The Honorable H.G. Foster Prosecuting Attorney 12th Judicial District P.O. Box 1105 Conway, Arkansas 72032
Dear Mr. Foster:
This is in response to Deputy Prosecuting Attorney Marcus Vaden's request for an opinion on the following question:
Faulkner County passed a temporary sales tax to finance building a new jail. May the surplus of the funds collected from that tax and not used in the construction of the jail be used to purchase real property for a jail parking lot?
It is my opinion that the answer to your question is "yes."
Please note that I have enclosed a copy of Op. Att'y Gen.90-313, which also involves the use of surplus funds from this particular tax levy in Faulkner County. It was concluded in response to question three therein that surplus funds from this tax levy may only be spent for the purposes for which they were levied, that is, for "constructing a Faulkner County correctional facility." Two issues must thus be resolved in order to answer your question: 1) does the purchase of land fall within the definition of "constructing" a correctional facility? and 2) may a parking lot properly be included within the phrase construction of a "correctional facility." It is my opinion that the answer to both questions is "yes."
It was held in Johnson, Judge v. Cummings, 281 Ark. 229,663 S.W.2d 168 (1984), that the purchase of land, made for the sole purpose of building a county jail, was "construction" within the meaning of Amendment 17 which requires voters of a county to approve construction of a county courthouse, jail, or hospital, since the purchase of land was merely the first step in building the new jail, and not a separate, unrelated act. Additionally, it is my opinion that the provision of a parking lot in conjunction with a correctional facility, which will provide parking for uses related to the facility, may be fairly characterized as a part of the "correctional facility" for purposes of using surplus tax revenues. Certainly if the county had constructed a parking lot for jail purposes when it originally constructed the jail, there would have been no dispute that it was included in the meaning of the "correctional facility." The fact that it is constructed at a later date with surplus revenues, does not in my opinion change this result.
It is therefore my opinion that the answer to your question is "yes."
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely, WINSTON BRYANT Attorney General
WB:cyh
Enclosure