0001| HOUSE BILL 375
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0002| 42ND LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION,
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0003| 1996
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0004| INTRODUCED BY
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0005| TERRY T. MARQUARDT
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0006|
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0007|
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0008|
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0009|
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0010|
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0011| AN ACT
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0012| RELATING TO UNEMPLOYMENT COMPENSATION; PROVIDING FOR VOLUNTARY
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0013| WITHHOLDING OF FEDERAL INCOME TAX.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 51-1-8 NMSA 1978 (being Laws 1936
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0017| (S.S.), Chapter 1, Section 6, as amended) is amended to read:
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0018| "51-1-8. CLAIMS FOR BENEFITS.--
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0019| A. Claims for benefits shall be made in accordance
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0020| with such regulations as the secretary may prescribe. Each
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0021| employer shall post and maintain printed notices, in places
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0022| readily accessible to employees, concerning their rights to file
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0023| claims for unemployment benefits upon termination of their
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0024| employment. Such notices shall be supplied by the division to
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0025| each employer without cost to him.
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0001| B. A representative designated by the secretary as a
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0002| claims examiner shall promptly examine the application and each
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0003| weekly claim and, on the basis of the facts found, shall
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0004| determine whether the claimant is unemployed, the week with
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0005| respect to which benefits shall commence, the weekly benefit
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0006| amount payable, the maximum duration of benefits, whether the
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0007| claimant is eligible for benefits pursuant to Section 51-1-5
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0008| NMSA 1978 and whether the claimant shall be disqualified
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0009| pursuant to Section 51-1-7 NMSA 1978. With the approval of the
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0010| secretary, the claims examiner may refer, without determination,
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0011| claims or any specified issues involved therein that raise
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0012| complex questions of fact or law to a hearing officer for the
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0013| division for a fair hearing and decision in accordance with the
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0014| procedure described in Subsection D of this section. The claims
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0015| examiner shall promptly notify the claimant and any other
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0016| interested party of the determination and the reasons therefor.
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0017| Unless the claimant or any such interested party, within fifteen
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0018| calendar days after the date of notification or mailing of such
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0019| determination, files an appeal from such determination, such
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0020| determination shall be the final decision of the division;
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0021| provided that the claims examiner may reconsider a nonmonetary
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0022| determination if additional information not previously available
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0023| is provided or obtained or whenever he finds an error in the
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0024| application of law has occurred, but no redetermination shall be
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0025| made more than twenty days from the date of the initial
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0001| nonmonetary determination. Notice of a nonmonetary
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0002| redetermination shall be given to all interested parties and
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0003| shall be subject to appeal in the same manner as the original
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0004| nonmonetary determination. If an appeal is pending at the time
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0005| a redetermination is issued, the appeal, unless withdrawn, shall
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0006| be treated as an appeal from such redetermination.
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0007| C. In the case of a claim for waiting period credit
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0008| or benefits, "interested party", for purposes of determinations
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0009| and adjudication proceedings and notices thereof, means:
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0010| (1) in the event of an issue concerning a
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0011| separation from work for reasons other than lack of work, the
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0012| claimant's most recent employer or most recent employing unit;
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0013| (2) in the event of an issue concerning a
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0014| separation from work for lack of work, the employer or employing
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0015| unit from whom the claimant separated for reasons other than
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0016| lack of work if he has not worked and earned wages in insured
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0017| work or bona fide employment other than self-employment in an
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0018| amount equal to or exceeding five times his weekly benefit
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0019| amount; or
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0020| (3) in all other cases involving the allowance
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0021| or disallowance of a claim, the secretary, the claimant and any
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0022| employing unit directly involved in the facts at issue.
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0023| D. Upon appeal by any party, a hearing officer
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0024| designated by the secretary shall afford the parties reasonable
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0025| opportunity for a fair hearing to be held de novo, and the
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0001| hearing officer shall issue findings of fact and a decision
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0002| which affirms, modifies or reverses the determination of the
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0003| claims examiner or tax representative on the facts or the law,
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0004| based upon the evidence introduced at such hearing, including
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0005| the documents and statements in the claim or tax records of
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0006| the [department] division. All hearings shall be held in
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0007| accordance with regulations of the secretary and decisions
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0008| issued promptly in accordance with time lapse standards
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0009| promulgated by the secretary of the United States department of
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0010| labor. The parties shall be duly notified of the decision,
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0011| together with the reasons therefor, which shall be deemed to be
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0012| the final decision of the department, unless within fifteen days
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0013| after the date of notification or mailing of such decision
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0014| further appeal is initiated pursuant to Subsection H of this
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0015| section.
