Can the Arkansas Crime Victims Reparations Board pay benefits to a claimant who has a prior felony conviction for criminally injurious conduct?

Plain-English summary

The Arkansas Department of Public Safety asked whether two crime-victim reparations restrictions operated together. One prohibits an award to a claimant convicted of a felony involving criminally injurious conduct. The other prohibits an award when the conduct leading to the claim was reported more than 72 hours later without good cause. The Attorney General said they are distinct grounds: meeting the reporting rule does not overcome the felony-conviction bar.

His reading rests on the statute's separate list items and its use of “or.” Footnote 5 describes interpretations proposed by the Board and cites Myers v. Yamato Kogyo Co. for the statement that a reviewing court will not defer to an agency's statutory interpretation. The opinion does not decide any individual claimant's appeal.

What this means for you

Reparations applicants and advocates

Timely reporting does not cancel the separate disqualification for a felony conviction involving criminally injurious conduct. If the felony bar does not apply, the reporting provision still matters: the opinion says a delay beyond 72 hours bars an award unless the Board finds good cause for failing to report.

Board staff

Evaluate each statutory restriction independently. The Attorney General rejected the idea that a timely report or a good-cause finding under subsection (a)(6) creates an exception to subsection (a)(5). Footnote 5 also warns that a reviewing court will not defer to the Board's contrary statutory interpretation.

Common questions

Can timely reporting overcome the felony-conviction bar?

No. The opinion says subsection (a)(5) separately bars reparations to a claimant convicted of a felony involving criminally injurious conduct.

Can the Board excuse a report made after 72 hours?

The quoted subsection (a)(6) allows the Board to find good cause for failure to report within that period. The opinion does not decide whether any particular delay qualifies.

Did the opinion discuss judicial deference to the Board?

Yes. Footnote 5 cites Myers and says a reviewing court will not defer to an agency's interpretation of the statute. It does not report a court decision on this Board's specific claim.

Currency note

This September 30, 2024 opinion interprets the statutory text before the Attorney General then. Check the current statute and individual claim facts before applying its conclusion.

Source

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

Original opinion text

Opinion No. 2024-036

September 30, 2024

Colonel Mike A. Hagar, Secretary
Arkansas Department of Public Safety
1 State Police Plaza Drive
Little Rock, Arkansas 72209

Dear Colonel Hagar:

You have requested my opinion regarding subdivisions (a)(5) and (a)(6) of A.C.A. § 16-90-712 and whether the Arkansas Crime Victims Reparations Board can legally award reparations to a “claimant who has been convicted of a felony involving criminally injurious conduct[.]” 1 You have asked these questions: 2

1. Under A.C.A. § 16-90-712(a)(5) and (a)(6), when is the Board prohibited from awarding reparations?

Brief response: Subdivisions (a)(5) and (a)(6) provide distinct situations in which reparations shall not be awarded. Subdivision (a)(5) precludes an award of reparations to a “claimant who has been convicted of a felony involving criminally injurious conduct”; and subdivision (a)(6) precludes an award when, without good cause, there was a delay beyond 72 hours in reporting the criminally injurious conduct that led to the claim.

2. Can the Board legally award reparations to a “claimant who has been convicted of a felony involving criminally injurious conduct”?

Brief response: No. As noted above, A.C.A. § 16-90-712(a)(5) precludes an award of reparations to anyone “convicted of a felony involving criminally injurious conduct.”

1
“Criminally injurious conduct” is “an act which occurs or is attempted in this state that results in personal injury or death to a victim, which act is punishable by fine, imprisonment, or death.” A.C.A. § 16-90-703(5). 2 I have paraphrased your questions for clarity.

Colonel Mike Hagar, Secretary
Arkansas Department of Public Safety
Opinion No. 2024-036
Page 2

DISCUSSION

Question 1: Under A.C.A. § 16-90-712(a)(5) and (a)(6), when is the Board prohibited from awarding reparations?

The Board may “award reparations for economic loss arising from criminally injurious conduct if
… the requirements for reparations have been met[,]” 3 but this authority is limited. A.C.A.
§ 16-90-712 provides:

(a) Reparations shall not be awarded: …

(5) To any claimant who has been convicted of a felony involving criminally injurious conduct; [or] 4

(6) Unless the criminally injurious conduct resulting in injury or death was reported to the proper authorities within seventy-two (72) hours after its occurrence, or the board finds there was good cause for the failure to report within that time….

While the opinion request interprets (a)(5) and (a)(6) as allowing an award of reparations to some claimants who have committed a felony involving criminally injurious conduct, 5 the best reading of these subdivisions is that they provide distinct situations in which the Board may not award reparations. This reading is based on three reasons.

