Did Act 877 of 2017 take away Arkansas surveyors' immunity from criminal trespass?

Plain-English summary

Representative Mike Holcomb asked whether Act 877 of 2017, which made several changes to Arkansas's criminal-trespass statutes, affected the immunity that licensed Arkansas surveyors have always had to enter public or private land while doing their jobs. The answer was no, and in some cases the situation got better, not worse.

The surveyor-immunity statute, Ark. Code Ann. § 17-48-303, gives a licensed Arkansas surveyor (defined at § 17-48-302) the right to enter public or private land or waters, except buildings, while performing lawful surveying duties. Surveyors who fit the definition are "immun[e] from arrest for trespass." Act 877 did not amend either of those sections. So that immunity stayed exactly where it was.

What Act 877 did do was reshape the criminal trespass provisions at Ark. Code Ann. §§ 5-39-203 and 5-39-305. It expanded what counts as criminal trespass (now including leased premises, not just owned ones), changed the mental state required for trespass in unincorporated areas to "purposeful intent," made trespass a Class D felony or Class A misdemeanor in certain circumstances, and added a series of defenses and affirmative defenses.

One of those new defenses helped public-sector surveyors. Act 877 says the trespass statutes do not apply to "an employee of a federal, state or local agency, commission, board, political subdivision, school district, or municipality who has entered onto or remains on the premises for a purpose directly relating to the employee's employment." Surveyors employed by the federal, state, or local government fit that description. So they get a second source of protection, the new statutory exemption, in addition to the existing § 17-48-303 immunity.

Private-sector surveyors keep the § 17-48-303 immunity unchanged. They don't pick up the new government-employee exemption (because they're not government employees), but they didn't lose anything either.

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.

Background and statutory framework

The surveyor immunity at Ark. Code Ann. § 17-48-303 is conditioned on a person fitting the definition in § 17-48-302. That definition has three categories: (1) a registered Arkansas surveyor with a permanent registration number or special permit; (2) someone employed in surveying by the United States, the State of Arkansas, or a local government agency; and (3) someone under the direct supervision of, or employed by, a person in category (1) or (2).

The right of entry under § 17-48-303(a) covers public or private land or waters but excludes buildings. There are practical conditions: surveyors should announce themselves and their intentions before entering private property if practical, must carry documentation of registration and employment, and cannot use the entry privilege to extend beyond the actual survey requirements.

Act 877 of 2017 (HB 1554) reshaped Ark. Code Ann. §§ 5-39-203 and 5-39-305. The general criminal trespass provision now applies to leased premises in addition to owned ones. The unincorporated-area provision now requires "purposeful intent." Some violations became Class D felonies or Class A misdemeanors. The Act added defenses for: guests and invitees; people required to enter for business or health/safety reasons; people legally authorized to enter; people whose property adjoins the premises and who travel over the premises for legitimate reasons; and people on premises that are open to the public. It added affirmative defenses for those temporarily entering to recover livestock, dogs, or other domesticated animals.

The exemption that mattered for surveyors is at § 5-39-203(d)(5) and § 5-39-305(d)(3)(E): the trespass statutes do not apply to government employees on the premises for a purpose directly relating to their employment.

Common questions

Did surveyors lose any immunity from Act 877?
No. The surveyor-immunity statute, § 17-48-303, was not amended.

Could a private-sector surveyor still enter private property without being arrested?
Yes, if the surveyor fit the definition in § 17-48-302 and was acting within the lawful pursuit of surveying duties.

Did government-employed surveyors gain anything?
Yes. Act 877's exemption for government employees on official business gave them a second basis to avoid criminal trespass liability, on top of the existing § 17-48-303 immunity.

Are there limits on the surveyor right of entry?
Three things: surveyors cannot enter buildings; they should announce themselves before entering private property if practical, and must carry documentation; and they cannot stretch the right of entry beyond what the actual survey requires.

Does the immunity apply if a surveyor enters for personal reasons?
No. The immunity is conditioned on acting within the course and scope of duties as a surveyor. Personal trespass would not be covered.

Source

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

Original opinion text

Opinion No. 2017-090
October 18, 2017
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Mike Holcomb
State Representative
9108 Sulphur Springs Road
Pine Bluff, AR 71603-0904
Dear Representative Holcomb:

This is in response to your request for an opinion regarding Ark. Code Ann. § 17-48-303. This statute exempts surveyors from criminal prosecution for entering on public or private land or waters, except buildings, when performing their duties as prescribed by law.

