Cite as 2026 Ark. App. 378
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-25-318
FREDERICK HENDERSON Opinion Delivered September 2, 2026
APPELLANT
APPEAL FROM THE MILLER
COUNTY CIRCUIT COURT
V. [NO. 46CR-19-74]
STATE OF ARKANSAS HONORABLE CARLTON D. JONES,
APPELLEE JUDGE
REVERSED IN PART AND
REMANDED; AFFIRMED IN PART
BRANDON J. HARRISON, Judge
On 24 February 2025, the Miller County Circuit Court revoked Frederick
Henderson’s probation and sentenced him to five years in the Arkansas Division of
Correction. It also imposed a $150 court cost, a $40 booking fee, and a $100 bailiff fee and
ordered him to pay “all previously assessed fines, costs, restitution, etc.,” upon release.
There were several of those. They included a balance from Henderson’s original March
2019 sentence (a $1,000 fine, $150 court cost, $20 booking fee, $250 DNA-sample fee, and
$100 bailiff fee) plus a $150 court cost, $40 booking fee, and $100 bailiff fee added in each
of three previous revocations. All four petitions to revoke probation alleged Henderson had
failed to pay his court-ordered financial obligations. A failure-to-pay finding was one
ground for the February 2025 revocation.
Henderson, who by his probation officer’s admission had been homeless since at least
2019, appealed. His counsel moved to withdraw under Anders v. California, 386 U.S. 738
(1967), and Arkansas Supreme Court Rule 4–3(b) without filing a merit brief. We denied
the motion. The order on appeal (through that incorporating provision) cumulatively
imposes $750 in court costs, $180 in booking fees, and $500 in bailiff fees. Absent authority
establishing that imposing or reimposing these fees and costs is lawful, an appeal on those
points would not be frivolous. So this court ordered counsel to consider the implication (if
any) of the fees and costs in the revocation context. Henderson v. State, 2026 Ark. App. 39.
Henderson’s counsel did so and has now filed a merit brief arguing reversible error
due to an illegal sentence; the State wholly disagrees. We reverse the judgment in part and
remand for entry of a new sentencing order with lawful penalties.
First, the State argues we lack jurisdiction to address the legality of the court costs
and fees imposed in previous sentencing orders because Henderson didn’t list those orders
in the notice of appeal. No. A notice of appeal in a criminal case must be taken “[w]ithin
thirty (30) days from . . . the date of entry of a judgment or uniform sentencing order.” Ark.
R. App. P.–Crim. 2(a)(1) (emphasis added). The sentencing order on appeal incorporates
the penalties imposed in prior sentencing orders because it ordered that Henderson “must
pay all previously assessed fines, costs, restitution, etc. upon release.” His arguments weren’t
waived, either, because “the issue of an illegal sentence may be raised as a matter of subjectmatter jurisdiction regardless of the failure to object at trial or to file a notice of appeal from
the order in controversy.” Cross v. State, 2009 Ark. 597, at 9, 357 S.W.3d 895, 900.
2
Next, the merits. Just as it is easy to visually distinguish a dog from a cat, but harder
to explain in words how to do so, it’s easier to conclude the State misconstrues the courtcost and booking-fee statutes than to explain its mistake. But we will use our words and do
so, nonetheless. Settle in.
The starting point is clear enough: first principles. (Or as the coaches of every sport
preach: Fundamentals. Fundamentals. Fundamentals.) Here, an important blackletter basic
principle is that “[a] violation of the terms of probation is not a separate offense for which
the probationer may be punished independently of his or her original sentence, but is merely
a breach of probationary rules and conditions which enables the court to review, modify,
or otherwise alter its original sentence.” 24 C.J.S. Criminal Procedure and Rights of Accused §
2377 (2026) (emphasis added). We start there because to sustain the multiple fee and cost
sentences as the State urges would unsettle core terms like “conviction” and “plea of guilty.”
These terms refer to specific points in a criminal case that ordinarily occur just one time.
Expanding the term cat to encompass dog obviously blurs each to the point of
misapprehending both terms and their intended referents. For example, both the booking
fee in Ark. Code Ann. § 12-41-505(b) (Supp. 2025), and court costs under Ark. Code Ann.
