CRIMINAL COMPETENCY STATUTE CROSS REFERENCES

HB0052

HOUSE BILL 52

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Andrea Reeb
and
Luis M. Terrazas
and
Pete Campos

AN ACT

RELATING TO STATUTORY RECONCILIATION; CORRECTING CROSS-REFERENCES TO SECTION 33-2-34 NMSA 1978 (BEING LAWS 1999,
CHAPTER 238, SECTION 1, AS AMENDED BY LAWS 2025, CHAPTER 29,
SECTION 1 AND BY LAWS 2025, CHAPTER 79, SECTION 4) BY MAKING
CONFORMING AMENDMENTS TO SECTION 30-7-16 NMSA 1978 (BEING LAWS
1981, CHAPTER 225, SECTION 1, AS AMENDED), SECTION 31-3-12 NMSA
1978 (BEING LAWS 2022, CHAPTER 56, SECTION 28), SECTION
31-9-1.2 NMSA 1978 (BEING LAWS 1988, CHAPTER 107, SECTION 3 AND
LAWS 1988, CHAPTER 108, SECTION 3, AS AMENDED), SECTION
31-9-1.4 NMSA 1978 (BEING LAWS 1988, CHAPTER 107, SECTION 5 AND
LAWS 1988, CHAPTER 108, SECTION 5, AS AMENDED), SECTION
31-9-1.5 NMSA 1978 (BEING LAWS 1988, CHAPTER 107, SECTION 6 AND
LAWS 1988, CHAPTER 108, SECTION 6, AS AMENDED), SECTION
31-9-1.6 NMSA 1978 (BEING LAWS 1997, CHAPTER 153, SECTION 1, AS
AMENDED), SECTION 31-18-16 NMSA 1978 (BEING LAWS 1977, CHAPTER
216, SECTION 5, AS AMENDED), SECTION 33-2A-3 NMSA 1978 (BEING
LAWS 2002, CHAPTER 8, SECTION 3) AND SECTION 33-11-3 NMSA 1978
(BEING LAWS 1988, CHAPTER 78, SECTION 3, AS AMENDED).

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

SECTION 1.
Section 30-7-16 NMSA 1978 (being Laws 1981,
Chapter 225, Section 1, as amended) is amended to read:

"30-7-16. FIREARMS OR DESTRUCTIVE DEVICES--RECEIPT,
TRANSPORTATION OR POSSESSION BY CERTAIN PERSONS--PENALTY.--

A. It is unlawful for the following persons to
receive, transport or possess a firearm or destructive device
in this state:

(1) a felon;

(2) a person subject to an order of protection
pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978; or

(3) a person convicted of any of the following
crimes:

(a) battery against a household member
pursuant to Section 30-3-15 NMSA 1978;

(b) criminal damage to property of a
household member pursuant to Section 30-3-18 NMSA 1978;

(c) a first offense of stalking pursuant
to Section 30-3A-3 NMSA 1978; or

(d) a crime listed in 18 U.S.C. 921.

B. A felon found in possession of a firearm shall
be guilty of a third degree felony.

C. A serious violent felon that is found to be in
possession of a firearm shall be guilty of a third degree
felony, and notwithstanding the provisions of Section 31-18-15
NMSA 1978, shall be sentenced to a basic term of six years
imprisonment.

D. Any person subject to an order of protection
pursuant to Section 40-13-5 or 40-13A-5 NMSA 1978 or convicted
of a crime listed in Paragraph (3) of Subsection A of this
section who receives, transports or possesses a firearm or
destructive device is guilty of a misdemeanor.

