2003 Committee Substitute for 148640.1MS

SENATE FLOOR SUBSTITUTE FOR

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 2

46th legislature - STATE OF NEW MEXICO - first special session, 2003

AN ACT

RELATING TO SEX OFFENDERS; PROVIDING FOR THE INVOLUNTARY CIVIL COMMITMENT OF SEXUAL PREDATORS; ENACTING THE SEXUAL PREDATOR CIVIL COMMITMENT ACT; CREATING A SEX OFFENDER MANAGEMENT BOARD WITHIN THE NEW MEXICO SENTENCING COMMISSION; PROVIDING DUTIES; REVISING THE ELEMENTS OF THE CRIME OF KIDNAPPING; PROVIDING INCREASED PENALTIES FOR CRIMINAL SEXUAL PENETRATION IN THE SECOND OR THIRD DEGREE WHEN THE VICTIM IS A CHILD THIRTEEN TO EIGHTEEN YEARS OF AGE; CREATING A NEW OFFENSE KNOWN AS CRIMINAL SEXUAL CONTACT OF A MINOR IN THE SECOND DEGREE; PROVIDING INCREASED PENALTIES FOR CRIMINAL SEXUAL CONTACT OF A MINOR IN THE THIRD DEGREE; PROVIDING MINIMUM, MANDATORY PENALTIES; PROVIDING THAT A SEX OFFENDER MAY BE PLACED ON PROBATION FOR A PERIOD OF UP TO TWENTY YEARS; ESTABLISHING FACTORS FOR THE DISTRICT COURT TO CONSIDER WHEN DETERMINING THE DURATION, TERMS AND CONDITIONS OF PROBATION; PROVIDING THAT A SEX OFFENDER MAY BE PLACED ON PAROLE FOR A PERIOD OF UP TO TWENTY YEARS; ESTABLISHING FACTORS FOR THE PAROLE BOARD TO CONSIDER WHEN DETERMINING THE DURATION, TERMS AND CONDITIONS OF PAROLE; REVISING THE DEFINITIONS FOR SEX OFFENDER AND SEX OFFENSE; LENGTHENING REGISTRATION PERIODS FOR SEX OFFENDERS; REQUIRING A SEX OFFENDER TO PROVIDE ADDITIONAL REGISTRATION INFORMATION; PROVIDING FOR TREATMENT OF CRIMINAL OFFENDERS CONVICTED OF CERTAIN SEXUAL OFFENSES AGAINST CHILDREN LESS THAN THIRTEEN YEARS OF AGE; PROVIDING CONFORMING AMENDMENTS TO EXISTING LAWS; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING APPROPRIATIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 21 of this act may be cited as the "Sexual Predator Civil Commitment Act".

Section 2. [NEW MATERIAL] LEGISLATIVE FINDINGS.--The legislature finds that:

A. there exists an extremely dangerous group of sexually violent predators who have a mental abnormality or personality disorder and who are likely to engage in repeat acts of sexual violence if not treated for their mental abnormality or personality disorder;

B. because the existing civil commitment procedures are inadequate to address the special needs of sexually violent predators and the risks they present to society, a separate involuntary civil commitment process for the potentially long-term care, treatment and control of sexually violent predators is necessary; and

C. because of the nature of the mental abnormalities or personality disorders from which sexually violent predators suffer, and the dangers they present, it is necessary to house involuntarily committed sexually violent predators in an environment separate from persons otherwise involuntarily committed.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Sexual Predator Civil Commitment Act:

A. "agency with jurisdiction" means the agency that releases upon lawful order or authority a person serving a sentence or term of confinement and includes the corrections department, the department of health and the children, youth and families department;

B. "committed person" means a person who has been found to be a sexually violent predator and committed to the custody of the department, whether in a secure commitment facility, a transitional release program or a conditional release program;

C. "department" means the department of health;

D. "likely to engage in repeat acts of sexual

violence" means that the person's propensity to commit sexually violent offenses is of such a degree as to pose a menace to the health and safety of others and that the person has serious difficulty in controlling his behavior;

E. "mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to commit sexually violent offenses in a degree constituting the person a menace to the health and safety of others;

F. "potential predator" means a person who is a potential or actual subject of proceedings pursuant to the Sexual Predator Civil Commitment Act;

G. "secretary" means the secretary of health;

H. "sexual motivation" means that one of the purposes for which a defendant committed a crime was for the purpose of the defendant's sexual gratification;

I. "sexually violent offense" means:

(1) criminal sexual penetration of a child under thirteen years of age, as provided in Section 30-9-11 NMSA 1978;

(2) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;

(3) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;

(4) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(5) incest, as provided in Section 30-10-3 NMSA 1978;

(6) child luring, as provided in Section 30-37-3.2 NMSA 1978;

(7) an attempt to commit any of the offenses set forth in Paragraphs (1) through (5) of this subsection, as provided in Section 30-28-1 NMSA 1978;

(8) any conviction for a felony offense in effect at any time prior to the effective date of the Sexual Predator Civil Commitment Act that is comparable to an offense described in Paragraphs (1) through (7) of this subsection or any federal or other state conviction for a felony offense that, if committed in this state, would be a sexually violent offense pursuant to Paragraphs (1) through (7) of this subsection; or

(9) any crime against a child under thirteen years of age, except those described in Paragraphs (1) through (8) of this subsection, that either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to the Sexual Predator Civil Commitment Act, has been determined beyond a reasonable doubt to have been sexually motivated;

J. "sexually violent predator" means a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in repeat acts of sexual violence and who has serious difficulty in controlling his behavior;

K. "transitional release" means any halfway house, work release or other placement designed to assist the person's adjustment and reintegration into the community once released from commitment; and

L. "treatment staff" means the persons, agencies or firms employed by or contracted with the secretary to provide treatment, supervision or other services for committed persons.

Section 4. [NEW MATERIAL] NOTICE OF RELEASE OF POTENTIAL PREDATOR--EVALUATION BY MULTIDISCIPLINARY TEAM AND ATTORNEY GENERAL.--

A. When it appears to an agency with jurisdiction that a person may be a sexually violent predator, the agency shall give written notice to the attorney general and the multidisciplinary team established in Subsection C of this section. The notice shall be given no less than ninety days prior to:

(1) the anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of a person who is returned to confinement for no more than ninety days as a result of revocation of parole or other post-release supervision, written notice shall be given as soon as practicable following the person's readmission to confinement;

(2) the release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial; or

(3) the release of a person who has been found not guilty by reason of insanity of a sexually violent offense.

B. The agency with jurisdiction shall inform the attorney general and the multidisciplinary team of the following:

(1) the potential predator's name, identifying factors, anticipated future residence and offense history; and

(2) documentation of institutional adjustment and any treatment received.

C. The secretary of corrections shall establish a multidisciplinary team, which may include individuals from other state agencies, to review available records of each person referred to the team pursuant to Subsection A of this section. The team, within thirty days of receiving notice, shall assess whether the potential predator is a sexually violent predator. The team shall notify the attorney general of its assessment.

D. The attorney general shall appoint a prosecutor's review committee to review the records of each person referred to the attorney general pursuant to Subsection A of this section. The prosecutor's review committee shall assist the attorney general in the determination of whether the person is a sexually violent predator. The assessment of the multidisciplinary team shall be made available to the attorney general and the prosecutor's review committee.

E. The agency with jurisdiction and its employees and officials, members of the multidisciplinary team, members of the prosecutor's review committee and individuals contracting, appointed or volunteering to perform services pursuant to this section shall be immune from liability for any good-faith conduct under this section.

F. The provisions of this section are not jurisdictional, and failure to comply with its provisions does not prevent the attorney general from proceeding against a person otherwise subject to commitment pursuant to the Sexual Predator Civil Commitment Act.

Section 5. [NEW MATERIAL] PETITION FOR COMMITMENT.--

A. Upon a determination by the attorney general and the prosecutor's review committee pursuant to Section 4 of the Sexual Predator Civil Commitment Act that a potential predator is a sexually violent predator, the attorney general may file a petition with the district court, within seventy-five days of the date the attorney general received the written notice by the agency of jurisdiction as provided in Subsection A of Section 4 of the Sexual Predator Civil Commitment Act, alleging that the person is a sexually violent predator and stating sufficient facts to support the allegation.

B. The provisions of this section are not jurisdictional, and failure to comply with its provisions in no way prevents the attorney general from proceeding against a person otherwise subject to the provisions of the Sexual Predator Civil Commitment Act.

Section 6. [NEW MATERIAL] DETERMINATION OF PROBABLE CAUSE.--

A. Upon filing of a petition pursuant to Section 5 of the Sexual Predator Civil Commitment Act, the district court shall determine whether probable cause exists to believe that the potential predator is a sexually violent predator. If the court determines that probable cause exists, the court shall direct that the potential predator be taken into custody.