§ 16-10-305 (Supp. 2025), can be imposed at “conviction.” The State argues the circuit
court could order Henderson to pay a $40 booking fee at his “initial conviction” in 2019
and “each time he was convicted of violating the conditions of his probation” afterward.
That is, with respect, incorrect. There is only one conviction in this case’s context. To
hold otherwise sanctions a smash-and-grab.
3
I. Court Costs
The State expends most effort on the uniform court costs under section 16-10-305,
part of Act 1256 of 1995. The Act was meant to “eliminate the current system of collecting
and assessing a large number of individual court costs and filing fees, to replace it with uniform
costs and fees to be applied statewide.” Ark. Code Ann. § 16-10-301(b) (Repl. 2010)
(emphasis added). Apart from identified exceptions, “all filing fees and all court costs shall
be uniform for each type of case in all general and limited jurisdiction courts of this state.”
Ark. Code Ann. § 16-10-302(a) (Repl. 2010) (emphasis added). Section 305(a) prescribes
the amount:
(a) There shall be levied and collected the following court costs from each
defendant upon each conviction, each plea of guilty or nolo contendere, or
each forfeiture of bond:
(1) In circuit court, one hundred fifty dollars ($150) for a misdemeanor
or felony violation of state law, excluding a violation of [specified
offenses.]
It goes on to set out a schedule of court costs by the type of court, the grade, and sometimes,
the kind of offense. 1 They range from the $150 court cost at issue here down to $25 in
district court for “a nontraffic offense that is a misdemeanor or violation under local
ordinance.” Ark. Code Ann. § 16-10-305(a)(1) & (4). The statute continues:
(b)(1) The costs set forth in this section shall be imposed at the conclusion of
any criminal case enumerated in subsection (a) of this section that does not
1
Before Amendment 80 and the General Assembly merged the inferior trial courts into district courts, Ark. Const. amend. 80, § 19(B)(2), this was a longer list. As enacted, the statute prescribed costs for municipal courts, city courts, and police courts as well. See Act 1256 of 1995, § 7(a)(2)–(4).
4
end in an acquittal, dismissal, or, with the consent of the prosecution, an order
nolle prosequi.
(2) The costs shall be imposed at the conclusion of cases involving a suspended
or probated sentence even though that sentence may be expunged or
otherwise removed from the defendant’s record.
Id. § 16-10-305(b) (emphasis added).
The State interprets the terms “conviction,” “plea of guilty,” and “conclusion” in
section 305(a) and (b) as opportunities to impose court costs any number of times in one
case. For example, it argues the circuit court could impose court costs “each time
[Henderson] pleaded ‘guilty’ after revocation proceedings were initiated” and again after the
contested February 2025 revocation “as that concluded [the] proceedings.” (Emphasis added.) It
also says that the plural form “cases” in “at the conclusion of cases involving a suspended or
probated sentence” in section 305(b)(2) might envision multiple “conclusions” too. 2
There is the smash-and-grab reading that we reject. To the contrary, we read that
language to plainly recognize the myriad ways a criminal case can end unfavorably to a
defendant but not result in a conviction or be considered a “sentence.” In other words, we
read sections 305(a) & (b) together to fundamentally say this: The circuit court must impose
court costs of $150 at the disposition of any felony or Class A misdemeanor criminal case
that does not end in acquittal, dismissal, or order nolle prosequi, even if the disposition is
probation or a suspended sentence that might eventually be expunged.
2
You gotta know when to hold ’em, know when to fold ’em; this argument, in particular, would have made a good fold. There is only one “case” no matter how many revocations there were. They all take place in the same docket, with the same case number, and modify the same original sentence.
5
That is, the statute creates the requirement to impose court costs once (but just once)
in every criminal case the defendant does not win outright. 3 The phrase “each conviction,
each plea of guilty or nolo contendere, or each forfeiture of bond” in section 305(a)
identifies the ways those cases could end.
Our supreme court’s recent decision in Day v. Wardlaw, 2026 Ark. 21, 727 S.W.3d
619, mirrors the point clearly. Someone tried to disqualify a candidate for an old Hot Check
Law violation. The docket sheet in the case included the note “GUILTY – BOND FOR.”
