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F I S C A L I M P A C T R E P O R T

SPONSOR McSorley

DATE TYPED 2/14/05

HB

SHORT TITLE County Detention Facility Reform Act

SB 723

ANALYST Peery

REVENUE

Estimated Revenue

Subsequent

Years Impact

Recurring

or Non-Rec

Fund

Affected

FY05

FY06

See Narrative

(Parenthesis ( ) Indicate Revenue Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AGO)

New Mexico Corrections Department (NMCD)

No Response

Association of Counties

SUMMARY

Synopsis of Bill

Senate Bill 723 creates the “County Detention Facility Reform Act” in the State Treasury to be

administered by the New Mexico Corrections Department for the purpose of reimbursing coun-

ties for the incarceration of a “state prisoner”. The proposed legislation repeals Section 33-3-3

NMSA 1978, which provides that the county jail shall be used as the place of detention for every

person charged with or convicted of crimes and committed by lawful order.

The proposed legislation sets the rate of reimbursement at eight times the federal hourly mini-

mum wage per day, currently at around $41.20 per day. The proposed legislation requires the

Corrections Department to reimburse counties for the cost of providing ancillary services to

“state prisoners”, such as medical, dental, mental health, vision care, prescription drugs, ambula-

tory, and transportation services.

Significant Issues

NMCD reports a “state prisoner” is defined essentially as a person charged with or convicted of a

Senate Bill 723 -- Page 2

felony who:

•

Has violate his parole and is charged with a parole violation;

•

While on parole is charged with a violation of local, state, tribal, federal or international law;

•

Is awaiting transportation and commitment to the Corrections Department following pro-

nouncement of a judgment, sentence or order of confinement;

•

Is charged with a violation of his probation by the department or by a district court;

•

Is sentenced, ordered or removed by the district court to incarceration in a county detention

facility; or

•

Is incarcerated on the basis of an arrest and hold order or a warrant issued by the Corrections

Department.

PERFORMANCE IMPLICATIONS

NMCD states the proposed legislation contains no appropriation making the Department unable

to financially provide the programs and services it is obligated to perform.

FISCAL IMPLICATIONS

NMCD states the proposed legislation makes the Department responsible for reimbursing the

counties for these incarceration costs and for ancillary services; however, the bill appropriates no

money to NMCD or any other entity to cover these costs.

Continuing Appropriations

This bill creates a new fund and provides for continuing appropriations. The LFC objects to in-

cluding continuing appropriation language in the statutory provisions for newly created funds.

Earmarking reduces the ability of the legislature to establish spending priorities.

ADMINISTRATIVE IMPLICATIONS

NMCD states they will not be able to administer its prison and probation/parole programs if this

bill becomes law because the Department will lack the money needed to both administer its pro-

grams and still be able to pay the counties for these incarceration costs and ancillary services.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

This bill is identical to Senate Bill 517 and House Bill 710, except is does not contain an appro-

priation for $18,835.0.

TECHNICAL ISSUES

AGO states Section 2B uses the phrase “under contract of operation.” AGO questions does that

mean a private independent contractor is operating the jail. AGO states Section 3D uses the

phrase “is charged with …by a district court.” AGO reports a district court does not charge par-

ties. AGO states Section 4 mandates reimbursement for holding each prisoner at a certain rate.

It adds there shall be reimbursement for providing ancillary services for each prisoner. AGO

questions is this a subset of the first sentence or an additional cost. If it is an additional charge,

how will the amounts be determined.

Senate Bill 723 -- Page 3

NMCD states the definition of “state prisoner” includes those offenders who have only been

charged, but not convicted, of a crime. NMCD reports this is an extremely broad and unusual

definition of a state prisoner. NMCD reports typically, a person would only become a state pris-

oner if he or she were first convicted of a crime and then sentenced to the custody of the Correc-

tions Department.

OTHER SUBSTANTIVE ISSUES

AGO states Section 2E appears to be the first attempt in New Mexico law to define the term

“state prisoner”. AGO has concerns that state prisoners are going to look at this definition and

attempt to craft an appeal based on not being a state prisoner under the definition. AGO suggests

the definition should likely use language “means only in this section”, the definition should clar-

ify which state, and the definition should likely use language “only a misdemeanor” because

some prisoners may have concurrently committed both a misdemeanor and felony.

AGO reports Section 6 that repeals Section 33-3-3 has nothing to do with state prisoners. Its re-

peal would appear to delete the statutory requirement that county jails are available to hold

county inmates.

NMCD states that if Section 33-3-3 were repealed there would be no statutory provision in law

requiring county jails to house persons charged with criminal offenses. The counties might then

attempt to argue that they are not obligated to house arrestees of “state prisoners”, and that they

have no obligation to jail any persons convicted in their counties of any misdemeanor or felony

crimes.

ALTERNATIVES

NMCD suggest amending the bill to make a reasonable appropriation to the Department in the

amount of $26,000.0 to $30,000.0, and to specifically and clearly limit the Corrections Depart-

ment’s liability to reimburse the counties to the amount of the appropriation and other monies

contained in the County Detention Facility Reform Fund.

NMCD states if the bill is amended to make an appropriation, the bill should also be amended to

allow the Department 3 percent of the appropriated money to hire FTEs and otherwise administer

the fund in order to off set the significant administrative burden. NMCD further states that if this

is not done, the bill should be amended to state the Local Government Division of DFA should

administer the fund.

NMCD states if the bill is amended to make an appropriation, the bill should also be amended to

make it absolutely clear that the only money that the counties will receive for these incarceration

costs will be the money in the fund. Also, to clarify the Department is not obligated to pay any

such costs once or if the fund monies are ever expended.

Finally, NMCD states that Section 33-3-3 NMSA 1978 should not be appealed. NMCD reports

if repealed, the counties will have no obligation to house or incarcerate any persons that have

been charged with or convicted of any criminal offenses in their counties.

RLP/yr:lg