Does the Criminal Justice Institute have to provide school active-shooter training when only discretionary funds, not an appropriation, are available?

Plain-English summary

Representative Dwight Tosh asked the Attorney General about the Safe Schools Initiative, codified at Ark. Code Ann. § 6-15-1303. The statute directs the Criminal Justice Institute to provide active-shooter drill training for school district personnel, education service cooperative staff, law enforcement officers, and emergency management personnel, "[s]ubject to an appropriation and funding for this purpose." In 2013 the General Assembly had passed two appropriations for the program (Acts 680 and 1309), but the legislature did not actually fund them. In early 2018, after the Parkland school shooting, the Commissioner of Education and the Governor committed some discretionary federal and state funds to the Criminal Justice Institute for school safety. Tosh wanted to know: do those discretionary funds activate the statute's mandate?

Attorney General Leslie Rutledge answered no. The Criminal Justice Institute is "currently under no legal mandate" to provide the training under § 6-15-1303(c). The reason is the difference between an "appropriation" and "discretionary funds." Under Article 5, Section 29 of the Arkansas Constitution and Arkansas Supreme Court precedent (Jobe v. Caldwell, Dickinson v. Clibourn, Grable v. Blackwood, Scougale v. Page), an "appropriation" is a specific, dollar-limited setting-aside from public revenues "made by law" with the purpose distinctly stated. The 2013 appropriations had expired without ever being funded. Discretionary federal and state funds committed by executive officials are not "an appropriation" in this constitutional sense. The statute's "subject to" clause therefore was not satisfied, and the training duty did not legally activate.

The opinion noted, but could not address, what the Criminal Justice Institute might actually be doing with the discretionary funds. The legal mandate question is separate from the practical question of voluntary action.

Currency note

This opinion was issued in 2019. 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

Section 6-15-1303 of the Arkansas Code is the Safe Schools Initiative Act. Subsection (c)(1) provides:

Subject to an appropriation and funding for this purpose, the Criminal Justice Institute shall provide the necessary training and education for: (A) Personnel designated by a school district or an education service cooperative concerning the active shooter drills required under this section through its Safe Schools Initiative; and (B) Law enforcement officers, emergency management personnel, and other persons who will conduct the school safety assessments and active shooter drills on a school campus under this section.

The "subject to" clause is the point of leverage. The Arkansas Constitution at Article 5, Section 29 directs that "[n]o money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents." That constitutional rule, combined with the longstanding common-law definition of "appropriation" articulated in Jobe v. Caldwell ("a setting apart from the public revenues of a certain sum of money for a specified object"), means that an appropriation is a creature of legislative enactment, not executive discretion.

The General Assembly enacted two Safe Schools Initiative appropriations in 2013 (Acts 680 and 1309). Both expired without being funded. The AG's research found no subsequent appropriations for the program.

Why discretionary funds did not satisfy the "subject to" clause

The opinion drew a careful structural line. The Commissioner of Education and the Governor each committed funds from their discretionary accounts to the Criminal Justice Institute for school safety in early 2018. Those funds are real money and could pay for actual training. But they are not "an appropriation" in the constitutional and statutory sense. They were not enacted by law; they did not specify a maximum dollar amount drawn from the treasury for a "purpose distinctly stated in the bill." They were executive-branch reallocations within existing budget authority.

The "subject to" clause in § 6-15-1303(c)(1) keys the duty to legislative funding, not to whatever pool of money happens to be available. So even though the Criminal Justice Institute might choose to provide training using discretionary funds, no legal mandate to do so was triggered.

The opinion did not address whether the Criminal Justice Institute might be voluntarily providing training, nor whether such voluntary training would be legally permissible. Those questions were outside the scope.

Common questions

What does "subject to an appropriation" mean in an Arkansas statute?

It means the duty in question depends on the legislature first appropriating funds for that specific purpose, in compliance with Ark. Const. art. 5, § 29 (specific dollar amount, distinctly stated purpose, made by law). Without such an appropriation, the duty does not legally activate, even if the agency could perform it from other funds.

Why didn't the 2013 Safe Schools Initiative appropriations work?

The General Assembly passed the appropriations (Acts 680 and 1309 of 2013) but did not fund them. An appropriation by itself sets a ceiling on what could be drawn from the treasury for the purpose; without funding, there is no money to draw. The opinion treats both appropriations as expired without effect.