E. As used in this section:

(1) except as provided in Paragraph (2) of
this subsection, "destructive device" means:

(a) any explosive, incendiary or poison
gas: 1) bomb; 2) grenade; 3) rocket having a propellant charge
of more than four ounces; 4) missile having an explosive or
incendiary charge of more than one-fourth ounce; 5) mine; or 6)
similar device;

(b) any type of weapon by whatever name
known that will, or that may be readily converted to, expel a
projectile by the action of an explosive or other propellant,
the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell that
is generally recognized as particularly suitable for sporting
purposes; or

(c) any combination of parts either
designed or intended for use in converting any device into a
destructive device as defined in this paragraph and from which
a destructive device may be readily assembled;

(2) the term "destructive device" does not
include any device that is neither designed nor redesigned for
use as a weapon or any device, although originally designed for
use as a weapon, that is redesigned for use as a signaling,
pyrotechnic, line throwing, safety or similar device;

(3) "felon" means a person convicted of a
felony offense by a court of the United States or of any state
or political subdivision thereof and:

(a) less than ten years have passed
since the person completed serving a sentence or period of
probation for the felony conviction, whichever is later;

(b) the person has not been pardoned for
the felony conviction by the proper authority; and

(c) the person has not received a
deferred sentence;

(4) "firearm" means any weapon that will or is
designed to or may readily be converted to expel a projectile
by the action of an explosion or the frame or receiver of any
such weapon; and

(5) "serious violent felon" means a person
convicted of an offense enumerated in Subparagraphs (a) through
(n) of Paragraph (4) of Subsection [
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of Section 33-2-34
NMSA 1978; provided that:

(a) less than ten years have passed
since the person completed serving a sentence or a period of
probation for the felony conviction, whichever is later;

(b) the person has not been pardoned for
the felony conviction by the proper authority; and

(c) the person has not received a
deferred sentence and completed the total term of deferment as
provided in Section 31-20-9 NMSA 1978."

SECTION 2.
Section 31-3-12 NMSA 1978 (being Laws 2022,
Chapter 56, Section 28) is amended to read:

"31-3-12. AVAILABILITY OF GLOBAL POSITIONING SYSTEM DATA
ON DEFENDANTS ON PRETRIAL RELEASE.--Any public entity that
possesses or controls global positioning system data with
respect to a defendant on pretrial release shall make that data
available without a warrant to a law enforcement officer
pursuant to an ongoing and pending criminal investigation for
which there is reasonable suspicion to believe the data will be
probative. Any data provided to the law enforcement officer
shall be limited to data that relates to the criminal
investigation and is not more than one year old. The data
shall not be made a part of any public record unless admitted
as evidence during a criminal trial. The law enforcement
officer may request immediate access to the data if it involves
an investigation of:

A. any of the following serious violent felony
offenses:

(1) murder in the first degree;

(2) first or second degree felony human
trafficking of a child;

(3) first degree felony abuse of a child;

(4) sexual exploitation of a child
constituting at least a second degree felony; or

(5) a serious violent felony offense as

provided in Subparagraphs (a) through (n) of Paragraph (4) of

Subsection [
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of Section 33-2-34 NMSA 1978;

B. a felony offense during which a firearm was
brandished pursuant to Section 31-18-16 NMSA 1978 or during
which a firearm was discharged; or

C. a felony offense during which great bodily harm
was inflicted as defined in Section 30-1-12 NMSA 1978 or that
caused the death of a person."

SECTION 3.
Section 31-9-1.2 NMSA 1978 (being Laws 1988,
Chapter 107, Section 3 and Laws 1988, Chapter 108, Section 3,
as amended) is amended to read:

"31-9-1.2. DETERMINATION OF COMPETENCY--COMMITMENT--REPORT.--

A. If, after a competency hearing, a court
determines that a defendant is not competent to stand trial,
the court shall determine if the defendant is dangerous. A
defendant who is not competent is dangerous if the court finds
by clear and convincing evidence that the defendant presents a
serious threat of:

(1) committing murder in the first or second
degree, as provided in Section 30-2-1 NMSA 1978;

(2) inflicting great bodily harm, as defined
in Section 30-1-12 NMSA 1978, on another person;

(3) committing criminal sexual penetration, as
provided in Section 30-9-11 NMSA 1978;

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

(5) committing abuse of a child, as provided
in Subsection D of Section 30-6-1 NMSA 1978;

(6) violating a provision of the Sexual
Exploitation of Children Act;

(7) committing human trafficking, as provided
in Section 30-52-1 NMSA 1978;

(8) committing aggravated arson, as provided
in Section 30-17-6 NMSA 1978; or

(9) committing any "serious violent offense"
enumerated in Subparagraphs (a) through (n) of Paragraph (4) of
Subsection [
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of Section 33-2-34 NMSA 1978 with the use of a
firearm.