Id. at 3, 727 S.W.3d at 621. A bond forfeiture (“forfeiture of bond” in section 305(a)) is
how you avoid showing up in court for a speeding ticket by paying the fine in advance.
That disposition of the hot-check charge did not disqualify the candidate because—note the
echo with section 305(a)—“[a] bond forfeiture does not constitute a conviction, a plea of
guilty or no-contest, or a finding of guilt.” Id. at 10, 727 S.W.3d at 624. But the case did
not end in a dismissal, acquittal, or nolle prosequi. So under section 305(b)(1), court costs
would still be imposed.
A “plea of guilty or nolo contendere” might not result in a conviction or sentence
either. For example, it might result in the kind of pre-adjudication probation we discussed
in Conic v. State:
Section 5-65-108 explicitly prohibits using the procedure in Ark. Code Ann.
§§ 16-93-301 et seq., under which a judge “is allowed to discharge the
accused without a court adjudication of guilt” and expunge the record. Ark.
Code Ann § 5-65-108(a), (b) & (c)(1). A statute in Chapter 4 of the Criminal
Code . . . similarly defines “probation” as a procedure in which a defendant
3
“Give me a ping Vasily; one ping only, please.” – Captain Marko Ramius, The Hunt for Red October (Paramount Pictures, 1990).
6
“is released by the court without pronouncement of sentence.” Ark. Code
Ann. § 5-4-101(2) (Repl. 2013).
2023 Ark. App. 145, at 7, 662 S.W.3d 707, 712. A defendant who successfully completes
that kind of probation stands, for most purposes, as if he had never been charged. Ark.
Code Ann. § 16-93-303(b). But court costs should still be imposed. 4
Whether probation is imposed with or without a conviction was a more important
distinction in 1995 when section 16-10-305 was enacted. See Act 1256 of 1995, § 7. Before
Act 1569 of 1999, “a trial court lost subject-matter jurisdiction to modify or amend an
original sentence once it was put into execution[,]” that is, “when the trial court issue[d] a
judgment of conviction or a commitment order.” Gates v. State, 353 Ark. 333, 336, 107
S.W.3d 868, 869 (2003); see also Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001)
(superseded by statute); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998) (same). The
“general rule” was that “a judgment of conviction is not to be entered when a court orders
suspension or probation.” Original Commentary to Ark. Code Ann. § 5-4-301 (Repl.
1995). Probation imposed without a conviction was not (and is not) considered a
“sentence” either. Ark. Code Ann. § 5-4-101(4) (Repl. 2020).
Since Act 1569 gave the trial courts authority to modify a sentence at revocation
even after a conviction, these conviction/no-conviction and sentence/no-sentence
distinctions have lost most of their teeth. 5 But those distinctions have lost none of their
4
Even if a dismissal and discharge under section 16-93-303(b) would otherwise be a case-ending “dismissal” under section 16-10-305(b)(1), section 305(b)(2) would override it.
5
The central provision added by the Act is now Ark. Code Ann. § 5-4-301(d)(2):
7
power to frustrate attempts to make broad, accurate descriptions of criminal cases or
defendants after the guilt phase ends.
As we read section 16-10-305, the words “upon each” in subsection (a) prescribes
the procedural pivot point upon which court costs should be imposed: when the guilt phase
ends in either an adjudication or an admission of guilt. A “conviction” or a “forfeiture of
bond” would preclude any cost-relieving disposition in subdivision (b)(1). The plainest and
most common-sensical interpretation of section 305(a) is that court costs should likewise be
imposed then, meaning when the “plea of guilty or nolo contendere” is taken—not at the
end (or revocation) of any probated or suspended sentence that might result.
Court costs can of course be part of a sentence. See Ark. Code Ann. § 5-4-202(a)
(Repl. 2013) (“If the defendant is sentenced to pay a fine or costs[.]”). But probation is not
always considered a “sentence.” The somewhat backhanded reference in subdivision (b)(1)
to a “case . . . that does not end in an acquittal, dismissal,” etc., captures dispositions like
that and indicates that court costs should be imposed anyway. Section 305 does not require
that a defendant who pleads guilty be “sentenced” or adjudicated guilty to be liable for court
(2) The entry of a judgment of conviction does not preclude:
(A) The modification of the original order suspending the imposition
of sentence on a defendant or placing a defendant on probation
following a revocation hearing held pursuant to § 16-93-307; and
(B) A modification set within the limits of §§ 16-93-309 and 16-93-312.
