If my felony record was sealed or expunged in Arkansas, can I run for county judge or mayor?

Plain-English summary

Arkansas law treats sealing and expungement of criminal records as broadly restorative. Under the Comprehensive Criminal Record Sealing Act of 2013, when your record is sealed your "underlying conduct shall be deemed as a matter of law never to have occurred," and you may state that the conduct did not occur and that the record does not exist. Under the First Offender Act, a successfully completed probation results in dismissal, discharge, and sealing, and the statute expressly says you "shall be qualified to be a candidate for a state, district, county, municipal, and township office" and may certify that you have never been convicted of a felony. The Arkansas Supreme Court has applied that general rule in cases like Haile v. Johnston (sealed misdemeanor sheriff candidate eligible) and Powers v. Bryant (expunged felony mayor eligible).

The 2019 General Assembly inserted an exception. Ark. Code Ann. § 21-8-305 (Act 894 of 2019) bars anyone who pleaded guilty, pleaded nolo contendere, or was found guilty of a "public trust crime" from filing for, running for, or holding the specified state and local elected offices. The statute defines "public trust crime" by reference to Arkansas Constitution Article 5, § 9, which names embezzlement of public money, bribery, forgery, and other infamous crimes. The opinion separately quotes Article 3, § 6 on fraud, bribery, and willful and corrupt election-law violations. Section 21-8-305(b)(1) says sealing or expungement in any jurisdiction does not restore eligibility under that section.

The practical result for a candidate for county judge or mayor in Arkansas is straightforward. County judge is a county elected office. Mayor is an elected municipal office. So if a candidate has a public trust crime in their history, sealing or expungement does not get them back on the ballot. If a candidate signs the political practices pledge falsely claiming no felony conviction, that is itself a Class D felony.

The opinion also addresses the disclosure rule under § 21-8-305(b)(2)(A): when a person who has a sealed or expunged public trust crime is asked, they must disclose the fact and nature of the crime. That overrides the general "deemed never to have occurred" language of the sealing act. The candidate cannot lawfully sign the political practices pledge because the pledge requires affirming no felony, and they cannot file an affidavit of eligibility for a barred office. Enforcement is the prosecuting attorney's job; the Arkansas Ethics Commission has parallel investigative authority; and any citizen can sue in circuit court if the prosecutor fails or refuses to act.

Act 1301 of 2013 was raised in the request but the AG declined to address it: it was superseded by the Sealing Act of 2013 and its code section was repealed in 2015.

What this means for you

A person with a sealed or expunged criminal record considering running for office

Check whether the offense falls within Article 5, § 9: embezzlement of public money, bribery, forgery, or another infamous crime. Section 21-8-305 calls such an offense a public trust crime and says sealing does not restore eligibility for the elected offices it lists, including county judge and mayor. The opinion separately identifies an Article 3, § 6 disqualification for fraud, bribery, or willful and corrupt election-law violations. A false "never been convicted" statement on the political practices pledge is a Class D felony under § 7-6-102(c).

If your offense is NOT a public trust crime under Article 5, § 9, then the general rule of the Sealing Act and the First Offender Act applies, and sealing or expungement generally restores eligibility. Cases like Haile v. Johnston (sheriff) and Powers v. Bryant (mayor) illustrate the point.

If your offense may fall within either constitutional provision, have an Arkansas attorney review the conviction and the particular office before filing. The opinion does not decide whether any named person's offense qualifies.

County clerks and election commissioners receiving candidate filings

The opinion addresses what a person with a sealed public trust crime must disclose and says such a person cannot lawfully sign the political practices pledge or file an affidavit of eligibility for a covered office. It does not prescribe a procedure for clerks or election commissioners receiving a filing.

Prosecuting attorneys and the Arkansas Ethics Commission

Ark. Code Ann. § 21-8-303 makes prosecutorial enforcement explicit. The prosecuting attorney is to supervise compliance with and prosecute violations of § 21-8-305. The Ethics Commission has authority to investigate and address alleged violations. If the prosecutor fails or refuses to act when the facts are known or brought to the prosecutor's attention, any Arkansas citizen may bring an action in circuit court under § 21-8-303(b)(1). The opinion cites Wyatt v. Carr as a successful citizen suit.