B. If the court determines that a defendant is not
dangerous, the court may order the defendant to participate in
a community-based competency restoration program or dismiss the
criminal case without prejudice in the interests of justice;
provided that if the court dismisses the case, the court may:

(1) advise the district attorney to consider
the initiation of involuntary civil commitment proceedings in
accordance with the Mental Health and Developmental
Disabilities Code and may detain the defendant for a maximum of
seven days to facilitate initiation of those proceedings; or

(2) advise the district attorney to consider
initiation of proceedings in accordance with the Assisted
Outpatient Treatment Act but may not detain the defendant for
that purpose.

C. A community-based competency restoration program
is a court-approved program that is designed to restore a
defendant to competency and provided in an outpatient setting
in the community where the defendant resides. A court may
order a defendant to participate in a community-based
competency restoration program for no longer than ninety days,
and:

(1) within thirty days of the date that the
defendant was ordered to participate in a community-based
competency restoration program, the person supervising the
defendant's competency restoration program shall submit a
progress report to the court and both parties that includes:

(a) an initial assessment of the
defendant and a description of the competency restoration
programming that will be provided to the defendant;

(b) a report on the defendant's
amenability to competency restoration;

(c) an assessment of the program's
capacity to provide appropriate programming for the defendant;
and

(d) an opinion as to the probability of
the defendant being restored to competency within ninety days
from the date that the court ordered the defendant's
participation in the community-based competency restoration
program;

(2) no later than ninety days from the date
that the court ordered the defendant to participate in a
community-based competency restoration program, the court shall
hold a review hearing and determine if the defendant has been
restored to competency and at least seven days prior to the
review hearing, the person supervising the defendant's
competency restoration program shall submit a written report
that includes:

(a) an opinion as to whether the
defendant has been restored to competency;

(b) if the defendant is receiving
medication, information from the prescribing physician about
the type, dosage and effect of the medication on the
defendant's appearance, actions and demeanor;

(c) if the defendant remains not
competent, an opinion as to whether the defendant satisfies the
criteria for involuntary commitment in accordance with the
Mental Health and Developmental Disabilities Code and whether:
1) as a result of mental disorder, the defendant presents a
likelihood of serious harm to the defendant's self or others;
2) the defendant needs and is likely to benefit from
involuntary commitment and treatment; and 3) the proposed
commitment is consistent with the treatment needs of the
defendant and with the least drastic means principle; and

(d) if the defendant remains not
competent, an opinion as to whether the defendant satisfies the
criteria for involuntary treatment in accordance with the
Assisted Outpatient Treatment Act and whether the defendant:
1) has a primary diagnosis of a mental disorder; 2) has
demonstrated a history of lack of compliance with treatment for
a mental disorder; 3) is unwilling or unlikely, as a result of
a mental disorder, to voluntarily participate in outpatient
treatment that would enable the defendant to live safely in the
community without court supervision; 4) is in need of assisted
outpatient treatment as the least restrictive appropriate
alternative to prevent a relapse or deterioration likely to
result in serious harm to the defendant's self or others; and
5) will likely benefit from assisted outpatient treatment and
have the defendant's best interests served; and

(3) if, after a review hearing, the court
finds that the defendant is competent, the case shall proceed
to trial, but if the court finds that the defendant remains not
competent, the case shall be dismissed without prejudice and
the court may advise the district attorney to consider
initiating proceedings in accordance with the Mental Health and
Developmental Disabilities Code or the Assisted Outpatient
Treatment Act.

