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

AG OPINION NO. 2021-012

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

AG OPINION NO. 2020-043

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

AG OPINION NO. 2020-027 Tis AG Opinion explains some limitations on the eligi-

bility of the homestead property tax credit under Amendment 79 of the Arkansas Constitution. Te AG explained that a home- stead is a dwelling of a person that is used as a principal place of residence along with the con- tiguous lands (excluding lands valued as agriculture, pasture or timberland). A limited liability corporation is not a natural person residing at “his” or “her” dwelling, and not entitled to a homestead credit.

Mark Whitmore AAC Chief Counsel

AG OPINION NO. 2019-070 Te request involved the construction on a privately

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

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