B. Within seventy-two hours after a potential predator is taken into custody pursuant to Subsection A of this section, the potential predator shall be provided with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the potential predator is a sexually violent predator. At the hearing, the court shall:

(1) verify the potential predator's identity; and

(2) determine whether probable cause exists to believe that the potential predator is a sexually violent predator. The state may rely upon the petition or supplement the petition with additional documentary evidence or live testimony.

C. At the probable cause hearing, the potential predator has, in addition to the rights previously specified, the right to:

(1) be represented by counsel;

(2) present evidence on the potential predator's behalf;

(3) cross-examine witnesses who testify against the potential predator; and

(4) view and copy all petitions and reports in the court file.

D. If the court determines that there is probable cause that the potential predator is a sexually violent predator, the court shall direct that the potential predator be transferred to a county jail or other appropriate secure facility for an evaluation as to whether the potential predator is a sexually violent predator. The evaluation shall be conducted by a person, appointed by the court, deemed to be professionally qualified to conduct the examination.

Section 7. [NEW MATERIAL] TRIAL--PROCEDURE.--

A. Within sixty days after the completion of a hearing held pursuant to Section 6 of the Sexual Predator Civil Commitment Act, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party upon a showing of good cause, or by the court on its own motion in the due administration of justice, so long as the potential predator will not be substantially prejudiced.

B. At all stages of the proceedings under the Sexual Predator Civil Commitment Act, a person subject to that act shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist the person.

C. When a person is subjected to an examination pursuant to the Sexual Predator Civil Commitment Act, the person may retain experts or professional persons to perform an examination on the person's behalf. When the person wishes to be examined by a qualified expert or professional person of the person's own choice, the examiner may have reasonable access to the person for the purpose of the examination, as well as to all relevant medical and psychological records and reports.

D. In the case of a potential predator who is indigent, the court, upon the potential predator's request, shall determine whether the services are necessary and if compensation for the services is reasonable. If the court determines that the services are necessary and the expert or professional person's requested compensation for the services is reasonable, the court shall assist the potential predator in obtaining an expert or professional person to perform an examination or participate in the trial on the potential predator's behalf. The court shall approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the potential predator and compensation received in the same case or for the same services from any other source.

E. The potential predator, the attorney general or the court may demand that the trial be before a jury. A demand for a jury trial shall be filed, in writing, at least four days prior to trial. A jury shall consist of twelve jurors unless the parties agree in writing, with the approval of the court, that the jury shall consist of any number of jurors less than twelve. If no demand is made, the trial shall be before the court without a jury.

Section 8. [NEW MATERIAL] TRIAL--DETERMINATION--COMMITMENT PROCEDURE.--

A. In a trial conducted pursuant to Section 7 of the Sexual Predator Civil Commitment Act, the court or jury shall determine whether, beyond a reasonable doubt, the potential predator is a sexually violent predator. If the determination is made by a jury, the determination shall be by unanimous verdict. If the court or jury determines that a person is a sexually violent predator, the person shall be committed to the custody of the secretary for care, treatment and control until such time as the committed person's mental abnormality or personality disorder has changed so that the person is safe to be at large. The care, treatment and control shall be provided at a facility operated by the department. At all times, a committed person provided with care, treatment and control by the department shall be kept in a secure facility and shall be segregated at all times from other patients under the supervision of the secretary. The department may enter into an agreement with the corrections department for the confinement of sexually violent predators. Sexually violent predators committed to the jurisdiction of the corrections department shall be housed and managed separately from other offenders in the custody of the corrections department, and except for occasional instances of supervised incidental contact, shall be segregated from other offenders.

B. If a committed person, while committed to the custody of the secretary, is taken into custody by a law enforcement officer for a parole revocation proceeding, an arrest or a conviction for a criminal offense of any nature, upon release from the custody of the law enforcement officer, the person shall be returned to the custody of the secretary for further treatment. During any period of time a committed person is not in the actual custody or supervision of the secretary, the secretary shall be excused from the provisions of Section 9 of the Sexual Predator Civil Commitment Act. The secretary shall give notice to the court as soon as reasonably possible after the taking of the committed person into custody that the committed person is no longer in treatment pursuant to the Sexual Predator Civil Commitment Act and shall give notice to the court when the committed person is returned to the custody of the secretary for further treatment.

C. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct the person's release.

D. Upon a mistrial, the court shall direct that the person be held at a county jail or other appropriate secure facility until another trial is conducted. A subsequent trial following a mistrial shall be held within ninety days of the previous trial, unless the subsequent trial is continued as provided in Section 7 of the Sexual Predator Civil Commitment Act.

E. If a potential predator charged with a sexually violent offense is found to be incompetent to stand trial, and the potential predator's commitment is sought pursuant to this section, the judge or jury shall first hear evidence and determine whether the person did commit the acts charged. The hearing on this issue shall comply with all the procedures specified in Section 7 of the Sexual Predator Civil Commitment Act and this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence on the issue, the judge or jury shall make specific findings on whether the potential predator did commit the acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf, the extent to which the evidence could be reconstructed without the assistance of the person and the strength of the prosecution's case. If after the conclusion of the hearing on this issue, the judge or jury finds, beyond a reasonable doubt, that the person did commit the acts charged, the court shall enter a final order, appealable by the person on that issue, and may proceed to consider whether the person should be committed.

F. A determination that a person is a sexually violent predator pursuant to this section may be appealed; provided that the potential predator shall not be entitled to release pending the appeal.

Section 9. [NEW MATERIAL] ANNUAL EXAMINATION AND REVIEW.--

A. A person committed pursuant to the Sexual Predator Civil Commitment Act shall have an examination of that person's mental condition once every year. The committed person may retain, or, if the person is indigent and so requests, the court may appoint a qualified professional to examine the person. The professional shall have access to all records concerning that person. An annual report shall be provided by the secretary to the court that committed the person, and the court shall conduct an annual review of the status of the committed person. Nothing contained in the Sexual Predator Civil Commitment Act prohibits a committed person from otherwise petitioning the court for discharge at the annual review. The secretary shall provide a committed person with an annual written notice of the committed person's right to petition the court for release over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the annual report. A committed person shall have the right to representation by an attorney for the review, but the committed person is not entitled to be present at the review.

B. If a committed person has petitioned the court for release and if, after reviewing the annual report and the information contained in the petition, the court at the review determines that probable cause exists to believe that the person's mental abnormality or personality disorder has changed so that the person is safe to be placed in transitional release, the court shall set a hearing on the issue. At the hearing for transitional release, a committed person shall be entitled to be present and entitled to the benefit of all constitutional protections that were afforded the committed person at the initial commitment trial. The attorney general shall represent the state and may have the committed person evaluated by professionals chosen by the state. A committed person may also request an expert evaluation on the committed person's behalf, and the court shall appoint an expert if the committed person is indigent and requests an appointment. Either party may demand a jury trial. The burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that a committed person's mental abnormality or personality disorder remains such that the committed person is not safe to be placed in transitional release and if placed in transitional release is likely to engage in acts of sexual violence.

C. If, after the hearing, the court or jury is convinced beyond a reasonable doubt that a committed person is not appropriate for transitional release, the court shall order that the committed person remain in secure commitment. Otherwise, the court shall order that the committed person be placed in transitional release and the secretary shall transfer the person to the transitional release program.

Section 10. [NEW MATERIAL] PETITION FOR TRANSITIONAL RELEASE--PROCEDURE.--

A. If the secretary determines that a committed person's mental abnormality or personality disorder has changed so that the person is not likely to commit predatory acts of sexual violence if placed in transitional release, the secretary shall authorize the committed person to petition the court for transitional release. The petition shall be served upon the court and the attorney general. The court, upon receipt of the petition for transitional release, shall order a hearing within thirty days. The attorney general shall represent the state and may have the committed person examined by a professional of the attorney general's choice. The hearing shall be before a jury if demanded by either the committed person or the attorney general. The burden of proof shall be upon the attorney general to show beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the committed person is not safe to be at large and that if placed in transitional release is likely to commit a sexually violent offense.

B. If, after the hearing, the court is convinced beyond a reasonable doubt that the committed person is not appropriate for transitional release, the court shall order that the person remain in secure commitment. Otherwise, the court shall order that the person be placed in transitional release and the secretary shall transfer the person to the transitional release program.

Section 11. [NEW MATERIAL] TRANSITIONAL RELEASE.--

A. The secretary may contract for services to be provided in the transitional release program. During the period when a committed person is in transitional release, the person shall comply with rules the secretary may establish for the program and shall comply with every directive of the treatment staff of the transitional release program.

B. When a committed person is in a transitional release program and the treatment staff determines that the committed person has violated a rule or directive associated with the transitional release program, the treatment staff may remove the person from the transitional release program and return the person to the secure commitment facility, or may request the district court to issue an emergency ex parte order directing a law enforcement officer to take the person into custody and return the person to a secure commitment facility. The request may be made verbally or by telephone, but shall be followed in written or facsimile form delivered to the court by not later than 5:00 p.m. of the first day the district court is open for the transaction of business after the verbal or telephonic request was made.

