HOUSE BILL 104
48th legislature - STATE OF NEW MEXICO - second session, 2008
INTRODUCED BY
Gail Chasey
FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE
AN ACT
RELATING TO CRIME VICTIM REPARATION; PROVIDING A REPARATION AWARD TO CHILDREN OF MURDER VICTIMS; PROVIDING SERVICES AND PROGRAMS TO FAMILY MEMBERS OF MURDER VICTIMS; CREATING THE MURDER VICTIM FAMILY SERVICES FUND; AMENDING AND ENACTING SECTIONS OF THE CRIME VICTIMS REPARATION ACT; MAKING APPROPRIATIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 31-22-3 NMSA 1978 (being Laws 1981, Chapter 325, Section 3, as amended) is amended to read:
"31-22-3. DEFINITIONS.--As used in the Crime Victims Reparation Act:
A. "child" [means an unmarried person who is under the age of majority and] includes a stepchild and an adopted child;
B. "collateral source" includes benefits for economic loss otherwise reparable under the Crime Victims Reparation Act [which] that the victim or claimant has received or [which] that are readily available to [him] the victim or claimant from:
(1) the offender;
(2) social security, medicare and medicaid;
(3) workers' compensation;
(4) proceeds of a contract of insurance payable to the victim;
(5) a contract providing prepaid hospital and other health care services or benefits for disability, except for the benefits of any life insurance policy;
(6) applicable indigent funds; or
(7) cash donations;
C. "commission" means the crime victims reparation commission;
D. "dependents" means those relatives of the deceased or disabled victim who are more than fifty percent dependent upon the victim's income at the time of [his] the victim's death or disability and includes the child of a victim born after [his] the victim's death or disability;
E. "director" means the director of the commission;
[E.] F. "family relationship group" means any person related to another person within the fourth degree of consanguinity or affinity;
[F.] G. "injury" means actual bodily harm or disfigurement and includes pregnancy and extreme mental distress. For the purposes of this subsection, "extreme mental distress" means a substantial personal disorder of emotional processes, thought or cognition that impairs judgment, behavior or ability to cope with the ordinary demands of life;
H. "parent" means a natural parent, adoptive parent or stepparent;
[G.] I. "permanent total disability" means loss of both legs or arms, loss of one leg and one arm, total loss of eyesight, paralysis or other physical condition permanently incapacitating the worker from performing any work at any gainful occupation;
[H.] J. "relative" means a person's spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half-brother, half-sister or spouse's parents; and
[I.] K. "victim" means:
(1) a person in New Mexico who is injured or killed by any act or omission of any other person that is a crime enumerated in Section 31-22-8 NMSA 1978;
(2) a resident of New Mexico who is injured or killed by such a crime occurring in a state other than New Mexico if that state does not have an eligible crime victims compensation program; or
(3) a resident of New Mexico who is injured or killed by an act of international terrorism, as provided in 18 U.S.C. Section 2331."
Section 2. Section 31-22-7 NMSA 1978 (being Laws 1981, Chapter 325, Section 7, as amended) is amended to read:
"31-22-7. ELIGIBILITY FOR REPARATION.--
A. In the event [any] a person is injured or killed by [any] an act or omission of [any other] another person coming within the criminal jurisdiction of the state after [the effective date of the Crime Victims Reparation Act] July 1, 1981, which act or omission includes a crime enumerated in Section 31-22-8 NMSA 1978, and upon application for reparation, the commission may award reparation in accordance with the Crime Victims Reparation Act:
(1) to the victim;
(2) in the case of the victim's death, to or for the benefit of any one or more of the deceased victim's dependents or children; or
(3) to [any] an individual who voluntarily assumes funeral or medical expenses of the victim.
B. For the purpose of the Crime Victims Reparation Act, a person shall be deemed to have intentionally committed an act or omission, notwithstanding that by reason of age, insanity, drunkenness or otherwise [he] the person was legally incapable of forming a criminal intent.
C. In determining whether to make an order under this section, the commission may consider any circumstances it determines to be relevant. The commission shall consider the behavior of the victim and whether, because of provocation or otherwise, the victim bears responsibility for the crime that caused [his] the victim's injury or death and shall reduce the amount of reparation in accordance with its assessment of the degree of responsibility attributable to the victim.
