Does the Arkansas DOC Secretary still have authority to issue a certificate of expungement for someone sentenced under the Alternative Service Act, even though the act was repealed in 1993?

Plain-English summary

DOC Secretary Lindsay Wallace asked four questions about a certificate of expungement request from someone sentenced on February 1, 1989, under the Alternative Service Act (formerly the Youthful Offender Alternative Service Act). The Act was repealed in 1993, leaving open whether the DOC could still issue certificates for people sentenced under it.

Attorney General Tim Griffin's answers:

Question 1: Does the Secretary have authority to issue a certificate? Yes. Eligibility for expungement attaches to the version of the Act under which the person was sentenced. The Act in effect on February 1, 1989, required the DOC's chief (then "Director," now "Secretary") to direct expungement and entitled the eligible offender to a certificate. That authority transferred over time through Act 831 of 1989 (Board of Parole), Acts 530 and 547 of 1993 (Post-Prison Transfer Board), and finally back to the DOC under the 2019 Transformation and Efficiencies Act (A.C.A. §§ 25-43-402, -403). The DOC still has the duty.

Question 2: What criteria must the Secretary verify? Three:
1. The person was sentenced under the Act.
2. The sentence was not only a fine.
3. The sentence is fully completed (probation, suspended time, community service, education, training, and payment of costs, fees, and restitution all done).

The Act allowed the Post-Prison Transfer Board to add additional bases for refusal by rule, with DOC concurrence. The Board's rules do not currently identify any.

Question 3: How is the certificate processed and who must be notified? Two distinct steps:

• Direct expungement. This is a ministerial duty (per Irvin v. State, 301 Ark. 416 (1990)). The Secretary directs law-enforcement agencies, judicial officials, and the Arkansas Crime Information Center to (a) note in their official records that the records relate to an eligible offender and (b) seal and sequester the records. The agencies and officials vary depending on where the offense occurred.
• Issue the certificate. The eligible offender has an "absolute right" to the certificate immediately upon the expungement. Unlike the expungement itself, no other entities have to be notified of the certificate.

Question 4: Is the attached certificate of expungement template sufficient? Yes, with a caveat. If the certificate is meant to function as the operative direction to law enforcement (rather than just notifying the offender), two additions are needed: identify the specific entities being directed (Arkansas Crime Information Center and the law-enforcement and judicial officials), and direct them specifically to make the entry and seal/sequester the records.

What this means for you

If you are a former offender sentenced under the Alternative Service Act seeking expungement

You are eligible if you were sentenced under the Act, your sentence was more than just a fine, and your sentence is fully completed (including probation, fines, costs, and restitution paid). The DOC processes the expungement and issues the certificate. The path forward:

1. Confirm your sentencing record shows the Alternative Service Act (which, depending on year, may also be called the "Youthful Offender Alternative Service Act").
2. Confirm sentence completion. If you owe outstanding fines, costs, or restitution, those need to be paid first.
3. Submit a request to the DOC for both expungement and a certificate.

If you are DOC counsel or expungement-processing staff

Use the three-element checklist as a process gate. If any element is not satisfied, refuse. If all three are satisfied, the Act gives no other ground to refuse, and expungement is mandatory. Treat it as the ministerial duty Irvin v. State described.

For the operative expungement, identify the specific law-enforcement agencies, judicial officials, and the Arkansas Crime Information Center based on where the underlying offense was prosecuted. Direct each entity to make the records-relating-to-eligible-offender entry and to seal and sequester.

For the certificate template: if you intend it to do double duty (notify the offender and operate as the direction to law enforcement), add the entity list and the specific direction language. If the certificate is just for the offender's records, the existing template is sufficient.

If you are a defense attorney with a client sentenced under the Act

The Alternative Service Act expungement framework remains alive for clients sentenced before its 1993 repeal. The DOC, not a court, processes it. The procedure is mandatory once eligibility is established. If the DOC refuses without a basis tied to the three eligibility elements, that may be reviewable as a failure to perform a ministerial duty.

If you are an Arkansas Crime Information Center records officer or a clerk of court

If you receive a directive from the DOC under the Act, take the two procedural steps the AG outlined: (1) make the entry on the official record indicating the records relate to an eligible offender, and (2) seal and sequester the records, treating them as confidential and available only to law enforcement and judicial officials.