D. If the court determines that a defendant who is
not competent is dangerous, the district court may commit the
defendant as provided in this section for competency
restoration. If the court orders commitment, the court shall
enter a transport order that provides for the defendant's
return to the local jail within seventy-two hours upon the
defendant being restored to competency, completion of the
competency restoration program or as otherwise required by the
court. A defendant committed for competency restoration shall
be provided with treatment available to persons subject to
civil commitment and:

(1) shall be detained by the department of
health in a secure, locked facility; and

(2) shall not be released from that facility
except pursuant to an order of the court that committed the
defendant.

E. The department of health shall admit a defendant
for competency restoration within fifteen days of receipt of
the court's order of commitment of an incompetent defendant and
of the necessary and available documents reasonably required
for admission pursuant to written policies adopted by the
secretary of health or the secretary's designee. If the
secretary of health or the secretary's designee determines that
the department of health does not have the ability to meet the
needs of the defendant, the secretary or the secretary's
designee may refuse admission by providing written
certification to the committing court and the parties of the
department's inability to meet the needs of the defendant. The
certification shall be made within seven days of the receipt of
the court's order of commitment and necessary and available
documents reasonably required for admission pursuant to written
policies adopted by the secretary or the secretary's designee.
Within ten days of filing of the certification, the court shall
conduct a hearing for further disposition of the criminal case.

F. Within thirty days of a defendant's admission to
a department of health facility or an inpatient psychiatric
hospital for competency restoration, the department shall file
with the court, the state and the defense:

(1) an initial assessment of the defendant and
treatment plan;

(2) a report on the defendant's amenability to
competency restoration;

(3) an assessment of the department's capacity
to provide appropriate treatment for the defendant; and

(4) an opinion as to the probability of the
defendant being restored to competency within nine months from
the date the court determined the defendant is not competent to
stand trial."

SECTION 4.
Section 31-9-1.4 NMSA 1978 (being Laws 1988,
Chapter 107, Section 5 and Laws 1988, Chapter 108, Section 5,
as amended) is amended to read:

"31-9-1.4. DETERMINATION OF COMPETENCY--INCOMPETENT
DEFENDANTS.--If at any time the district court determines that
there is not a substantial probability that the defendant will
be restored to competency within nine months from the date the
court determined the defendant is not competent to stand trial,
the district court may:

A. hold a criminal commitment hearing in accordance
with Section 31-9-1.5 NMSA 1978 within three months if the
defendant is charged with:

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

(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;

(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;

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

(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;

(6) a crime provided for in the Sexual
Exploitation of Children Act;

(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;

(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or

(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
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of Section 33-2-34 NMSA 1978 with the use of a firearm;

B. release the defendant from custody and dismiss
the criminal case with prejudice; or

C. dismiss the criminal case without prejudice in
the interest of justice; provided that if the treatment
supervisor reports to the court that the defendant satisfies
the criteria for involuntary commitment in accordance with the
Mental Health and Developmental Disabilities Code, the
department of health shall initiate those proceedings, and the
court may order the defendant confined for a maximum of seven
days to facilitate the initiation of those proceedings; and
provided further that the district attorney may initiate
involuntary commitment proceedings in the department's stead."

SECTION 5.
Section 31-9-1.5 NMSA 1978 (being Laws 1988,
Chapter 107, Section 6 and Laws 1988, Chapter 108, Section 6,
as amended) is amended to read:

"31-9-1.5. DETERMINATION OF COMPETENCY--CRIMINAL
COMMITMENT--EVIDENTIARY HEARING.--

A. If the court determines that there is not a
substantial probability that a defendant who is not competent
to stand trial will be restored to competency, a commitment
hearing to determine the sufficiency of the evidence of the
defendant's guilt shall be held if the defendant is charged
with:

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

(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;

(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;

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

(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;

(6) a crime provided for in the Sexual
Exploitation of Children Act;

(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;

(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or

(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
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of Section 33-2-34 NMSA 1978 with the use of a firearm.