C. When a committed person is returned to a secure commitment facility from a transitional release program, notice thereof shall be given by the secretary to the court. The court shall set the matter for a hearing within two working days of receipt of notice of the committed person's having been returned to the secure commitment facility and cause notice thereof to be given to the attorney general, the committed person and the secretary. The attorney general shall have the burden of proof to show probable cause that the committed person violated conditions of transitional release. The hearing shall be heard by the court, without a jury. At the conclusion of the hearing, the court shall issue an order returning the committed person to the secure commitment facility or to the transitional release program and may order further conditions with which the person must comply if the person is returned to the transitional release program.

Section 12. [NEW MATERIAL] CONDITIONAL RELEASE.--

A. During the period when a committed person is in transitional release, the person at least annually, and at any other time deemed appropriate by the treatment staff, shall be examined by the treatment staff to determine if the person's mental abnormality or personality disorder has changed so as to warrant the person being considered for conditional release. The treatment staff shall forward a report of its examination to the court. After reviewing the report, if the court determines that probable cause exists to believe that the committed person's mental abnormality or personality disorder has changed so that the person is safe to be placed in conditional release, the court shall then set a hearing on the issue. The attorney general shall have the burden of proof to show beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the person is not safe to be at large and that if placed on conditional release is likely to engage in acts of sexual violence. The committed person shall have the same rights as enumerated in Section 7 of the Sexual Predator Civil Commitment Act. Subsequent to either a court review or a hearing, the court shall issue an appropriate order with findings of fact. The order of the court shall be provided to the attorney general, the committed person and the secretary.

B. If, after the hearing, the court is convinced beyond a reasonable doubt that the committed person is not appropriate for conditional release, the court shall order that the person remain either in secure commitment or in transitional release. Otherwise, the court shall order that the committed person be placed on conditional release.

Section 13. [NEW MATERIAL] CONDITIONAL RELEASE--PLAN OF TREATMENT--HEARING FOR FINAL RELEASE.--

A. If, after a hearing conducted pursuant to Section 12 of the Sexual Predator Civil Commitment Act, the court determines that a committed person should be placed on conditional release, the court, based upon the recommendation of the treatment staff, shall establish a plan of treatment that the person shall be ordered to follow. The plan of treatment may include:

(1) provisions as to where the committed person shall reside and with whom; and

(2) requirements for taking prescribed medications, attending individual and group counseling, maintaining employment, having no contact with children, not frequenting facilities, locations, events or otherwise in which children are likely to be present and not engaging in activities in which contact with children is likely.

B. Upon a showing by a committed person that the person accepts the plan of treatment and is prepared to follow it, the court shall release the person from the transitional release program.

C. When a minimum of five years has passed and a committed person has been free of violations of conditions of the person's treatment plan, the treatment staff or other professionals directed by the court may examine the person to determine if the person's mental abnormality or personality disorder has changed so as to warrant being considered for final discharge. A report shall be forwarded to the court. After reviewing the report, if the court determines that probable cause exists to believe that the committed person's mental abnormality or personality disorder has changed so that the person is safe to be considered for final discharge, the court shall set a formal hearing on the issue. The attorney general shall have the burden of proof to show beyond a reasonable doubt that the person's mental abnormality or personality disorder remains such that the person is not appropriate for final discharge. The person shall have the same rights as enumerated in Section 7 of the Sexual Predator Civil Commitment Act. Subsequent to either a court review or a hearing, the court shall issue an appropriate order with findings of fact. The order of the court shall be provided to the attorney general, the committed person and the secretary.

D. If, after a hearing, the court is convinced beyond a reasonable doubt that the committed person is not appropriate for final discharge, the court shall continue custody of the person with the secretary for placement in a secure commitment facility, transitional release program or conditional release program. Otherwise, the court shall order the person finally discharged. In the event the court does not order final discharge of the person, the committed person still retains the right to annual reviews.

E. At any time during which a committed person is on conditional release and the professional designated by the court in the treatment plan to monitor the person's compliance with the plan determines that the person has violated a material condition of that plan, the professional may request the district court to issue an emergency ex parte order directing a law enforcement officer to take the committed person into custody and return the person to a secure commitment facility. The request may be made verbally or by telephone, but shall be followed in written or facsimile form delivered to the court not later than 5:00 p.m. of the first day the district court is open for the transaction of business after the verbal or telephonic request was made.

F. When a committed person is returned to a secure commitment facility from conditional release, notice thereof shall be given by the secretary to the court. The court shall set the matter for a hearing within two working days of receipt of notice of the committed person's having been returned to the secure commitment facility and cause notice thereof to be given to the attorney general, the committed person and the secretary. The attorney general shall have the burden of proof to show probable cause that the committed person violated conditions of conditional release. The court shall conduct the hearing without a jury. At the conclusion of the hearing, the court shall issue an order returning the committed person to the secure commitment facility, to the transitional release program or to conditional release, and may order further conditions with which the committed person must comply if the person is returned to either the transitional release program or to conditional release.

G. A final discharge shall not prevent a person from being prosecuted for any criminal acts that the person is alleged to have committed or from being subject in the future to a subsequent commitment pursuant to the Sexual Predator Civil Commitment Act.

Section 14. [NEW MATERIAL] NOTICE TO VICTIMS OF THE RELEASE OF A COMMITTED PERSON.--

A. In addition to any other information required to be released pursuant to the Sexual Predator Civil Commitment Act, prior to the release of a person committed pursuant to that act, the secretary shall give written notice of the person's placement or release to any victim of the person's activities or crime whose address is known to the secretary; provided that failure to notify shall not be a reason for postponement of release.

B. A failure to notify pursuant to this section shall not create a cause of action against the state or an employee of the state who acts within the scope of his employment.

Section 15. [NEW MATERIAL] RIGHT OF COMMITTED PERSON TO PETITION.--Nothing in the Sexual Predator Civil Commitment Act shall prohibit a committed person from filing a petition for transitional release, conditional release or final discharge pursuant to the provisions of that act; provided that, if a person has previously filed a petition for transitional release, conditional release or final discharge without the secretary's approval and the court determined either, upon review of the petition or following a hearing, that the petition was frivolous or that the committed person's condition had not so changed that the person was safe to be at large, the court shall deny the subsequent petition unless it contains facts upon which a court could find the condition of the committed person had changed so that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the secretary's approval, the court shall endeavor whenever possible to review the petition and determine if the petition is based upon frivolous grounds and, if so, shall deny the petition without a hearing.

Section 16. [NEW MATERIAL] CONSTITUTIONAL PROTECTIONS.--The involuntary detention or commitment of persons pursuant to the Sexual Predator Civil Commitment Act shall conform to all constitutional requirements for care and treatment.

Section 17. [NEW MATERIAL] SPECIAL ALLEGATION OF SEXUAL MOTIVATION--PROCEDURE.--

A. In any criminal case other than those offenses described in Paragraphs (1) through (8) of Subsection I of Section 3 of the Sexual Predator Civil Commitment Act, the district attorney shall file a special allegation of sexual motivation within ten days after arraignment when sufficient admissible evidence exists that, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective fact finder.

B. In a criminal case in which there has been a special allegation of sexual motivation, the state shall prove beyond a reasonable doubt that the accused committed the crime with a sexual motivation. The court or jury, if it finds the defendant guilty, shall also find a special verdict as to whether the defendant committed the crime with a sexual motivation.

C. The district attorney shall not withdraw the special allegation of sexual motivation without approval of the court, through an order of dismissal of the special allegation. The court shall not dismiss the special allegation unless it finds that the order is necessary to correct an error in the initial charging decision or unless there are evidentiary problems that make proving the special allegation doubtful.

Section 18. [NEW MATERIAL] CONFIDENTIAL INFORMATION OR RECORDS.--In order to protect the public, relevant information and records that are otherwise confidential or privileged shall be released to the agency with jurisdiction or the attorney general for the purpose of meeting the notice requirement provided in Section 4 of the Sexual Predator Civil Commitment Act and for determining whether a person is or continues to be a sexually violent predator.

Section 19. [NEW MATERIAL] COURT RECORDS.--Any psychological reports, drug and alcohol reports, treatment records, reports of the diagnostic center or medical records that have been submitted to the court or admitted into evidence pursuant to the provisions of the Sexual Predator Civil Commitment Act shall be part of the record, but shall be sealed and opened only on order of the court.

Section 20. [NEW MATERIAL] INELIGIBILITY FOR BAIL, BOND, HOUSE ARREST OR OTHER RELEASE.--A person for whom a petition pursuant to Section 5 of the Sexual Predator Civil Commitment Act has been filed and who is in the secure confinement of the state shall not be eligible for bail, bond, house arrest or any other measures for releasing the person from the physical, protective custody of the state.

Section 21. [NEW MATERIAL] COSTS--RESPONSIBILITY OF SECRETARY.--The secretary is responsible for all costs relating to the evaluation and treatment of committed persons pursuant to any provision of the Sexual Predator Civil Commitment Act. Reimbursement may be obtained by the secretary for the cost of care and treatment, including placement in transitional release, of committed persons who are not indigent by assessing a fee pursuant to Section 43-1-25 NMSA 1978.