The 1989 form of the Act predates the modern A.C.A. § 16-90-1413 procedure for sealing convictions, but the AG noted the modern procedure operates as a useful reference for the steps.

Common questions

Q: I was sentenced under the Alternative Service Act in 1989 but my offense was a fine only. Am I eligible?
A: No. The Act excludes fine-only sentences from expungement.

Q: I have outstanding restitution. Does that matter?
A: Yes. The "completion" element includes "fines, costs, [and] restitution," per Ark. Att'y Gen. Op. 91-247. Pay it off before requesting the certificate.

Q: The Act was repealed in 1993. Does that mean I cannot get an expungement?
A: No. Eligibility tracks the version of the Act under which you were sentenced. If you were sentenced before the 1993 repeal, the pre-repeal Act's expungement framework still applies to you.

Q: Where do I send my request?
A: The DOC. The Secretary holds the authority. After 2019's Transformation and Efficiencies Act, expungement-related responsibility consolidated back to the DOC for Alternative Service Act offenders.

Q: What entities have to be notified of my expungement?
A: The Secretary must direct law-enforcement agencies that handled the case, judicial officials in the original prosecuting court, and the Arkansas Crime Information Center to seal and sequester the records. The certificate itself is for you; no separate notification of the certificate is required.

Q: After expungement, can someone still see the records?
A: Sealed records are "confidential and only available to law enforcement and judicial officials," per the Act. The records are not publicly accessible. The modern sealing procedure under A.C.A. § 16-90-1413 has additional details on how agencies should seal and sequester.

Q: What if the DOC refuses without explanation?
A: The expungement is described as a ministerial duty (Irvin v. State). If the three eligibility elements are met and DOC refuses, you may have grounds to challenge the refusal via a writ of mandamus or similar action. Consult an Arkansas criminal-law attorney.

Background and statutory framework

The Alternative Service Act (originally Youthful Offender Alternative Service Act) was a sentencing alternative providing for expungement upon completion of sentence. It was codified at A.C.A. §§ 16-93-501 to -510 and was repealed by Acts 530 and 547 of 1993. But people sentenced under it before repeal remain eligible based on the law in effect at the time of sentencing.

The expungement authority moved over time:
- 1987 (Act 775): DOC Director.
- 1989 (Act 831, § 7): State Board of Parole and Community Rehabilitation.
- 1993 (Acts 530, 547): Post-Prison Transfer Board.
- 2019 (Transformation and Efficiencies Act): Authority returned to DOC; the Secretary is now the administrative head (A.C.A. § 25-43-403(a)). DOC handles administrative functions of the Post-Prison Transfer Board (A.C.A. § 25-43-402).

The expungement is a "ministerial duty" per Irvin v. State, 301 Ark. 416 (1990). The Secretary must direct expungement when the three eligibility elements are met, and the eligible offender has an "absolute right" to the certificate immediately after.

The modern uniform sealing procedure under A.C.A. § 16-90-1413 (added by Act 1460 of 2013) operates as a parallel framework for sealing convictions. The Alternative Service Act's expungement directive should mirror its key steps: identify the entities, direct the entry, direct the sealing and sequestering.

Citations and references

Statutes:
- A.C.A. §§ 16-93-501 to -510 (Alternative Service Act, repealed 1993)
- A.C.A. § 25-43-402 (DOC administrative authority for Post-Prison Transfer Board)
- A.C.A. § 25-43-403(a) (Secretary as administrative head of DOC)
- A.C.A. § 16-90-1413 (modern uniform order to seal conviction)
- A.C.A. § 16-93-201(a)(1) (Post-Prison Transfer Board redesignation)
- Act 775 of 1987 (Youthful Offender Alternative Service Act)
- Act 344 of 1983 (renaming as Alternative Service Act)
- Act 831 of 1989 (transferring authority to State Board of Parole)
- Acts 530, 547 of 1993 (Post-Prison Transfer Board, repeal of underlying Act)
- Act 937 of 1989 (Commission on Community-Based Rehabilitation transferred)

Cases:
- Irvin v. State, 301 Ark. 416, 784 S.W.2d 763 (Ark. 1990) (expungement is ministerial)

Prior AG opinions:
- Ark. Att'y Gen. Ops. 2004-307, 2002-275, 97-160 (eligibility tracks version of Act under which sentenced)
- Ark. Att'y Gen. Op. 92-233 (fine-only sentences not eligible)
- Ark. Att'y Gen. Op. 91-247 (sentence completion includes fines, costs, restitution)

