of deeds, shall be evidence of the notice of the pendency of the suit and of the filing of the notice in all courts and places.

History. Acts 1903, No. 65, § 2, p. 118; C. & M. Dig., § 6980; Pope's Dig., § 8960; A.S.A. 1947, § 27-502.

Research References

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Chapter 60 Venue

Cross References. Uniform Interstate and International Procedure Act, § 16-4-101 et seq.

Research References

Ark. L. Notes.

Watkins, A Guide to Arkansas Venue, 1995 Ark. L. Notes 83.

Case Notes

In General.

Since statehood, the General Assembly has provided that the basic rule of venue is that a defendant must be sued in the county where he lives or is summoned. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995).

Nature of Claim.

Venue is controlled by the characterization of claim by statute rather than the characterization of a claim given by a plaintiff. Bristol-Meyers Squibb Co. v. Saline County Circuit Court, 329 Ark. 357, 947 S.W.2d 12 (1997).

When two or more actions are pled that lie in different venues, venue is determined by the real character of the action and the principal right being asserted. Bristol-Meyers Squibb Co. v. Saline County Circuit Court, 329 Ark. 357, 947 S.W.2d 12 (1997).

Residence.

The General Assembly was aware of the difference between the words “resides” and “domicile,” was aware of the fact that a person might have a residence in one county and his domicile in another, and deliberately chose to use the word “resides” in this chapter; “residency” means the place of actual abode, not a home which one expects to occupy at some future time. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995).

Subchapter 1 — General Provisions

Publisher's Notes. This subchapter was repealed and reenacted by Acts 2015, No. 830, § 2. The former subchapter, concerning General Provisions, consisted of §§ 16-60-10116-60-119. The history notes to former §§ 16-60-101, 16-60-102, 16-60-103, 16-60-114, 16-60-115, and 16-60-119 have been added to corresponding sections in the revised subchapter. The remaining sections of the former subchapter were derived from the following sources:

16-60-104. Civil Code, § 92; C. & M. Dig., § 1171; Pope's Dig., § 1393; A.S.A. 1947, § 27-605.

16-60-105. Acts 1935, No. 74, § 1; Pope's Dig., § 1385; A.S.A. 1947, § 27-609.

16-60-106. Civil Code, § 93; C. & M. Dig., § 1172; Pope's Dig., § 1394; A.S.A. 1947, § 27-606.

16-60-107. Civil Code, § 94; C. & M. Dig., § 1173; Pope's Dig., § 1395; A.S.A. 1947, § 27-607.

16-60-108. Civil Code, § 95; C. & M. Dig., § 1174; Pope's Dig., § 1396; A.S.A. 1947, § 27-608.

16-60-109. Acts 1973, No. 142, §§ 1, 2; A.S.A. 1947, §§ 27-619, 27-620.

16-60-110. Civil Code, § 91; C. & M. Dig., § 1170; Pope's Dig., § 1392; A.S.A. 1947, § 27-604; Acts 1989 (3rd Ex. Sess.), No. 56, § 1; 1997, No. 208, § 13.

16-60-111. Acts 1977, No. 401, §§ 1-3; A.S.A. 1947, §§ 27-621 — 27-623; Acts 2007, No. 549, § 1; 2009, No. 546, § 1.

16-60-112. Acts 1939, No. 314, § 1; 1947, No. 347, § 1; 1961, No. 137, § 1; A.S.A. 1947, §§ 27-610, 27-610.1, 27-612.

16-60-113. Acts 1941, No. 317, § 1; 1947, No. 182, § 1; 1977, No. 830, § 1; 1983, No. 642, § 1; 1985, No. 921, § 1; A.S.A. 1947, § 27-611.

16-60-116. Civil Code, §§ 96-100; C. & M. Dig., §§ 1176-1180; Pope's Dig., §§ 1398-1402; A.S.A. 1947, §§ 27-613 — 27-617.

16-60-117. Acts 1941, No. 21, § 1; A.S.A. 1947, § 27-618.

16-60-118. Acts 1997, No. 725, § 1.

Preambles. Acts 1935, No. 74, contained a preamble which read: “Whereas, large and numerous business enterprises of various kinds are being operated in the state of Arkansas by individuals, firms, copartnerships and association of persons and under the law as it now exists the venue for suits against them is fixed in the county of their residence or where such person or a member of the firm, copartnership or association may be found, and in many instances this works to the disadvantage of those who deal with such person, firm, copartnership or association by requiring the person so desiring to sue to go to the place of residence of such person, firm, copartnership or association and it is the purpose of this act to relieve against this situation …”

Effective Dates. Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1935, No. 74, § 3: approved Feb. 26, 1935. Emergency clause provided: “It is hereby ascertained and declared that a large number of people in the State of Arkansas are affected by this act and that in many cases justice requires its immediate effectiveness and it is therefore declared that an emergency exists and this act shall be in full force and effect from and after passage.”

Acts 1939, No. 314, § 3: approved Mar. 15, 1939. Emergency clause provided: “It is found that the revenues of many counties are reduced by paying expenses of courts for the trial of actions brought from other counties to the damage of the taxpayers, and the dockets of the circuit courts in many counties congested and the time of such courts taken up by actions from other counties so that there is not sufficient time for the courts properly to try local cases, and an emergency is thereby created and is declared and this act shall be in force immediately from and after its passage.”

Acts 1941, No. 21, § 2: approved Feb. 3, 1941. Emergency clause provided: “It is hereby ascertained and declared to be a fact that the laws concerning service of process in Arkansas are in an uncertain state; furthermore, that there are complaints now pending in the courts of Arkansas, brought on meritorious causes of action, upon which it may be impossible to secure service of process, the actions being local in nature and service being now in some cases limited to the county in which such actions are brought. Therefore, this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall be in full force and effect from and after the date of its passage.”

Acts 1941, No. 317, § 3: approved Mar. 26, 1941. Emergency clause provided: “It is hereby found and declared that in many instances it is necessary for an injured party to bring more than one action in different counties in order to obtain relief and damages arising out of the same wrongful or negligent act; that such multiplicity of suits constitute an expense to many counties within the state and a crowding of their dockets, and an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, it shall be in force and effect from and after its passage.”

Acts 1947, No. 182, § 3: Mar. 6, 1947. Emergency clause provided: “It is found and declared that in many instances litigants to actions for personal injury and property damage have a cause of action growing out of the same accident and that the jurisdiction for property damage is in one county and for personal injury in another county, and that as a result thereof an inconvenience and expense arises to the litigants and multiplicity of suits results therefrom, and because of these conditions and this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this act shall be in full force and effect from and after its passage and approval.”

Acts 1947, No. 347, § 6: Mar. 28, 1947. Emergency clause provided: “Whereas many nonresident persons, firms, partnerships and corporations are not now qualified under the Constitution and laws of this State to do business herein and by reason of operating business in and through the State of Arkansas injury and damage are being done to persons and property within said State; and whereas in cases of such injury and damage by such nonresident defendants those suffering damages thereby have no convenient method by which they may sue to enforce their rights, if any, in the State of Arkansas, and this act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 921, § 3: Apr. 15, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is urgent need for enactment of legislation to enable citizens of the State of Arkansas to bring legal action in local courts in counties where citizens have been subjected to fraudulent conduct by telephone, mail or other means; that this Act is designed to permit citizens to bring actions for fraud in the county where the fraud occurred, has been initiated, has been consummated or has been communicated whether such fraud is common law fraud or other fraudulent conduct so designated as insurance, securities, consumer or other fraud under the laws of the State of Arkansas; and that this Act should be given effect as soon as possible. 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 1989 (3rd Ex. Sess.), No. 56, § 4: Nov. 16, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that a serious question exists regarding the venue requirements for actions brought against confined persons, particularly when that person is being confined in a facility not located within the county in which he resided or claimed his residence, and that this law is required to clear up that confusion. 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 2013, No. 1315, § 3: Apr. 18, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that school district litigation is a complex and costly endeavor; that a new venue statute would resolve many issues regarding where a lawsuit should be brought; and that this act is immediately necessary because future litigants are currently relying on venue statutes that would require litigation in an inconvenient forum. 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 2017, No. 967, § 4: Apr. 5, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the people of the State of Arkansas will benefit from immediate access to the most efficient venues for prosecution of litigation in which the state is a party. 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.”

Research References

ALR.

Contractual provision limiting place or court in which action may be brought. 31 A.L.R.4th 404.

Am. Jur. 77 Am. Jur. 2d, Venue, § 1 et seq.

Ark. L. Rev.

Conflict of Laws — Action for Injury to Extrastate Land, 6 Ark. L. Rev. 221.

Grounds for Venue in Arkansas — A Survey, 25 Ark. L. Rev. 468.

C.J.S. 67A C.J.S., Parties, § 1 et seq.

92A C.J.S., Venue, § 1 et seq.

16-60-101. Venue in circuit courts — General rules and exceptions.

  1. A civil action other than a civil action mentioned in §§ 16-60-102 — 16-60-109, 16-106-101, and specific venue provisions codified in another title of the Arkansas Code shall be brought in any of the following counties:
    1. The county in which a substantial part of the event or omission giving rise to the cause of action occurred;
      1. The county in which an individual defendant resided at the time of the event or omission giving rise to the cause of action.
      2. If the defendant is an entity other than an individual, the civil action shall be brought in the county where the entity had its principal office in this state at the time of the event or omission giving rise to the cause of action; or
      1. The county in which the plaintiff resided at the time of the event or omission giving rise to the cause of action.
      2. If the plaintiff is an entity other than an individual, the civil action shall be brought in the county where the plaintiff had its principal office in this state at the time of the event or omission giving rise to the cause of action.
    1. The residence of a properly joined named class representative may be considered in determining proper venue in a class action.
    2. The residence of a putative or actual member of a class other than a named representative shall not be considered in determining proper venue for a class action.
  2. In a civil action with multiple plaintiffs, venue shall be proper as to each named plaintiff joined in the civil action unless:
    1. The plaintiffs establish that they assert any right to relief against the defendant jointly, severally, or arising out of the same transaction or occurrence; and
    2. The existence of a substantial number of questions of law or material fact common to all the plaintiffs not only will arise in the civil action, but also that:
      1. The common questions of law or material fact will predominate over individual questions of law or material fact pertaining to each plaintiff;
      2. The civil action can be maintained more efficiently and economically for all parties than if prosecuted separately; and
      3. The interest of justice supports the joinder of the parties as plaintiffs in one (1) civil action.
    1. Unless venue objections are waived by the defendant or by unanimous agreement of multiple defendants, if venue is improper for any plaintiff joined in the civil action, then the claim of the plaintiff shall be severed and transferred to a court where venue is proper.
      1. If severance and transfer is mandated and venue is appropriate in more than one (1) court, a defendant sued alone or multiple defendants, by unanimous agreement, may select another court to which the civil action shall be transferred.
      2. If there are multiple defendants who are unable to agree on another court, the court in which the civil action was originally filed may transfer the action to another court.
  3. When venue is proper as to one (1) defendant, it is also proper as to any other defendant with respect to all causes of action arising out of the same transaction or occurrence.

History. Acts 2015, No. 830, § 2.

Publisher's Notes. Former § 16-60-101 has been amended and renumbered as § 16-60-102.

Case Notes

Construction.

Because an insurer was the first party to file suit, and it chose to do so in the county in which it had its principal office, a circuit judge erred by applying the doctrine of forum non conveniens under § 16-4-101(D), effectively overruling the insurer's choice of venue. Farm Bureau Mut. Ins. Co. of Ark. v. Gadbury-Swift, 2010 Ark. 6, 362 S.W.3d 291 (2010) (decided under former § 16-55-213).

Improper Venue.

Where a writ of prohibition entered in the court's prior decision required the circuit court to dismiss the representative of the Arkansas consumers from the case, no basis existed for venue over the only remaining named plaintiff; venue was not proper because the remaining plaintiff was a resident of Texas. Centerpoint Energy, Inc. v. Miller County Circuit Court, 372 Ark. 343, 276 S.W.3d 231 (2008).

Dismissal for improper venue under Ark. R. Civ. P. 12(b)(3) of a complaint alleging fraud in the inducement of contract was not erroneous because forum-selection clauses designated Kansas as governing law and in both Arkansas and Kansas a party had to plead fraud in the inducement of a forum-selection clause itself to avoid its application Provence v. Nat'l Carriers, Inc., 2010 Ark. 27, 360 S.W.3d 725 (2010) (decision under prior law).

16-60-102. Local actions.

A civil action for the following causes shall be brought in the county in which the subject of the civil action, or some part of the civil action, is situated:

  1. The recovery of real property, or of an estate or interest in real property;
  2. The partition of real property;
  3. The sale of real property under a mortgage, lien, or other encumbrance or charge; and
  4. An injury to real property.

History. Civil Code, § 84; C. & M. Dig., § 1164; Pope's Dig., § 1386; A.S.A. 1947, § 27-601; Acts 2015, No. 830, § 2.

Publisher's Notes. This section was formerly codified as § 16-60-101. Former § 16-60-102 has been amended and renumbered as § 16-60-103.

Amendments. The 2015 amendment substituted “Local actions” for “Actions brought where subject of action situated” in the section heading; substituted “civil action” for “action”; deleted “except as provided in § 16-60-116(d)” at the end of the introductory language; and made stylistic changes.

Case Notes

Applicability.

This section applies to all actions coming within its terms whether brought at law or in equity. Wilson v. Parkinson, 157 Ark. 69, 247 S.W. 774 (1923).

Character of Complaint.

Venue in county where land was located was proper for both compulsory counterclaim and permissive third-party complaint, since both claims involved the same cause of action as the original complaint and had common questions of law and fact. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983).

—Local Actions.

If the purpose of a bill and the effect of a decree are to reach and operate upon the land itself, then it is regarded as a proceeding in rem and is a local action and must be brought in the county where the land is situated. Dowdle v. Byrd, 201 Ark. 775, 147 S.W.2d 343 (1941).

Where the object of the suit was to compel defendant to accept a conveyance of real estate and to pay therefor in accordance with his contract so to do, and if he refused to do so, having acquired the outstanding title of the mortgagee, to have a lien therefor decreed upon the land and the land condemned to satisfy the lien, the action is local under this section as it is to recover an interest in real estate. Dowdle v. Byrd, 201 Ark. 775, 147 S.W.2d 343 (1941).

In determining whether action brought is local, regardless of title of suit, the court will look to the effect of the decree, and if effect of decree is to affect an interest in land, the court will hold that the action must be filed in the county where the land is located. Drum v. McDaniel, 215 Ark. 690, 222 S.W.2d 59 (1949).

Where purpose of action, and effect of decree is to reach and operate upon the land itself, then action is a proceeding in rem and it must be brought in county where the land is situated. Drum v. McDaniel, 215 Ark. 690, 222 S.W.2d 59 (1949).

Encumbrances.

—Foreclosure.

A suit to foreclose a mortgage on a town lot was properly brought in the county in which the lot was situated. Harrison v. Bank of Fordyce, 178 Ark. 760, 12 S.W.2d 400 (1929).

Chancery court of county where mortgaged lands are partly situated is the proper tribunal in which to institute foreclosure suit. Wasson v. Dodge, 192 Ark. 728, 94 S.W.2d 720 (1936).

—Quiet Title.

An action to remove a cloud upon the title to land is a local action and should be brought in the county in which the land is situated. Fidelity Mtg. Co. v. Evans, 168 Ark. 459, 270 S.W. 624 (1925).

An action to have certain deeds voided and entries removed as clouds upon title was a quiet title action the venue of which was governed by this section even though a state commission was a party defendant. State ex rel. Ark. Publicity & Parks Comm'n v. Butt, 229 Ark. 433, 316 S.W.2d 204 (1958).

In suit to quiet title where county chancery court entered decree as to title of the disputed property and nothing in the record showed conclusively that some part of the land was not located in that county, Supreme Court would indulge the presumption that the trial court had jurisdiction. Black v. Clary, 235 Ark. 1001, 363 S.W.2d 528 (1963).

Injunction.

Jurisdiction to enjoin sale of land is transitory. Jones, McDowell & Co. v. Fletcher, 42 Ark. 422 (1883).

An action to enjoin commissioners of a road district from extending assessments against lands in another district is not a local action but is transitory. Arkansas-Louisiana Hwy. Imp. Dist. v. Douglas-Gould & Star City Rd. Imp. Dist., 138 Ark. 162, 210 S.W. 150 (1919).

A suit to restrain a threatened injury to real property is a local action. Drainage Dist. No. 7 v. Hutchins, 184 Ark. 521, 42 S.W.2d 996 (1931).

Chancery court had jurisdiction to enjoin city located within county to refrain from dumping sewage in creek to detriment of downstream landowners but would not have had jurisdiction to award damages for such action as to landowners located in another county so that consent decree enjoining the action would not preclude subsequent suit by out-of-county landowners in county where land lay alleging that pollution of stream amounted to a taking of owners' land by city and seeking damages for the same. Weathers v. City of Springdale, 239 Ark. 535, 390 S.W.2d 125 (1965).

Injury to Crops and Land.

A suit to restrain defendant from removing earth from plaintiff's land is an action for an injury to real property. Cox v. Railway Co., 55 Ark. 454, 18 S.W. 630 (1892).

An action for conversion of timber is not an action for injury to real property. Emerson v. Turner, 95 Ark. 597, 130 S.W. 538 (1910).

An action, the effect of which is to prevent defendants from interfering with plaintiff's mining business, is not an action for, nor to prevent, an injury to real property. Jones v. State, 170 Ark. 863, 281 S.W. 663, 1926 Ark. LEXIS 247 (1926).

An action by tenants for injury to land must be brought in the county where the land lies. Missouri P.R.R. v. Henry, 188 Ark. 530, 66 S.W.2d 636 (1934).

A contractor who injures another's land while engaged in constructing a state highway may be sued in the county where the injury was committed. Arkansas Hwy. Comm'n v. Holt, 190 Ark. 868, 81 S.W.2d 929 (1935).

Action of trespass must be filed in county where land is located, as it is a local action. Pruitt v. Sebastian County Coal & Mining Co., 215 Ark. 673, 222 S.W.2d 50 (1949).

In suit by plaintiffs to recover damage to crop filed in county where plaintiffs' land was located, service on defendant in another county was proper, since damage to crop was local in nature. Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577 (1952).

Complaint to recover damages for injury to property of plaintiff by defendant contractor engaged in widening highway under a contract with state was a suit in tort instead of contract and it was properly filed in county where land was located. Southeast Constr. Co. v. Wood, 223 Ark. 325, 265 S.W.2d 720 (1954); Southeast Constr. Co. v. Wood, 223 Ark. 328, 265 S.W.2d 722 (1954).

An action for injury to realty is local in nature and must be brought in the county in which the land is situated and a building being moved is still realty where there is no intention to convert it into personal property, so that claim for damage to it in moving is properly venued in the county where the building was when moved. Bucton Constr. Co. v. Carlson, 225 Ark. 208, 280 S.W.2d 408 (1955).

In actions concerning real estate, venue lies in the county where the realty is located, so where a plaintiff alleges that buildings were damaged by a defendant corporation in moving of them and there was no intention to convert the buildings to personalty the venue of the action is governed by the situs of the buildings when moved and lies in the county where they were located. Bucton Constr. Co. v. Carlson, 225 Ark. 208, 280 S.W.2d 408 (1955).

An action to enjoin a trespass on real property must be considered local in character. Miracle v. Jacoby, 192 F. Supp. 907 (W.D. Ark. 1961).

Interest in Lands.

A suit to recover title to mortgages sold to the defendant was for the recovery of an interest in land and the venue was properly laid in the county wherein the mortgaged lands were situated. National Equity Life Ins. Co. v. Seamster, 188 Ark. 170, 65 S.W.2d 31 (1933).

Jurisdiction.

Circuit court of county in which real estate levied upon was located had jurisdiction of action to determine validity of distress warrant. Crawford v. Carson, 35 Ark. 565 (1880).

The circuit court of county is without jurisdiction to try an action in ejectment to lands in another county in the absence of an order of a change of venue. King v. Harris, 134 Ark. 337, 203 S.W. 847 (1918).

In action to replevy check deposited in escrow pursuant to contract to purchase interest in realty located out-of-state, where vendor intervened seeking specific performance, insofar as relief prayed for would not affect title to the land, but could be obtained through personal obedience of the parties, court had jurisdiction. Bell v. Wadley, 206 Ark. 569, 177 S.W.2d 403 (1944).

—Consent to Jurisdiction.

Consent cannot give jurisdiction of a suit in another county. Jacks v. Moore, 33 Ark. 31 (1878).

Parties to an action of trespass cannot by consent confer jurisdiction of the subject matter, if land is not located in the county where suit is filed. Pruitt v. Sebastian County Coal & Mining Co., 215 Ark. 673, 222 S.W.2d 50 (1949).

—Incidental Jurisdiction.

A judgment for defendant in an action in one county for damages to personal property alleged to have been caused by the negligence and destruction of building in another county barred a subsequent action in the latter county between the same parties for damages for the destruction of the building. Dunaway v. Russell, 173 Ark. 898, 294 S.W. 1 (1927).

County court in which foreclosure suit was properly instituted has jurisdiction to try every question, both legal and equitable, that may arise in the case, including construction of will of testator domiciled in another county to determine whether mortgagor had title to land sought to be foreclosed. Wasson v. Dodge, 192 Ark. 728, 94 S.W.2d 720 (1936).

Where county court rightfully acquired jurisdiction over necessary parties and subject matter in foreclosure proceeding, no other court of equal dignity or one having concurrent jurisdiction had any right to interfere. Wasson v. Dodge, 192 Ark. 728, 94 S.W.2d 720 (1936).

Where decree foreclosing mortgage lien was rendered in the one district of a county, service had on defendant in another district of that county was held to support deficiency judgment, since court having jurisdiction to foreclose the mortgage had the incidental jurisdiction to render a personal judgment for the debt it secured. Husband v. Crockett, 195 Ark. 1031, 115 S.W.2d 882 (1938).

When lands located in two counties were both subject to a single note and mortgage and when the mortgage holder had previously obtained a decree of foreclosure in one county for the land within that county, the holder could not then institute a separate action in the second county for the remaining land since the court in the first action, having assumed jurisdiction for one purpose, retained it for all purposes with the power to grant all of the legal and equitable relief to which the parties were entitled. Steelman v. Planters Prod. Credit Ass'n, 285 Ark. 217, 685 S.W.2d 800 (1985).

—Multiple Jurisdictions.

When the county of the venue is divided into two judicial districts, it may be brought in either. Jones v. State, 170 Ark. 863, 281 S.W. 663, 1926 Ark. LEXIS 247 (1926).

Where all the parties to an action to quiet title are interested in all the lands by reason of claiming under a common title, the court of the county in which the greater portion of the land is situated had jurisdiction though a small portion of it was situated in another county. Bowen v. Frank, 179 Ark. 1004, 18 S.W.2d 1037 (1929).

In an action to determine the ownership of land formed by accretion where all of the land actually in controversy lay in one county but in their complaint plaintiffs asked for the determination of adjoining land in another county and, though defendants conceded this land to be plaintiffs' the section applies, hence the action could be brought in either county. Adkisson v. Starr, 222 Ark. 331, 260 S.W.2d 956 (1953).

Although the land over which the land owners established a prescriptive easement was in Perry County, venue was proper in Conway County because a transitory claim, the request for an injunction prohibiting the servient property owners from interfering with the land owners' use of the gate in Conway County, was included in the complaint; thus, the trial court's refusal to dismiss on the basis of venue was correct. River Bar Farms, L.L.C. v. Moore, 83 Ark. App. 130, 118 S.W.3d 145 (2003).

Leases.

Since an oil and gas lease conveys an interest and an easement in the land, action to enforce a lien upon lease must be brought in county where land is. Clark v. Dennis, 172 Ark. 1096, 291 S.W. 807 (1927).

Suit to cancel a five-year lease of land on ground that lessor had forfeited or abandoned his rights therein is a transitory action, the lease being personal property, and should have been brought in the county where lessees resided or in some county where personal service could be obtained upon them. Jones v. Brinkman, 200 Ark. 583, 139 S.W.2d 686 (1940).

An action for the recovery of damages to real property based on the breach of a written lease agreement is transitory. Ferrill v. Collins, 222 Ark. 840, 262 S.W.2d 885 (1953).

Action seeking a declaratory judgment interpreting acreage under a lease agreement between landlord and tenant did not involve recovery of an interest in real property and should have been brought in the county of defendant's residence. Doyle v. Williams, 251 Ark. 797, 475 S.W.2d 170 (1972).

Where a lessee brought an action to quiet title against the landowners and a subsequent lessee, the complaint was local in nature and the plaintiff properly filed the action in the county where the land was located. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983).

Partition of Land.

Where the estate of a deceased person has been wound up, an action for partition of the land among the heirs should be brought in the county where the land or some part of it is situated and not in the county where the deceased's representatives qualified. Cowling v. Nelson, 76 Ark. 146, 88 S.W. 913 (1905).

Recovery of Lands.

A suit to cancel a fraudulent deed of land and revest title in plaintiff is an action for the recovery of real property. McLaughlin v. McCrory, 55 Ark. 442, 18 S.W. 762 (1892).

An action to recover certain lands, conveyed away, and to declare and enforce judgment liens against the same, is local and not transitory and must be brought in the county where the lands are situated. Harris v. Smith, 133 Ark. 250, 202 S.W. 244 (1918).

A suit in effect to compel the reconveyance of land sold under execution is a local action maintainable only where land is situated. Arkansas Mineral Prods. Co. v. Creel, 181 Ark. 722, 27 S.W.2d 1003 (1930).

Specific Performance.

The general rule is that where in a suit for specific performance of a contract involving land plaintiff seeks only in personam relief against defendant and does not seek a decree which by virtue of in rem statutes will act on the title to the land itself, the action is considered to be in personam and transitory, and statutes like this section are inapplicable; thus, under this general rule such an action may be maintained in any jurisdiction where service on defendant can be obtained. Cobb v. National Lead Co., 215 F. Supp. 48 (E.D. Ark. 1963).

Courts of one state can render an in personam decree compelling specific performance of a contract relating to lands located in another state, and this rule would seem to apply a fortiori to suits for specific performance brought in one subdivision of a state with respect to property located in another subdivision where in personam relief only is sought. Cobb v. National Lead Co., 215 F. Supp. 48 (E.D. Ark. 1963).

Writ of Prohibition.

In a case in which respondents filed a lawsuit in White County, Arkansas, against the Arkansas Game and Fish Commission (AGFC), seeking an injunction enjoining the AGFC from leasing, conveying, encumbering, or otherwise transferring mineral rights to certain land, a writ of prohibition that was sought by the AGFC was not appropriate. Former § 16-60-101 (see now this section) and former § 16-60-103 (see now § 16-60-104) provided the circuit court with the authority to conclude that venue was proper in White County. Ark. Game & Fish Comm'n v. Mills, 371 Ark. 317, 265 S.W.3d 760 (2007).

Natural-gas compressor station operator was not entitled to a writ of prohibition barring property owners' suit from proceeding in the Faulkner County Circuit Court after that court denied the operator's motion to dismiss or transfer due to improper venue because the operator failed to demonstrate that Faulkner County was wholly without jurisdiction on the issue of venue (operator's principal place of business was located in Faulkner County) (case arose before the 2015 amendments to the venue statutes). DeSoto Gathering Co., LLC v. Ramsey, 2016 Ark. 22, 480 S.W.3d 144 (2016).

16-60-103. Actions brought where cause of action arose.

A civil action for the following causes shall be brought in the county where the cause, or some part of the cause, arose:

  1. A civil action for the recovery of a fine, penalty, or forfeiture imposed by a statute, except that when the violation of the statute for which the claim is made was committed on a watercourse or road that is the boundary of two (2) counties, the civil action may be brought in either county;
  2. A civil action against a public officer for an act done by him or her in virtue or under color of his or her office, or for a neglect of official duty; and
  3. A civil action upon the official bond of a public officer, except as provided in § 16-106-101.

History. Civil Code, § 85; C. & M. Dig., § 1165; Pope's Dig., § 1387; A.S.A. 1947, § 27-602; Acts 2015, No. 830, § 2.

Publisher's Notes. This section was formerly codified as § 16-60-102. Former § 16-60-103 has been amended and renumbered as § 16-60-104.

Amendments. The 2015 amendment substituted “civil action” for “action” throughout the section; substituted “violation of the statute” for “offense” in (1); deleted “and 16-106-104” at the end of (3); and made stylistic changes.

Case Notes

Applicability.

This section refers to an action for the benefit of the public and not to private actions against a wrongdoer. Chicago, R.I. & Pac. Ry. v. Miller, 103 Ark. 151, 146 S.W. 485 (1912).

Section 16-106-101(d) fixes the venue in actions against state officers, and is not changed by this section which fixes the venue in actions against other public officers except state officers, on the ground of “expressio unius est exclusio alterius,” as § 16-106-101(d) refers to actions against state officers, and this section refers to actions against public officers. Downey v. Toler, 214 Ark. 334, 216 S.W.2d 60 (1948).

Subdivision (1) applies only to penal actions instituted by the state for the benefit of the public and not to private actions against a wrongdoer violating § 4-75-201 et seq.Concrete, Inc. v. Arkhola Sand & Gravel Co., 228 Ark. 1016, 311 S.W.2d 770 (1958).

Action against Public Officer.

A suit against a sheriff, his deputies, and bondsmen for killing plaintiff's husband must be brought in the county where the cause of action arose. Edwards v. Jackson, 176 Ark. 107, 2 S.W.2d 44 (1928).

Alleged cause of action against county clerk for unlawfully issuing a marriage license in that county was improperly brought in another county. Ragan v. Cox, 208 Ark. 809, 187 S.W.2d 874, 1945 Ark. LEXIS 499 (1945).

An action against a town marshal, who was also a deputy sheriff, for damages for an alleged unjustifiable assault in the course of making an arrest is within the province of this section. Moncus v. Raines, 210 Ark. 30, 194 S.W.2d 1 (1946).

A court reporter is not a public officer and this section does not govern the jurisdiction of cause brought against him for an act done under color of office, or for neglect of official duty. Wirges v. Arrington, 239 Ark. 1047, 396 S.W.2d 292 (1965).

Action on Official Bond.

An action on a bond of a county treasurer could be maintained only in the county of which he was treasurer. State v. American Sur. Co., 187 Ark. 673, 62 S.W.2d 13 (1933).

Official Act.

The official act complained of must be official conduct resulting in or causing the injury. Williams v. Priddy, 188 Ark. 137, 64 S.W.2d 553 (1933).

16-60-104. Actions that shall be brought in Pulaski County.

The following civil actions shall be brought in Pulaski County:

    1. A civil action on behalf of the state, or which may be brought in the name of the state, or in which the state has or claims an interest, except as provided in § 16-106-101.
    2. However, if a civil action could otherwise be brought in another county or counties under the venue laws of this state, including without limitation this subchapter, then the civil action may be brought either in Pulaski County or the other county or counties;
    1. A civil action brought by a state board, state commissioner, or state officer in his or her official capacity, or on behalf of the state, except as provided in § 16-106-101.
    2. However, if a civil action could otherwise be brought in another county or counties under the venue laws of this state, including without limitation this subchapter, then the civil action may be brought either in Pulaski County or the other county or counties;
    1. A civil action against the state or a civil action against a state board, state commissioner, or state officer because of his or her or the state board's official acts.
    2. However, if a civil action could otherwise be brought in another county or counties under the venue laws of this state, including without limitation this subchapter, then the civil action may be brought either in Pulaski County or the other county or counties;
  1. A civil action brought against an organization that regulates extracurricular interscholastic activities in grades seven through twelve (7-12) in both public and private schools if the organization's main administrative office is located in Pulaski County; and
  2. Other civil actions required by law to be brought in Pulaski County.

History. Civil Code, § 90; Acts 1871, No. 48, § 1 [90], p. 219; A.S.A. 1947, § 27-603; Acts 2001, No. 806, § 1; 2003, No. 1185, § 190; 2011, No. 600, § 1; 2015, No. 830, § 2; 2017, No. 967, § 1.

Publisher's Notes. Acts 2001, No. 806, became law without the Governor's signature.

This section was formerly codified as § 16-60-103.

Amendments. The 2001 amendment inserted “except that if … county or counties; and” in (3).

The 2003 amendment, in (4), inserted “other,” substituted “required” for “now authorized” and deleted “the separate Court of Chancery of” preceding “Pulaski.”

The 2011 amendment added present (4) and redesignated former (4) as (5).

The 2015 amendment substituted “civil action” for “action” in the introductory language and in (2), (3), and (5); substituted “Pulaski County” for “the county in which the seat of government is situated” in the introductory language; redesignated former (3) as (3)(A) and (B); in (3)(B), substituted “However” for “except that” and “including without limitation” for “as provided in”; and made stylistic changes.

The 2017 amendment added (1)(B) and (2)(B); and made stylistic changes.

Case Notes

Actions Against Administrative Agency.

In a case in which respondents filed a lawsuit in White County, Arkansas, against the Arkansas Game and Fish Commission (AGFC), seeking an injunction enjoining the AGFC from leasing, conveying, encumbering, or otherwise transferring mineral rights to certain land, a writ of prohibition that was sought by the AGFC was not appropriate. Former § 16-60-101 (see now § 16-60-102) and former § 16-60-103 (see now this section) provided the circuit court with the authority to conclude that venue was proper in White County. Ark. Game & Fish Comm'n v. Mills, 371 Ark. 317, 265 S.W.3d 760 (2007).

Trial court erred in dismissing the property owners' action challenging the construction of a gas-well pad and access road for lack of venue where the owners had named the Arkansas Oil and Gas Commission as a defendant and asserted a constitutional due process claim, and thus the county in which the action was filed was an appropriate venue. Phifer v. Seeco, Inc., 2014 Ark. App. 211 (2014).

Actions Against State, Etc.

This section relates only to venue and not jurisdiction so that an action for a mandatory injunction to compel state commission to issue license to petitioner was maintainable in another county where improper venue was waived. Arkansas State Racing Comm'n v. Southland Racing Corp., 226 Ark. 995, 295 S.W.2d 617 (1956), superseded by statute as stated in, Ark. Game & Fish Comm'n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987).

Action for mandatory injunction was a common law cause of action wherein venue by statute was in Pulaski County until waived by defendant's entering his appearance by filing demurrer. Arkansas State Racing Comm'n v. Southland Racing Corp., 226 Ark. 995, 295 S.W.2d 617 (1956), superseded by statute as stated in, Ark. Game & Fish Comm'n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987).

Actions by State, Etc.

A foreign corporation authorized to do business in Arkansas is not recognized as having a local or county residence, and a suit brought in the name of the state against the corporation must be brought at the seat of government, which is in Pulaski County. Southwestern Bell Tel. Co. v. Roberts, 246 Ark. 864, 440 S.W.2d 208 (1969).

Other Legislation.

This section does not restrict the venue of a habeas corpus action which by § 16-112-102(a) is made coextensive with the state. State Dep't of Pub. Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975).

16-60-105. Actions for medical injury.

A civil action for medical injury brought under § 16-114-201 et seq. against a medical care provider, as defined in § 16-114-201, shall be filed in the county in which the alleged act or omission occurred.

History. Acts 2015, No. 830, § 2.

Case Notes

Construction.

Statutory provision concerning venue in civil actions for medical injury was constitutional under Ark. Const. Art. 4, § 2 and did not conflict with the rules of civil procedure because venue is a matter within the province of the General Assembly. Clark v. Johnson Reg'l Med. Ctr., 2010 Ark. 115, 362 S.W.3d 311 (2010) (decided under former § 16-55-213).

Improper Venue.

Dismissal of a medical malpractice claim against out-of-county service providers for lack of proper venue, under Ark. R. Civ. P. 12(b)(3), was proper where the patient received treatment from providers in two different counties and, under former similar provision, each provider had to be sued in the county where the services were provided. Clark v. Johnson Reg'l Med. Ctr., 2010 Ark. 115, 362 S.W.3d 311 (2010) (decided under former § 16-55-213).

16-60-106. Actions on debt, account, or note against certain public entities.

A civil action on a debt, account, or note, or for goods or services against a city of the first class, a city of the second class, an incorporated town, a public facilities board, or a county shall be brought in the county in which the city, town, public facilities board, or county lies.

History. Acts 2015, No. 830, § 2.

16-60-107. Contract actions by resident subcontractor, supplier, or materialman against nonresident prime contractor or subcontractor — Affidavit of contractor.

  1. A civil action in contract by a resident subcontractor, supplier, or materialman against a prime contractor or subcontractor who is a nonresident of this state or who is a foreign corporation may be brought in the county in which the plaintiff resided at the time the cause of action arose.
  2. When a judgment is recovered in a civil action in contract against a nonresident prime contractor or subcontractor, the prevailing party is entitled to an attorney's fee in the amount to which he or she is entitled by contract or, if an amount is not fixed, a reasonable compensation for the services rendered by the attorney on behalf of the prevailing party.
  3. The prevailing party in a civil action in contract is also entitled to recover costs and fees paid, as well as interest at the rate of ten percent (10%) on the balance due from the date the prime contractor received his or her final payment.
    1. A foreign corporation providing services in this state shall furnish, before receiving payment for its services, or in the case of installment payment, before receiving the last installment, a sworn affidavit to the person or entity employing the foreign corporation stating that all subcontractors have been paid in full.
    2. A person signing a sworn affidavit under subdivision (d)(1) of this section when in fact all subcontractors have not been paid in full upon conviction is guilty of a Class D felony.

History. Acts 1981, No. 922, §§ 1-4; 1983, No. 38, § 1; A.S.A. 1947, §§ 27-624 — 27-627; Acts 2015, No. 830, § 2.

Publisher's Notes. This section was formerly codified as § 16-60-114.

Amendments. The 2015 amendment substituted “A civil action in contract” for “Contract actions” in (a); substituted “civil action in contract” for “action” in (b); in (d)(2), substituted “a sworn affidavit under subdivision (d)(1) of this section” for “such a sworn affidavit” and “upon conviction is guilty” for “shall be deemed guilty”; and made stylistic changes.

16-60-108. Action by insured or beneficiary against surety on contractor's performance bond.

A civil action brought in this state by or in behalf of an insured or beneficiary against a domestic or foreign surety on a contractor's payment or performance bond may be brought in the county:

  1. In which the loss occurred;
  2. Of the insured's residence at the time of loss; or
  3. Of the beneficiary's residence at the time of loss.

History. 1983, No. 39, § 1; A.S.A. 1947, § 27-628; Acts 2005, No. 2258, § 1; 2015, No. 830, § 2.

Publisher's Notes. This section was formerly codified as § 16-60-115.

Amendments. The 2005 amendment substituted “payment or” for “payment of” in the introductory paragraph.

The 2015 amendment substituted “civil action” for “action.”

Cross References. Actions on bonds generally, § 16-107-101.

Case Notes

Improper Venue.

Subcontractor's suit against general contractor's surety, brought in Arkansas despite a forum selection clause in the subcontract naming Florida as the exclusive venue, was properly dismissed for improper venue under M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972), and neither public policy nor inconvenience warranted a different result on appeal. This section, which was permissive, trumped the general venue provision of the Arkansas Insurance Code fixing venue for any action against any type of insurer and did not constitute the kind of “strong public policy” sufficient to invalidate a forum selection clause under Bremen . Servewell Plumbing, LLC v. Fed. Ins. Co., 439 F.3d 786 (8th Cir. 2006).

16-60-109. Actions against a public school district.

A civil action, other than a civil action described in § 16-60-104 or a civil action for personal injury or death, against a public school district, a public school district board of directors, or a public school district's officer, agent, servant, or employee acting within the course and scope of his or her agency or employment shall be brought in the county or in the judicial district of the county in which the public school district is situated or has its principal office.

History. Acts 2013, No. 1315, § 2; 2015, No. 830, § 2.

Publisher's Notes. This section was formerly codified as § 16-60-119.

Amendments. The 2015 amendment substituted “civil action” for “action” twice and substituted “§ 16-60-104 or a civil action for personal injury or death” for “§ 16-60-103 or § 16-60-112.”

16-60-110 — 16-60-119. [Repealed.]

Publisher's Notes. As to repeal of these sections, see note at beginning of subchapter.

Subchapter 2 — Change of Venue

Cross References. Disqualification of judges, Ark. Const., Art. 7, § 20.

Justices of the peace, § 16-19-406.

Effective Dates. Acts 1875, No. 38, § 7: effective on passage.

Acts 1909, No. 192, § 2: effective on passage.

Acts 1909, No. 249, § 2: effective on passage.

Acts 2017, No. 967, § 4: Apr. 5, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the people of the State of Arkansas will benefit from immediate access to the most efficient venues for prosecution of litigation in which the state is a party. 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.”

Research References

ALR.

Change of venue justified by fact that large number of inhabitants of local jurisdiction have interest adverse to party to action. 10 A.L.R.4th 1046.

Venue change in action for malicious prosecution. 12 A.L.R.4th 1278.

Am. Jur. 18 Am. Jur. 2d, Contrib., § 39 et seq.

77 Am. Jur. 2d, Venue, § 50 et seq.

C.J.S. 92A C.J.S., Venue, § 145 et seq.

Case Notes

Applicability.

The sections set forth in this subchapter govern all proceedings for change in venue in civil cases. Arkansas State Hwy. Comm'n v. Heirs of Ring, 247 Ark. 170, 444 S.W.2d 705 (1969).

16-60-201. Motion — Notice.

    1. Any party to a civil action to be tried by a jury may obtain an order for a change of venue therein by motion upon a petition stating that he or she verily believes that he or she cannot obtain a fair and impartial trial in the action in the county in which the action is pending, on account of the undue influence of his or her adversary, or of the undue prejudice against the petitioner or his or her cause of action or defense in the county.
    2. The petition shall be signed by the party and verified as pleadings are required to be verified and shall be supported by the affidavits of at least two (2) credible persons to the effect that the affiants believe the statements of the petition are true.
    3. When a corporation files the petition, the petition shall be supported by the affidavits of two (2) credible persons, neither of whom is directly or indirectly connected with the corporation in any capacity whatever, and neither of whom has been promised, nor shall receive, within twelve (12) months next preceding the signing of the petition, any benefit or favor from the corporation different from those received by every other citizen of the state or which every citizen is entitled to receive as a matter of right.
  1. The motion shall be made before, and the order granted by, the judge of the circuit court of the county in which the action is pending in open court or in vacation. If the motion is made at any time or place except in open court, at the calling of the case, it shall be upon reasonable notice in writing to the adverse party or his or her attorney.
  2. The party may make his or her petition and the affidavit supporting the petition apply to one (1) county in addition to the one in which the action is pending.
  3. A change of venue shall not be granted in an action under § 16-60-104(1) or § 16-60-104(2).
    1. A defendant in a civil action under § 16-60-104(3) may obtain an order for a change of venue by motion requesting a transfer to one (1) of the following counties:
      1. Pulaski County;
      2. Any county in which one (1) of the plaintiffs, or in the case of a certified class action, any member of the class, resides, conducts business, or maintains a principal place of business; or
      3. If no plaintiff is a resident of Arkansas, any county in the state of Arkansas.
    2. The venue of the civil action shall be changed upon a showing that the proposed transferee county is a proper venue as set forth in this subsection.

History. Acts 1875, No. 38, §§ 1, 2, p. 114; 1909, No. 192, § 1, p. 570; C. & M. Dig., §§ 10339, 10340; Pope's Dig., §§ 14340, 14341; A.S.A. 1947, §§ 27-701, 27-702; Acts 2017, No. 967, § 2.

Amendments. The 2017 amendment added (d) and (e); and made stylistic changes.

Case Notes

Abuse of Discretion.

The action of the trial court in refusing to grant a change of venue will not be disturbed on appeal unless a clear abuse of discretion is shown. Van Camp v. State, 125 Ark. 532, 189 S.W. 173, 1916 Ark. LEXIS 202 (1916).

A trial court has the discretion to refuse a petition for a change of venue where the plaintiff alleges that he could not obtain a fair and impartial trial in the county, but does not allege any fact upon which his opinion was based. Pierce v. Sicard, 176 Ark. 511, 3 S.W.2d 337 (1928).

Denial of a change of venue in suit was not an abuse of discretion, though two-thirds of the county were interested. Desha v. Independence County Bridge Dist., 176 Ark. 253, 3 S.W.2d 969 (1928).

Fact that absence of affidavit in support of motion was not objected to at trial did not prevent Supreme Court from considering such absence in determining whether trial court abused its discretion in denying motion. Arkansas State Hwy. Comm'n v. Leavell, 246 Ark. 1049, 441 S.W.2d 99 (1969).

