Can an Arkansas county elected official keep serving while facing criminal charges, and how does the county fill the seat if a court removes them?

Plain-English summary

State Representative David Branscum asked the AG four related questions about a Newton County situation: can an elected county official keep serving while facing criminal charges, and what happens after a court removes them. Attorney General Leslie Rutledge answered:

1. Generally yes, an elected official could keep serving with criminal charges pending. There was no across-the-board law forcing suspension or resignation just because of an indictment.
2. The quorum court fills the vacancy. If a circuit court later removed the official under Ark. Const. art. 7, § 27, the seat became vacant by operation of law (Ark. Code Ann. § 14-14-1308 listed the "conditions of vacancy"), and Ark. Code Ann. § 14-14-1310(a)(1) directed the county quorum court to fill it by resolution. No special election was triggered for a county elective office.
3. No, the same person cannot be appointed twice to fill a vacancy in the same elective county office. Ark. Code Ann. § 14-14-1310(a)(2)(E) prohibits it, mirroring the language of Amendment 29, § 2.
4. No, an appointee cannot run to succeed themselves in that office. Same statutory prohibition.

The AG also clarified an important historical distinction: pre-1963, Ark. Code Ann. § 21-12-301 required suspension of any officer indicted for any felony. After Acts 1963, No. 83, that statute was narrowed to suspensions only when the indictment involves a shortage of funds reported by the Division of Legislative Audit.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG say someone charged with a crime had to step down?
No. The AG's research found no general law requiring resignation or suspension while charges are pending. The constitutional removal power in Ark. Const. art. 7, § 27 belongs to the circuit court and requires a successful judicial proceeding, not just an indictment.

What about the audit-shortage suspension?
That's a narrow statute. Ark. Code Ann. § 21-12-301 (as amended in 1963) only triggered suspension if Legislative Audit had reported that the official was charged in connection with a shortage of public funds in their office. Ordinary criminal charges fell outside it.

Why a quorum court appointment instead of a special election?
Amendment 55, § 4 to the Arkansas Constitution gave county quorum courts the express power to fill vacancies in elective county offices. Amendment 55 had replaced the older Amendment 29 procedure that gave that authority to the Governor. Hawkins v. Stover, 274 Ark. 125 (1981), confirmed the substitution.

Why can't the appointee just run to keep the seat?
Ark. Code Ann. § 14-14-1310(a)(2)(E) bars it, and the prohibition tracks Amendment 29, § 2 of the Arkansas Constitution. The policy goal is to prevent quorum-court appointments from functioning as a back-door re-election machine.

Did this apply to township offices and justices of the peace?
No. Township offices, including justices of the peace, were filled by the Governor under Ark. Code Ann. § 14-14-1310(b), consistent with Section 1 of Amendment 29.

Background and statutory framework

Article 7, § 27 of the Arkansas Constitution gives circuit courts jurisdiction to remove county or township officers for "incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office." Ark. Code Ann. § 14-14-1311 restates that constitutional language verbatim.

The "conditions of vacancy" list in Ark. Code Ann. § 14-14-1308 includes both removal by judicial proceedings (subsection (6)) and conviction of any of the enumerated offenses by judicial proceedings (subsection (8)). Section 14-14-1309 gives the quorum court the duty to declare an office vacant when those conditions exist. Section 14-14-1310 then sets out the appointment mechanic and the no-self-succession bar.

The history of § 21-12-301 explains why this opinion does not stack a suspension on top of an indictment. Acts 1877, No. 63, originally provided for suspension during any felony indictment; Gray v. Independence County (1924) and Jones v. State (1912) applied that broader rule. Acts 1963, No. 83, narrowed the statute to fund-shortage cases only.

Citations

• Ark. Const. art. 7, § 27 (circuit-court removal jurisdiction)
• Ark. Const. amend. 29, §§ 1, 2 (filling vacancies; no self-succession)
• Ark. Const. amend. 55, § 4 (quorum courts substituted for Governor as appointing authority for county elective offices)
• Ark. Code Ann. § 14-14-1308 (conditions of vacancy)
• Ark. Code Ann. § 14-14-1309 (declaration of vacancy)
• Ark. Code Ann. § 14-14-1310 (filling county elective vacancies; no self-succession)
• Ark. Code Ann. § 14-14-1311 (codifying art. 7, § 27)
• Ark. Code Ann. § 21-12-301 (post-1963 narrow suspension for fund-shortage indictments)
• Rice v. State, 204 Ark. 236, 161 S.W.2d 401 (1942)
• Jacobs v. Parham, 175 Ark. 86, 298 S.W. 483 (1927)
• Hawkins v. Stover, 274 Ark. 125, 622 S.W.2d 667 (1981)
• Ops. Att'y Gen. 2006-036; 99-242 (prior opinions on no-self-succession)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-131
February 21, 2017

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable David L. Branscum
State Representative
P.O. Box 370
Marshall, AR 72650-0370

Dear Representative Branscum:

This is in response to your request for an opinion on the following questions:

1. Can an elected official serve in office with criminal charges pending?
2. If an elected official is charged with a felony and removed from office, does the quorum court appoint an official, or does Newton County have a special election?
3. Can someone be appointed for the same position twice?
4. Can someone run for office after being appointed to a position?

RESPONSE

The answer to your first question is "generally, yes." There is no generally applicable law stating that an elected official cannot continue in office pending a criminal prosecution. I take it that your second question refers to a county office-holder who is removed from office by judicial proceedings. A vacancy is declared in that case, to be filled by the quorum court. The answer to both your third and fourth questions is "no."