Ark. Code Ann. § 5-4-301(d)(2) (Supp. 2025).
8
costs; he is liable for them unless they are excused through one of these specific defendantfavorable dispositions.
Finally, the contingent and forward-looking language in section 305(b)(2) tips the
balance toward viewing the “conclusion of [the] case” referred to in subdivisions (b)(1) and
(2) to occur “upon” the disposition described in subsection (a)—not when the probation or
suspended sentence ends:
(2) The costs shall be imposed at the conclusion of cases involving a
suspended or probated sentence even though that sentence may be expunged or
otherwise removed from the defendant’s record.
Ark. Code Ann. § 16-10-305(b)(2) (emphasis added). Specifying that court costs should be
imposed “even though” the probated or suspended sentence “may be” expunged—not
“even if the sentence is” expunged—most naturally reads as an assurance that circuit courts
should impose court costs on the front end even if, for example, the probation was subject
to automatic expungement under the Arkansas First Time Offender Act (codified at Ark.
Code Ann. §§ 16-93-301 et seq.):
(b) Upon fulfillment of the terms and conditions of probation or upon
release by the court prior to the termination period thereof, the defendant
shall be discharged without court adjudication of guilt, whereupon the court
shall enter an appropriate order which shall effectively dismiss the case,
discharge the defendant, and expunge the record.
Ark. Code Ann. § 16-93-303(b) (as amended by Act 998 of 1995, § 9). 6
More fundamentally, the State either forgets or chooses to overlook the fact that a
revocation hearing is a sentencing proceeding where the allegations present a matter of truth,
not guilt. (A cat is not a dog.) Guilt was determined in the disposition of the charge for
6
The current version is identical but provides for sealing the record instead.
9
which probation or suspended sentence was imposed. (Cat.) A defendant can contest the
alleged violation or not, and the allegation is found true or not. (Dog.) That is just how
the parties and the circuit court understood it. See Henderson’s “plea” before the hearing
began:
DEFENSE COUNSEL: Your Honor, on Mr. Henderson, we’re going to
maintain the not true plea and to be set for a hearing.
Afterward, the circuit court did not find Henderson guilty; it found that the allegations were
true:
THE COURT: Now, so, the Court believes that in this instance with
the revocation having been found by this Court to
be true, that the appropriate sentence in this matter
is a term of 5 years in the Arkansas Department of
Corrections.
The result? A new sentence; not a new conviction. This bears repeating: the result was a
new sentence, not a new conviction. Holding otherwise would at least implicate a violation
of the constitutional rights to trial by jury and the requirement that the State prove guilt
beyond a reasonable doubt, and automatically violate Double Jeopardy besides—maybe in
more than one case. Again, it’s blackletter law that “[a] violation of the terms of probation
is not a separate offense for which the probationer may be punished independently of his or
her original sentence, but is merely a breach of probationary rules and conditions which
enables the court to review, modify, or otherwise alter its original sentence.” 24 C.J.S.
Criminal Procedure and Rights of Accused § 2377 (emphasis added).
In any event, because the terms in section 305(a) refer to dispositions of the guilt
phase, the statute would not allow court costs to be imposed again at revocation even if the
circuit court incorrectly considered a defendant to have pleaded “guilty” instead of “true”
10
to the alleged violations, or a defendant misspoke and did so. 7 This is not a matter of mere
semantics but one of law. “The distinction between an admission of the allegations in the
revocation petition and a guilty plea is not just one of semantics.” Schreibvogel v. State, 2022
Ark. App. 307, at 6.
Both the booking-fee statute, Ark. Code Ann. § 12-41-505(b), and the court-cost
statute, Ark. Code Ann. § 16-10-305, assume the fees will be imposed once per conviction.