Refusal to grant motion for change of venue based on other than statutory grounds was not an abuse of discretion of trial court. Arkansas State Hwy. Comm'n v. Heirs of Ring, 247 Ark. 170, 444 S.W.2d 705 (1969).

Although defendant filed a verified motion for a change of venue, where motion was not supported by additional affidavits as required by this section there was not an abuse of discretion when the trial court refused the motion, even though other party failed to object to the sufficiency of the motion. Arkansas State Hwy. Comm'n v. Geeslin, 247 Ark. 537, 446 S.W.2d 245 (1969).

Appeal.

A case on appeal may be changed by complying with this section. Hurley v. Bevens, 57 Ark. 547, 22 S.W. 172 (1893).

Joinder.

All defendants must join in asking for a change of venue. Klein v. German Nat'l Bank, 69 Ark. 140, 61 S.W. 572 (1901).

Place of Transfer.

Venue of civil action may be changed to county outside the circuit. Palatin Ins. Co. v. Evans, 63 Ark. 241, 37 S.W. 1046 (1896).

Support of Petition.

On an application for a change of venue, in order for an affiant to qualify as a credible person, he must be cognizant of the prejudice existing throughout the entire county and it is not sufficient for him to show a knowledge of the popular sentiment in three or four localities of the county. Hedden v. State, 179 Ark. 1079, 20 S.W.2d 119 (1929).

No matter how credible one affiant may be, a petition for change of venue supported by the affidavit of only one person is properly overruled for noncompliance with this section requiring the affidavit of two credible persons. Arkansas State Hwy. Comm'n v. Duff, 246 Ark. 922, 440 S.W.2d 563 (1969).

The requirements of this section that a motion for change of venue be supported by two affidavits cannot be waived. Arkansas State Hwy. Comm'n v. Leavell, 246 Ark. 1049, 441 S.W.2d 99 (1969).

Where State Highway Commission failed to follow the mandatory procedure set out in this section in petitioning for change of venue in eminent domain case, motion for change of venue was properly denied. Arkansas State Hwy. Comm'n v. Coffman, 247 Ark. 302, 445 S.W.2d 92 (1969).

16-60-202. No change made unless found necessary.

Except as provided under § 16-60-201(e), the venue of civil actions shall not be changed unless the court or judge to whom the application for change of venue is made finds that the change of venue is necessary to obtain a fair and impartial trial of the cause.

History. Acts 1909, No. 249, § 1, p. 751; C. & M. Dig., § 10341; Pope's Dig., § 14342; A.S.A. 1947, § 27-704; Acts 2017, No. 967, § 3.

Amendments. The 2017 amendment added “Except as provided under § 16-60-201(e)”.

Case Notes

Abuse of Discretion.

The granting or denial of a change of venue lies largely in the discretion of a trial judge, and the Supreme Court will not reverse the trial court's denial of a change of venue unless there has been an abuse of its discretion. Arkansas State Hwy. Comm'n v. Duff, 246 Ark. 922, 440 S.W.2d 563 (1969).

Refusal to grant motion for change of venue based on other than statutory grounds was not an abuse of discretion of trial court. Arkansas State Hwy. Comm'n v. Heirs of Ring, 247 Ark. 170, 444 S.W.2d 705 (1969).

Paternity.

Change of venue in paternity suit falls under this section. Scott v. State, 173 Ark. 625, 292 S.W. 979 (1927).

Cited: Arkansas State Hwy. Comm'n v. Heirs of Ring, 247 Ark. 170, 444 S.W.2d 705 (1969).

16-60-203. Objection to petition — Order.

Upon presenting the petition, which may be resisted, and upon notice to the judge, the judge may make an order for the change of venue in the action, if in his or her judgment it is necessary for a fair and impartial trial, to a county to which there is no valid objection and which he or she concludes is most convenient to the parties and their witnesses.

History. Acts 1875, No. 38, § 3, p. 114; 1899, No. 116, § 1, p. 189; A.S.A. 1947, § 27-703.

Case Notes

Discretion of Court.

Exercise of discretion of trial court will not be interfered with. Louisiana & N.W. Ry. v. Smith, 74 Ark. 172, 85 S.W. 242 (1905).

16-60-204. Procedure when order granted — Transmission of papers — Fees.

  1. When the order for change of venue is obtained out of term time, the party obtaining the order shall cause the petition, notice, affidavit, and order to be delivered to the clerk of the court in which the action is pending, who shall file the order with the papers in the case.
    1. In all cases where an order for a change of venue is granted, the clerk shall make and file with the papers a certified copy of all the orders in the case and, upon the payment of the transmission fees provided for in this section, shall transmit the papers in the case to the clerk of the court to which the venue is changed by any safe and convenient mode which he or she may select.
    2. The clerk shall be responsible for the transmission of the papers, for which he or she shall receive ten cents (10¢) per mile to and from the clerk's office, to be paid by the party obtaining the order, and to be taxed in the costs.
    1. If the above-mentioned fee is not paid or arranged with the clerk within fifteen (15) days from the granting of the order, the order shall be null and void.
    2. The judge granting the order may extend the time of making such payment, which shall be stated in the order.
    3. The adverse party, if he or she chooses, may make such payment.

History. Acts 1875, No. 38, §§ 4, 5, p. 114; C. & M. Dig., §§ 10342, 10343; Pope's Dig., §§ 14343, 14344; A.S.A. 1947, §§ 27-705, 27-706.

Case Notes

Order.

An order varying from the petition as to the grounds for the change of venue is amendable. Hurley v. Bevens, 57 Ark. 547, 22 S.W. 172 (1893).

Prepayment.

A court to which the venue is changed acquires jurisdiction upon the filing of the transcript when the clerk waived the prepayment of his fees. Fritz Bros. v. Wells, 83 Ark. 124, 103 S.W. 168 (1907).

Presumption.

On appeal, where the record shows that an order for a change of venue was made and that thereafter the parties voluntarily submitted to trial in the court in which the action was brought, it will be presumed the order became inoperative under this section. Duncan v. Tufts, 52 Ark. 404, 12 S.W. 873 (1889).

16-60-205. Number of changes limited.

Only one (1) order for a change of venue shall be granted to the same party in the same action.

History. Acts 1875, No. 38, § 5, p. 114; C. & M. Dig., § 10343; Pope's Dig., § 14344; A.S.A. 1947, § 27-706.

16-60-206. Time for trial after change.

In all cases of change of venue, the action shall stand for trial in the court to which the change is made at the first term of the court which commences more than ten (10) days from the filing of the papers of the case in the office of the clerk of such court.

History. Acts 1875, No. 38, § 6, p. 114; C. & M. Dig., § 10344; Pope's Dig., § 14345; A.S.A. 1947, § 27-707.

16-60-207. Domestic relations.

The venue of domestic relations cases in this state may be transferred between judicial districts in which either party resides, when agreed to by the parties to the action and the judges involved.

History. Acts 1975, No. 371, § 1; A.S.A. 1947, § 27-708; Acts 2003, No. 1185, § 191.

Amendments. The 2003 amendment substituted “judicial districts” for “chancery circuits” and “judges” for “chancellors of the circuits.”

Chapter 61 Parties

Subchapter 1 — General Provisions

Publisher's Notes. Some provisions of this subchapter may be superseded by the Arkansas Rules of Civil Procedure pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Cross References. Parties to actions, ARCP 17.

Effective Dates. Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1875 (Adj. Sess.), No. 32, § 2: effective on passage.

Research References

ALR.

Standing of civic or property owners' association to challenge zoning board decision (as aggrieved party). 8 A.L.R.4th 1087.

Descendability or inheritability of right to contest will. 11 A.L.R.4th 907.

Standing of foster parent to seek termination of rights of foster child's natural parents. 21 A.L.R.4th 535.

Right of insurer to intervene in action by insured against uninsured motorist. 35 A.L.R.4th 757.

Right of insurer to intervene in workers' compensation proceeding. 38 A.L.R.4th 355.

Assignability of claim for legal malpractice. 40 A.L.R.4th 684.

No-fault insurer as defendant where insured automobile owner or operator is not liable for economic losses under no-fault insurance law. 40 A.L.R.4th 858.

Am. Jur. 59 Am. Jur. 2d, Parties, § 1 et seq.

16-61-101. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning the designation of parties, was repealed by Acts 2013, No. 1148, § 23[24]. The section was derived from Civil Code, § 2; C. & M. Dig., § 1032; Pope's Dig., § 1234; A.S.A. 1947, § 27-203.

16-61-102. Married persons.

  1. If a husband and wife are sued together, the wife may defend:
    1. For her own right; and
    2. If the husband neglects to defend, for his right also.
  2. Where a husband, being a father, has deserted his family, the wife, being a mother, may prosecute or defend in his name any action which he might have prosecuted or defended and shall have the same powers and rights therein as he might have had.

History. Civil Code, §§ 43, 44; C. & M. Dig., §§ 1108, 1109; Pope's Dig., §§ 1324, 1325; A.S.A. 1947, §§ 27-821, 27-822.

Case Notes

Recovery of Land.

Wife could sue for recovery of land in name of absent husband where evidence showed that husband abandoned wife and children. Edge v. Buschow Lumber Co., 218 Ark. 903, 239 S.W.2d 597 (1951).

Removal.

The right of a married woman to sue for personal injuries in her own name is not lost by the defendant's removal of the cause of action to a federal court. Texas & Pac. Ry. v. Humble, 181 U.S. 57, 21 S. Ct. 526, 45 L. Ed. 747 (1901).

Torts.

The husband is responsible for the wife's torts committed during coverture. Such torts may be committed under the following circumstances: (1) where the husband is absent and had no knowledge of the intended act; (2) where the husband is absent but the tort is done under his direction; (3) where the husband was present, but the wife acted on her own volition; and (4) where the tort is committed in the company of the husband and by his command or encouragement. In the first three cases they are jointly liable and the wife must be joined as she is in reality the offending party. In the last situation the husband alone is the offending party. Kosminsky v. Goldberg, 44 Ark. 401 (1884).

Witnesses.

In an action by a husband and wife to recover damages for personal injuries to each of them, although neither is a competent witness for or against the other, either is competent to testify in his or her own behalf. Saint Louis, I.M. & S. Ry. v. Amos, 54 Ark. 159, 15 S.W. 362 (1891).

16-61-103 — 16-61-106. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning actions against infants and insane persons, were repealed by Acts 2013, No. 1148, §§ 24[25]–27[28]. The sections were derived from:

16-61-103. Civil Code, §§ 46, 47; C. & M. Dig. §§ 1111, 1112; Pope's Dig., §§ 1327, 1328; A.S.A. 1947, §§ 27-823, 27-824.

16-61-104. Civil Code, §§ 48, 50; Acts 1871, No. 48, § 1 [50], p. 219; C. & M. Dig., §§ 1113, 1115; Pope's Dig., §§ 1329, 1331; A.S.A. 1947, §§ 27-825, 27-827.

16-61-105. Civil Code, §§ 51, 52; C. & M. Dig., §§ 1116, 1117; Pope's Dig., §§ 1332, 1333; A.S.A. 1947, §§ 27-828, 27-829.

16-61-106. Civil Code, §§ 53, 54; C. & M. Dig., §§ 1118, 1119; Pope's Dig., §§ 1334, 1335; A.S.A. 1947, §§ 27-830, 27-831.

16-61-107. Insanity during pendency of action — Guardian joined.

Where a party is judicially found to be of unsound mind during the pendency of an action, the fact being stated on the record:

  1. If he or she is the plaintiff, his or her guardian may be joined with him or her in the action as such;
  2. If he or she is the defendant, the plaintiff may, upon ten (10) days' notice thereof to his or her guardian, have an order making the guardian a defendant also.

History. Civil Code, § 55; C. & M. Dig., § 1120; Pope's Dig., § 1336; A.S.A. 1947, § 27-832.

Case Notes

Proper Party.

Because plaintiff individual was not the proper party to pursue the tort claims against defendants due to her incompetency, and she did not move to substitute the proper party after being put on notice of the need for substitution, the district court did not err in dismissing the claims. Kuelbs v. Hill, 615 F.3d 1037 (8th Cir. 2010), cert. denied, 562 U.S. 1287, 131 S. Ct. 1679, 179 L. Ed. 2d 616 (2011).

16-61-108. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning guardian ad litem appointments and disqualification of certain parties and attorneys for infants or insane persons, was repealed by Acts 2013, No. 1148, § 28[29]. The section was derived from Civil Code, § 49; C. & M. Dig., § 1114; Pope's Dig., § 1330; A.S.A. 1947, § 27-826.

16-61-109. Fees of guardian or attorney appointed to defend infant, insane person, or prisoner — Costs.

A guardian or attorney appointed on the application of the plaintiff to defend for an infant, person of unsound mind, or prisoner shall be allowed a reasonable fee for his or her services, to be paid by the plaintiff and taxed in the costs.

History. Civil Code, § 57; C. & M. Dig., § 1122; Pope's Dig., § 1338; A.S.A. 1947, § 27-834.

Case Notes

In General.

Finding against appellants in an action concerning property transfers was proper where it was determined that the circuit court was exercising its equitable power when it ordered that fees be taxed as costs against them. Middleton v. Lockhart, 364 Ark. 32, 216 S.W.3d 98 (2005).

Cited: Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001).

16-61-110. Foreign executors, administrators, and guardians.

Administrators, executors, and guardians appointed in any of the states, territories, or districts of the United States, under the laws thereof, may sue in any of the courts of this state, in their representative capacity, to the same and like effect as if the administrators, executors, and guardians had been qualified under the laws of this state. However, the administrators, executors, or guardians shall be required, before they shall institute a suit or proceeding, to execute the same bond as is required of other nonresidents by the laws of this state.

History. Acts 1843, § 1, p. 105; C. & M. Dig., § 1093; Pope's Dig., § 1309; A.S.A. 1947, § 27-805.

Case Notes

Applicability.

A foreign administratrix may sue in this state. Saint Louis, I.M. & S. Ry. v. Cleere, 76 Ark. 377, 88 S.W. 995 (1905).

This section does not mention curators. Kindrick v. Capps, 196 Ark. 1169, 121 S.W.2d 515 (1938).

Ancillary Letters.

A foreign administrator had recovered a judgment in an action brought by him in his representative capacity in the jurisdiction of his appointment. It was held that he may sue upon the judgment in his own name without taking out ancillary letters. McCraw v. Simpson, 208 Ark. 471, 187 S.W.2d 536 (1945).

Appointment.

Son, a foreign administrator of his mother's estate, was subject to the requirements for domiciliary personal representatives found in §§ 28-48-101 through 28-48-109, pursuant to this section. Because the son had not been appointed administrator of his mother's estate in any state at the time he filed his original complaint for trespass and conversion of timber, he did not have standing to sue; because the complaint was a nullity, a second complaint could not relate back under Ark. R. Civ. P. 15(c). Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239 (2009).

Jurisdiction.

A domiciliary administratrix of a deceased's out-of-state estate voluntarily entered her appearance in an interpleader proceeding in Arkansas claiming a fund involved in an action in a federal court in the other state. It was held that the Arkansas chancery court had jurisdiction. McCraw v. Simpson, 208 Ark. 471, 187 S.W.2d 536 (1945).

Substitution.

An administrator appointed at the deceased's domicile in another state cannot sue for a debt due his intestate in this state after the appointment of an administrator here. Gibson v. Ponder, 40 Ark. 195 (1882).

Where a suit is brought by an infant by her foreign guardian, it was not error to permit her to substitute a resident as her next friend. Saint Louis, I.M. & S. Ry. v. Haist, 71 Ark. 258, 72 S.W. 893 (1903), overruled, Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992).

Cited: Tipler v. Crafton, 202 Ark. 351, 150 S.W.2d 625 (1941); Redditt v. Hale, 184 F.2d 443 (8th Cir. 1950).

16-61-111. Joint and several obligors.

  1. Joint obligations shall be construed to have the same effect as joint and several obligations, and may be sued on, and recoveries had thereon in like manner.
  2. Persons severally liable upon the same contract, including parties to bills of exchange, promissory notes placed upon the footing of bills of exchange, common orders and checks, and sureties on the same or separate instruments, may all, or any of them, or the representatives of those persons who may have died, be included in the same action, at the plaintiff's option.
    1. Where two (2) or more persons are jointly bound by contract, the action thereon may be brought against all or any of them, at the plaintiff's option.
    2. Where any of the persons so bound are dead, the action may be brought against any or all of the survivors, with the representatives of all or any of the decedents, or against the latter, or any of them.
    3. Where all the persons so bound are dead, the action may be brought against the representatives of all or of any of them.
    4. An action or judgment against any one (1) or more of several persons jointly bound shall not be a bar to proceedings against the other.
  3. No creditor on any joint, or joint and several, obligation shall have more than one (1) satisfaction and costs in one (1) suit.

History. Rev. Stat., ch. 82, §§ 3, 5; Civil Code, §§ 34, 35; C. & M. Dig., §§ 1099, 1100, 6229, 6231; Pope's Dig., §§ 1282, 1284, 1315, 1316; A.S.A. 1947, §§ 27-810 — 27-813.

Research References

Ark. L. Notes.

Matthews, Procedural Considerations in Bringing Suit Against a General Partnership in Arkansas, 1989 Ark. L. Notes 57.

Case Notes

Costs.

Where separate suits are brought against two parties liable on a joint contract and judgment for costs recovered against one of them which is satisfied, the costs of the other suit should be charged against the plaintiff; but where there has been no satisfaction of the first judgment, the plaintiff should have judgment for costs against the other promissor. Kissire v. Plunkett-Jarrell Grocer Co., 103 Ark. 473, 145 S.W. 567 (1912).

Effect.

Where a bill is signed by a firm and by firm members individually, one is liable for the full amount of the note although no service is had upon the other. Lamew v. Wilson-Ward Co., 106 Ark. 340, 153 S.W. 261 (1913).

Fact that judgment was had against principal only on retaining bond did not prevent a subsequent judgment from being rendered against the surety. Craig v. Collier, 155 Ark. 538, 244 S.W. 717 (1922).

The owners of less than the entire reversion could sue to enforce the forfeiture of an oil and gas lease for breach of an implied covenant to develop since in this state the covenants of the lessee are divisible in that each assignee must develop his portion. Alphin v. Gulf Ref. Co., 39 F. Supp. 570 (W.D. Ark. 1941).

Accommodation maker is not entitled to judgment against comakers in suit on note by payee against all makers until he has paid judgment obtained by payee. Haley v. Brewer, 220 Ark. 511, 248 S.W.2d 890 (1952).

Where defendant signed certain promissory notes both as officer of corporation and in his own name, he could not show by parol evidence that he was not to be bound by such notes. Larcon Co. v. Wallingsford, 136 F. Supp. 602 (W.D. Ark. 1955), aff'd, 237 F.2d 904 (8th Cir. Ark. 1956).

Liability.

In a suit on a joint and several contract, the plaintiff may sue all or any of the co-contractors. Deloach v. Dixon, 1840 U.S. App. LEXIS 448 (C.C.D. Ark. 1840); Johnson v. Byrd, 13 F. Cas. 735 (C.C.D. Ark. 1841).

Payee of a note may sue one or more of the payors at his election. Bradford, Rainwater & Co. v. Toney, 30 Ark. 763 (1875).

The surviving maker of a promissory note, who is the administrator of his deceased coobligor, may be sued on the note in both his individual and representative capacity, at the same time. W.J. Little Grocer Co. v. Johnson, 50 Ark. 62, 6 S.W. 231 (1887).

Survival.

Joint obligations are taken as joint and several, and survive. Maledon v. Leflore, 62 Ark. 387, 35 S.W. 1102 (1896).

Where statute provided that officer depositing public funds should be liable therefor together with the sureties on his official bond and the bank and its stockholders a recovery could be had against all of them or against any of them. Warren v. Nix, 97 Ark. 374, 135 S.W. 896 (1911).

Where person purchased certain goods from plaintiff and the defendants agreed to pay whatever balance shown to be due to the plaintiff, it was held that the plaintiff, could sue both the person and the defendants in the same action. Fluhart v. W.T. Rawleigh Co., 126 Ark. 307, 190 S.W. 118 (1916).

Both the drawer and acceptor of a draft are severally liable to the payee, and he may pursue both either jointly or severally, though only one satisfaction may be had. Ohio Galvanizing & Mfg. Co. v. Nichol, 170 Ark. 16, 279 S.W. 377 (1926).

Where suit is brought against contractors and sureties on a construction bond, the fact that case was dismissed as to sureties for want of jurisdiction did not require dismissal as to contractors, who were liable in any event where they bought material and failed to pay for it. Hot Springs Concrete Co. v. Rosamond, 178 Ark. 194, 10 S.W.2d 12 (1928).

In a joint action against an insolvent county depository and its nonresident surety, there was no separable controversy entitling the surety to a removal. Consolidated Indem. & Ins. Co. v. State ex rel. Craighead County, 184 Ark. 581, 43 S.W.2d 240 (1931).

It was not improper to join insolvent bank and its surety in suit on depository bond. Consolidated Indem. & Ins. Co. v. State ex rel. Craighead County, 184 Ark. 581, 43 S.W.2d 240 (1931).

A defendant cannot bring in another party defendant unless he files a cross complaint against the party and states facts showing that the cause of action against the third party affects the subject of the original action. Meyers Store Co. v. Armstrong, 187 Ark. 636, 61 S.W.2d 440 (1933).

In a lessee's suit for breach of lease in which the evidence was conflicting as to whether one lessor authorized a material alteration of the lease, purporting to be the agent of all the lessors, an instruction that the lessors were not liable unless all the lessors authorized the alteration was erroneous. Darling Shops, Inc. v. Brack, 95 F.2d 135 (8th Cir. 1938).

Note executed by partnership is the joint obligation of the partners and holder had the right to sue either the surviving partner or the administratrix of the estate of the deceased partner or both. Nakdimen v. Bruton, 196 Ark. 1179, 112 S.W.2d 974 (1938).

Surviving partner sued as maker of partnership note had the right, by appropriate pleadings, to have the comaker, or his administratrix, made a party defendant, but he could not compel the plaintiff to sue the other party or to have process issued bringing the administratrix into the suit. Nakdimen v. Bruton, 196 Ark. 1179, 112 S.W.2d 974 (1938).

Accommodation maker is not entitled to judgment against comakers in suit on note by payee against all makers until he has paid judgment obtained by payee. Haley v. Brewer, 220 Ark. 511, 248 S.W.2d 890 (1952).

Subsection (b) relates to the parties which may be joined in an action and does not relate to venue which must still be obtained by proper service under venue statutes. Barr v. Cockrill, 224 Ark. 570, 275 S.W.2d 6 (1955).

Where defendant signed certain promissory notes both as officer of corporation and in his own name, he could not show by parol evidence that he was not to be bound by the notes. Larcon Co. v. Wallingsford, 136 F. Supp. 602 (W.D. Ark. 1955), aff'd, 237 F.2d 904 (8th Cir. Ark. 1956).

16-61-112. Assignments.

  1. When the assignment is not authorized by statute, the assignor must be a party as plaintiff or defendant.
  2. Where the right of the plaintiff is transferred or assigned during the pendency of the action, it may be continued in his or her name, or the court may allow the person to whom the transfer or assignment is made to be substituted in the action, proper orders being made as to security for the costs.

History. Civil Code, §§ 26, 27; Acts 1873, No. 88, § 1 [26], p. 213; C. & M. Dig., §§ 1090, 1091; Pope's Dig., §§ 1306, 1307; A.S.A. 1947, §§ 27-802, 27-803.

Case Notes

In General.

It is only when the assignment of a thing in action is not authorized by statute that the assignor is required to be made a party. Collier v. Trice, 79 Ark. 414, 96 S.W. 174 (1906).

Administrative Actions.

While assignor would have been a necessary party in a suit for damages in circuit court, the assignee's action involved a complaint before the Real Estate Commission, which is governed by the rules of the Arkansas Administrative Procedures Act. Eckels v. Ark. Real Estate Comm'n, 30 Ark. App. 69, 783 S.W.2d 864 (1990).

Bills of Lading.

While bills of lading with the words “nonnegotiable” printed across their face are not negotiable in the sense of the law merchant, they represent the property shipped; when assigned and delivered with intent to pass the title to the property, it is not necessary for the assignee, in a suit based upon them, to join his assignor as plaintiff. Dewberry-Hargett Co. v. Arkansas State Bank, 164 Ark. 223, 261 S.W. 301 (1924).

In an action by carrier against the shipper of goods under a through bill of lading to recover freight charges, refusal to grant the shipper's request to make the initial carrier a party in order that he might offset a claim for damages against the amount plaintiff paid the initial carrier for freight charges was not error, where, though the bill of lading was assignable, it was not assigned to plaintiff. Price v. New York, C. & S. L. R. Co., 175 Ark. 688, 300 S.W. 373 (1927).

Bonds.

Assignee of claim growing out of breach of supersedeas bond may sue in his own name. Love v. Cahn, 93 Ark. 215, 124 S.W. 259 (1909).

Control of Action.

The assignee has the right to control the action. Boqua v. Marshall, 88 Ark. 373, 114 S.W. 714 (1908).

Insurance.

Insured in automobile damage policy was necessary party to suit against person causing damage, brought by insurer which alleged its subrogation to insured's rights by assignment. American Fid. Fire Ins. Co. v. Stewart, 165 F. Supp. 34 (W.D. Ark. 1958); Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S.W.2d 491 (1951).

Judgments.

The assignee of a judgment is entitled to defend an appeal therefrom by the other party, as against the claim to the right by the assignor's administratrix. Mutual Benefit Health & Accident Ass'n v. Hunnicutt, 181 Ark. 694, 27 S.W.2d 93 (1930).

Negotiable Instruments.

Real owner of note may sue in his own name though he holds by delivery merely. Webster v. Carter, 99 Ark. 458, 138 S.W. 1006 (1911).

Where a bank made collections for another bank and sent drafts therefor which were not paid because the collecting bank went into the hands of the state bank commissioner, the other bank may maintain an action against the bank commissioner to have its claim allowed as a preferred claim. Rainwater v. Federal Reserve Bank, 172 Ark. 631, 290 S.W. 69 (1927).

Where person had become assignee of a note sued on, he was the real party in interest and on motion should have been substituted as sole plaintiff. Higginbotham v. Ritter, 200 Ark. 376, 139 S.W.2d 27 (1940).

Nonnegotiable Bill.

Where person assigned nonnegotiable bill to plaintiff, without endorsement, it was held that the plaintiff could maintain an action against the maker of the bill without making the assignor a party plaintiff. Morgan v. Center, 133 Ark. 247, 202 S.W. 235 (1918).

Open Account.

An open account is not assignable, and a party to whom it is transferred cannot sue upon it alone, but must join his assignor as a party. Goode v. Aetna Cas. & Sur. Co., 178 Ark. 451, 13 S.W.2d 6 (1928).

Out-of-State Laws.

The assignment of claims against a corporation for the purpose of collection merely, if valid in the state where made, will entitle the assignee to bring an action thereon in his own name in this state. Lanigan v. North, 69 Ark. 62, 63 S.W. 62 (1901).

Pendency of Action.

Fact that plaintiff's title and interest in note sued on has been transferred since commencement of action is no defense at law to the action. Ivey v. Drake, 36 Ark. 228 (1880).

Where the right of a party to suit to share in fund in litigation defended upon verbal contract, the assignment of his interest to another authorized the latter to control the litigation. Boqua v. Marshall, 88 Ark. 373, 114 S.W. 714 (1908).

Where right of plaintiff in action is transferred during the pendency of the action, the assignee is not a necessary party and suit may be continued in name of assignor. Tribue v. Broaddus, 106 Ark. 418, 153 S.W. 611 (1913).

Advancement by the manager to an abstract company of the price of making an abstract of title for the defendant constituted an assignment of the company's right of action to the manager and the action may be continued in the name of the company. Benson v. Arkansas Abstract Co., 123 Ark. 620, 185 S.W. 1089 (1916).

Where plaintiffs in a suit to quiet their title to certain lands sold the lands, it is proper to make their grantees parties plaintiff. Hurst v. Munson, 152 Ark. 313, 238 S.W. 42 (1922).

The assignee of county warrants issued for the construction of a bridge may appeal from an order of the county court cancelling the warrants and refusing to reissue the same. Woodruff County v. Road Improv. Dist., 159 Ark. 374, 252 S.W. 930 (1923).

Assignment by defendant contractor of his contract to surety company during pendency of action entitles plaintiffs to proceed against assignees. Southern Sur. Co. v. Phillips, 181 Ark. 14, 24 S.W.2d 870 (1930).

An assignment can be made during the pendency of an action on a note. Higginbotham v. Ritter, 200 Ark. 376, 139 S.W.2d 27 (1940).

Statute of Limitations.

In the action by the assignee of a cause of action not made assignable by statute, the assignor is a necessary party plaintiff, and where no offer is made to make him a party until the statute of limitation has expired, the action is barred. Temple Cotton Oil Co. v. Davis, 167 Ark. 448, 268 S.W. 38 (1925).

Sureties.

Surety of contractor who completes contract may sue thereon. Chapman & Dewey Land Co. v. Wilson, 91 Ark. 30, 120 S.W. 391 (1909).

Tort Claims.

Tort claims are not made assignable by statute, and an assignee maintaining action on such claims must join his assignors. Young v. Garrett, 149 F.2d 223 (8th Cir. 1945).

Cited: Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996).

16-61-113 — 16-61-115. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning interpleader, were repealed by Acts 2013, No. 1148, §§ 29[30]–31[32]. The sections were derived from:

16-61-113. Civil Code, § 37; C. & M. Dig., § 1102; Pope's Dig., § 1318; A.S.A. 1947, § 27-815.

16-61-114. Civil Code, § 38; Acts 1875 (Adj. Sess.), No. 32, § 1, p. 36; C. & M. Dig., §§ 1103, 1104; Pope's Dig., §§ 1319, 1320; A.S.A. 1947, §§ 27-817, 27-818.

16-61-115. Civil Code, §§ 39, 40; C. & M. Dig., §§ 1105, 1106; Pope's Dig., §§ 1321, 1322; A.S.A. 1947, §§ 27-819, 27-820.

Subchapter 2 — Uniform Contribution Among Tortfeasors Act

A.C.R.C. Notes. The amendments to this subchapter by Acts 2013, No. 1116, were not official amendments to the Uniform Contribution Among Tortfeasors Act promulgated by the National Conference of Commissioners on Uniform State Laws. As a result, this subchapter substantially deviates from the official version of the Uniform Contribution Among Tortfeasors Act.

Publisher's Notes. Although this act was revised in 1955, Arkansas has retained the 1939 version.

For Comments regarding the Uniform Contribution Among Tortfeasors Act, see Commentaries Volume B.

Effective Dates. Acts 2013, No. 1116, § 8: Aug. 16, 2013. Effective date clause provided: “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.”

Research References

ALR.

Release of, or covenant not to sue, one primarily liable for tort, but expressly reserving rights against one secondarily liable, as bar to recovery against latter. 24 A.L.R.4th 547.

Contribution from joint tortfeasor who is spouse or otherwise in close familial relationship to injured party. 25 A.L.R.4th 1120.

Ark. L. Rev.

Workmen's Compensation — Contribution and Indemnity — Employer's Liability to Third Party Tortfeasor, 8 Ark. L. Rev. 512.

Comparative Negligence, 9 Ark. L. Rev. 357.

Panel on Settlement Procedures, 11 Ark. L. Rev. 54.

Comparative Negligence in Arkansas: A “Before and After” Survey, 13 Ark. L. Rev. 89.

Family Torts in Automobile Cases, 13 Ark. L. Rev. 299.

Conflict of Laws — Effect of Judgment on Liability of Joint-Tortfeasors, 14 Ark. L. Rev. 343.

Arkansas Model Jury Instructions: Introductory and Closing Instructions, Use of General Verdict and Interrogatories, Negligence, Proximate Cause, Owners and Occupiers of Land, Common Carriers, Railroads, and Comparative Negligence, 20 Ark. L. Rev. 66.

Note, Mary Carter in Arkansas: Settlements, Secret Agreements, and Some Serious Problems, 36 Ark. L. Rev. 570.

Woods, Some Observations on Contributions and Indemnity, 38 Ark. L. Rev. 44.

Note, McDermott, Inc. v. AmClyde: Arkansas's Wake-Up Call in Accounting for Settlements in Multi-Defendant Litigation?, 48 Ark. L. Rev. 1027.

U. Ark. Little Rock L.J.

Arkansas Law Survey, Bradley, Civil Procedure, 8 U. Ark. Little Rock L.J. 107.

Case Notes

In General.

Arkansas was the first state to adopt the optional version of the Uniform Contribution Among Tortfeasors Act, thus early opting for proportionate assessment of fault between joint tortfeasors. Elk Corp. of Ark. v. Builders Transport, Inc., 862 F.2d 663 (8th Cir. 1988).

Construction.

Interpretation given this subchapter by the National Conference of Commissioners on uniform state laws is not necessarily binding on the Supreme Court, but it should be adopted unless erroneous or contrary to the settled policy of the state as declared in the opinions of the Supreme Court. Shultz v. Young, 205 Ark. 533, 169 S.W.2d 648 (1943)Criticized byWoodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (Ark. 1971).

Purpose.

One of the primary purposes of this subchapter is to prevent a multiplicity of suits. Kapp v. Bob Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962).

Applicability.

This subchapter applies to joint tortfeasors who are also joint adventurers. United States Fire Ins. Co. v. State Farm Fire & Cas. Co., 246 Ark. 1269, 441 S.W.2d 787 (1969).

This subchapter is inapplicable where there has been a judgement and satisfaction based on a purely derivative theory. Barnett v. Isabell, 282 Ark. 88, 666 S.W.2d 393 (1984).

Discretion of Court.

Invoking of remedy afforded by this act is discretionary with the trial court. Kapp v. Bob Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962).

Individual Liability.

Individual liability of joint tortfeasors to the injured party is unaffected by this subchapter. One defendant may proceed against others liable to the injured party for his pro rata share, but this does not affect the right of the injured party to recover from the joint tortfeasors individually or collectively. Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960), overruled, United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (Ark. 1998)Questioned byMissouri Pac. R.R. v. Arkansas Sheriff's Boys' Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983), overruled in part, Life & Casualty Ins. Co. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (Ark. 1966)Questioned byBreeding v. Massey, 378 F.2d 171 (8th Cir. Ark. 1967).

Service of Process.

In suit under this law, service on nonresident motorist could be obtained under the provisions of § 16-58-121(a). Burnett v. Agent, 227 Ark. 1050, 303 S.W.2d 575 (1957).

Workers' Compensation.

Where an action involves both this subchapter and the Workers' Compensation Act, it is in the interest of public policy and in keeping with the intent of the General Assembly to give the compensation act priority as an exclusive remedy. Therefore, in matters involving worker's compensation benefits the employer shall be immune from third party tortfeasors claim. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), superseded by statute as stated in, Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Cited: McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138 (1951); Citizens Coach Co. v. Wright, 228 Ark. 1143, 313 S.W.2d 94 (1958); Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W.2d 174 (1962); Safeway Stores, Inc. v. Shwayder Bros., 238 Ark. 768, 384 S.W.2d 473 (1964); Wheaton Van Lines, Inc. v. Williams, 240 Ark. 280, 399 S.W.2d 258 (1966); Morison v. GMC, 428 F.2d 952 (8th Cir. 1970); International Harvester Co. v. Burks Motors, Inc., 252 Ark. 816, 481 S.W.2d 351 (1972); Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976); Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977); Martin v. United States, 448 F. Supp. 855 (E.D. Ark. 1977); Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981); Douglas v. United States Tobacco Co., 670 F.2d 791 (8th Cir. 1982); Missouri P. R. Co. v. Champlin & Wells, Inc., 600 F. Supp. 182 (E.D. Ark. 1985); Missouri P. R. Co. v. Champlin & Wells, Inc., 775 F.2d 255 (8th Cir. Ark. 1985); Martin Farm Enters., Inc. v. Hayes, 320 Ark. 205, 895 S.W.2d 535 (1995).

16-61-201. Definitions.

As used in this subchapter:

  1. “Joint tortfeasor” means two (2) or more persons or entities who may have joint liability or several liability in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them; and
  2. “Several liability” means that each person or entity is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault.

History. Acts 1941, No. 315, § 1; A.S.A. 1947, § 34-1001; Acts 2013, No. 1116, § 2.

A.C.R.C. Notes. Acts 2013, No. 1116, § 1, provided: “Legislative intent. It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this act apply with equal force after the modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to join tortfeasors by this act, including allocation of fault and credits for settlements entered into by other joint tortfeasors, shall be denied to joint tortfeasors.”

Amendments. The 2013 amendment rewrote the section and the section heading.

Effective Dates. Acts 2013, No. 1116, § 8: Aug. 16, 2013. Effective date clause provided: “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.”

Research References

U. Ark. Little Rock L.J.

Notes, Tort Law — General Release Forms — The Free Ride for Joint Tortfeasors Is Over, 12 U. Ark. Little Rock L.J. 791.

Case Notes

Appeal.

Where only one of two joint tortfeasors appealed from a judgment against them and obtained a reversal, the jury on the second trial was not limited in its judgment against the tortfeasor to the amount of the judgment in the first trial against the tortfeasor who did not appeal, but plaintiff's first satisfaction must be credited to any subsequent satisfaction he seeks. Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (Ark. 1971).

Common Liability.

It is not necessary that the parties act in concert in order to be liable as joint tortfeasors. Applegate v. Riggall, 229 Ark. 773, 318 S.W.2d 596 (1958).

In view of this section it is clear that before there can be any contribution it must appear that at least originally the person seeking contribution and the person from whom contribution is sought must have been under a common legal liability to the injured party. Cox v. Maddux, 255 F. Supp. 517 (E.D. Ark. 1966), rev'd, 382 F.2d 119 (8th Cir. 1967).

Defendant's argument was flawed where action was for breach of contract since subchapter applies only to persons liable for torts, and defendant did not show that person seeking contribution and person from whom contribution was sought were under a common legal liability to injured party. Roberts & Co. v. Sergio, 22 Ark. App. 58, 733 S.W.2d 420 (1987).

Even if the parties' tortious acts are temporally separate, if they caused the same injury or loss, the parties are jointly liable. Arthur Young & Co. v. Reves, 937 F.2d 1310 (8th Cir. 1991), cert. denied, Ernst & Young v. Reves, 502 U.S. 1092, 112 S. Ct. 1165 (1992), aff'd, Reves v. Ernst & Young, 507 U.S. 170, 113 S. Ct. 1163 (1993).

To the extent that the holding in St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761, conflicts with the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., it has been effectively overruled by Acts 2013, No. 1116. J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (2014).

Discovery.

It was error to grant at this point in the case defendant subcontractor's motion to compel discovery of the confidential settlement agreement between plaintiff and defendant general contractor that resulted from mediation, when the subcontractor sought contribution and apportionment of fault, because (1) any right of contribution does not arise until one joint tortfeasor pays more than the tortfeasor's share of liability, and no damages had been awarded yet, and (2) it was error to find the general contractor and subcontractor were joint tortfeasors before any evidence was presented. Contrary to plaintiff's argument, however, the Civil Justice Reform Act, § 16-55-201 et seq., did not eliminate contribution among “joint tortfeasors”. Wynne-Ark., Inc. v. Richard Baughn Constr., 2020 Ark. App. 140, 597 S.W.3d 114 (2020).

Joint Tortfeasors.

Arkansas law permits a plaintiff to seek contribution from defendant as a “joint tortfeasor”, and plaintiff's contribution action was not defeated merely because the tort liability shared by the two insurers arose by virtue of principles of vicarious liability. Redland Ins. Co. v. Shelter Mut. Ins. Co., 193 F.3d 1021 (8th Cir. 1999).

Summary judgment was improperly granted in a contribution case arising from the distribution of an estate and a trust as a beneficiary could have been a joint tortfeasor based on an allegation of civil conspiracy. Heinemann v. Hallum, 365 Ark. 600, 232 S.W.3d 420 (2006).

In a second trial, the judge was correct in refusing to credit $60,000 paid by an insurance company in the first trial because the other defendant, an insurance brokerage acting as the agent for the company, and the company were not joint tortfeasors; the jury only found the agent liable for deceit and the appellate court could not tell whether the damages awarded against the insurance company and the damages awarded against the agent compensated the policy purchaser for the “same injury to person or property.” Aon Risk Servs. v. Mickles, 96 Ark. App. 369, 242 S.W.3d 286 (2006).

Hospital did not have a right of contribution under the Uniform Contribution among Tortfeasors Act (UCATA) because the hospital and the rehabilitation center were not joint tortfeasors under the UCATA, as there was only several liability following the enactment of the Civil Justice Reform Act of 2003. St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761 (2013), superseded by statute as stated in, J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (2014).

In employee's products liability action against the manufacturer of the product that injured him while he was working, the circuit court properly precluded the manufacturer's attempt to allocate fault to the nonparty employer in its amended answer; because the employer was clothed with immunity from liability in tort under the exclusive-remedy provision of the workers' compensation statutes, the employer could not have joint or several “liability” in tort and therefore did not meet the definition of “joint tortfeasor” in the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., or fall within the confines of that act. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W.3d 9 (2020).

Judgment-Proof Defendant.

The law does not presume that full recovery can be defeated because one or more of the defendants may be execution proof. Little v. Miles, 213 Ark. 725, 212 S.W.2d 935 (1948).

Principal-Agent Relationship.

While indemnity is commonly granted where liability has been imposed on a person not because of any fault on his part but solely because of his relationship to the one at fault, this doctrine did not apply to a railroad's indemnity claim against a truck driver since there was no employer-employee or other agency type relationship between the railroad and the driver on which to base imputation of liability. Missouri P. R. Co. v. Star City Gravel Co., 592 F.2d 455 (8th Cir. 1979).

Proper Joint Tortfeasors.

If purchaser of chemical distributes it by plane over its crop, and crop of plaintiff is damaged, and plaintiff files suit against the purchaser of the chemical for damages, nonresident chemical corporation who sold it was a proper joint defendant as use of chemical was inherently dangerous to other crops. Chapman Chem. Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820 (1949).

Where husband while driving wife's car to work collided with unlighted trailer of defendants which was being pulled by a tractor, relative to the damage done to wife's car, husband and defendants were joint tortfeasors. Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169 (1961).

Where court concluded that the accounting firm and all of the settling defendants were joint tortfeasors, it was correct to credit the verdict against the firm with the settlement proceeds. Arthur Young & Co. v. Reves, 937 F.2d 1310 (8th Cir. 1991), cert. denied, Ernst & Young v. Reves, 502 U.S. 1092, 112 S. Ct. 1165 (1992), aff'd, Reves v. Ernst & Young, 507 U.S. 170, 113 S. Ct. 1163 (1993).

Retroactive Applicability.

Section 16-61-201 et seq., as amended by Acts 2013, No. 1116, did not apply retroactively to a medical malpractice action because Act 1116 created new, substantive rights, so Act 1116 could not constitutionally be retroactively applied. English v. Robbins, 2014 Ark. 511, 452 S.W.3d 566 (2014).

Acts 2013, No. 1116 could not constitutionally be applied retroactively because, inter alia, Act 1116 created a new, substantive right to allocation of fault by adding the term “several liability,” which meant each person or entity was liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault. English v. Robbins, 2014 Ark. 511, 452 S.W.3d 566 (2014).

Time for Determination of Liability.

The question of the joint or common liability of the joint tortfeasors is determined as of the time the cause of action accrues and not at the time when the right to recover contribution is asserted, but where the jury, by its verdict, obviously found that defendant was neither jointly nor severally liable for the injury to the plaintiff, there simply was no way under the statutory definition that the defendant could be considered as a joint tortfeasor. Scalf v. Payne, 266 Ark. 231, 583 S.W.2d 51 (1979).

Cited: Arhart v. Micro Switch Mfg. Co., 798 F.2d 291 (8th Cir. 1986); Boatmen's Nat'l Bank v. Cole, 329 Ark. 209, 947 S.W.2d 362 (1997); Hurst v. Dixon, 357 Ark. 439, 182 S.W.3d 102 (2004).

16-61-202. Right of contribution — Accrual — Pro rata share.

  1. The right of contribution exists among joint tortfeasors.
  2. A joint tortfeasor is not entitled to a money judgment for contribution until he or she has by payment discharged the common liability or has paid more than his or her pro rata share of the common liability.
  3. The right of contribution is not limited to money damages but also includes the right to an allocation of fault as among all joint tortfeasors and the rights provided for in § 16-61-204.
  4. A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.