B. A criminal commitment hearing shall be conducted
by the district court without a jury. The state and the
defendant may introduce evidence relevant to the question of
the defendant's guilt of the crime charged. The district court
may admit hearsay or affidavit evidence on secondary matters
such as testimony to establish the chain of possession of
physical evidence, laboratory reports, authentication of
transcripts taken by official reporters, district court and
business records and public documents.

C. If the evidence does not establish by clear and
convincing evidence that the defendant committed the crime
charged, the district court shall dismiss the criminal case
with prejudice.

D. If the district court finds by clear and
convincing evidence that the defendant committed the crime
charged and has not made a finding of dangerousness in
accordance with Section 31-9-1.2 NMSA 1978, the district court
shall dismiss the criminal case without prejudice.

E. If the district court finds by clear and
convincing evidence that the defendant committed the crime
charged and enters a finding that the defendant remains not
competent to stand trial and remains dangerous as determined by
the court in accordance with Section 31-9-1.2 NMSA 1978:

(1) the defendant shall be detained by the
department of health in a secure, locked facility;

(2) the defendant shall not be released from
that secure facility except pursuant to an order of the court
that committed the defendant or upon expiration of the period
of time equal to the maximum sentence to which the defendant
would have been subject had the defendant been convicted in a
criminal proceeding;

(3) significant changes in the defendant's
condition, including trial competency and dangerousness, shall
be reported in writing to the district court, state and
defense; and

(4) at least every two years, the district
court shall conduct a hearing upon notice to the parties and
the department of health charged with detaining the defendant.
At the hearing, the court shall enter findings on the issues of
trial competency and dangerousness
and
:

(a) upon a finding that the defendant is
competent to proceed in a criminal case, the court shall
continue with the criminal proceeding;

(b) if the defendant continues to remain
not competent to stand trial and dangerous in accordance with
Section 31-9-1.2 NMSA 1978, the court shall review the
defendant's competency and dangerousness every two years until
expiration of the period of commitment equal to the maximum
sentence to which the defendant would have been subject had the
defendant been convicted in a criminal proceeding; and

(c) if the court finds upon its two-year
review hearing that the defendant is no longer dangerous, the
defendant shall be released.

F. At any time, including after a court dismisses a
case against a defendant, the department of health or the
district attorney may initiate involuntary commitment
proceedings in accordance with the Mental Health and
Developmental Disabilities Code or proceedings in accordance
with the Assisted Outpatient Treatment Act. If the district
attorney indicates an intent to initiate involuntary commitment
proceedings in accordance with the Mental Health and
Developmental Disabilities Code, the court may detain the
defendant for a maximum of seven days only to facilitate the
initiation of those proceedings at any licensed psychiatric
hospital."

SECTION 6.
Section 31-9-1.6 NMSA 1978 (being Laws 1997,
Chapter 153, Section 1, as amended) is amended to read:

"31-9-1.6. HEARING TO DETERMINE DEVELOPMENTAL OR
INTELLECTUAL DISABILITY.--

A. Upon motion of a party or the court, the court
shall hold a hearing to determine whether the defendant is not
competent due to a developmental or intellectual disability as
defined in Subsection E of this section, and the evaluator
shall be provided with the necessary and available documents
reasonably required for admission pursuant to written policies
adopted by the secretary of health or the secretary's designee.

B. If the court finds by a preponderance of the
evidence that the defendant is not competent to stand trial due
to a developmental or intellectual disability and that there is
not a substantial probability that the defendant will be
restored to competency within nine months from the date the
court determined the defendant is not competent to stand trial,
the court shall notify the department of health of the court's
finding. Within sixty days of receipt of the court's
notification, the department of health shall determine whether
the defendant presents a likelihood of serious harm to the
defendant's self or others.