Citizens challenging a candidate's eligibility

The opinion says any Arkansas citizen may bring an action in circuit court to enforce § 21-8-305 if the prosecuting attorney fails or refuses to prosecute a violation when the facts are known or brought to the prosecutor's attention. It cites Wyatt v. Carr as an example of a citizen suit.

Common questions

Does an old felony conviction always disqualify me from running for office in Arkansas? Not always. Under the general rule discussed in the opinion, sealing or expungement can restore eligibility. Section 21-8-305 excludes public trust crimes defined by reference to Article 5, § 9: embezzlement of public money, bribery, forgery, or another infamous crime. The opinion discusses Article 3, § 6 as a separate constitutional bar involving fraud, bribery, and willful and corrupt election-law violations.

Can I check the "no felony" box on the political practices pledge if my felony was sealed? Generally yes if the underlying offense is not a public trust crime, because the Sealing Act provides that the conduct is "deemed as a matter of law never to have occurred" and the First Offender Act expressly authorizes the certification. But if the offense is a public trust crime, you cannot. Section 21-8-305(b)(2)(A) requires you to disclose the fact and nature of the crime upon inquiry, and prohibits you from affirming the underlying conduct never occurred. Signing the pledge anyway is itself a Class D felony.

What counts as a "public trust crime"?
The statute defines it as "a crime prohibited under Arkansas Constitution, Article 5, § 9." The opinion quotes that provision as naming embezzlement of public money, bribery, forgery, or another infamous crime. Article 3, § 6 is a separate constitutional provision addressing fraud, bribery, and willful and corrupt election-law violations.

Does this rule apply to federal offices, like Congress? The opinion addresses eligibility for Arkansas state and local offices, including county judge and mayor. It does not analyze eligibility for federal office.

What about the First Offender Act if my probation went well? The First Offender Act (Ark. Code Ann. § 16-93-303(b)) directly addresses the political practices pledge: a person whose record was expunged under the Act "shall be qualified to be a candidate for a state, district, county, municipal, and township office." But § 21-8-305(b)(1) overrides that for public trust crimes specifically: sealing under any expungement act "shall not restore" eligibility for the listed offices.

If my conviction was in a different state and was expunged there, am I still barred for an Arkansas public trust crime? Yes, if the underlying offense matches an Article 5, § 9 public trust crime. Section 21-8-305(b)(1) explicitly says sealing or expungement under "any sealing or expungement act in any jurisdiction" does not restore eligibility for the covered offices.

Who enforces this?
The prosecuting attorney has primary enforcement responsibility under § 21-8-303(a)(1). The Arkansas Ethics Commission has parallel investigative authority under § 21-8-303(a)(2). If the PA fails or refuses to act, any citizen of Arkansas can sue in circuit court under § 21-8-303(b)(1). Wyatt v. Carr (2020 Ark. 21) is a recent example of a citizen-suit ballot removal.

What about Act 1301 of 2013?
The AG declined to address it. Act 1301 was superseded by the Sealing Act of 2013, and the code section it created was repealed in 2015 (2015 Ark. Acts No. 1152, § 11).

Background and statutory framework

Arkansas Constitution, Article 5, § 9: bars persons convicted of embezzlement of public money, bribery, forgery, or other infamous crimes from the General Assembly or any office of trust or profit in the state.

Arkansas Constitution, Article 3, § 6: bars persons convicted of fraud, bribery, or other willful and corrupt election-law violations from any office of trust or profit.

Ark. Const. art. 19, § 3: requires elector qualifications for elective and appointive office.

Ark. Code Ann. § 16-90-112(b): excludes "every person convicted of bribery or felony" from office of trust or profit and from the right of suffrage.

Ark. Code Ann. § 7-5-207(b): prohibits ineligible persons from being placed on the ballot.

Ark. Code Ann. § 7-6-102(b)-(c): the political practices pledge requirement, with felony falsity as a Class D felony.