There is, at most, one “conviction” per probation sentence in a case: the offense for which
the court imposed probation. Bennion v. State, 2022 Ark. App. 290, 645 S.W.3d 37
(“convictions” that determined revocation sentence were the original offenses, not the
conduct proved at revocation); Dotson v. State, 2011 Ark. App. 731, at 6–7 (defendant is
not put in jeopardy at a revocation hearing because it “is not a proceeding which could
result in a conviction.”) That’s why in Dority v. State, our supreme court echoed that “in a
probation revocation hearing, the defendant is not charged with an offense, but is alleged
to have violated the terms of a previously imposed sentence on an offense.” 329 Ark. 631,
632, 951 S.W.2d 559, 560 (1997).
This court has also had something related and clear to say. In Simpson v. State, a
recent parolee’s suspended sentence was revoked on proof that he had stolen a truck from
a body shop and caused $585 in damage. 2010 Ark. App. 33, at 3. Awarding restitution in
the revocation sentence was an illegal sentence nonetheless:
7
To paraphrase U.S. Circuit Judge Morris “Buzz” Arnold’s remarks when
memorializing his late brother, U.S. Circuit Judge Richard Sheppard Arnold, words are not toys. Morris Sheppard Arnold, A Tribute to Richard S. Arnold, 58 Ark. L. Rev. 481, 484 (2005).
11
Ark. Code Ann. § 5-4-205(a)(1) (Supp. 2009) provides that a defendant who
is found guilty or who enters a plea of guilty or nolo contendere to an offense may be
ordered to pay restitution (emphasis added). The restitution statute specifically
applies to convictions, and does not authorize restitution in revocation proceedings.
Id. at 4–5 (second emphasis added).
We cannot sustain the multiple court-cost penalties under the circuit court’s
authority to impose “any sentence on the defendant that might have been imposed originally
for the offense of which he or she was found guilty,” either. Ark. Code Ann. § 16-93-308(g)(1)(A) (Supp. 2025). Section 305 leaves no discretion. Court costs “shall be levied
and collected” in the sum of $150. Ark. Code Ann. § 16-10-305(a). It is not a sentence
that “might have been imposed” originally; it was imposed originally. Facts are stubborn
things. An order to pay $750 in court costs for one felony offense is not a sentence “that
might have been imposed originally for the offense of which [Henderson] was found guilty,”
either. Ark. Code Ann. § 16-93-308(g)(1)(A).
The State argues that section 305(b)(2) recognizes that the point when probation is
imposed might not be the case “conclusion” referenced in section 305(b)(1) & (2), opening
the possibility of additional penalties at additional conclusions. We disagree. If anything,
section 305(b)(2) implies that the disposition of the guilt phase is the “conclusion” for
assessing court costs:
The costs shall be imposed at the conclusion of cases involving a suspended
or probated sentence even though that sentence may be expunged or otherwise
removed from the defendant’s record.
Ark. Code Ann. § 16-10-305(b)(2) (emphasis added). That language assumes the suspended
or probated sentence has not been completed yet and answers a question the rest of the
statute leaves open: “Should the court impose court costs if a defendant pleads guilty and
12
gets probation, even if the proceeding might be expunged (or even self-expunging) later?”
(Answer: yes.) Anyway, a criminal case, like a human life, can have just one beginning and
one ending. Even if a revocation (sentencing) order marked a new “conclusion” to the
case, it would simultaneously prove the previous sentencing order was not that conclusion
after all. The result is still one $150 assessment.
The interpretation we have set out is not the only way to resolve any perceived
tension in the text of section 305. But it is the best of those that are open to this court.
The requirement to impose a $150 court cost upon “each conviction” and “each plea of
guilty” for “a felony of misdemeanor violation of state law” could be read as an instruction
to impose the $150 court cost once per offense instead of once per case. But our supreme court
seems to have adopted the per-case reading in Hayes v. State, 2020 Ark. 297. In Hayes, the
defendant was convicted of four felonies; instead of increasing an illegal $165 court cost to
$600, the supreme court reduced it to $150. Henderson was convicted of just one offense,
so the result for him would be the same either way.