DISCUSSION

Question 1: Can an elected official serve in office with criminal charges pending?

My research has disclosed no general law prohibiting an elected official from continuing to serve in office while facing criminal charges. The answer to this question is, therefore, "generally, yes."

The Arkansas Constitution vests the circuit court with jurisdiction to remove county and township officers for official misconduct: "The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office." Ark. Const. art. 7, § 27. See also Ark. Code Ann. § 14-14-1311 (Repl. 2013) (restating verbatim the language of art. 7, § 27). This constitutional provision refers to conduct occurring in a present term of office. Rice v. State, 204 Ark. 236, 161 S.W.2d 401 (1942); Jacobs v. Parham, 175 Ark. 86, 298 S.W. 483 (1927).

Enabling legislation to the provision provides for the suspension of a county or township officer when there is a "charge involving a shortage of funds in his or her office when the shortage has been reported by the Division of Legislative Audit ...." Ark. Code Ann. § 21-12-301(a)(1) (Repl. 2004) (providing further that "[t]he suspension shall not extend beyond the next term." Id. at § 21-12-301(a)(2)). This statute at one time provided for suspension of an officer under indictment for any criminal conduct amounting to a felony, regardless of whether the conduct amounted to official misconduct, that is, regardless of any connection with the office. See Acts 1877, No. 63; Gray v. Independence County, 166 Ark. 502, 266 S.W. 465 (1924); Jones v. State, 104 Ark. 261, 149 S.W. 56 (1912). See also Elana Cunningham Wills, Constitutional Crisis: Can the Governor (or other State Officeholder) be Removed From Office In a Court Action After Being Convicted of a Felony? 50 Ark. L. Rev. 221, 234-35 (1997) (discussing Speer v. Wood, 128 Ark. 183, 193 S.W. 785 (1917)). Following its amendment in 1963, however, section 21-12-301 calls for suspension only when the charge involves a shortage of funds in office (as reported by Legislative Audit). See Acts 1963, No. 83.

Question 2: If an elected official is charged with a felony and removed from office, does the quorum court appoint an official, or does Newton County have a special election?

I understand your question to posit a situation where a county officer is removed from office by judicial proceedings. The quorum court declares an office vacant where "conditions of vacancy" exist:

The quorum court of each county shall declare a county, county quorum court district, or township office vacant where conditions of vacancy exist as demonstrated in the following manner:
(1) Upon receipt of certification that a condition of vacancy exists as evidenced by failure of an officer to be commissioned or finding of judicial proceedings where such conditions serve as the cause of vacancy[.]

Ark. Code Ann. § 14-14-1309(a) (Repl. 2013) (emphasis added).

As indicated by the above excerpt, the "conditions of vacancy" include the following:

A county, county quorum court district, or township office shall be considered vacant if any one (1) of the following conditions exists:

---

(6) The incumbent is removed from office by judicial proceedings; ...
(8) The incumbent is convicted of a felony, incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance in office by judicial proceedings[.]

Ark. Code Ann. § 14-14-1308 (Repl. 2013) (emphasis added).

An automatic vacancy in office is created in office under these circumstances. If the office is a county elective office, the vacancy is filled by the quorum court:

Vacancies in all county elective offices shall be filled by the county quorum court through the process of resolution as prescribed by law.

Ark. Code Ann. § 14-14-1310(a)(1) (Repl. 2013). See also Ark. Const. amend. 55, § 4 ("[T]he Quorum Court shall have the power to ... fill vacancies in elective county offices[.]").

The Governor fills vacancies in township offices, including justices of the peace, pursuant to Ark. Code Ann. § 14-14-1310(b). This is consistent with Section 1 of Amendment 29 to the Arkansas Constitution, which states in pertinent part that the Governor fills vacancies in "all elective ... county[] and township offices ...." Amendment 55 substituted the County Quorum Court for the Governor with regard to making appointments to fill vacancies in county offices. See Hawkins v. Stover, 274 Ark. 125, 622 S.W.2d 667 (1981).

In response to your particular question, therefore, the quorum court would declare and fill the vacancy in the event a county office-holder is removed from office by judicial proceedings.

Questions 3 and 4: Can someone be appointed for the same position twice? Can someone run for office after being appointed to a position?

In accordance with Ark. Code Ann. § 14-14-1310(a)(2)(E), "[n]o person appointed to fulfill a vacant or unexpired term of an elective county office shall be eligible for appointment or election to succeed himself."

The answer to both of these questions is therefore "no."

Section 14-14-1310(a)(2)(E) is consistent with Section 2 of Amendment 29 to the Arkansas Constitution, which states in relevant part that "[n]o person appointed under Section 1 [of Amendment 29] shall be eligible for appointment or election to succeed himself." Although section 1 of Amendment 29 provides for the Governor's appointment to fill vacancies in elective county offices, Amendment 55 changed this procedure by substituting the quorum courts for the Governor as the appointive authority in this regard. The prohibition contained in Section 2 of Amendment 29 against succeeding oneself in office continues to apply, however, to persons appointed by the quorum court under Amendment 55. See Hawkins, 274 Ark. at 126, 622 S.W.2d at 667 (observing that "Amendment 55 changes [Amendment 29's] procedure only to the extent that the quorum court is substituted for the governor as the appointive authority."); accord Ops. Att'y Gen. 2006-036; 99-242.

Sincerely,

LESLIE RUTLEDGE
Attorney General