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0016| E. Except with the consent of the parties, no
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0017| hearing officer or members of the board of review, established
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0018| in Subsection F of this section, or secretary shall sit in any
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0019| administrative or adjudicatory proceeding in which:
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0020| (1) either of the parties is related to him by
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0021| affinity or consanguinity within the degree of first cousin;
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0022| (2) he was counsel for either party in that
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0023| action; or
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0024| (3) he has an interest which would prejudice
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0025| his rendering an impartial decision.
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0001| The secretary, any member of the board of review or appeal
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0002| tribunal hearing officer shall withdraw from any proceeding in
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0003| which he cannot accord a fair and impartial hearing. Any party
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0004| may request a disqualification of any appeal tribunal hearing
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0005| officer or board of review member by filing an affidavit with
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0006| the board of review or appeal tribunal promptly upon discovery
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0007| of the alleged grounds for disqualification, stating with
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0008| particularity the grounds upon which it is claimed that the
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0009| person cannot be fair and impartial. The disqualification shall
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0010| be mandatory if sufficient factual basis is set forth in the
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0011| affidavit of disqualification. If a member of the board of
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0012| review is disqualified or withdraws from any proceeding, the
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0013| remaining members of the board of review may appoint an appeal
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0014| tribunal hearing officer to sit on the board of review for the
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0015| proceeding involved.
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0016| F. There is established within the department for
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0017| the purpose of providing higher level administrative appeal and
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0018| review of determinations of a claims examiner or decisions
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0019| issued by a hearing officer pursuant to Subsection B or D of
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0020| this section a "board of review" consisting of three members.
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0021| Two members shall be appointed by the governor with the consent
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0022| of the senate. The members so appointed shall hold office at
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0023| the pleasure of the governor for terms of four years. One
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0024| member appointed by the governor shall be a person who, on
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0025| account of his previous vocation, employment or affiliation, can
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0001| be classed as a representative of employers, and the other
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0002| member appointed by the governor shall be a person who, on
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0003| account of his previous vocation, employment or affiliation, can
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0004| be classed as a representative of employees. The third member
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0005| shall be an employee of the department appointed by the
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0006| secretary who shall serve as chairman of the board. Either
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0007| member of the board of review appointed by the governor who has
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0008| missed two consecutive meetings of the board may be removed from
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0009| the board by the governor. Actions of the board shall be taken
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0010| by majority vote. If a vacancy on the board in a position
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0011| appointed by the governor occurs between sessions of the
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0012| legislature, the position shall be filled by the governor until
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0013| the next regular legislative session. The board shall meet at
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0014| the call of the secretary. Members of the board appointed by
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0015| the governor shall be paid per diem and mileage in accordance
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0016| with the Per Diem and Mileage Act for necessary travel to attend
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0017| regularly scheduled meetings of the board of review for the
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0018| purpose of conducting the board's appellate and review duties.
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0019| G. The board of review shall hear and review all
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0020| cases appealed in accordance with Subsection H of this section.
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0021| The board of review may modify, affirm or reverse the decision
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0022| of the hearing officer or remand any matter to the claims
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0023| examiner, tax representative or hearing officer for further
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0024| proceedings. Each member appointed by the governor shall be
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0025| compensated at the rate of fifteen dollars ($15.00) for each
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0001| case reviewed up to a maximum compensation of twelve thousand
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0002| dollars ($12,000) in any one fiscal year.