Ark. Code Ann. § 7-6-102(d): under the First Offender Act, a person whose record was expunged is qualified to be a candidate for state, district, county, municipal, and township office.

Comprehensive Criminal Record Sealing Act of 2013, Ark. Code Ann. § 16-90-1401 et seq. (Act 1460 of 2013): general sealing/restoration of rights.

Ark. Code Ann. § 16-90-1417(a)(1), (b)(1): sealed person's "underlying conduct shall be deemed as a matter of law never to have occurred."

First Offender Act, Ark. Code Ann. § 16-93-301 et seq.; § 16-93-303(b): probation discharge with sealing.

Ark. Code Ann. § 21-8-305 (Act 894 of 2019): the public trust crime carve-out.

Ark. Code Ann. § 21-8-303: enforcement by prosecuting attorney, Ethics Commission, or citizen suit.

Ark. Code Ann. § 21-8-301(7): defines "public trust crime" by reference to Article 5, § 9.

Citations

• Ark. Const. art. 5, § 9; art. 3, § 6; art. 19, § 3
• Ark. Code Ann. §§ 7-1-101(2); 7-5-207(b); 7-6-102; 14-14-1301(a)(1); 14-43-303(a)(1)(A)(i); 14-44-105; 14-45-104; 16-90-112(b); 16-90-1401 et seq.; 16-90-1404(4)(A); 16-90-1417; 16-93-301 et seq.; 16-93-303(b); 21-8-301(7); 21-8-303; 21-8-305
• 2013 Ark. Acts No. 1460, § 9; 2015 Ark. Acts No. 1152, § 11; 2019 Ark. Acts No. 894, § 2
• May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975)
• Haile v. Johnston, 2016 Ark. 52, 482 S.W.3d 323
• Powers v. Bryant, 309 Ark. 568, 832 S.W.2d 232 (1992)
• Pruitt v. Smith, 2020 Ark. 382, 610 S.W.3d 660
• Wyatt v. Carr, 2020 Ark. 21, 592 S.W.3d 656

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-004

September 2, 2022

The Honorable Terry Rice
State Senator
P.O. Box 2195
Waldron, AR 72958

Dear Senator Rice:

This is in response to your request for an opinion on eligibility to hold public office in Arkansas and the effect of sealing criminal records on such eligibility. You have asked me to opine on the following topics:

1) Eligibility to hold public office in Arkansas
a. Effect of sealing criminal records on eligibility
b. Effect of expungement of criminal record on eligibility

2) Effect of Act 1460 of 2013

3) Define "disclosure" of having sealed criminal records a. Disclosure to whom? Signing of eligibility form with County Clerk/Election Commission? b. Who can challenge?

4) Effect of expungement and/or sealing of criminal records upon eligibility considering: a. Article 5 of the Arkansas Constitution b. Ark. Code Ann. §§ 7-6-102, 16-90-1401, 16-93-301 et seq., 21-8-301, Act 1301 of 2013

5) Effect of Ark. Code Ann. § 21-8-301 et seq. upon a candidate for County Judge or Mayor in Arkansas

RESPONSE

1. Eligibility to hold public office in Arkansas
   a. Effect of sealing criminal records on eligibility
   b. Effect of expungement of criminal record on eligibility

2. Effect of Act 1460 of 2013

3. Effect of expungement and/or sealing of criminal records upon eligibility considering:
   a. Article 5 of the Arkansas Constitution
   b. Ark. Code Ann. §§ 7-6-102, 16-90-1401, 16-93-301 et seq., 21-8-301, Act 1301 of 2013

I have grouped these questions together, due to their overlapping subject matter. State law disqualifies individuals with certain criminal convictions from holding public office. Specifically, the Arkansas Constitution prohibits anyone "convicted of embezzlement of public money, bribery, forgery, or other infamous crime" from serving in the General Assembly or "holding any office of trust or profit in this state," as well as anyone "convicted of fraud, bribery, or other willful and corrupt violation of any election law of this State... from holding any office of trust or profit in this State." It also bars a person's election to, or appointment to fill a vacancy in, any office unless that person possesses the qualifications of an elector. As the Arkansas Supreme Court has observed, the lack of a disqualifying conviction is a legal prerequisite to holding office.