The 91st General Assembly enacted HB 1554 (Act 887), which addresses the issue of criminal trespass. In this regard, you have asked the following question:

Does Act 877 of 2017 impact or change the exemption status for surveyors outlined in Arkansas Code § 17-48-303?

RESPONSE

In my opinion, Act 877 of 2017 ("the Act") does not diminish surveyors' immunity from arrest for criminal trespass. The Act did not amend section 17-48-303. Thus, individuals meeting the definition of "surveyor" retain the immunity granted in that statute. The Act does, however, exempt government employees from prosecution for trespass under the criminal code. Given that some surveyors work in the public sector, the Act may provide an additional source of immunity to those surveyors employed by federal, state, or local governments.

DISCUSSION

The Act changed various aspects of the criminal-trespass laws in Arkansas. For example, the Act expands what qualifies as criminal trespass by including premises that are leased (as opposed to owned) by a person. The Act now requires that a person act with purposeful intent when entering premises located in an unincorporated area. The Act also makes the offense of criminal trespass a Class D felony or Class A misdemeanor in certain circumstances, and it adds defenses to the charge of criminal trespass.

But the Act did not reduce the immunity granted to surveyors. Under Arkansas law, surveyors may be immune from arrest for criminal trespass in the performance of their lawful duties. A "surveyor," for purposes of this immunity, is defined as someone:

(1) Who is a registered surveyor licensed to practice in the state of Arkansas by permanent registration number or by special permit;
(2) Employed in surveying by the United States Government, by the State of Arkansas, or by a local government agency; and
(3) Who is under the direct supervision of or is employed by a person who is a surveyor under subdivision (1) or (2) of this section.

Surveyors meeting one or more of these definitions have the "right to enter on public or private land or waters, except buildings, in the lawful pursuit of their occupations." Consequently, in order to perform these lawful occupational duties on public or private land or waters, surveyors are granted "immun[ity] from arrest for trespass."

Under the cardinal rule of statutory interpretation, to construe a statute just as it reads, it is clear that the Act does not reduce the statutory immunity created in section 17-48-302. This immunity from arrest for trespass is conditioned solely upon an individual's classification as a "surveyor" under section 17-48-302, to the extent that individual is acting within the course and scope of his duties as a surveyor. The Act does not affect this straightforward grant of immunity.

The Act does, however, exempt from prosecution some individuals who may qualify as surveyors under section 17-48-302. In particular, the Act states that the criminal-trespass statutes, Ark. Code Ann. §§ 5-39-203 and 5-39-305, do not apply to:

An employee of a federal, state or local agency, commission, board, political subdivision, school district, or municipality who has entered onto or remains on the premises for a purpose directly relating to the employee's employment with the federal, state, or local agency, commission, board, political subdivision, school district, or municipality.

It is clear that some individuals may qualify as "surveyors" under section 17-48-302 by virtue of "employ[ment] in surveying by the United States Government, by the State of Arkansas, or by a local government agency," or through supervision or employment by such an individual. And it is equally clear that the Act exempts from prosecution those individuals who are "employee[s] of a federal, state, or local agency ... who [have] entered onto or remain[] on the premises for a purpose directly relating [their] employment with the federal, state, or local agency." It necessarily follows that government-employed surveyors are specifically exempt from prosecution for criminal trespass.

But the fact that government-employed surveyors are now potentially immune from prosecution for trespass under sections 5-39-203 and 5-39-305 does not mean that these individuals no longer enjoy the immunity granted to government-employed surveyors under section 17-48-303. Likewise, an individual in the private sector who meets the definition of "surveyor" under 17-48-302 does not lose that statutory immunity. The Act simply does not alter the immunity specific to surveyors set out in section 17-48-303. If anything, when read together with section 17-48-303, the exemption from prosecution that the Act affords government employees would expand the immunity to trespass for certain public-sector surveyors.

For these reasons, I believe that individuals who qualify as "surveyors" under section 17-48-302 will retain their immunity from arrest for criminal trespass under section 17-48-303. Those surveyors employed by federal, state, or local governments may have, in addition to this statutory immunity, an exemption from prosecution under sections 5-39-203 and 5-39-305, as amended by the Act.

Sincerely,

LESLIE RUTLEDGE
Attorney General