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0003| H. Any party aggrieved by a final decision of a
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0004| hearing officer may file, in accordance with regulations
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0005| prescribed by the secretary, an application for appeal and
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0006| review of such decision with the secretary. The secretary shall
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0007| review the application and shall, within fifteen days after
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0008| receipt of the application, either affirm the decision of the
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0009| hearing officer, remand the matter to the hearing officer
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0010| or the claims examiner for an additional hearing or refer the
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0011| decision to the board of review for further review and decision
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0012| on the merits of the appeal. If the secretary affirms the
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0013| decision of the hearing officer, that decision shall be the
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0014| final administrative decision of the department and any appeal
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0015| therefrom [must] shall be taken to the district court in
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0016| accordance with the provisions of Subsections M and N of this
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0017| section. If the secretary remands a matter to a hearing officer
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0018| for an additional hearing, judicial review shall be permitted
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0019| only after issuance of a final administrative decision. If the
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0020| secretary refers the decision of the hearing officer to the
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0021| board of review for further review, the board's decision on the
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0022| merits of the appeal will be the final administrative decision
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0023| of the department, which may be appealed to the district court
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0024| in accordance with the provisions of Subsections M and N of this
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0025| section. If the secretary takes no action within fifteen days
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0001| of receipt of the application for appeal and review, the
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0002| decision will be promptly scheduled for review by the board of
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0003| review as though it had been referred by the secretary. The
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0004| secretary may request the board of review to review a decision
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0005| of a hearing officer that the secretary believes to be
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0006| inconsistent with the law or with applicable rules of
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0007| interpretation or that is not supported by the evidence, and the
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0008| board of review shall grant the request if it is filed within
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0009| fifteen days of the issuance of the decision of the hearing
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0010| officer. The secretary may also direct that any pending
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0011| determination or adjudicatory proceeding be removed to the board
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0012| of review for a final decision. If the board of review holds a
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0013| hearing on any matter, the hearing shall be conducted by a
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0014| quorum of the board of review in accordance with regulations
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0015| prescribed by the secretary for hearing appeals. The board of
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0016| review shall promptly notify the interested parties of its
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0017| findings of fact and decision. A decision of the board of
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0018| review on any disputed matter reviewed and decided by it shall
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0019| be based upon the law and the lawful rules of interpretation
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0020| issued by the secretary, and it shall be the final
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0021| administrative decision of the department, except in cases of
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0022| remand. If the board of review remands a matter to a hearing
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0023| officer, claims examiner or tax representative, judicial review
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0024| shall be permitted only after issuance of a final administrative
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0025| decision.
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0001| I. Notwithstanding any other provision of this
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0002| section granting any party the right to appeal, benefits shall
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0003| be paid promptly in accordance with a determination or a
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0004| decision of a claims examiner, hearing officer, secretary, board
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0005| of review or a reviewing court, regardless of the pendency of
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0006| the period to file an appeal or petition for judicial review
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0007| that is provided with respect thereto in Subsection D or M of
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0008| this section or the pendency of any such filing or petition
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0009| until such determination or decision has been modified or
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0010| reversed by a subsequent decision. The provisions of this
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0011| subsection shall apply to all claims for benefits pending on the
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0012| date of its enactment.
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0013| J. If a prior determination or decision allowing
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0014| benefits is affirmed by a decision of the department, including
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0015| the board of review or a reviewing court, such benefits shall be
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0016| paid promptly regardless of any further appeal which may
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0017| thereafter be available to the parties, and no injunction,
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0018| supersedeas, stay or other writ or process suspending the
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0019| payment of such benefits shall be issued by the secretary or
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0020| board of review or any court, and no action to recover such
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0021| benefits paid to a claimant shall be taken. If a determination
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0022| or decision allowing benefits is finally modified or reversed,
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0023| the appropriate contributing employer's account will be relieved
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0024| of benefit charges in accordance with Subsection B of Section
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0025| 51-1-11 NMSA 1978.
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0001| K. The manner in which disputed claims shall be
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0002| presented, the reports thereon required from the claimant and
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0003| from employers and the conduct of hearings and appeals shall be
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0004| in accordance with rules prescribed by the secretary for
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0005| determining the rights of the parties, whether or not such rules
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0006| conform to common law or statutory rules of evidence and other
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0007| technical rules of procedure. A hearing officer or the board of
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0008| review may refer to the secretary for interpretation any
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0009| question of controlling legal significance, and the secretary
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0010| shall issue a declaratory interpretation, which shall be binding
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0011| upon the decision of the hearing officer and the board of
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0012| review. A full and complete record shall be kept of all
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0013| proceedings in connection with a disputed claim. All testimony
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0014| at any hearing upon a disputed claim shall be recorded but need
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0015| not be transcribed unless the disputed claim is appealed to the
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0016| district court.
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0017| L. Witnesses subpoenaed pursuant to this section
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0018| shall be allowed fees at a rate fixed by the secretary. Such
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0019| fees and all administrative expenses of proceedings involving
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0020| disputed claims shall be deemed a part of the expense of
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0021| administering the Unemployment Compensation Law.
