SWALL Bulletin Summer 2001

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The New Mexico legislature opened its regular 2001 session on January 16 and adjourned on Marched 17. Listed here are a few of the bills passed by the legislature and signed into law by the governor. For a full copy of the Highlights of the Forty-Fifth Legislature, First Session, expected to be published in July, please contact the New Mexico Legislative Council Service, 411 State Capitol, Santa Fe NM 87501; 505-986-4600, or visit our web site at www.legis.state.nm.us.

Corrections

Senate Judiciary Committee Substitute for Senate Bill 102 (Chapter 33) and House Judiciary Committee Substitute for House Bill 133 (Chapter 115) are identical bills that regulate contracts for the provision of telecommunications services to prisoners in public and private prisons and jails. Contracts must be awarded to an entity that can satisfy technical requirements for telecommunications service and provide the lowest cost of service. Commissions for the operator of the prison or jail based upon calls billed are prohibited.

House Judiciary Committee Substitute for House Bills 124, 274 and 413 (Chapter 169) enacts the Privately Operated Correctional Facilities Oversight Act. The secretary of corrections is given authority to supervise the placement of out-of-state prisoners in privately operated prisons and jails in New Mexico, including reviewing all contracts and proposed contracts for housing ten or more out-of-state prisoners and inspecting and monitoring these facilities. Such private prisons and jails must meet certain minimum standards before accepting out-of-state prisoners, must obtain and maintain accreditation from the American Correctional Association, and work closely with local and state authorities in the event of a disturbance or escape.

Courts

Senate Bill 337 (Chapter 29) allows a person convicted of a criminal offense, who claims that DNA evidence not available at the time of his initial trial will establish his innocence, to petition the district court in which he was convicted to set aside his judgment and sentence or grant him a new trial. The petitioner must comply with several conditions in order for the district court to accept the petition and there is only a one year window of opportunity for petitioners to apply, from July 1, 2001 to July 1, 2002.

House Bill 694 (Chapter 128) requires the court to explain to the jury at the beginning of a sentencing hearing for a capital felony case, subsequent to a verdict by the jury that the defendant is guilty of a capital felony, that a sentence of life imprisonment means that the defendant would be eligible for parole in thirty years. Senate Bill 796 (Chapter 98) allows the attorney general to assist grand juries when his jurisdiction is involved and requires the district attorney or his assistant to assist the grand jury in response to a citizen's grand jury petition pursuant to Article 2, Section 14 of the Constitution of New Mexico. The bill also prohibits a grand jury from issuing a critical report of what it has investigated without also returning an indictment or an accusation for removal.

Senate Bill 584 (Chapter 77) permits more individuals to avail themselves of the opportunity of going to "small claims court" by increasing the jurisdictional amount for civil actions in metropolitan court and magistrate court, from seven thousand five hundred dollars ($7,500) to ten thousand dollars ($10,000).

Criminal Law

House Bill 17 (Chapter 2) makes it a criminal offense for a person to intentionally possess an obscene visual or print medium that depicts a sexual act involving a child. A person convicted of intentionally possessing child pornography is guilty of a fourth degree felony.

House Judiciary Committee Substitute for House Bills 317 and 347 (Chapter 138) creates the new criminal offense of theft of identity, that is, willfully obtaining, recording or transferring personal identifying information of another person without the authorization or consent of that person and with the intent to defraud that person or another. A person who commits theft of identity is guilty of a misdemeanor. The court is authorized to order that restitution be made to the victim of the crime and, if necessary, order that public records be corrected.

Gaming

The legislature through Senate Joint Resolution 37 gave its approval to new state-tribal class III gaming compacts. The new agreements, which were proposed to the legislature by eleven gaming tribes and the governor, differ in several respects from the compacts approved in 1997. Among the chief differences are the length of the compact, the percentage of gaming revenue the tribes pay to the state and the regulatory fees paid by the tribes to the state. Ratification of new compacts is expected to begin after the state and gaming tribes settle claims still pending over compliance with the 1997 compact and revenue sharing agreement.

