Opinion No. ( 1999 )

The Honorable Mike Huckabee Office of the Governor State Capitol Little Rock, AR 72201

Dear Governor Huckabee:

This is in response to your request for an opinion regarding Act 1133 of 1999, which abolished the Retired Law Enforcement Officers Concealed Weapons Board ("Board"). See Acts 1999, No. 1133, § 1. The Act also repealed A.C.A. § 12-15-203, which created the Board and which required that the Board promulgate regulations governing the carrying of concealed weapons by retired law enforcement officers. A.C.A. § 12-15-203(a) and (b) (Repl. 1995). You have asked how this repeal affects the rules and regulations promulgated by the Board.

RESPONSE

Question — Can the rules and regulations exist after the board has beenabolished, or do the rules and regulations fall by virtue of the boardhaving been abolished?

It is my opinion that the rules and regulations do not continue in effect. This is in accordance with the general precept that "[t]he validity and effectiveness of any agency's rules depend on the statute creating that agency and giving it rule-making power." Hija Lee Yu v.District of Columbia Rental Housing Comm., 505 A.2d 1310, 131 (D.C.Ct.App. 1986). See also 2 Am. Jur. 2d Administrative Law § 225 ("[w]hen the statute creating the agency and giving it rulemaking power expires, the rules become null and void[;]") and Holmes v. Division of Retirement,418 So. 2d 269, 270 (Fla.App. 1982) (an administrative rule "expires with the repeal of the statute from which it gains its life.")

It thus seems clear that the repeal of § 12-15-203 and the abolition of the Board have the effect of nullifying the Board's rules and regulations. It should be noted, however, that A.C.A. § 12-15-202(b)(1) (regarding retired law enforcement officers' eligibility to carry a concealed handgun), remains in effect, including subparagraph (F) thereof which requires written authorization from the county or city chief law enforcement officer.

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:EAW/cyh