II. Booking Fee
The State grounds its defense of the booking fees and bailiff fees in the same statute,
Ark. Code Ann. § 12-41-505:
(a)(1) Every person who is committed to the common jail of the
county by lawful authority for any criminal offense or misdemeanor, if he
or she is convicted, shall pay the expenses in carrying him or her to jail
and also for his or her support from the day of his or her initial
incarceration for the whole time he or she remains there.
(2) The expenses which accrue shall be paid as directed in the act
regulating criminal proceedings.
13
(b)(1) A person convicted of a felony or a Class A misdemeanor shall be
assessed a booking and administration fee of forty dollars ($40.00).
(2)(A) The booking and administration fee described in subdivision (b)(1)
of this section shall be assessed upon the conviction of a defendant and
included in the judgment of conviction entered by the court.
(B) If a court suspends imposition of sentence on a defendant or places
him or her on probation and does not enter a judgment of conviction, the
court shall impose the booking and administration fee as a cost.
Ark. Code Ann. § 12-41-505 (Supp. 2025)
The analysis for the booking fee tracks our analysis for court costs but is easier. The
analysis is similar because section 505(b) accommodates the same “conviction or not?”
wrinkle as section 16-10-305; the analysis is easier because section 505(b) lacks the
interpretive chaff we discussed above. The statute provides that the court should impose a
single booking fee one of two ways: If the guilt phase ends in a conviction, the court should
include it in the judgment; if probation or suspended imposition of sentence is imposed
without a conviction, the court should impose it as a cost.
There is a drafting hiccup to address. The booking fee is an assessment on “[a] person
convicted of a felony or a Class A misdemeanor.” Ark. Code Ann. § 12-41-505(b)(1). But
section 505(b)(2)(B) describes a defendant who hasn’t been convicted yet. The General
Assembly’s obvious intent was to impose the fee nonetheless. We interpret the reference in
section 505(b)(1) to a person “convicted of” a felony or Class A misdemeanor offense to
include a person who has “enter[ed] a plea of guilty or nolo contendere” to a like offense
without an adjudication of guilt under procedures like those in section 16-93-303.
Henderson was one of them. His March 2019 sentencing order indicates he was
placed on probation without an adjudication of guilt under Ark. Code Ann. §§ 16-93-301
14
et seq. The circuit court imposed court costs and a $1,000 fine. That was not a “conviction”
because, except in circumstances that don’t apply here, “a fine not exceeding [$3,500] or an
assessment of court costs” does not morph probation under those statutes into a conviction.
Ark. Code Ann. § 16-93-303(a)(1)(A)(ii). But under section 505(b)(2)(B), the circuit court
correctly assessed a $20 booking fee then. Because the text contemplates that the booking
fee will be assessed just once, however, the circuit court erred by imposing an additional
booking fee in each revocation judgment. 8
III. Bailiff Fee (Fine)
A. The State’s Mistaken Statutory Argument
Finally, the State defends the $100 bailiff fee imposed in each sentencing order as an
“expense[] in carrying [Henderson] to jail” under section 505(a). It argues that “bailiffs
were directed to transport” him to and from jail after each hearing. That may be true, or
reasonable to infer. But there is no proof whatsoever in the record. Compare Wickham v.
State, 2009 Ark. 357, 324 S.W.3d 344, and Jackson v. State, 2026 Ark. App. 91, where the
expenses of keeping a defendant in pretrial detention were imposed as pay-for-stay expenses
in the judgment.
It’s unclear whether this is the kind of expense that section 505(a) would permit the
circuit court to impose if there was a proper request by the State to impose it. The statute
dates to 1838, when a defendant would have been “carried to jail” under horsepower. Rev.
8
Echoing the language in section 505(b), our supreme court has interpreted section 505(a) to apply specifically to the pretrial stage. Wickham v. State, 2009 Ark. 357, 324 S.W.3d 344.
15
Stat. Ch. 81 § 5. The point is that the circuit court’s imposition of bailiff “fees” here cannot
be sustained under section 505(a) on this record. See Herrington v. State, 2025 Ark. App.