C. If the department of health determines that the
defendant presents a likelihood of serious harm to self or
others, the department shall initiate involuntary commitment
proceedings in accordance with the Mental Health and
Developmental Disabilities Code if the defendant is charged
with:

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

(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;

(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;

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

(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;

(6) a crime provided for in the Sexual
Exploitation of Children Act;

(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;

(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or

(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
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of Section 33-2-34 NMSA 1978 with the use of a firearm.

D. After the involuntary commitment hearing or upon
expiration of fourteen months from the court's initial
determination that the defendant is not competent to stand
trial, the criminal case shall be dismissed without prejudice.

E. As used in this section, "developmental or
intellectual disability" means significantly subaverage general
intellectual functioning existing concurrently with deficits in
adaptive behavior. An intelligence quotient of seventy or
below on a reliably administered intelligence quotient test
shall be presumptive evidence of developmental or intellectual
disability."

SECTION 7.
Section 31-18-16 NMSA 1978 (being Laws 1977,
Chapter 216, Section 5, as amended) is amended to read:

"31-18-16. USE, BRANDISHING OR DISCHARGE OF FIREARM--

ALTERATION OF BASIC SENTENCE--SUSPENSION AND DEFERRAL

LIMITED.--

A. When a separate finding of fact by the court or
jury shows that a firearm was used in relation to a drug
transaction or during the commission of aggravated burglary
pursuant to Section 30-16-4 NMSA 1978 or a serious violent
offense, the basic sentence of imprisonment prescribed for the
offense in Section 31-18-15 NMSA 1978 shall be increased by one
year, except that when the offender is a serious youthful
offender or a youthful offender who received an adult sentence,
the sentence imposed by this subsection may be increased by one
year.

B. When a separate finding of fact by the court or
jury shows that a firearm was brandished in the commission of a
noncapital felony, the basic sentence of imprisonment
prescribed for the offense in Section 31-18-15 NMSA 1978 shall
be increased by three years, except that when the offender is a
serious youthful offender or a youthful offender that received
an adult sentence, the sentence imposed by this subsection may
be increased by one year.

C. When a separate finding of fact by the court or
jury shows that a firearm was discharged in the commission of a
noncapital felony, the basic sentence of imprisonment
prescribed for the offense in Section 31-18-15 NMSA 1978 shall
be increased by five years, except that when the offender is a
serious youthful offender or a youthful offender who received
an adult sentence, the sentence imposed by this subsection may
be increased by three years.

D. For a second or subsequent offense, when a
separate finding of fact by the court or jury shows that a
firearm was used, brandished, or discharged in relation to a
drug transaction or during the commission of aggravated
burglary pursuant to Section 30-16-4 NMSA 1978 or a serious
violent offense, the sentence shall be increased by five years,
except that when the offender is a serious youthful offender or
a youthful offender, the sentence imposed by this section may
be increased by three years.

E. If the case is tried before a jury and if a
prima facie case has been established showing that a firearm
was used, brandished or discharged in relation to a drug
transaction or during the commission of aggravated burglary
pursuant to Section 30-16-4 NMSA 1978 or a serious violent
offense, the court shall submit the issue to the jury by
special interrogatory. If the case is tried by the court, the
court shall decide the issue and shall make a separate finding
of fact thereon.

F. When a separate finding of fact by the court or
jury shows that a firearm was used, brandished or discharged in
relation to a drug transaction or during the commission of
aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a
serious violent offense, the firearm is subject to seizure and
forfeiture as an instrumentality pursuant to the provisions of
the Forfeiture Act.

G. As used in this section:

(1) "brandished" means displaying or making a
firearm known to another person while the firearm is present on
the person of the offending party with intent to intimidate or
injure a person;

(2) "in relation to a drug transaction" means
participating or attempting to participate in the trafficking
of a controlled substance pursuant to Section 30-31-20 NMSA
1978, distribution of a controlled substance to a minor
pursuant to Section 30-31-21 NMSA 1978 or distribution of a
controlled or counterfeit substance pursuant to Section
30-31-22 NMSA 1978 as a seller, purported seller or as an
accomplice; and

(3) "serious violent offense" means an offense
enumerated in Subparagraphs (a) through (n) of Paragraph (4) of
Subsection [
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of Section 33-2-34 NMSA 1978."