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0022| M. Any determination or decision of a claims
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0023| examiner or hearing officer or by a representative of the tax
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0024| section of the department in the absence of an appeal therefrom
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0025| as provided by this section shall become final fifteen days
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0001| after the date of notification or mailing thereof, and judicial
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0002| review thereof shall be permitted only after any party claiming
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0003| to be aggrieved thereby has exhausted his remedies as provided
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0004| in Subsection H of this section. The division and any employer
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0005| or claimant who is affected by the decision shall be joined as a
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0006| party in any judicial action involving any such decision. All
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0007| parties shall be served with an endorsed copy of the petition
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0008| within thirty days from the date of filing and an endorsed copy
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0009| of the order granting the petition within fifteen days from
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0010| entry of the order. Service on the department shall be made on
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0011| the secretary or his designated legal representative either by
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0012| mail with accompanying certification of service or by personal
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0013| service. The division may be represented in any such judicial
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0014| action by an attorney employed by the department or, when
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0015| requested by the secretary, by the attorney general or any
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0016| district attorney.
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0017| N. The final decision of the secretary or board of
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0018| review upon any disputed matter may be reviewed both upon the
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0019| law, including the lawful rules of interpretation issued by the
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0020| secretary, and the facts by the district court of the county
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0021| wherein the person seeking the review resides upon certiorari,
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0022| unless it is determined by the district court where the petition
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0023| is filed that, as a matter of equity and due process, venue
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0024| should be in a different county. For the purpose of such
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0025| review, the division shall return on such certiorari the reports
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0001| and all of the evidence heard by it on any such reports and all
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0002| the papers and documents in its files affecting the matters and
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0003| things involved in such certiorari. The district court shall
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0004| render its judgment after hearing, and either the department or
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0005| any other party thereto affected may appeal from such judgment
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0006| to the [supreme court of the state] court of appeals in
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0007| accordance with the rules [governing special statutory
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0008| proceedings] of appellate procedure. Such certiorari shall
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0009| not be granted unless the same is applied for within thirty days
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0010| from the date of the final decision of the secretary or board of
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0011| review. Such certiorari shall be heard in a summary manner and
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0012| shall be given precedence over all other civil cases except
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0013| cases arising under the Workers' Compensation Act of this state.
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0014| It shall not be necessary in any proceedings before the division
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0015| to enter exceptions to the rulings and no bond shall be required
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0016| in obtaining certiorari from the district court as hereinabove
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0017| provided, but such certiorari shall be granted as a matter of
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0018| right to the party applying therefor."
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0019| Section 2. A new section of the Unemployment Compensation
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0020| Law is enacted to read:
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0021| "[NEW MATERIAL] VOLUNTARY WITHHOLDING OF FEDERAL INCOME
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0022| TAX.--
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0023| A. Every individual filing a new claim for
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0024| unemployment compensation shall, at the time of filing such
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0025| claim, be advised in writing that:
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0001| (1) unemployment compensation is subject to
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0002| federal, state and local income tax;
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0003| (2) requirements exist pertaining to estimated
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0004| tax payments;
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0005| (3) the individual may elect to have federal
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0006| income tax deducted and withheld from the individual's
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0007| unemployment compensation payments at the amount specified in
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0008| the Internal Revenue Code of 1986; and
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0009| (4) the individual is permitted to change a
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0010| previously elected withholding status one time during each
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0011| benefit year.
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0012| B. Amounts deducted and withheld from unemployment
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0013| compensation shall remain in the fund until transferred to the
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0014| federal internal revenue service.
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0015| C. The division shall follow all procedures
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0016| specified by the United States department of labor and the
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0017| federal internal revenue service pertaining to the deducting and
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0018| withholding of income tax.
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0019| D. Amounts shall be deducted and withheld under this
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0020| section only after amounts are deducted and withheld for any
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0021| overpayments of unemployment compensation, child support
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0022| obligations or any other amounts required to be deducted and
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0023| withheld under the Unemployment Compensation Law.
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0024| E. The provisions of this section apply to
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0025| unemployment compensation payments made after December 31,
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0001| 1996."
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0002| Section 3. EFFECTIVE DATE.--The effective date of the
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0003| provisions of this act is July 1, 1996.
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0004|
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0005| State of New Mexico
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0006| House of Representatives
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0007|
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0008| FORTY-SECOND LEGISLATURE
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0009| SECOND SESSION, 1996
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0010|
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0011|
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0012| February 6, 1996
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0013|
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0014|
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0015| Mr. Speaker:
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0016|
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0017| Your BUSINESS AND INDUSTRY COMMITTEE, to whom has
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0018| been referred
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0019|
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0020| HOUSE BILL 375
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0021|
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0022| has had it under consideration and reports same with
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0023| recommendation that it DO PASS, and thence referred to the
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0024| TAXATION AND REVENUE COMMITTEE.
