In Arkansas, who actually decides where new county roads go: the county judge or the quorum court?

Plain-English summary

Senator Ricky Hill asked whether the quorum court or county judge has authority to plan and construct county roads. The AG answered that the quorum court plans, while the county judge constructs and maintains county roads.

The quorum court may adopt road-related transportation ordinances, an official road plan for unincorporated areas, and setback lines on the planning board's recommendation. The county judge, acting as the county court, may enter orders establishing and opening roads. In the separate executive role, the judge operates the county road system and administers eligible public roadways. The AG said an ordinance goes too far if it restricts or impedes the judge's authority over county roads.

Footnote 11 says the phrase “operate the system of county roads” is undefined in statute or case law and cites earlier opinions discussing uncertainty in its scope. Footnote 9 recounts earlier AG opinions saying that references to “county court” in two road statutes are superseded as to county roads under Amendment 55 and should refer to county judges. The body of this opinion also describes the judge's judicial role as the sole member of the county court.

What this means for you

Quorum courts

The opinion recognizes road-planning and transportation-ordinance authority. It limits that authority where an ordinance would restrict or impede the county judge's distinct powers over county roads. It does not decide whether a particular proposed ordinance crosses that line.

County judges

The opinion assigns road construction and maintenance to the judge and distinguishes orders entered as the county court from executive administration of the road system. It cites Reding v. Wagner for executive discretion to change, alter, or relocate roads.

Common questions

Who may plan county roads?
The AG says the quorum court may adopt an official road plan for unincorporated areas and other road-related ordinances within its authority.

Who constructs and maintains county roads?
The AG assigns those tasks to the county judge and says the judge may not be restricted or impeded by a quorum-court ordinance.

Does the opinion define “operate the system of county roads”? No. Footnote 11 says the phrase is undefined in statute or case law and cites earlier opinions discussing uncertainty in its scope.

Background and statutory framework

Ark. Const. art. 7, § 28 addresses the county court's road jurisdiction. Amendment 55, § 3 assigns the county judge executive responsibility to operate the county road system. A.C.A. § 14-14-502 separates county legislative, executive, and judicial powers. The opinion applies provisions governing quorum-court planning, county-court road orders, and county-judge administration. Footnotes 9 and 11 preserve the qualifications about the county-court references and the scope of “operate.”

Citations

• Ark. Const. art. 7, § 28; amend. 55, §§ 1, 3
• A.C.A. § 14-17-208(h)(1), (j); § 14-298-101
• Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002)
• Ark. Att’y Gen. Ops. 2014-021, 2006-050

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2023-080

October 17, 2023

The Honorable Ricky Hill
State Senator
Post Office Box 177
Cabot, Arkansas 72023

Dear Senator Hill:

I am writing in response to your request for my opinion on whether, under A.C.A.
§§ 14-298-101 to 14-298-125, the county judge or quorum court has the authority to plan and construct county roads.

RESPONSE

The quorum court has authority to plan county roads, and the county judge has the authority to construct and maintain county roads.

DISCUSSION

In planning and constructing public roads, the quorum court and the county judge each have distinct roles.1

Quorum courts may pass ordinances establishing roads as a transportation “service…not expressly prohibited by the Arkansas Constitution or by law.”2 They may also adopt “an official road plan for the unincorporated areas of the county” or accept the county planning board’s recommendation to establish additional setback lines on roads.3

1
See A.C.A. § 14-14-502 (b)(1)–(3) (concerning the divisions and separate powers of county government— legislative (quorum court), executive (county judge), and judicial (county court)); Ark. Att’y Gen. Op. 2014-021 (describing the distinct powers and sources of authority for each). 2 A.C.A. § 14-14-802(b)(1); see also Ark. Const., amend. 55, § 1 (authorizing quorum courts to “exercise local legislative authority not denied by the Constitution or by law”). 3 A.C.A. § 14-17-208(h)(1), (j).

