FROM THE JEFFERSON COUNTY CIRCUIT COURT [40CV-16-41]
HONORABLE JODI RAINES DENNIS, JUDGE
F. WYNNE, ASSOCIATE JUSTICE
Halfacre appeals from an order of the Jefferson County
Circuit Court denying his motion to proceed in forma pauperis
and ordering the Arkansas Department of Correction (ADC) to
withhold the applicable filing fee from his inmate account.
He contends on appeal that his Veterans' Administration
disability benefits cannot be counted as income in
determining his indigency status pursuant to federal law.
While we see no error in including his benefits as part of
the indigency determination, we hold that applicable federal
law prohibits the circuit court from ordering that the filing
fee be paid from Halfacre's trust account, as the
proceeds of the account are derived entirely from his
disability benefits. Accordingly, we affirm in part and
reverse and remand in part.
was found guilty of aggravated robbery and sentenced as a
habitual offender to life imprisonment. His conviction was
affirmed on appeal. Halfacre v. State, 292 Ark. 329,
731 S.W.2d 182 (1987). In July 2015, Halfacre submitted a pro
se petition for a writ of habeas corpus and a petition to
proceed in forma pauperis to the Lincoln County Circuit
Court. The circuit court entered an order denying
Halfacre's in forma pauperis petition. The July 2015
order denying Halfacre's pro se petition to proceed in
forma pauperis demonstrates that the circuit court found that
Halfacre was not financially indigent and assessed a filing
fee pursuant to Arkansas Code Annotated section 16-68-601(a)
(Repl. 2005), which authorizes a court to assess a partial
filing fee for civil actions filed by inmates based on twenty
percent of the inmate's income in the preceding six
months. The order reflects that Halfacre's inmate trust
account contained deposits totaling $1, 639.52 within six
months prior to filing his in forma pauperis petition, and an
initial "partial fee" of $327.90 was assessed,
which represented twenty percent of his total deposits in
this prior six-month period. The circuit court ordered that
an initial "partial filing fee" of $165.00 be paid,
and further instructed the ADC to withhold money from
Halfacre's account until the statutory filing fee of
$165.00 was paid in full. See Ark. Code Ann. §
16-68-601(b) (authorizing the circuit court to order that
funds be withdrawn by the ADC to ensure payment of court
the entry of the order, Halfacre filed a motion for
reconsideration. The motion was never ruled on by the circuit
court, and was deemed denied thirty days after it was filed.
Ark. R. App. P. Civ.-4(b)(1) (2016). The circuit court
granted Halfacre's motion to pursue this appeal in forma
contends that his motion to pursue his petition for writ of
habeas corpus in forma pauperis should have been granted
because his disability benefits are "protected"
pursuant to 38 U.S.C. § 5301, and those benefits are his
sole source of income. Section 5301 provides, in relevant part,
Payments of benefits due or to become due under any law
administered by the Secretary shall not be assignable except
to the extent specifically authorized by law, and such
payments made to, or on account of, a beneficiary shall be
exempt from taxation, shall be exempt from the claim of
creditors, and shall not be liable to attachment, levy, or
seizure by or under any legal or equitable process whatever,
either before or after receipt by the beneficiary.
is no assignment of the benefits here; nor is there any
assertion that the benefits have been subject to taxation or
the claim of a creditor. Thus, it is necessary for us to
determine whether the circuit court's order constitutes
an "attachment, levy, or seizure."
is defined as "the seizure of a person's property to
secure a judgment or to be sold in satisfaction of a
judgment." Black's Law Dictionary 152 (10th
ed. 2014). "Levy" is defined as "to impose or
assess by legal authority." Id. at 1047.
"Seizure" is defined as "the act or an
instance of taking possession of a person or property by
legal right or process." Id. at 1564.
mere act of including VA disability benefits as available
money in determining a litigant's indigency status does
not subject the funds to attachment, levy, or seizure. The
common thread running through the definitions of those three
terms is an involuntary relinquishment of the property at
issue. Recognizing the funds as being available does not
constitute an involuntary relinquishment of the funds. Thus,
we hold that the circuit court did not err in including
appellant's disability payments in the determination of
his indigency status.
determining Halfacre not to be indigent is not all the order
on appeal did. In addition to the indigency determination,
the order directed the director of the Department of
Correction, or her designee, to collect funds from
Halfacre's inmate trust account to pay the statutory
filing fee, in accordance with Act 340 of 1997, which is
codified at Arkansas Code Annotated section 16-68-601.
case, the application of section 16-68-601 violates 38 U.S.C.
section 5301, as the order operates as a levy or seizure of
Halfacre's disability benefits. The mechanism utilized in
Arkansas Code Annotated section 16-68-601(b), whereby the ADC
is required to withdraw an inmate's funds and remit them
to the appropriate clerk, is key to our conclusion on this
issue because, while the benefits may be properly included in
the determination of indigency without running afoul of the
federal statute, Halfacre may not be obligated by court order
to use his disability funds to pay the filing fee. As it
appears Halfacre may elect to utilize his benefits to pay the
filing fee, he must be treated as any other nonincarcerated
party regarding the source of the funds for the filing fee.
Accordingly, we affirm the indigency determination by the
circuit court and reverse and remand on the application of
circuit court is hereby ordered to enter an order ...