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0025|
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0001| Respectfully submitted,
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0002|
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0003|
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0004|
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0005|
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0006| Fred Luna, Chairman
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0007|
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0008|
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0009| Adopted Not Adopted
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0010|
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0011| (Chief Clerk) (Chief Clerk)
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0012|
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0013| Date
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0014|
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0015| The roll call vote was 7 For 0 Against
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0016| Yes: 7
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0017| Excused: Gubbels, Olguin, Taylor, Varela, Rodella
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0018| Absent: None
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0019|
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0020|
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0021|
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0022|
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0023| H0375BI1 State of New Mexico
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0024| House of Representatives
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0025|
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0001| FORTY-SECOND LEGISLATURE
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0002| SECOND SESSION, 1996
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0003|
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0004|
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0005| February 9, 1996
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0006|
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0007|
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0008| Mr. Speaker:
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0009|
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0010| Your TAXATION AND REVENUE COMMITTEE, to whom has
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0011| been referred
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0012|
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0013| HOUSE BILL 375
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0014|
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0015| has had it under consideration and reports same with
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0016| recommendation that it DO PASS, and thence referred to the
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0017| APPROPRIATIONS AND FINANCE COMMITTEE.
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0018|
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0019| Respectfully submitted,
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0020|
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0021|
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0022|
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0023|
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0024| Jerry W. Sandel, Chairman
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0025|
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0001|
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0002| Adopted Not Adopted
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0003|
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0004| (Chief Clerk) (Chief Clerk)
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0005|
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0006| Date
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0007|
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0008| The roll call vote was 8 For 0 Against
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0009| Yes: 8
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0010| Excused: Gallegos, Lovejoy, Sandoval
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0011| Absent: Crook, Hawkins,
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0012|
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0013|
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0014|
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0015| H0375TR1
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0016|
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0017| FORTY-SECOND LEGISLATURE
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0018| SECOND SESSION, 1996
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0019|
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0020|
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0021| February 12, 1996
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0022|
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0023| Mr. President:
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0024|
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0025| Your CORPORATIONS & TRANSPORTATION COMMITTEE, to
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0001| whom has been referred
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0002|
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0003| HOUSE BILL 375
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0004|
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0005| has had it under consideration and reports same with
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0006| recommendation that it DO PASS, and thence referred to the
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0007| FINANCE COMMITTEE.
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0008|
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0009| Respectfully submitted,
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0010|
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0011|
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0012|
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0013| __________________________________
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0014| Roman M. Maes, III, Chairman
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0015|
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0016|
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0017|
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0018| Adopted_______________________ Not Adopted_______________________
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0019| (Chief Clerk) (Chief Clerk)
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0020|
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0021|
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0022| Date ________________________
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0023|
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0024|
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0025| The roll call vote was 7 For 0 Against
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0001| Yes: 7
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0002| No: 0
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0003| Excused: McKibben, Robinson
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0004| Absent: None
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0005|
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0006|
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0007| H0375CT1
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0008|
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0009|
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0010|
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0011| FORTY-SECOND LEGISLATURE
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0012| SECOND SESSION, 1996
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0013|
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0014|
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0015| February 13, 1996
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0016|
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0017| Mr. President:
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0018|
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0019| Your FINANCE COMMITTEE, to whom has been referred
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0020|
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0021| HOUSE BILL 375
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0022|
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0023| has had it under consideration and reports same with
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0024| recommendation that it DO PASS.
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0025|
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0001| Respectfully submitted,
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0002|
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0003|
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0004|
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0005| __________________________________
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0006| Ben D. Altamirano, Chairman
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0007|
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0008|
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0009|
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0010| Adopted_______________________ Not Adopted_______________________
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0011| (Chief Clerk) (Chief Clerk)
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0012|
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0013|
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0014|
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0015| Date ________________________
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0016|
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0017|
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0018| The roll call vote was 7 For 0 Against
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0019| Yes: 7
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0020| No: 0
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0021| Excused: Aragon, Donisthorpe, Ingle, Jennings T., Macias, Nava
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0022| Absent: None
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0023|
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0024|
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0025| H0375FC1
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0001|
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