SECTION 8.
Section 33-2A-3 NMSA 1978 (being Laws 2002,
Chapter 8, Section 3) is amended to read:

"33-2A-3. DEFINITIONS.--As used in the Corrections
Population Control Act:

A. "commission" means the corrections population
control commission;

B. "female correctional facilities" means:

(1) the women's correctional facility, located
in Grants; and

(2) any other female correctional facility so
designated by the corrections department;

C. "male correctional facilities" means:

(1) the penitentiary of New Mexico, located in
Santa Fe;

(2) the central New Mexico correctional
facility, located in Los Lunas;

(3) the southern New Mexico correctional
facility, located in Las Cruces;

(4) the western New Mexico correctional
facility, located in Grants;

(5) the Roswell correctional facility, located
in Hagerman;

(6) the Guadalupe county correctional
facility, located in Santa Rosa;

(7) the Lea county correctional facility,
located in Hobbs; and

(8) any other male correctional facility so
designated by the corrections department;

D. "nonviolent offender" means:

(1) a person convicted only of possession of a
controlled substance, pursuant to the provisions of Section
30-31-23 NMSA 1978;

(2) a person incarcerated for violating the
conditions of [
his
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the person's
parole plan due to use or
possession of a controlled substance whose original conviction
was for commission of a nonviolent offense; or

(3) an inmate designated by the commission as
a nonviolent offender; provided that the offender was convicted
for the commission of a nonviolent offense, as that term is
defined in Subsection [
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]
N
of Section 33-2-34 NMSA 1978; and

E. "rated capacity" means the actual general
population bed space, including only individual cells and areas
designed for the long-term housing of inmates, available in
female correctional facilities or male correctional facilities
as certified by the secretary of corrections and subject to
applicable state and federal law."

SECTION 9.
Section 33-11-3 NMSA 1978 (being Laws 1988,
Chapter 78, Section 3, as amended) is amended to read:

"33-11-3. REGULATIONS.--

A. The corrections department, by July 1, 1988,
shall adopt regulations for all adult correctional institutions
operated by the department for the implementation of a
mandatory education program for all inmates to attain a minimum
education standard as set forth in this section.

B. The regulations shall apply only to any inmate
who:

(1) commits a crime after the effective date
of the Inmate Literacy Act; and

(2) has eighteen months or more remaining to
be served on the inmate's sentence of incarceration; and who:

(a) is not exempted due to a medical,
developmental or learning disability; or

(b) does not possess a high school
equivalency credential or a high school diploma.

C. The regulations adopted shall require that:

(1) a minimum education standard shall be met
beginning in 1988 and in all subsequent years as follows:

(a) in 1988, the education standard
shall be the equivalent of grade six in reading and math on the
test of adult basic education;

(b) in 1989, the education standard
shall be the equivalent of grade seven in reading and math on
the test of adult basic education;

(c) in 1990, the education standard
shall be the equivalent of grade eight in reading and math on
the test of adult basic education; and

(d) in 1991, the education standard
shall be a high school diploma or a high school equivalency
credential;

(2) inmates who meet the criteria in
Subsection B of this section shall be required to participate
in education programs for ninety days. After ninety days,
inmates may choose to withdraw from educational programs but
will be subject to the provisions of Paragraph (3) of this
subsection; and

(3) notwithstanding any other provision of
law, inmates who are subject to these regulations but who
refuse or choose not to participate shall not be eligible for
monetary compensation for work performed or for meritorious
deduction as set forth in Subsection [
D
]
F
of Section 33-2-34
NMSA 1978.

D. The regulations may:

(1) exclude any inmate who has been
incarcerated for less than ninety days in an institution
controlled by the corrections department;

(2) exclude any inmate who is assigned a
minimum custody classification; or

(3) defer educational requirements for inmates
with sentences longer than ten years."

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