Section 22. A new section of Chapter 9, Article 3 NMSA 1978 is enacted to read:

"[NEW MATERIAL] SEX OFFENDER MANAGEMENT BOARD--CREATION--MEMBERSHIP--DUTIES.--

A. There is created within the New Mexico sentencing commission the "sex offender management board". Members of the sex offender management board who are not members of the New Mexico sentencing commission, whose membership is set forth in Section 9-3-10 NMSA 1978, shall not be voting members of the New Mexico sentencing commission.

B. The sex offender management board shall be composed of the following members or their designees:

(1) the attorney general;

(2) a district attorney appointed by the district attorneys association of New Mexico;

(3) the chief public defender;

(4) a district court judge appointed by the district court judge's association of New Mexico;

(5) the secretary of corrections;

(6) the secretary of health;

(7) the secretary of children, youth and families;

(8) one public member appointed by the governor who is a board member of a New Mexico victims organization;

(9) two representatives appointed by the governor who are mental health professionals licensed to practice in New Mexico. One of the mental health professionals shall be a member of the association for the treatment of sexual abusers and one shall be a juvenile sex offender treatment specialist;

(10) a representative appointed by the governor from the adult probation and parole division of the corrections department who has expertise in the supervision of sex offenders;

(11) a representative appointed by the governor from the law enforcement community who has expertise regarding sex offender community notification, registration, tracking and monitoring;

(12) a representative appointed by the governor who is affiliated with a civil liberties organization; and

(13) a representative appointed by the governor who is affiliated with a faith-based organization.

C. The sex offender management board shall report its findings and recommendations to the New Mexico sentencing commission on a quarterly basis. The New Mexico sentencing commission shall vote to approve, disapprove or revise the recommendations of the board.

D. The sex offender management board shall:

(1) hold meetings at times and for periods as the board deems necessary to accomplish its objectives, but shall meet at least eight times a year;

(2) develop and prescribe a standard procedure for the identification and evaluation of convicted sex offenders. The procedure shall include behavior management, monitoring, treatment and program compliance for sex offenders. The board shall develop and recommend measures of success;

(3) develop and recommend guidelines and standards for the treatment of sex offenders that can be utilized by offenders who are placed on probation, incarcerated with the corrections department, placed on parole or placed in a community corrections program. The guidelines and standards shall include a monitoring process and a plan for developing treatment programs for sex offenders, including determining the duration, terms and conditions of probation and parole for sex offenders;

(4) create a risk assessment-screening tool and program to assist sentencing of sex offenders, including determining the duration, terms and conditions of probation and parole for sex offenders;

(5) develop guidelines and standards for monitoring sex offenders who are undergoing evaluation or treatment, including behavioral monitoring;

(6) develop criteria for measuring a sex offender's progress in treatment programs. The parole board shall use the criteria approved by the New Mexico sentencing commission to determine whether a sex offender may appropriately be discharged from parole;

(7) develop a standardized procedure for the identification and evaluation of juvenile sex offenders. The procedure shall include behavior management, monitoring, treatment and program compliance for juvenile sex offenders. The board shall develop and implement measures of success;

(8) develop and recommend guidelines and standards for the treatment of juvenile sex offenders who are placed on probation, committed to a state agency, placed on parole or placed in a community corrections program;

(9) research and analyze safety issues raised when sex offenders live in a community;

(10) study and consider the viability and legality of a civil commitment program for sex offenders; (11) research and determine the feasibility and legality of implementing indeterminate sentencing for sex offenders;

(12) study the use of clinical polygraph testing as a means to evaluate sex offenders;

(13) evaluate sex offender treatment programs administered by state agencies and recommend changes, if needed, in those treatment programs; and

(14) review the provisions of the Sex Offender Notification and Registration Act and recommend changes, if needed, to that act.

E. The members of the sex offender management board shall be paid pursuant to the Per Diem and Mileage Act and shall receive no other perquisite, compensation or allowance."

Section 23. Section 30-4-1 NMSA 1978 (being Laws 1963, Chapter 303, Section 4-1, as amended) is amended to read:

"30-4-1. KIDNAPPING.--

A. Kidnapping is the unlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent:

(1) that the victim be held for ransom;

(2) that the victim be held as a hostage or shield and confined against his will;

(3) that the victim be held to service against the victim's will; or

(4) to inflict death, physical injury or a sexual offense on the victim.

B. Whoever commits kidnapping is guilty of a first degree felony, except that he is guilty of a second degree felony when he voluntarily frees the victim in a safe place and does not inflict [great bodily harm] physical injury or a sexual offense upon the victim."

Section 24. Section 30-9-11 NMSA 1978 (being Laws 1975, Chapter 109, Section 2, as amended) is amended to read:

"30-9-11. CRIMINAL SEXUAL PENETRATION.--

A. Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.

B. Criminal sexual penetration does not include medically indicated procedures.

C. Criminal sexual penetration in the first degree consists of all sexual penetration perpetrated:

(1) on a child under thirteen years of age; or

(2) by the use of force or coercion that results in great bodily harm or great mental anguish to the victim.

Whoever commits criminal sexual penetration in the first degree is guilty of a first degree felony.

D. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:

(1) on a child thirteen to eighteen years of age when the perpetrator is in a position of authority over the child and uses this authority to coerce the child to submit;

(2) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate;

(3) by the use of force or coercion that results in personal injury to the victim;

(4) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons;

(5) in the commission of any other felony; or

(6) when the perpetrator is armed with a deadly weapon.

Whoever commits criminal sexual penetration in the second degree, is guilty of a second degree felony. Whoever commits criminal sexual penetration in the second degree when the victim is a child who is thirteen to eighteen years of age is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of Sections 31-18-17, 31-18-25 and 31-18-26 NMSA 1978.

E. Criminal sexual penetration in the third degree consists of all criminal sexual penetration perpetrated through the use of force or coercion.

Whoever commits criminal sexual penetration in the third degree is guilty of a third degree felony. Whoever commits criminal sexual penetration in the third degree when the victim is a child who is thirteen to eighteen years of age is guilty of a third degree felony for a sexual offense against a child. F. Criminal sexual penetration in the fourth degree consists of all criminal sexual penetration:

(1) not defined in Subsections C through E of this section perpetrated on a child thirteen to sixteen years of age when the perpetrator is at least eighteen years of age and is at least four years older than the child and not the spouse of that child; or

(2) perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school.

Whoever commits criminal sexual penetration in the fourth degree is guilty of a fourth degree felony."

Section 25. Section 30-9-13 NMSA 1978 (being Laws 1975, Chapter 109, Section 4, as amended) is amended to read:

"30-9-13. CRIMINAL SEXUAL CONTACT OF A MINOR.--

A. Criminal sexual contact of a minor is the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one's intimate parts. For the purposes of this section, "intimate parts" means the primary genital area, groin, buttocks, anus or breast.

B. Criminal sexual contact of a minor in the second degree consists of all criminal sexual contact of the unclothed intimate parts of a minor perpetrated:

(1) on a child under thirteen years of age; or

(2) on a child thirteen to eighteen years of age when:

(a) the perpetrator is in a position of authority over the child and uses that authority to coerce the child to submit;

(b) the perpetrator uses force or coercion that results in personal injury to the child;

(d) the perpetrator is armed with a deadly weapon.

Whoever commits criminal sexual contact of a minor in the second degree is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of Sections 31-18-17, 31-18-25 and 31-18-26 NMSA 1978.

[A.] C. Criminal sexual contact of a minor in the third degree consists of all criminal sexual contact of a minor perpetrated:

(1) on a child under thirteen years of age; or

(2) on a child thirteen to eighteen years of age when:

(a) the perpetrator is in a position of authority over the child and uses this authority to coerce the child to submit;

(b) the perpetrator uses force or coercion which results in personal injury to the child;

(d) the perpetrator is armed with a deadly weapon.

Whoever commits criminal sexual contact of a minor in the third degree is guilty of a third degree felony for a sexual offense against a child.

[B.] D. Criminal sexual contact of a minor in the fourth degree consists of all criminal sexual contact:

(1) not defined in Subsection [A] C of this section, of a child thirteen to eighteen years of age perpetrated with force or coercion; or

(2) of a minor perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school.

Whoever commits criminal sexual contact in the fourth degree is guilty of a fourth degree felony."

Section 26. Section 31-18-15 NMSA 1978 (being Laws 1977, Chapter 216, Section 4, as amended) is amended to read:

"31-18-15. SENTENCING AUTHORITY--NONCAPITAL FELONIES--BASIC SENTENCES AND FINES--PAROLE AUTHORITY--MERITORIOUS DEDUCTIONS.--

A. If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:

(1) for a first degree felony, eighteen years imprisonment;

(2) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;

(3) for a second degree felony for a sexual offense against a child, fifteen years imprisonment;

[(3)] (4) for a second degree felony, nine years imprisonment;

[(4)] (5) for a third degree felony resulting in the death of a human being, six years imprisonment;

(6) for a third degree felony for a sexual offense against a child, six years imprisonment;

[(5)] (7) for a third degree felony, three years imprisonment; or

[(6)] (8) for a fourth degree felony, eighteen months imprisonment.