Could the Criminal Justice Institute provide the training using discretionary funds anyway?

The opinion does not address this directly. A "subject to appropriation" provision creates a duty when funded; it does not necessarily forbid voluntary action when not funded. But the lawfulness of any specific use of discretionary funds for training would depend on the source statutes governing those funds.

Why did the legislature draft the statute this way?

The "subject to" formulation is a common Arkansas drafting device. It allows the legislature to create a substantive program (here, school active-shooter training) without committing to fund it. The General Assembly retains control of the program's actual scale through annual appropriation decisions.

Did this opinion say school active-shooter drills don't have to happen?

Not exactly. Section 6-15-1303 imposes other duties on school districts and education service cooperatives. The opinion's narrow conclusion was about the Criminal Justice Institute's training-and-education obligation. Whether districts must conduct drills regardless of the Criminal Justice Institute's involvement is a different question that the opinion did not reach.

Citations

Ark. Code Ann. § 6-15-1303, § 6-15-1303(c)(1); Arkansas Constitution art. 5, § 29; 2013 Ark. Acts Nos. 680, 1309; Jobe v. Caldwell, 93 Ark. 503, 513, 125 S.W. 423 (1910); Dickinson v. Clibourn, 125 Ark. 101, 187 S.W. 909 (1916); Grable v. Blackwood, 180 Ark. 311, 22 S.W.2d 41 (1929); Scougale v. Page, 194 Ark. 280, 106 S.W.2d 1023 (1937); Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179.

Source

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

Original opinion text

Opinion No. 2018-089
January 3, 2019
The Honorable Dwight Tosh
State Representative
4513 Butler Road
Jonesboro, AR 72404-8829
Dear Representative Tosh:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion concerning Ark. Code Ann. § 6-15-1303, entitled "Safe Schools Initiative Act."

As background for your question, you note that under section 6-15-1303(c) "the mandate to the Criminal Justice Institute to provide training and education to public school districts for an active shooter situation is '[s]ubject to an appropriation and funding for this purpose.'" You further point out that while several appropriations for the Safe Schools Initiative were passed in 2013, none was funded. But you also report that in February and March of 2018, some discretionary federal and state funds were committed to the Criminal Justice Institute for school safety by the State Commissioner of Education and the Governor.

With this information in mind, you ask:

Is the Safe Schools Initiative training and education being carried out consistent with the requirement of § 6-15-1303?

RESPONSE

I cannot speak to whatever training and education is currently being provided, as I have no specific information in that regard. But I gather you are concerned with determining whether the Criminal Justice Institute is required to provide the training and education under section 6-15-1303(c) because of the funds that were committed to it by the Commissioner of Education and the Governor. In my opinion, the Criminal Justice Institute is currently under no legal mandate to provide the training and education under section 6-15-1303(c).

DISCUSSION

The Criminal Justice Institute's obligation to provide certain "training and education" for school safety is "[s]ubject to an appropriation and funding" for that purpose:

Subject to an appropriation and funding for this purpose, the Criminal Justice Institute shall provide the necessary training and education for:

(A) Personnel designated by a school district or an education service cooperative concerning the active shooter drills required under this section through its Safe Schools Initiative; and

(B) Law enforcement officers, emergency management personnel, and other persons who will conduct the school safety assessments and active shooter drills on a school campus under this section.

An "appropriation" is generally defined as "a setting apart from the public revenues of a certain sum of money for a specified object in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and for no other." This definition is in accordance with Article 5, Section 29 of the Arkansas Constitution, which provides in relevant part that "[n]o money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents[.]"

Although the General Assembly enacted two appropriations in 2013 for the Safe Schools Initiative, it appears the legislature did not provide funding for them. Those appropriations have obviously expired, and my research has not uncovered any subsequent appropriations for this purpose. Moreover, the discretionary funds that the Commissioner of Education and the Governor committed to the Criminal Justice Institute were not provided under an "appropriation" for the purpose of the training and education under section 6-15-1303(c).

Based on the plain language of section 6-15-1303(c), therefore, it is my opinion that the Criminal Justice Institute is currently under no legal mandate to provide "the necessary training and education" addressed by this statute.

Sincerely,
LESLIE RUTLEDGE
Attorney General