The Arkansas Code echoes these constitutional provisions, excluding "[e]very person convicted of bribery or felony... from every office of trust or profit and from the right of suffrage in this state" and prohibiting a person's name from being "placed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible...." Additionally, candidates are required to pledge that they have "never been convicted of a felony in Arkansas or in any other jurisdiction outside of Arkansas." A person who signs the pledge falsely claiming that he or she has never been convicted of a felony is guilty of a Class D felony.

You have also asked about eligibility for public office in the context of the Comprehensive Criminal Record Sealing Act of 2013 ("Sealing Act of 2013") and the First Offender Act. Under the Sealing Act of 2013, a person whose record has been sealed "shall have all privileges and rights restored... unless otherwise specifically provided by law." Furthermore, "the person's underlying conduct shall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist." Under the First Offender Act, an accused who pleads guilty or nolo contendere to a qualifying offense and successfully completes a period of probation "shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and seal the record...." Moreover, with respect to the political practices pledge, that statute explicitly provides that a person whose record was expunged in accordance with the First Offender Act or a similar expunction statute in another state "shall be qualified to be a candidate for a state, district, county, municipal, and township office and may certify that he or she has never been convicted of a felony...."

Because of this language, a sealed or expunged conviction has generally been considered to restore a person's eligibility for public office. However, in 2019, the General Assembly passed legislation prohibiting a person who "has pleaded guilty or nolo contendere to or has been found guilty of a public trust crime" from filing as a candidate for, running as a candidate for, or holding a constitutional office; a county elected office; or an elected office in a municipality, city, township, or other political subdivision of the state. Under that statute, "[t]he sealing of any public trust crime or any similar offense under the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401 et seq., or any sealing or expungement act in any jurisdiction shall not restore a privilege, eligibility, or qualification to file as a candidate for, run as a candidate for, or hold an elected office under this section."

Thus, to the extent that a person has pleaded guilty or nolo contendere to or been found guilty of a "public trust crime," that person may not hold any constitutional office, county elected office, or elected office in a municipality, city, township, or other political subdivision of the state, regardless of whether the crime was sealed or expunged.

3. Define "disclosure" of having sealed criminal records
   a. Disclosure to whom? Signing of eligibility form with County Clerk/Election Commission? b. Who can challenge?

I gather that you are asking about the "disclosure" required by subdivision 21-8-305(b)(2)(A), which states that, upon inquiry, a person who has pleaded guilty or nolo contendere to or been found guilty of a public trust crime that was sealed or expunged "shall disclose the fact and nature of the crime which the person pleaded guilty or nolo contendere to or was found guilty of...." Additionally, the individual is prevented from stating or affirming under oath that the conduct underlying the plea or finding did not occur, that a record of the underlying plea or finding does not exist, or that the person has not been convicted of a criminal offense. This language clarifies that an individual to whom section 21-8-305 applies cannot lawfully sign the political practices pledge required by section 7-6-102. Similarly, because that individual would be ineligible under subdivision 21-8-305(a)(3), to hold a constitutional office, a county elected office, or an elected office in a municipality, city, township, or other political subdivision of the state, he or she could not file an affidavit of eligibility for such an office.

It is the duty of the prosecuting attorney to supervise compliance with and prosecute violations of this statute. The Arkansas Ethics Commission also has authority to investigate and address alleged violations. However, if the prosecuting attorney fails or refuses to prosecute violations of the statute when the facts are known by the prosecutor or called to the prosecutor's attention, any citizen of the state may bring an action in circuit court to enforce compliance with the statute.

5. Effect of Ark. Code Ann. § 21-8-301 et seq. upon a candidate for County Judge or Mayor in Arkansas

The office of county judge is a county elected office, and the office of mayor is an elected office in a municipality, city, township, or other political subdivision of the state. Therefore, a person who has pleaded guilty or nolo contendere to or has been found guilty of a public trust crime may not file for, run for, or hold either of those two offices, regardless of whether the disqualifying crime has since been sealed or expunged.