History. Acts 1941, No. 315, § 2; 1949, No. 35, § 1; A.S.A. 1947, § 34-1002; Acts 2013, No. 1116, § 3.

A.C.R.C. Notes. Acts 2013, No. 1116, § 1, provided: “Legislative intent. It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this act apply with equal force after the modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to join tortfeasors by this act, including allocation of fault and credits for settlements entered into by other joint tortfeasors, shall be denied to joint tortfeasors.”

Amendments. The 2013 amendment redesignated former (1) through (3) as (a), (b), and (d); substituted “of the common liability” for “thereof” in (b); inserted (c); and deleted former (4).

Effective Dates. Acts 2013, No. 1116, § 8: Aug. 16, 2013. Effective date clause provided: “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.”

Research References

Ark. L. Notes.

Brill, Punitive Damages in Ark. — Expanded? Restricted?, 1990 Ark. L. Notes 25.

Ark. L. Rev.

Acts 1949 General Assembly — Act 35 Amendment of Uniform Contribution Among Tortfeasors Act, 3 Ark. L. Rev. 371.

Samuel T. Waddell, Comment: Examining the Evolution of Nonparty Fault Apportionment in Arkansas: Must a Defendant Pay More Than Its Fair Share?, 66 Ark. L. Rev. 485 (2013).

U. Ark. Little Rock L.J.

Arkansas Law Survey, Roberts and Deere, Torts, 8 U. Ark. Little Rock L.J. 207.

Case Notes

Applicability.

Where, in an action for damages for personal injuries against joint tortfeasors the court was unable to determine from the jury's verdict that the verdict was based on any disproportionate fault on part of two defendants this section could not be applied to save or clarify the situation. Shearman Concrete Pipe Co. v. Wooldridge, 218 Ark. 16, 234 S.W.2d 382 (1950).

Hospital did not have a right of contribution under the Uniform Contribution among Tortfeasors Act (UCATA) because the hospital and the rehabilitation center were not joint tortfeasors under the UCATA, as there was only several liability following the enactment of the Civil Justice Reform Act of 2003. St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d 761 (2013), superseded by statute as stated in, J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (2014).

Cause of Action.

A cause of action for contribution arises with the underlying tort, and not upon payment of common liability. Union Pac. R.R. v. Mullen, 966 F.2d 348 (8th Cir. 1992).

Entitlement to Contribution.

In action where wife recovered against defendants for damage to her car and husband recovered for personal injuries, defendants, upon discharging judgment obtained against them by wife, will be entitled to file motion for judgment for contribution from husband. Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169 (1961).

Joint tortfeasor was required to contribute to the interest paid on judgment by other tortfeasor where no interest on payment between the date of payment and the date of the money judgment was allowed and where no more than the legal rate of interest was paid. International Harvester Co. v. Burks Motors, Inc., 252 Ark. 816, 481 S.W.2d 351 (1972).

Defendant was not entitled to contribution from plaintiff father who was not liable to injured children and who was not thereby a joint tortfeasor with defendant. Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976).

The adoption of comparative fault did not prevent a joint tortfeasor whose fault had been determined to be in the amount of 50 percent or more from having contribution from his fellow tortfeasor who was less negligent. Missouri Pac. R.R. v. Star City Gravel Co., 452 F. Supp. 480 (E.D. Ark. 1978), aff'd, 592 F.2d 455 (8th Cir. 1979).

A claim for contribution among tortfeasors is a derivative or conditional action in that the contribution-claimant, e.g., the third-party plaintiff (defendant), is not entitled to a money judgment against the party from whom contribution is sought, e.g., the third-party defendant, until the third-party plaintiff has paid more than his pro rata share of their common liability. Martin Farm Enters., Inc. v. Hayes, 320 Ark. 205, 895 S.W.2d 535 (1995).

—Apportionment.

When the evidence is sufficient, the jury is permitted to appraise the conduct of each defendant and to undertake, as fairly as practicable, to fix the responsibility of each. Little v. Miles, 213 Ark. 725, 212 S.W.2d 935 (1948).

Where apportionment of damages required payment of shares solely for the purpose of determining rights of contribution among joint tortfeasors, each tortfeasor remaining severally liable to the injured person for the whole injury as at common law, determination of apportioned judgments by jury would not be disturbed. Wheaton Van Lines, Inc. v. Williams, 240 Ark. 280, 399 S.W.2d 258 (1966).

In a wrongful death action against two or more joint tortfeasors, plaintiff was not required to prove the precise injury to the decedent caused by the negligence of each tortfeasor. Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (Ark. 1971).

Jury found that one defendant was partially responsible for plaintiff's damages and second defendant was also responsible; this meant that first defendant was entitled to contribution from the second defendant to the extent of his liability. Burks Motors, Inc. v. International Harvester Co., 250 Ark. 29, 466 S.W.2d 907 (1971).

Defendant against whom a joint and several judgments had been entered was not entitled to a judgment against codefendant until it had paid more than its pro rata share. Burks Motors, Inc. v. International Harvester Co., 250 Ark. 641, 466 S.W.2d 943 (1971); Shelton v. Firestone Tire & Rubber Co., 281 Ark. 100, 662 S.W.2d 473 (1983).

Since the defendant did not ask the trial court to apportion the damages according to relative degrees of fault, as allowed by subdivision (4), and the jury made no factual findings which would support such apportionment, the defendant was only entitled to contribution from the codefendant for any amounts which it paid above one half of the judgment. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. First Nat'l Bank, 774 F.2d 909 (8th Cir. 1985).

Immune Employer.

In employee's products liability action against the manufacturer of the product that injured him while he was working, the circuit court properly precluded the manufacturer's attempt to allocate fault to the nonparty employer in its amended answer; because the employer was clothed with immunity from liability in tort under the exclusive-remedy provision of the workers' compensation statutes, § 11-9-105, the employer could not have joint or several “liability” in tort and therefore did not meet the definition of “joint tortfeasor” in the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., or fall within the confines of that act. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W.3d 9 (2020).

The Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., does not allow for the apportionment of fault to an immune nonparty employer. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W.3d 9 (2020).

The language of § 16-55-201 is clear; it speaks in terms of the allocation of fault among the “defendants” to the action but is silent as to the allocation of nonparty fault. Instead, the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq., addresses the allocation of nonparty fault. Indus. Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W.3d 9 (2020).

Indemnity.

Suit by utility to recover from contractor amount of damages it was required to pay for injuries sustained by employee of contractor under agreement by contractor to hold utility harmless from suits for personal injuries was not a suit for contribution of joint tortfeasor but a suit under indemnity agreement. Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953).

Contribution and indemnity are mutually exclusive remedies because the former distributes the loss among tortfeasors while the latter shifts the entire loss from one tortfeasor who has been compelled to pay it to the shoulders of another who should bear it instead. Missouri Pac. R.R. v. Star City Gravel Co., 452 F. Supp. 480 (E.D. Ark. 1978), aff'd, 592 F.2d 455 (8th Cir. 1979).

Joint Tortfeasors.

It was error to grant at this point in the case defendant subcontractor's motion to compel discovery of the confidential settlement agreement between plaintiff and defendant general contractor that resulted from mediation, when the subcontractor sought contribution and apportionment of fault, because (1) any right of contribution does not arise until one joint tortfeasor pays more than the tortfeasor's share of liability, and no damages had been awarded yet, and (2) it was error to find the general contractor and subcontractor were joint tortfeasors before any evidence was presented. Contrary to plaintiff's argument, however, the Civil Justice Reform Act, § 16-55-201 et seq., did not eliminate contribution among “joint tortfeasors”. Wynne-Ark., Inc. v. Richard Baughn Constr., 2020 Ark. App. 140, 597 S.W.3d 114 (2020).

Limitation of Actions.

In suit by injured person to recover damages from defendant, the latter was not prevented from filing third party complaint for contribution from joint tortfeasor notwithstanding right of plaintiff in suit against the third party defendant was barred by statute of limitations. Schott v. Colonial Baking Co., 111 F. Supp. 13 (W.D. Ark. 1953).

A cause of action for contribution accrues when one joint tortfeasor pays more than his or her pro rata share of common liability; thus, the three-year statute of limitations under § 16-56-105 had not yet expired due to the fact that a settlement had just been entered where an executor and his wife agreed to pay more of their fair share in a trust dispute. Heinemann v. Hallum, 365 Ark. 600, 232 S.W.3d 420 (2006).

When homeowners sued a general contractor, who sought contribution and indemnity from subcontractors, the general contractor's claims were not time-barred because, under subsection (b) of this section, the statute of limitations did not begin until a joint tortfeasor paid more than his or her share of liability. J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (2014).

Retroactivity.

This subchapter is not retroactive and it appears to have been settled prior to its enactment that contribution among joint tortfeasors did not exist. Commercial Cas. Ins. Co. v. Leonard, 210 Ark. 575, 196 S.W.2d 919 (1946).

Section 16-61-201 et seq., as amended by Acts 2013, No. 1116, did not apply retroactively to a medical malpractice action because Act 1116 added a new provision in subsection (c) of this section providing that the right to contribution is not limited to money damages but also includes the right to allocation of fault as among all joint tortfeasors and the rights provided for in § 16-61-204. English v. Robbins, 2014 Ark. 511, 452 S.W.3d 566 (2014).

Settlements.

Joint tortfeasor was not entitled to judgment of contribution against other tortfeasor, as each tortfeasor settled his liability separately from the other. Lacewell v. Griffin, 214 Ark. 909, 219 S.W.2d 227, 8 A.L.R.2d 189 (1949).

Where the settlement of a judgment by a tortfeasor provided that the payment was in full for all claims accruing to the injured person but did not mention joint tortfeasors, settlement did not release the joint tortfeasor of liability and the tortfeasor was not entitled to contribution from the joint tortfeasor. Allbright Bros., Contractors ex rel. Nat'l Sur. Corp. v. Hull-Dobbs Co., 209 F.2d 103 (6th Cir. 1953).

In an action for damages arising out of train-truck collision at railroad crossing, the fact that an employee of railroad might have had cause of action against owner of truck for the injuries suffered and that the railroad's settlement with its employee was purely voluntary, would not in itself justify withdrawing this part of claim, which was made by the railroad against driver of truck on the basis of contribution between joint tortfeasors, from the consideration of the jury. Missouri Pac. R.R. Co. v. Ellison, 250 Ark. 160, 465 S.W.2d 85 (1971).

When homeowners sued a general contractor, who sought contribution and indemnity from subcontractors, the general contractor's settlement with the homeowners did not moot the contractor's contribution and indemnity claims because the settlement extinguished the subcontractors' liability to the homeowners. J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2014 Ark. 282, 436 S.W.3d 458 (2014).

Cited: Ward v. Walker, 206 Ark. 988, 178 S.W.2d 62 (1944); Citizens Coach Co. v. Wright, 228 Ark. 1143, 313 S.W.2d 94 (1958); Gomes v. Brodhurst, 394 F.2d 465, 6 V.I. 163 (3d Cir. 1968); Morison v. GMC, 428 F.2d 952 (8th Cir. 1970); W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982); Douglas v. United States Tobacco Co., 670 F.2d 791 (8th Cir. 1982); Arhart v. Micro Switch Mfg. Co., 798 F.2d 291 (8th Cir. 1986); Stewman v. Mid-South Wood Prods. of Mena, Inc., 784 F. Supp. 611 (W.D. Ark. 1992); Boatmen's Nat'l Bank v. Cole, 329 Ark. 209, 947 S.W.2d 362 (1997); Redland Ins. Co. v. Shelter Mut. Ins. Co., 193 F.3d 1021 (8th Cir. 1999).

16-61-203. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1116, § 1, provided: “Legislative intent. It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this act apply with equal force after the modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to join tortfeasors by this act, including allocation of fault and credits for settlements entered into by other joint tortfeasors, shall be denied to joint tortfeasors.”

Publisher's Notes. This section, concerning judgment against one tortfeasor, was repealed by Acts 2013, No. 1116, § 4. The section was derived from Acts 1941, No. 315, § 3; A.S.A. 1947, § 34-1003.

Effective Dates. Acts 2013, No. 1116, § 8: Aug. 16, 2013. Effective date clause provided: “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.”

16-61-204. Release — Effect on injured person's claim and on right of contribution.

  1. A release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other joint tortfeasors unless the release so provides.
  2. A release by the injured person of a joint tortfeasor does not relieve the released tortfeasor from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other joint tortfeasor to secure a money judgment for contribution has accrued and provides for a reduction, to the extent of the pro rata share of the released joint tortfeasor, of the injured person's damages recoverable against all other joint tortfeasors.
  3. When the injured person releases a joint tortfeasor, the injured person's damages recoverable against all the other joint tortfeasors shall be reduced by the greatest of the following:
    1. The amount of the consideration paid for the release;
    2. The pro rata share of the released joint tortfeasor's responsibility for the injured person's damages; or
    3. Any amount or proportion by which the release provides that the total claim shall be reduced.
  4. When the injured person releases a joint tortfeasor, the remaining defendants are entitled to a determination by the finder of fact of the released joint tortsfeasor's pro rata share of responsibility for the injured person's damages.

History. Acts 1941, No. 315, § 4; A.S.A. 1947, § 34-1004; Acts 2013, No. 1116, § 5.

A.C.R.C. Notes. Acts 2013, No. 1116, § 1, provided: “Legislative intent. It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this act apply with equal force after the modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to join tortfeasors by this act, including allocation of fault and credits for settlements entered into by other joint tortfeasors, shall be denied to joint tortfeasors.”

Amendments. The 2013 amendment rewrote the section and added “and on right of contribution” to the section heading.

Effective Dates. Acts 2013, No. 1116, § 8: Aug. 16, 2013. Effective date clause provided: “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.”

Research References

Ark. L. Rev.

Samuel T. Waddell, Comment: Examining the Evolution of Nonparty Fault Apportionment in Arkansas: Must a Defendant Pay More Than Its Fair Share?, 66 Ark. L. Rev. 485 (2013).

U. Ark. Little Rock L.J.

Notes, Tort Law — General Release Forms — The Free Ride for Joint Tortfeasors Is Over, 12 U. Ark. Little Rock L.J. 791.

Case Notes

Purpose.

It was the intention of the Arkansas Legislature in enacting this section to abrogate the common law rule that a release of one tortfeasor released all other tortfeasors jointly liable for the occurrence, thereby retaining the liability of joint tortfeasors. Moore v. Missouri Pac. R.R., 299 Ark. 232, 773 S.W.2d 78, 6 A.L.R.5th 1188 (1989).

Agreements.

Injured patient and a hospital agreed that they would inform the jury about a nurse anesthetist's settlement with the patient and that the hospital would waive its right to a credit; in other words, they agreed that the jury would solely determine the hospital's liability and award monetary damages for harm caused by the hospital. An appellate court therefore refused to grant the patient's request that the jury assess the hospital's share alone and that the hospital pay its fair share of the damages. Villines v. N. Ark. Reg'l Med. Ctr., 2011 Ark. App. 506, 385 S.W.3d 360 (2011).

Reduction in Damages.

In a vehicle rollover case, the manufacturer was not entitled to have the compensatory damage award reduced by 50 percent based on the fault of another driver, who had settled, because although the jury found the other driver was 50 percent at fault, the jury instructions asked the jury to find damages caused only by the vehicle manufacturer. Ford Motor Co. v. Washington, 2013 Ark. 510, 431 S.W.3d 210 (2013).

Release.

Where the settlement of a judgment by a tortfeasor provided that the payment was in full for all claims accruing to the injured person but did not mention joint tortfeasors, settlement did not release the joint tortfeasor of liability and the tortfeasor was not entitled to contribution from the joint tortfeasor. Allbright Bros., Contractors ex rel. Nat'l Sur. Corp. v. Hull-Dobbs Co., 209 F.2d 103 (6th Cir. 1953).

In an action against an automobile manufacturer for injuries sustained in an accident, the passenger's release of driver and her liability insurer contained a clause releasing “all other persons, firms, or corporations liable or who might be claimed to be liable,” therefore barring the action, even though the parties did not intend to release the manufacturer and the manufacturer paid no consideration. Morison v. GMC, 428 F.2d 952 (8th Cir. 1970), cert. denied, Morison v. General Motors Corp., 400 U.S. 904, 91 S. Ct. 142 (1970).

Where plaintiff, who had brought a malpractice action, settled and dismissed the action for the consideration and executed a general release discharging her doctor and “all other persons, firms, corporations…,” that general release was sufficient to release joint tortfeasors who were not parties to the release since this section provides that other tortfeasors are discharged “if the release so provides.” Douglas v. United States Tobacco Co., 670 F.2d 791 (8th Cir. 1982).

In a medical malpractice case, a release executed by a patient and a hospital was insufficient to release a doctor from liability under this section based on language in the release referencing the hospital's employees. Luu v. Still, 102 Ark. App. 11, 279 S.W.3d 481 (2008).

—Content or Form.

In order to satisfy the language of this section, a release must name or otherwise specifically identify the tortfeasors to be discharged. Broad boilerplate language is not sufficient. Moore v. Missouri Pac. R.R., 299 Ark. 232, 773 S.W.2d 78, 6 A.L.R.5th 1188 (1989).

—Release Before Verdict.

Under this subchapter, joint tortfeasors are entitled to have the amount due plaintiff reduced by the amount paid by a joint tortfeasor, but if evidence as to the amount paid by one of the tortfeasors is introduced into evidence in trial against the other tortfeasor, the defendant cannot, after verdict, have the court reduce the amount of the verdict by the amount paid by the other defendant, as he has had the benefit of the amount paid by the other tortfeasor, when he introduced the amount of the settlement before the jury reached its verdict. Giem v. Williams, 215 Ark. 705, 222 S.W.2d 800 (1949).

Trial court properly refused to permit tortfeasor to introduce settlement agreement between second tortfeasor and injured party, even though it might have had some bearing on the plaintiff's credibility, as the evidence would have informed the jury that one of the defendants had admitted liability and would have been used for arguing that plaintiff had accepted the amount of settlement as fair compensation for his injuries. Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962).

In this case the trial court refused the defendant permission to introduce evidence of one tortfeasor's settlement payment to plaintiff, but after verdict the trial court, under the theory that the law of joint tortfeasors applied, correctly credited the judgment with the payment, since the jury had no knowledge of the settlement, and therefore assessed the total damages of plaintiff. Woodard v. Holliday, 235 Ark. 744, 361 S.W.2d 744 (1962).

Where settlement was made during the course of trial by one or more joint tortfeasors, the trial court committed no error in advising the jury of the fact, but not the amount, of the settlement. Arhart v. Micro Switch Mfg. Co., 798 F.2d 291 (8th Cir. 1986).

Retroactivity.

It was held that enactment of this section would not be given a retroactive effect. Kansas City S. Ry. Co. v. McDaniel, 131 F.2d 89 (1942).

Section 16-61-201 et seq., as amended by Acts 2013, No. 1116, did not apply retroactively to a medical malpractice action because this section provided rights for joint tortfeasors against released tortfeasors and provided that when an injured person released a joint tortfeasor, the remaining defendants were entitled to a determination by the finder of fact of the released joint tortfeasor's pro rata share of responsibility for the injured person's damages, creating substantive rights that were absent from the previous version of the Uniform Contribution Among Tortfeasors Act, § 16-61-201 et seq.English v. Robbins, 2014 Ark. 511, 452 S.W.3d 566 (2014).

Section 16-61-201 et seq., as amended by Acts 2013, No. 1116, did not apply retroactively to a medical malpractice action because Act 1116 added a new provision in § 16-61-202 providing that the right to contribution is not limited to money damages but also includes the right to allocation of fault as among all joint tortfeasors and the rights provided for in § 16-61-204. English v. Robbins, 2014 Ark. 511, 452 S.W.3d 566 (2014).

Time for Determining Liability.

The question of the joint or common liability of joint tortfeasors is determined as of the time the cause of action accrues and not at the time when the right to recover contribution is asserted; but where the jury, by its verdict, obviously found that defendant was neither jointly nor severally liable for the injury to the plaintiff, there simply was no way under the statutory definition that the defendant could be considered as a joint tortfeasor. Scalf v. Payne, 266 Ark. 231, 583 S.W.2d 51 (1979).

Cited: Hill v. Southside Pub. Sch., 688 F. Supp. 493 (E.D. Ark. 1988); Garver & Garver v. Little Rock San. Sewer Comm., 300 Ark. 620, 781 S.W.2d 24 (1989); Arthur Young & Co. v. Reves, 937 F.2d 1310 (8th Cir. 1991).

16-61-205. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1116, § 1, provided: “Legislative intent. It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this act apply with equal force after the modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to join tortfeasors by this act, including allocation of fault and credits for settlements entered into by other joint tortfeasors, shall be denied to joint tortfeasors.”

Publisher's Notes. This section, concerning releases and the effect on right of contribution was repealed by Acts 2013, No. 1116, § 6. The section was derived from Acts 1941, No. 315, § 5; A.S.A. 1947, § 34-1005.

Effective Dates. Acts 2013, No. 1116, § 8: Aug. 16, 2013. Effective date clause provided: “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.”

16-61-206. Indemnity.

This subchapter does not impair any right of indemnity under existing law.

History. Acts 1941, No. 315, § 6; A.S.A. 1947, § 34-1006.

Case Notes

In General.

Due to this section, this subchapter did not bar plaintiff from full indemnity for defendant's breach of covenant. Anthony v. Louisiana & Ark. Ry., 316 F.2d 858 (8th Cir. 1963), cert. denied, 375 U.S. 830, 84 S. Ct. 74 (1963).

Cited: Douglas v. United States Tobacco Co., 670 F.2d 791 (8th Cir. 1982).

16-61-207. Third party practice — Amended complaints — Counterclaims and cross-complaints — Motion practice.

  1. Before answering, a defendant seeking contribution in a tort action may move ex parte or, after answering, on notice to the plaintiff, for leave as a third party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or her to the plaintiff for all or part of the plaintiff's claim against him or her. If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third party defendant, shall make his or her defense to the complaint of the plaintiff and to the third party complaint in the same manner as defenses are made by an original defendant to an original complaint. The third party defendant may assert any defenses which the third party plaintiff has to the plaintiff's claim. The plaintiff may amend his or her pleadings to assert against the third party defendant any claim which the plaintiff might have asserted against the third party defendant had he or she been joined originally as a defendant. The third party defendant is bound by the adjudication of the third party plaintiff's liability to the plaintiff as well as of his or her own liability to the plaintiff and to the third party plaintiff. A third party defendant may proceed under this section against any person not a party to the action who is or may be liable as a joint tortfeasor to him or her or to the third party plaintiff for all or part of the claim made in the action against the third party defendant.
  2. When a counterclaim is asserted against a plaintiff he or she may cause a third party to be brought in under circumstances which under this section would entitle a defendant to do so.
  3. A pleader may either (a) state as a cross-claim against a coparty any claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant; or (b) move for judgment for contribution against any other joint judgment debtor, where in a single action a judgment has been entered against joint tortfeasors one (1) of whom has discharged the judgment by payment or has paid more than his or her pro rata share thereof. If relief can be obtained as provided in this subsection no independent action shall be maintained to enforce the claim for contribution.
  4. The court may render such judgments, one (1) or more in number, as may be suitable under the provisions of this subchapter.
  5. [Repealed.]
  6. In the event plaintiff or defendant fails to serve third parties in such time and manner as may be required for third parties to be brought in and for service on the same to have matured on the day set for the original proceedings between the original parties, such failure shall not delay prosecution of proceedings between the original parties or impair the original defendant's right of contribution.

History. Acts 1941, No. 315, § 7; A.S.A. 1947, § 34-1007; Acts 1993, No. 759, § 1; 2013, No. 1116, §§ 1, 7, 8.

A.C.R.C. Notes. Acts 2013, No. 1116, § 1, provided: “Legislative intent. It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this act apply with equal force after the modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to join tortfeasors by this act, including allocation of fault and credits for settlements entered into by other joint tortfeasors, shall be denied to joint tortfeasors.”

Amendments. The 2013 amendment repealed (5).

Effective Dates. Acts 2013, No. 1116, § 8: Aug. 16, 2013. Effective date clause provided: “This act is remedial in nature and applies to all causes of action accruing on or after March 25, 2003.”

Research References

Ark. L. Rev.

Panel on Comparative Negligence — Third Party Practice, 10 Ark. L. Rev. 88.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Issued Interim Report of Special Task Force on Practice and Procedure in Civil Cases Regarding Possible Changes to the Arkansas Rules of Civil Procedure Because of the Invalidation of Civil Justice Reform Act, 67 Ark. L. Rev. 193 (2014).

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 16 U. Ark. Little Rock L.J. 85.

Case Notes

Comparative Fault.

No Arkansas cases suggest that Arkansas follow the substantive comparative fault rule that a plaintiff's degree of fault should always be compared with the fault of other possible wrongdoers, even if plaintiff has asserted no claim against those wrong doers; indeed, given the plain language of § 16-64-122 — that the plaintiff's fault should be compared to that of the parties from whom the plaintiff “seeks to recover damages” — it is hard to imagine how the legislature's words could be construed to reach such a result. Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996).

Complaint.

It would have been more accurate for decedent's administrator to entitle his pleading a cross-claim rather than a third party complaint, but since the difference is merely one of form and can have no effect upon the administrator's statutory right to seek contribution, it would not be prohibited. Northwest Motors, Inc. v. Creekmore, 229 Ark. 755, 318 S.W.2d 614 (1958); Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W.2d 836 (1968).

When the third-party complaint alleges a direct liability of the third-party defendant to the plaintiff on the claim set out in the plaintiff's complaint, the third party shall make his defenses to the complaint and no amendment to the complaint is necessary or required, and the parties are at issue as to their rights respecting the claim without any amendment of the complaint by the plaintiff. Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980).

Entitlement to File.

The right of a defendant to seek contribution from a joint tortfeasor by making him a party to the suit is permissive and does not exclude the right of the defendant to seek contribution in a separate suit. Rudolph v. Mundy, 226 Ark. 95, 288 S.W.2d 602 (1956).

If a joint tortfeasor is not made a party to suit against a defendant the defendant does not have to seek contribution against such tortfeasor in that suit, but if the joint tortfeasor is also a party defendant, the defendant must seek contribution in that suit. Rudolph v. Mundy, 226 Ark. 95, 288 S.W.2d 602 (1956).

In action where wife recovered against defendants for damage to her car and husband recovered for personal injuries, defendants upon discharging judgment obtained against them by wife will be entitled to file motion for judgment for contribution from husband. Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169 (1961).

—Discretion of Court.

The trial court has a measure of discretion in allowing or disallowing a defendant to have a joint tortfeasor made a party to the suit for the purpose of seeking contribution. Rudolph v. Mundy, 226 Ark. 95, 288 S.W.2d 602 (1956).

Where in suit against one tortfeasor a second alleged tortfeasor was not a party to the suit although the suits were consolidated with two suits in which alleged joint tortfeasor was a party, trial court did not abuse its discretion in refusing to allow defendant to seek contribution where question was not brought to the attention of the trial court until the attorneys were making their opening statements in the cases. Rudolph v. Mundy, 226 Ark. 95, 288 S.W.2d 602 (1956).

Federal Rule.

This section specifically makes the adjudication of the third-party defendant's liability to the plaintiff binding upon the third-party defendant; thus the section is different from those patterned after Rule 14 of the Federal Rules of Civil Procedure, under which the plaintiff “may” amend his pleadings to assert a claim against the third-party defendant. Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980).

Limitation of Actions.

In suit by injured person to recover damages from defendant truck owner the latter was not prevented from filing third party complaint for contribution from joint tortfeasor notwithstanding right of plaintiff in suit against the third party defendant was barred by statute of limitations. Schott v. Colonial Baking Co., 111 F. Supp. 13 (W.D. Ark. 1953).

Because the duty of the third-party defendant to defend against the allegations of the plaintiff, in the complaints against the defendants, existed at the time the third-party defendant was served with the pleadings, and because three years had not then elapsed after the plaintiff was injured, the cause of action was not barred by the statute of limitations even though the plaintiff did not file complaint against third-party defendant until more than four years after injury. Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980).

Because the Arkansas legislature has amended this section to provide that a plaintiff “may” rather than “shall” bring claims he has against a third-party defendant, it is unclear whether Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980) is still good law in Arkansas, even with respect to a plaintiff's untimely claims against third-party defendants. Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996).

Reversible Error.

Error in directing verdict for one defendant while returning verdict for the other defendant was reversible, since the defendant who had the verdict returned against him could have moved for judgment for contribution against the other defendant if jury had returned a verdict against him. Arkansas La. Gas Co. v. Stracener, 239 Ark. 1001, 395 S.W.2d 745 (1965).

Settlement.

If administratrix of decedent files a damage suit against contractor and subcontractor to recover damages for death of decedent due to negligence of defendants, and thereafter before trial dismisses case against the subcontractor on payment of a sum, the contractor under this subchapter has the right to still make the subcontractor a third party defendant. Giem v. Williams, 215 Ark. 705, 222 S.W.2d 800 (1949).

Third-Party Defendants.

Although this section requires a plaintiff, if he has a claim against third party defendant, to assert it, it does not require that the plaintiff have an existing claim against the third party defendant, in order for the principal defendant to bring the third party defendant into the case. Schott v. Colonial Baking Co., 111 F. Supp. 13 (W.D. Ark. 1953).

A cause of action held to be stated against person as a third party defendant. Applegate v. Riggall, 229 Ark. 773, 318 S.W.2d 596 (1958).

Where the defendants, in filing counterclaim, sought recovery against plaintiff and a third party alleging that the sole proximate cause of collision was their joint and concurrent negligence and filed a motion to make the third party a defendant, it was within the sound discretion of the court to grant the motion. Talley v. Morphis, 232 Ark. 91, 334 S.W.2d 652 (1960).

In action against installer of seat belt for injuries received when belt broke during automobile collision defendant installer was, under allegation of plaintiff's third party complaint, entitled under this subchapter to join supplier of seat belts as a third party defendant. Kapp v. Bob Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962).

The plaintiff in an action to enforce an uninsured motorist clause against his insurance company cannot be compelled under this section or § 23-89-405 to join as third party defendants the alleged tortfeasors, although the defendant insurance company may make the alleged tortfeasors defendants by cross-complaint. Home Ins. Co. v. Williams, 252 Ark. 1012, 482 S.W.2d 626 (1972).

Subsection (1) enables one or more of several joint tortfeasors sued by the injured person to add as third-party defendants any fellow joint tortfeasors whom they believe to have been also responsible for the tort complained of and to litigate against them in the injured person's action any claims for contribution; in this way, the interests of justice may be promoted by obviating the necessity of a separate action for contribution. Martin Farm Enters., Inc. v. Hayes, 320 Ark. 205, 895 S.W.2d 535 (1995).

Under subdivision (1), the third-party plaintiff is not required to wait until he has paid the judgment to implead in the primary action other persons who are or may be jointly liable for the tort. Martin Farm Enters., Inc. v. Hayes, 320 Ark. 205, 895 S.W.2d 535 (1995).

Cited: Sunday v. Burk, 172 F. Supp. 722 (W.D. Ark. 1959); B-W Acceptance Corp. v. Colvin, 252 Ark. 306, 478 S.W.2d 755 (1972); Davis v. General Motors Corp., 257 Ark. 983, 521 S.W.2d 214 (1975); Jack Wood Constr. Co. v. Ford, 258 Ark. 47, 522 S.W.2d 408 (1975); Bill C. Harris Constr. Co. v. Powers, 262 Ark. 96, 554 S.W.2d 332, 14 A.L.R.4th 812 (1977).

16-61-208. Constitutionality.

If any provision of this subchapter, or the application thereof, to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the subchapter which can be given effect without the invalid provision or application, and to this end the provisions of this subchapter are declared to be severable.

History. Acts 1941, No. 315, § 8.

16-61-209. Uniformity of interpretation.

This subchapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.

History. Acts 1941, No. 315, § 9; A.S.A. 1947, § 34-1008.

Case Notes

Construction.

In an action against an automobile manufacturer for injuries sustained in an accident, the passenger's release of driver and her liability insurer contained a clause releasing “all other persons, firms, or corporations liable or who might be claimed to be liable,” therefore barring the action, even though the parties did not intend to release the manufacturer and the manufacturer paid no consideration. Morison v. GMC, 428 F.2d 952 (8th Cir. 1970), cert. denied, Morison v. General Motors Corp., 400 U.S. 904, 91 S. Ct. 142 (1970).

16-61-210. Short title.

This subchapter may be cited as the “Uniform Contribution Among Tortfeasors Act.”

History. Acts 1941, No. 315, § 10; A.S.A. 1947, § 34-1009.

Case Notes

Cited: Hill v. Southside Pub. Sch., 688 F. Supp. 493 (E.D. Ark. 1988).

16-61-211. Repeal.

All acts or parts of acts which are inconsistent with the provisions of this subchapter are hereby repealed.

History. Acts 1941, No. 315, § 11; A.S.A. 1947, § 34-1009n.

16-61-212. Emergency clause.

Because the passage of this subchapter will invite parties litigant to pursue dilatory tactics in the courts of this state until its effective date in order that they may take advantage of its provisions, contrary to the public health, safety, and welfare, an emergency is hereby declared to exist and this subchapter shall take effect and be in full force from and after its passage and approval.

History. Acts 1941, No. 315, § 12; A.S.A. 1947, § 34-1009n.

Publisher's Notes. Acts 1941, No. 315, was signed by the Governor and took effect on March 26, 1941.

Chapter 62 Survival And Abatement Of Actions

Publisher's Notes. Some provisions of this chapter may be superseded by the Arkansas Rules of Civil Procedure pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Effective Dates. Acts 1925, No. 109, § 2: approved Feb. 25, 1925. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared, and this act shall take effect and be in force from and after its passage.”

Acts 1951, § 5, p. 102: effective on passage.

Acts 1981, No. 625, § 3: Mar. 23, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the Supreme Court of the State of Arkansas announced in Sugg v. Continental Oil Co., 270 Ark. 882, 608 S.W.2d 1 (1980) that the nonsuit statute, Sec. 21 Revised Statutes, Chapter 91, same being Ark. Stat. 37-222 shall not apply in an action for wrongful death where a nonsuit is suffered more than three years after the death of the person allegedly to have been wrongfully killed, and this Act is needed in order to avoid unnecessary hardships in wrongful death actions and to avoid confusion to provide for the proper administration of justice. 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 2001, No. 1581, § 3: Apr. 13, 2001. Emergency clause provided: “It is found and determined by the General Assembly that under current interpretation of present law certain persons who were financially dependent on a deceased person are, because of age, excluded from being the beneficiary of a wrongful death action; that the current interpretation is inequitable; that this act cures the inequity; and that this act should go into effect as soon as possible so that such persons hereafter will be included as beneficiaries of any wrongful death claim. 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.”

Research References

ALR.

Inheritability or descendability of right to contest will. 11 A.L.R.4th 907.

Beneficiary's death: effect upon right of action under death statute. 13 A.L.R.4th 1060.

Punitive damages in tort action: claim as surviving death of tortfeasor or person wronged. 30 A.L.R.4th 707.

Effect of death of party to divorce proceeding pending appeal or time allowed for appeal. 33 A.L.R.4th 47.

Am. Jur. 1 Am. Jur. 2d, Abat. & R., § 1 et seq.

61A Am. Jur. 2d, Plead., § 1 et seq.

Ark. L. Rev.

Cox and Newbern, New Civil Procedure: The Court That Came in From the Code, 33 Ark. L. Rev. 1.

C.J.S. 1 C.J.S., Abat. & R., § 1 et seq.

71 C.J.S., Plead., § 1 et seq.

16-62-101. Survival of actions — Wrongs to person or property.

    1. For wrongs done to the person or property of another, an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer or, after the death of the wrongdoer, against the executor or administrator of the wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts.
    2. Nothing in subdivision (a)(1) of this section shall be so construed as to extend its provisions to actions of slander or libel.
  1. In addition to all other elements of damages provided by law, a decedent's estate may recover for the decedent's loss of life as an independent element of damages.

History. Rev. Stat., ch. 4, §§ 59, 60; C. & M. Dig., §§ 1070, 1071; Pope's Dig., §§ 1273, 1274; A.S.A. 1947, §§ 27-901, 27-902; Acts 2001, No. 1516, § 1.

Amendments. The 2001 amendment redesignated former (a) and (b) as present (a)(1) and (a)(2) and made related changes; in (a)(1), substituted “a wrongdoer” for “the wrongdoers” and made gender neutral changes; and added present (b).

Research References

Ark. L. Notes.

Flaccus, A Grab Bag of Recent Arkansas Cases, 1999 Ark. L. Notes 25.

Ark. L. Rev.

Note, The Law of Defamation: An Arkansas Primer, 42 Ark. L. Rev. 915.

Recent Development: Survival Actions — Defining “Loss of Life” Damages, 57 Ark. L. Rev. 441 (2004).

Note, The Measure of Life: Determining the Value of Lost Years After Durham v. Marberry, 59 Ark. L. Rev. 125.

T.W. Brown, Recent Developments: Claim for Invasion of Privacy Does Not Survive Decedent's Death, 65 Ark. L. Rev. 787 (2012).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Torts, 5 U. Ark. Little Rock L.J. 191.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Practice, Procedure, and Courts, 24 U. Ark. Little Rock L. Rev. 523.

J. Lyn Entrikin, The Right of Privacy in Arkansas: A Progressive State, 35 U. Ark. Little Rock L. Rev. 439 (2013).

Case Notes

Construction.

A wrongful-death action brought by a plaintiff in his individual capacity pursuant to § 16-62-102 involves neither the same action nor the same plaintiff as a survival action brought by the plaintiff in his representative capacity on behalf of the decedent's estate pursuant to this section. Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).

Because the phrase “loss of life damages” as used in subsection (b) was clear and unambiguous and since loss-of-life damages could only begin accruing at the point when life was lost, at death, there was no reason to believe the legislature intended to require the decedent to live for a period of time between injury and death in order to recover loss-of-life damages. Durham v. Marberry, 356 Ark. 481, 156 S.W.3d 242 (2004).

Decedent died when his vehicle hit the back of a farm tractor on a highway; on appeal, the administratrix of the decedent's estate raised the issue of whether the circuit court erred in ruling that the wrongful-death statute allowing recovery of loss-of-life damages did not apply retroactively. The language included in § 16-62-101(b) was added by Acts 2001, No. 1516; however, the Act added only a new remedy to an already existing right, the act was meant to be applied retroactively, and the ruling of the circuit court on this issue was also error. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).

Acts 2001, No. 1516 is meant to be applied retroactively. McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (2007).

Accounting.

Where an action was brought for the accounting against a corporate officer whose death occurred after service of notice but before any defensive pleading was filed, executrix could not maintain an action to prohibit the chancery court from proceeding with the original action. Rider v. Cunningham, 232 Ark. 407, 337 S.W.2d 868 (1960).

Administration of Estate.

Causes of action for the benefit of the estate of a person wrongfully killed and for the benefit of his widow and next of kin may be united in a suit brought by the decedent's administratrix. Southern Anthracite Coal Co. v. Hodge, 99 Ark. 302, 139 S.W. 292 (1911).

When the amount recovered by an administratrix for wrongful death is for the benefit of the estate and there is necessity for further probate proceedings, the judgment should be certified to the probate court, but if no necessity exists, it need not be certified to that court. Adams v. Shell, 182 Ark. 959, 33 S.W.2d 1107 (1930).

Any recovery by administratrix for compensation for injuries sustained by deceased as a result of defendant's negligence would be for the benefit of deceased's estate. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Where following a collision, the plaintiff died of unrelated causes, leaving no heirs with standing to bring a lawsuit against the defendant for damages to vehicle since none of the heirs was injured by any action of the defendant. Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984).

It was administrator's duty and right to pursue action, subject to the probate court's approval, and to choose counsel for that purpose. Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985).

Adjustment company could not recover deceased's debt for medical services rendered to the deceased shortly before her death because the trial court made clear that the settlement made to the estate was intended for the beneficiaries under § 16-62-102. Mid-South Adjustment Co. v. Estate of Harris, 87 Ark. App. 139, 189 S.W.3d 518 (2004).

Wrongful death and survival action filed by decedent's mother on behalf of herself and decedent was neither brought by and in the name of an appointed personal representative of decedent nor were decedent's brother and biological father (both statutory beneficiaries under § 16-62-102(d)), joined as plaintiffs as required for a wrongful death action under § 16-62-102(b). Further, neither the mother nor anyone else had been appointed an administrator or executor as required for a survival action under this section; therefore, at the time the mother filed the action, she did not have standing to pursue the claims against defendants. Farrow v. Sammis, No. 3:07cv00097 SWW, 2007 U.S. Dist. LEXIS 90429 (E.D. Ark. Dec. 7, 2007).

Regarding a father's motion to intervene in a mother's wrongful death and survivor action for the sole purpose of seeking to stay the proceedings pending a determination from the probate court as to who would be named administrator of decedent son's estate, Ark. R. Civ. P. 17 had no application because the action was not filed in accordance with § 16-62-102(b) or this section and the original complaint thus was a nullity. When the original complaint was a nullity, Ark. R. Civ. P. 17 was inapplicable because the original complaint never existed and, therefore, there was no pleading to amend. Farrow v. Sammis, No. 3:07cv00097 SWW, 2007 U.S. Dist. LEXIS 90429 (E.D. Ark. Dec. 7, 2007).

Assignment of Tort Claim.

The survival provided by this section does not confer the power of assignment upon the holder of an unliquidated tort claim for personal injuries. Southern Farm Bureau Cas. Ins. Co. v. Wright Oil Co., 248 Ark. 803, 454 S.W.2d 69 (1970).

Breach of Contract.

A decedent's personal representatives could bring a breach of contract action against an attorney who allegedly failed to draft the decedent's will in accord with the decedent's desires. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

Civil Rights.

The Arkansas law of survival is not inconsistent with federal civil rights laws. Parkerson v. Carrouth, 782 F.2d 1449 (8th Cir. 1986).

The Arkansas survivorship statute does allow survival of a civil rights action. Oliver v. United States Army, 758 F. Supp. 484 (E.D. Ark. 1990).

Arkansas survival statute was not applicable to abate an Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., claim for compensatory damages brought by a decedent's estate; federal common law did not incorporate state survivorship law in light of the ADA's broad remedial purpose and the need for a uniform federal rule. Guenther v. Griffin Constr. Co., Inc., 846 F.3d 979 (8th Cir. 2017).

Contributory Negligence of Distributee.

Where an infant was killed through the wrongful act of the defendant, his administrator was entitle to recover damages for his conscious suffering between the time of his injury and his death and it is no defense that the decedent's father who as the sole distributee of the estate was entitled to receive the same was guilty of negligence which contributed to his injury and death. Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911).

Corporations.

Where a corporation has a cause of action against another, the action does not survive but dies when the plaintiff corporation goes out of existence. Arkansas Life Ins. Co. v. American Nat'l Ins. Co., 110 Ark. 130, 161 S.W. 136 (1913).

Death of Party.

An action is not abated by the death of a party after the cause of action has been merged in a final judgment and while the judgment stands, even though the judgment is based on a cause of action which would not survive the death of a party before judgment. Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d 762 (1942).

Under this section an action for violation of civil rights would survive upon the death of the defendant. Pritchard v. Smith, 289 F.2d 153, 88 A.L.R.2d 1146 (8th Cir. 1961).

At common law, all actions for tort died with the tortfeasor. That rule is still in effect in this state, except this section has removed that bar as to tortious injury to the person, and provides that such actions survive the death of the tortfeasor and may be brought against his estate or personal representative; however, it does not authorize such actions to be maintained against the heirs of a deceased person. Westridge v. Byrd, 37 Ark. App. 72, 823 S.W.2d 930 (1992).

In a patient's medical malpractice suit against her since-deceased surgeon and the hospital, the appellate court granted the patient's motion to appoint the surgeon's widow as the special administratrix of the surgeon's estate for purposes of defending the case, reviving the case, and substituting the special administratrix in the surgeon's stead because the patient's personal-injury claims survived the surgeon's death under subdivision (a)(1) of this section. Section 16-62-106(a) gave the appellate court authority to appoint the widow, and the widow consented to stand in place of the surgeon. Taylor v. Landherr, 101 Ark. App. 279, 275 S.W.3d 656 (2008).

Subdivision (a)(1) of this section did not provide for the claim of invasion of privacy to survive the death of the decedent. Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548 (2012).

Evidence.

