Can the Arkansas legislature pass a law merging Ouachita County's tax collector office into the county treasurer's office on January 1, 2026?
Subject
Whether Act 447 of 2023, which separates Ouachita County's sheriff and tax collector offices and purports to merge the tax collector role into the county treasurer's office on January 1, 2026, is constitutional, and how it affects current officeholders.
Plain-English summary
Representative Wade Andrews asked the AG about Act 447 of 2023, which restructured Ouachita County's elected offices. The act did two things: (a) separated the offices of sheriff and tax collector (a permitted move under Ark. Const. art. 7, § 46) and (b) consolidated the new tax collector office with the existing county treasurer's office, so that the treasurer would assume tax-collection duties on January 1, 2026.
AG Tim Griffin concluded the consolidation half of the act is unconstitutional. The reasoning is straightforward and rooted in nearly a century of Arkansas Supreme Court precedent.
Article 19, § 6 of the Arkansas Constitution forbids one person from holding "the duties of more than one office in the same department of the government at the same time, except as expressly directed or permitted by this Constitution." The constitution permits dual-office holding for certain combinations: sheriff + collector of taxes (Art. 7, § 46), militia officers, public school officers, and notaries (Art. 19, § 26). Treasurer + tax collector is not on that list.
The Arkansas Supreme Court squarely addressed this question in Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925). The legislature could not authorize one person to hold both county treasurer and tax collector. The Court rejected the argument that, because Art. 7, § 46 permits separating tax collector from sheriff, the legislature could attach the collector's office to any other constitutional office.
Amendment 55, § 2 (adopted in 1974, after Marshall) gave the quorum court authority to "create, consolidate, separate, revise, or abandon any elective county office," subject to majority voter approval at a general election. But Amendment 55 transferred this authority to local government, not to the legislature. The General Assembly's power did not expand. So Act 447 cannot do what the quorum court could have done with voter approval.
There is no record of a quorum court ordinance with voter approval here. The treasurer therefore cannot constitutionally assume tax collector duties on January 1, 2026.
On the second and third questions (do the current sheriff and treasurer stay in office through 2026?), the answer is yes for both. Act 447 expressly provides that newly elected officers take office January 1, 2027; the act does not shorten the current terms. The current sheriff serves through the end of his term in late 2026. The current treasurer also serves through her term, but cannot assume tax collector duties because of the constitutional bar.
What this means for you
If you are the Ouachita County treasurer (or the people relying on the office for tax collection)
You cannot constitutionally assume the tax collector role on January 1, 2026 just by operation of Act 447. If your county wants to consolidate the offices, the lawful path is for the quorum court to pass an ordinance and submit it to voters at a general election, per Amendment 55, § 2. Without that voter approval, the offices remain separate, and someone else (or the same person, only if the sheriff is also tax collector under Art. 7, § 46) must perform the tax-collector duties.
If you are the Ouachita County sheriff
You remain in office through December 31, 2026. Act 447 separates sheriff and tax collector duties going forward (effective January 1, 2027 with the new elected officers), but does not shorten your current term. If you have been collecting taxes in your ex officio capacity, you continue to do so until the end of 2026.
If you are a quorum court member or county judge
If your county wants to consolidate constitutional offices, the lawful path runs through your quorum court and the voters. Pass an ordinance and place it on the next general-election ballot under Amendment 55, § 2. The legislature cannot do this for you; only voter approval at a general election can. Note Gravett v. Villines (1993): even when the quorum court initiates the change, voter approval is mandatory for it to take effect.
If you are a state legislator considering similar restructuring acts for other counties
Marshall v. Holland (1925) is a hard limit. You cannot consolidate two constitutional county offices by statute when the constitution does not expressly permit the combination. Bills that purport to do so are unconstitutional and will be challenged. The Amendment 55 path requires local quorum-court action and voter approval. If you want broader consolidation authority for the legislature, that is a constitutional amendment question, not a statutory one.
If you are a voter in Ouachita County
The current Ouachita County structure stays in place through 2026. The 2026 general election will determine the new sheriff and the new tax collector-treasurer (per Act 447's election provisions). But the question of whether the same person can hold both treasurer and tax collector roles is unresolved if Act 447's consolidation half is struck down. A pre-election challenge to Act 447 is likely, and the outcome will affect how the 2026 election ballot is structured.