316, at 17, 717 S.W.3d 536, 546 (reversing a “PA COPY EXPENSE” in sentencing order
because “there is no statute authorizing a circuit court to order reimbursement to the
prosecuting attorney for copies made as a fee”). There is no evidence to support it as a cost,
and it looks like a fee. (It is called a fee, for one thing, and the amount doesn’t vary.) Our
supreme court has held that “fees may only be charged by public officials if authorized by a
statute or rule.” Aikens v. State, 368 Ark. 641, 645, 249 S.W.3d 788, 791 (2007). And even
if there were some statutory ambiguity (there isn’t), then we would resolve it in favor of
Henderson, not the State. E.g., Krol v. State, 2018 Ark. App. 512, 563 S.W.3d 586
(discussing the principle); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, 30–31 (2012) (“In statutory interpretation there is, for example,
the rule of lenity, whereby ambiguity in a criminal law is resolved in favor of the
defendant[.]”).
B. The Elephant in the Courtroom: Act 1741 of 2003 (Uncodified)
Though we have no problem rejecting the State’s statutory argument to uphold the
bailiff fee under section 505(a), we are duty bound—as a matter of judicial integrity and
transparency—to address an uncodified legislative act that neither the defendant’s attorney
nor the State’s attorney cited to us. Here it is:
16
Act 1741 of 2003. The 2000 census data reveals that “those counties” with a population in
that range numbered one: Miller County. As written, Act 1741 imposes a mandatory $100
fine (not a fee) that supports the compensation for circuit court bailiffs in Miller County.
Therein also lies the rub, and why we affirm the imposition of the bailiff fees (fines) under
the Act with, well, great reluctance.
We mentioned the Act is not codified. That might be because the General Assembly
decodified (without repealing) the “Local, Special, and Other Legislation” volume of the
Code in the same session it passed Act 1741. It did so in this brief, unexplained provision in
the middle of an unrelated act:
The following Arkansas Code sections are removed from the Arkansas Code.
This removal does not constitute the repeal of the underlying original acts or
other sections of the Arkansas Code. It is the intent of the General Assembly
that by this section Title 29 of the Arkansas Code of 1987 Annotated shall no
longer be considered a current title within the Arkansas Code and Title 29
may now be used for other purposes: 29-1-101, 29-2-101 — 29-2-106, 29-3-101 — 29-3-106, 29-20-101 — 29-20-139, 29-30-101 — 29-30-104, 29-30-113 — 29-30-189, 29-30-191, and 29-31-101 — 29-31-120.
Act 1473 of 2003, § 69.
17
A summary of legislation from that session did, however, hint where Act 1741 would
have been placed:
Bureau of Legis. Research, Summary of Action on General Legislation by the 84th General
Assembly of the State of Arkansas 114 (2003).
An act can be effective even if it is not codified. For example, the Code Revision
Commission “shall not be required to codify . . . [l]ocal, special, or temporary language[.]”
Ark. Code Ann. § 1-2-303(e)(2)(L) (Supp. 2025) (emphasis added). Why our concern?
Because the same kind of legislation can cast a shadow over Amendment 14 to the Arkansas
Constitution, which prohibits local and special legislation. “The General Assembly shall not
pass any local or special act. This amendment shall not prohibit the repeal of local or special
acts.” Ark. Const. amend. 14 (1874). Some cases also raise one’s judicial brow. Like Act
1741, the effect of the enactment discussed in Littleton v. Blanton was narrowed to a single
county (Poinsett) by population in a particular census:
Act 616 can never apply to any county other than Poinsett County.
The announced purpose of the Act is to enable a city of the first class but of
limited financial means and lacking a local attorney an alternative means of
creating a municipal court; but a population classification applying only to a
county of not less than 26,500 nor more than 28,000 according to the 1970
Federal Census is arbitrary and has no reasonable relationship to cities of
limited financial means or lacking a local attorney. According to the 1970
census, Marked Tree had a population of 3,208; there were 32 municipalities
in Arkansas with a population of between 2,500 and 5,000 in 1970. There
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could well have been cities of limited financial means and lacking a local
attorney in counties other than Poinsett County.
With respect to the so-called administration of justice exception, we
announce that statutes relating to the administration of justice will no longer
be held per se to be neither local or special within the meaning of Amendment
14. Of all areas of legislation, the administration of justice above all should
be immune to the evils of discriminatory laws and pork-barreling which
Amendment 14 was designed to end. While the Legislature has authority to
establish courts within the limits prescribed by the Constitution, it should
strive to create a judicial system throughout the State which is as uniform as
practical.