Evidence that explosion and fire at service station resulting in fatal injuries to decedent could have been caused by negligence of defendants in designing of storeroom and equipment therein was sufficient for jury to have awarded damages for wrongful death. Marshall v. Humble Oil & Ref. Co., 459 F.2d 355 (8th Cir. 1972).

The jury was entitled to draw inferences from known physical phenomena incorporated in the testimony of the plaintiffs' expert witness and from the circumstantial evidence in the case. Marshall v. Humble Oil & Ref. Co., 459 F.2d 355 (8th Cir. 1972).

Circuit court erred in granting the directed-verdict motion of the church, insurer, and others, on the estate's claim for loss-of-life damages under subsection (b) of this section because there was substantial evidence from which a jury could have determined that the estate was entitled to loss-of-life damages. The testimony indicated that the decedent was a mother of four, as well as a grandmother; that she was close to her oldest daughter; that she had worked as a waitress; that she lived with a man for whom she had come to Arkansas; and that, at the time of the accident, the decedent was on her way to a family get-together. One Nat'l Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008).

An estate seeking loss-of-life damages pursuant to subsection (b) of this section must present some evidence that the decedent valued his or her life, from which a jury could infer and derive that value and on which it could base an award of damages. Mere proof of life and then death is insufficient; that being said, it is not suggested that the evidence required be limited to direct evidence, as circumstantial evidence may certainly be used as well. One Nat'l Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008).

Legal Malpractice.

A decedent's personal representatives could not bring a legal malpractice action against the attorney who drafted the decedent's will since there was no pre-death injury arising from the attorney's alleged malpractice. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

Libel, Slander, etc.

An action for slander abates with the death of either party. Miller v. Nuckolls, 76 Ark. 485, 89 S.W. 88 (1905).

Action brought by doctor against pharmacist and pharmacy stating claims for libel, slander, malicious prosecution and intentional injury to plaintiff's medical practice, arising out of an unsuccessful criminal prosecution charging plaintiff with illegal distribution of scheduled drugs, did not survive plaintiff's death. Parkerson v. Carrouth, 782 F.2d 1449 (8th Cir. 1986).

Limitation of Actions.

Action may be brought within three years from date of killing under this section notwithstanding the limitation provided in wrongful death statute. Saint Louis, I.M. & S. Ry. v. Robertson, 103 Ark. 361, 146 S.W. 482 (1912).

The right of action for the benefit of the estate of plaintiff's intestate for conscious pain and suffering before death is governed by the three year limitation fixed by § 16-56-105. Smith v. Missouri P. R. Co., 175 Ark. 626, 1 S.W.2d 48 (1927).

Where administrator's action against railroad for death of intestate was brought when an action for the benefit of the widow and next of kin was barred by limitations but action for the benefit of the estate was not, it must be presumed that suit was for the benefit of the estate. Sykes v. Jameson, 192 Ark. 631, 94 S.W.2d 718 (1936).

Where deceased was injured as a result of alleged negligence of railroad, his cause of action for injuries accrued on the date of injury; where deceased's action was barred by period of limitations, similar action by administratrix was also barred as she occupied the same position as deceased in regards to such action. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Actions under this section are governed by general three year statute of limitations, § 16-56-105. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

When the action brought under this section is against a decedent's estate, it must be brought within the time limit for filing claims against the estate even though the plaintiff is looking not to the assets of the estate but to the decedent's liability insurer for payment of his judgment. Swan v. Estate of Monette ex rel. Monette, 265 F. Supp. 362 (W.D. Ark. 1967), aff'd, 400 F.2d 274 (8th Cir. Ark. 1968).

The three-year limitation on an action for injury resulting from taking a drug manufactured by the defendant began to run when it became apparent that the injury from the drug was permanent. Schenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir. Ark. 1970).

Loss of Services.

A husband's loss of the services and companionship of his wife does not amount to wrongs done to his person or his property within the meaning of this section. White v. Maddux, 227 Ark. 163, 296 S.W.2d 679 (1956).

Marital Property.

Wife's claim, that settlement proceeds of a personal injury to her late husband were marital property, held without merit; the funds belonged to his estate, to be distributed pursuant to probate law. Ellis v. Ellis, 315 Ark. 475, 868 S.W.2d 83 (1994).

Medical Malpractice.

Survival claims involving death as a result of a medical injury are governed by the Medical Malpractice Act, § 16-114-201 et seq., and not by this chapter. Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996).

Because the doctor's failure to perform to the appropriate standard of care constituted medical malpractice and was a proximate cause of the death of the child, under the Arkansas Wrongful Death statute the child's parents were awarded damages sustained as a proximate result of his wrongful death; the parents were also entitled to damages under the Arkansas Survival Statute, § 16-62-101 et seq.McMullin v. United States, 515 F. Supp. 2d 914 (E.D. Ark. 2007).

Wrongful-death and survival action brought by the administratrix of the decedent's estate against the medical center was time-barred under § 16-114-203 as the order appointing the administratrix was not effective until it was filed almost two weeks after the complaint was filed; therefore, at the time the administratrix filed this cause of action against the medical center, she was not the administrator of the estate and did not have standing to pursue the claim against the medical center. As such, the complaint was a nullity. Hubbard v. Nat'l Healthcare of Pocahontas, Inc., 371 Ark. 444, 267 S.W.3d 573 (2007).

Multiple Actions.

Where deceased has died as a result of alleged negligence of defendant, both action for compensation of deceased's injuries and action for wrongful death of deceased should be brought by personal representative of deceased if there is one. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Circuit court's order dismissing a wrongful death claim made pursuant to § 16-62-102(a) and (b), which failed to dispose of a survival claim made pursuant to this section, left the Arkansas Supreme Court without jurisdiction to entertain an appeal of the case in the absence of a final judgment. Myers v. McAdams, 366 Ark. 435, 236 S.W.3d 504 (2006).

Pain and Suffering.

Action for pain and suffering endured by son resulting from drug allegedly administered by adoptive father was held not a suit for wrongful death which would abate on death of wrongdoer, but one of injury resulting in pain and suffering, which survives. Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245, 122 A.L.R. 1348 (1939).

Parties.

Actions for survivorship and actions for wrongful death are separate and distinct in nature. In a survival action, the administrator asserts the decedent's own cause of action, and only the administrator may bring this cause of action; the wrongful death statute, on the other hand, creates a cause of action in the survivors, and it may be brought by the administrator in their behalf, or by the heirs themselves if there is no administrator. First Com. Bank v. United States, 727 F. Supp. 1300 (W.D. Ark. 1990).

Plaintiff lacked standing to sue when she filed the original complaint because she had not yet been appointed the administrator of decedent's estate (her mother's estate) and because she was not the sole heir; however, upon being appointed administrator six days later, she was deemed to be a new party when she filed the timely amended complaint. Hackelton v. Malloy, 364 Ark. 469, 221 S.W.3d 353 (2006).

Summary judgment was properly awarded to a physician in a husband's wrongful-death/survival action because when the husband filed his original suit, no order had been entered appointing him as administrator, nor were all of the wife's heirs at law named as plaintiffs, as required by this section and § 16-62-102(b). Norton v. Luttrell, 99 Ark. App. 109, 257 S.W.3d 580 (2007).

In a claim brought against the suppliers of a pain pump, a dismissal was proper because a wife, as a patient's administratrix, did not seek substitution under Fed. R. Civ. P. 25 prior to a nonsuit of the case when it was pending in federal court. Therefore, the patient and his wife did not receive the benefit of § 16-56-126. Wilson v. Lincare, Inc., 103 Ark. App. 329, 288 S.W.3d 708 (2008).

Special administrator of a reopened probate case could file survival claims because the claims belonged to the decedent's estate and had to be filed by the personal representative of the estate or a special administrator. The trustee that had served as the estate's personal representative did not have to file the claims. Arman v. Chi St. Vincent Hot Springs, 2019 Ark. App. 187, 574 S.W.3d 731 (2019).

Venue.

Action against administrator for negligence of his intestate could be brought in any county where service could be had, and could not be brought in county in which administrator was appointed unless he was served therein. Baker v. Puckett, 182 Ark. 265, 31 S.W.2d 286 (1930).

Cited: Chicago, Rock Island & Pac. Ry. v. Caple, 207 Ark. 52, 179 S.W.2d 151 (1944); Lopez v. Waldrum Estate, 249 Ark. 558, 460 S.W.2d 61 (1970); Fields v. Huff, 510 F. Supp. 238 (E.D. Ark. 1981); Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984); Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987); Baker v. State Farm Fire & Cas. Co., 34 Ark. App. 59, 805 S.W.2d 665 (1991); McCoy v. Crumby, 353 Ark. 251, 106 S.W.3d 462 (2003); Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004); Johnson v. Greene Acres Nursing Home Ass'n, 364 Ark. 306, 219 S.W.3d 138 (2005); Miller v. Centerpoint Energy Res. Corp., 98 Ark. App. 102, 250 S.W.3d 574 (2007); Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (2011).

16-62-102. Wrongful death actions — Survival.

    1. Whenever the death of a person or an unborn child as defined in § 5-1-102 is caused by a wrongful act, neglect, or default and the act, neglect, or default would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued, then and in every such case, the person or company or corporation that would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person or the unborn child as defined in § 5-1-102 injured, and although the death may have been caused under such circumstances as amount in law to a felony.
    2. The cause of action created in this subsection shall survive the death of the person wrongfully causing the death of another and may be brought, maintained, or revived against the personal representatives of the person wrongfully causing the death of another.
    3. A person is not liable under this subsection when the death of the unborn child results from:
      1. A legal abortion, including an abortion performed to remove an ectopic pregnancy or other nonviable pregnancy where the embryo is not going to develop further;
      2. The fault of the pregnant woman carrying the unborn child;
      3. Assisted reproduction technology activity, procedure, or treatment;
      4. Actions occurring before transfer to the uterus of the woman of an embryo created through in vitro fertilization; or
      5. A woman or her healthcare provider using contraception approved by the United States Food and Drug Administration.
  1. Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.
    1. Every action authorized by this section shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed, except the action may be commenced against a person in the time period permitted to bring a murder charge under § 5-1-109(a) if the person was convicted of one (1) of the following offenses:
      1. Capital murder, § 5-10-101;
      2. Murder in the first degree, § 5-10-102; or
      3. Murder in the second degree, § 5-10-103.
    2. If a nonsuit is entered for an action authorized by this section, the action shall be brought within one (1) year from the date the nonsuit was entered without regard to the date of the death of the person alleged to have been wrongfully killed.
  2. The beneficiaries of the action created in this section are:
    1. The surviving spouse, children, father, mother, brothers, and sisters of the deceased person;
    2. Persons, regardless of age, standing in loco parentis to the deceased; and
    3. Persons, regardless of age, to whom the deceased stood in loco parentis at any time during the life of the deceased.
  3. No part of any recovery referred to in this section shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.
    1. The jury or the court, in cases tried without a jury, may fix such damages as will be fair and just compensation for pecuniary injuries, including a spouse's loss of the services and companionship of a deceased spouse and any mental anguish resulting from the death to the surviving spouse and beneficiaries of the deceased.
    2. When mental anguish is claimed as a measure of damages under this section, mental anguish will include grief normally associated with the loss of a loved one.
  4. The judge of the court in which the claim or cause of action for wrongful death is tried or is submitted for approval of a compromise settlement, by judgment or order and upon the evidence presented during trial or in connection with any submission for approval of a compromise settlement, shall fix the share of each beneficiary, and distribution shall be made accordingly. However, in any action for wrongful death submitted to a jury, the jury shall make the apportionment at the request of any beneficiary or party.
  5. Nothing in this section shall limit or affect the right of circuit courts having jurisdiction to approve or authorize settlement of claims or causes of action for wrongful death, but the circuit courts shall consider the best interests of all the beneficiaries under this section and not merely the best interest of the widow and next of kin as now provided by § 28-49-104.
  6. It is not the responsibility of the personal representative of a deceased person to locate anyone in loco parentis who is not known to the personal representative to be in loco parentis to the deceased person.

History. Acts 1957, No. 255, §§ 1-5; 1981, No. 625, § 1; A.S.A. 1947, §§ 27-906 — 27-910; Acts 1993, No. 589, § 1; 2001, No. 1265, § 1; 2001, No. 1581, §§ 1, 2; 2013, No. 1032, § 2; 2013, No. 1426, § 1.

Amendments. The 2001 amendment by No. 1265 inserted “viable fetus” in (a)(1); added (a)(3); and made minor stylistic changes throughout.

The 2001 amendment by No. 1581 redesignated former (d) as present (d) through (d)(3) and made related changes; inserted “regardless of age” in (d)(2) and (d)(3); added “at any time during the life of the deceased” in (d)(3); and added (i).

The 2013 amendment by No. 1032 substituted “unborn child as defined in § 5-1-102” for “viable fetus” twice in (a)(1); and rewrote (a)(3).

The 2013 amendment by No. 1426 inserted “except the action … the following offenses” in (c)(1); inserted (c)(1)(A) through (c)(1)(C); and, in (c)(2), substituted “entered for an action authorized by this section” for “suffered,” deleted “of” following “from the date,” and inserted “was entered.”

Cross References. Right of action in case of death from injuries survives under workers' compensation laws, Ark. Const., Art. 5, § 32; Amend. 26.

Commencement or revival of actions, § 28-50-102.

Research References

Ark. L. Rev.

Negligence — Wrongful Death — Statute of Limitation, 15 Ark. L. Rev. 424.

Torts — Wrongful Death — Death from Prenatal Injuries, 17 Ark. L. Rev. 203.

Arkansas Model Jury Instructions: Wrongful Death, 20 Ark. L. Rev. 73.

Comment, The Arkansas Wrongful Death Statute, 35 Ark. L. Rev. 294.

Case Note, Simmons First National Bank v. Abbott: The Arkansas Wrongful Death Statute, etc., 40 Ark. L. Rev. 421.

Allowing Fetal Wrongful Death Actions in Arkansas: A Death Whose Time Has Come?, 44 Ark. L. Rev. 465.

Recent Developments, 49 Ark. L. Rev. 419.

Wrongful Death Damages Under the Arkansas Medical Malpractice Act: Would a Change Make Cents?, 54 Ark. L. Rev. 577 (2001).

Note, The Measure of Life: Determining the Value of Lost Years After Durham v. Marberry, 59 Ark. L. Rev. 125.

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 4 U. Ark. Little Rock L.J. 581.

Arkansas Law Survey, Saunders, Torts, 7 U. Ark. Little Rock L.J. 259.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

Survey — Civil Procedure, 11 U. Ark. Little Rock L.J. 137.

Survey — Torts, 11 U. Ark. Little Rock L.J. 261.

Survey, Torts, 13 U. Ark. Little Rock L.J. 409.

Legislative Survey, Miscellaneous, 16 U. Ark. Little Rock L.J. 161.

Note, A Viable Fetus is Not a “Person” Under the Arkansas Wrongful Death Statute, 19 U. Ark. Little Rock L.J. 307.

Torts-Wrongful Death-The Birth of Fetal Rights Under Arkansas's Wrongful Death Statute: The Arkansas Supreme Court Recognizes a Fetus as a “Person.” Aka v. Jefferson Hospital Ass'n, 344 Ark. 627, 42 S.W.3d 508 (2001), 24 U. Ark. Little Rock L. Rev. 359.

Annual Survey of Caselaw, Tort Law, 24 U. Ark. Little Rock L. Rev. 1085.

Case Notes

Constitutionality.

This section does not violate Ark. Const., Art. 2, § 13. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overruled in part, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), superseded by statute as stated in, Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

Construction.

An historical distinction has been built into the wrongful death legislation between the proceeding to determine the apportionment of the award and the proceeding to determine the liability and computation of damages recoverable from the tortfeasor, which distinction is preserved in the scheme of this section; the issue of fixing the amount of damages is dealt with in subsection (f) and the issue of fixing the shares of the statutory beneficiaries in that award is dealt with in subsection (g). Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

If the defendant is deceased, the three-year limit on wrongful death actions provided by subdivision (c)(1) of this section may be shortened by § 28-50-101(a). Callaghan v. Coberly, 927 F. Supp. 332 (W.D. Ark. 1996).

A wrongful-death action brought by a plaintiff in his individual capacity pursuant to this section involves neither the same action nor the same plaintiff as a survival action brought by the plaintiff in his representative capacity on behalf of the decedent's estate pursuant to § 16-62-101. Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).

Two-year limitations period of Medical Malpractice Act, § 16-114-201 et seq., conflicts with the three-year limitations period provided under subsection (c) of this section and is therefore controlling where death ensues from medical injuries. Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Applicability.

Where the alleged cause of the decedent's death was a medical injury, the two-year statute of limitations provided by § 16-114-203, rather than the three-year statute of limitations in this section, is applicable. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

Rejection of the husband's claim that he had a curtesy interest in a settlement award involving his deceased wife was appropriate because the wife never possessed a chose in action since there was no cause of action for wrongful death created in any individual beneficiary under this section, the wrongful-death statute. Bridges v. Shields, 2011 Ark. 448, 385 S.W.3d 176 (2011).

Admiralty.

The right of action given by former, similar section may be enforced in admiralty. Monongahela River Consol. Coal & Coke Co. v. Schinnerer, 196 F. 375 (6th Cir. 1912) (decision under prior law).

Apportionment.

The factors set forth in subsection (f) of this section also guide the probate court's determination of the apportionment of the settlement proceeds under subsection (g), in those cases where the damages issue was not tried. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

The evidence supported the probate court's apportionment order, where the probate court's 50/50 apportionment of the remaining proceeds between appellant and the minors roughly approximated the apportionment of their economic losses (52% to appellant and 48% to the minors), and the court clearly considered both this evidence and the compensable elements enumerated in this section. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

In an action arising from a fatal motor vehicle collision which resulted in an award of damages apportioned by the jury among family members of the decedent, two awards were reversed where the recipients did not testify at trial and no other witnesses presented evidence of mental anguish on the part of either of them. New Prospect Drilling Co. v. First Com. Trust, 332 Ark. 466, 966 S.W.2d 233 (1998).

Under subsections (g) and (h), it was clear that the probate court had the authority to approve a wrongful death settlement and also to apportion and distribute the proceeds. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Attorneys' Fees.

A beneficiary's attorney is not entitled to fees on a portion of wrongful death proceeds attributable to the beneficiary, and a probate court has no jurisdiction to award attorneys' fees for services rendered to an individual beneficiary. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

Beneficiaries.

An action for the benefit of the estate and one for the widow may be joined. Tillar v. Reynolds, 96 Ark. 358, 131 S.W. 969 (1910); Southern Anthracite Coal Co. v. Hodge, 99 Ark. 302, 139 S.W. 292 (1911) (preceding decisions under prior law).

The administrator may recover for the conscious suffering of a deceased infant, and it is no defense, that the father, being sole distributee, was guilty of contributory negligence. Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911) (decision under prior law).

The administrator of a deceased minor is entitled to recover all damages for a wrongful death, both for the benefit of his estate and the next of kin. Southwestern Gas & Elec. Co. v. Godfrey, 178 Ark. 103, 10 S.W.2d 894 (1928)Questioned byWheaton Van Lines, Inc. v. Williams, 240 Ark. 280, 399 S.W.2d 258 (1966) (decision under prior law).

Where widow received payment of judgment for her husband's death for the benefit of herself and next of kin, widow was entitled to only one-third of the amount received and she held the balance in trust for her children; the adult children being entitled to their share on demand. Moseley v. Beard, 203 Ark. 731, 158 S.W.2d 917 (1942) (decision under prior law).

Where grandparents stood in loco parentis to their nine-year-old grandson, an award for mental anguish because of the death of the grandson was not improper. Bockman v. Butler, 226 Ark. 159, 288 S.W.2d 597 (1956) (decision under prior law).

Any recovery in action by administratrix for wrongful death of deceased would be for the benefit of deceased's next of kin. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Damages recovered do not become a part of the general assets of the estate and are not subject to debts of the estate but are recovered in trust for the beneficiaries named herein. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961).

A step-daughter was one to whom the deceased stood in loco parentis within the meaning of this section. Moon Distribs., Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968).

Section 9-9-215 specifically says that, in construing statutes, the court shall recognize that there is no legal relationship existing between an natural parent whose child has been adopted by another; the child of a natural father adopted by another, was not one of the beneficiaries which this section authorized to recover for the wrongful death of the decedent. Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983).

Whether a decedent stood in the position of in loco parentis to a person is to be determined by the intent of the parties. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

The fact that step-son lived with his mother and decedent for a little over 15 months was not enough to establish that decedent had formed the intent to assume the duties and benefits of becoming step-son's father. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

A step-son was not one to whom the deceased stood in loco parentis within the meaning of this section where nothing in the record indicated that the deceased had formed the intent to assume the duties and benefits of becoming step-son's father. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

Where defendant's sole claim to the proceeds of wrongful death award was as decedent's surviving spouse, and where because of the invalidity of her marriage to decedent, she was not his surviving spouse, she thus could not share in the proceeds of the settlement. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

Under the Arkansas wrongful death statute, a corporation cannot recover for the loss of an employee's services because a decedent's employer is not an enumerated beneficiary. Lusby v. Union Pac. R.R., 4 F.3d 639 (8th Cir. 1993).

Children who are not living at the time of the deceased person's death are not among the statutory beneficiaries, and neither are the deceased children's heirs at law, therefore, the definition of “children” as used in subsection (d) of this section does not include the descendants of those children of the deceased who predeceased the deceased. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000).

Circuit court erred in denying defendants' motion to compel arbitration in a wrongful death action brought on behalf of a nursing home resident's beneficiaries because under subdivision (a)(1) of this section, the wrongful-death beneficiaries were bound by the arbitration agreement executed by the nursing home resident. Searcy Healthcare Ctr., LLC v. Murphy, 2013 Ark. 463 (2013).

Trial court correctly determined that a decedent's stepchildren were not beneficiaries of a wrongful-death settlement as that term was defined in the statute; at no time did the decedent assume the role or responsibilities of a parent with regard to either stepchild and, as such, the relationship between the stepchildren and the decedent never rose to the level of in loco parentis. Zulpo v. Blann, 2013 Ark. App. 750 (2013).

It was unnecessary to determine whether the decedent's daughter was a beneficiary of the wrongful-death action because the jury absolved the doctor of negligence. Hartman v. Edwards, 2014 Ark. App. 480, 442 S.W.3d 13 (2014).

Collateral Source Rule.

Although the collateral source rule was held not applicable to a proceeding for distribution of settlement funds, it still applies in the context of a proceeding to determine the liability and damages recoverable from the wrongdoer. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

Where the amount of damages was reached by compromise agreement and was finalized prior to the commencement of the apportionment proceeding, subsection (f) did not apply. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

Complaint.

If the complaint fails to show that there is no administrator, the defect may be supplied by proof. Saint Louis, I.M. & S. Ry. v. Hutchinson, 101 Ark. 424, 142 S.W. 527 (1912) (decision under prior law).

Dismissal of wrongful death action was proper where personal representatives of estate filed complaint pro se, which constituted the unauthorized practice of law rendering the complaint a nullity, and where the two-year statute of limitations had expired. Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002).

Widower failed to meet the requirements of subsection (b) of this section because he had not been appointed executor at the time he originally filed the complaint; therefore, he lacked standing to pursue the action, the original complaint was a nullity, and the subsequent appointment of the widower as executor did not relate back to the filing of the original complaint. McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.3d 442 (2002).

Although plaintiff lacked standing to sue when she filed the original complaint because she had not yet been appointed the administrator of decedent's estate and she was not the sole heir, upon being appointed administrator six days later, she was deemed to be a new party when she filed the timely amended complaint; the original complaint remained a document setting out allegations satisfying the fact-pleading requirements for a complaint set out in Ark. R. Civ. P. 8(a) and the facts pled in the original complaint were adopted by reference under Ark. R. Civ. P. 10(c) into the amended complaint. Hackelton v. Malloy, 364 Ark. 469, 221 S.W.3d 353 (2006).

District court did not abuse its discretion in denying a motion to amend the complaint filed by plaintiff, the decedent's daughter, pursuant to Fed. R. Civ. P. 15(a), in a wrongful death action where the daughter, who at the time she filed the original complaint was not yet the personal representative of the estate and the heirs were not named as parties in the complaint, lacked standing to sue; the complaint amounted to a nullity and could not serve as the foundation for an amendment.Williams v. Bradshaw, 459 F.3d 846 (8th Cir. 2006).

Conflict of Laws.

The fact that the laws of distribution in this state and those of the state where the death occurred are different is no defense to an action brought in this state. Midland V. R. Co. v. Le Moyne, 104 Ark. 327, 148 S.W. 654 (1912) (decision under prior law).

District court erred in applying Arkansas law as a basis for dismissing plaintiff's suit seeking relief for the alleged impairment of its hospital lien by a decedent's estate that had settled a wrongful death claim without paying the decedent's medical bills, because Arkansas's interest did not outweigh concerns about forum shopping and maintenance of interstate order that favored the application of Tennessee law to plaintiff's lien impairment claim. Shelby Cnty. Health Care Corp. v. Southern Farm Bureau Cas. Ins. Co., 855 F.3d 836 (8th Cir.), cert. denied, 138 S. Ct. 473, 199 L. Ed. 2d 358 (U.S. 2017).

Damages.

The loss to minor children of the instruction and the physical, moral, and intellectual training by a parent is an element to be considered in estimating damages to children by reason of parents' wrongful death, and each child is entitled to recover the amount of pecuniary loss sustained by the child. Saint Louis, I.M. & S. Ry. v. Prince, 101 Ark. 315, 142 S.W. 499 (1911) (decision under prior law).

Where the wrongful act of another deprives the husband of the services or companionship of his wife, he is entitled to compensation therefor. Graysonia-Nashville Lumber Co. v. Carroll, 102 Ark. 460, 144 S.W. 519 (1912) (decision under prior law).

The widow and children of one negligently killed are not entitled to damages for his pain and suffering but only to damages for the loss of his comfort and support. Hines v. Betts, 146 Ark. 555, 226 S.W. 165 (1920); Webb v. Waters, 154 Ark. 547, 243 S.W. 846 (1922) (preceding decisions under prior law).

In an action by a parent for the negligent killing of a child, the damages awarded must be founded on pecuniary loss, actual or expected, and mere injury to feelings cannot be considered. Interurban Ry. v. Trainer, 150 Ark. 19, 233 S.W. 816 (1921)Questioned byBeaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959) (decision under prior law).

Parents sought damages for the death of their adult son and it was held that contributions by the son to the father were admissible in evidence without proof of financial dependency. Washburn v. Douthit, 73 F.2d 23 (8th Cir. 1934) (decision under prior law).

Instruction authorizing recovery of damages by a parent for death of child in such sum as he would have contributed to his parents after reaching majority was held erroneous. Davis v. Gillin, 188 Ark. 523, 66 S.W.2d 1057 (1934) (decision under prior law).

In death action by administrator, instruction as to measure of damages should have distinguished between cause of action for the benefit of widow and next of kin for pecuniary loss to them and cause of action to the estate for damages suffered by the deceased prior to his death. Clift v. Jordan, 205 Ark. 245, 168 S.W.2d 403 (1943) (decision under prior law).

In action to recover for death of plaintiff's husband, instruction authorizing jury to include in their verdict, as an element of damages, loss of consortium and companionship amounted to an erroneous declaration as to measure of damages, but, when raised for first time in the motion for new trial, cannot be considered on appeal. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

To prove loss of future earnings due to impairment of earning power of the deceased at the time of the accident and death, evidence as to prior earnings is not necessarily confined to the immediate time prior to the accident. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

Recovery for benefit of children should be limited to the present worth of sums which would be contributed by the parent prior to their majority. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

The pecuniary value of the loss of future earnings of the deceased is a factor to be considered in determining the loss of the financial aid to the widow and children. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

Temporary employment, and the higher wages paid thereon, considered alone, would not be a proper test to furnish a fair and general measure of his earning capacity. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

In estimating damage resulting from loss or impairment of earning capacity, the reasonable and dependable probabilities, looking through all that may happen and for all the year for which the computation is to be made, and viewed according to the general experiences and observations of life, are the elements which are to guide to a fair and acceptable result. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

There is nothing in this section which limits a child's recovery for pecuniary loss, arising from the wrongful death of a parent, to the period of his minority. Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959).

Since the right to recover damages for pecuniary loss beyond the minority of the beneficiaries depends upon the circumstances, where it is clear that deceased would have contributed to the education of his two sons even after they had attained their majority, the sons are entitled to damages for pecuniary loss beyond their minority. Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959).

The term “pecuniary injuries” as used in this section is not limited to the present value of the financial support that a child would receive from his mother during his minority, but includes also compensation for the loss of parental love, care, supervision, and training. Bridges v. Stephens, 238 Ark. 801, 384 S.W.2d 490 (1964).

Award for the death of the mother of an illegitimate child dependent upon the mother not only for pecuniary support, but also for the loving care that a child ordinarily receives from both parents, found not excessive. Bridges v. Stephens, 238 Ark. 801, 384 S.W.2d 490 (1964).

This section does not limit the recovery of one to whom the deceased stood in loco parentis to damages for mental anguish to the exclusion of damages for pecuniary loss. Moon Distribs., Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968).

Since this section limits the class of beneficiaries who can recover compensatory damages for pecuniary loss to the surviving spouse and next of kin of the deceased, and the relationship of brother to the deceased was not analogous to next of kin; instruction that permitted jury to compensate brother for such pecuniary loss was error. Vickers v. Gifford-Hill & Co., 534 F.2d 1311 (8th Cir. 1976).

Where the adult sons were financially independent, and the decedent had no legal obligation to support the adult sons, and where the sons had not truly demonstrated that they suffered greater than normal grief due to the loss of their father, the court correctly directed a verdict in favor of defendants. Dobson v. Bacon Transp. Co., 607 F.2d 805 (8th Cir. 1979).

Where the testimony of the surviving husband of a woman killed in an automobile accident concerning his mental anguish was sufficient in itself to support the amount which the probate court apportioned to him, the award for mental anguish was proper, even though the court awarded the husband one-third of the wrongful death action recovery and referred to a “curtesy amount” since the evidence showed that the court did not determine his share arbitrarily and without reference to the evidence. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981).

Evidence sufficient to justify an award of punitive damages. Brown v. Missouri Pac. R.R., 543 F. Supp. 348 (W.D. Ark. 1982), aff'd, 703 F.2d 1050 (8th Cir. 1983).

The laws of this state do not preclude the allowance of punitive damages in a wrongful death action, at least where the award of punitive damages is simply an incident of the action for personal injuries that the decedent would have had if he had lived. Brown v. Missouri Pac. R.R., 703 F.2d 1050 (8th Cir. 1983).

For discussion of amount of damages to be awarded for compensatory damages, pecuniary injuries, mental anguish, conscious pain and suffering, loss of services and loss of consortium to survivors of victims of an explosion, see Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987).

Finding in favor of the spouse that a pharmacist incorrectly filled the decedent's prescription resulting in his death was proper and an award of $125,000 to the decedent's daughter for mental anguish was acceptable because subdivision (f)(2) of this section included grief normally associated with the loss of a loved one. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

Jurisdiction.

The probate court does not have jurisdiction to resolve the paternity of a child in order to determine whether the child can share in the proceeds of a wrongful death settlement. Rager v. Turley, 342 Ark. 223, 27 S.W.3d 729 (2000).

Denial of doctor's petition seeking a writ of prohibition to prevent circuit court from proceeding with a wrongful-death action was proper where the circuit court was not wholly without jurisdiction; furthermore, the court could not treat the petition as one for certiorari because the case simply did not present a situation where the remedy by appeal was inadequate. Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003).

—Mental Anguish.

Mental anguish, to warrant recovery of damages therefore, must be real and with cause and must have resulted proximately and naturally from conduct or event which gives rise to the right of recovery, and an award must be reasonable in light of all relevant factors disclosed by the evidence. Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959).

The principles laid down by the Supreme Court in the cases decided under § 23-17-112(a) are applicable to mental anguish claims arising under this section. Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959).

Award to children was reasonable compensation for mental anguish suffered by them because of wrongful death of father. Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959).

It was the intention of the legislature to allow recovery for mental anguish under this section. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overruled in part, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), superseded by statute as stated in, Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

In order to recover for mental anguish under this section, one must suffer more than normal grief. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overruled in part, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), superseded by statute as stated in, Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003); Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968).

A verdict for mental anguish suffered by parents because of death of their daughter was not so grossly excessive as to shock conscience of court. Tiner v. Tiner, 238 Ark. 222, 379 S.W.2d 425 (1964).

Where the decedent was survived by his mother and several brothers and sisters, the brothers and sisters could recover for mental anguish caused by the wrongful death even though they were not heirs at law. Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968).

In wrongful death action, factors to be considered in evaluating mental anguish are the duration and intensity of the sorrow and grief, the attitude of the decedent toward the survivor, the attitude of the survivor toward the decedent, the duration and intimacy of the relationship, and ties of affection between decedent and survivor, and the violence and suddenness of the death. St. Louis Sw. Ry. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).

Mental anguish in wrongful death actions will vary in every case according to the nervous temperament of the individual, his ability to withstand shock, sex, circumstances, and position in life. St. Louis Sw. Ry. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).

Among the circumstances to be considered in determining the extent and compensability of mental anguish are the closeness of the relationship of the survivors with the deceased, the probable life expectancy of the deceased and survivors, the nature of the death, and the physical and mental impact on the survivors. Dugal v. Commercial Std. Ins. Co., 456 F. Supp. 290 (W.D. Ark. 1978).

Damages under this section may include compensation for mental anguish occasioned by a death, provided that the survivors suffer more than normal grief. Dugal v. Commercial Std. Ins. Co., 456 F. Supp. 290 (W.D. Ark. 1978).

The legislature vested the cause of action for damages for mental anguish in the personal representative, but with the recovery apportionable among the individual beneficiaries, so that all claims arising from a wrongful death can be asserted and settled in one suit and there was no reason to recognize a duplicate cause of action in the decedent's mother as an individual. Waldrip v. McGarity, 270 Ark. 305, 605 S.W.2d 5 (1980).

The award to each beneficiary for mental anguish for wrongful death is to be determined on an individual basis. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981).

Evidence was sufficient in itself to support the amount which the probate court apportioned to him; award for mental anguish was proper, even though the court awarded the husband one-third of the wrongful death action recovery and referred to a “curtesy amount,” since the evidence showed that the court did not determine his share arbitrarily and without reference to the evidence. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981).

The proximity of relationship between the deceased and the survivors is the most significant factor in determining whether recovery for mental anguish is allowable; distant relatives generally have no more than normal grief and will not be allowed to recover without establishing something more. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986).

The suddenness and violent nature of the death is not sufficient, standing alone, to support an award of damages for mental anguish. Mental anguish must be real and with cause and be more than the normal grief occasioned by the loss of a loved one. Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987).

Factors utilized in evaluating awards for mental anguish in wrongful death cases are: (1) the duration and intimacy of their relationship and the ties of affection between the decedent and the survivor; (2) frequency of association and communication between an adult survivor and an adult decedent; (3) the attitude of the decedent toward the suvivor and of the survivor toward the decedent; (4) the duration and intensity of the sorrow; (5) maturity or immaturity of the survivor; (6) the violence or suddenness of the death; (7) sleeplessness or troubled sleep over an extended period; (8) obvious extreme or unusual nervous reaction to the death; (9) crying spells over an extended period of time; (10) adverse effect on survivor's work or school; (11) change of personality of the survivor; (12) loss of weight by survivor or other physical symptoms; and (13) age and life expectancy of the decedent. Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987).

—Punitive Damages.

The estate and children of decedent could recover punitive damages in wrongful death action brought under this section since Arkansas courts have allowed punitive damages where the action is grounded in the wrongful death or survival statutes. Fields v. Huff, 510 F. Supp. 238 (E.D. Ark. 1981).

Punitive damages are recoverable in wrongful death actions. The surviving beneficiaries of the decedent, killed as a result of willful and wanton tortious conduct, are entitled to recover those punitive damages the decedent would have recovered had he or she lived. Vickery v. Ballentine, 293 Ark. 54, 732 S.W.2d 160 (1987).

The purpose of punitive damages is not to compensate the injured party but to impose a monetary penalty on the defendant and to discourage others from similar behavior. That purpose is unquestionably the same whether the injured person lives or dies as a result of defendant's willful or wanton conduct. Vickery v. Ballentine, 293 Ark. 54, 732 S.W.2d 160 (1987).

Medical Malpractice.

The limitations period provided under § 16-114-203 conflicts with the limitations period provided under this section; pursuant to the Medical Malpractice Act, § 16-114-201 et seq., this section's statute of limitations, as an inconsistent provision of law, is superseded by § 16-114-203 where the two conflict. Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996).

Any medical injury, even one resulting in death, is governed by the medical malpractice statute of limitations, § 16-114-203, and not by this section. Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996).

By passing the Medical Malpractice Act, § 16-114-201 et seq., the Arkansas General Assembly did not repeal this section in cases where the death was caused by a medical injury. Meredith v. Buchman, 101 F. Supp. 2d 764 (W.D. Ark. 2000).

Wrongful-death and survival action brought by the administratrix of the decedent's estate against the medical center was time-barred under § 16-114-203 as the order appointing the administratrix was not effective until it was filed almost two weeks after the complaint was filed; therefore, at the time the administratrix filed this cause of action against the medical center, she was not the administrator of the estate and did not have standing to pursue the claim against the medical center. As such, the complaint was a nullity. Hubbard v. Nat'l Healthcare of Pocahontas, Inc., 371 Ark. 444, 267 S.W.3d 573 (2007).

Parties.

It is no defense that the widow has remarried since the killing. Saint Louis, I.M. & S. Ry. v. Cleere, 76 Ark. 377, 88 S.W. 995 (1905) (decision under prior law).

In an action for the killing of a child, the surviving father being the next of kin and the parent in whose behalf recovery may be had, it was error to instruct the jury that the mother might recover for the loss of the child's services. Hines v. Johnson, 145 Ark. 592, 224 S.W. 989 (1920) (decision under prior law).

Where a widow brought suit for the wrongful death of her husband in her name for the benefit of herself and their minor child and judgment was rendered for the widow and no question was raised in the trial court as to the proper parties plaintiff, it could not be raised for the first time on appeal. Reynolds v. Nutt, 217 Ark. 543, 230 S.W.2d 949 (1950) (decision under prior law).

Where wrongful death action was brought in the respective names of the parents of deceased minors when the parents were administrators of the respective estates of the sons, defendants were not prejudiced by the action of the court in denying their motion to dismiss the complaint and permitting the plaintiffs to amend their complaint by interlineation, substituting the proper parties plaintiff. J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W.2d 176 (1964)Criticized byHarris v. Hercules, Inc., 328 F. Supp. 360 (E.D. Ark. 1971).

Actions for survivorship and actions for wrongful death are separate and distinct in nature. In a survival action, the administrator asserts the decedent's own cause of action, and only the administrator may bring this cause of action; the wrongful death statute, on the other hand, creates a cause of action in the survivors, and it may be brought by the administrator in their behalf, or by the heirs themselves if there is no administrator. First Com. Bank v. United States, 727 F. Supp. 1300 (W.D. Ark. 1990).

In Arkansas, a wrongful-death action must be brought by and in the name of the personal representative of the deceased person, and if there is no personal representative of the deceased person, then a wrongful-death action must be brought by all the heirs at law; an action brought by less than all the heirs of the deceased is a nullity. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003).

Survival and wrongful death action was properly dismissed because subsection (b) of this section requires that the suit be filed by the personal representative or all of the heirs of the decedent, and the Arkansas Supreme Court has held that this language is clear and unambiguous; because the wrongful-death action is a creation of statute and exists only in the manner and form prescribed by statute, an action brought by less than all of the heirs of the deceased is a nullity. Estate of Mona L. Hernandez v. Clark, — Ark. App. —, — S.W.3d —, 2004 Ark. App. LEXIS 481 (June 23, 2004).

Term “heirs at law” as used in subsection (b) of this section means “beneficiaries” as used in subsection (d), and a motion to dismiss a wrongful death action was properly granted where two sisters were not named as parties; the doctrine of relation back under Ark. R. Civ. P. 15 did not help because the original complaint was a nullity. Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458, 2005 Ark. LEXIS 239 (2005).

Circuit court properly concluded that the next of kin's wrongful death complaint against the physicians and nurses did not comply with § 16-62-102 (Supp. 1999) where there was no personal representative and the decedent's three siblings had not been named as plaintiffs in the action. Rice v. Tanner, 363 Ark. 79, 210 S.W.3d 860 (2005).

Order granting judgment on the pleadings in favor of a city, county, and others in a 42 U.S.C.S. § 1983 wrongful death action was affirmed as, when the original complaint was filed, the plaintiff, the decedent's daughter, was not yet the administratrix of the estate and the caption did not list the heirs individually, as required by Fed. R. Civ. P. 10(a) and Ark. R. Civ. P. 10(a); the complaint did not identify the heirs as parties and did not meet the requirements of subsection (b) of this section, thus, the daughter lacked standing to sue. Williams v. Bradshaw, 459 F.3d 846 (8th Cir. 2006).

Wrongful death and survival action filed by decedent's mother on behalf of herself and decedent was neither brought by and in the name of an appointed personal representative of decedent nor were decedent's brother and biological father (both statutory beneficiaries under subsection (d) of this section), joined as plaintiffs as required for a wrongful death action under subsection (b) of this section. Further, neither the mother nor anyone else had been appointed an administrator or executor as required for a survival action under § 16-62-101; therefore, at the time the mother filed the action, she did not have standing to pursue the claims against defendants. Farrow v. Sammis, No. 3:07cv00097 SWW, 2007 U.S. Dist. LEXIS 90429 (E.D. Ark. Dec. 7, 2007).

Regarding a father's motion to intervene in a mother's wrongful death and survivor action for the sole purpose of seeking to stay the proceedings pending a determination from the probate court as to who would be named administrator of decedent son's estate, Ark. R. Civ. P. 17 had no application because the action was not filed in accordance with subsection (b) of this section or § 16-62-101 and the original complaint thus was a nullity. When the original complaint was a nullity, Ark. R. Civ. P. 17 was inapplicable because the original complaint never existed and, therefore, there was no pleading to amend. Farrow v. Sammis, No. 3:07cv00097 SWW, 2007 U.S. Dist. LEXIS 90429 (E.D. Ark. Dec. 7, 2007).

Dismissal of a wrongful-death action against a doctor and a hospital was proper because the savings statute under § 16-62-102(b) did not apply since the case was improperly refiled by a mother and father as heirs at law when a personal representative had been appointed; the personal representative should have been substituted as the real party in interest prior to dismissal. Recinos v. Zelk, 369 Ark. 7, 250 S.W.3d 221 (2007).

Summary judgment was properly awarded to a physician in a husband's wrongful-death/survival action because when the husband filed his original suit, no order had been entered appointing him as administrator, nor were all of the wife's heirs at law named as plaintiffs, as required by § 16-62-101 and subsection (b) of this section. Norton v. Luttrell, 99 Ark. App. 109, 257 S.W.3d 580 (2007).

Trial court did not err by granting the doctors' summary judgment because the medical malpractice action was not properly filed within the two-year statute of limitations of § 16-114-203(a). The trial court did not err in holding that the November 3, 2009 order of substitution of parties was ineffective and therefore the action was barred by the statute of limitations because: (1) the wrongful death complaint filed by the patient's daughter and husband in April 2009 was a nullity because four siblings of the patient were omitted as party plaintiffs as required by subsection (b) of this section and therefore it never existed; (2) the order of substitution of parties that substituted the daughter in her capacity of estate administrator as the party plaintiff did not allege any facts supporting the action and therefore did not constitute an amended complaint; (3) the order of substitution was entered on November 3, 2009, after the statute of limitations had expired as to each doctor in July 2009 and September 2009; and (4) the estate administrator could not establish the first element of the continuous-course-of-treatment doctrine because she could not establish that the doctors provided continuous treatment to the patient up to November 3, 2009. Mendez v. Glover, 2010 Ark. App. 808, 379 S.W.3d 92 (2010).

—Heirs.

The mother is not an heir entitled to sue, although the deceased contributed to her support in his lifetime. Kansas City S. Ry. v. Frost, 93 Ark. 183, 124 S.W. 748 (1909) (decision under prior law).

A boy whose parents were killed in a railroad crossing collision, leaving him the only heir and next of kin of both parents, may recover for the mother's death. St. Louis-San Francisco Ry. v. Oxford, 174 Ark. 966, 298 S.W. 207 (1927) (decision under prior law).

Failure to appoint a personal representative has no bearing in a wrongful death action as the “heirs at law” can sue in their own right. Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974).

The statute authorizing heirs to maintain suit on behalf of a decedent is this section, and it applies only to wrongful death situations. Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984).

