Opinion No. ( 2006 )

The Honorable Becky Lynn State Representative P.O. Box 450 Heber Springs, Arkansas 72543

Dear Representative Lynn:

This is in response to your request for an opinion on whether a nonprofit corporation organized under the Arkansas Nonprofit Corporation Act (1963), A.C.A. §§ 4-28-201 to -206 and -209 to -223 (Repl. 1991 and Supp. 1993) (the "1963 Act"), which is recognized as a regional tourist promotion agency under A.C.A. §§ 15-11-401 to -410 (Repl. 1994), must elect, under A.C.A. § 4-33-1701 (Supp. 1993), to be governed by the Arkansas Nonprofit Corporation Act of 1993, A.C.A. §§ 4-33-101 to -1707 (Supp. 1993) (the "1993 Act"), in order to maintain its recognition as a regional tourist promotion agency.

In my opinion, the answer is "no." Although A.C.A. § 15-11-401(1) formerly defined a regional tourist promotion agency as a corporation that, among other things, is organized under the 1963 Act, A.C.A. §15-11-401(1) was amended by section 49 of Act 1296 of 1995, effective July 28, 1995, to provide in relevant part as follows:

"Regional tourist promotion agency" means a corporation organized pursuant to the provisions of the Arkansas Nonprofit Corporation Act, § 4-28-201 et seq., or the Arkansas Nonprofit Corporation Act of 1993, § 4-33-101 et seq. . . .

Section 49 of Act 1296 of 1995 constitutes a clear legislative determination, and it is my opinion, that corporations organized under either the 1963 Act or the 1993 Act are eligible to be recognized as regional tourist promotion agencies. The fact that the legislature amended A.C.A. § 15-11-401(1) to include corporations organized under the 1993 Act does not, in my opinion, evidence a legislative intent that corporations organized under the 1963 Act must elect to be governed by the 1993 Act in order to maintain their status as regional tourist promotion agencies, particularly in view of the fact that the legislature retained the reference in A.C.A. § 15-11-401(1) to corporations organized under the 1963 Act. It might be noted in this regard that the legislature did not amend other sections of A.C.A. §§ 15-11-401 to -410 that continue to specify that regional tourist promotion agencies must be organized under the 1963 Act.¹ These omissions, in my opinion, negate the proposition that the legislature intended to require regional tourist promotion agencies organized under the 1963 Act to elect to be governed by the 1993 Act.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General J. Madison Barker.

Sincerely,

WINSTON BRYANT Attorney General

WB:JMB/cyh

¹ See A.C.A. §§ 15-11-402 and -403(a)(1) (Repl. 1994).