281 Ark. 395, 404–05, 665 S.W.2d 239, 244 (1984).
And in Honorable v. Hyde, 2024 Ark. 114, 689 S.W.3d 660, our supreme court cited
Littleton as it gave Amendment 14 a means-what-it-says application. But it also cited Foster
v. Jefferson County Board of Election Commissioners, which sustained a statute that filtered by
census to a single county on the principle that a classification like that is not necessarily local
or special if it is “not arbitrary and bears a reasonable relation to the purpose of the law.”
328 Ark. 223, 226, 944 S.W.2d 93, 94 (1997).
Here, Act 1741 doesn’t explain why it applies only to Miller County; and neither
Henderson’s counsel nor the State ventured an explanation. We raise Act 1741 with
hesitation because these facts present the possibility that the State deliberately chose not to
argue it. The State did not represent, as Henderson’s counsel did, that it was unable to find
authority for a bailiff fee (it’s a fine); it simply argued we should sustain the bailiff fines as
costs under a different, generally applicable statute. Whether the State was mum by choice
or simply unable to locate an uncodified needle in the legislative haystack, Act 1741 remains
an enactment of the General Assembly that has not been repealed so far as we can tell. Our
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supreme court has held that “every act carries a strong presumption of constitutionality.”
McGhee v. Ark. State Bd. of Collection Agencies, 375 Ark. 52, 58, 289 S.W.3d 18, 23–24
(2008). A rebuttable presumption. But where no party has tried to rebut that presumption,
it carries the day, today.
That is not all. We must still decide whether the Act applies only at the original
sentencing or at revocation sentencings, too (another complication). Here again is the Act:
The instruction to assess a “mandatory fine” of $100 “at the time of sentencing”—
unlike the other fee and cost statutes we have discussed—reads like a penalty that must be
assessed at revocation, or revocations. As we have said, those are sentencing proceedings.
Not having had the benefit of any argument from either side of the V., we likewise
reluctantly affirm the imposition of the fine upon each revocation, to be consistent with all
that we have previously laid out with particularity. So the bailiff fines of $500 may stand.
* * *
On court cost and booking fees, the State’s position thwarts the recent policy
expressions from the General Assembly requiring uniformity, the case law applying
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fundamental criminal-law terms and tenets, and a plain and common-sensical reading of
statutes that are topically related. At minimum, it is not a uniform practice in the circuit
courts to impose additional court costs and booking fees at revocation. Even as the
legislature has strengthened other penalties, it has consistently moved to reduce reliance on
criminal fees and costs. It codified that intent in section 16-10-301(b). Section 305 itself
provides that “no district court or circuit court shall assess or collect any other court costs
other than those authorized by this act, unless specifically provided by state law.” Ark. Code
Ann. § 16-10-305(d).
Just last year, the General Assembly found the following as it created the Justice
System Fee Task Force:
(A) The justice system in Arkansas imposes an excessive number of fees on
individuals charged with or convicted of crimes or otherwise involved in the
justice system;
(B) The collective impact of these fees on the individuals they are imposed
upon substantially inhibits their ability to move forward with their lives in a
constructive manner;
(C) Many of the fees in the justice system no longer serve a productive
purpose; and
(D) Altering the structure of or eliminating many of the fees in the justice
system would serve the people of Arkansas by reducing recidivism and
therefore improving public safety.
Act 989 of 2025, § 14(a)(1).
Those findings are for the General Assembly to make. Regardless, the statutes in
play are clear enough. The judgment is reversed in part and remanded to enter an amended
$150 court cost, and a $20 booking fee. On the bailiff fines, we—with hesitation—uphold
them under the uncodified and elusive Act 1741. The Act’s constitutionality is not a
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question that a party has presented, so we express no holding on it. Instead, we let it hang.
The $500 aggregate bailiff fine is affirmed.
Reversed in part and remanded; affirmed in part.
MURPHY, J., agrees.
KLAPPENBACH, C.J., concurs.
Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.
Tim Griffin, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.
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