HB 193

Page 1

AN ACT

RELATING TO THE PUBLIC DEFENDER; CREATING THE PUBLIC DEFENDER

COMMISSION TO OVERSEE THE OPERATION OF THE PUBLIC DEFENDER

DEPARTMENT AS AN ADJUNCT AGENCY AND TO DEVELOP STANDARDS;

MODIFYING THE APPOINTMENT, QUALIFICATIONS AND REMOVAL OF THE

CHIEF PUBLIC DEFENDER; DETACHING THE PUBLIC DEFENDER

DEPARTMENT FROM THE CORRECTIONS DEPARTMENT.

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

Section 1. Section 31-15-1 NMSA 1978 (being Laws 1973,

Chapter 156, Section 1) is amended to read:

"31-15-1. SHORT TITLE.-- Chapter 31, Article 15 NMSA

1978 may be cited as the "Public Defender Act"."

Section 2. Section 31-15-2 NMSA 1978 (being Laws 1973,

Chapter 156, Section 2, as amended) is amended to read:

"31-15-2. DEFINITIONS.--As used in the Public Defender

Act:

A. "chief" means the chief public defender;

B. "commission" means the public defender

commission;

C. "court" means the district, metropolitan and

magistrate courts of this state;

D. "department" means the public defender

department;

E. "district" means a public defender district;

HB 193

Page 2

and

F. "judge" means a judge of the district or

metropolitan court or a magistrate."

Section 3. A new section of the Public Defender Act is

enacted to read:

"PUBLIC DEFENDER COMMISSION--CREATED--MEMBERSHIP--

TERMS--REMOVAL.--

A. The "public defender commission" is created and

consists of eleven members. Members shall be appointed as

follows:

(1) the governor shall appoint two members,

one of whom shall be a member of an organization that

advocates on behalf of persons with mental illness;

(2) the chief justice of the supreme court

shall appoint two members, one of whom shall be a member of an

organization that advocates on behalf of homeless persons;

(3) the dean of the university of New Mexico

school of law shall appoint two members, one of whom shall be

a member of an organization that advocates on behalf of an

ethnic minority and one of whom shall be from a county with a

population of not more than one hundred twenty thousand

persons;

(4) the president of the state bar of New

Mexico shall appoint one member who shall be from a county

with a population of not more than one hundred twenty thousand

HB 193

Page 3

persons;

(5) the speaker of the house of

representatives shall appoint one member;

(6) the president pro tempore of the senate

shall appoint one member;

(7) the New Mexico criminal defense lawyers

association shall appoint one member; and

(8) the juvenile justice advisory committee

shall appoint one member.

B. Initial appointments to the commission shall be

made by August 1, 2008. Initial terms of members appointed by

the dean of the university of New Mexico school of law, the

New Mexico criminal defense lawyers association and the

juvenile justice advisory committee shall be for four years;

initial terms of members appointed by the president of the

state bar of New Mexico, the speaker of the house of

representatives and the president pro tempore of the senate

shall be for three years; and initial terms of members

appointed by the governor and the chief justice of the supreme

court shall be for two years.

C. Subsequent terms shall be for four years. A

commission member shall not serve more than two consecutive

terms. A commission member shall serve until the member's

successor has been appointed and qualified. A vacancy on the

commission shall be filled by the appointing authority for the

HB 193

Page 4

remainder of the unexpired term.

D. A member may be removed by the commission for

malfeasance, misfeasance or neglect of duty. If a member's

professional status changes to render the member ineligible

pursuant to Section 4 of this 2008 act, the member shall

resign immediately.

E. Members of the commission are entitled to

compensation pursuant to the provisions of the Per Diem and

Mileage Act and shall receive no other perquisite,

compensation or allowance.

F. The commission is administratively attached to

the department, and staff for the commission shall be provided

by the department."

