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 Crime Victims Reparations Board pays out-of-pocket economic losses (medical bills, lost wages, funeral costs) to victims of crime. The Board's authority comes from A.C.A. § 16-90-706, but A.C.A. § 16-90-712(a) lists seven situations in which the Board "shall not" pay. Two of those seven sit next to each other in the statute and use overlapping vocabulary: subsection (a)(5) bars reparations to a claimant "convicted of a felony involving criminally injurious conduct," and subsection (a)(6) bars reparations when the conduct that caused the injury was not reported within 72 hours.
The Department of Public Safety asked the AG whether those two subsections might be read together, so that a person with a prior felony could still get reparations if the new injury was reported on time. The AG said no. The two subsections are separate, independent disqualifications. Anyone with a felony conviction involving criminally injurious conduct is categorically off the table, regardless of how promptly the new incident was reported. The 72-hour rule is a separate bar that knocks out claimants who had no felony but whose conduct went unreported.
The reasoning was textual: (1) the subsections are joined by "or," which marks alternatives in standard usage and Arkansas case law (Brown v. Kelton, 2011 Ark. 93); (2) the punctuation and indentation under A.C.A. § 16-90-712(a) signal a list of separate prohibitions; and (3) the request's reading would let some felony-convicted claimants still recover, contradicting the unqualified text of (a)(5).
What this means for you
If you serve on the Reparations Board or process claims
When a claim file shows a felony conviction involving criminally injurious conduct, the AG opinion treats that as a categorical bar under (a)(5). The Board does not need to look further at the 72-hour timeline; the felony alone disqualifies. Conversely, when there is no felony bar but the new incident was not reported within 72 hours, the Board should look only at whether the claimant had good cause for the delay; the felony question never enters that path.
Document each disqualification under the specific subsection that applies. The opinion's analytical posture is that (a)(5) and (a)(6) are independent grounds, so applying both to the same denial is fine, but treating one as the exception to the other is wrong.
If you are a crime victim or victim advocate
A prior felony conviction "involving criminally injurious conduct" is a complete bar to reparations under the AG's reading. That is true even if the new incident was reported promptly. "Criminally injurious conduct" under A.C.A. § 16-90-703(5) means an act that occurs or is attempted in Arkansas, results in personal injury or death, and is punishable by fine, imprisonment, or death. Many felony convictions will fall inside that definition.
If the felony bar does not apply, the 72-hour rule still does. The conduct that caused the injury must be reported to the proper authorities within 72 hours, or the Board must find good cause for the delay. Have a contemporaneous record (the police report, the call to 911, the visit to the ER) ready when filing.
If you are an advocate or attorney advising a survivor
A reviewing court will not defer to the Board's contrary statutory interpretation. Myers v. Yamato Kogyo Co., 2020 Ark. 135, makes clear that statutory interpretation is for the court, not the agency. So even if a Board member is willing to read (a)(5) and (a)(6) together, that reading is unlikely to survive a denied-claimant's appeal.
Common questions
Q: What counts as "criminally injurious conduct" for this rule?
A: A.C.A. § 16-90-703(5) defines it as an act that occurs or is attempted in Arkansas, results in personal injury or death to a victim, and is punishable by fine, imprisonment, or death. The definition is broad enough that most felony convictions for violent or injury-causing offenses will satisfy it.
Q: If my prior felony was a long time ago and unrelated to the new injury, does the bar still apply?
A: Under the AG's reading, yes. Subsection (a)(5) does not contain a time limit or a relevance test. The bar is triggered by the conviction itself, regardless of when it occurred or whether it relates to the current claim.
Q: What counts as "good cause" for missing the 72-hour reporting window in (a)(6)?
A: The AG opinion does not define "good cause." The Board has discretion to assess case-by-case, but documented impediments such as continued threat to the victim, severe injury, age (a minor), incapacity, or coercion by the offender are typical examples in similar reporting-rule contexts.
Q: Does the felony bar apply to a juvenile adjudication?
A: The opinion does not directly address this. Subsection (a)(5) refers to a "claimant who has been convicted of a felony." Juvenile adjudications under Arkansas law are typically not "convictions," but a Board faced with this question should evaluate the specific adjudication and consider seeking its own AG opinion if the answer matters to a claim.
Q: Where is this rule in the Arkansas Code?
A: A.C.A. § 16-90-712(a)(5) and (a)(6). The Board's authorizing statute is at A.C.A. § 16-90-706.
Background and statutory framework
Arkansas's crime victims reparations program is administered by a Board within the Department of Public Safety. The Board may award benefits for "economic loss arising from criminally injurious conduct" under A.C.A. § 16-90-706(a)(1), but the authority is limited by seven categorical bars in A.C.A. § 16-90-712(a). Among those, (a)(5) bars reparations to anyone "convicted of a felony involving criminally injurious conduct," and (a)(6) bars reparations whenever the criminally injurious conduct that led to the claim was not reported to authorities within 72 hours, absent good cause.
The opinion request, from the Department of Public Safety, presented two readings of the relationship between (a)(5) and (a)(6). The Board had been operating on a reading under which a claimant with a prior felony conviction could still recover if the new injury was reported on time. The AG rejected that reading and said the two subsections operate independently.
The opinion drew on three textual canons. The "disjunctive 'or'" canon (Brown v. Kelton) treats "or" as marking alternatives, so (a)(5) and (a)(6) are independent. The list-and-list-item canon (using Garner's English usage and the Eighth Circuit's articulation in Fluor Corp. v. Zurich Am. Ins. Co.) treats colon-introduced, semicolon-separated, indented items as separate. The "give meaning and effect to" canon (also Brown v. Kelton) prefers a reading that gives full effect to each subsection, while the request's reading would walk back the unqualified text of (a)(5).
Citations and references
Statutes:
- A.C.A. § 16-90-712, Reparations disqualifications
- A.C.A. § 16-90-706, General reparations authority
- A.C.A. § 16-90-703(5): Definition of "criminally injurious conduct"
Cases:
- Brown v. Kelton, 2011 Ark. 93, 380 S.W.3d 361, disjunctive "or" canon
- Myers v. Yamato Kogyo Co., 2020 Ark. 135, 597 S.W.3d 613, courts do not defer to agency statutory interpretation
- Fluor Corp. v. Zurich Am. Ins. Co., 65 F.4th 387 (8th Cir. 2023), scope-of-subparts canon
Source
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[.]" You have asked these questions:
- 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.
- 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."
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[,]" 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]
(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, 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.'" 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 signals the start of a list. That list consists of seven different prohibitions, each ending with a semicolon, which indicates "separate items." Further, because the subsections of A.C.A. § 16-90-712 are indented, material within each subsection relates only to that subsection.
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" 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. 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.
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