Where a wrongful death action is pursued by heirs at law, all heirs at law must be joined in the action; where there are multiple heirs at law, a single heir at law lacks standing under this section, thus depriving the circuit court of jurisdiction. Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001).

Since family did not name decedent's siblings as plaintiffs in a lawsuit against defendants for medical malpractice where probate had not been opened, the complaint was a nullity and summary judgment in favor of defendants was proper; siblings were not named as plaintiffs until after statute of limitations in § 16-114-203 expired. Rice v. Tanner, 363 Ark. 79, 210 S.W.3d 860 (2005).

— —In Loco Parentis.

Where there was no evidence that the two adult grandchildren, who suffered no disability, were relying on their mother's support at the time of her death, they were not beneficiaries under the wrongful-death statute and were not entitled to take as heirs at law of their mother, because she did not stand in loco parentis to them at the time of her death. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000).

—Joinder.

Where there is no personal representative, the action may be brought by the widow and heirs, but if all parties do not join, the error is waived unless raised in trial court. St. Louis, I. M. & S. R. Co. v. Watson, 97 Ark. 560, 134 S.W. 949 (1911)Questioned byBond v. Missouri Pac. R.R., 233 Ark. 32, 342 S.W.2d 473 (1961). See also Saint Louis, I.M. & S. Ry. v. Corman, 92 Ark. 102, 122 S.W. 116 (1909) (preceding decisions under prior law).

It was an indispensable prerequisite to the maintenance of a suit under former section that widow and heirs be joined. Thompson v. Southern Lumber Co., 113 Ark. 380, 168 S.W. 1068 (1914) (decision under prior law).

An administratrix suing for the wrongful death of a foreign bus company's ticket agent who was injured while helping to load a passenger's truck on one of the company's vehicles was entitled to maintain a joint action against the company, the bus driver, and the Arkansas citizens who allegedly caused the death. Harrelson v. Missouri Pac. Transp. Co., 87 F.2d 176 (8th Cir. 1936) (decision under prior law).

—Personal Representatives.

The father cannot maintain the action where there is a personal representative. Saint Louis, M. & S.E.R.R. v. Garner, 76 Ark. 555, 89 S.W. 550 (1905) (decision under prior law).

A foreign administrator may maintain the action. St. Louis Sw. Ry. v. Graham, 83 Ark. 61, 102 S.W. 700 (1907); Midland V. R. Co. v. Le Moyne, 104 Ark. 327, 148 S.W. 654 (1912) (preceding decisions under prior law).

A wife's administrator may sue her husband for tort resulting in her death. Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832 (1916) (decision under prior law).

The administrator of a deceased employee may recover for his death against his employer for the benefit of everybody concerned, including the next of kin. Ashcraft v. Jerome Hardwood Lumber Co., 173 Ark. 135, 292 S.W. 386 (1927) (decision under prior law).

Deceased's mother as his administratrix could maintain an action for damages for his wrongful death. St. Louis-S.F. Ry. v. Crick, 182 Ark. 312, 32 S.W.2d 815 (1930) (decision under prior law).

A death action based on the Employer's Liability Act, §§ 11-8-10111-8-108, for the benefit of the deceased employee's widow and heirs against a corporation not engaged in interstate commerce must be instituted by the personal representative of such employee and not by his widow and heirs. Dicken v. Missouri P. R. Co., 188 Ark. 1035, 69 S.W.2d 277 (1934) (decision under prior law).

When a personal representative is appointed, the personal representative is the only person who can maintain a suit for damages for wrongful death. Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953), cert. denied, 347 U.S. 937, 74 S. Ct. 632 (1954) (decision under prior law).

Personal representative in bringing suit for wrongful death acts only as a trustee of conduit and may not go beyond that status. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961).

Where personal representative is appointed, personal representative is the only person who can maintain suit for wrongful death. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961); Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33 (1988).

Where deceased has died as a result of alleged negligence of defendant, both action for compensation of deceased's injuries and action for wrongful death of deceased should be brought by personal representative of deceased if there is one. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

While the widow and daughter of deceased are beneficiaries of any wrongful death recovery, there is no case law or statute giving them standing as parties to the action. Therefore it was not they, but the administrator, whose duty and right it was to pursue the action, subject to the probate court's approval, and to choose counsel for that purpose. Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985); Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

The personal representative, in bringing suit for wrongful death, acts only as a trustee of conduit, and any proceeds recovered are for the benefit of the beneficiaries and not for the estate. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

Beneficiaries may prefer to have independent counsel to protect their interests in a wrongful death suit, but as long as the code provides that the personal representative is the party to bring the action, that party has the absolute right to choose counsel for that purpose. Should the personal representative or chosen council fail to provide adequate representation, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative, and a representative can be removed pursuant to § 28-48-105 if the court finds him unsuitable. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

Every wrongful death action shall be brought by the personal representative of the deceased person, if there is a personal representative. McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997).

A personal representative of the estate may file a wrongful death action on behalf of the statutory beneficiaries. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Dismissal of a wrongful death action filed in the name of the estate was proper where the action was required to have been brought by and in the name of the personal representative as personal representative; in addition, had an amendment been allowed to substitute the name of the personal representative, it would have constituted the commencement of a new action for which the period of limitations had expired pursuant to this section. Estate of Byrd v. Tiner, 81 Ark. App. 366, 101 S.W.3d 887 (2003).

—Special Administrator.

Because a special administrator was appointed in a reopened probate case, the special administrator was the duly appointed representative for the wrongful-death statutory beneficiaries and was the proper party plaintiff in the tort case. Arman v. Chi St. Vincent Hot Springs, 2019 Ark. App. 187, 574 S.W.3d 731 (2019).

Pecuniary Injuries.

The term “pecuniary injuries” in a wrongful death action refers to the present value of benefits, including money, goods and services which the deceased would have contributed to the claimed beneficiaries had she lived. Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987).

Prior Judgment.

Where in action for injuries resulting from automobile collision by one driver against the other driver's widow as administratrix of his estate, widow did not file a cross complaint but alleged contributory negligence, judgment against the estate was held to bar subsequent action by widow against plaintiff in the former suit and his employer to recover damages occasioned by loss of contributions made to her by her deceased husband, since the widow had the duty of litigating in the former suit all the questions which she raised in the suit later brought for her personal benefit. Morgan v. Rankin, 197 Ark. 119, 122 S.W.2d 555, 119 A.L.R. 1466 (1938) (decision under prior law).

Where a personal representative of the deceased recovered in a wrongful death action and later an unknown widow of the deceased appeared and filed another wrongful death action against the defendant, the first suit is res judicata and a bar to the latter. Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953), cert. denied, 347 U.S. 937, 74 S. Ct. 632 (1954) (decision under prior law).

Trial court properly entered summary judgment for defendant railroad in decedent's estate's wrongful death lawsuit where the decedent's guardian had already sued the railroad and the case had been settled and the guardian had signed a release. Estate of Hull v. Union Pac. R.R., 355 Ark. 547, 141 S.W.3d 356 (2004).

Where the decedent wandered away from a nursing home and was never found, and where the guardian's negligence action concluded in a dismissal with prejudice, the guardian could not have brought another negligence and wrongful death lawsuit stemming from the same acts when the probate court declared the missing decedent was in fact dead. Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004).

Property Damage.

The action authorized by former statute could not be used to recover damages for injuries to property. Pierce Oil Corp. v. Taylor, 147 Ark. 100, 227 S.W. 420 (1921) (decision under prior law).

Settlement Agreement.

A memorandum agreement purporting to settle all matters involved in the administration and distribution of decedent's estate did not preclude a wrongful death action filed on behalf of the statutory heirs. Skaggs v. Cullipher, 57 Ark. App. 50, 941 S.W.2d 443 (1997).

Statutory beneficiaries are not entitled to notice of a petition for approval of a wrongful death settlement. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Settlement proceeds do not become assets of the decedent's estate to be distributed pursuant to a will or the laws of intestate succession; instead, the proceeds of a wrongful death action are for the sole benefit of the statutory beneficiaries and may not be used to pay off debts of the estate. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Trial court's denial of the adjustment company's claim to proceeds from a settlement made to an estate was affirmed because it was clear that the settlement was intended as a recovery for the estate beneficiaries and the company was precluded under subsection (e) of this section from making a claim for the deceased's debt against those proceeds. Mid-South Adjustment Co. v. Estate of Harris, 87 Ark. App. 139, 189 S.W.3d 518 (2004).

Statute of Limitations.

Where administrator's action against railroad for death of intestate was brought when an action for the benefit of the widow and next of kin was barred by limitations but action for the benefit of the estate was not, it must be presumed that suit was for the benefit of the estate. Sykes v. Jameson, 192 Ark. 631, 94 S.W.2d 718 (1936) (decision under prior law).

Action against a corporation on theory it should be held liable for the payment of a judgment recovered against another corporation for employee's death, if a tort action, would be barred because not brought within two years after employee's death or within one year after non-suit was taken against the present defendant in the former action. Mannon v. R.A. Young & Sons Coal Co., 207 Ark. 98, 179 S.W.2d 457 (1944) (decision under prior law).

The filing of an action within two years is a condition precedent to maintaining an action and the failure to bring suit within two years cannot be waived. Wilson v. Missouri P. R. Co., 58 F. Supp. 844 (E.D. Ark. 1945) (decision under prior law).

The period of limitations contained in this section is a part of the substantive rights created by the section, and all actions brought under the section are controlled by the limitation. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Where at time of deceased's death his cause of action for personal injuries is barred by statute of limitations, action by his personal representative for wrongful death is also barred as it is derivative in nature and arises only where original of deceased has been preserved. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

In a wrongful death action against the owner of the involved car on the theory of negligent entrustment, an amendment of the complaint after the expiration of the statute of limitations which changed the allegation as to the identity of the driver of the car was not barred by the three-year limitation of this section as it was not the beginning of a new cause of action, but a continuation of the original. Soncini v. Rankin, 238 Ark. 595, 383 S.W.2d 500 (1964).

In an action for wrongful death where the complaint and summons were not delivered to the sheriff until the Monday following a Sunday upon which the last day for commencing a wrongful death action fell, the action was still timely because of the application of the Sunday rule. Vermeer Mfg. Co. v. Steel, 263 Ark. 323, 564 S.W.2d 518 (1978)Limited byTatro v. Langston, 328 Ark. 548, 944 S.W.2d 118 (Ark. 1997).

The limitation of time fixed by a wrongful death statute is a limitation on the right of action and is an essential element of the right to sue; therefore, the general savings clause provision has no application to wrongful death actions. Sandusky v. First Elec. Coop., 266 Ark. 588, 587 S.W.2d 37 (1979).

Statute of limitations for the wrongful death action was not tolled during the minority of the plaintiffs and thus action was barred by the three year statute of limitations. Crawford v. Martin Marietta Corp., 622 F.2d 339 (8th Cir. 1980).

This section does not preclude a party who has commenced a wrongful death action within three years of date of death, and who has suffered a nonsuit of that action, from recommencing it more than one year after date of nonsuit, but within three years from date of death. Legislative intent in creating the one-year-after-nonsuit provisions in this section was not to shorten limitations period in event of nonsuit. Burkett v. PPG Indus., Inc., 294 Ark. 50, 740 S.W.2d 621 (1987).

The wrongful death statute created a new and separate cause of action which could arise if death was caused by any wrongful act and which carries its own statute of limitations as part of that right. For this reason, the medical malpractice statute of limitations is irrelevant when a patient dies from his injuries before the two-year period has run. Brown v. Saint Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992).

Where wrongful-death complaint was not in compliance with this section, and the statute of limitations had run, barring heirs from commencing a wrongful-death action against a doctor, the wife of the deceased was also barred from pursuing a separate claim for loss of consortium, which was derivative to wrongful-death action. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003).

Wrongful death action filed against healthcare providers by a decedent's parents was void ab initio where the decedent had no personal representative and the complaint failed to include as a plaintiff the decedent's half-brother; hence, under subsection (b) of this section, the parents could not add the half-brother after the limitations period had run. Andrews v. Air Evac EMS, Inc., 86 Ark. App. 161, 170 S.W.3d 303 (2004).

Where an original wrongful death complaint was a nullity because it was brought by the decedent's heirs rather than the personal representative, as required by this section, a subsequent amended complaint filed by the administratrix, which attempted to bring the estate in as a party, was a new suit filed after the statute of limitations period and, therefore, could not relate back under Ark. R. Civ. P. 15 and was barred by statute of limitations. Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004).

Motion to dismiss filed by an energy company should not have been granted because a claim was not time barred under § 16-62-102(c)(1) where it was filed within three years of death, but not within three years of an accident; there was no negligence claim filed by a decedent or on his behalf prior to the filing of a wrongful-death action. Miller v. Centerpoint Energy Res. Corp., 98 Ark. App. 102, 250 S.W.3d 574 (2007).

Under the savings statute, subdivision (c)(2) of this section, the administratrix had one year from the date of the nonsuit to refile her complaint against the medical center, and the administratrix did this by refiling her complaint on November 17, 2005; therefore, the circuit court erred in dismissing the administratrix's complaint against it. Brown v. Nat'l Health Care of Pocahontas, Inc., 102 Ark. App. 148, 283 S.W.3d 224 (2008).

Filing of a workers' compensation claim did not toll the statute of limitations on a wrongful death suit; the Arkansas Workers' Compensation Commission's primary jurisdiction to determine workers' compensation coverage did not prevent the tort action from being filed while the workers' compensation claim was pending. Frisby v. Milbank Mfg. Co., 688 F.3d 540 (8th Cir. 2012).

Circuit court did not abuse its discretion when it dismissed a personal representative's wrongful death complaint as being untimely filed because the original pro se complaint filed by plaintiff, a nonlawyer, as the personal representative of the estate constituted the unauthorized practice of law and was a nullity and could not be amended; by the time an attorney filed a complaint, more than three years had passed since the decedent's death, and the personal representative's claims were barred by the three-year statute of limitations. Henson v. Cradduck, 2020 Ark. 24, 593 S.W.3d 10 (2020).

Summary Judgment.

Where the matter of a legal duty was the subject of a construction contract which was ambiguous as to the parties' intent, a question of fact was presented, precluding summary judgment in a wrongful death action. Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993).

Trial court properly granted summary judgment to the owners of a pool in a wrongful death action arising from the drowning of a child; the owners did not engage in any willful or wanton conduct which contributed to the child's drowning because, even though only one adult who could swim was present in the area, a pool owner had repeatedly told the deceased child to wear a life jacket and had told the children to stay in the shallow end of the pool. Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003).

Survival Action.

For a death caused by the wrongful act of another, a cause of action survives if the deceased lived after the act constituting the cause of action, whether conscious or not. Saint Louis, I.M. & S. Ry. v. Dawson, 68 Ark. 1, 56 S.W. 46 (1900) (decision under prior law).

The cause of action in favor of the husband for the negligent killing of his wife does not survive the husband. Billingsley v. St. Louis, I.M. & S. Ry., 84 Ark. 617, 107 S.W. 173 (1907) (decision under prior law).

An action is not abated by the death of a party after the cause of action has been merged in a final judgment and while the judgment stands, even though the judgment is based on a cause of action which would not survive the death of a party before judgment. Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d 762 (1942) (decision under prior law).

The survival and wrongful death causes are stated in separate sections, and the fact that this section is entitled “Wrongful death actions—Survival” does not indicate that the survival cause of action is contained in this section. First Com. Bank v. United States, 727 F. Supp. 1300 (W.D. Ark. 1990).

Memorandum agreement purporting to settle all matters involved in the administration and distribution of decedent's estate settled and released an estate's survival cause of action. Skaggs v. Cullipher, 57 Ark. App. 50, 941 S.W.2d 443 (1997).

Circuit court's order dismissing a wrongful death claim which failed to dispose of a survival claim made pursuant to § 16-62-101 left the Arkansas Supreme Court without jurisdiction to entertain an appeal of the case in the absence of a final judgment. Myers v. McAdams, 366 Ark. 435, 236 S.W.3d 504 (2006).

Order appointing the administratrix on April 11, 2003, as special administratrix specifically stated that the term was for six months; thus, her term expired on October 11, 2003, before she filed complaints against all of the appellees except for the medical center; unless a person was the personal representative or executor of the estate at the time of filing, he had no standing to file a complaint on behalf of the estate and any complaint filed was a nullity, and because the administratrix's complaint was a nullity, her nonsuit on December 6, 2004, did not dismiss these complaints; it dismissed only the properly filed complaint against the medical center, and because the first complaints filed were nullities, the November 17, 2005 complaint was the first complaint filed by a properly appointed personal representative and no savings statute applied; thus, the administratrix's complaint against the medical personnel was barred by the statute of limitations. Brown v. Nat'l Health Care of Pocahontas, Inc., 102 Ark. App. 148, 283 S.W.3d 224 (2008).

Unborn Child.

This section will determine whether, or to what extent, there is a right to maintain an action, or to recover damages, for the death of an unborn child and the action, if any, is a tort action cognizable in circuit court; the wrongful death statute will not be interpreted in an ex parte probate proceeding. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).

Under the parental immunity statute, a viable fetus born dead does not have a cause of action against a mother who negligently caused the death of the fetus, regardless of whether the fetus is a “person” under the wrongful death statute. Where the claim of the fetus against the mother for negligent injury is barred by the parental immunity doctrine, the derivative claims by the fetus and its siblings under the wrongful death statute are also barred. Carpenter ex rel. Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986).

“Person” does not include a viable fetus for the purpose of the wrongful death statute. Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995), overruled, Aka v. Jefferson Hosp. Ass'n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001).

A viable fetus is a “person” within the meaning of this section. Aka v. Jefferson Hosp. Ass'n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001).

Cited: De Long v. Green, 229 Ark. 100, 313 S.W.2d 370 (1958); Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961); Glick v. Ballentine Produce, Inc., 343 F.2d 839 (8th Cir. 1965); MFA Mut. Ins. Co. v. Lovins, 248 F. Supp. 108 (E.D. Ark. 1965); McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891 (1966); Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968); Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974); Russ v. Ratliff, 578 F.2d 221 (8th Cir. 1978); Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979); Hopkins v. Chip-In-Saw, Inc., 630 F.2d 616 (8th Cir. 1980); Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983); Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986); Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986); Burrows v. Turner Mem'l Hosp., 762 F. Supp. 840 (W.D. Ark. 1991); Ruffins v. ER Ark., P.A., 313 Ark. 175, 853 S.W.2d 877 (Ark. 1993); Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994); Holmes v. McClendon, 349 Ark. 162, 76 S.W.3d 836 (2002); Estate of Hull v. Union Pac. R.R., 355 Ark. 547, 141 S.W.3d 356 (2004); Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004); Johnson v. Greene Acres Nursing Home Ass'n, 364 Ark. 306, 219 S.W.3d 138 (2005); Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (2011).

16-62-103. Suits involving public officers.

No suit, action, or other proceeding lawfully commenced by or against any public officer in this state in his or her official capacity or in relation to the discharge of his or her official duties shall abate by reason of his or her death or the expiration of his term of office or his or her retirement, resignation, or removal from office. In such event the court, on motion or supplemental petition filed at any time within twelve (12) months thereafter, showing the necessity for the survival thereof, to obtain a settlement of the question involved, may allow the action or other proceeding to be maintained by or against his or her successor in office. The court may make such order as shall be equitable for the payment of costs.

History. Acts 1925, No. 109, § 1; Pope's Dig., § 1253; A.S.A. 1947, § 27-1021.

Case Notes

Delivery to Successor.

This section contemplates that the sheriff shall deliver over to his successor in office such goods and moneys as he may receive, and that any suit pending shall survive and may be revived against the successor to recover from him the same goods or property, or moneys, as were sought to be recovered in the beginning. State use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601 (1938).

Sheriff's failure to deliver over to his successor property and money coming into his hands as such officer is a violation of this section and a breach of the obligation of the contract evidenced by his bond. State use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601 (1938).

Timeliness.

Action against sureties on bond of former sheriff commenced more than four years after date on which he was required to turn over to his successor property and money in his hands, to recover value of property which the sheriff had attached, was barred by limitations, though filed soon after determination of suit in replevin against sheriff. State use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601 (1938).

16-62-104 — 16-62-106. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning death of a party or expiration of powers, were repealed by Acts 2013, No. 1148, §§ 32[33]–34[35]. The sections were derived from:

16-62-104. Civil Code, §§ 549, 550; C. & M. Dig., §§ 1053, 1054; Pope's Dig., §§ 1256, 1257; A.S.A. 1947, §§ 27-1001, 27-1002.

16-62-105. Civil Code, §§ 551-556; C. & M. Dig., §§ 1055-1060; Pope's Dig., §§ 1258-1263; A.S.A. 1947, §§ 27-1003 — 27-1008.

16-62-106. Acts 1851, §§ 1, 2, 4, p. 102; C. & M. Dig., §§ 1050-1052; Pope's Dig., §§ 1252, 1254, 1255; A.S.A. 1947, §§ 27-1009 — 27-1011.

16-62-107. Revivor of actions against personal representative of defendant.

  1. An order to revive an action against the personal representative of a defendant, or against him or her and the heirs or devisees of the defendant, may be made at any time after the appointment of the personal representative. Upon application, the court shall grant such reasonable continuance as may be necessary to enable the personal representative properly to prepare for trial.
    1. An order to revive an action against the personal representative of a decedent for the purpose of proving a claim against the estate of the decedent shall not be made after the time fixed by law for filing claims against the said estate.
    2. An order of revivor may, however, be made against the personal representative of a deceased defendant after the expiration of the time for filing claims against the estate in any case where the personal representative may be a necessary or proper party for the determination of rights of the estate in the subject matter of the action.
    3. No order of revivor against either the personal representative or the heirs or devisees of the decedent shall be made except with the consent of such personal representative, heirs, or devisees unless made within one (1) year from the time when it could first have been made, except as provided in § 16-62-108.

History. Civil Code, §§ 560, 561; C. & M. Dig., §§ 1064, 1065; Pope's Dig., §§ 1267, 1268; Acts 1963, No. 84, §§ 2, 3; A.S.A. 1947, §§ 27-1015, 27-1016.

Case Notes

In General.

The power to revive without consent ceases at the expiration of the time limited by this section. Cole v. Hall, 85 Ark. 144, 107 S.W. 175 (1907); Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912); Bank of Des Arc v. Moody, 110 Ark. 39, 161 S.W. 134 (1913).

This section is mandatory. Dupree v. Smith, 150 Ark. 80, 233 S.W. 812 (1921); Prager v. Wootton, 182 Ark. 37, 30 S.W.2d 845 (1930).

Applicability.

Subsection (a) refers to the final, not the conditional, order of revivor. McNutt v. State, 48 Ark. 30, 2 S.W. 254 (1886); State Fair Ass'n v. Townsend, 69 Ark. 215, 63 S.W. 65 (1901).

Subsection (b) applies to cases pending in the Supreme Court on appeal as well as to cases pending before judgment in circuit court. Temple v. Culp, 105 Ark. 222, 150 S.W. 867 (1912).

Intervention.

An heir of decedent, in filing his intervention, entered the litigation voluntarily as he found it and cannot later be heard to complain of the proceedings had prior to the time of intervention; in other words, where suit against the decedents abated at their deaths, the intervention by the heir of decedents had the effect of beginning a new action by him as alleged owner of the land. Bingham v. Zeno, 228 Ark. 1039, 312 S.W.2d 181 (1958).

Where defendant in suit to quiet title died and the deed under which defendant claimed title was a conveyance to defendant jointly as husband and wife, such defendant would have held such title as a tenancy by the entirety and, therefore, when defendant died any title he may have held expired and there was nothing to revive under the provisions of this section, but the whole claimed estate would be in his widow who was not a party to the action; and therefore, a petition to intervene by the widow of the plaintiff, although filed later than the time within which an action could be revived under this section, would be treated as a new action. Wilson v. Huggins, 228 Ark. 1115, 314 S.W.2d 694 (1958).

Order.

An order of revivor is not a final decree. Blum v. Pulaski County, 92 Ark. 101, 122 S.W. 109 (1909).

Parties.

A suit to cancel a trustee's deed will be dismissed when it was not revived against the heirs or devisees of the deceased grantee within the one year period although it was revived against the executor, since the heirs were necessary parties. Blake v. Thompson, 176 Ark. 840, 4 S.W.2d 514 (1928).

Timeliness.

Where a defendant died during the pendency of an appeal taken by the plaintiff, and the latter neglected to revive the suit against the administrator for more than 18 months after his appointment, and neither the administrator nor his heirs consented to the revivor, the appeal will be dismissed. State Fair Ass'n v. Townsend, 69 Ark. 215, 63 S.W. 65 (1901).

Where a suit to cancel a trustee's deed and for an accounting for rents was improperly revived against the executor of the grantee on the latter's death and the heirs were not made parties until five years later, the cause of action was barred. Blake v. Thompson, 176 Ark. 840, 4 S.W.2d 514 (1928).

16-62-108. Revivor of actions against plaintiff's representative or successor — Exception.

An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith. However, an order to so revive the action shall not be made without the consent of the defendant after the expiration of one (1) year from the time when the order might first have been made. Where the defendant shall also have died, or his or her powers have ceased in the meantime, the order of revivor on both sides may be made within the period provided by this section or the period provided by § 16-62-107(b), whichever shall be longer.

History. Civil Code, § 562; C. & M. Dig., § 1066; Pope's Dig., § 1269; Acts 1963, No. 84, § 4; A.S.A. 1947, § 27-1017.

Publisher's Notes. Acts 1963, No. 84, § 5, provided:

“The provisions of this act shall apply in all cases where the death of a party or the cessation of his powers occurs after the effective date hereof.”

Research References

Ark. L. Rev.

T.W. Brown, Recent Developments, The Arkansas “Revivor” Statute's One-Year Limitations Period Applies to Both the Substitution of a Personal Representative and the Substitution of the Actual Injured Party, 66 Ark. L. Rev. 347 (2013).

Case Notes

Applicability.

This section applies equally where there is no general administrator or executor as where there is one, because in such event the persons interested may have a revivor in the name of a special administrator. Anglin v. Cravens, 76 Ark. 122, 88 S.W. 833 (1905).

Construction With Other Laws.

This section is not superseded by Ark. R. Civ. P. 25, as the statute creates a special proceeding with a different procedure distinct from an ordinary civil action to which the court rules apply. Nix v. St. Edward Mercy Med. Ctr., 342 Ark. 650, 30 S.W.3d 746 (2000).

Intervention.

Where, in a suit to cancel a note and mortgage, one alleging purchase of same becomes a party, he is in effect an intervener, and, for purposes of a motion to revive the action, he is in effect a plaintiff. Gorham v. Hall, 172 Ark. 744, 290 S.W. 357 (1927).

Order.

An order of revivor may be made as soon as the court in which the action is pending convenes after the death of the plaintiff. Anglin v. Cravens, 76 Ark. 122, 88 S.W. 833 (1905).

Where, within one year after plaintiff's death, motion was made to revive case in name of executors and court ordered defendant to show cause why the cause should not be revived, and thereafter executors filed a substituted complaint and an amendment to their complaint, it was tantamount to an order of the court receiving the cause since until after the lapse of one year it was not necessary to require the defendants to show cause. Keffer v. Stuart, 127 Ark. 498, 193 S.W. 83 (1917).

Timeliness.

Order of revivor made within one year from first day the court in which the action was pending was in session following the death of plaintiff was held timely, and no notice to defendants was necessary. Heilig v. Haskins, 192 Ark. 311, 90 S.W.2d 986 (1936).

Where at the time of his death decedent had suit pending to have his rights determined in certain land and to have those rights enforced, failure of his heirs to have the suit revived within one year from the next session of court after his death barred any claim the heirs may have otherwise had in subsequent suit involving title to the property. Woolfolk v. Davis, 225 Ark. 722, 285 S.W.2d 321 (1955).

Where after death of plaintiff, suit in state court was not revived within the period prescribed by this section and state court action was dismissed, administrator of deceased plaintiff could not thereafter bring the same action in federal court. Robison v. Jones, 261 F.2d 584 (8th Cir. 1958).

One-year statute of limitations in this section was applicable to bar a suit brought by a special administrator of an estate when the administrator died during the litigation. Ark. R. Civ. P. 25 merely governed the procedure for substituting a party and did not operate to enlarge the time in which substitution could occur. Ausman v. Hiram Shaddox Geriatric Ctr., 2013 Ark. 66, 426 S.W.3d 379 (2013).

Circuit court properly dismissed an executor's lawsuit against the owners of a nursing home because the savings statute, § 16-56-126, did not apply to the facts of the case; the decedent passed away while her case was still pending, which abated the case, and it was nonsuited only after the case abated, and the executor had not timely moved for an order of substitution or commenced a new action within one year after decedent's death. Garrett v. Progressive Eldercare Servs. — Saline, Inc., 2019 Ark. App. 201, 575 S.W.3d 426 (2019).

Waiver of Objection.

Although a substitute representative of an estate made no formal request for substitution as plaintiff within the one-year limitations period of this section, he defended motions to dismiss based on the original representative's disqualification and sought reconsideration of the dismissals; therefore, the defendants waived the issue of substitution. Taylor v. MCSA, LLC, 2013 Ark. 430, 430 S.W.3d 113 (2013).

Cited: Wilson v. Lincare, Inc., 103 Ark. App. 329, 288 S.W.3d 708 (2008).

16-62-109. Time for revivor — Effect of expiration.

When it appears to the court by affidavit that either party to an action has been dead, or, where he or she sues or is sued as a personal representative, that his or her powers have ceased for a period so long that the action cannot be revived in the names of his or her representatives or successor without the consent of both parties, it shall order the action to be stricken from the docket.

History. Civil Code, § 563; C. & M. Dig., § 1067; Pope's Dig., § 1270; A.S.A. 1947, § 27-1018.

Case Notes

Applicability.

Where the guardian of the wife's estate failed to timely obtain letters of administration within forty days of the wife's death, the guardian lost its authority to prosecute an action to contest her husband's will on her behalf when it failed to comply with § 28-65-323. The circuit court erred by deciding the case based on a failure to comply with § 16-62-109, which concerned time for revivor of a civil action and was inapplicable in this special proceeding. First Sec. Bank v. Estate of Leonard, 369 Ark. 213, 253 S.W.3d 434 (2007).

Dismissal.

Circuit court erred in striking and dismissing son's complaint as the circuit court order appointing son as special administrator for his deceased mother and ordering substitution of the parties pursuant to Ark. R. Civ. P. 25 was sufficient to revive the mother's breach of contract and negligence action against the nursing home; the procedures in the reviver statute, §§ 16-62-101 to 16-62-111, were superseded by the Rules of Civil Procedure in 1986 and no longer governed the procedure for obtaining an order of reviver and, thus, an order pursuant to the revivor statutes was unnecessary. Deaver v. Faucon Props., Inc., 367 Ark. 288, 239 S.W.3d 525 (2006).

One-year statute of limitations in § 16-62-108 was applicable to bar a suit brought by a special administrator of an estate when the administrator died during the litigation. Ark. R. Civ. P. 25 merely governed the procedure for substituting a party and did not operate to enlarge the time in which substitution could occur. Language in this section regarding a special administrator's powers ceasing for a period so long that the action cannot be revived further reinforced that the time limitation in § 16-62-108 applied, regardless of whether it was the injured party who died or a special administrator. Ausman v. Hiram Shaddox Geriatric Ctr., 2013 Ark. 66, 426 S.W.3d 379 (2013).

Waiver of Objection

Although a substitute representative of an estate made no formal request for substitution as plaintiff within the one-year limitations period of § 16-62-108, he defended motions to dismiss based on the original representative's disqualification and sought reconsideration of the dismissals; therefore, the defendants waived the issue of substitution. Taylor v. MCSA, LLC, 2013 Ark. 430, 430 S.W.3d 113 (2013).

Cited: Blum v. Pulaski County, 92 Ark. 101, 122 S.W. 109 (1909); Temple v. Culp, 105 Ark. 222, 150 S.W. 867 (1912); Dupree v. Smith, 150 Ark. 80, 233 S.W. 812 (1921); Robison v. Jones, 158 F. Supp. 658 (W.D. Ark. 1958).

16-62-110. Failure of plaintiff's representatives to revive after notice — Motion to strike.

At any term of the court succeeding the death of the plaintiff, while the action remains on the docket, the defendant having given to the plaintiff's proper representatives, in whose names the action might be revived, ten (10) days' notice of the application therefor, may have an order to strike the action from the docket, and for costs against the estate of the plaintiff, unless the action is forthwith revived.

History. Civil Code, § 564; C. & M. Dig., § 1068; Pope's Dig., § 1271; A.S.A. 1947, § 27-1019.

Case Notes

Cited: Keffer v. Stuart, 127 Ark. 498, 193 S.W. 83 (1917).

16-62-111. Trial not postponed by revivor.

When, by the provisions of § 16-62-110, an action stands revived, the trial thereof shall not be postponed by reason of the revivor, if the action would have stood for trial at the term the revivor is complete, had no death or cessation of powers taken place.

History. Civil Code, § 565; C. & M. Dig., § 1069; Pope's Dig., § 1272; A.S.A. 1947, § 27-1020.

Chapter 63 Pleadings And Pretrial Proceedings

Publisher's Notes. Some provisions of this chapter may be superseded by the Arkansas Rules of Civil Procedure and the Rules for Inferior Courts pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Subchapter 1 — General Provisions

Effective Dates. Acts 1949, No. 301, § 4: approved Mar. 19, 1949. Emergency clause provided: “This Act is necessary to insure orderly procedure in the circuit and chancery courts; and being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist; and this Act shall be in full force and effect from and after its passage.”

16-63-101. Pretrial conferences.

  1. Actions taken at the conference, amendments allowed to the pleadings, rulings of the court, stipulations to be considered in evidence, and agreements made by the parties on any of the matters considered will be made a part of the record in the case.
  2. Objections may be made and exceptions saved at the time the order is made or when the action is called for trial unless the record entry is reached by agreement of all parties with full understanding of the subject matter agreed upon.
  3. For the purpose set out in subsections (a) and (b) of this section, if a pretrial conference is ordered by the court, it must be in the county where the cause is pending and after due and reasonable notice of the time and place is given to the litigants or their counsel.
  4. If the pretrial conference is conducted by agreement of the court and the litigants or their counsel, the pretrial conference may be held at any time and place in the judicial district which may be agreed upon.
  5. A defendant named in a complaint filed in any of the courts of this state who participates in a pretrial conference held pursuant to the provisions of this section or who avails himself or herself of any of the discovery procedures authorized under §§ 16-44-115 — 16-44-120 shall not thereby be deemed or held to have entered his or her general appearance in the cause, nor to have waived his or her right, otherwise existing, to object to the sufficiency of any process or the service thereof, or the jurisdiction of the court over his or her person, or to any defect in the venue as laid in the cause.

History. Acts 1949, No. 301, §§ 2, 3; 1957, No. 288, § 2; A.S.A. 1947, §§ 27-2402, 27-2403, 28-361.

Case Notes

Cited: Reynolds v. Holmes, 232 Ark. 783, 340 S.W.2d 383 (1960).

16-63-102. Deposits in court.

    1. Whenever, in the exercise of its authority, a court has ordered the deposit or delivery of money or other thing and the order is disobeyed, the court, besides punishing the disobedience, may make an order requiring the sheriff to take the money or thing and deposit or deliver it in conformity with its directions.
      1. The court may direct the sheriff to keep safe any property delivered pursuant to the provisions of this section and may allow him or her the necessary expenses attending the property, to be paid by such party as the court shall direct, and taxed in the costs of the action.
      2. The court may confide to the sheriff money deposited or paid into court, which shall be kept by him or her under the same requirements and responsibilities of himself or herself and his or her sureties as are provided by this code in respect to money deposited in lieu of bail.
  1. A court sitting in a county in which, or in any county adjoining which, there is a bank or a branch of a bank, created by the laws of this state or the United States, transacting regular banking business, may order money paid into court to be deposited in that bank or branch to the credit of the court, in the action or proceeding in which the money was paid. Money so deposited shall be paid only upon the check of the clerk of the court annexed to its certified order for the payment and in favor of the person to whom the order directs the payment to be made.
  2. Money deposited or paid into the court in any action shall not be loaned out by the court unless it is with the consent of all the parties having an interest in or making claim to the money.

History. Civil Code, §§ 329-333; C. & M. Dig., §§ 1346-1350; Pope's Dig., §§ 1571-1575; A.S.A. 1947, §§ 27-1602 — 27-1606.

Publisher's Notes. The code referred to in this section is the Code of Practice in Civil Cases of 1869. See parallel reference tables in tables volume.

Case Notes

Liability of Clerk.

Unless the clerk is protected by an order of the court in depositing money which constitutes a fund in court in a bank, he does so at his peril, and will be responsible therefor on his official bond on failure of the bank. Martin v. Bogard, 176 Ark. 203, 2 S.W.2d 700 (1928).

Subchapter 2 — Pleadings

Cross References. Impeachment proceedings, pleadings, § 21-12-203.

Effective Dates. Acts 1855, § 13, p. 196: effective on passage.

Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1915, No. 290, § 24: June 1, 1915.

Acts 1935, No. 91, § 2: Mar. 2, 1935. Emergency clause provided: “The immediate operation of this act being necessary for the public peace, health, and safety, an emergency is hereby declared to exist, and this act shall take effect and be in full force immediately from and after its passage and approval.”

Acts 1975, No. 204, § 2: Feb. 18, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that confusion now exists as to the discretion of the circuit and chancery courts of this State to allow assertion of counterclaim by way of amended pleadings and that an immediate clarification of the court's power is essential. 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 the date of its passage and approval.”

Acts 1997, No. 286, § 5: Feb. 26, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that litigation of a frivolous nature by incarcerated persons is flooding the state court systems. 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 2011, No. 336, § 2: Mar. 18, 2011. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that complaints are often misconstrued with respect to the amount in controversy; that a plaintiff should be allowed to state with specificity the actual amount sought; that when a plaintiff pleads with particularity the amount in controversy the plaintiff should be bound by that pleading; and that this act is immediately necessary because the rules regarding pleading civil complaints should be implemented without undue delay due to current strain on judicial dockets. 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.”

16-63-201, 16-63-202. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning pleadings, were repealed by Acts 2013, No. 1148, § § 35[36], 36[37]. The sections were derived from:

16-63-201. Civil Code, § 105; C. & M. Dig., § 1183; Pope's Dig., § 1405; A.S.A. 1947, § 27-1101.

16-63-202. Acts 1915, No. 290, § 18; C. & M. Dig., § 1186; Pope's Dig., § 1408; A.S.A. 1947, § 27-1104.

16-63-203. [Repealed.]

Publisher's Notes. This section, concerning verification of pleadings, was repealed by Acts 2003, No. 1185, § 192. The section was derived from Civil Code §§ 136, 158, 159, 604, 792; Acts 1855, § 9, p. 196; 1873, No. 88, § 1 [792], p. 213; C. & M. Dig., §§ 1216-1218, 1220, 1245, 1246, 9297; Acts 1935, No. 91, § 1; Pope's Dig., §§ 1439-1442, 1444, 1469, 1470, 11983; A.S.A. 1947, §§ 27-1106 — 27-1112.

16-63-204, 16-63-205. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning answer by guardian of infant or insane person or by attorney for prisoner and counterclaim, were repealed by Acts 2013, No. 1148, §§ 37[38], 38[39]. The sections were derived from:

16-63-204. Civil Code, § 122; C. & M. Dig., § 1203; Pope's Dig., § 1425; A.S.A. 1947, § 27-1122

16-63-205. Civil Code, § 118; C. & M. Dig., § 1196; Pope's Dig., § 1418; A.S.A. 1947, § 27-1124

16-63-206. Setoffs.

  1. A setoff may be pleaded in any action for the recovery of money and may be a cause of action arising either upon contract or tort.
  2. In suits by executors or administrators, debts existing against their testators or intestates and owing to the defendant at the time of the death of the testator or intestate may be set off by the defendant in the same manner as if the action had been brought by and in the name of the deceased.
  3. Judgments, bills, bonds, notes, or other writings assigned to the defendant after suit has been commenced against him or her shall not be allowed to be set off against the demands of the plaintiff.
  4. When any plaintiff shall be indebted to a defendant in any bond, bill, note, contract, book account, or other liquidated demand and the defendant fails to set off the debt against the plaintiff's demand, the defendant shall be forever barred from recovering costs in any suit which he or she may thereafter institute upon any such bond, bill, note, contract, book account, or other liquidated demand.
  5. Where it appears that a new party is necessary to a final decision upon the setoff, the court shall permit the new party to be made, if it also appears that, owing to the insolvency or nonresidence of the plaintiff or other cause, the defendant will be in danger of losing his or her claim unless permitted to use it as a setoff.

History. Rev. Stat., ch. 139, §§ 2, 3, 7; Civil Code, §§ 119, 120; Acts 1917, No. 267, § 2, p. 1441; C. & M. Dig., §§ 1197-1201; Pope's Dig., §§ 1419-1423; A.S.A. 1947, §§ 27-1125 — 27-1129.

Research References

U. Ark. Little Rock L.J.

Seventeenth Annual Survey of Arkansas Law — Civil Procedure, 17 U. Ark. Little Rock L.J. 447.

Case Notes

Construction.

Subsection (a) has been liberally construed by the court so as to arrive at a true balance when mutual demands exist. Leonard v. Taylor, 183 Ark. 933, 39 S.W.2d 704 (1931).

Although §§ 16-56-102 and 16-65-603(a) permit judgments to be set off against each other, subsection (c) of this section prevents the setoff of judgments assigned to the defendant after suit has been commenced against him. Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994).

Sections 16-56-102 and 16-65-603(a) are provisions generally authorizing that a demand, right or course of action may be asserted by setoff and also permitting money judgments to be set off (having due regard to the legal and equitable rights of all persons interested in both judgments), while subsection (c) of this section is a specific provision governing the timeliness of setoffs, disallowing those judgments assigned to a defendant after the plaintiff commenced suit against the defendant; because these three provisions can be read in harmony, neither § 16-56-102 nor § 16-65-603(a) impliedly repeal subsection (c) of this section. Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994).

Applicability.

Subsection (d) had no application where the action was for goods furnished and the demand against plaintiff was in the nature of a claim for unliquidated damages. Milner v. Camden Lumber Co., 74 Ark. 224, 85 S.W. 234 (1905).

Subsection (b) has no application to person who was not the owner or holder of note which he seeks to use as setoff at time of decedent's death. Watkins v. Parker, 97 Ark. 492, 134 S.W. 1187 (1911).

This section is broad enough to include both setoff and recoupment, which is available as a defense to defendant regardless of whether plaintiff has filed bankruptcy or been discharged in bankruptcy. Walker v. First Com. Bank, 317 Ark. 617, 880 S.W.2d 316 (1994), dismissed, 333 Ark. 100, 969 S.W.2d 146 (1998).

Action Against State.

The state is entitled to a setoff against a warrant issued for construction work under a valid highway contract though the warrant had passed to an innocent purchaser, and the refunding board could not allow the warrant until it was determined by the highway audit commission or by a competent court what amount was due the claimant. Refunding Bd. v. State Hwy. Audit Comm'n, 189 Ark. 144, 70 S.W.2d 1027 (1934).

Action for Recovery of Money.

The damages in a cause of action for brokers' commissions are not unliquidated and unavailing as a setoff when there is no controversy over the price to be paid for the services. Burton v. Blytheville Realty Co., 108 Ark. 411, 158 S.W. 131 (1913) (decision prior to 1917 amendment).

A cause of action arising either upon contract or tort may form the subject matter of a counterclaim in any action for the recovery of money and this may be done in any case where liability could be asserted in an original action brought against the plaintiff. Any suit which the defendant could maintain as an independent cause of action is by this act made a proper subject matter for a counterclaim. Coats v. Milner, 134 Ark. 311, 203 S.W. 701 (1918).

Landowners could not set off against drainage assessments past-due bonds and coupons on the ground that setoffs were allowed before the drainage statute was effective, since a proceeding to collect the assessments was not an action for the recovery of money. State ex rel. Murphy v. Cherry, 188 Ark. 664, 67 S.W.2d 1024 (1934).

Notwithstanding this section, an action for the establishment of child support is not an action for the recovery of money, and thus it was error for the court to grant obligor parent a setoff against a child support award for a debt she paid. Chaisson v. Ragsdale, 323 Ark. 373, 914 S.W.2d 739 (1996).

Banks.

A depository in an insolvent bank is not entitled to have his deposit set off against his paper that had not matured at the time of the bank's insolvency. Steelman v. Atchley, 98 Ark. 294, 135 S.W. 902 (1911).