B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted [of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being] and sentenced pursuant to Subsection A of this section, unless the court alters [such] the sentence pursuant to the provisions of Section 31-18-15.1, 31-18-16, 31-18-16.1 or 31-18-17 NMSA 1978.

C. The court shall include in the judgment and sentence of each person convicted [of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being] and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. The period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of Section 31-18-15.1, 31-18-16, 31-18-16.1 or 31-18-17 NMSA 1978.

D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16, 31-18-16.1 or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16, 31-18-16.1 or 31-18-17 NMSA 1978.

E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:

(1) for a first degree felony, fifteen thousand dollars ($15,000);

(2) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);

(3) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);

[(3)] (4) for a second degree felony, ten thousand dollars ($10,000);

[(4)] (5) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000); [or]

(6) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000); or

[(5)] (7) for a third or fourth degree felony, five thousand dollars ($5,000).

F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense, as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.

G. No later than October 31 of each year, the New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners."

Section 27. Section 31-20-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-17, as amended) is amended to read:

"31-20-5. PLACING DEFENDANT ON PROBATION.--

A. When a person has been convicted of a crime for which a sentence of imprisonment is authorized and when the magistrate, metropolitan or district court has deferred or suspended sentence, it shall order the defendant to be placed on probation for all or some portion of the period of deferment or suspension if the defendant is in need of supervision, guidance or direction that is feasible for the [field services division of the] corrections department to furnish [provided, however]. Except for sex offenders as provided in Section 31-20-5.2 NMSA 1978, the total period of probation for district court shall not exceed five years and the total period of probation for the magistrate or metropolitan courts shall be no longer than the maximum allowable incarceration time for the offense or as otherwise provided by law.

B. If a defendant is required to serve a period of probation subsequent to a period of incarceration:

(1) the period of probation shall be served subsequent to any required period of parole, with the time served on parole credited as time served on the period of probation and the conditions of probation imposed by the court deemed as additional conditions of parole; and

(2) in the event that the defendant violates any condition of that parole, the parole board shall cause him to be brought before it pursuant to the provisions of Section 31-21-14 NMSA 1978 and may make any disposition authorized pursuant to that section and, if parole is revoked, the period of parole served in the custody of a correctional facility shall not be credited as time served on probation."

Section 28. A new section, Section 31-20-5.2 NMSA 1978, is enacted to read:

"31-20-5.2. [NEW MATERIAL] SEX OFFENDERS--PERIOD OF PROBATION--TERMS AND CONDITIONS OF PROBATION.--

A. Prior to placing a sex offender on probation, the district court shall conduct a hearing to determine the duration, terms and conditions of probation for the sex offender. A sex offender's initial period of probation shall be for a period not to exceed twenty years. The district court may consider any relevant factors, including:

(1) the nature and circumstances of the offense for which the sex offender was convicted or adjudicated;

(2) the nature and circumstances of a prior sex offense committed by the sex offender;

(3) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere;

(4) the danger to the community posed by the sex offender; and

(5) a risk and needs assessment regarding the sex offender, developed by the sex offender management board of the New Mexico sentencing commission or another appropriate entity, to be used by appropriate district court personnel.

B. The district court shall review the terms and conditions of a sex offender's probation at two and one-half year intervals. During a review hearing, the state shall bear the burden of proving to the district court that a sex offender should remain on probation. The district court may decide to continue a sex offender's probation, but may determine that certain terms and conditions of probation are no longer necessary.

C. The district court may order a sex offender placed on probation to abide by reasonable terms and conditions of probation, including:

(1) being subject to intensive supervision by a probation officer of the corrections department;

(2) participating in an outpatient or inpatient sex offender treatment program;

(3) a probationary agreement by the sex offender not to use alcohol or drugs;

(4) a probationary agreement by the sex offender not to have contact with certain persons or classes of persons; and

(5) being subject to alcohol testing, drug testing or polygraph examinations used to determine if the sex offender is in compliance with the terms and conditions of his probation.

D. The district court shall notify the sex offender's counsel of record of an upcoming probation hearing for a sex offender, and the sex offender's counsel of record shall represent the sex offender at the probation hearing. When a sex offender's counsel of record provides the court with good cause that the counsel of record should not represent the sex offender at the probation hearing and the sex offender is subsequently unable to obtain counsel, the district court shall notify the chief public defender of the upcoming probation hearing and the chief public defender shall make representation available to the sex offender at that hearing.

E. If the district court finds that a sex offender has violated the terms and conditions of his probation, the district court may revoke his probation or may order additional terms and conditions of probation.

F. As used in this section, "sex offender" means a person who is convicted of, pleads guilty to or pleads nolo contendere to any one of the following offenses:

(1) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with intent to inflict a sexual offense upon the victim;

(2) criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;

(3) criminal sexual contact of a minor in the second or third degree, as provided in Section 30-9-13 NMSA 1978;

(4) sexual exploitation of children in the second degree, as provided in Section 30-6A-3 NMSA 1978; or

(5) sexual exploitation of children by prostitution in the first or second degree, as provided in Section 30-6A-4 NMSA 1978."

Section 29. Section 31-21-10 NMSA 1978 (being Laws 1980, Chapter 28, Section 1, as amended) is amended to read:

"31-21-10. PAROLE AUTHORITY AND PROCEDURE.–

A. A person sentenced as a result of a conviction for committing criminal sexual penetration in the first degree when the victim is a child less than thirteen years of age may be paroled pursuant to the applicable provisions of law, but the term of parole shall be for the life of the person paroled.

[A.] B. Except as provided in Subsection A of this

section, an inmate of an institution who was sentenced to life imprisonment as the result of the commission of a capital felony, who was convicted of three violent felonies and sentenced pursuant to Sections 31-18-23 and 31-18-24 NMSA 1978 or who was convicted of two violent sexual offenses and sentenced pursuant to Subsection A of Section 31-18-25 NMSA 1978 and Section 31-18-26 NMSA 1978 becomes eligible for a parole hearing after he has served thirty years of his sentence. Before ordering the parole of an inmate sentenced to life imprisonment, the board shall:

(1) interview the inmate at the institution where he is committed;

(2) consider all pertinent information concerning the inmate, including:

(a) the circumstances of the offense;

(b) mitigating and aggravating circumstances;

(d) whether the inmate is a habitual offender;

(e) the reports filed under Section

31-21-9 NMSA 1978; and

(f) the reports of such physical and mental examinations as have been made while in [prison] an institution;

(3) make a finding that a parole is in the best interest of society and the inmate; and

(4) make a finding that the inmate is able and willing to fulfill the obligations of a law-abiding citizen.

If parole is denied, the inmate sentenced to life imprisonment shall again become entitled to a parole hearing at two-year intervals. The board may, on its own motion, reopen any case in which a hearing has already been granted and parole denied.

[B.] C. Unless the board finds that it is in the best interest of society and the parolee to reduce the period of parole, a person who was convicted of a capital felony shall be required to undergo a minimum period of parole of five years. During the period of parole, the person shall be under the guidance and supervision of the board.

[C.] D. Except for sex offenders as provided in Subsection A of this section and Section 31-21-10.1 NMSA 1978, an inmate who was convicted of a first, second or third degree felony and who has served the sentence of imprisonment imposed by the court in [a corrections facility] an institution designated by the corrections department shall be required to undergo a two-year period of parole. An inmate who was convicted of a fourth degree felony and who has served the sentence of imprisonment imposed by the court in [a corrections facility] an institution designated by the corrections department shall be required to undergo a one-year period of parole. During the period of parole, the person shall be under the guidance and supervision of the board.

[D. Every] E. A person while on parole shall remain in the legal custody of the institution from which he was released, but shall be subject to the orders of the board. The board shall furnish to each inmate as a prerequisite to his release under its supervision a written statement of the conditions of parole that shall be accepted and agreed to by the inmate as evidenced by his signature affixed to a duplicate copy to be retained in the files of the board. The board shall also require as a prerequisite to release the submission and approval of a parole plan. If an inmate refuses to affix his signature to the written statement of the conditions of his parole or does not have an approved parole plan, he shall not be released and shall remain in the custody of the [corrections facility] institution in which he has served his sentence, excepting parole, until such time as the period of parole he was required to serve, less meritorious deductions, if any, expires, at which time he shall be released from that [facility] institution without parole, or until such time that he evidences his acceptance and agreement to the conditions of parole as required or receives approval for his parole plan or both. Time served from the date that an inmate refuses to accept and agree to the conditions of parole or fails to receive approval for his parole plan shall reduce the period, if any, to be served under parole at a later date. If the district court has ordered that the inmate make restitution to a victim as provided in Section 31-17-1 NMSA 1978, the board shall include restitution as a condition of parole. The board shall also personally apprise the inmate of the conditions of parole and his duties relating thereto.