Common questions
Q: Why does Article 19, § 6 ban this when it only refers to "the same department of the government"?
A: County offices, including sheriff, treasurer, tax collector, are all in the same department of government for purposes of Art. 19, § 6 (Marshall v. Holland reads them this way). The bar applies unless the constitution expressly permits the combination. Sheriff + tax collector is expressly permitted (Art. 7, § 46). Treasurer + tax collector is not.
Q: What about Article 19, § 26?
A: That provision lists categories where dual-office holding is allowed: "officers of the militia, officers of the public schools, and notaries." Treasurer + tax collector is not on that list either.
Q: Did Amendment 55 expand the legislature's power?
A: No. Amendment 55 added a new mechanism (quorum court action with voter approval) without expanding the legislature's existing power. Marshall v. Holland's limit on the legislature still stands.
Q: Could a constitutional amendment fix this?
A: Yes. Amendment of Art. 19, § 6 to add treasurer + tax collector to the list of permitted combinations would solve the problem. That requires the proposal-and-ratification path of constitutional amendment, not just legislative action.
Q: What happens if Ouachita County tries to operate under Act 447 anyway on January 1, 2026?
A: Tax payments collected by the treasurer in her purported tax collector capacity could be challenged as collected without lawful authority. A quo warranto action by an interested party could test the office. The cleanest path is a declaratory judgment before January 1, 2026, asking a court to confirm the consolidation provision is unconstitutional.
Q: Does this opinion bind the courts?
A: No. AG opinions are persuasive but not binding. A court asked to construe Act 447 could reach a different conclusion. But the Marshall v. Holland precedent is squarely on point and has not been narrowed.
Background and statutory framework
Article 7, § 46 makes the sheriff ex officio tax collector unless the legislature provides otherwise: "The qualified electors of each county shall elect one (1) sheriff, who shall be ex officio collector of taxes, unless otherwise provided by law." This permits the legislature to separate the two offices, but says nothing about combining the new tax collector office with another office.
Article 19, § 6: "No person shall hold or perform the duties of more than one office in the same department of the government at the same time, except as expressly directed or permitted by this Constitution."
These two provisions read together (Chesshir v. Copeland, 1930): the legislature can separate sheriff from tax collector, but cannot consolidate the resulting tax collector office with another constitutional office unless the constitution permits.
Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925), held that the legislature lacks authority to consolidate treasurer and tax collector. The Court explicitly rejected the argument that Art. 7, § 46 implies broader legislative consolidation authority.
Amendment 55, § 2 (1974) gave quorum courts authority to "create, consolidate, separate, revise, or abandon any elective county office, except during the term thereof; provided, however, that a majority of those voting on the question at a general election have approved said action." Gravett v. Villines, 314 Ark. 320, 862 S.W.2d 260 (1993): voter approval is mandatory; quorum-court action without voter approval is invalid.
Act 447 of 2023 separates sheriff and tax collector in Ouachita County (constitutional under Art. 7, § 46) and consolidates tax collector with treasurer (unconstitutional under Marshall v. Holland). The act provides for newly elected officers to take office January 1, 2027 and does not shorten current terms.
Citations and references
Constitutional provisions:
- Ark. Const. art. 7, § 46 (sheriff as ex officio tax collector)
- Ark. Const. art. 19, § 6 (one office per person in the same department)
- Ark. Const. amend. 55, § 2 (quorum-court restructuring authority)
Cases:
- Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925) (legislature cannot consolidate treasurer + tax collector)
- Chesshir v. Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930) (read constitutional provisions together)
- Gravett v. Villines, 314 Ark. 320, 862 S.W.2d 260 (1993) (voter approval mandatory under Amendment 55)
Statute:
- Act 447 of 2023, § 1(c) (Ouachita County restructuring)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-100
February 3, 2026
The Honorable Wade Andrews
State Representative
Post Office Box 470
Camden, Arkansas 71711
Dear Representative Andrews:
I am writing in response to your request for an opinion on Act 447 of 2023, which reorganizes certain county offices in Ouachita County, effective January 1, 2026. Specifically, the act separates the offices of sheriff and tax collector, and it purports to consolidate the office of tax collector with the office of the county treasurer. You have asked the following questions:
1. On January 1, 2026, will the office of tax collector merge with the county treasurer's office in Ouachita County, with the county treasurer simply assuming all related duties?