First, (a)(5) and (a)(6) are joined by the conjunction “or.” The common use of “‘or’ is [as] a disjunctive particle that marks an alternative, generally corresponding to ‘either,’ as ‘either this or that.’” 6 Thus, the use of “or” between the subsections of A.C.A. § 16-90-712 means that (a)(5) and (a)(6) are separate limitations.

Second, the punctuation and indentation of A.C.A. § 16-90-712(a) confirm that (a)(5) and (a)(6) are distinct from each other. The ending of the opening sentence of this provision is a colon, which

3
A.C.A. § 16-90-706(a)(1).
4
The list in A.C.A. § 16-90-712(a) concludes with an “or,” so I am including an “or” here for clarity.
5
Your opinion request explained the two conditions under which the Board believes it might be allowed to award reparations to a person convicted of a felony: (a) “the victim who has submitted the claim has a prior felony conviction but had reported the criminally injurious conduct that formed the basis of their claim to the proper authorities in 72 hours of the conduct[] or [] the Board [found]…good cause for [that] failure…”; or (b) “the criminally injurious conduct that was the basis of [the claimant’s] felony conviction was reported to the proper authorities in 72 hours of the conduct[] or [] the Board [found]…good cause for [that] failure….” A reviewing court, however, will not defer to an agency’s statutory interpretation. Myers v. Yamato Kogyo Co., 2020 Ark. 135, at 5, 597 S.W.3d 613, 617. 6 Brown v. Kelton, 2011 Ark. 93, at 4–5, 380 S.W.3d 361, 364 (citation omitted).

Colonel Mike Hagar, Secretary
Arkansas Department of Public Safety
Opinion No. 2024-036
Page 3

signals the start of a list.7 That list consists of seven different prohibitions, each ending with a semicolon, which indicates “separate items.” 8 Further, because the subsections of A.C.A. § 16-90-712 are indented, material within each subsection relates only to that subsection. 9

Finally, the opinion request’s reading may be based on either (1) the repetition of “criminally injurious conduct” in both subdivisions or (2) (a)(6) being written in the passive voice, so that it is unclear whether the criminally injurious conduct that must be timely reported is the conduct that harmed the claimant or was committed by the claimant. But this reading does not fully “give meaning and effect to” 10 each subsection.

Instead, the “criminally injurious conduct” in subdivision (a)(5) is related to potential felonies that a claimant may have committed, while the “criminally injurious conduct” in (a)(6) is related to the injury to the victim. 11 Reading the provisions this way precludes the Board from awarding reparations to any claimant “convicted of a felony involving criminally injurious conduct” or when, without good cause, the victim delayed beyond 72 hours in reporting the criminally injurious conduct that led to the claim. If the subdivisions were read as the request suggests, then the Board could award reparations to some claimants “convicted of a felony involving criminally injurious conduct,” walking back the unqualified text of (a)(5) without the text in (a)(6) clearly doing so. Further, if the request’s reading were correct, there would be no prohibition against granting reparations when an unreasonable delay occurred in reporting the conduct that led to the claim. Because the request’s interpretation does not fully “give meaning and effect to” both subsections— while another reasonable interpretation exists that does—the request’s reading of the statute is not the best reading of the statute.

In summary, I believe a reviewing court would interpret these provisions as distinct from each other: (1) subdivision (a)(5) prohibits the Board from awarding reparations to any person “convicted of a felony involving criminally injurious conduct” under any circumstances, and (2) subdivision (a)(6) prohibits the Board from awarding reparations when, without good cause, there was a delay beyond 72 hours in reporting the criminally injurious conduct that led to the claim.

7
Bryan A. Garner, Garner’s Modern English Usage 897 (5th ed. 2022) (“[T]he colon can introduce a list of items….”).
8
Id. at 903 (emphasis added).
9
Fluor Corp. v. Zurich Am. Ins. Co., 65 F.4th 387, 389 (8th Cir. 2023) (“[T]he scope of subparts canon recognizes that ‘[m]aterial within an indented subpart relates only to that subpart.’”) (quoting Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 156 (2012)). 10 Brown, 2011 Ark. 93, at 3, 380 S.W.3d at 364 (citation omitted).
11
See A.C.A. § 16-90-706(a) (giving the Board “[p]ower to award reparations for economic loss arising from criminally injurious conduct”).

Colonel Mike Hagar, Secretary
Arkansas Department of Public Safety
Opinion No. 2024-036
Page 4

Question 2: Can the Board legally award reparations to a “claimant who has been convicted of a felony involving criminally injurious conduct”?

No. As noted above, A.C.A. § 16-90-712(a)(5) precludes an award of reparations to anyone “convicted of a felony involving criminally injurious conduct.”

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General