D. An order may be made under this section whether or not any person is prosecuted for or convicted of a crime enumerated in Section 31-22-8 NMSA 1978; provided an arrest has been made or the act or omission constituting such a crime has been reported to the police in a reasonable time. No order may be made under this section unless the commission finds that:
(1) the crime did occur;
(2) the injury or death of the victim resulted from the crime; and
(3) the claimant or victim fully cooperated with the appropriate law enforcement agencies.
E. Upon application from the district attorney of the appropriate district, the commission may suspend proceedings under the Crime Victims Reparation Act for such period as it deems desirable on the [ground] grounds that a prosecution for the crime has commenced or is imminent."
Section 3. Section 31-22-8 NMSA 1978 (being Laws 1981, Chapter 325, Section 8, as amended) is amended to read:
"31-22-8. CRIMES ENUMERATED.--
A. The crimes to which the Crime Victims Reparation Act applies and for which reparation [to victims] may be made are the following enumerated offenses and all other offenses in which any enumerated offense is necessarily included:
(1) arson resulting in bodily injury;
(2) aggravated arson;
(3) aggravated assault or aggravated battery;
(4) dangerous use of explosives;
(5) negligent use of a deadly weapon;
(6) murder;
(7) voluntary manslaughter;
(8) involuntary manslaughter;
(9) kidnapping;
(10) criminal sexual penetration;
(11) criminal sexual contact of a minor;
(12) homicide by vehicle or great bodily injury by vehicle, as provided in Section 66-8-101 NMSA 1978;
(13) abandonment or abuse of a child;
(14) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978; and
(15) aggravated stalking, as provided in Section 30-3A-3.1 NMSA 1978.
B. No award shall be made for any loss or damage to property."
Section 4. Section 31-22-9 NMSA 1978 (being Laws 1981, Chapter 325, Section 9, as amended) is amended to read:
"31-22-9. AWARD OF REPARATION.--The commission may order payment of reparation for:
A. expenses actually and reasonably incurred as a result of the victim's injury or death;
B. loss to the victim of earning power as a result of total or partial incapacity;
C. loss of a parent to murder when the child is under twenty-six years of age at the time of the loss;
[C.] D. any other pecuniary loss directly resulting from the victim's injury or death [which] that the commission determines to be reasonable and proper; and
[D.] E. any expenses incurred for rehabilitation services provided to a victim of child abuse or neglect, including child sexual abuse, but awards made pursuant to this subsection shall be made directly to the provider of the rehabilitation services for payment of those services."
Section 5. Section 31-22-14 NMSA 1978 (being Laws 1981, Chapter 325, Section 14, as amended) is amended to read:
"31-22-14. LIMITATIONS ON AWARD--COLLATERAL RECOVERY--
PRELIMINARY AWARD.--
A. No order for the payment of reparation shall be made unless application has been made within two years after the date of the injury or death and the injury or death was the result of a crime enumerated in Section 31-22-8 NMSA 1978 that had been reported to the police within thirty days after its occurrence unless a longer period is allowed pursuant to Subsection F of this section. In no event shall reparation be given unless application has been made within two years after the injury or death, except for minors who are victims of criminal activity under the provisions of Section 30-6-1 NMSA 1978, regarding abandonment or abuse of a child, Section 30-9-11 NMSA 1978, regarding criminal sexual penetration, or Section 30-9-13 NMSA 1978, regarding criminal sexual contact of a minor. The date of incident for minors who are victims of these types of criminal activity shall be the date the victim attains the age of eighteen years or the date that the criminal activity is reported to a law enforcement agency, whichever occurs first.
B. No award of reparation shall be in excess of twenty thousand dollars ($20,000) per victim except that the commission may award up to:
(1) an additional ten thousand dollars ($10,000) to a child who loses a parent to murder when the child is under twenty-six years of age at the time of the loss; or
(2) an additional thirty thousand dollars ($30,000) for extraordinary pecuniary losses, if the personal injury to a victim is catastrophic and results in a permanent total disability. The extraordinary losses compensated may include:
[(1)] (a) loss of wages;
[(2)] (b) the cost of home health care;
[(3)] (c) the cost of making a home or automobile accessible;
[(4)] (d) the cost of training in the use of special application; or
[(5)] (e) job training.
C. Except as provided by Subsection E of this section, the commission shall deduct from any reparation awarded any payments received from a collateral source or from the United States or the state or any of its political subdivisions for injury or death subject to reparation under the Crime Victims Reparation Act. If the claimant receives an award of reparation from the commission and also receives payment as set forth in the preceding sentence for which no deduction was made, the claimant shall refund to the state the lesser of the amount of reparation paid or the sums not so deducted.