Where, after the death of intestate, his administratrix deposited funds in a bank to which intestate was indebted at the time of his death, the bank was not entitled to set off the deposit against the intestate. Cleveland County Bank v. Doster, 176 Ark. 1163, 5 S.W.2d 334 (1928).

The law of setoff as between an insolvent bank and its creditors applies only to concurrent liabilities on the date of its insolvency. Stokes v. Home Life Ins. Co., 187 Ark. 972, 63 S.W.2d 657 (1933).

Conversion.

In a Chapter 7 case, creditor converted proceeds from the sale of a vacuum unit because creditor acted as a broker in finding a buyer and creditor breached its fiduciary duty by failing to turn over the proceeds to debtor; setoff was not available because it was prohibited by Arkansas law, the debts were not mutual, and setoff was prohibited on equitable grounds since it would have violated the automatic stay. Nat'l Hydro-Vac Indus. Servs., L.L.C. v. Fed. Signal Corp. (In re Nat'l Hydro-Vac Indus. Servs., L.L.C.), 314 B.R. 753 (Bankr. E.D. Ark. 2004).

Evidence.

Where a defendant sought to set off a note endorsed to him after the suit was commenced, it may be shown by parol evidence that the note was assigned before the suit was commenced, since the endorsement related back to that time. Loftin v. King, 185 Ark. 421, 47 S.W.2d 578 (1932).

Instructions.

In an action for assault, it was proper to instruct that if the damages to which the defendant was entitled on a counterclaim for slander equaled or exceeded the amount of damages which the plaintiff was entitled to recover on account of the assault the jury should find for the defendant. Collier v. Thompson, 180 Ark. 695, 22 S.W.2d 562 (1929).

Judgment.

A judgment may be used as a setoff against another judgment or claim founded on contract. Milner v. Camden Lumber Co., 74 Ark. 224, 85 S.W. 234 (1905).

Open Accounts.

The assignee of an open account takes subject to all rights of setoff then held by the debtor against the assignor. Jones v. Model Laundry, 180 Ark. 616, 22 S.W.2d 19 (1929).

Property.

The seller of goods cannot, after their delivery to the buyer, retake possession of them after death of buyer, and then, when sued for their value by the buyer's administrator, set off debts due the seller. Henderson Co. v. Webster, 178 Ark. 553, 11 S.W.2d 463 (1929).

One sued by an executor for wrongful conversion of property of the estate may not set off claim that he may have against the estate. Ouchita Valley Refining Co. v. Webster, 178 Ark. 845, 12 S.W.2d 779 (1929).

Remand.

A decree remanding a case with directions in accordance with the opinion, holding that the lower court erred in directing appropriation of the proceeds of the landlord's sale of the crop to tenant's debt for prior years because there was no lien on the crop to secure the indebtedness, was held not to prevent either party from stating an account or pleading any claim they may have. Henry v. Irby, 175 Ark. 614, 1 S.W.2d 49 (1927).

Statute of Nonclaim.

Person who acquired note after decedent's death could not set off note if barred by statute of nonclaim. Watkins v. Parker, 97 Ark. 492, 134 S.W. 1187 (1911).

A setoff or recoupment may be made under this section whether barred by the nonclaim statute or the general statute of limitations. Hill v. Barnes, 208 Ark. 432, 186 S.W.2d 675 (1945).

Cited: Morris v. City of Fort Smith, 224 Ark. 722, 276 S.W.2d 36 (1955); Easley v. Inglis, 233 Ark. 589, 346 S.W.2d 206 (1961).

16-63-207. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning libel and slander, was repealed by Acts 2013, No. 1148, § 39[40]. The section was derived from Civil Code, §§ 143, 144; C. & M. Dig., §§ 1228, 1229; Pope's Dig., §§ 1452, 1453; A.S.A. 1947, §§ 27-1148, 27-1149.

16-63-208. [Superseded.]

Publisher's Notes. This section was held to be superseded by ARCP 8 in Borg-Warner Acceptance Corp. v. Kesterson, 288 Ark. 611, 708 S.W.2d 606 (1986); Griffin-Payne, Inc. v. Union Bank, 289 Ark. 182, 710 S.W.2d 201 (1986). Section 16-63-208 was derived from Civil Code, § 149; C. & M. Dig., § 1233; Pope's Dig., § 1457; Acts 1983, No. 391, § 1; and A.S.A. 1947, § 27-1142.

16-63-209, 16-63-210. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning instrument for payment of money only and actions for recovery of real property, were repealed by Acts 2013, No. 1148, §§ 40[41], 41[42]. The sections were derived from:

16-63-209. Civil Code, § 138; Acts 1871, No. 48, § 1 [138], p. 219; C. & M. Dig., § 1222; Pope's Dig., § 1446; A.S.A. 1947, § 27-1143.

16-63-210. Civil Code, § 145; C. & M. Dig., § 1230; Pope's Dig., § 1454; A.S.A. 1947, § 27-1145.

16-63-211. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that this section, concerning filing of deeds, etc., with pleadings, was deemed superseded by the Arkansas Rules of Civil Procedure. The section was derived from Civil Code, § 148; Acts 1871, No. 48, § 1 [148], p. 219; C. & M. Dig., § 1223; Pope's Dig., § 1447; A.S.A. 1947, § 27-1144.

16-63-212 — 16-63-214. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning presumptions and matters of judicial notice, irrelevant or redundant matter, and variance between pleading and proof, were repealed by Acts 2013, No. 1148, §§ 42[43] — 44[45]. The sections were derived from:

16-63-212. Civil Code, § 137; C. & M. Dig., § 1221; Pope's Dig., § 1445; A.S.A. 1947, § 27-1141.

16-63-213. Civil Code, § 140; C. & M. Dig., § 1225; Pope's Dig., § 1449; A.S.A. 1947, § 27-1154.

16-63-214. Civil Code, §§ 150-152; C. & M. Dig., §§ 1234-1236; Pope's Dig., §§ 1458-1460; A.S.A. 1947, §§ 27-1155 — 27-1157.

16-63-215. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that this section, concerning the court's authority with respect to pleadings, was deemed superseded by the Arkansas Rules of Civil Procedure. The section was derived from Civil Code, § 155; C. & M. Dig., §§ 1239-1242; Pope's Dig., §§ 1463-1466; Acts 1975, No. 204, § 1; A.S.A. 1947, § 27-1160.

16-63-216, 16-63-217. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning constructive service and deposition, were repealed by Acts 2013, No. 1148, §§ 45[46], 46[47]. The sections were derived from:

16-63-216. Civil Code, § 444; C. & M. Dig., § 6260; Pope's Dig., § 8216; A.S.A. 1947, § 27-1153.

16-63-217. Acts 1915, No. 290, § 18; C. & M. Dig., § 1186; Pope's Dig., § 1408; A.S.A. 1947, § 27-1104.

16-63-218. Original papers not removed.

No original pleading, motion, or deposition shall be permitted to be taken from the office of the clerk of the court unless by the order of the court or judge in each specific instance, but all original papers shall remain in the office subject to the inspection of all interested persons and their attorneys.

History. Acts 1915, No. 290, § 18; C. & M. Dig., § 1186; Pope's Dig., § 1408; A.S.A. 1947, § 27-1104.

Case Notes

Removal of Papers.

It is not error for an attorney to remove the papers for the purpose of mailing them to the chancellor. Gregory v. Rubel, 184 Ark. 55, 41 S.W.2d 771 (1931).

16-63-219. Fee for discovery of medical records.

A party in a civil action who seeks discovery of medical records from a physician or a hospital may be required by the court to pay the person from whom discovery is sought a reasonable fee for processing the records. The fee for processing the records shall not be limited to the expense of copying the records.

History. Acts 1987, No. 359, § 1.

16-63-220. Reply to action brought by prisoner.

      1. Any defendant may waive the right to reply to any action brought by an incarcerated person, defined for purposes of this section as a person who has been convicted of a crime and is incarcerated for that crime or is being held in custody for trial or sentencing, under Section 1979 of the Revised Statutes of the United States, 42 U.S.C. § 1983, or any other federal law or state law.
      2. Notwithstanding any other law or rule of procedure, such waiver shall not constitute an admission of the allegations contained in the complaint.
    1. No relief shall be granted to the plaintiff unless a reply has been filed.
  1. The court may require any defendant to reply to a complaint brought under this section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits.

History. Acts 1997, No. 286, § 1.

16-63-221. Complaint — Amount in controversy.

  1. A plaintiff who files a complaint in a circuit or district court praying for an award of damages may, but is not required to, state an amount in controversy for the purposes of establishing subject-matter jurisdiction and determining if the amount sought is within the jurisdictional limits of the court.
  2. A declaration allowed by subsection (a) of this section is binding on the plaintiff with respect to the amount in controversy unless the plaintiff subsequently amends the complaint to pray for damages in an amount that exceeds the jurisdictional limits of the court, at which time the amendment is governed by the Arkansas Rules of Civil Procedure.

History. Acts 2011, No. 336, § 1.

Subchapter 3 — Joinder

16-63-301. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning misjoinder, was repealed by Acts 2013, No. 1148, § 47[48]. The section was derived from Civil Code, §§ 103, 104; C. & M. Dig. §§ 1078, 1079; Pope's Dig., §§ 1286, 1287; A.S.A. 1947, §§ 27-1302, 27-1303.

16-63-302. Failure to join actions — Costs.

When any plaintiff brings in the same court several suits against the same defendant or defendants for causes of action that may be joined, the plaintiff shall recover only the costs of one (1) action. The costs of the other actions shall be adjudged against him or her unless sufficient reason appears to the court for bringing several actions.

History. Rev. Stat., ch. 116, § 133; C. & M. Dig., § 1082; Pope's Dig., § 1290; A.S.A. 1947, § 27-1306.

Subchapter 4 — Continuance or Dismissal

Cross References. Continuance in justice of peace courts, § 16-19-603.

Effective Dates. Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1887, No. 18, § 2: effective on passage.

Acts 1981, No. 312, § 5: became law without Governor's signature, Mar. 5, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that this Act is necessary to clarify the authority granted by the legislative branch of government to the judicial branch of government, and that this Act is in keeping with the separation of powers provision of Section 2 of Article 4 of the Arkansas Constitution, 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 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.”

Research References

ALR.

Continuance conditioned on applicants' payment of costs incurred by other party. 9 A.L.R.4th 1144.

C.J.S. 17 C.J.S., Continuances, § 1 et seq.

16-63-401. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning continuance after amendment, was repealed by Acts 2013, No. 1148, § 48[49]. The section was derived from Civil Code, § 157; C. & M. Dig., § 1244; Pope's Dig., § 1468; A.S.A. 1947, § 27-1402.

16-63-402. Continuance for absence of evidence or witness.

  1. A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove and not merely show the effect of the facts in evidence, that the affiant believes them to be true, and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement.
  2. If thereupon the adverse party will admit that on trial the absent witness, if present, would testify to the statement contained in the application for a continuance, then the trial shall not be postponed for that cause. However, the opposite party may controvert the statement so set forth in the motion for continuance by evidence.

History. Civil Code, § 340; Acts 1879, No. 26, § 1, p. 26; 1887, No. 18, § 1, p. 19; C. & M. Dig., § 1270; Pope's Dig., § 1494; A.S.A. 1947, § 27-1403.

Case Notes

Absent Witness.

Affidavit and motion insufficient to warrant continuance for absent witness. Richie v. State, 85 Ark. 413, 108 S.W. 511, 1908 Ark. LEXIS 545 (1908); Nix v. State, 124 Ark. 599, 187 S.W. 308 (1916); State ex rel. Greene County Bar Ass'n v. Huddleston, 173 Ark. 686, 293 S.W. 353 (1927); Estes v. State, 180 Ark. 656, 22 S.W.2d 172 (1929); Weaver v. State, 185 Ark. 147, 46 S.W.2d 37 (1932); Meyers v. State, 185 Ark. 892, 50 S.W.2d 234 (1932); Huddleston v. State, 186 Ark. 1197, 53 S.W.2d 1 (1933); Lynch v. State, 188 Ark. 831, 67 S.W.2d 1011 (1934); Shank v. State, 189 Ark. 243, 72 S.W.2d 519 (1934); Cathey v. State, 194 Ark. 1074, 110 S.W.2d 17 (1937); Carter v. State, 196 Ark. 746, 119 S.W.2d 913 (1938); Morgan v. Austin, 206 Ark. 235, 174 S.W.2d 562 (1943); Bryant v. State, 208 Ark. 192, 185 S.W.2d 280, 1945 Ark. LEXIS 390 (1945).

A motion which shows that the affiant has not been able to communicate with the witness and therefore did not know what she would testify is insufficient. State Life Ins. Co. v. Ford, 101 Ark. 513, 142 S.W. 863 (1912).

Where defendant moved for continuance in order to procure depositions or attendance of absent witnesses, the acts of diligence used in procuring the testimony should have been set forth in the motion. Lee v. State, 145 Ark. 75, 223 S.W. 373 (1920).

Motion for continuance on account of absence of witness beyond jurisdiction of court should show how attendance of witness could be had at next term of court. Freeman v. State, 150 Ark. 387, 234 S.W. 267 (1921).

A motion for continuance based on the absence of some particular witness must, to be sufficient, state that the witness is not absent by the consent, connivance, or procurement of the moving party. Davis v. State, 155 Ark. 245, 244 S.W. 750 (1922)Questioned byAllison v. State, 204 Ark. 609, 164 S.W.2d 442 (1942).

Because defendant had not located a witness to testify by time of trial and was basically requesting an open-ended continuance to search for some unnamed witness which he might not be able to afford, and because defendant waited until after the trial was in progress to move for a continuance and then filed no affidavit to establish the materiality of the anticipated evidence, trial court's denial of the motion for a continuance was not an abuse of discretion. Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995).

—Admission by Adverse Party.

It was not an abuse of discretion to refuse a continuance for an absent witness where the adverse party admitted that the witness, if present, would testify as stated in the application for continuance. Inter-Ocean Cas. Co. v. Copeland, 184 Ark. 648, 43 S.W.2d 65 (1931); Ozan Graysonia Lumber Co. v. Ward, 188 Ark. 557, 66 S.W.2d 1074 (1934).

This section held not applicable where plaintiffs admitted that witness, if present, would testify to statement contained in motion for continuance made by one defendant, but other defendants objected to statement and upon its introduction stated in open court they did not believe the witness would so testify. Clift v. Jordan, 205 Ark. 245, 168 S.W.2d 403 (1943).

In action to recover value of crop, refusal to grant plaintiff's motion for continuance was held not to show abuse of wide discretion resting in trial judge. Morgan v. Austin, 206 Ark. 235, 174 S.W.2d 562 (1943).

—Affidavits.

Statement of facts which are expected to be proved by absent witness cannot be contradicted by counter affidavits or other testimony for purpose of defeating a motion for continuance. Lane v. State, 67 Ark. 290, 54 S.W. 870 (1899).

A motion for continuance because of the absence of a certain witness was properly overruled where it was not accompanied by the required affidavit. Smith v. State, 181 Ark. 592, 26 S.W.2d 899, 1930 Ark. LEXIS 170 (1930); Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995).

In order to obtain a continuance because of the absence of a witness, it is necessary that the movant support his motion by an affidavit stating what facts affiant believes the witness will prove and not merely the effect of the facts in evidence. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976).

Where no affidavit accompanied defendant's motion for a continuance due to an absent witness, the motion was properly denied. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

This section requires the presence of an affidavit in order to justify a continuance due to a missing witness. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

The courts have required that the movant for a continuance show by affidavit the likelihood of procuring the absent witnesses. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998).

In an attempted capital murder case, the court did not err by denying defendant's motion for a continuance where, by omitting the affidavit, defendant failed to show his diligence in attempting to locate the two missing witnesses; further, without the expected testimony of the missing witnesses and those witnesses that he had not yet hired, defendant could not demonstrate that he was prejudiced by the denial of the continuance. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004).

Appellate Review.

A trial court's denial of motion for a continuance will not be reversed absent a clear abuse of discretion, and the defendant has the burden of showing an abuse of discretion. Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

Criminal Cases.

This section is void insofar as it will deny a person accused of a crime the use of process to bring witnesses before the court in criminal prosecutions. Graham v. State, 50 Ark. 161, 6 S.W. 721 (1887).

In criminal cases, continuances rest within the sound discretion of the court, and an abuse of that discretion must be shown. Wilson v. State, 188 Ark. 846, 68 S.W.2d 100 (1934).

An accused is entitled to compulsory process to compel the attendance of witnesses and this means the right to a delay until witnesses may be had at the trial, when they are within the jurisdiction of the court, in all cases wherein the authority and power of the court has been properly invoked. Carter v. State, 196 Ark. 746, 119 S.W.2d 913 (1938).

Specific method provided by this section must be followed substantially by one who would invoke the power and authority of the court to compel the attendance of witnesses. Carter v. State, 196 Ark. 746, 119 S.W.2d 913 (1938).

A person is not entitled to an indefinite continuance simply because a potential witness cannot be located; the elements of the diligence of the defense and the cooperation, or lack of it, on the part of the state are highly relevant in such cases, as is the likelihood of the movant ever procuring the witness. Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).

In murder prosecution, defendant was not entitled to indefinite continuance nor to have state admit veracity of hearsay statement of unavailable witness, where the state had tried and failed to locate the witness and there was no basis for believing that she would ever be located. Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).

Where a party has missing witnesses or other absence of evidence, and moves for a continuance pursuant to ARCrP 27.3, the filing of an affidavit by the movant is required under subsection (a) of this section. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).

Where state objected to continuance at trial, and defendant filed no affidavits in support of his motion, trial court did not abuse its discretion in denying defendant's request for continuance. Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997).

Trial court committed a clear abuse of discretion in granting the State of Arkansas a continuance when the alleged rape victim did not appear at defendant’s trial because the State then had time to secure the only witness who could have provided evidence sufficient to convict defendant. Had the continuance not been granted, the charge against defendant likely would have otherwise been dropped. Hudson v. State, 2014 Ark. App. 253 (2014).

Circuit court did not abuse its discretion in granting the State's request for a continuance in a prosecution for residential burglary and theft. The State learned of the second crowbar found at a material witness's residence the Friday before filing its motion on Monday, the State had scheduled that witness's deposition and asked only for a two-day continuance, and defendant asserted below only the issue of the State's diligence and failed to prove he was prejudiced by the continuance; even without the witness's testimony, the link between the crowbar, defendant, and the victims' home was established. Andruszczak v. State, 2017 Ark. App. 183, 518 S.W.3d 114 (2017).

Discretion.

The granting or refusing of a continuance is within the sound discretion of the trial court. Supreme Lodge Knights of Pythias v. Robbins, 70 Ark. 364, 67 S.W. 758 (1902); Missouri P.R.R. v. Berry, 191 Ark. 1165, 83 S.W.2d 531 (1936).

No abuse of court's discretion found in denying motion for continuance. Brickey v. State, 148 Ark. 595, 231 S.W. 549 (1921); Leach v. State, 229 Ark. 802, 318 S.W.2d 617 (1958).

The granting of a continuance is in the sound discretion of the trial court which will not be reversed unless the action is plainly erroneous or is a clear abuse of discretion. Baltimore & O.R.R. v. McGill Bros. Rice Mill, 185 Ark. 108, 46 S.W.2d 651 (1932); Perez v. State, 236 Ark. 921, 370 S.W.2d 613 (1963); Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958); Wallace v. Hamilton, 238 Ark. 406, 382 S.W.2d 363 (1964); Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973); Conway v. State, 256 Ark. 131, 505 S.W.2d 758 (1974); Derrick v. State, 259 Ark. 316, 532 S.W.2d 431 (1976); Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977); Johnson v. State, 287 Ark. 426, 700 S.W.2d 786, 1985 Ark. LEXIS 2300 (1985).

The denial of a continuance when the motion is not in substantial compliance with this section is not an abuse of the trial court's discretion. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).

The factors to consider in exercising discretion over a continuance motion are the diligence of the movant, the probable effect of the testimony at trial, the likelihood of procuring the attendance of the witness in the event of a postponement, and the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

The burden is on the appellant to establish prejudice and abuse of discretion in the denial of a continuance. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

On review, the alleged failure of defendant to file an affidavit regarding the testimony of a witness defendant sought to have testify at his trial was not addressed because the prosecutor did not object before the trial court that defendant failed to file the requisite affidavit; however, the court found that the trial court did not abuse its discretion in denying the motion for a continuance because defendant failed to show prejudice resulting from the denial. Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005).

Evidence.

On motion for continuance, testimony may be heard for purpose of showing a want of diligence in procuring testimony of absent witness, or want of good faith in making application, or an improbability that proposed testimony can be obtained. Lane v. State, 67 Ark. 290, 54 S.W. 870 (1899).

A continuance cannot be granted on an affidavit of counsel as to what his client told him. Morgan v. Austin, 206 Ark. 235, 174 S.W.2d 562 (1943).

Because the jury had before it ample evidence that the victim previously made claims of sexual abuse that no one believed, defendant was not prejudiced during his trial for sexual assault by the trial court's denial of his motion for a continuance, pursuant to subsection (a) of this section, to provide an investigator who could testify as to the victim's inconsistencies and untruths. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008).

Factors to Be Considered.

Besides compliance with the statutory requirement of an affidavit, the court should consider several other factors in determining whether a continuance should be granted. Among these are the diligence of the movant in obtaining witnesses, the probable effect of the testimony at trial, and the likelihood of procuring the attendance of the witness in the event of a postponement. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

In exercising its discretion concerning a request for a continuance to obtain the presence of a witness, the trial court should consider the following factors: (1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the movant believes them to be true. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).

Continuance denied even though psychiatric report had not been filed in strict compliance with former § 5-2-305(d) (see now §§ 5-2-327, 5-2-328) where defendant failed to show any prejudice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996).

Grounds.

This section does not require that a motion for continuance be reduced to writing and supported by affidavits, unless the opposite party demands it; but, if a motion on the grounds of surprise is overruled, the party complaining should set forth the facts constituting the surprise. Venable v. State, 177 Ark. 91, 5 S.W.2d 716 (1928).

Before the appellants would be entitled to a continuance because of the filing of a cross-complaint, it would be necessary for them to show that they had been misled to their prejudice and in what respect they had been misled. Williams v. Bullington, 195 Ark. 253, 111 S.W.2d 507 (1937).

Noncompliance.

Procedure required by this section held not followed. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987); Johnson v. State, 305 Ark. 580, 810 S.W.2d 44 (1991).

The denial of a motion which is not in substantial compliance with the statute is not an abuse of discretion. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).

As the state did not object to a continuance, appellant's failure to submit an affidavit is not fatal under this section. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997).

Objection.

A party not objecting to a ruling granting a continuance is estopped from objecting on appeal to the form of the motion. Drown v. White River Levee Dist., 181 Ark. 629, 27 S.W.2d 793 (1930).

Subsection (a) mandates an affidavit to justify a continuance due to a missing witness when the state objects to the continuance. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).

Reviewability.

Revocation of defendant's suspended imposition of sentence was appropriate because he never argued to the trial court that the state had not filed an affidavit in accordance with subsection (a) of this section. In the absence of an objection at trial, any argument concerning the failure to submit such an affidavit would not be addressed on appeal. Dotson v. State, 2011 Ark. App. 731 (2011).

Time for Filing.

A motion for a continuance by a defendant should not be made before filing answer. Winter v. Bandel, 30 Ark. 362 (1875).

Court did not err in denying defendant's motion for a continuance to procure expert testimony where defendant waited until two days before the trial when he had had five months in which to obtain an expert. Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002).

Cited: Copeland v. State, 226 Ark. 198, 289 S.W.2d 524 (1956); Worley v. State, 259 Ark. 433, 533 S.W.2d 502 (1976); Jones v. State, 20 Ark. App. 1, 722 S.W.2d 871 (1987); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

16-63-403. No continuance until costs paid.

No order of continuance takes effect until the plaintiff or, if the continuance has been granted upon the motion of the defendant, the defendant has made or secured the payment of all costs of the action, due for the term in which the continuance is granted.

History. Civil Code, § 775; Acts 1871, No. 48, § 1 [775], p. 219; C. & M. Dig., § 1272; Pope's Dig., § 1496; A.S.A. 1947, § 27-1404.

16-63-404. Dismissal in vacation.

The plaintiff or his or her attorney may dismiss any suit, except actions of replevin, pending in any of the courts of this state, in vacation, in the office of the clerk on the payment of all costs that may have accrued therein.

History. Rev. Stat., ch. 116, § 134; C. & M. Dig., § 1262; Pope's Dig., § 1486; A.S.A. 1947, § 27-1406.

Case Notes

Appealability.

Since motion to dismiss with prejudice filed by the plaintiff did not constitute a cross-complaint, reviewing court affirmed the order of the chancellor who concluded that there was no appealable order of the court. Lewis v. Brown, 232 Ark. 983, 341 S.W.2d 772 (1961).

Consent Decree.

Consent decree purporting to dismiss action but also including matters of importance in addition to the direction of dismissal of the action cannot be entered in vacation. Parker v. Frierson, 124 Ark. 238, 187 S.W. 162 (1916).

Foreign Corporation.

A foreign corporation which had not complied with the laws of this state brought an action against the appellee. It was held that the corporation could dismiss its action in vacation and then after complying with the state laws bring another action upon the same grounds. J.R. Watkins Medical Co. v. Horne, 133 Ark. 570, 203 S.W. 24 (1918).

Judgment or Decree.

This section does not provide for the dismissal of a judgment or decree in vacation. Shuman v. Irby, 201 Ark. 907, 147 S.W.2d 358 (1941).

Where court having jurisdiction of the subject matter and the parties entered a decree awarding maintenance to wife and children, an attempted dismissal by the wife in vacation was ineffectual in depriving the court of jurisdiction of husband's motion to modify the decree. Shuman v. Irby, 201 Ark. 907, 147 S.W.2d 358 (1941).

Nonsuit.

A nonsuit taken before a clerk in vacation, on payment of costs, is authorized by the statute. State Bank v. Gray, 12 Ark. 760 (1852); Lyons v. Green, 68 Ark. 205, 56 S.W. 1075 (1900); Glenn v. Porter, 68 Ark. 320, 57 S.W. 1109 (1900).

Since prior to the submission of a cause to the court, a party had the absolute right to nonsuit his partition plea, by filing and subsequently nonsuiting his partition plea, plaintiff did not waive his right nor was he estopped to raise the homestead exemption under § 18-60-401. Pascall v. Smith, 267 Ark. 66, 588 S.W.2d 700 (1979).

Replevin.

Dismissal of replevin action in vacation by notation on record following delivery of property to plaintiff on failure of defendant to file bond was without legal authority; hence trial court erred in refusing to reinstate replevin action. Commercial Credit Corp. v. Mackay, 221 Ark. 226, 252 S.W.2d 819 (1952).

Right to Dismiss.

The plaintiff may dismiss at any time when the court is not in session. St. Louis, Iron Mountain & S. Ry. v. Ingram, 118 Ark. 377, 176 S.W. 692 (1915).

The right to dismiss an action rests only with the plaintiff and a plaintiff is one who has and asserts a cause of action against another. Walton v. Rucker, 193 Ark. 40, 97 S.W.2d 442 (1936).

Plaintiff has the right to dismiss any suit he has brought by application either to the court or to the clerk in vacation. Norton v. Hutchins, 196 Ark. 856, 120 S.W.2d 358 (1938).

A plaintiff has the right to dismiss his complaint but he has no right to dismiss a defendant's cross-complaint. Dorsey v. Dorsey, 226 Ark. 192, 289 S.W.2d 190 (1956).

The plaintiff has an absolute right to dismiss his case at any time before final submission to the court. Lewis v. Brown, 232 Ark. 983, 341 S.W.2d 772 (1961).

Court properly dismissed action. Lewis v. Brown, 232 Ark. 983, 341 S.W.2d 772 (1961).

Before any defense pleadings were filed the petitioner for habeas corpus proceedings had the right to dismiss his petition under this section. Austin v. Austin, 241 Ark. 634, 409 S.W.2d 833 (1966).

Substantial Compliance.

Action of plaintiff's counsel to dismiss pending action and payment of all the costs was held to amount to a dismissal of the action as authorized by this section. Missouri P.R.R. v. Haigler, 203 Ark. 804, 158 S.W.2d 703 (1942).

16-63-405. [Superseded.]

A.C.R.C. Notes. The Supreme Court of Arkansas stated in a Per Curiam of Nov. 24, 1986, that this section, concerning proceedings on setoff or counterclaim where plaintiff's action is dismissed, was deemed superseded by the Arkansas Rules of Civil Procedure. The section was derived from Civil Code, § 403; C.& M. Dig., § 6236; Pope's Dig., § 8192; A.S.A. 1947, § 27-1407.

16-63-406. Stay of proceedings in which party or attorney is a member or an employee of the General Assembly.

    1. Any and all proceedings in suits pending in any of the courts of this state in which any attorney for either party to any suit is the Lieutenant Governor or a member of the Senate or the House of Representatives, or is a clerk or sergeant at arms or a doorkeeper of either branch of the General Assembly, and any and all proceedings and suits pending in any of the courts of this state in which the Lieutenant Governor or any member of the General Assembly or clerk or sergeant at arms or doorkeeper of either branch of the General Assembly is a party, shall be stayed for not less than fifteen (15) days preceding the convening of the General Assembly and for thirty (30) days after its adjournment, sine die, unless otherwise requested by any interested member of the General Assembly or interested officer or employee of the General Assembly.
    2. The motion for a continuance need not be reduced to writing.
    3. It is not necessary that notice be afforded to opposing counsel that a continuance is sought.
  1. Any and all proceedings and suits pending in any of the courts in this state in which any attorney for either party to any suit is a member of the Legislative Council, the Legislative Joint Auditing Committee, or any interim committee of the General Assembly shall be stayed or reset if scheduled if the proceeding or hearing has been scheduled on the day immediately prior to, the day immediately after, or the day upon which the Legislative Council, Legislative Joint Auditing Committee, or any interim committee is meeting if the attorney is a member, or an alternate member attending in the place of a regular member, of the committee which is meeting and the attorney requests the continuance of the court no less than three (3) days before the proceeding is to commence.
  2. The term “adjournment sine die” as used in this section shall mean the adjournment without the establishment of a day certain for reconvening.
  3. The provisions of this section shall be applicable in the case of special or extraordinary sessions of the General Assembly, as well as regular sessions.

History. Acts 1981, No. 312, § 1; A.S.A. 1947, § 27-1401.1; Acts 1997, No. 1354, § 35.

Cross References. Administrative hearings, § 25-15-103.

Case Notes

Continuance Granted.

Court granted attorney's motion for an extension of time of 45 days after the legislature adjourns in which to file an appellate brief. Wilson v. Neal, 327 Ark. 783, 939 S.W.2d 312 (1997).

16-63-407. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. This section, concerning striking causes of action, was repealed by Acts 2013, No. 1148, § 49[50]. The section was derived from Civil Code, § 102; C. & M. Dig., § 1077; Pope's Dig., § 1285; A.S.A. 1947, § 27-1408.

Subchapter 5 — Citizen Participation in Government Act

16-63-501. Title.

This subchapter shall be known as and may be cited as the “Citizen Participation in Government Act”.

History. Acts 2005, No. 1843, § 1.

Research References

ALR.

Application of Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statutes to Real Estate Development, Land Use, and Zoning Disputes. 64 A.L.R.6th 365.

Application of Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statutes to Invasion of Privacy Claim. 85 A.L.R.6th 475.

16-63-502. Legislative findings.

The General Assembly finds and declares that:

  1. It is in the public interest to encourage participation by the citizens of the State of Arkansas in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for a redress of grievances;
  2. The valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process;
  3. The threat of a civil action for damages in the form of a strategic lawsuit against political participation and the possibility of considerable legal costs can act as a deterrent to citizens who wish to report information to federal, state, or local agencies; and
  4. Strategic lawsuits against political participation can effectively punish concerned citizens for exercising the constitutional right to speak and petition the government for a redress of grievances.

History. Acts 2005, No. 1843, § 1.

Research References

Ark. L. Rev.

Have I Been SLAPPed? Arkansas's Attempt to Curb Abusive Litigation: The Citizen Participation in Government Act, 60 Ark. L. Rev. 507.

16-63-503. Definitions.

As used in this subchapter:

  1. “An act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the United States Constitution or the Arkansas Constitution in connection with an issue of public interest or concern” includes, but is not limited to, any written or oral statement, writing, or petition made:
    1. Before or to a legislative, executive, or judicial proceeding, or other proceeding authorized by a state, regional, county, or municipal government; or
    2. In connection with an issue under consideration or review by a legislative, executive, or judicial body, or other body authorized by a state, regional, county, or municipal government; and
    1. “Privileged communication” means a communication made:
      1. In, to, or about an issue of public concern related to any legislative, executive, or judicial proceeding, or other proceeding authorized by a state, regional, county, or municipal government;
      2. In the proper discharge of an official duty; and
      3. By a fair and true report of any legislative, executive, or judicial proceeding, or other proceeding authorized by a state, regional, county, or municipal government, or anything said in the course of the proceeding.
    2. “Privileged communication” also includes:
      1. All expressions of opinion or criticisms in regard to any legislative, executive, or judicial proceeding, or other proceeding authorized by a state, regional, county, or municipal government; and
      2. All criticisms of the official acts of any and all public officers.
    3. “Privileged communication” does not include a statement or report made with knowledge that it was false or with reckless disregard of whether it was false.

History. Acts 2005, No. 1843, § 1.

16-63-504. Immunity from suit.

Any person making a privileged communication or performing an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the United States Constitution or the Arkansas Constitution in connection with an issue of public interest or concern shall be immune from civil liability, unless a statement or report was made with knowledge that it was false or with reckless disregard of whether it was false.

History. Acts 2005, No. 1843, § 1.

Research References

ALR.

Application of Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statutes to Real Estate Development, Land Use, and Zoning Disputes. 64 A.L.R.6th 365.

Application of Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statutes to Invasion of Privacy Claim. 85 A.L.R.6th 475.

16-63-505. Verification requirement.

For any claim asserted against a person or entity arising from possible privileged communication or an act by that person or entity that could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the United States Constitution or the Arkansas Constitution in connection with an issue of public interest or concern, the party asserting the claim and the party's attorney of record, if any, shall be required to file contemporaneously with the pleading containing the claim a written verification under oath certifying that:

  1. The party and his or her attorney of record, if any, have read the claim;
  2. To the best of the knowledge, information, and belief formed after reasonable inquiry of the party or his or her attorney, the claim is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
  3. The act forming the basis for the claim is not a privileged communication; and
  4. The claim is not asserted for any improper purpose such as to suppress the right of free speech or right to petition government of a person or entity, to harass, or to cause unnecessary delay or needless increase in the cost of litigation.

History. Acts 2005, No. 1843, § 1.

16-63-506. Failure to properly verify.

  1. If a claim governed by § 16-63-505 is not verified as required by § 16-63-505, the claim shall be stricken unless it is verified within ten (10) days after the omission is called to the attention of the party asserting the claim or his or her attorney of record.
    1. If a claim is verified in violation of § 16-63-505, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both, an appropriate sanction, which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the claim, including a reasonable attorney's fee.
    2. Other compensatory damages may be recovered only upon the demonstration that the claim was commenced or continued for the purpose of harassing, intimidating, punishing, or maliciously inhibiting a person or entity from making a privileged communication or performing an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the United States Constitution or the Arkansas Constitution in connection with an issue of public interest or concern.

History. Acts 2005, No. 1843, § 1.

16-63-507. Procedure.

    1. All discovery and any pending hearings or motions in an action for a claim governed by § 16-63-505 shall be stayed upon the filing of a motion to dismiss or a motion to strike under § 16-63-506.
    2. A hearing on a motion filed under § 16-63-506 shall be conducted not more than thirty (30) days after service unless emergency matters before the court require a later hearing.
  1. The court, upon motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding the provisions of subsection (a) of this section.

History. Acts 2005, No. 1843, § 1.

16-63-508. Other recovery not precluded.

Nothing in this subchapter shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, or rule.

History. Acts 2005, No. 1843, § 1.

Chapter 64 Trial And Verdict

Publisher's Notes. Some provisions of this chapter may be superseded by the Arkansas Rules of Civil Procedure, Rules of Appellate Procedure and Rules for Inferior Courts pursuant to the Supersession Rule adopted by the Supreme Court of Arkansas in its order of December 18, 1978.

Effective Dates. Acts 1871, No. 48, § 1 [890]: effective 90 days after passage.

Acts 1875 (Adj. Sess.), No. 92, § 2: effective on passage.

Acts 1901, No. 125, § 2: effective on passage.

Acts 1915, No. 290, § 24: June 1, 1915.

Acts 1945, No. 196, § 3: approved Mar. 6, 1945. Emergency clause provided: “It is found that there is some confusion at present in the procedure necessary to properly present stipulations of fact and other papers filed in a cause of action in order to obtain a review by the appellate courts on the merits of the controversy and unless such procedure is immediately clarified there is imminent danger of litigants losing substantial rights on account of technical objections to the preparation and presentation of the record in the trial of the cause. An emergency is therefore declared and this act shall be in full force and effect from and after its passage.”

Acts 1949, No. 460, § 6: approved Mar. 28, 1949. Emergency clause provided: “It has been ascertained and declared that in tort cases where the defendant has either failed to answer or has answered and failed to appear and defend, and in such cases, it is necessary for the court to empanel a jury to try the sole issue of damages. This requirement has caused great delay in the trial of lawsuits, and in addition, has increased the expense unnecessarily, so that there is immediate need for legislation to eliminate the unnecessary expense. It is, therefore, ascertained that an emergency exists and this Act being necessary for the preservation of public peace, health and safety, shall be in full force and effect from and after its passage.”

Acts 1951, No. 139, § 9: approved Feb. 23, 1951. Emergency clause provided: “It is found that there is great confusion at present in the procedure necessary to properly preserve and present evidence on appeal from the chancery courts, and that such procedure is now governed by special acts applicable to the several chancery districts within the State which are wholly dissimilar, making it necessary to follow a separate procedure in each of the respective chancery districts in order to obtain a review by the appellate court on the merits of the controversy, and unless such procedure is immediately clarified and made uniform there is imminent danger of litigants losing substantial rights on account of technical objections to the preparation and presentation of the record in the trial of the cause. An emergency is, therefore, declared and this Act shall be in full force and effect from and after its passage.”

Acts 1979, No. 664, § 5: Mar. 30, 1979. Emergency clause provided: “It is hereby found and determined by the Seventy-Second General Assembly that there is an immediate need to provide qualified interpreters for deaf persons at administrative, civil and criminal proceedings 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 approval.”

Acts 1991, No. 469, § 7: Mar. 12, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is an immediate need to protect the confidentiality of privileged communications between qualified interpreters for deaf and hearing-impaired persons occurring at administrative, civil and criminal proceedings and that this act is immediately necessary. 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

ALR.

Disqualification, for bias, of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Manner or extent of examination of witnesses by trial judge. 6 A.L.R.4th 951.

Authority of state court to order jury trial in civil case where jury has been waived or not demanded by parties. 9 A.L.R.4th 1041.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Stipulation or waiver in state civil case, to accept verdict by number or proportion of jurors less than that constitutionally permitted. 15 A.L.R.4th 213.

Attorneys: communication with jurors after trial. 19 A.L.R.4th 1209.

Waiver or loss of right to disqualify judge by participation in proceedings. 24 A.L.R.4th 870; 27 A.L.R.4th 597.

Disqualification of judge because of assault or threat against him by party or person associated with party. 25 A.L.R.4th 923.

Impeachment of verdict by juror's evidence that he was coerced or intimidated by fellow juror. 39 A.L.R.4th 800.

Inconsistency of verdicts on separate theories of negligence, breach of warranty, or strict liability. 41 A.L.R.4th 9.

Am. Jur. 75 Am. Jur. 2d, Trial, § 1 et seq.

C.J.S. 88 C.J.S., Trial, § 1 et seq.

Case Notes

Cited: Melton v. St. Louis, I. M. & S. R. Co, 99 Ark. 433, 139 S.W. 289 (1911); Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988 (1911).

16-64-101 — 16-64-104. [Repealed.]

A.C.R.C. Notes. Acts 2013, No. 1148, contained two sections designated as “SECTION 2”.

Publisher's Notes. These sections, concerning issues related to trial by court or jury, were repealed by Acts 2013, No. 1148, §§ 50[51] — 53[54]. The sections were derived from:

16-64-101. Civil Code, § 336; C. & M. Dig., § 1263; Pope's Dig., § 1487; A.S.A. 1947, § 27-1701.

16-64-102. Civil Code, §§ 334, 335; Acts 1871, No. 48, § 1 [334, 335], p. 219; C. & M. Dig., §§ 1264, 1265; Pope's Dig., §§ 1488, 1489; A.S.A. 1947, §§ 27-1702, 27-1703.

16-64-103. Civil Code, § 337; C. & M. Dig., § 1266; Pope's Dig., § 1490; A.S.A. 1947, § 27-1704.

16-64-104. Civil Code, § 377; C. & M. Dig., § 1310; Pope's Dig., § 1535; A.S.A. 1947, § 27-1745.

16-64-105. [Superseded.]

Publisher's Notes. This section was held to be superseded by ARCP 49 in In re Amendments to Rules of Civil Procedures, 279 Ark. 470, 651 S.W.2d 63 (1983). The section was derived from Acts 1949, No. 460, §§ 1-3; A.S.A. 1947, §§ 27-1743.1 — 27-1743.3.

16-64-106 — 16-64-108. [Repealed.]

Publisher's Notes. These sections, concerning the time period for trial for actions at law and in equity, were repealed by Acts 2003, No. 1185, § 193. The sections were derived from the following sources:

16-64-106. Civil Code, § 394; Acts 1915, No. 290, §§ 10, 11; C. & M. Dig., §§ 1286, 1287; Pope's Dig., §§ 1510, 1511; A.S.A. 1947, §§ 27-1717, 27-1718.

16-64-107. Civil Code, § 396; Acts 1915, No. 290, § 13; C. & M. Dig., § 1289; Pope's Dig., § 1514; A.S.A. 1947, § 27-1720.

16-64-108. Civil Code, § 398; C. & M. Dig., § 1291; Pope's Dig., § 1516; A.S.A. 1947, § 27-1722.

16-64-109. [Superseded.]

  1. Where an order for a provisional remedy has been made by a judge or justice in an action within the jurisdiction of his or her respective court and the order has been served or levied, the trial of the action or disposition of the order may take place at any time after five (5) days' notice to the defendant, without waiting for the regular term of the judge's or justice's court. The notice may be given by the officer at the time of serving the summons or levying the order.
  2. If the justice before whom the trial should be regularly had is sick, absent, or unable to act, the officer may return the case for trial before the most convenient magistrate.
  3. If it is made to appear satisfactorily to the judge or justice, by affidavit or other proof, that the defendant has left the county of his or her residence and is within the state, the judge or justice shall immediately enter on his or her docket an order requiring the defendant to appear within fifteen (15) days thereafter for the trial of the order and answer to the plaintiff's complaint, or that judgment will be entered against him or her, and his or her property sold to satisfy the judgment. The order shall be served by posting copies of it in four (4) conspicuous places in the county, one (1) of which shall be at the county seat.

History. Civil Code, § 825; Acts 1871, No. 48, § 1 [825], p. 219; A.S.A. 1947, § 27-1723.

16-64-110. Order of trial.

When the jury has been sworn, the trial shall proceed in the following order unless the court, for special reasons, otherwise directs:

  1. The plaintiff must briefly state his or her claim and the evidence by which he or she expects to sustain it;
  2. The defendant must then briefly state his or her defense and the evidence he or she expects to offer in support of it;
    1. The party on whom rests the burden of proof in the whole action must first produce his or her evidence;
    2. The adverse party will then produce his or her evidence;
  3. The parties will then be confined to rebutting evidence unless the court, for good reasons, in furtherance of justice, permits them to offer evidence in their original case;
  4. When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court, and the instructions shall be reduced to writing if either party requires it; and
  5. The parties may then submit or argue the case to the jury. In the argument the party having the burden of proof shall have the opening and conclusion, and if, upon the demand of his or her adversary, he or she refuses to open and fully state the grounds upon which he or she claims a verdict, he or she shall be refused the conclusion.

History. Civil Code, § 349; Acts 1875 (Adj. Sess.), No. 92, § 1, p. 174; C. & M. Dig., § 1292; Pope's Dig., § 1517; A.S.A. 1947, § 27-1727.