Section 4. A new section of the Public Defender Act is

enacted to read:

"PUBLIC DEFENDER COMMISSION--MEMBER

QUALIFICATIONS.--

A. A person appointed to the commission shall

have:

(1) significant experience in the defense of

criminal or juvenile justice cases; or

(2) demonstrated a commitment to quality

indigent defense representation or to working with and

advocating for the population served by the department.

B. The following persons shall not be appointed to

HB 193

Page 5

and shall not serve on the commission:

(1) current prosecutors, law enforcement

officials or employees of prosecutors or law enforcement

officials;

(2) current public defenders or other

employees of the department;

(3) current judges, judicial officials or

employees of judges or judicial officials;

(4) current elected officials or employees

of elected officials; or

(5) persons who currently contract with or

receive funding from the department or employees of such

persons."

Section 5. A new section of the Public Defender Act is

enacted to read:

"PUBLIC DEFENDER COMMISSION--ORGANIZATION--MEETINGS.--

A. The commission shall hold its first meeting by

September 1, 2008 and shall organize and elect a chair at that

meeting. Thereafter, three or more meetings shall be held

annually as determined by a majority of commission members.

Meetings shall be held at the call of the chair or the chief

or at the request of four commission members.

B. A majority of commission members constitutes a

quorum for the transaction of business, and an action by the

commission is not valid unless six or more members concur.

HB 193

Page 6

C. The commission may adopt rules and shall keep a

record of its proceedings.

D. A commission member may select a designee to

serve in the member's stead only once per year."

Section 6. A new section of the Public Defender Act is

enacted to read:

"PUBLIC DEFENDER COMMISSION--POWERS AND DUTIES.--

A. The commission shall exercise independent

oversight of the department and provide guidance to the chief

in the administration of the department and the representation

of indigent persons pursuant to the Public Defender Act.

B. The commission shall develop fair and

consistent standards for the operation of the department and

the provision of services pursuant to the Public Defender Act,

including standards relating to:

(1) the minimum experience, training and

qualifications for appointed, contract and staff attorneys in

both adult and juvenile cases;

(2) monitoring and evaluating appointed,

contract and staff attorneys;

(3) ethically responsible caseload and

workload levels and workload monitoring protocols for staff

attorneys, contract attorneys and district defender offices;

(4) the competent and efficient

representation of clients whose cases present conflicts of

HB 193

Page 7

interest; and

(5) qualifications and performance of

appointed, contract and staff attorneys in capital cases at

the trial, appellate and post-conviction levels.

C. The commission shall not interfere with the

discretion or the professional judgment or advocacy of a

public defender office, a public defender contractor or an

assigned counsel in the representation of individual cases."

Section 7. Section 31-15-4 NMSA 1978 (being Laws 1973,

Chapter 156, Section 4, as amended) is amended to read:

"31-15-4. CHIEF PUBLIC DEFENDER--APPOINTMENT--

QUALIFICATIONS--REMOVAL.--

A. The chief shall be the administrative head of

the department. The commission shall appoint a chief for a

term of four years by approval of two-thirds of its members.

The commission may reappoint a chief for subsequent terms. A

vacancy in the office of the chief shall be filled by

appointment by the commission.

B. The commission shall appoint as chief only a

person with the following qualifications:

(1) an attorney licensed to practice law in

the highest court of this state or who will be so licensed

within one year of appointment;

(2) an attorney whose practice of law has

been continuously active for at least seven years immediately

HB 193

Page 8

preceding the date of this appointment;

(3) an attorney whose practice of law has

clearly demonstrated experience in defense of persons accused

of crime; and

(4) an attorney who has clearly demonstrated

management or executive experience.

C. The chief may be removed by the commission only

for incompetence, neglect of duty or malfeasance in office;

provided, however, that no removal shall be made without

notice of hearing and an opportunity to be heard having been

first given to the chief."