D. If the claimant receives an award of reparation from the commission and also receives an award pursuant to a civil judgment arising from a criminal occurrence for which a reparation award was paid, the claimant shall refund to the state the amount of the reparation paid to [him] the claimant. The commission may negotiate a reasonable settlement regarding repayment of the reparation award if special circumstances exist.
E. If it appears that a final award of reparation will be made by the commission, a preliminary award may be authorized by the [director of the commission] or the commission's designee when the commission [chairman] chair concurs. The amount of the preliminary award shall be deducted from any final award made by the commission.
F. The commission may grant a waiver to the requirement in Subsection A of this section that a crime be reported to the police within thirty days of its occurrence for:
(1) a victim of domestic violence or sexual assault if reported to the police within one hundred eighty days of the occurrence; or
(2) a crime against a child that was reported within thirty days of its occurrence to the children, youth and families department, a domestic violence or sexual assault service provider, a teacher or a health care provider; provided that a police report shall be filed before the commission approves payment."
Section 6. A new section of the Crime Victims Reparation Act is enacted to read:
"[NEW MATERIAL] MURDER VICTIM FAMILY SERVICES FUND-- CREATED--PURPOSE--ADMINISTRATION--DISBURSEMENTS.--
A. The "murder victim family services fund" is created as a nonreverting fund in the state treasury. The fund shall be administered by the crime victims reparation commission and shall consist of appropriations, gifts, grants, donations and bequests made to the fund.
B. Money in the murder victim family services fund is subject to appropriation by the legislature to the crime victims reparation commission for awarding grants to nonprofit organizations for the provision of cost-effective services, victim advocacy, support and educational programs to children and adults who have lost a person within their family relationship group to murder. Money in the fund may also be used to administer the fund.
C. The crime victims reparation commission shall adopt rules on qualifications for grants and shall specify the format, procedure and deadlines for grant applications. The director shall review all grant applications and shall submit those applications recommended for final approval to the commission.
D. Disbursements from the murder victim family services fund shall be made upon vouchers issued and signed by the director or the director's designee upon warrants drawn by the secretary of finance and administration. Disbursements of grants made pursuant to this section shall not be subject to the Procurement Code."
Section 7. Section 31-22-15 NMSA 1978 (being Laws 1981, Chapter 325, Section 15) is amended to read:
"31-22-15. EXEMPTION FROM EXECUTION.--No reparation payable under the Crime Victims Reparation Act shall be, prior to its actual receipt by the victim or [dependents] others entitled thereto or their legal representatives, assignable or subject to garnishment, execution, attachment or other process whatsoever, including process to satisfy an order or judgment for support or alimony."
Section 8. Section 31-22-16 NMSA 1978 (being Laws 1981, Chapter 325, Section 16) is amended to read:
"31-22-16. SURVIVAL OR ABATEMENT.--The rights to reparation created by the Crime Victims Reparation Act are personal and shall not survive the death of the victim or [dependents] others entitled thereto; provided that if such death occurs after an application for reparation has been filed with the commission, the proceeding shall not abate but may be continued by the legal representative of the decedent's estate."
Section 9. Section 31-22-21 NMSA 1978 (being Laws 1981, Chapter 325, Section 21, as amended) is amended to read:
"31-22-21. CRIME VICTIMS REPARATION FUND CREATED--PURPOSES.--
A. There is created in the state treasury the "crime victims reparation fund".
B. Money in the crime victims reparation fund may be expended by the commission to:
(1) pay any award of reparation [to victims] made pursuant to the Crime Victims Reparation Act;
(2) pay costs and expenses, including staff salaries and expenses incurred in carrying out the provisions of the Crime Victims Reparation Act; and
(3) contract with one or more attorneys or law firms on a per-hour basis to provide legal services to the commission.
[C. The provisions of this section are effective July 1, 1990.]"
Section 10. APPROPRIATIONS.--
A. Five hundred thousand dollars ($500,000) is appropriated from the general fund to the crime victims reparation fund for expenditure in fiscal year 2009 to provide reparation to children of murder victims pursuant to the Crime Victims Reparation Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2009 shall revert to the general fund.
B. One million dollars ($1,000,000) is appropriated from the general fund to the murder victim family services fund for expenditure in fiscal year 2009 and subsequent fiscal years for awarding grants to nonprofit organizations for services, victim advocacy, support and educational programs to persons who have lost a person within their family relationship group to murder and for administration of the fund. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.
Section 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2008.
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