Reference:
- Arkansas Parole Board Policy Manual § 5.6

Source

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

Original opinion text

Opinion No. 2024-039
June 3, 2024
The Honorable Lindsay Wallace
Secretary, Arkansas Department of Corrections
1302 Pike Avenue, Suite C
North Little Rock, Arkansas 72114

Dear Secretary Wallace:

I am writing in response to your request for my opinion about certificates of expungement under the Alternative Service Act (the "Act"), previously titled the Youthful Offender Alternative Service Act, which was repealed in 1993. You report that the Department of Corrections (DOC) received a request for a certificate of expungement from someone sentenced under the Act on February 1, 1989. You ask the following four questions:

1. Does the Secretary of the DOC have authority to issue a "certificate of expungement"?
2. If so, what criteria is required for the Secretary to issue the certificate?
3. How does the Secretary "direct that the record…be expunged," and who are all the entities that must be notified of the "certificate of expungement"?
4. Is the attached "certificate of expungement" statutorily sufficient?

RESPONSE

Question 1: Does the Secretary of the DOC have authority to issue a "certificate of expungement"?

Yes. Individuals are eligible for expungement according to the version of the Act under which they were sentenced. The Act in effect on February 1, 1989, required the Secretary of the DOC to "direct that the record of the eligible offender[s] be expunged of the [relevant] offense" when they complete their sentences. Then "the eligible offender shall be entitled to a Certificate of Expungement to that effect." The Secretary retains this authority today.

Question 2: If so, what criteria is required for the Secretary to issue the certificate?

The Secretary of the DOC must direct expungement under the Act only when all three of the following circumstances exist:

• The person was sentenced under the Act;
• The sentence was not only a fine; and
• The person's sentence was completed (including probation, suspended time, community service, education and training, and payment of costs, fees, and restitution).

The Act provides a single basis to refuse expungement to an eligible offender after the offender's sentence is completed: the Secretary "shall direct that the record of the eligible offender be expunged…except under such circumstances as may be determined by rules…promulgated by the [Post-Prison Transfer Board] with the advice and consent of the [Secretary]." While the Board has promulgated rules related to expunging records, those rules do not detail any "circumstances" under which an eligible offender should be denied an expungement.

Once an offense has been expunged, the Act provides no basis to refuse issuing a certificate of expungement if an eligible offender's sentence has been expunged.

Question 3: How does the Secretary "direct that the record…be expunged," and who are all the entities that must be notified of the "certificate of expungement"?

For purposes of this opinion, Act 775 of 1987 contains two distinct steps. First, "[u]pon completion of [an eligible offender's] sentence," the Secretary "shall direct that the record of the eligible offender be expunged of the offense." This is a "ministerial duty to be completed by the [Secretary.]" When an offense is expunged, the Secretary should direct law-enforcement agencies, judicial officials, and the Arkansas Crime Information Center to make "an entry upon the official records…[that the] records are those relating to [an] eligible offender." The Secretary then should direct them to seal and sequester the records, "treat[ing the records] as confidential and only available to law enforcement and judicial officials[.]" The law-enforcement agencies and judicial officials involved will vary based on where the eligible offender's crimes occurred.

Second, "in the case of such expungement, the eligible offender shall be entitled to a Certificate of Expungement to that effect." Thus, after an eligible offender's offense is expunged, he has "[a]n absolute right to" the certificate of expungement, which should be "granted immediately upon" the offense being expunged. Unlike for the expungement itself, the statutes do not require certain entities to be notified about the certificate.

Question 4: Is the attached "certificate of expungement" statutorily sufficient?

Yes, unless you intend the attached certificate of expungement to function as a direction to law enforcement to in fact expunge the eligible offender's offense or offenses. If that is your intent, then two components should be added. First, the certificate should list the Arkansas Crime Information Center and the specific law-enforcement agencies and judicial officials the certificate is "direct[ing]" to expunge the records. Second, the certificate should "direct" those entities (a) to make "an entry upon the official records…[that the] records are those relating to [an] eligible offender" and (b) to seal and sequester the records, "treat[ing the records] as confidential and only available to law enforcement and judicial officials[.]"

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

Sincerely,

TIM GRIFFIN
Attorney General