SENATE BILL 452
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Joseph J. Carraro
AN ACT
RELATING TO SEXUAL OFFENDERS; PROVIDING FOR THE INVOLUNTARY CIVIL COMMITMENT OF SEXUAL PREDATORS; ENACTING THE SEXUAL PREDATOR CIVIL COMMITMENT ACT; MAKING APPROPRIATIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Sexual Predator Civil Commitment Act".
Section 2. 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 abnormality or personality disorder 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. 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 the person's behavior;
E. "mental abnormality or personality disorder" means a congenital or acquired condition that affects the emotional or volitional capacity of a person and predisposes the person to commit sexually violent offenses;
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 solicitation by computer, 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 at the time of sentencing for the offense 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 the person's 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. 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 potential 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 potential predator who has been convicted of a sexually violent offense, except that, in the case of a potential predator 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 potential predator's readmission to confinement;
(2) the release of a potential predator 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 potential predator 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. In consultation with the sex offender management board created pursuant to Section 9-3-13 NMSA 1978, the secretary of corrections shall establish a multidisciplinary team, which may include individuals from other state agencies, to review available records of each potential predator 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 potential predator 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 potential predator 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 potential predator otherwise subject to commitment pursuant to the Sexual Predator Civil Commitment Act.
Section 5. 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 with jurisdiction as provided in Subsection A of Section 4 of the Sexual Predator Civil Commitment Act, alleging that the potential predator 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 potential predator otherwise subject to the provisions of the Sexual Predator Civil Commitment Act.
Section 6. 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. 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 potential predator 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 potential predator shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist the potential predator.
C. When a potential predator is subjected to an examination pursuant to the Sexual Predator Civil Commitment Act, the potential predator may retain experts or professional persons to perform an examination on the potential predator's behalf. When the potential predator wishes to be examined by a qualified expert or professional person of the potential predator's own choice, the examiner shall have reasonable access to the potential predator 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. 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 potential predator 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 mental abnormality or personality disorder has changed so that the committed person is no longer a menace to the health and safety of others and is safe to be at large. The care, treatment and control of the committed person 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 potential predator is a sexually violent predator, the court shall direct the potential predator's release.
D. Upon a mistrial, the court shall direct that the potential predator 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 potential predator's incompetence or developmental disability affected the outcome of the hearing, including its effect on the potential predator's ability to consult with and assist counsel and to testify on the potential predator's own behalf, the extent to which the evidence could be reconstructed without the assistance of the potential predator 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 potential predator 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. ANNUAL EXAMINATION AND REVIEW.--
A. A sexually violent predator 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 committed person. The professional shall have access to all records concerning the committed person. An annual report shall be provided by the secretary to the court that committed the sexually violent predator, 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 committed person's mental abnormality or personality disorder has changed so that the committed person is no longer a menace to the health and safety of others and 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 a menace to the health and safety of others and is not safe to be placed in transitional release and that 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 an appropriate candidate 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. 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 committed person is not likely to commit a sexually violent offense 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 a menace to the health and safety of others 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 an appropriate candidate for transitional release, the court shall order that the 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 committed person to the transitional release program.
Section 11. 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 a transitional release program, the committed 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 a 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. CONDITIONAL RELEASE.--
A. During the period when a committed person is in a transitional release program, the committed 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 committed person's mental abnormality or personality disorder has changed so as to warrant the committed person being considered for a conditional release program. 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 committed person is no longer a menace to the health and safety of others and is safe to be placed in a conditional release program, 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 committed person is a menace to the health and safety of others and 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 an appropriate candidate for a conditional release program, the court shall order that the committed person remain either in secure commitment or in a transitional release program. Otherwise, the court shall order that the committed person be placed in a conditional release program.
Section 13. 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 in a conditional release program, the court, based upon the recommendation of the treatment staff, shall establish a plan of treatment that the committed 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 other places 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 committed person accepts the plan of treatment and is prepared to follow it, the court shall release the committed 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 committed person's treatment plan, the treatment staff or other professionals directed by the court may examine the committed 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 an appropriate candidate 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 committed person's mental abnormality or personality disorder remains such that the person is not an appropriate candidate for final discharge. 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.
D. If, after a hearing, the court is convinced beyond a reasonable doubt that the committed person is not an appropriate candidate 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 committed person finally discharged. In the event the court does not order final discharge of the committed person, the committed person still retains the right to annual reviews.
E. At any time during which a committed person is in a conditional release program 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 committed 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 a conditional 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 the conditional release program. 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 the conditional release program, 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 the conditional release program.
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. 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 employment.
Section 15. 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 committed 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 committed person was no longer a menace to the health and safety of others and 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. 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. 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. 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. 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. INELIGIBILITY FOR BAIL, BOND, HOUSE ARREST OR OTHER RELEASE.--A potential predator 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. 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 a transitional release program, of committed persons who are not indigent by assessing a fee pursuant to Section 43-1-25 NMSA 1978.
Section 22. APPROPRIATIONS.--
A. Eleven million dollars ($11,000,000) is appropriated from the general fund to the department of health for expenditure in fiscal year 2008 to carry out the purposes of the Sexual Predator Civil Commitment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2008 shall revert to the general fund.
B. One hundred fifty thousand dollars ($150,000) is appropriated from the general fund to the office of the attorney general for expenditure in fiscal year 2008 to carry out the purposes of the Sexual Predator Civil Commitment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2008 shall revert to the general fund.
C. One hundred fifty thousand dollars ($150,000) is appropriated from the general fund to the public defender department for expenditure in fiscal year 2008 to carry out the purposes of the Sexual Predator Civil Commitment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2008 shall revert to the general fund.
D. Two hundred thousand dollars ($200,000) is appropriated from the general fund to the administrative office of the courts for expenditure in fiscal year 2008 to carry out the purposes of the Sexual Predator Civil Commitment Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2008 shall revert to the general fund.
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