Section 8. Section 31-15-5 NMSA 1978 (being Laws 1978,

Chapter 14, Section 1) is amended to read:

"31-15-5. PUBLIC DEFENDER DEPARTMENT--CREATION--

ADMINISTRATION--FINANCE.--

A. The "public defender department" is created as

an adjunct agency of the executive branch. The headquarters

of the department shall be maintained at Santa Fe. The chief

shall be the administrative head of the department. The

commission shall oversee the department and provide guidance

to the chief.

B. All salaries and other expenses of the

department shall be paid by warrants of the secretary of

finance and administration, supported by vouchers signed by

the chief or the chief's authorized representative and in

HB 193

Page 9

accordance with budgets approved by the state budget division

of the department of finance and administration."

Section 9. Section 31-15-7 NMSA 1978 (being Laws 1973,

Chapter 156, Section 7, as amended) is amended to read:

"31-15-7. CHIEF PUBLIC DEFENDER--GENERAL DUTIES AND

POWERS.--

A. The chief is responsible to the commission for

the operation of the department. It is the chief's duty to

manage all operations of the department and to:

(1) administer and carry out the provisions

of the Public Defender Act with which the chief is charged;

and

(2) exercise authority over and provide

general supervision of employees of the department.

B. To perform the chief's duties, the chief has

every power implied as necessary for that purpose, those

powers expressly enumerated in the Public Defender Act or

other laws and full power and authority to:

(1) exercise general supervisory authority

over all employees of the department subject to the Personnel

Act;

(2) delegate authority to subordinates as

the chief deems necessary and appropriate;

(3) within the limitations of applicable

appropriations and applicable laws, employ and fix the

HB 193

Page 10

compensation of those persons necessary to discharge the

chief's duties;

(4) organize the department into those units

the chief deems necessary and appropriate to carry out the

chief's duties;

(5) conduct research and studies that will

improve the operation of the department and the administration

of the Public Defender Act;

(6) provide courses of instruction and

practical training for employees of the department that will

improve the operation of the department and the administration

of the Public Defender Act;

(7) purchase or lease personal property and

lease real property for the use of the department;

(8) maintain records and statistical data

that reflect the operation and administration of the

department;

(9) submit an annual report and budget

covering the operation of the department together with

appropriate recommendations to the commission and, upon

approval by the commission, to the legislature and the

governor;

(10) serve as defense counsel under the

Public Defender Act as necessary and appropriate;

(11) formulate a fee schedule for attorneys

HB 193

Page 11

who are not employees of the department who serve as counsel

for indigent persons under the Public Defender Act;

(12) adopt a standard to determine

indigency;

(13) provide for the collection of

reimbursement from each person who has received legal

representation or another benefit under the Public Defender

Act after a determination is made that the person was not

indigent according to the standard for indigency adopted by

the department. Any amounts recovered shall be paid to the

state treasurer for credit to the general fund;

(14) require each person who desires legal

representation or another benefit under the Public Defender

Act to enter into a contract with the department agreeing to

reimburse the department if a determination is made that the

person was not indigent according to the standard for

indigency adopted by the department; and

(15) certify contracts and expenditures for

litigation expenses, including contracts and expenditures for

professional and nonprofessional experts, investigators and

witness fees, but not including attorney contracts, pursuant

to the provisions of the Procurement Code."

Section 10. Section 9-3-11 NMSA 1978 (being Laws 1977,

Chapter 257, Section 12) is amended to read:

"9-3-11. ADMINISTRATIVE ATTACHMENT.--

A. The following entities are administratively

attached to the corrections department:

(1) the adult parole board; and

(2) the governor's organized crime

prevention commission.

B. All powers and duties vested in the entities

enumerated in this section shall remain unamended by the

provisions of the Corrections Department Act."

Section 11. TEMPORARY PROVISION.--The chief public

defender serving on June 30, 2008 shall continue serving until

a chief public defender is appointed by the public defender

commission. Nothing in this act prohibits the public defender

commission from reappointing the chief public defender serving

on June 30, 2008.

Section 12. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2008.

HB 193

Page 12