Cross References. Burden of proof, § 16-40-101.

Case Notes

In General.

These provision are mandatory, and it is error for the judge to fail to comply therewith. Anderson v. State, 34 Ark. 257, 1879 Ark. LEXIS 34 (1879); National Lumber Co. v. Snell, 47 Ark. 407, 1 S.W. 708 (1886).

There was error where the trial court required the party who did not have the burden of proof to present its case first. Arkansas State Hwy. Comm'n v. Post, 330 Ark. 369, 955 S.W.2d 496 (1997).

Discretion of Court.

There was no abuse of discretion when the circuit court allowed the defendant to recall the plaintiff, in personal injury action, for several additional questions on cross examination while the plaintiff was still putting on his case. Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993), rehearing denied, 312 Ark. 434A (1993).

Instructions.

Where a party demands that instructions be in writing, it is error to make oral explanations of the charge; and unless it affirmatively appears that the error is harmless it is ground for reversal. Mazzia v. State, 51 Ark. 177, 10 S.W. 257 (1888); Excelsior Mfg. Co. v. Owens, 58 Ark. 556, 25 S.W. 868 (1894); Merrill v. City of Van Buren, 125 Ark. 248, 188 S.W. 537 (1916).

Instruction must not assume facts which are to be determined by the jury. Townsly-Myrick Dry Goods Co. v. Greenfield, 58 Ark. 625, 25 S.W. 282 (1894); McMurray v. Boyd, 58 Ark. 504, 25 S.W. 505 (1894).

Party cannot complain of instructions given at other's request if he asked one to same effect. St. Louis & S.F. Ry. v. Dodd, 59 Ark. 317, 27 S.W. 227 (1894); Dunnington v. Frick Co., 60 Ark. 250, 30 S.W. 212 (1895); Saint Louis, I.M. & S. Ry. v. Baker, 67 Ark. 531, 55 S.W. 941 (1900).

If a party wishes an instruction on a point not covered by court's charge, he should ask one covering it. White v. McCracken, 60 Ark. 613, 31 S.W. 882 (1895); Lackey v. State, 67 Ark. 416, 55 S.W. 213 (1900); Saint Louis, I.M. & S. Ry. v. Wilson, 70 Ark. 136, 66 S.W. 661 (1902).

Instructions not based on evidence are misleading. Saint Louis, I.M. & S. Ry. v. Denty, 63 Ark. 177, 37 S.W. 719 (1896); Saint Louis, I.M. & S. Ry. v. Sweet, 63 Ark. 563, 40 S.W. 463 (1897).

Instructions should not confine jury's attention to one of two grounds for relief relied on. W.W. Johnson Co. v. Triplett, 66 Ark. 233, 50 S.W. 455 (1899).

Instructions should not submit undisputed facts but should assume them to be true. Saint Louis, I.M. & S. Ry. v. Baker, 67 Ark. 531, 55 S.W. 941 (1900); Milwaukee Harvester Co. v. Tymich, 68 Ark. 225, 58 S.W. 252 (1900); Saint Louis, I.M. & S. Ry. v. Tomlinson, 69 Ark. 489, 64 S.W. 347 (1901); McGee v. Smitherman, 69 Ark. 632, 65 S.W. 461 (1901); Burnett v. State, 72 Ark. 398, 81 S.W. 382 (1904).

Instructions should cover defendant's theory as well as plaintiff's. Little Rock Traction & Elec. Co. v. Trainer, 68 Ark. 106, 56 S.W. 789 (1900); Little Rock Traction & Elec. Co. v. Morrison, 69 Ark. 289, 62 S.W. 1045 (1901).

Abstract instructions should not be given. Inabnett v. St. Louis, I.M. & S. Ry., 69 Ark. 130, 61 S.W. 570 (1901); Saint Louis & S.F. Ry. v. Townsend, 69 Ark. 380, 63 S.W. 994 (1901); Saint Louis, I.M. & S. Ry. v. Wilson, 70 Ark. 136, 66 S.W. 661 (1902).

Written instructions being asked, an oral charge taken in shorthand is insufficient. Arnold v. State, 71 Ark. 367, 74 S.W. 513 (1903); Burnett v. State, 72 Ark. 398, 81 S.W. 382 (1904).

The requirements of the law are met when instructions given by the court are reduced to writing and subject to the inspection by counsel at some time before the end of the trial. Reed v. Rogers, 134 Ark. 528, 204 S.W. 973 (1918).

Directing counsel to read to the jury instructions given at their request, though not proper, was held not prejudicial where court stated that instructions given were the instructions of the court and that jury was bound to consider them as the law of the case. Missouri Pac. R.R. v. Hunnicutt, 193 Ark. 1128, 104 S.W.2d 1070 (1937).

The trial court may for sufficient reasons give an instruction after the argument. Crain v. St. Louis-S.F. Ry., 206 Ark. 465, 176 S.W.2d 145 (1943).

—Timeliness.

Trial judge has discretion to require instructions to be settled before argument begins, and, as a means to this end, may require any special request for instructions to be made before opening of argument. St. Louis Sw. Ry. v. Mitchell, 115 Ark. 339, 171 S.W. 895 (1914).

In action for damages to a truck struck by a train at a crossing, giving instruction regarding duties of locomotive enginemen after the argument had been concluded was not error. Crain v. St. Louis-S.F. Ry., 206 Ark. 465, 176 S.W.2d 145 (1943).

Intervener.

One who intervenes in an attachment suit is entitled to open and close the argument by virtue of having the burden of proof, though the landlord answers that the alleged subtenancy was a scheme to defraud him. Jones v. Seymour, 95 Ark. 593, 130 S.W. 560 (1910).

Where the plaintiff and an intervener sought to recover in the same action upon a policy of life insurance, it was within the trial court's discretion to determine the order of the argument. Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S.W. 836 (1911).

Statement of Claim.

It is duty of trial judge to see that counsel in his opening statement confines himself to a brief statement of his claim, or defense, and the evidence he expects to sustain it. Kansas City S. Ry. v. Murphy, 74 Ark. 256, 85 S.W. 428 (1905).

If court fails to restrain counsel within his legitimate scope and privilege, it is the right of opposing counsel to object to the argument. The objection should be definite and call for a ruling of the court thereon, and if court then fails to properly restrain and control argument within proper bounds, and instruct jury to disregard any improper remarks and admonish counsel, then an exception should be taken. Kansas City S. Ry. v. Murphy, 74 Ark. 256, 85 S.W. 428 (1905).

Under this section defendant's attorneys should have demanded that plaintiff's attorneys make a full and complete opening statement if defendant's attorneys desired to make the subsequent claim that new matter was injected in the closing argument. Reddell v. Norton, 225 Ark. 643, 285 S.W.2d 328 (1955).

Submission or Argument to Jury.

In condemnation proceedings, the land owner has the opening and concluding argument. Springfield & Memphis Ry. v. Rhea, 44 Ark. 258 (1884).

The right to open and close abides with the plaintiff so long as he has anything to prove to recover a verdict for more than nominal damages. St. Louis, Iron Mountain & S. Ry. v. Taylor, 57 Ark. 136, 20 S.W. 1083 (1893).

Burden of proof found to be on the plaintiff, entitling him to open and close the argument. Mansur &Tebbetts Implement Co. v. Davis, 61 Ark. 627, 33 S.W. 1074 (1896); Mine La Motte Lead & Smelting Co. v. Consolidated Anthracite Coal Co., 85 Ark. 123, 107 S.W. 174 (1907); Kilpatrick v. Rowan, 119 Ark. 175, 177 S.W. 893 (1915); Copeland v. National Union Fire Ins. Co., 177 Ark. 1178, 9 S.W.2d 561 (1928).

The order of argument is to be determined by the pleadings. Beal & Doyle Dry Goods Co. v. Barton, 80 Ark. 326, 97 S.W. 58 (1906).

Burden of proof found to be on the defendant, entitling him to open and close the argument. Roberts v. Padgett, 82 Ark. 331, 101 S.W. 753 (1907); Eminent Household of Columbian Woodmen v. Howle, 131 Ark. 299, 198 S.W. 286 (1917); Kempner v. Stephens, 186 Ark. 877, 56 S.W.2d 580 (1933); Vern Barnett Constr. Co. v. J.A. Hadley Constr. Co., 254 Ark. 866, 496 S.W.2d 446 (1973).

This section, if not mandatory, certainly grants to trial courts power to control course of argument as to conform to orderly procedure, and unless there is a clear abuse of discretion, Supreme Court will not interfere. Dickinson v. McBride, 127 Ark. 555, 193 S.W. 89 (1917).

As a matter of right, the one on whom the burden rests shall have the right to close the argument as well as to open it, if in his opening statement he fully states grounds upon which he claims a verdict. Dickinson v. McBride, 127 Ark. 555, 193 S.W. 89 (1917).

Where after delivery of plaintiff's opening argument, defendant refused to give his argument, it was proper for court to then permit plaintiff to proceed with his closing argument, since defendant by such action could not deprive the plaintiff of his right to conclude the argument, and motion of defendant thereafter that he then be permitted to give his argument to jury was properly overruled. Dickinson v. McBride, 127 Ark. 555, 193 S.W. 89 (1917).

The right to open and close must ordinarily be asserted at the opening of the trial, before the other party introduces any evidence; where, at the beginning of the trial one of the parties acquiesces in, or permits without objection, the assumption by the other party of the burden of proof, it is not proper to permit the former to open and conclude the argument to the jury. Southern Nat'l Ins. Co. v. Heggie, 206 Ark. 196, 174 S.W.2d 931 (1943).

The party having the burden of proof shall make the opening and closing argument, and where there is more than one party it is within the court's discretion to fix the order of argument. Schwam v. Reece, 213 Ark. 431, 210 S.W.2d 903 (1948).

The defendant has right to open and close arguments before jury when he has burden of proof. Johnson v. Stout, 218 Ark. 599, 238 S.W.2d 97 (1951).

The party holding the affirmative of the issues joined in the pleadings and who would be defeated if no evidence were given on either side has the right to open and close the evidence in argument. In the argument, the party having the burden of proof shall have the opening and conclusion. Wyatt v. W.B. Smith Hatchery, Inc., 232 Ark. 611, 339 S.W.2d 323 (1960).

Trial court abused its discretion in denying defendant insurer's attorney the right to present a closing argument to the jury simply because the plaintiff waived his right to do so where the insurer bore the burden of proving its affirmative defenses. American Livestock Ins. Co. v. Garrison, 28 Ark. App. 330, 774 S.W.2d 431 (1989).

Verdict.

Notwithstanding the weight of testimony was to the effect that defendant made no false representations to plaintiff, it was error to direct a verdict for the defendant if there was a conflict in the testimony upon that point. Hutchison v. Gorman, 71 Ark. 305, 73 S.W. 793 (1903).

A verdict should not be directed unless it can be said as a matter of law that no recovery can be had upon any reasonable view of the facts which the evidence tends to establish. St. Louis, I.M. & S. Ry. v. Neal, 71 Ark. 445, 78 S.W. 220 (1903).

Cited: Property Owners Imp. Dist. No. 247 v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992); City of Jacksonville v. Nixon, 2014 Ark. App. 485, 442 S.W.3d 906 (2014).

16-64-111, 16-64-112. [Repealed.]

Publisher's Notes. These sections, concerning interpreters for persons with communication problems and for the deaf, were repealed by Acts 2013, No. 237, §§ 3, 4. The sections were derived from:

16-64-111. Acts 1973, No. 555, § 2; A.S.A. 1947, § 27-835; Acts 2001, No. 424, § 2.

16-64-112. Acts 1979, No. 664, §§ 1, 2; A.S.A. 1947, §§ 5-715.1, 5-715.2; Acts 1991, No. 469, § 1.

16-64-113. Jury may view subject of litigation.

Whenever, in the opinion of the court, it is proper for the jury to have a view of real property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury is thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.

History. Civil Code, § 350; C. & M. Dig., § 1293; Pope's Dig., § 1518; A.S.A. 1947, § 27-1731.

Case Notes

Condemnation.

In suits by lot owners to recover damages for condemnation of portions of their lots, it was within trial court's discretion to permit view of property even though one of the parties objected. Bridgman v. Baxter County, 202 Ark. 15, 148 S.W.2d 673 (1941).

Crops.

In a lawsuit involving crop damage, the jury was properly allowed to visit the fields where the damage occurred. McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996).

Ejectment.

In suit for damages for wrongful ejection from street car, it was proper to permit jury to examine a car and the controller thereon. Dobbins v. Little Rock Ry. & Elec. Co., 79 Ark. 85, 95 S.W. 794 (1906).

It was not an abuse of discretion to deny the plaintiff a request that the jury view the land involved in an ejectment suit. Holimon v. Rice, 208 Ark. 279, 185 S.W.2d 927 (1945).

In a Body.

Where a juror alone visited the place of the accident, refusal to grant the defendant's request that the entire jury be conducted to the place of the accident was held error. Gus Blass Co. v. May, 189 Ark. 1115, 76 S.W.2d 92 (1934).

Instructions.

In an action to recover for work done in a building under agreement to perform work in a workmanlike manner, instructions, that on a view of the premises, the jury should not base their verdict on their examinations, and that the impression made upon their minds by the examination did not constitute a part of the evidence in the cause, were properly refused. Fitzgerald v. La Porte, 67 Ark. 263, 54 S.W. 342 (1899).

Personal Property.

In an action for injuries caused by the bursting of a saw, where the defendant acquiesced in the jury's viewing the machine, the conduct of the jury in having the saw taken apart was not error. Trumbull v. Martin, 137 Ark. 495, 208 S.W. 803 (1918)Criticized byWagnon v. Barker, 236 Ark. 55, 364 S.W.2d 314 (Ark. 1963).

Since the section refers to real property only, a request that the jury be permitted to inspect a locomotive similar to one on which plaintiff received the injury for which the action is brought was properly refused. Missour P. R. Co. v. Hendrix, 169 Ark. 825, 277 S.W. 337 (1925), cert. denied, Missouri P. R. Co. v. Hendrix, 270 U.S. 651, 46 S. Ct. 351 (1926).

Real Property.

While the exercise of the authority to allow a jury view rests in the judgment and discretion of the court and not the jury, where the court inquired of the jury whether they felt that they wanted to view the property and after receiving a negative reply denied the motion for a jury view, the ruling was proper. Arkansas State Hwy. Comm'n v. Carder, 228 Ark. 8, 305 S.W.2d 330 (1957).

Request for View.

A request for view need not be made in the absence of the jury. Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889, 76 A.L.R.2d 751 (1959).

Permitting the request for view to be made in the presence of the jury was not prejudicial to the defendant where the court made it clear to the jury that it was the court refusing the view and not the defendant who was trying to hide something. Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889, 76 A.L.R.2d 751 (1959).

Scene of Accident.

In action for damages for personal injuries, where plaintiff was struck by moving train, it was no abuse of discretion for trial court to refuse to order jury to visit scene of accident, it being in another county and a very exact plat of ground in question having been introduced in evidence. Louisiana & Ark. Ry., 127 Ark. 323, 192 S.W. 174 (1917).

Trial court was held not to have abused its discretion in overruling railroad company's motion for an order requiring jury to view crossing where accident occurred where company had introduced a photograph of crossing made a few days after fatal accident which was evidence of the physical facts existing at the crossing when deceased was killed. Missouri P.R.R. v. Foreman, 196 Ark. 636, 119 S.W.2d 747 (1938).

16-64-114. Jury instructions generally.

In the trial of all cases in courts of record wherein juries are employed, it shall be the duty of the presiding trial judge to deliver to the jury immediately prior to its retirement for deliberation a typewritten copy of the instructions which has been given to the jury orally, when counsel for all parties so request. This copy of instructions shall, at the time of the dismissal of the jury, be returned to the court by the foreman of the jury.

History. Acts 1957, No. 128, § 1; A.S.A. 1947, § 27-1732.1.

Cross References. Charge to jury, Ark. Const., Art. 7, § 23.

Case Notes

Discretion of Court.

It is within the court's discretion to send typewritten instructions to the jury room notwithstanding that all parties did not so request. Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945, 91 A.L.R.3d 325 (1976).

In a medical malpractice action the trial court did not abuse its discretion in allowing, over plaintiffs' objection, the jury to take typewritten instructions into the jury room, since neither party may veto the judge's determination. Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945, 91 A.L.R.3d 325 (1976).

The trial court may, within its discretion, give the instructions to the jury regardless whether they are requested. Waganer v. Travelers Ins. Co., 269 Ark. 976, 601 S.W.2d 277 (Ct. App. 1980).

A trial court need not give an instruction which needs explanation, modification, or qualification, nor is a trial judge required to give repetitious or redundant instructions. Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990).

Formal Deliberations.

Formal deliberations have begun where a jury has received its instructions and heard the arguments of counsel before retiring to the jury room. D.B.&J. Holden Farms, Ltd. P'ship v. Ark. State Highway Comm'n, 93 Ark. App. 202, 218 S.W.3d 355 (2005).

Model Instructions.

When jury instructions are requested which do not conform to the Arkansas Model Jury Instructions (AMI), they should be given only when the trial judge finds the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case, and if the model instructions given to the jury cover the matters embraced in the requested instruction, it is not error to refuse such instruction. Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990).

Standards for Instructions.

Jury instructions should be based on the evidence in the case, and instructions stating only abstract legal propositions or submitting matters on which there is no evidence should not be given. Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990).

Undue Emphasis.

Evidence found that one part of the instruction was emphasized at the expense of another part and constituted error. Waganer v. Travelers Ins. Co., 269 Ark. 976, 601 S.W.2d 277 (Ct. App. 1980).

16-64-115. Jury instructions — Further instruction during deliberations.

After the jury has retired for deliberation, if there is a disagreement between them as to any part of the testimony or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their counsel.

History. Civil Code, § 353; C. & M. Dig., § 1296; Pope's Dig., § 1521; A.S.A. 1947, § 27-1734.

Case Notes

Appellate Review.

Because defendant did not argue at trial that the trial court failed to comply with this section when it allowed the replaying of a victim's recorded testimony after the jury had begun deliberations, defendant failed to preserve the issue for appellate review. King v. State, 2018 Ark. App. 309 (2018).

Deposition Testimony.

In a medical malpractice action, a trial court did not err in allowing videotape deposition testimony by plaintiff's treating physician to be replayed to the jury because no transcript of the deposition was available and the trial court complied with the requirements of this section by replaying the physician's entire testimony, including both direct and cross-examination, in open court with all parties present. Padilla v. Archer, 2011 Ark. App. 746, 387 S.W.3d 267 (2011).

Discretion of Court.

Allowing the jury to have access to something which has not been admitted into evidence will not necessarily, without more, constitute an abuse of discretion. Dickerson Constr. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979).

This section prescribes the method of communicating the information required, not necessarily the information requested; thus, before additional information is given, the trial court must determine whether the information requested is required, and the trial court has broad discretion to decide what information should be given to the jury. National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).

Mandatory Compliance.

Compliance with this section is mandatory. National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).

No Violation Found.

Trial court did not err in denying an administratrix's motion for a new trial after a jury awarded judgment to a home health care company and its employees in an action for negligence because a bailiff did not violate the statute by answering a jury question; the bailiff's stated in an affidavit that after the bailiff informed the attorneys that the jury had a question, the jurors told the bailiff they had figured it out. Houchins v. Home Care Professionals of Ark., Inc., 2012 Ark. App. 553, 423 S.W.3d 655 (2012).

Permission to Separate.

In a civil trial the jury may be permitted to separate either during the trial or after the case is submitted to them. Williams v. Williams, 112 Ark. 507, 166 S.W. 552 (1914).

Presumption of Prejudice.

Prejudice is presumed from a violation of this section unless the lack of prejudice is manifest. National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).

Request for Clarification.

Where jury foreman went alone to the judge to request a clarification of a jury instruction and the judge in the presence of counsel for both sides told the foreman that no further instructions were required and neither party requested that the jury be brought in for further instructions or objected to the court's handling of the incident, the only violation of this section was in the foreman's requesting the instruction himself rather than sending the deputy to convey the request, and there was no prejudice. National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).

Cited: Jones v. Parrish, 330 Ark. 521, 954 S.W.2d 934 (1997); Lowry v. State, 90 Ark. App. 333, 205 S.W.3d 830 (2005).

16-64-116. Conduct of jury after submission of case.

  1. When the case is finally submitted to the jury, they may decide in court or retire for deliberation.
    1. If the jury retires, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night and at their meals.
    2. The officer having them under his or her charge shall not allow any communication to be made to them, or make any himself or herself, except to ask them if they have agreed upon their verdict, unless by order of the court, and he or she shall not, before their verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon.

History. Civil Code, § 351; C. & M. Dig., § 1294; Pope's Dig., § 1519; A.S.A. 1947, § 27-1732.

Case Notes

No Violation Found.

Trial court did not err in denying an administratrix's motion for a new trial after a jury awarded judgment to a home health care company and its employees in an action for negligence because a bailiff did not violate the statute by answering a jury question; the bailiff's stated in an affidavit that after the bailiff informed the attorneys that the jury had a question, the jurors told the bailiff they had figured it out. Houchins v. Home Care Professionals of Ark., Inc., 2012 Ark. App. 553, 423 S.W.3d 655 (2012).

16-64-117. Separation of jury — Admonishment by court.

If the jury is permitted to separate, either during the trial or after the case is submitted to them, they may be admonished by the court that it is their duty not to converse with or allow themselves to be addressed by any other person on any subject of the trial and, during the trial, that it is their duty not to form or express an opinion thereon until the cause is finally submitted to them.

History. Civil Code, § 352; C. & M. Dig., § 1295; Pope's Dig., § 1520; A.S.A. 1947, § 27-1733.

16-64-118. Discharge of jury.

  1. The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.
  2. In all cases where the jury is discharged during the trial, or after the cause is submitted to them, it may be tried again immediately or at a future date, as the court may direct.

History. Civil Code, §§ 354, 355; C. & M. Dig., §§ 1297, 1298; Pope's Dig., §§ 1522, 1523; A.S.A. 1947, §§ 27-1735, 27-1736.

Cross References. Verdict by agreement of nine jurors in civil cases, Ark. Const., Art. 2, § 7; Amend. No. 16.

Case Notes

Authority of Court.

Authority conferred on trial court by this section is directive or permissive rather than mandatory and rests in the discretion of the court. Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539 (1963).

The legislature intended to give the trial court authority to direct when the cause would be tried again — immediately or at some future date — but did not give the court authority to direct whether or not the cause was to be retried, and trial court could not permanently deny a party the right to a retrial. Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539 (1963).

16-64-119. Verdict of jury — Polling jury.

  1. When the jury has agreed upon its verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman.
  2. When the verdict is announced either party may require the jury to be polled, which is done by the clerk or court asking each juror if it is his or her verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.
  3. The verdict shall be written, signed by the foreman, and read by the court or clerk to the jury, and the inquiry made whether it is their verdict.
    1. If any juror disagrees, the jury must be sent out again.
    2. If no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.

History. Civil Code, §§ 356, 357; C. & M. Dig., §§ 1299, 1300; Pope's Dig., §§ 1524, 1525; A.S.A. 1947, §§ 27-1737, 27-1738.

Research References

Ark. L. Rev.

Arkansas Model Jury Instructions: Introductory and Closing Instructions, Use of General Verdict and Interrogatories, Negligence, Proximate Cause, Owners and Occupiers of Land, Common Carriers, Railroads, and Comparative Negligence, 20 Ark. L. Rev. 66.

Michael Kiel Kaiser, Case Note: Blueford v. Arkansas: Why the United States Supreme Court's Construction of Arkansas's Criminal Transitional Jury Instructions Is Not Binding on Arkansas Courts, 66 Ark. L. Rev. 1083 (2013).

Case Notes

Applicability.

This section pertains to civil trials and was inapplicable in this criminal case. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764 (2009), cert. denied, 559 U.S. 1021, 130 S. Ct. 1922, 176 L. Ed. 2d 392 (2010).

Objections.

Where the verdict was in writing, rendered in open court, received without objection, and duly recorded, appellant waived any objection to the requirement that the verdict forms be signed. Fisher v. Valco Farms, 328 Ark. 741, 945 S.W.2d 369 (1997).

Polling the Jury.

When, on a poll of the jury, a juror answered that he did not believe the verdict was right but agreed to it for the sake of harmony, it will not be said that he answered in the negative but that he answered in the affirmative and that the verdict was his own. Williams v. Williams, 112 Ark. 507, 166 S.W. 552 (1914).

Where in proceedings for assessment of damages for lands verdict was signed by the foreman only and record showed no request for a poll of the jury, presumption obtains that the verdict was unanimous and the signatures of the jurors were therefore not required. Montgomery County v. Cearley, 192 Ark. 868, 95 S.W.2d 554 (1936).

Court's refusal to allow defendant's counsel to poll the jury in order to inquire about the dollar amount it intended plaintiff to recover was proper since this section only permits polling the jury to ask each juror if the verdict is his verdict. Northwestern Nat'l Cas. Co. v. Mays, 273 Ark. 16, 616 S.W.2d 734 (1981).

A trial judge, before ruling on a motion to modify the verdict, should not have an ex parte conversation with some of the jurors about anything which caused them to assent to the verdict. To do so is error. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988).

When, after a driver admitted liability for a car crash, a jury awarded an allegedly injured party zero damages, the party did not waive an objection to the verdict by declining to poll the jury; declining to poll a jury does not bar an appeal under Ark. R. Civ. P. 59. Wallis v. Keller, 2015 Ark. App. 343, 464 S.W.3d 128 (2015).

—Failure to Request Poll.

Although there may have been a unanimous verdict which was not disclosed because of failure to poll the jury, a new trial was granted where an instruction was given pursuant to a void statute that agreement by nine jurors would substantiate a verdict. Davis v. H.A. Nelson & Son, 132 Ark. 436, 201 S.W. 511 (1918).

Where neither party required jury to be polled, verdict became final, and defendant could not complain that verdict was not unanimous. Browne v. Dugan, 189 Ark. 551, 74 S.W.2d 640 (1934).

There is a presumption that the verdict was unanimous and the signatures of the jurors were therefore not required. Montgomery County v. Cearley, 192 Ark. 868, 95 S.W.2d 554 (1936).

Verdict.

It is error to refuse to a jury permission to retire and reconsider their verdict where, on hearing it read by the clerk, they state to the court that it is not their verdict. Saxon v. Foster, 69 Ark. 626, 65 S.W. 425 (1901). See also Harris v. Graham & Bordley, 86 Ark. 570, 111 S.W. 984 (1908).

The requirement that the verdict be written and signed by the foreman may be waived where an unsigned verdict is rendered in open court and duly received without objection and thereafter recorded. Hodges v. Bayley, 102 Ark. 200, 143 S.W. 92 (1912).

Where two verdicts are written on the same paper and signed beneath by the foreman, there is sufficient compliance with the statute. Fox v. State, 156 Ark. 428, 246 S.W. 863 (1923).

Fact that a question mark appeared on the written verdict after the amount of damages was awarded did not invalidate the verdict, the jury having been asked by the court whether it was their verdict after it was read by the clerk and having replied in the affirmative. Price-Snapp-Jones Co. v. Brown, 184 Ark. 1143, 45 S.W.2d 517 (1932).

The verdict should reflect the true and correct and final conclusion of the jury and if before discharging the jury, it is made known to the court that the jury has misunderstood the instructions, it is no error to permit the jury to further consider their verdict, after the instructions have been explained. Clift v. Jordan, 207 Ark. 66, 178 S.W.2d 1009 (1944).

Trial court errs in making a substantive amendment to the verdict after the discharge of the jury. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988).

Neither statute nor long-standing precedent permitted the trial court to recall the jury after discharge and poll the individual jurors based on a claim that the jury misunderstood the instructions; nor did the law allow the jury to correct or amend its verdict once it was discharged from the case and had left the presence and control of the court. Spears v. Mills, 347 Ark. 932, 69 S.W.3d 407 (2002).

Verdict Forms.

District court did not abuse it's discretion, under Federal Rule of Civil Procedure 49, by using general verdict form instead of special verdict form submitted by defendant which alleged plaintiff's comparative fault. Davis v. Ford Motor Co., 128 F.3d 631 (8th Cir. 1997).

Cited: Womack v. Brickell, 232 Ark. 385, 337 S.W.2d 655 (1960); Martin v. Blackmon, 277 Ark. 190, 640 S.W.2d 435 (1982).

16-64-120. Recovery of damages.

Whenever damages are recoverable, the plaintiff may claim and recover any rate of damages to which he or she may be entitled for the cause of action established.

History. Civil Code, § 376; A.S.A. 1947, § 27-1730.

Case Notes

Excessive Damages.

The court followed the rule that verdicts will be set aside for excessive damages only when not supported by proof or when they are so excessive as to indicate passion or prejudice or an incorrect appreciation of the law. Coca-Cola Bottling Co. v. Cordell, 189 Ark. 1132, 76 S.W.2d 307 (1934).

16-64-121. Assessment of damages by jury.

When, by the verdict, either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of recovery.

History. Civil Code, § 361; C. & M. Dig., § 1305; Pope's Dig., § 1530; A.S.A. 1947, § 27-1742.

Case Notes

Judgment.

Ordinarily, the jury must assess the amount of the recovery, but where the parties apparently agreed to submit only the issue of liability to the jury, the judge could enter judgment for the amount of damages claimed by the plaintiff. Winters v. Barr, 263 Ark. 618, 566 S.W.2d 745 (1978).

16-64-122. Comparative fault.

  1. In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.
    1. If the fault chargeable to a party claiming damages is of a lesser degree than the fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is entitled to recover the amount of his or her damages after they have been diminished in proportion to the degree of his or her own fault.
    2. If the fault chargeable to a party claiming damages is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is not entitled to recover such damages.
  2. The word “fault” as used in this section includes any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.
  3. In cases where the issue of comparative fault is submitted to the jury by an interrogatory, counsel for the parties shall be permitted to argue to the jury the effect of an answer to any interrogatory.

History. Acts 1975, No. 367, §§ 1-3; A.S.A. 1947, §§ 27-1763 — 27-1765; Acts 1991, No. 663, § 1.

Research References

Ark. L. Rev.

Note, The Arkansas Product Liability Act of 1979, 35 Ark. L. Rev. 364.

Note, Imputed Negligence Under the Arkansas Comparative Liability Statute, Exception: Stull, Adm'x v. Ragsdale, 35 Ark. L. Rev. 722.

Woods, Product Liability: Is Comparative Fault Winning the Day?, 36 Ark. L. Rev. 360.

Case Note, Rini v. Oaklawn Jockey Club: Assumption of Risk Rides Again, 41 Ark. L. Rev. 657.

Samuel T. Waddell, Comment: Examining the Evolution of Nonparty Fault Apportionment in Arkansas: Must a Defendant Pay More Than Its Fair Share?, 66 Ark. L. Rev. 485 (2013).

Cristen C. Handley, Comment: Back to the Basics: Restoring Fundamental Tort Principles by Abolishing the Professional-Rescuer's Doctrine, 68 Ark. L. Rev. 489 (2015).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Torts, 5 U. Ark. Little Rock L.J. 191.

Note, Torts — Negligence — Contributory Negligence of One Parent Is Imputed to the Other to Diminish the Latter's Recovery for the Death of a Minor Child. Stull v. Ragsdale, 273 Ark. 277, 620 S.W.2d 264, 26 A.L.R.4th 385 (1981). 5 U. Ark. Little Rock L.J. 289.

Note, Conflict of Laws — Multistate Torts — Arkansas Relies on Choice-Influencing Considerations and the “Better Rule of Law,” 10 U. Ark. Little Rock L.J. 511.

Survey — Uniform Commercial Code, 10 U. Ark. Little Rock L.J. 613.

Survey — Torts, 11 U. Ark. Little Rock L.J. 261.

Survey — Civil Procedure, 14 U. Ark. Little Rock L.J. 747.

Annual Survey of Caselaw, Tort Law, 24 U. Ark. Little Rock L. Rev. 1085.

Sizing Up a Multi-Party Tortfeasor Suit in Arkansas: A Tale of Two Laws — How Fault Is, and Should Be, Distributed, 26 U. Ark. Little Rock L. Rev. 251.

Case Notes

In General.

The court's refusal to ask the jurors whether they meant to allow no one to recover was based upon a correct understanding of the comparative negligence statute. Brown v. Keaton, 232 Ark. 12, 334 S.W.2d 676 (1960) (decision under prior law).

This section defines comparative fault, in essence, as the comparing of fault between a claiming party and the party against whom the claiming party seeks to recover. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Construction.

While it is true that the right to contribution from a joint tortfeasor is dependent upon a finding of joint and several liability, subsection (d) does not allow the concepts and effects of contribution among joint tortfeasors to be argued to the jury; this section is clear in this respect and is not ambiguous. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Subsection (d) is expressly limited to issues of comparative fault; if the legislature intended to allow counsel to argue issues of contribution and indemnity among joint tortfeasors, it would have so provided when it added subsection (d) to this section. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Civil Justice Reform Act (CJRA), § 16-55-201 et seq., pertains to fault apportionment in a general way, and the Arkansas Comparative Fault Act under this section specifically defines fault and identifies whose fault can be apportioned. Because these two provisions address the same subject matter, it is reasonable to conclude that the general terms of the CJRA are intended to be subject to the specific terms of the Arkansas Comparative Fault Act. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Purpose.

The purpose of the comparative negligence statute is to distribute the total damages among those who caused them. FDIC v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).

Applicability.

Fault may be compared in all actions for damages for personal injuries or wrongful death or injury to property. Little Rock Elec. Contractors v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988).

Malicious prosecution is an intentional tort and, therefore, comparative negligence does not apply. Kellerman v. Zeno, 64 Ark. App. 79, 983 S.W.2d 136 (1998).

This section did not apply to an action by a marmalade manufacturer against a jar manufacturer to recover for a business loss which occurred when it had to recall 6,000 cases of marmalade after a consumer complained that he cut his tongue on a sliver of glass in a jar of marmalade since the case did not involve an “injury to property” although the glass jars could have been said to be injured property, the real gist of the action was to recover the business loss from having to take the jars back, not merely to recover the cost of rendering the jars, as jars, nondefective. E.D. Smith & Sons v. Arkansas Glass Container Corp., 236 F.3d 920 (8th Cir. 2001).

Trial court should not have instructed the jury on comparative fault under this section in appellant's action for damages resulting from a car accident because appellee was required to yield the right of way under § 27-51-603 and appellant did not have a duty to anticipate his failure to yield. The fact that appellant allegedly admitted fault by stating that she was looking for a parking spot was irrelevant as she had no duty; rather it was appellee's duty to avoid the accident as he was backing out of a driveway onto the highway on which appellant was traveling. Bell v. Misenheimer, 102 Ark. App. 389, 285 S.W.3d 693 (2008), rev'd, 2009 Ark. 222, 308 S.W.3d 120 (2009).

Affirmative Defense.

Comparative fault is an affirmative defense. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

Agency.

While indemnity is commonly granted where liability has been imposed on a person not because of any fault on his part but solely because of his relationship to the one at fault, this doctrine did not apply to a claim against a person since there was no employer-employee or other “agency-type” relationship on which to base imputation of liability. Missouri P. R. Co. v. Star City Gravel Co., 592 F.2d 455 (8th Cir. 1979).

Apportionment of Fault.

Where there is evidence of negligence on the part of both plaintiff and defendant, apportionment of fault under Arkansas' comparative fault statute becomes a matter solely within the province of the finder of fact. Lockett v. International Paper Co., 871 F.2d 82 (8th Cir. 1989).

The fact that one party admits negligence at trial does not preempt consideration of any negligence of another party when negligence is properly alleged and supported by evidence. Bryant v. Eifling, 301 Ark. 172, 782 S.W.2d 580 (1990).

The Arkansas comparative fault law is capable of recognizing and distributing fault between parties whose misconduct contributed to an actionable loss. FDIC v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).

It was not error for the court to instruct the jury on comparative fault where there was evidence that plaintiff entered the yard despite the presence of “Beware of the Dog” signs, and that plaintiff's injuries could have been caused by her running from the dog, rather than from the dog's attack. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997).

In an action by the owner of an officer building and a tenant against a security company arising from a fire in the building for negligence in failing to detect the fire and failing to timely contact the fire department, the owner was not entitled to recover on the basis that its negligence was less than the combined negligence of the tenant and the security company; it was improper to combine the fault of the tenant and the security company because the tenant was a co-plaintiff in the action, rather than a defendant. NationsBank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001).

Appellate court reversed a judgment that awarded no damages to a building owner even though the jury found that the owner was not liable and that a fire extinguisher company and plaintiff restaurant were each fifty percent (50%) liable for damages caused by the fire as, under this section, the owner's liability was to be compared to the company's liability. Yu v. Metro. Fire Extinguisher Co., 94 Ark. App. 317, 230 S.W.3d 299 (2006).

Section 16-55-202 should be interpreted as being compatible with subsection (a) of this section, which limits the apportionment of fault to an individual or entity from whom the claiming party seeks to recover damages, which includes individuals and entities that are subject to being brought into a suit pursuant to a cross or third party claim under Ark. R. Civ. P. 13, 14, but excludes nonparties who are otherwise immune from suit, including employers who are immune pursuant to § 11-9-105(a), the exclusive remedies provision of the Workers' Compensation Law, § 11-9-101 et seq.Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Assumption of Risk.

Where it is established in a products liability case that the injured person assumed the risk of injury, there can be no recovery. Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977).

Because Arkansas is a comparative fault state, assumption of risk is not a complete bar to recovery but is simply a matter to be considered in deciding fault. Simmons v. Frazier, 277 Ark. 452, 642 S.W.2d 314 (1982).

In a products liability action, the jury found that the plaintiff had assumed the risk of the accident. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), superseded by statute as stated in, Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Finding of assumption of risk did not bar the plaintiff's recovery for the manufacturer's alleged negligence, since the jury also apportioned a greater percent of the responsibility for the accident to the defendant. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), superseded by statute as stated in, Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Where none of the forms of assumption of risk which survives the adoption of comparative fault in Arkansas is applicable to the facts of a case, an instruction on assumption of risk should not be given. Rini v. Oaklawn Jockey Club, 861 F.2d 502 (8th Cir. 1988).

On its face, this section purports to merge the defense of assumption of risk into the statutory comparative fault scheme; however, implied secondary reasonable assumption of risk and implied secondary unreasonable assumption of risk must no longer be a complete bar to recovery, but rather one element to be factored into the comparative fault analysis. Rini v. Oaklawn Jockey Club, 861 F.2d 502 (8th Cir. 1988).

The adoption of comparative fault represents a legislative judgment that a plaintiff should not be denied recovery for injuries caused by a defendant's negligence simply because the plaintiff was partially at fault, although less at fault than the defendant. Rini v. Oaklawn Jockey Club, 861 F.2d 502 (8th Cir. 1988).

A plaintiff's conduct which amounts to assumption of risk is not a complete bar to recovery, but rather is simply one element to be factored into the comparative fault analysis. Lockett v. International Paper Co., 871 F.2d 82 (8th Cir. 1989).

There was evidence to support the giving of the assumption of risk instruction where plaintiff testified he was aware of all the specific risks that led to his injury. Bonds v. Snapper Power Equip. Co., 935 F.2d 985 (8th Cir. 1991).

Instruction that referred to assumption of risk as a defense was harmless error because the other instructions made it clear that assumption of risk was an element of fault, not a complete bar to recovery. Bonds v. Snapper Power Equip. Co., 935 F.2d 985 (8th Cir. 1991).

Because a jury must compare negligence pursuant to this section, the doctrine of assumption of the risk is no longer applicable in Arkansas as a separate theory. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

Causation.

Proximate cause is defined in terms of direct causation. Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983).

In tort suit against defendant who shot him, plaintiff's negligence would not present an issue for the jury, since the negligent act did not lead in a natural and continuous sequence, unbroken by any efficient intervening cause, to defendant's intentional act of firing the shotgun which caused the damages and, accordingly, instruction on comparative negligence was not warranted. Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983).

In a products liability case, the injured plaintiff could not recover from the defendant/manufacturer where the jury found no causal link between the defendant's conduct and the plaintiff's injuries. Bonds v. Snapper Power Equip. Co., 935 F.2d 985 (8th Cir. 1991).

Under the express language of subsection (c) of this section, there must be a determination of “proximate cause” before any “fault” can be assessed against the claiming party. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994).

Where the evidence at trial did not establish a causal connection between the failure to wear safety goggles and the damages to plaintiff's eye, the trial court erred in giving a comparative fault instruction. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

In determining whether plaintiff's negligence is contributory, plaintiff's conduct is to be viewed as to whether it was a proximate cause of her damages. Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994).

Comparative Negligence.

It was proper to find that the total negligence causing the injury should be prorated between the plaintiff and defendant and 25% to driver of tractor-trailer. Ward Body Works, Inc. v. Smallwood, 227 Ark. 314, 298 S.W.2d 332 (1957) (decision under prior law).

In personal injury suit, verdicts for plaintiffs were proper. Missouri Pac. Transp. Co. v. Guthrie, 227 Ark. 566, 299 S.W.2d 829 (1957) (decision under prior law).

Where plaintiff's contributory negligence is less than that of the other party he is entitled to a verdict but his damages will be reduced in proportion to his contributory negligence. Gibson v. United States, 163 F. Supp. 385 (W.D. Ark. 1958) (decision under prior law).

In personal injury action, plaintiff was entitled to recover where the jury found that he was 10% negligent, but his recovery was limited to 90% of his total damages. Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958) (decision under prior law).

Where pedestrian sued for injuries sustained when struck by automobile while walking across street, the pedestrian could obtain judgment for 20% of his total damages where the jury found him to be 80% negligent. Johnson v. Brewer, 228 Ark. 946, 311 S.W.2d 301 (1958) (decision under prior law).

Where the negligence of two parties is equal, neither can recover. Sunday v. Burk, 172 F. Supp. 722 (W.D. Ark. 1959) (decision under prior law).

Where the evidence showed that the contributory negligence of both parties was equal the trial judge was correct in his conclusion that neither party could recover against the other. Easley v. Inglis, 233 Ark. 589, 346 S.W.2d 206 (1961) (decision under prior law).

Contributory negligence does not bar a plaintiff's recovery if it is of less degree than that of the defendant. Scoville v. Missouri Pac. R.R., 458 F.2d 639 (8th Cir. 1972) (decision under prior law).

Where two vehicles collided and both drivers were negligent, but negligence of one driver was less than that of the other, the first driver may recover as long as the damages are diminished by the jury in proportion to the amount of fault attributable to him. Scoville v. Missouri Pac. R.R., 458 F.2d 639 (8th Cir. 1972).

The basic purpose of law that provided that contributory negligence was not a bar to recovery where negligence of person claiming damages was less than the person causing such damages was to distribute the total damages among those who caused them, and since the legislature intended to deny recovery to a plaintiff only when his negligence was at least 50% of the cause of the alleged injuries, where the plaintiff's negligence was less than 50% of all the codefendants' he was entitled to recover from each or all of them as joint tortfeasors even though the plaintiff's negligence equalled or exceeded that of a particular codefendant. Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1973).

Where machine operator employee was experienced, had been cautioned on dangers and had violated operating instructions, there was evidence to support the verdict that his fault exceeded that of his employer. Smith v. Aaron, 256 Ark. 414, 508 S.W.2d 320 (1974) (decision under prior law).

Under the Arkansas comparative negligence statute in effect at the time of accident, a claimant could recover only if his negligence was of a lesser degree than the negligence of the defendant; and if a claimant was without fault, he could recover the full amount of any damages proximately caused by the United States and it made no difference that another claimant might have been more negligent than the United States. Deal v. United States, 413 F. Supp. 630 (W.D. Ark. 1976), aff'd, 552 F.2d 255 (8th Cir. Ark. 1977) (decision under prior law).

The fault sought to be compared in comparative negligence claim must be a proximate cause of the damages sustained by a party. Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983).

In a personal injury suit brought by a hotel guest who fell when the toilet lid detached from the toilet assembly, there was no substantial evidence of the guest's negligence and the issue of comparative fault should not have been presented to the jury; thus, the trial court erred by denying a motion for a directed verdict on the issue of comparative negligence and by refusing to instruct the jury as to res ipsa loquitur. Marx v. Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (2004).

In a negligence case, the trial court committed reversible error when it submitted the case on special interrogatories, without allowing counsel to argue the effect of the comparative-fault special interrogatory. Campbell v. Entergy Ark., Inc., 89 Ark. App. 91, 200 S.W.3d 473 (2004), rev'd, 363 Ark. 132, 211 S.W.3d 500 (2005).