323 CENTER STREET, SU ITE 200
LITTLE ROCK, ARKANSAS 72201
The Honorable Ricky Hill
State Senator
Opinion No. 2023-080
Page 2

But this office has consistently opined that a quorum court lacks the authority to interfere with the constitutional and statutory powers exercised by the county judge concerning county roads.4

A county judge exercises a judicial power in his or her role as the sole member of the county court.5 And a county court has the “exclusive original jurisdiction in all matters relating to…roads.”6 Although the county judge has both executive and judicial powers,7 the county judge presides over the county court in a judicial, rather than an executive capacity.8 In this role, a county judge has the authority to enter “all orders necessary…for establishing and opening new roads….”9

Additionally, the county judge, as chief executive of the county, exercises administrative powers that are separate from the county court.10 While wearing his or her “executive” hat, the county judge has the power to “operate the system of county roads,”11 and “not by order of the county court.”12 Further, the county judge has the responsibility for administering

4
E.g., Ark. Att’y Gen. Ops. 2014-021, 2001-038, 2001-233, 1997-181; see also Ark. Att’y Gen. Op. 2001-197 (opining that “the constitutional and statutory power of the county judge or the county court over county roads” may not be ignored). 5 Ark. Const., art. 7, § 28; A.C.A. § 14-14-1105(a); Ark. Att’y Gen. Op. 1997-181.
6
Ark. Const., art. 7, § 28; see also A.C.A. § 14-298-101 (authorizing the county court to “make and enforce all orders necessary as well for establishing and opening new roads as for changing and vacating any public road or part thereof”). 7 A.C.A. § 14-14-1105 (determining “that all powers not vested in the county judge under the provisions of
[the] Arkansas Constitution…to be exercised by the county judge as the chief executive officer of the county, shall continue to be exercised and administered by the county court, over which the judge shall preside”). 8 A.C.A. §§ 14-14-1105(b), 14-14-1301(a)(1)(A)(iii).
9
A.C.A. § 14-298-101. This office has also opined that the reference to “county court” in A.C.A. §§ 14-298-101 and 14-298-120 is superseded as to “county roads” under Amendment 55 and should instead refer to “county judges.” Ark. Att’y Gen. Ops. 2014-021, 2006-050, 1988-364, 1985-073. 10 See A.C.A. § 14-14-1105(a) (referring to the executive and judicial powers and roles served by the county judge). 11 Ark. Const., amend. 55, § 3. The phrase “operate the systems of roads” is undefined in statute or case law. See also Ark. Att’y Gen. Ops. 2014-021 (noting the uncertainty concerning the scope of a county judge’s authority over roads, in light of the quorum court’s general authority), 2006-050 (noting the absence of law clarifying “exactly what it means for the county judge to ‘operate the system of county roads’ under amendment 55, § 3”); A.C.A. §§ 14-14-1102(b)(5)(A) authorizing the county judge’s “purchase of labor or services performed by individuals or firms employed by the county….”), 14-14-1101(a)(5) (authorizing the county judge to exercise “custody of county property”), 14-14-1102(b)(7)(A) (authorizing the county judge to accept, “in behalf of the county, gifts, grants, and donations of real or personal property for use of the county”). 12 A.C.A. § 14-14-1102.
The Honorable Ricky Hill
State Senator
Opinion No. 2023-080
Page 3

the system of county roads in the unincorporated areas of the county and for maintaining “public roadways…eligible for expenditure of county funds.”13

A county judge may use discretion in exercising his or her administrative authority to change, alter, or relocate county roads.14 Accordingly, this office has opined that a county judge does not need quorum court approval to designate county roads,15 to expend county funds to improve county roads,16 or to name a county road.17

While a quorum court may exercise its authority and pass ordinances concerning roads or road plans, an ordinance goes too far if it restricts or impedes the authority of the county judge over county roads.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

13
A.C.A. § 14-14-1102(b)(1)(A)(i); Ark. Att’y Gen. Op. 1989-135.
14
Reding v. Wagner, 350 Ark. 322, 327, 86 S.W.3d 386, 389 (2002) (upholding a county judge’s “executive power to make discretionary decisions” to change, alter, or relocate county roads). 15 Ark. Att’y Gen. Op. 1992-081.
16
Id.
17
Ark. Att’y Gen. Ops. 1996-375, 1996-373.