[E.] F. Except as provided in Subsection A of this section, when a person on parole has performed the obligations of his release for the period of parole provided in this section, the board shall make a final order of discharge and issue him a certificate of discharge.

[F.] G. Pursuant to the provisions of Section 31-18-15 NMSA 1978, the board shall require the inmate as a condition of parole:

(1) to pay the actual costs of his parole services to the adult probation and parole division of the corrections department for deposit to the corrections department intensive supervision fund not exceeding one thousand twenty dollars ($1,020) annually to be paid in monthly installments of not less than fifteen dollars ($15.00) and not more than eighty-five dollars ($85.00), subject to modification by the adult probation and parole division on the basis of changed financial circumstances; and

(2) to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to his arrest, prosecution or conviction.

[G.] H. The provisions of this section shall apply to all inmates except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act."

Section 30. A new section of the Probation and Parole Act, Section 31-21-10.1 NMSA 1978, is enacted to read:

"31-21-10.1. [NEW MATERIAL] SEX OFFENDERS--PERIOD OF PAROLE--TERMS AND CONDITIONS OF PAROLE.--

A. Prior to the release on parole of a sex offender, with the exception of a person sentenced as a result of a conviction for committing criminal sexual penetration in the first degree when the victim is a child less than thirteen years of age, the board shall conduct a hearing to determine the duration, terms and conditions of parole for the sex offender. A sex offender's initial period of parole shall be for a period not to exceed twenty years. The board may consider any relevant factors, including:

(1) the nature and circumstances of the offense for which the sex offender was incarcerated;

(2) the nature and circumstances of a prior sex offense committed by the sex offender;

(3) rehabilitation efforts engaged in by the sex offender, including participation in treatment programs while incarcerated or elsewhere;

(4) the danger to the community posed by the sex offender; and

B. The board shall review the terms and conditions of a sex offender's parole at two and one-half year intervals. During a review hearing, the state shall bear the burden of proving to the board that a sex offender should remain on parole. The board may decide to continue a sex offender's parole, but may determine that certain terms and conditions of parole are no longer necessary.

C. The board may order a sex offender released on parole to abide by reasonable terms and conditions of parole, including:

(1) being subject to intensive supervision by a parole officer of the corrections department;

(2) participating in an outpatient or inpatient sex offender treatment program;

(3) a parole agreement by the sex offender not to use alcohol or drugs;

(4) a parole agreement by the sex offender not to have contact with certain persons or classes of persons; and

(5) being subject to alcohol testing, drug testing or polygraph examinations used to determine if the sex offender is in compliance with the terms and conditions of his parole.

D. The board shall notify the chief public defender of an upcoming parole hearing for a sex offender, and the chief public defender shall make representation available to the sex offender at the parole hearing.

E. If the board finds that a sex offender has violated the terms and conditions of his parole, the board may revoke his parole or may order additional terms and conditions of parole.

F. A person sentenced as a result of a conviction for committing criminal sexual penetration in the first degree when the victim is a child less than thirteen years of age may be paroled pursuant to the applicable provisions of law, but the term of parole shall be for the life of the person paroled.

G. The provisions of this section shall apply to all sex offenders, except geriatric, permanently incapacitated and terminally ill inmates eligible for the medical and geriatric parole program as provided by the Parole Board Act.

H. As used in this section, "sex offender" means a person who is convicted of, pleads guilty to or pleads nolo contendere to any one of the following offenses:

(1) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with intent to inflict a sexual offense upon the victim;

(2) criminal sexual penetration in the first, second or third degree, as provided in Section 30-9-11 NMSA 1978;

(3) criminal sexual contact of a minor in the second or third degree, as provided in Section 30-9-13 NMSA 1978;

(4) sexual exploitation of children in the second degree, as provided in Section 30-6A-3 NMSA 1978; or

(5) sexual exploitation of children by prostitution in the first or second degree, as provided in Section 30-6A-4 NMSA 1978."

Section 31. Section 29-11A-2 NMSA 1978 (being Laws 1995, Chapter 106, Section 2, as amended) is amended to read:

"29-11A-2. FINDINGS--PURPOSE.--

A. The legislature finds that:

(1) sex offenders pose a significant risk of recidivism; and

(2) the efforts of law enforcement agencies to protect their communities from sex offenders are impaired by the lack of information available concerning convicted sex offenders who live within the agencies' jurisdictions.

B. The purpose of the Sex Offender Registration and Notification Act is to assist law enforcement agencies' efforts to protect their communities by:

(1) requiring a sex [offenders] offender who [are residents] is a resident of New Mexico to register with the [county] sheriff of the county in which the sex offender resides;

(2) requiring a sex [offenders] offender who [are residents] is a resident in [other states] another state, but who [are] is employed in New Mexico, [or who attend] attends school in New Mexico or visits New Mexico for more than twenty-four hours, to register with the [county] sheriff of the county in which the sex offender works, [or] attends school or visits;

(3) requiring the establishment of a central registry for sex offenders; and

(4) providing public access to information regarding certain registered sex offenders."

Section 32. Section 29-11A-3 NMSA 1978 (being Laws 1995, Chapter 106, Section 3, as amended) is amended to read:

"29-11A-3. DEFINITIONS.--As used in the Sex Offender Registration and Notification Act:

A. "sex offender" means a person [eighteen years of age or older] who:

(1) is a resident of New Mexico who is convicted of a sex offense in New Mexico;

(2) changes his residence to New Mexico, when that person has been convicted of a sex offense in another state pursuant to state, federal or military law;

(3) is a resident of New Mexico who is convicted of a sex offense pursuant to federal or military law; or

(4) is a resident of another state and who has been convicted of a sex offense pursuant to state, federal or military law, but who is:

(a) employed full time or part time in New Mexico for a period of time exceeding fourteen days or for an aggregate period of time exceeding thirty days during any calendar year; [or]

(b) enrolled on a full-time or part-time basis in a private or public school in New Mexico, including a secondary school, a trade school, a professional institution or an institution of higher education; [and] or

B. "sex offense" means:

(1) criminal sexual penetration in the first, second, third or fourth degree, as provided in Section 30-9-11 NMSA 1978;

(2) criminal sexual contact in the fourth degree, as provided in Section 30-9-12 NMSA 1978;

(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section 30-9-13 NMSA 1978;

(4) sexual exploitation of children, as provided in [Subsection A, B or C of] Section 30-6A-3 NMSA 1978;

(5) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;

(6) kidnapping, as provided in Section

30-4-1 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

(7) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

(8) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;

(9) enticement of a child, as provided in Section 30-9-1 NMSA 1978;

[(8)] (10) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978; or

[(9)] (11) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(7)] (8) of this subsection, as provided in Section 30-28-1 NMSA 1978."

Section 33. Section 29-11A-4 NMSA 1978 (being Laws 1995, Chapter 106, Section 4, as amended) is amended to read:

"29-11A-4. REGISTRATION OF SEX OFFENDERS--INFORMATION REQUIRED--CRIMINAL PENALTY FOR NONCOMPLIANCE.--

A. A sex offender residing in this state shall register with the [county] sheriff for the county in which the sex offender resides.

B. A sex offender who is a current resident of New Mexico shall register with the county sheriff no later than [ten days] twenty-four hours after being released from the custody of the corrections department or being placed on probation or parole. A sex offender who changes his residence to New Mexico shall register with the county sheriff no later than [ten days] twenty-four hours after establishing residence in this state. When a sex offender registers with the county sheriff, he shall provide the following registration information:

(1) his legal name and any other names or aliases that he is using or has used;

(2) his date of birth;

(3) his social security number;

(4) [his current address] all residences he owns, specifying which address is his primary residence;

(5) his motor vehicle registration information with a description of all motor vehicles owned;

[(5)] (6) his place of employment;

[(6)] (7) the sex offense for which he was convicted; and

[(7)] (8) the date and place of his sex offense conviction.

C. A sex offender who is a resident of another state but who is employed in New Mexico, [or] attending school in New Mexico or visiting New Mexico shall register with the [county] sheriff for the county in which the sex offender is working, [or] attending school or visiting.

D. A sex offender who is a resident of another state but who is employed in New Mexico, [or] attending school in New Mexico or visiting New Mexico shall register with the county sheriff no later than [ten days] twenty-four hours after beginning work, [or] school or his visit. When the sex offender registers with the county sheriff, he shall provide the following registration information:

(1) his legal name and any other names or aliases that he is using or has used;

(2) his date of birth;

(3) his social security number;

(4) his current address in his state of residence and, if applicable, the address of his place of lodging in New Mexico while he is working, [or] attending school or visiting;

(5) his motor vehicle registration information and a description of all motor vehicles owned or that will be used in New Mexico by him while he is working, attending school or visiting;

[(5)] (6) his place of employment or the name of the school he is attending;

[(6)] (7) the sex offense for which he was convicted; and

[(7)] (8) the date and place of his sex offense conviction.