The legislature also approved Senate Bill 797, as amended (Chapter 334), which expands the allowable number of gaming machines at horse racetracks from 300 to 600. In addition, a track that does not wish to offer 600 gaming machines may lease the right to operate its additional machines to another track, although no single track may operate more than 750 machines. This law takes effect after approval of new tribal gaming compacts.

Public Safety

House Judiciary Committee Substitute for House Bill 277 (Chapter 219) enacts the Concealed Handgun Carry Act. Effective January 1, 2002, the department of public safety is authorized to issue a concealed handgun license to an individual who successfully applies to lawfully carry a concealed, loaded handgun in New Mexico. Applicants for a concealed handgun license must satisfy criteria regarding their fitness to receive the license, undergo a national criminal background check and complete a firearms training course approved by the department of public safety. Licenses are valid for a period of one year and an individual is required to renew his concealed handgun license in a timely manner. The department of public safety is charged with adopting rules to implement the provisions of the act. Those rules will include provision of authority for a private property owner to disallow the carrying of a concealed, loaded handgun on his property and provision of authority for a county or municipality to prohibit the carrying of a concealed loaded handgun within the limits of the county or municipality.

Utility Deregulation

Implementation of New Mexico's Electric Utility Restructuring Act of 1999 is delayed for five years by Senate Bill 266 (Chapter 5). The bill also allows public utilities to invest in generating plants that will not be subject to public regulation commission regulation for sale of electricity outside the state and requires the public regulation commission to allow a utility to amortize the unrecovered costs of decommissioning coal mines serving coal-fired generating plants and to recover costs through a nonbypassable wires charges.

Water

House Bill 127 (Chapter 240) and Senate Bill 99 (Chapter 281) amend the Water Quality Act to require the water quality control commission to adopt water quality standards that are based on "credible scientific evidence".

House Bill 403 (Chapter 148) requires "non-transient non-community" water systems to test for arsenic, fluoride and radionuclides and to report and notify consumers of water contamination and possible health hazards when a contaminant is found to exceed EPA and state maximum contaminant levels. Under previous requirements of the federal Safe Drinking Water Act and New Mexico Drinking Water regulations, only community water systems were required to test and notify for arsenic, fluoride and radionuclides. Consumers of "non-transient non-community" public water systems typically consume smaller quantities of water from those systems and by extension have reduced exposure and reduced risk of adverse health effects. EPA recently finalized a new arsenic rule requiring non-transient non-community water systems to test and report for arsenic making sampling and reporting requirements for non-transient non-community water systems more comparable to community water systems. There are currently 152 non-transient non-community water systems in New Mexico, 59 of which are elementary, middle and high schools.

House Bill 445 (Chapter 143) will allow the state engineer's office (SEO) to administratively enforce water laws and permit conditions without bringing suit through the judicial system. According to the SEO, there must be a method to quickly terminate illegal water use. Anyone cited by a compliance order will have due process rights, including a public hearing and appeal to through the judicial system. A compliance order for over-diversion or illegal diversion of water may require repayment with an amount of water up to double the amount of illegal use and require the installation of a measuring device prior to any future diversion of water. The individual named in the compliance order may appeal the alleged violation through a public hearing. The compliance order becomes final either 30 days after issuance, after a public hearing or after an appeal, whichever is the last action. A civil penalty of up to $100 per day for a violation of a final compliance order is included. If after the final compliance order is issued and the individual does not comply, the SEO may file a civil action to enforce the order.

Senate Bill 169 (Chapter 164) establishes a water advisory board that prioritizes the projects for funding by the legislature, similar to the existing finance authority project funding system. A trust fund is created from which annual distributions are made into the project fund at a level that will allow the trust to keep growing. An appropriation to the fund made in another bill was vetoed by the governor, so that future action will be needed to get the fund started.

Senate Bill 602 (Chapter 207) adds a new section to the municipal code to authorize municipalities to restrict the drilling of new domestic water wells, except for property zoned as agricultural, that is within three hundred feet of the municipal water system distribution lines. The municipality may not refuse a domestic well permit if the cost to the applicant of connecting to the distribution system exceeds the cost of drilling the well, and the municipality must provide service within ninety days. The municipality must file the ordinance with the state engineer's office and notify the SO of all permit denials for domestic wells. The applicant may appeal the decision of the municipality to the district county court.