Brief response: Because the Arkansas Constitution prohibits the consolidation of the offices of county treasurer and tax collector by statute, Act 447 cannot lawfully merge the two offices. Amendment 55, § 2 vests the authority to create, consolidate, separate, revise, or abandon elective county offices in the quorum court, subject to approval by a majority of those voting on the question at a general election, not in the General Assembly. Accordingly, the tax collector's duties may not be assumed by the county treasurer.
2. Will the current sheriff remain in office throughout 2026 until his term ends on or about December 31, 2026?
3. Will the current county treasurer, upon assumption of the tax collector's duties, remain in office throughout 2026 until her term ends on or about December 31, 2026?
Brief response: To answer your second and third questions together, Act 447 does not shorten the term of either current officeholder. Thus, both the current sheriff and current county treasurer should remain in office for the duration of their elected terms. But, as explained in response to Question 1, the county treasurer may not constitutionally assume the duties of tax collector under Act 447.
DISCUSSION
Question 1. Article 7, § 46 of the Arkansas Constitution provides in relevant part:
"The qualified electors of each county shall elect one (1) sheriff, who shall be ex officio collector of taxes, unless otherwise provided by law, If a separate collector of taxes has been created by law for a county, the qualified electors of that county shall elect one (1) collector of taxes,."
Article 19, § 6 further states:
"No person shall hold or perform the duties of more than one office in the same department of the government at the same time, except as expressly directed or permitted by this Constitution."
These two provisions must be read together. While Article 7, § 46 authorizes the General Assembly to separate the office of tax collector from the office of sheriff, Article 19, § 6 limits the legislature's authority to combine constitutional county offices. Thus, the legislature may create a separate tax collector's office, but it may not consolidate that office with another constitutional office unless the constitution expressly allows it.
The Arkansas Supreme Court squarely addressed this issue in Marshall v. Holland. In that case, the Court considered whether the General Assembly could authorize one person to hold both the offices of county treasurer and tax collector. The Court held that it could not.
The Court explained that Article 19, § 6 prohibits dual office holding except where expressly permitted by the constitution. And the constitution provides no such authorization "except in the instance of sheriff and collector of taxes, and all of those offices mentioned in section 26, art. 19, namely, militia officers, officers of the public schools, and notaries." The Court rejected the argument that, because Article 7, § 46 permits separating the office of tax collector from that of sheriff, it thereby grants lawmakers the authority to annex the collector's office to any other constitutional office. Instead, it concluded "that there is no authority for joining together two offices in the same department, except those expressly permitted by the Constitution."
Amendment 55, § 2, adopted after Marshall v. Holland, confers the power of county-office restructuring on the quorum court, but only if approved by voters:
"The Quorum Court may create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof; provided, however, that a majority of those voting on the question at a general election have approved said action."
While Amendment 55 added this local mechanism for restructuring county offices, it did not expand the General Assembly's power to consolidate those offices by statute. Rather, the quorum court has the authority to consolidate the offices of tax collector and county treasurer, subject to voter approval at a general election.
Marshall v. Holland has not been overruled or limited by subsequent judicial decisions. It remains controlling law as to the legislature: the General Assembly still lacks constitutional authority to consolidate the offices of treasurer and tax collector. Therefore, it is my opinion that Act 447's attempt to merge the offices of tax collector and county treasurer in Ouachita County is unconstitutional. Any attempt to combine those offices must be initiated by the quorum court and approved by voters at a general election. You have provided no information suggesting that this occurred. Thus, the county treasurer may not assume the tax collector's duties.
Questions 2 and 3. Although Act 447 separates the offices of sheriff and tax collector and purports to consolidate the office of tax collector with the office of the county treasurer, it does not shorten the term of either current officeholder. Instead, Act 447 provides that the electors of Ouachita County shall elect a sheriff and a tax collector-treasurer at the 2026 general election, with each newly elected officer taking office on January 1, 2027.
Accordingly, both the current sheriff and current county treasurer should remain in office for the duration of their elected terms. But, as explained in response to Question 1, the county treasurer may not constitutionally assume the duties of tax collector under Act 447.
Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General