In a wrongful death case brought by pedestrian's administratrix, the trial court did not err by denying plantiff's motion for directed verdict on defendant motorist's assertion of comparative fault; there was substantial evidence that the pedestrian was negligent. There was testimony that the driver never crossed the center line and had remained in the northbound lane at all times, and it was up to the jury to determine the weight and value to be given to the testimony of the witnesses. Belcher v. Denton, 2016 Ark. App. 263, 492 S.W.3d 551 (2016).

Contribution among Tortfeasors.

The adoption of comparative fault did not prevent a joint tortfeasor, whose fault had been determined to be in the amount of 50 percent or more, from having contribution from his fellow tortfeasor who was less negligent. Missouri Pac. R.R. v. Star City Gravel Co., 452 F. Supp. 480 (E.D. Ark. 1978), aff'd, 592 F.2d 455 (8th Cir. 1979).

Exemption.

Where state fair booklet and entry forms clearly stated that the fair association would not be responsible for loss or damage to property while it was on the fair grounds and the fair booklet also specifically informed entrants that if they desired to protect their property from fire loss, they should obtain insurance against that risk, a jury could conclude that, taken as a whole, the clauses exempted the fair association from liability for negligently caused fire damage to property. Frensley v. National Fire Ins. Co., 856 F.2d 1199 (8th Cir. 1988).

Fault.

Fault to be compared may consist of a party's breach of warranty. Little Rock Elec. Contractors v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988).

Insurance.

In action for benefits of uninsured motorist clause in policy of auto insurance where claimant was found to have been guilty of contributory negligence less in degree than that of other driver, diminution of jury verdict was properly based upon total verdict rather than upon policy limit for uninsured motorist protection so as to constitute a recovery in excess of policy limit permitting a recovery of penalty and attorney's fees. Alexander v. Pilot Fire & Cas. Ins. Co., 331 F. Supp. 561 (E.D. Ark. 1971) (decision under prior law).

A subrogated insurer is barred from recovery if the insured would be barred from pursuing his cause of action because of his contributory negligence; accordingly, where the evidence showed that decedent's negligence exceeded the total negligence of all the defendants, the subrogated insurer cannot recover for the amounts paid to decedent's beneficiaries. Insurance Co. of N. Am. v. United States, 527 F. Supp. 962 (E.D. Ark. 1981).

Jury.

Since there cannot be an unavoidable accident when one of the parties was negligent, the trial court did not err in refusing to instruct the jury relative to unavoidable accident, the collision in question certainly being caused by somebody's negligence and the jury finding both parties to be negligent. Sullivan v. Fanestiel, 229 Ark. 662, 317 S.W.2d 713 (1958) (decision under prior law).

It was the function of the jury to determine how the negligence of the plaintiff compared to the negligence of the defendant where there was a question of contributory negligence and assumption of risk involved. Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971) (decision under prior law).

The question of the comparative negligence of the parties was exclusively for the jury. Scoville v. Missouri Pac. R.R., 458 F.2d 639 (8th Cir. 1972) (decision under prior law).

Where the plaintiff claimed its dairy herd was injured as a result of faulty design of the defendant's silo and defendants responded with sufficient evidence of owner mismanagement at the dairy to warrant a fault comparison by the jury, the district court erred when it refused to instruct the jury to reduce plaintiff's award by the amount of its own negligence or other breach of duty. Circle J Dairy, Inc. v. A.O. Smith Harvestore Prods., Inc., 790 F.2d 694 (8th Cir. 1986).

Where the interrogatory clearly instructed the jury to use 100% to represent the total negligence of the defendants, not the total negligence contributing to the injury, the jury was allowed to consider the plaintiff's blame. Circle J Dairy, Inc. v. A.O. Smith Harvestore Prods., Inc., 790 F.2d 694 (8th Cir. 1986).

Where the plaintiff asked for $684,962 in damages and was awarded $500,000, or approximately 77% of the claim, jurors did not consider any fault on the plaintiff's part equal to or exceeding that attributable to defendants. Circle J Dairy, Inc. v. A.O. Smith Harvestore Prods., Inc., 790 F.2d 694 (8th Cir. 1986).

A trial court is not obligated to give an instruction on assumption of risk when such theory of recovery is no longer applicable law in Arkansas. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

Submission of comparative fault special-interrogatory verdict forms to the jury by the circuit court during deliberations without allowing the victim the opportunity to argue to the jury the effects of answers to those interrogatories violated subsection (d) of this section; further, the error was not harmless, pursuant to Ark. R. Civ. P. 61, as the victim's inability to argue the effects of the jury's answers to the interrogatories was prejudicial. Campbell v. Entergy Arkansas, Inc., 363 Ark. 132, 211 S.W.3d 500 (2005).

Circuit court's error in resubmitting a negligence case on special interrogatory verdict forms without allowing the individual the opportunity to argue to the jury the effects of the answers to the interrogatories pursuant to § 16-64-122(d) was not harmless error where the jury apportioned each party fifty percent (50%) fault, even the slightest tipping of those percentages in favor of the individual would have resulted in a judgment against the owner of the electrical wire, the jury had been deadlocked at one point, six to six, only the minimum number of jurors needed for a verdict were in agreement, and the error was particularly injurious because the individual could not have known at closing arguments that special interrogatory forms would be used. Campbell v. Entergy Arkansas, Inc., 363 Ark. 132, 211 S.W.3d 500 (2005).

Trial court did not err in a product liability action in allowing evidence of a driver's alcohol consumption and instructing the jury on comparative fault under subsection (a) of this section; it was for the jury to decide whether the driver's fault, if any, served as a proximate cause of the truck catching on fire. Gartman v. Ford Motor Co., 2013 Ark. App. 665, 430 S.W.3d 218 (2013).

Jury Instructions.

Trial court properly instructed the jury on comparative fault as the broad language set forth in this section contradicted plaintiff's claim that fault should not be compared in enhanced-injury cases; under Arkansas law, comparative fault was applicable to all actions for personal injury or wrongful death. Bishop v. Tariq, Inc., 2011 Ark. App. 445, 384 S.W.3d 659 (2011).

Malpractice.

The issue of a plaintiff's fault may be submitted to the jury in a legal malpractice action even when the plaintiff has not taken some specific action to interfere with the attorney's performance. Reliance Nat'l Indem. Co. v. Jennings, 189 F.3d 689 (8th Cir. 1999).

Mitigation.

The duty to mitigate damages is frequently viewed as a duty imposed by law to further a policy limitation on the amount of damages that may be collected by an injured party. Resolution Trust Corp. v. Kerr, 804 F. Supp. 1091 (W.D. Ark. 1992)Criticized byResolution Trust Corp. v. Armbruster, 52 F.3d 748 (8th Cir. 1995).

Multiple Defendants.

The plaintiff may recover from an individual defendant in a multiple defendant case even though the negligence of the individual defendant is less than that of the plaintiff. Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996).

In a simple negligence case, the relative fault of the plaintiff is compared to the relative fault of the defendant and the plaintiff may recover damages only if his fault is less than the defendant's fault; in a case where there are multiple defendants, this section provides that a plaintiff is allowed to recover if his relative fault is less than the combined fault of all defendants. Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996).

Pleading.

It may be possible to plead comparative negligence in mitigation of the tort of deceit. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. First Nat'l Bank, 774 F.2d 909 (8th Cir. 1985).

As a consequence of failing to plead contributory negligence as an affirmative defense, defendant retailer did not have available the full benefit of a contributory negligence defense under subsection (b) of this section, but the failure did not make all evidence relating to plaintiff's conduct excludable under Fed. R. Evid. 401 and 403. Dupont v. Fred's Stores of Tenn., Inc., 652 F.3d 878 (8th Cir. 2011).

Professional Negligence.

This section can achieve its purpose in an accountant malpractice action, and its application will not improperly protect accountants from liability for the portion of harm caused by their professional negligence. FDIC v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).

Review.

Apportionment of fault under this state's comparative fault statute is a matter within the province of the finder of fact, and thus subject to review under the clearly erroneous standard. Mandel v. United States, 793 F.2d 964 (8th Cir. 1986).

In case where jury determined the plaintiffs were more at fault than the defendants, but still allowed recovery for plaintiffs, the evidence which was presented to the jury on the defendants' behalf was substantial and the trial court was correct in denying the motion for new trial. Hodges v. Jet Asphalt & Rock Co., 305 Ark. 466, 808 S.W.2d 775 (1991).

Scope.

No Arkansas cases suggest that Arkansas follow the substantive comparative fault rule that a plaintiff's degree of fault should always be compared with the fault of other possible wrongdoers, even if plaintiff has asserted no claim against those wrong doers; indeed, given the plain language of this section — that the plaintiff's fault should be compared to that of the parties from whom the plaintiff “seeks to recover damages” — it is hard to imagine how the legislature's words could be construed to reach such a result. Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996).

Seat Belts.

The nonuse of a seat belt may constitute a proximate cause of injury if some or all of the damage sustained by the nonuser would not have occurred had the seat belt been worn. Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989).

Failure to wear an available seat belt may, in the absence of a statute requiring use, nevertheless constitute negligence under the general common-law standard of ordinary care. Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989).

A jury may assess a percentage of fault against plaintiff if defendants can demonstrate the degree to which her injuries would have been reduced by use of a seat belt. Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989).

Nonuse of seat belts may be admissible as evidence of comparative fault if such nonuse is a proximate cause of plaintiffs' injuries, which the defendant has the burden of proving. Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992).

Where there was no evidence that their nonuse of seat belts caused their injuries, the trial court erred in denying plaintiffs' motion in limine to exclude evidence concerning their failure to wear seat belts, and the case was remanded for new trial where the erroneously admitted evidence may have led the jury to attribute more fault to plaintiffs than should have been attributed to them. Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992).

Cited: Strange v. Stovall, 261 Ark. 53, 546 S.W.2d 421 (1977); Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980); Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980); Legate v. Passmore, 268 Ark. 1161, 599 S.W.2d 151 (Ct. App. 1980); Brewer v. Jeep Corp., 546 F. Supp. 1147 (W.D. Ark. 1982); W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982); Smith v. Missouri Pac. R.R., 716 F.2d 1208 (8th Cir. 1983); Brewer v. Jeep Corp., 724 F.2d 653 (8th Cir. 1983); Bankston v. Pulaski County School Dist., 281 Ark. 476, 665 S.W.2d 859 (1984); Scogin v. Century Fitness, Inc., 780 F.2d 1316 (8th Cir. 1985); Rini v. Oaklawn Jockey Club, 662 F. Supp. 569 (W.D. Ark. 1987); Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617 (1988); Elk Corp. of Ark. v. Builders Transport, Inc., 862 F.2d 663 (8th Cir. 1988); Garver & Garver v. Little Rock San. Sewer Comm., 300 Ark. 620, 781 S.W.2d 24 (1989); E. Ritter & Co. v. Department of Army, 874 F.2d 1236 (8th Cir. 1989); Chaney v. Falling Creek Metal Prods., Inc., 906 F.2d 1304 (8th Cir. 1990); Robertson v. Union Pac. R.R., 954 F.2d 1433 (8th Cir. 1992).

16-64-123. Excessiveness of damages generally.

The verdict of any jury rendered in any action for the recovery of damages where the measure thereof is indeterminate or uncertain shall not be held to be excessive or be set aside as excessive, except for some erroneous instruction or, upon evidence, aside from the amount of the damages assessed, that it was rendered under the influence of passion or prejudice.

History. Acts 1901, No. 125, § 1, p. 196; C. & M. Dig., § 1313; Pope's Dig., § 1538; A.S.A. 1947, § 27-1903.

Research References

ALR.

Liability of cigarette manufacturers for punitive damages. 108 A.L.R.5th 343.

Case Notes

Constitutionality.

The court held this section to be void insofar as it curtailed the appellate jurisdiction of the Supreme Court. Whether this section is void insofar as it affects the jurisdiction of the circuit court was not decided. St. Louis & N. A. R. Co. v. Mathis, 76 Ark. 184, 91 S.W. 763 (1905).

In General.

This section is not the basic authority for reduction of a jury verdict by a trial court and it only purports to limit the basic and inherent power of the court in certain cases. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969).

Applicability.

Where losing party did not waive all errors and where the winning party did not remit the excess, this section does not apply. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969).

Factors Considered.

The standard of review for whether damages are so excessive as to shock the conscience of the court or demonstrate that the jury was motivated by passion or prejudice involves consideration of such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992).

Grounds for Reduction.

A belief by a trial court that damages are excessive is not, standing alone, a sufficient ground for ordering a reduction. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).

Record sufficient to find that award of actual and punitive damages was excessive, but that underlying liability determinations were not tainted; therefore remittitur was appropriate. Dees v. Allied Fid. Ins. Co., 655 F. Supp. 10 (E.D. Ark. 1985).

Power of Court.

This section, which provides that in cases where damages are not susceptible of definite measurement a remittitur shall be ordered only where the judgment is rendered under the influence of passion and prejudice, is not the basic authority for the reduction of a jury verdict, since remittitur is within the inherent power of a court. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).

Reduction improper.

Punitive damages award of $350,000 against husband for assaulting his wife did not shock the court's conscience or demonstrate passion or prejudice on the part of the jury. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993).

Cited: Jamison v. Spivey, 197 Ark. 698, 125 S.W.2d 453 (1939); Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941); Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969).

16-64-124. Remittitur.

The circuit judge presiding at the trial, if he or she deems the verdict excessive, may, on motion for a new trial filed by the losing party, indicate the amount of the excess. Thereupon, if the losing party offers to file and enter of record a release of all errors that may have accrued at the trial if the prevailing party will remit the amount so deemed excessive and the prevailing party refuses to remit the amount so deemed excessive, the verdict shall be set aside.

History. Acts 1901, No. 125, § 1, p. 196; C. & M. Dig., § 1313; Pope's Dig., § 1538; A.S.A. 1947, § 27-1903.

Case Notes

Constitutionality.

The court held this section to be void insofar as it curtailed the appellate jurisdiction of the Supreme Court. Whether this section is void insofar as it affects the jurisdiction of the circuit court was not decided. St. Louis & N. A. R. Co. v. Mathis, 76 Ark. 184, 91 S.W. 763 (1905).

Applicability.

Where losing party did not waive all errors and where the winning party did not remit the excess, this section does not apply. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969).

In a conversion action, the ratio between the punitive-damages award of $250,000 before the trial court's remittitur was not “grossly excessive” where the compensatory damages award of $35,000 established an approximate 7:1 ratio, which was well within the acceptable range when reviewing that particular factor under recent United States Supreme Court rulings; on cross-appeal the trial court was ordered to reinstate, upon remand, the original punitive-damages award of $250,000. Hudson v. Cook, 82 Ark. App. 246, 105 S.W.3d 821 (2003).

Excessive after Remittitur.

Where, from all the evidence, the amount awarded by the jury appears excessive and the trial court so found; and where, after the plaintiff had entered a remittitur, the judgment was still grossly excessive and there was no satisfactory evidence from which the Supreme Court could determine what sum should be awarded, the cause should be remanded for a new trial. Jamison v. Spivey, 197 Ark. 698, 125 S.W.2d 453 (1939).

Grounds for Reduction.

Record sufficient to find that award of actual and punitive damages was excessive, but that underlying liability determinations were not tainted; therefore remittitur was appropriate. Dees v. Allied Fid. Ins. Co., 655 F. Supp. 10 (E.D. Ark. 1985).

Motion for Reduction.

Motion for reduction of jury award is held to be in the nature of a request for a remittitur under this section and not a motion for judgment notwithstanding verdict, and its granting is not inconsistent with granting a new trial. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969).

Power of Court.

Court's action in reducing verdict without requiring filing of release provided by this section was not error, court having inherent power to reduce verdicts to conform to established facts. Dierks Lumber & Coal Co. v. Noles, 201 Ark. 1088, 148 S.W.2d 650 (1941).

Refusal to Order.

The trial court did not err in refusing to order a remittitur of damages for mental anguish and loss of consortium where there was no showing that the verdict was influenced by passion, and the verdict, while high, was not so grossly excessive as to shock the conscience of the court. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986).

Scope.

This section is not the basic authority for reduction of a jury verdict by a trial court and it only purports to limit the basic and inherent power of the court in certain cases. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969).

This section, which provides that in cases where damages are not susceptible of definite measurement a remittitur shall be ordered only where the judgment is rendered under the influence of passion and prejudice, is not the basic authority for the reduction of a jury verdict, since remittitur is within the inherent power of a court. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).

Cited: Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).

16-64-125. Method of serving judgment on defendant constructively summoned.

The service of the copy of the judgment, if in this state, shall be made and proved in the same manner as the service of a summons and, if out of this state, in the manner prescribed in § 16-58-119 [superseded], as to the service of a copy of the complaint and summons and proof thereof.

History. Civil Code, § 452; C. & M. Dig., § 6267; Pope's Dig., § 8223; A.S.A. 1947, § 27-1909.

16-64-126. Title of bona fide purchasers of property unaffected by new trial.

The title of purchasers in good faith to any property sold under an attachment or judgment shall not be affected by the new trial permitted by ARCP, Rule 59, except the title of property obtained by the plaintiff and not bought of him in good faith by others.

History. Civil Code, § 453; C. & M. Dig., § 6268; Pope's Dig., § 8224; A.S.A. 1947, § 27-1910.

16-64-127 — 16-64-129. [Repealed.]

Publisher's Notes. These sections, concerning transcripts and the record on appeal in equity cases, were repealed by Acts 2003, No. 1185, § 194. The sections were derived from the following sources:

16-64-127. Acts 1915, No. 290, § 19; C. & M. Dig., § 1269; Pope's Dig., § 1493; A.S.A. 1947, § 27-1728.

16-64-128. Acts 1945, No. 196, § 1; 1951, No. 139, §§ 1, 2; A.S.A. 1947, §§ 27-1754 — 27-1756.

16-64-129. Acts 1951, No. 139, §§ 3-7; A.S.A. 1947, §§ 27-1757 — 27-1761.

16-64-130. Punitive damage — Contract involving financial institutions.

  1. For the purposes of this section, the term “financial institutions” means banks, savings and loan associations, and credit unions located within the State of Arkansas and which are insured by an agency of the federal government.
  2. This section shall be applicable in civil actions in which a claim is asserted against a financial institution, whether by complaint, counterclaim, third party complaint, or other pleading. If a claim asserted against a financial institution is determined by the court to be a breach of contract claim arising out of a loan of money or other extension of credit by the financial institution to the person asserting the claim, then punitive damages shall not be awarded to the person asserting the claim unless it is found that the person asserting the claim suffered personal injury or physical damage to property as a result of the financial institution's alleged action or inaction.

History. Acts 1991, No. 532, § 1.

Case Notes

Punitive damages not allowed.

Where a bank had provided recourse financing to a car dealer for 20 years, during that time had executed contracts establishing the terms for such financing, and within months of executing one such contract notified the dealer that it would not honor the same, the claim involved the issuance of credit; therefore, under this section, the dealer was not entitled to punitive damages in his breach of contract action against the bank. Bank of Am., N.A. v. C.D. Smith Motor Co., 353 Ark. 228, 106 S.W.3d 425 (2003).

16-64-131. New business rule — Damages.

  1. In a case involving a recognized tort or breach of contract, there is no absolute denial of damages for lost profits to a newly established business.
  2. A newly established business is subject to the same standard of proof for lost profits as any other business regardless of how long the newly established business has operated.

History. Acts 2017, No. 1103, § 3.

A.C.R.C. Notes. Acts 2017, No. 1103, § 1, provided: “Legislative findings.

The General Assembly finds that:

“(1) Courts in this state and others may have perceived Arkansas as a ‘new business rule’ state concerning the exclusion of lost profit damages for a newly established business;

“(2) Damages have been recoverable in this state if they can be established with a reasonable degree of certainty; and

“(3) The question of damages, both as to measure or amount, is a question of fact, and thus Arkansas has not applied a rigid ‘new business rule’ to bar the award of future lost profits in tort or breach of contract cases.”

Acts 2017, No. 1103, § 2, provided: “Legislative intent.

The General Assembly intends to:

“(1) Annul the application of the ‘new business rule’ on any action for damages consisting of lost profits; and

“(2) Prohibit the recognition of the ‘new business rule’ in a court in this state.”

Chapter 65 Judgments Generally

Subchapter 1 — General Provisions

Cross References. Executions may issue on judgments, § 16-66-101.

Limitations on actions on judgment, § 16-56-114.

Effective Dates. Acts 1859, No. 147, § 3: effective on passage.

Acts 1868, No. 9, § 9: effective on passage.

Acts 1891, No. 56, § 3: effective on passage.

Acts 1899, No. 92, § 2: effective on passage.

Acts 1945, No. 55, § 3: Feb. 16, 1945. Emergency clause provided: “Because of the confusion and uncertainty existing in the various counties throughout the State under the present laws relative to the legal fees entitled to be charged by the Circuit and Chancery Clerks and Recorders in this State for the services they render, an emergency is hereby declared to exist and this act shall take effect and be in force from and after its passage and approval.”

Acts 1963, No. 124, § 2: Feb. 28, 1963. Emergency clause provided: “It is hereby found and determined by the General Assembly that the fee presently provided for recorders for recording, indexing and cross-indexing instruments of writing is not adequate to compensate such recorders and in fact is working a severe hardship on the recorders in the various counties and that this act is immediately necessary to correct the situation. 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 effect from the date of its passage and approval.”

Acts 1977, No. 333, § 6: Mar. 1, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that the establishment of uniform advance fees to be charged for causes of action by the clerks in the various circuit and chancery courts of this State is necessary to provide for the efficient operation of said offices and to minimize the necessity of maintaining separate accounts for various fees; that the fees charged by county recorders are not now adequate to reimburse the county for the service of recording instruments, and that the immediate passage of this Act is necessary to promote the efficient administration of justice in this State and to enable counties to recover reasonable fees for services rendered by recorders. 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. 782, § 3: Apr. 3, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the rate of interest on judgments should be assessed in accordance with the amendment to Article XIX, Section 13 of the Constitution of Arkansas which became effective December 2, 1982. 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.”

Research References

ALR.

Running of interest on judgment where both parties appeal. 11 A.L.R.4th 1099.

State statute or rule allowing interest or changing rate of interest on judgments or verdicts. 41 A.L.R.4th 694.

“One Satisfaction Rule” as Ground for Summary Judgment, 20 A.L.R.7th Art. 6 (2018).

Am. Jur. 46 Am. Jur. 2d, Judgm., § 1 et seq.

C.J.S. 49 C.J.S., Judgm., § 1 et seq.

16-65-101, 16-65-102. [Repealed.]

Publisher's Notes. These sections, concerning the definition of a judgment, and rendering judgments in a single action against several defendants, were repealed by Acts 1993, No. 1275, § 1. They were derived from the following sources:

16-65-101. Civil Code, § 399; C. & M. Dig., § 6233; Pope's Dig., § 8189; A.S.A. 1947, § 29-101.

16-65-102. Civil Code, §§ 401, 404; C. & M. Dig., §§ 6235, 6237; Pope's Dig., §§ 8191, 8193; A.S.A. 1947, §§ 29-103, 29-104. For present law, see ARCP 54.

16-65-103. Computation of amount of judgment.

In all judgments or decrees rendered by any court of justice for any debt, damages, or costs, and on all executions issued thereon, the amount shall be computed, as near as may be, in dollars and cents, rejecting smaller fractions. No judgment or other proceeding shall be considered erroneous for such an omission.

History. Rev. Stat., ch. 100, § 2; C. & M. Dig., § 7351; Pope's Dig., § 9390; A.S.A. 1947, § 29-115.

Case Notes

In General.

An entry containing a statement that one of the defendants should have paid the plaintiff a certain amount each month but no statement of the amount due plaintiff was not a judgment within the meaning of this section, but only findings of fact upon which the judgment should be based. Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967).

Costs.

In a condemnation action, costs awarded were to be treated as a judgment and the trust was entitled to postjudgment interest. City of Bryant v. Boone Trust, 2018 Ark. App. 547, 564 S.W.3d 550 (2018).

Final Judgment.

In a case alleging breach of contract that arose from a termination of employment, a July 2013 order lacked finality because it did not calculate an amount that a former employee was entitled to in dollars and cents; the fact that the court found that the former employee was entitled to lost wages of $45,000 less the amount she earned while employed by the county clerk did not cure a defect in a January 2013 order. Helena-West Helena Pub. Sch. Dist. v. Shields, 2014 Ark. App. 519 (2014).

Multiple Parties.

Judgment in a vehicle rollover case was not final as required by Ark. R. App. P. Civ. 2(a)(1), because it merely set forth the jury's findings that both the vehicle manufacturer and the other driver were responsible and the total amount of damages, rather than a specific dollar amount owed by the manufacturer pursuant to this section. Ford Motor Co. v. Washington, 2013 Ark. 88 (2013).

Cited: McWhorter v. McWhorter, 2009 Ark. 458, 344 S.W.3d 64 (2009); Daniel v. Ark. Dep't of Human Servs., 2017 Ark. 206, 520 S.W.3d 258 (2017).

16-65-104. Computation of special damages.

  1. Where special damages are given by statute and it appears, by the verdict of the jury, or other decision of the action, that the special damages are due and recoverable by one of the parties against the other, the court shall render judgment for that party.
  2. If, in ascertaining the amount of the special damages, it is necessary to assess the value of any property or amount of any debt or claim, the court may hear the proof and assess the value or amount, or have the assessment made by a jury.

History. Civil Code, § 421; C. & M. Dig., § 6275; Pope's Dig., § 8231; A.S.A. 1947, § 29-114.

Case Notes

Judgment Notwithstanding Verdict.

In an action in which special statutory damages are recoverable in addition to wages due, a motion for judgment notwithstanding a verdict for wages due must be made before judgment is entered on the verdict. Chaney v. Missouri P.R.R., 167 Ark. 172, 267 S.W. 564 (1925).

16-65-105. Excess of setoff over claim.

  1. If a setoff established at the trial exceeds the plaintiff's claim so established, judgment for the defendant must be given for the excess.
  2. If it appears that the defendant is entitled to any other affirmative relief, judgment shall be given therefor.

History. Civil Code, § 419; C. & M. Dig., § 6274; Pope's Dig., § 8230; A.S.A. 1947, § 29-112.

Case Notes

Cited: Auten v. United States Nat'l Bank, 174 U.S. 125, 19 S. Ct. 628, 43 L. Ed. 920 (1899).

16-65-106. Reservation of infant's right to show cause against judgment.

It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against the judgment or order after his or her attaining full age. However, in any case in which, but for this section, such a reservation would have been proper, the infant, within twelve (12) months after arriving at the age of eighteen (18) years, may show cause against the order or judgment.

History. Civil Code, § 423; C. & M. Dig., § 6277; Pope's Dig., § 8233; A.S.A. 1947, § 29-117.

Case Notes

Decree Absolute.

A decree does not become absolute till the expiration of the time to show cause. Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674 (1905).

Ejectment.

Where, in a suit for ejectment, in which an infant is not deprived of his interest in land, the rule that an infant may sue to show cause and set aside the judgment when he attains his majority does not apply. Paragould Trust Co. v. Perrin, 103 Ark. 67, 145 S.W. 886 (1912).

Land Interests.

A decree against an infant, divesting his title to land if regularly obtained, is not void but voidable for cause. Blanton v. Rose, 70 Ark. 415, 68 S.W. 674 (1902).

Where a decree divests a minor of an interest in lands, he has a right to show cause against the decree within 12 months after arriving at full age. Purcell v. Gann, 113 Ark. 332, 168 S.W. 1102 (1914).

Where a conveyance by a father to his infant children was set aside as a fraud upon his creditors, the infants, having an interest in the land which they could divest only by conveyance, are entitled to show cause against the decree within 12 months after arriving at the age of majority. Berringer v. Stevens, 145 Ark. 293, 225 S.W. 14 (1920).

In suit to foreclose a trust deed by curator of minors where default decree was rendered for cross-complainant claiming title as purchaser at tax sale, demurrer to minors' motion or complaint to set aside the decree was improperly sustained since proceeding was not a collateral attack on the decree and minors had right to petition for vacation of erroneous judgment. Arkansas Trust Co. v. Sims, 198 Ark. 1143, 133 S.W.2d 854 (1939).

Liens.

This section has no application to decrees of foreclosure under liens placed upon the lands of an infant by his ancestor. Estes v. Lucky, 133 Ark. 97, 201 S.W. 815 (1918); Shaw v. Polk, 152 Ark. 18, 237 S.W. 703 (1922).

Limitations.

A suit to set aside a judgment against an infant must be brought within 12 months after the infant attains majority, if not within that period the action is barred the same as an action of an adult. Ready v. Ozan Inv. Co., 190 Ark. 506, 79 S.W.2d 433 (1935).

Partnership.

In an action to wind up a partnership, a decree providing for the service of summons upon a minor and appointment of a guardian and attorney ad litem for the minor is binding on her to the same extent as if she were an adult heir. James v. Wade, 200 Ark. 786, 141 S.W.2d 13 (1940).

Plaintiffs.

The sections authorizing a minor to show cause against a judgment or decree after coming of age affords no relief to an infant plaintiff. Glasscock v. Glasscock, 98 Ark. 151, 135 S.W. 835 (1911).

This section refers to judgments against infant defendants and an infant plaintiff cannot, upon attaining his majority, have a judgment in his favor set aside because of its inadequacy. Walker v. Killoren Elec. Co., 243 Ark. 752, 421 S.W.2d 893 (1967).

Procedure.

Before a party can take advantage of this section, errors in the judgment must be shown. Martin v. Gwynn, 90 Ark. 44, 117 S.W. 754 (1909).

Right of Review.

The right of review of a judgment against a minor exists only where by the former practice it was proper to reserve in the decree his right to show cause. Paragould Trust Co. v. Perrin, 103 Ark. 67, 145 S.W. 886 (1912).

Cited: Jones v. Pond & Decker Mfg. Co., 79 Ark. 194, 96 S.W. 756 (1906); Brake v. Sides, 95 Ark. 74, 128 S.W. 572 (1910).

16-65-107. Recital of notice.

In all cases where it appears from a recital in the records of any court that actual or constructive notice was given, it shall be evidence of that fact.

History. Acts 1859, No. 147, § 2, p. 172; C. & M. Dig., § 6239; Pope's Dig., § 8195; A.S.A. 1947, § 29-108.

Case Notes

False Return.

An officer's false return of service of process does not preclude one from showing in proper proceeding that no service was had, and thus be relieved from burden of judgment or decree based on a false return of service. Husband v. Crockett, 195 Ark. 1031, 115 S.W.2d 882 (1938).

Notice.

A decree is not subject to collateral attack by infant defendant where the record is otherwise silent as to service of process. Huggins v. Dabbs, 57 Ark. 628, 22 S.W. 563 (1893).

Whether a domestic judgment when collaterally attacked, is void for want of notice, is a matter for the court to determine from an inspection of the record. McDonald v. Ft. Smith & W. R. Co., 105 Ark. 5, 150 S.W. 135 (1912).

A record which contradicts the finding of service in a decree stultifies itself and the decree is overcome. Union Inv. Co. v. Hunt, 187 Ark. 357, 59 S.W.2d 1039 (1933).

—Constructive Notice.

The recital in the record, that constructive notice to a nonresident defendant in chancery has been given by publication, is sufficient. Coons v. Throckmorton, 25 Ark. 60 (1867).

A decree in a proceeding by constructive service which recites that notice was given as required by statute, without specifying how notice was given, is valid as against collateral attack. McLain v. Duncan, 57 Ark. 49, 20 S.W. 597 (1892).

Presumption.

Where minor heirs-at-law endeavored to have a foreclosure decree vacated after attaining majority because of defective service on them as infants, the court held that there existed a presumption of service from a recital in the decree of foreclosure that could not be attacked collaterally. Boyd v. Roane, 49 Ark. 397, 5 S.W. 704 (1887).

The statutory presumption in favor of the recital in a record of service of process is not overcome by the fact that the record contains a copy of the summons without any return of service endorsed thereon. White v. Smith, 63 Ark. 513, 39 S.W. 555 (1897).

Where a decree recited that the defendants “were duly served with summons as required by law,” it will be presumed that defendants were duly summoned. Love v. Kaufman, 72 Ark. 265, 80 S.W. 884 (1904).

Recitals.

The recital in a judgment of the county court barring county warrants which had been called in for examination and reissue, that due notice of the order calling in the warrants had been given, is conclusive evidence of that fact. Newton v. Askew, 53 Ark. 476, 14 S.W. 670 (1890).

On a direct attack, recitals in a judgment that defendants, though served with summons, failed to appear were prima facie evidence of the fact stated and must be taken as true unless there is testimony to contradict them or tending to show to the contrary. First Nat'l Bank v. Dalsheimer, 157 Ark. 464, 248 S.W. 575 (1923).

In an action to set aside a default foreclosure decree, the evidence was held insufficient to prove want of service as against recitals of the decree showing service. Davis v. Ferguson, 164 Ark. 340, 261 S.W. 905 (1924).

A recital in the record of a court imparts absolute verity, and parties thereto are estopped from denying its truth. Recital of service is prima facie evidence of the fact. Fidelity Mtg. Co. v. Evans, 168 Ark. 459, 270 S.W. 624 (1925).

The evidence was held to make a prima facie showing of a meritorious defense to authorize a judgment obtained without service to be set aside on direct attack. First Nat'l Bank v. Turner, 169 Ark. 393, 275 S.W. 703 (1925).

Recitals in a judgment showing legal service are conclusive in the absence of fraud. Kindrick v. Capps, 196 Ark. 1169, 121 S.W.2d 515 (1938).

16-65-108. Judgments, orders, sentences, and decrees without notice void.

All judgments, orders, sentences, and decrees made, rendered, or pronounced by any of the courts of the state against anyone without notice, actual or constructive, and all proceedings had under judgments, orders, sentences, or decrees shall be absolutely null and void.

History. Acts 1859, No. 147, § 1, p. 172; C. & M. Dig., § 6238; Pope's Dig., § 8194; A.S.A. 1947, § 29-107.

Research References

Ark. L. Rev.

Comment, Service of Process — Default Judgment, etc., 40 Ark. L. Rev. 381.

Case Notes

In General.

Judgment without notice to parties is void. Townsly-Myrick Dry Goods Co. v. Fuller, 58 Ark. 181, 24 S.W. 108 (1893); Grinstead v. Wilson, 69 Ark. 587, 65 S.W. 108 (1901).

Applicability.

This section was not applicable to order of chancery court restraining parties from entering property. Arkansas State Hwy. Comm'n v. Hammock, 201 Ark. 927, 148 S.W.2d 324 (1941).

Sureties, having made themselves parties to the suit by entering into the appeal bond, are not entitled to notice before decree against them. Whetstone v. Atlas Drilling & Prod. Co., 241 Ark. 487, 409 S.W.2d 322 (1966).

This section is not applicable to an order to the Workers' Compensation Commission. Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969).

Intervention.

Although the State of Arkansas was indeed a party to the litigation, the Arkansas Game and Fish Commission and the Arkansas Soil and Water Conservation Commission were not parties to the litigation and, therefore, the chancery court erred by assuming jurisdiction over the commissions and a judgment ordering them to monitor the level of a lake was void. Taylor v. Zanone Props., 342 Ark. 465, 30 S.W.3d 74 (2000).

Issue Raised.

Where complaint based on a foreclosure to land stated that no notice of the land sale had been given, the court held the issue of the lack of notice was raised by the pleadings. Beck v. Rhoads, 235 Ark. 619, 361 S.W.2d 545 (Ark. 1962).

Judgment Void.

Any judgment rendered in vacation is invalid. Biffle v. Jackson, 71 Ark. 226, 72 S.W. 566 (1903).

An overdue tax sale based on a judgment rendered by a special judge at an adjourned term of the court held on a day when the regular judge was holding the regular term of court in another county in the same circuit is a nullity. Caldwell v. Barrett, 71 Ark. 310, 74 S.W. 748 (1903).

Where in order to have rights in certain lands determined court confirmed title in one of defendants without the defendant having filed a cross-complaint and without notice to the other defendants and without any sort of pleadings which would authorize the decree, the judgment was void on the face of the record and not res judicata. Woolfolk v. Davis, 225 Ark. 722, 285 S.W.2d 321 (1955).

Under this section the defendant does not seek a trial, but asks that the judgment be declared void. White v. Ray, 267 Ark. 83, 589 S.W.2d 28 (1979).

In cases where judgments are void, no proof of a meritorious defense is necessary to set aside judgment. Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990).

The doctrine res judicata or election of remedies do not apply when the out-of-state judgment on the issues in controversy has been declared void. Sides v. Kirchoff, 316 Ark. 680, 874 S.W.2d 373 (1994).

Although the State of Arkansas was indeed a party to the litigation, the Arkansas Game and Fish Commission and the Arkansas Soil and Water Conservation Commission were not parties to the litigation and, therefore, the chancery court erred by assuming jurisdiction over the commissions and a judgment ordering them to monitor the level of a lake was void. Taylor v. Zanone Props., 342 Ark. 465, 30 S.W.3d 74 (2000).

Judgment debtors were properly granted summary judgment in the judgment creditor's foreclosure action because the judgment was not revived in accord with the statute governing the issuance of a writ for scire facias as a writ had not been served on the debtors as required by the statute; thus, the order of revivor was void. Rose v. Harbor East, Inc., 2013 Ark. 496, 430 S.W.3d 773 (2013).

Notice.

A judgment of a court of general jurisdiction rendered without service of summons without the statutory written notice cannot be assailed if the defendant in the judgment had actual notice. Renfroe v. Parmelee, 143 Ark. 547, 220 S.W. 816 (1920).

Court may cause notice to be given when necessary to serve the purpose of justice, but plaintiff, having invoked the jurisdiction of the court, must take notice of the regular or adjourned sessions thereof. Berry v. Sims, 195 Ark. 326, 112 S.W.2d 25 (1938).

Where the uncontradicted testimony was to the effect that appellants had no notice of any kind, that the foreclosure suit would be or was, in fact, filed in this case, then the foreclosure decree, together with the deeds based thereon, would be subject to collateral attack. Beck v. Rhoads, 235 Ark. 619, 361 S.W.2d 545 (Ark. 1962).

An order dismissing plaintiff's complaint without prejudice, entered without notice while the court was not in session, was void and was properly set aside without the filing of a verified complaint therefor by the plaintiff. Pepsi-Cola Bottling Co. v. Steel, 245 Ark. 284, 431 S.W.2d 854 (1968).

Where the plaintiff did not demonstrate that sufficient inquiry was made in attempting to ascertain appellant's last known address and thereby deprive him of “reasonably probable” actual notice consistent with due process and the substitute service statute § 16-58-121 (a) and (b) was not sufficiently complied with, the default judgment was void. Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971).

On motion to set aside default judgment on ground of defective service of process where service was invalid, judgment was void ab initio. Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978).

This section has to do with a judgment entered without any notice whatever, not merely without formal notice. White v. Ray, 267 Ark. 83, 589 S.W.2d 28 (1979).

A summons notice to be valid must be reasonably calculated to make the defendant aware of his duty to take action or risk entry of a default judgment; judgments by default rendered without valid service of notice are judgments rendered without jurisdiction and are therefore void. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), overruled, Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (Ark. 1998). But see Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (Ark. 1998).

—Constructive Service.

A judgment enforcing an attachment on land based on constructive service will not be quashed on certiorari because sheriff's return was defective if the judgment defendant had an adequate remedy at law allowing parties against whom judgment is rendered on constructive service two years in which to come into court and move to have case retried. Gates v. Hayes, 69 Ark. 518, 64 S.W. 271 (1901).

A judgment based on constructive service by publication is void where a warning order was not made upon the complaint. Beidler v. Beidler, 71 Ark. 318, 74 S.W. 13 (1903).

A decree of divorce based upon constructive service by publication without actual service is void where her name was given in the complaint, warning order, and decree was erroneous. Grober v. Clements, 71 Ark. 565, 76 S.W. 555 (1903).

Where a resident defendant is served with constructive service, the proceedings are null and void. Barksdale v. Barksdale, 170 Ark. 228, 279 S.W. 789 (1926).

—Presumption.

Where infant heirs and their guardian ad litem were served with process in a suit to foreclose mortgage, and no attempt was made to vacate decree until all party defendants had attained 21 years, then all joined in action to vacate judgment on grounds that process had been defective, it was held that the presumption of service was conclusive from the record and could not be contradicted by evidence. Boyd v. Roane, 49 Ark. 397, 5 S.W. 704 (1887).

A presumption of regularity attends a judgment of a superior court of general jurisdiction which can be controverted only by showing that there was no notice and that a meritorious defense existed which could have been asserted notwithstanding this section. Soverigan Camp, W. W. v. Wilson, 136 Ark. 546, 207 S.W. 45 (1918).

Pleadings.

When a motion alleges that the judgment is void, and the challenge is based on this section, the movant who had no notice of the suit against him need not allege a meritorious defense to have the judgment set aside. Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989).

Service of Process.

Because service of process was insufficient to give notice, the default judgment was void ab initio. Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997).

Supersession.

The reporter's notes to A.R.C.P., Rule 71, suggest that this section is superseded, but if this section is superseded by Rule 71 it is only to the extent necessary “for enforcing obedience” to orders of the court, and is expressly not superseded with respect to judgments by default. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), overruled, Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (Ark. 1998). But see Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (Ark. 1998).

Writ of Garnishment.

Where a writ of garnishment served as summons in an action but failed to notify the garnishee that failure to answer could result in judgment against him, proper notice was not given which was a fatal defect in the writ. DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W.2d 307 (1975).

Cited: Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971); Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978); Southern Paper Box Co. v. Houston, 15 Ark. App. 176, 690 S.W.2d 745 (1985).

16-65-109. Entry of judgment.

  1. When a trial by a jury has been had, judgment must be entered by the clerk in conformity with the verdict, unless it is special or the court orders the case to be reserved for future argument or consideration.
  2. When the verdict is special, where there has been a special finding upon particular questions of fact or where the court has ordered the case to be reserved, the court shall order what judgment shall be entered.

History. Civil Code, §§ 416, 417; C. & M. Dig., §§ 6271, 6272; Pope's Dig., §§ 8227, 8228; A.S.A. 1947, §§ 29-109, 29-110.

Case Notes

In General.

Judgment will be entered in conformity to the verdict unless (1) the verdict is special and the court reserves the case for further consideration or (2) a party is entitled to judgment upon the pleadings notwithstanding the verdict. Powers v. Wood Parts Corp., 184 Ark. 1032, 44 S.W.2d 324 (1931).

Interest.

The court has no power to add interest to the verdict of a jury in rendering verdicts. Hallum v. Dickinson, 47 Ark. 120, 14 S.W. 477 (1886).

Inclusion of interest in judgment in eminent domain proceeding does not violate this section requiring judgment to conform to verdict, since an eminent domain proceeding while in the nature of a suit for damages is actually an action to determine value of land taken. Ark. State Hwy. Comm'n v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953).

Time of Entry.

Where a decree entered upon the record of the chancery court purports to have been rendered on a day when the court was in session, though it was entered upon the record after the entry of an order adjourning the court for the term, it will be presumed that the decree was rendered in term time and not in vacation. Fiddyment v. Bateman, 97 Ark. 76, 133 S.W. 192 (1910).

Cited: Missouri Pac. Transp. Co. v. Sharp, 194 Ark. 405, 108 S.W.2d 579 (1937); Henderson v. Skerczak, 247 Ark. 446, 446 S.W.2d 243 (1969).

16-65-110. Judgments by default.

  1. Judgments by default rendered by the circuit courts may be recorded in a separate book for that purpose.
  2. The orders showing the rendition of these judgments by default shall be signed by the circuit judge.

History. Civil Code, § 424; C. & M. Dig., § 2229; Pope's Dig., § 2857; A.S.A. 1947, § 29-122.

Research References

Ark. L. Rev.

Note, Setting Aside Default Judgments in Arkansas, 45 Ark. L. Rev. 971.

16-65-111. Death of party.

  1. If, after a verdict is rendered in any action, either party dies before judgment is actually entered thereon, the court may at any time during the term at which the verdict was rendered enter final judgment in the names of the original parties.
  2. Nothing in subsection (a) of this section shall be construed to authorize the entry of the judgment against any party who may have died before a verdict was actually rendered against him or her, notwithstanding he or she may have died on the first day or any other day of the term at which the verdict may have been rendered. Such a verdict shall be void.

History. Rev. Stat., ch. 1, §§ 11, 12; C. & M. Dig., §§ 1306, 1307; Pope's Dig., §§ 1531, 1532; A.S.A. 1947, §§ 29-105, 29-106.

<