Sincerely,

LESLIE RUTLEDGE
Attorney General

1 Ark. Const. art. 5, § 9(a) (Repl. 2019).

2 Id. at art. 3, § 6 (Repl. 2019).

3 Id. at art. 19, § 3 (Repl. 2019).

4 See May v. Edwards, 258 Ark. 871, 877, 529 S.W.2d 647, 651 (1975) (“The reason one who has been convicted of an infamous crime is prevented from taking office is because he is thereby rendered ineligible just as he would be if he did not possess other qualifications required by law.”).

5 Ark. Code Ann. § 16-90-112(b) (Repl. 2016).

6 Ark. Code Ann. § 7-5-207(b) (Supp. 2021).

7 Ark. Code Ann. § 7-6-102(b) (Repl. 2018).

8 Id. at § 7-6-102(c).

9 Ark. Code Ann. § 16-90-1401 et seq. (Repl. 2016 and Supp. 2021). The Sealing Act of 2013 was created by Act 1460 of 2013. See 2013 Ark. Acts No. 1460, § 9.

10 Ark. Code Ann. § 16-93-301 et seq. (Repl. 2016 and Supp. 2021).

11 “Seal” means “to expunge, remove, sequester, and treat as confidential the record or records in question according to the procedures established by this subchapter.” Ark. Code Ann. § 16-90-1404(4)(A) (Supp. 2021).

12 Ark. Code Ann. § 16-90-1417(a)(1) (Supp. 2021).

13 Id. at § 16-90-1417(b)(1).

14 Ark. Code Ann. § 16-93-303(b) (Supp. 2021).

15 Ark. Code Ann. § 7-6-102(d).

16 See, e.g., Haile v. Johnston, 2016 Ark. 52, 482 S.W.3d 323 (holding that an individual with a sealed misdemeanor conviction was eligible to run for and hold the office of sheriff); Powers v. Bryant, 309 Ark. 568, 832 S.W.2d 232 (1992) (holding that art. 5, § 9 did not render a sitting mayor with an expunged felony conviction ineligible to hold office); cf. Pruitt v. Smith, 2020 Ark. 382, 610 S.W.3d 660 (holding that a person with a sealed election-related misdemeanor conviction was ineligible to hold public office because the statute under which he was convicted provided an exception to the general rule that sealing one's records restores all rights and privileges).

17 2019 Ark. Acts No. 894, § 2, codified at Ark. Code Ann. § 21-8-305 (Supp. 2021).

18 Id. at § 21-8-305(b)(1).

19 “Public trust crime” is defined as “a crime prohibited under Arkansas Constitution, Article 5, § 9.” Ark. Code Ann. § 21-8-301(7) (Supp. 2021).

20 Although you have also asked about Act 1301 of 2013, I have not discussed that legislation here because it was superseded by the Sealing Act of 2013, and the code section it created was repealed in 2015. See 2015 Ark. Acts No. 1152, § 11.

21 Ark. Code Ann. § 21-8-305(B).

22 See supra nn.7-8 and accompanying text.

23 “‘Affidavit of eligibility’ means an affidavit signed by a candidate for elective office stating that the candidate is eligible to serve in the office he or she seeks.” Ark. Code Ann. § 7-1-101(2) (Supp. 2021).

24 Id. at § 21-8-303(a)(1) (Repl. 2016).

25 Id. at § 21-8-303(a)(2).

26 Id. at § 21-8-303(b)(1). See also Wyatt v. Carr, 2020 Ark. 21, 592 S.W.3d 656 (Arkansas citizen successfully sued to have candidate for circuit court judge removed from ballot due to candidate's prior misdemeanor hot-check convictions).

27 See, e.g., Ark. Code Ann. § 14-14-1301(a)(1) (Supp. 2021) (listing the county judge as an elected county officer).

28 See, e.g., Ark. Code Ann. §§ 14-43-303(a)(1)(A)(i) (Supp. 2021) (listing the mayor as an elected city official in a city of the first class), 14-44-105 (Repl. 2013) (requiring the election of a mayor in a city of the second class), and 14-45-104 (Repl. 2013) (requiring the election of a mayor in an incorporated town).