E. When a sex offender registers with a county sheriff, the sheriff shall obtain:

(1) a photograph of the sex offender and a complete set of the sex offender's fingerprints; and

(2) a description of any tattoos, scars or other distinguishing features on the sex offender's body that would assist in identifying the sex offender.

F. When a sex offender who is registered changes his residence within the same county, the sex offender shall send written notice of his change of address to the county sheriff [no later than ten days after] prior to establishing his new residence.

G. When a sex offender who is registered changes his residence to a new county in New Mexico, the sex offender shall register with the [county] sheriff of the new county no later than [ten days] twenty-four hours after establishing his new residence. The sex offender shall also send written notice of the change in residence to the county sheriff with whom he last registered no later than [ten days] twenty-four hours after establishing his new residence, including proof of the new residence.

H. Following his initial registration pursuant to the provisions of this section:

(1) a sex offender required to register pursuant to the provisions of Subsection D of Section 29-11A-5 NMSA 1978 shall [annually] renew his registration with the county sheriff [prior to December 31 of each subsequent calendar year for a period of twenty years] every ninety days following his initial registration for the entirety of his natural life; and

(2) a sex offender required to register pursuant to the provisions of Subsection E of Section 29-11A-5 NMSA 1978 shall [annually] renew his registration with the county sheriff [prior to December 31 of each subsequent calendar year] every ninety days following his initial registration for a period of [ten] twenty years.

I. A sex offender who willfully fails to comply with the registration requirements set forth in this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

J. A sex offender who willfully provides false information when complying with the registration requirements set forth in this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."

Section 34. Section 29-11A-4.1 NMSA 1978 (being Laws 2000, Chapter 8, Section 6) is amended to read:

"29-11A-4.1. PROCEDURES WHEN A SEX OFFENDER MOVES FROM NEW MEXICO TO ANOTHER STATE.--

A. If a sex offender intends to move from New Mexico to another state, no later than thirty days prior to moving to the other state, he shall:

(1) notify the [county] sheriff of the county he resides in that he is moving to the other state; and

(2) provide the county sheriff with a written notice that identifies the [state] new address of the residence to which the sex offender is moving.

B. Within five days of receiving a sex offender's written notice of intent to move to another state, the county sheriff shall transmit that information to the department of public safety. Within five days of receiving that information from a county sheriff, the department shall contact the state agency responsible for registering sex offenders in the state to which the sex offender is moving. The department shall provide that state agency with registration information regarding the sex offender. The department shall also obtain information regarding registration requirements for sex offenders in the state to which the sex offender is moving. The department shall provide the sex offender with written notification of the registration requirements in the state to which the sex offender is moving.

C. A sex offender who willfully fails to comply with the requirements set forth in this section is guilty of a [misdemeanor] fourth degree felony and shall be punished by imprisonment for a definite term [less than] of one year or a fine of not more than one thousand dollars ($1,000) or both."

Section 35. Section 29-11A-5 NMSA 1978 (being Laws 1995, Chapter 106, Section 5, as amended) is amended to read:

"29-11A-5. LOCAL REGISTRY--CENTRAL REGISTRY--ADMINISTRATION BY DEPARTMENT OF PUBLIC SAFETY--PARTICIPATION IN THE NATIONAL SEX OFFENDER REGISTRY--RULES.--

A. A county sheriff shall maintain a local registry of sex offenders in his jurisdiction required to register pursuant to the provisions of the Sex Offender Registration and Notification Act.

B. The county sheriff shall forward registration information obtained from sex offenders to the department of public safety. The initial registration information and any new registration information subsequently obtained from a sex offender shall be forwarded by the county sheriff no later than ten working days after the information is obtained from a sex offender. If the department of public safety receives information regarding a sex offender from a governmental entity other than a county sheriff, the department shall send that information to the [county] sheriff for the county in which the sex offender resides.

C. The department of public safety shall maintain a central registry of sex offenders required to register pursuant to the provisions of the Sex Offender Registration and Notification Act. The department shall participate in the national sex offender registry administered by the United States department of justice. The department shall send conviction information and fingerprints for all sex offenders registered in New Mexico to the national sex offender registry administered by the United States department of justice and to the federal bureau of investigation.

D. The department of public safety shall retain registration information regarding sex offenders convicted for the following sex offenses for [a period of twenty years following the sex offender's conviction, release from prison or release from probation or parole, whichever occurs later] the entirety of the sex offender's natural life:

(1) criminal sexual penetration in the first or second degree, as provided in Section 30-9-11 NMSA 1978;

(2) criminal sexual contact of a minor in the second or third degree, as provided in Section 30-9-13 NMSA 1978;

(3) sexual exploitation of children, as provided in [Subsection A, B or C of] Section 30-6A-3 NMSA 1978;

(4) kidnapping, as provided in Section

30-4-1 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim; [or]

(5) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;

(6) enticement of a child, as provided in Section 30-9-1 NMSA 1978; or

[(5)] (7) attempt to commit any of the sex offenses set forth in Paragraphs (1) through [(4)] (5) of this subsection, as provided in Section 30-28-1 NMSA 1978.

E. The department of public safety shall retain registration information regarding sex offenders convicted for the following offenses for a period of [ten] twenty years following the sex offender's conviction, release from prison or release from probation or parole, whichever occurs later:

(1) criminal sexual penetration in the third or fourth degree, as provided in Section 30-9-11 NMSA 1978;

(2) criminal sexual contact in the fourth degree, as provided in Section 30-9-12 NMSA 1978;

(3) criminal sexual contact of a minor in the fourth degree, as provided in Section 30-9-13 NMSA 1978;

(4) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;

(5) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when the victim is less than eighteen years of age and the offender is not a parent of the victim;

(6) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978; or

(7) attempt to commit any of the sex offenses set forth in Paragraphs (1) through (5) of this subsection, as provided in Section 30-28-1 NMSA 1978.

F. The department of public safety shall adopt rules necessary to carry out the provisions of the Sex Offender Registration and Notification Act."

Section 36. Section 29-11A-5.1 NMSA 1978 (being Laws 1999, Chapter 19, Section 8, as amended) is amended to read:

"29-11A-5.1. PUBLIC ACCESS TO INFORMATION REGARDING CERTAIN REGISTERED SEX OFFENDERS--ACTIVE COMMUNITY NOTIFICATION--INTERNET WEB SITE.--

A. If a sex offender is convicted of one of the following sex offenses, the county sheriff shall forward registration information obtained from the sex offender to the district attorney for the judicial district in which the sex offender resides and, if the sex offender is a resident of a municipality, the chief law enforcement officer for the municipality in which the sex offender resides:

(1) criminal sexual penetration in the first, [or] second or third degree, as provided in Section 30-9-11 NMSA 1978;

(2) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section 30-9-13 NMSA 1978;

(3) sexual exploitation of children, as provided in [Subsection A, B or C of] Section 30-6A-3 NMSA 1978;

(4) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978; or

(5) attempt to commit any of the sex offenses set forth in Paragraphs (1) through (4) of this subsection, as provided in Section 30-28-1 NMSA 1978.

B. A person who wants to obtain registration information regarding sex offenders described in Subsection A of this section may request that information from the:

(1) [county] sheriff for the county in which the sex offenders reside;

(2) chief law enforcement officer for the municipality in which the sex offenders reside;

(3) district attorney for the judicial district in which the sex offenders reside; or

(4) secretary of public safety.

C. Upon receiving a request for registration information regarding sex offenders described in Subsection A of this section, the county sheriff, chief municipal law enforcement officer, district attorney or secretary of public safety shall provide that registration information, with the exception of a sex offender's social security number, within a reasonable period of time, and no later than seven days after receiving the request.

D. Within seven days of receiving registration information from a sex offender described in Subsection A of this section, the county sheriff shall contact every licensed daycare center, elementary school, middle school and high school within a one-mile radius of the sex offender's residence and provide them with the sex offender's registration information, with the exception of the sex offender's social security number.

E. The department of public safety [may] shall establish and manage an internet web site that provides the public with registration information regarding sex offenders described in Subsection A of this section. The registration information provided to the public pursuant to this subsection shall not include a sex offender's social security number or a sex offender's place of employment, unless the sex offender's employment requires him to have direct contact with children."

Section 37. Section 33-2-34 NMSA 1978 (being Laws 1999, Chapter 238, Section 1) is amended to read:

"33-2-34. ELIGIBILITY FOR EARNED MERITORIOUS DEDUCTIONS.--

A. To earn meritorious deductions, a prisoner confined in a correctional facility designated by the corrections department must be an active participant in programs recommended for the prisoner by the classification committee and approved by the warden. Meritorious deductions shall not exceed the following amounts:

(1) for a prisoner confined for committing a serious violent offense, up to a maximum of four days per month of time served;

(2) for a prisoner confined for committing a nonviolent offense, up to a maximum of thirty days per month of time served;

(3) for a prisoner confined following revocation of parole for the alleged commission of a new felony offense or for absconding from parole, up to a maximum of four days per month of time served during the parole term following revocation; and

(4) for a prisoner confined following revocation of parole for a reason other than the alleged commission of a new felony offense or absconding from parole, up to a maximum of eight days per month of time served during the parole term following revocation.

B. A prisoner may earn meritorious deductions upon recommendation by the classification committee, based upon the prisoner's active participation in approved programs and the quality of the prisoner's participation in those approved programs. A prisoner may not earn meritorious deductions unless the recommendation of the classification committee is approved by the warden.

C. If a prisoner's active participation in approved programs is interrupted by a lockdown at a correctional facility, he may continue to be awarded meritorious deductions at the rate he was earning meritorious deductions prior to the lockdown, unless the warden determines that the prisoner's conduct contributed to the initiation or continuance of the lockdown.

D. A prisoner confined in a correctional facility designated by the corrections department is eligible for lump-sum meritorious deductions as follows:

(1) for successfully completing an approved vocational, substance abuse or mental health program, one month; except when the prisoner has a demonstrable physical, mental health or developmental disability that prevents the prisoner from successfully earning a general education diploma, in which case the prisoner shall be awarded three months;

(2) for earning a general education diploma, three months;

(3) for earning an associate's degree, four months;

(4) for earning a bachelor's degree, five months;

(5) for earning a graduate qualification, five months; and

(6) for engaging in a heroic act of saving life or property, engaging in extraordinary conduct for the benefit of the state or the public that is at great expense, risk or effort on behalf of the inmate, or engaging in extraordinary conduct far in excess of normal program assignments that demonstrates the prisoner's commitment to rehabilitate himself. The classification committee and the warden may recommend the number of days to be awarded in each case based upon the particular merits, but any award shall be determined by the director of the adult institutions division of the corrections department.

E. Lump-sum meritorious deductions, provided in Paragraphs (1) through (6) of Subsection D of this section, may be awarded in addition to the meritorious deductions provided in Subsections A and B of this section. Lump-sum meritorious deductions shall not exceed one year per award and shall not exceed a total of one year for all lump-sum meritorious deductions awarded in any consecutive twelve-month period.

F. A prisoner is not eligible to earn meritorious deductions if the prisoner:

(1) disobeys an order to perform labor, pursuant to Section 33-8-4 NMSA 1978;

(2) is in disciplinary segregation;

(3) is within the first sixty days of receipt by the corrections department; or

(4) is not an active participant in programs recommended and approved for him by the classification committee.

G. The provisions of this section shall not be interpreted as providing eligibility to earn meritorious deductions from a sentence of life imprisonment or a sentence of death.

H. The corrections department shall promulgate rules to implement the provisions of this section, and the rules shall be matters of public record. A concise summary of the rules shall be provided to each prisoner, and each prisoner shall receive a quarterly statement of the meritorious deductions earned.

I. A New Mexico prisoner confined in a federal or out-of-state correctional facility is eligible to earn meritorious deductions for active participation in programs on the basis of the prisoner's conduct and program reports furnished by that facility to the corrections department. All decisions regarding the award and forfeiture of meritorious deductions at such facility are subject to final approval by the director of the adult institutions division of the corrections department or [his] the director's designee.

J. In order to be eligible for meritorious deductions, a prisoner confined in a federal or out-of-state correctional facility designated by the corrections department must actively participate in programs that are available. If a federal or out-of-state correctional facility does not have programs available for a prisoner, the prisoner may be awarded meritorious deductions at the rate the prisoner could have earned meritorious deductions if the prisoner had actively participated in programs.

K. A prisoner confined in a correctional facility in New Mexico that is operated by a private company, pursuant to a contract with the corrections department, is eligible to earn meritorious deductions in the same manner as a prisoner confined in state-run correctional facilities. All decisions regarding the award or forfeiture of meritorious deductions at such facilities are subject to final approval by the director of the adult institutions division of the corrections department or [his] the director's designee.

L. As used in this section:

(1) "active participant" means a prisoner who has begun, and is regularly engaged in, approved programs;

(2) "program" means work, vocational, educational, substance abuse and mental health programs, approved by the classification committee, that contribute to a prisoner's self-betterment through the development of personal and occupational skills. "Program" does not include recreational activities;

(3) "nonviolent offense" means any offense other than a serious violent offense; and

(4) "serious violent offense" means:

(a) second degree murder, as provided in Section 30-2-1 NMSA 1978;

(b) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978;

(d) first degree kidnapping, as provided in Section 30-4-1 NMSA 1978;

(e) first and second degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(f) second and third degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(g) first and second degree robbery, as provided in Section 30-16-2 NMSA 1978;

(h) second degree aggravated arson, as provided in Section 30-17-6 NMSA 1978;

(i) shooting at a dwelling or occupied building, as provided in Section 30-3-8 NMSA 1978;

(j) shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

(k) aggravated battery upon a peace officer, as provided in Section 30-22-25 NMSA 1978;

(l) assault with intent to commit a violent felony upon a peace officer, as provided in Section 30-22-23 NMSA 1978;

(m) aggravated assault upon a peace officer, as provided in Section 30-22-22 NMSA 1978; and

(n) any of the following offenses, when the nature of the offense and the resulting harm are such that the court judges the crime to be a serious violent offense for the purpose of this section: 1) involuntary manslaughter, as provided in Section 30-2-3 NMSA 1978; 2) fourth degree aggravated assault, as provided in Section 30-3-2 NMSA 1978; 3) third degree assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978; 4) third and fourth degree aggravated stalking, as provided in Section 30-3A-3.1 NMSA 1978; 5) second degree kidnapping, as provided in Section 30-4-1 NMSA 1978; 6) second degree abandonment of a child, as provided in Section 30-6-1 NMSA 1978; 7) first, second and third degree abuse of a child, as provided in Section 30-6-1 NMSA 1978; 8) third degree dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978; 9) third and fourth degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; 10) fourth degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978; 11) third degree robbery, as provided in Section 30-16-2 NMSA 1978; 12) third degree homicide by vehicle or great bodily injury by vehicle, as provided in Section 66-8-101 NMSA 1978; and 13) battery upon a peace officer, as provided in Section 30-22-24 NMSA 1978."

Section 38. A new section of the Criminal Sentencing Act is enacted to read:

"[NEW MATERIAL] SENTENCING OF PERSONS CONVICTED OF CERTAIN SEXUAL OFFENSES AGAINST CHILDREN LESS THAN THIRTEEN YEARS OF AGE--TREATMENT WITH MEDROXYPROGESTERONE ACETATE OR ITS EQUIVALENT.--

A. A person convicted of criminal sexual penetration in the first degree when the victim is a child less than thirteen years of age shall, if paroled, undergo medroxyprogesterone acetate treatment or its chemical equivalent, in addition to any other treatment or punishment prescribed for that offense by the sentencing court.

B. A person required to undergo treatment pursuant to Subsection A of this section:

(1) shall be exempt from that treatment if he has undergone or does undergo a permanent surgical alternative to hormonal chemical treatment for sex offenders; and

(2) shall begin medroxyprogesterone acetate treatment one week prior to his release on parole from the physical custody of the corrections department or another institution and shall remain on the treatment program unless the parole board demonstrates to the satisfaction of the court sentencing the person pursuant to this section that the treatment is no longer necessary and the court enters an order to that effect.

C. The department of health shall administer and implement the protocols required by this section. These protocols shall include a requirement that the person subject to treatment pursuant to this section shall be informed in writing about the effect of hormonal chemical treatment and any side effects that may result from it. The person shall provide a receipt in writing indicating that this information has been communicated to him.

D. Nothing in the implementation of the protocols developed pursuant to Subsection C of this section shall require a medical doctor employed by the corrections department or the parole board to participate against his will in the program authorized by this section."

Section 39. SEVERABILITY.--If any part or application of this act is held invalid, the remainder or its application to other situations or persons shall not be affected.

Section 40. APPROPRIATION.--Eleven million dollars ($11,000,000) is appropriated from the general fund to the department of health for expenditure in fiscal years 2004 and 2005 to carry out the purposes of the Sexual Predator Civil Commitment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.

Section 41. APPROPRIATION.--One hundred fifty thousand dollars ($150,000) is appropriated from the general fund to the office of the attorney general for expenditure in fiscal years 2004 and 2005 to carry out the purposes of the Sexual Predator Civil Commitment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.

Section 42. APPROPRIATION.--One hundred fifty thousand dollars ($150,000) is appropriated from the general fund to the public defender department for expenditure in fiscal years 2004 and 2005 to carry out the purposes of the Sexual Predator Civil Commitment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.

Section 43. APPROPRIATION.--Two hundred thousand dollars ($200,000) is appropriated from the general fund to the administrative office of the courts for expenditure in fiscal years 2004 and 2005 to carry out the purposes of the Sexual Predator Civil Commitment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.

Section 44. APPROPRIATION.--Seventy thousand dollars ($70,000) is appropriated from the general fund to the department of health for expenditure in fiscal years 2004 and 2005 to carry out the purposes of Section 38 of this act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.

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